Tom Kurua v Jack Kariko as Secretary, National Judicial Staff Services [2015] N8273

Mentions of people and company names in this document

We have not found any names of companies or people in this document that match names in our corporate records.

  • About

    National Court ruling that a sacked National Court whistleblower was denied natural justice and his dismissal was unfair and excessive.

Document content

  • N8273
    PAPUA NEW GUINEA
    [IN THE NATIONAL COURT OF JUSTICE]

    OS (JR) 834 OF 2015

    BETWEEN:
    TOM KORUA
    Plaintiff

    AND:
    JACK KARIKO as Secretary, National Judicial Staff Services
    First Defendant

    AND:
    POLI IFINA as Principal Legal Officer, National Judicial Staff Services
    Second Defendant

    AND:
    NATIONAL JUDICIAL STAFF SERVICES APPEAL TRIBUNAL
    Third Defendant

    AND:
    NATIONAL JUDICIAL STAFF SERVICES
    Fourth Defendant

    AND:
    THE INDEPENDENT STATE OF PAPUA NEW GUINEA
    Fifth Defendant

    Goroka: Neill J
    2016: 8, 15, 22 July; 1, 15, 23 August; 9 September

    ADMINISTRATIVE LAW – “whistle-blower” officer who made complaints
    against a senior officer was then subject to disciplinary procedure – self-
    incrimination Constitution Section 37 – natural justice for person subject to
    disciplinary action to be able to cross-examine witness–reasonableness of
    punishment where person facilitated soliciting bribe but he was not a
    beneficiary of bribes nor had he personally anything to gain.

    Facts

    The Plaintiff was a Security Supervisor and with lower rank former security
    officers made complaints that the payroll officer was not doing his job in that he
    had not paid the former officers their retirement and overtime entitlements and

  • Page 2 of 16

  • had taken bribes to do his job. There was no caution given to the Plaintiff that in
    making his statement he could be charged under Section 97B of the Criminal
    Code Act or under the National Judicial Staff Services Act. He was dismissed
    for soliciting money to fast track the former officers’ entitlements from payroll
    officer.

    The plaintiff felt a commitment to the former security, who he called “his men”,
    none of whom were well educated, to help them. He denied taking any money
    for himself. The former officers gave a history of frustration when trying to
    contact or to obtain their entitlements from the payroll officer. They gave
    evidence the payroll officer accepted their bribes which they hoped would get
    him do his job to process their lawful entitlements. The payroll officer continues
    to be employed. He denied taking bribes. He was not made available for cross-
    examination by the plaintiff.

    Held

    1. When considering a disciplinary offence, it is a denial of natural justice
    by a statutory authority, to not give the officer who has been charged, the
    opportunity to cross-examine and test the evidence of the person who is the
    root cause of the charge.

    2. Dismissal was excessively severe where the officer did not receive any
    benefit for the bribe offered but did so to assist his subordinates who were
    properly due salary and end-of-employment entitlements.

    3. The person (whistleblower) who reports a person for accepting bribes
    should be informed of their right to not self-incriminate.

    4. The disparity of punishment of the whistleblower compared to no
    punishment of the person who took bribes – reasonableness.

    Cases Cited:
    Papua New Guinea Cases

    Kekedo v Burns Philp (PNG) Ltd [1988-9] PNGLR 122
    Paul Asakusa v Andrew Kumbakor (2008) N3303
    Kevi v The Teaching Service Commission (1997) N1555

    Overseas Cases

    Associated Provincial Picture Houses v Wednesbury Corp [1947] 2 All ER 680

    Legislation

  • Page 3 of 16

  • Constitution, SS 37, 59
    National Judicial Services Act
    National Court Rules, Order 16

    Counsel

    Ms V Move, for the Plaintiff
    Mr P Ifina, for the First, Second, Third, Fourth Defendants &Judicial Council
    Ms W Oa, for the Fifth Defendant

    9th September, 2016

    1. NEILL J: BACKGROUND: The Plaintiff was employed by the Fourth
    Defendant, the National Judicial Staff Services (NJSS) as a Security Supervisor
    at the National Court Goroka. He had been employed as a security since 2
    January 2007.The National Judicial Services Act 1997 (Act) established the
    NJSS to provide support staff to the courts. The Act set up a procedure to deal
    with employment issues of NJSS staff. The First Defendant (Secretary) is the
    Head of the NJSS. It is the Secretary who considers complaints made against
    staff of their having committed a breach of the Act.

    2. The Secretary is required to adhere to the procedures for dealing with
    serious disciplinary offences. The Secretary did the following:

    1. By notice dated 6 January 2015 the Plaintiff was suspended
    and a second notice charged the Plaintiff (under Section 14(h) of
    the Act):

    “On several occasions you solicited and received monies
    from former security officers from Goroka National Court
    namely Sawong Suman, SutoMosoka, Simon Kar and Billy
    Tarosa as payment to fast track their outstanding
    payment.” (charge)

    2. The Plaintiff was served with the notice of charge on 9
    January 2015 and he responded to the charge by letter dated 12
    January 2015. The NJSS Legal Division date stamp shows
    receipt on10 February 2015.

    3. Section 16(5) (a) to (e) of the Act empowers the Secretary to
    impose punishment after due consideration of the material. Of
    the range, Section 16(5)(a), (b) and (c) relate to monetary
    punishment by fine, or reduction in salary, or lowering the
    officer’s classification with a consequential lower salary. In

  • Page 4 of 16

  • addition to that punishment, Section 16(5)(d) provides for
    transfer of the offender to another location.

    4. Section 16(5)(e) allows the Secretary to recommend
    dismissal to the Judicial Council (Council), established under
    Section 3A of the Act. Pursuant to Section 16(6) of the Act, by
    notice dated 4 March 2015 the Secretary informed the Plaintiff
    he has been referred to the Council for dismissal. The notice was
    served on 9 March 2015.

    5. A notice of appeal was given by the Plaintiff to the National
    Judicial Staff Services Appeal Tribunal (Tribunal) and the
    appeal proceeded to hearing. On 13 November 2015 the Tribunal
    dismissed the appeal.

    6. By letter dated 24 June 2016 the Secretary informed the
    Plaintiff that the Council had upheld the Tribunal’s decision and
    confirmed the dismissal by the Secretary. That letter did not
    reach the Plaintiff until some 21 days later. The Plaintiff’s salary
    ceased on 22 June 2016.

    3. Section 19 of the Act provides for a three stage process for a “serious
    disciplinary offence”. After the Secretary considers the complaint and makes a
    decision, then, an officer may appeal the Secretary’s decision to the Tribunal.
    The Council is at the apex of the appeal process.

    4. Pursuant to Section 19(2) the Tribunal may vary the Secretary’s decision
    as the punishment imposed under Section 16(5)(a) to (d) and may recommend
    to the Council that the officer be dismissed. Section 19(3) provides that the
    Tribunal’s decision is final except as to dismissal.

    5. The Tribunal recommended to the Council that the Plaintiff be dismissed.
    The recommendation of the Secretary and the Tribunal was then considered by
    the Council under Sections 19(5) and 19(6) of the Act. The letter of dismissal
    (see paragraph 7) said (sic.):

    “The Judicial Council had upheld the decision of the Appeals
    Tribunal which confirmed the decision of the Secretary to
    recommend you to Judicial Council for dismissal from NJSS.”

    Background to the Act

    6. Sir Buri Kidu was the first Papua New Guinean Chief Justice. He knew
    that there could be no independence for the Judiciary without financial
    independence. That is how the Act was conceived. Anyone who knows politics

  • Page 5 of 16

  • knows that to pass legislation it requires both timing and the appropriate person
    to move the legislation. The timing and the person came about in 1987 when the
    second reading of the Bill (now the Act) was moved by the then Minister for
    Justice, Warren Dutton. He too was conscious for the need for judicial
    independence and said in the House:

    “There are three arms of Government. They are the executive,
    the legislative and the judicial. The Constitution says that in
    principle these arms are to be kept separate.”

    7. The important thing was to secure the financial independence of the
    judiciary. Later the Act’s mechanism for staffing, the “detail” was drafted in
    recent years as the Administrative Orders (Admin Orders).

    8. The Admin Orders allow the NJSS Secretary to deal with disciplinary
    matters by reading the complaint and the reply to the complaint and without
    giving an opportunity to the officer to test the allegations made. This is a
    common mechanism in the Public Service but it does beg the question of
    natural justice. The Admin Orders are subsidiary to the Act, however Section
    16 of the Act does authorise the Secretary to charge and suspend an officer if he
    is of the opinion the charge has been sustained and the Secretary may
    recommend dismissal.

    Facts

    9. The Secretary acted on a complaint by the “former security officers” who
    were named in the charge and who were under the Plaintiff’s supervision at the
    Goroka Court. A statement was also given by Jasis Unua, a fifth person who
    wanted to “fast track” his final payout. The statements of all five men are noted
    in the Secretary’s decision recommending dismissal.

    10. In considering the evidence of the former security officers, they tell much
    the same story. Their separate statements are annexed to an affidavit by the
    Plaintiff (filed 11 August 2016, document 24). In summary, they say:

    ♣ Some were retiring from the NJSS service. Some due to
    health and others age and others due to restructure of positions;
    all had been employed for many years.
    ♣ It is not suggested that any of these men had much education
    or work experience other than as a security guard. They wanted
    to get their retirement entitlements and overtime pay.

    ♣ Allan Tukar, the paymaster at NJSS Waigani seemed to be
    the person whose job it was to pay them their entitlements.

  • Page 6 of 16

  • 11. To give some notion of their frustration in trying to contact Allan Tukar
    let alone obtain their entitlements, Jasis detailed his efforts (sic.):

    “I made several attempts by travelling to Port Moresby NJSS
    head office to follow up.….I was told Mr Allen Tukar to follow
    up with him. Many times I went to his office when I in Port
    Moresby but he was not always in his office. After attempting
    follow-up for so many times I was forced to travel out of Port
    Moresby …. Again in September 2012 I travel to Port Moresby
    but there was no good attendance by Allan Tukar. From the way
    he was approaching me I understood and that he was expecting
    some money from me as usual before he could calculate and pay
    my entitlements. I gave him K500 cash all in 100 kina notes in
    front of the Waigani Court house under the rain tree. The
    transaction took place in the presence of Security Supervisor Mr.
    Tom Korua. When I handed the K500 cash he took it and put it in
    his short pocket…My retrenchment entitlement is still yet to be
    paid to me….”

    12. Suman Sawong’s statement says that he was paid his retrenchment money
    but not paid for the overtime that he worked. He paid K150 and K200 to the
    Plaintiff to send to Allan Tukar and he states (sic.):

    “Naomi Thomas request some money for processing and we
    contributed and sent a total of K250 on the advice of Tom Korua.
    The money was posted through Naomi’s ANZ bank
    account.” [He adds that in regard to the claim he was “still
    waiting”.]

    13. Suto Mosoka says he was paid his entitlements on retirement but not his
    overtime. He says that money was paid to both Allan Tukar and to Naomi
    Thomas through the Plaintiff to get his claim processed.

    14. Simon Kar was not paid his retrenchment benefits or overtime. He paid a
    “processing fee” of K750 through the Plaintiff to send to Allan Tukar.

    15. The last of the former security officers is Billy Tarosa. He says:

    “I followed up on so many times. While waiting for payment I
    sent some money to the paymaster account but nothing has
    happened. Firstly I sent K150 into Allen Tukar’s BSP bank
    account. Recently in July 2014 I sent another K100 to Mrs.
    Naomi Thomas into her Bank Account.”

  • Page 7 of 16

  • 16. Four of the statements of the former security officers are dated 21 August
    2014 and the statement of Billy Tarosa and the Plaintiff are dated 22 August
    2014. There is nothing in the statements to suggest that they had been informed
    of their right to remain silent or the issue of self-incrimination or Section 37 of
    the Constitution or they could be referred to Police pursuant to Admin Orders
    10.35 (say to be charged under Section 97B Criminal Code Act) or Part IV of
    the Admin Order for an offence regarding bribes to Allan Tukar. And, where an
    investigating authority is looking to prosecute a principal offender, an
    arrangement is sometimes made with a less culpable offender for indemnity or a
    lesser charge or lesser penalty, in order to secure the evidence of the less
    culpable offender in regard to prosecuting the principal offender.

    17. The Plaintiff’s statement is he did not take for himself any money of the
    former officers but he helped them, so they could get their money (sic.):

    “As their supervisor I have been doing all these to assist my
    security officers with their overtime claims. If I don’t do that how
    could I assist my security personnel. I was left with no choice by
    the paymaster as they were controlling the overtime claims and
    telling me to facilitate for their processing fee. I did that in good
    faith only to help my security men. I had no criminal intention.”

    Grounds of appeal to the Tribunal

    18. In summary, the grounds in the Plaintiff’s notice of appeal to the
    Tribunal:

    A. Notice of the Secretary’s decision to recommend dismissal
    was received by the Plaintiff (sic.) “came after 35 working days
    from the time of my replyment to the said charge therefore my
    charges shall be considered null and void” as contrary Admin
    Orders 10.39 and10.40.

    B. The Plaintiff and the five former officers informed the
    Principal Legal Officer about misconduct of the payroll officers,
    Allan Tukar and Naomi Thomas in not processing the security
    entitlements. (Pursuant to Admin Orders 10.28, the Legal Officer
    is the person to whom the Secretary refers a complaint and who
    then prepares a charge.)Based on that information, some months
    later the Plaintiff was charged, though he thought his statement
    was concerning the payroll officer. The Plaintiff says that delay
    contravened Admin Orders 10.29.

    C. The Plaintiff was not given an opportunity to see the
    evidence provided in support of the charge.

  • Page 8 of 16

  • D. The Plaintiff denies the statements of the security officers
    that he took money from them to process their claims.

    19. The Plaintiff says the Secretary did not comply with the time
    requirements of Order 10 of the Admin Orders. The Admin Orders, which fill an
    arch-lever file, have such detail, that a lawyer could navigate but it is doubtful
    that a security guard with only limited education could competently do so.

    In regard to A

    20. Admin Orders 10.39 and Admin Orders 10.40 apply. The Orders require
    the formal notification of the Secretary’s decision is to be provided to the officer
    within 21 working days otherwise: “the charge against the officer shall be
    deemed null and void.” The affidavit of the Principal Legal Officer annexes
    copies of the documents: the notice of charge was served on the Plaintiff on 9
    January 2015; the date stamp of the “Legal Division” (NJSS) notes the
    Plaintiff’s response to the charge was received on 10 February 2015; the
    Plaintiff was served the notice of dismissal on 9 March 2015.

    21. The number of working days from 10 February to 9 March 2015 is 20,
    including these two days.

    22. When the Plaintiff claims the notice was received outside the 21 days he
    is calculating the timeframe from the date of his response not the date received
    by the Second Defendant. In his Amended Statement (document 22) the
    Plaintiff says: “responded to the charge on the 12th day of January 2015 sent to
    the First and Second Defendants on the same date through EMS at the Post
    Office in Goroka”. But there is no evidence when it was delivered by EMS to
    either of these defendants. As there is no proof of service, the only clear date of
    receipt that the Court can rely on the date stamp of 10 February 2015 and which
    was within 21 days. This ground of the appeal must fail accordingly.

    In regard to B

    23. The Plaintiff and the five former officers informed the Principal Legal
    Officer about misconduct of the payroll officers, Allan Tukar and Naomi
    Thomas in not processing the security entitlements. The officers’ statements
    were made on 21 and 22 August 2014.The Plaintiff was charged on 6 January
    2015.

    24. The Plaintiff says that delay contravened Admin Orders 10.29. This Order
    relates to minor offences. His charge was a “Serious Offence” but Admin
    Orders 10.34 says the same procedure applies. While it is obvious that some 4
    months 2 weeks elapsed from the date of the statements to the date of the
    charge, Admin Orders 10.33 states the precondition for instituting the dismissal

  • Page 9 of 16

  • procedure is:

    “Where a serious offence has been committed, a Manager shall
    consider the seriousness and the nature of the offence and shall
    refer the matter to the Secretary in writing.”

    25. There is no evidence of a reference by “a Manager” to the Secretary. It
    cannot be known if the process of the Admin Orders 10.33 was followed.
    Without knowing about this referral it is not possible to know if the timeframe
    of 10 days in Admin Orders 10.29 was followed. Albeit for reasons other than in
    the ground of appeal, there was breach of process.

    In regard to C

    26. This is the substantive ground. The Plaintiff says that he did not have the
    statements of the former security officers or Allan Tukar when he drafted his
    reply to the charge. He implies that as a consequence he was denied natural
    justice.

    In regard to D

    27. On review the Court does not look at the evidence as such, but looks at
    the process. Regardless, the Plaintiff’s statements have inconsistencies. The
    former officers made statements which vary from the Plaintiff’s. The Tribunal’s
    finding of soliciting will not be the subject of the review.

    Tribunal’s decision

    28. In regard to penalty, the Tribunal noted (at paragraph 8) the Plaintiff’s
    statement “that he never benefited from the money he solicited” and

    “Allan Tukar, the other officer who was charged for the same offence is still
    working. The Criminal Clerk in the Goroka National Court, Namely
    Roselyn Mamano was charged for misappropriation of K2, 000 bail money,
    was found guilty and fined and she is still in her substantive position. He
    submitted that his case falls well below these two categories of cases
    therefore a lesser penalty such as caution or reprimand or fine shall be
    considered.”

    29. At paragraph 14 the Tribunal notes in regard to Allan Tukar:

    “Mr. Allan Tukar, who is charged with the same charge, in his
    response to the Secretary dated 23 October 2014, has denied
    communicating with the former named security officers from
    Goroka National Court, nor requested Mr. Tom Korua to solicit

  • Page 10 of 16

  • monies from them to fast track payments of their outstanding
    claims. The Appellant admitted soliciting or receiving monies
    from the former security officers. Receiving or accepting money
    may not necessarily mean that the Appellant benefitted from it.
    However, a denial by Mr. Allan Tukar does draw an impression
    that the Appellant had benefited from the monies he solicited.”

    30. In regard to penalty, at paragraph 20, the Tribunal states:

    “Since the Appellant in his appeal did not challenge the severity
    of the sentence or claims innocence as grounds of his appeal, I
    do not think it is appropriate for this Tribunal to annul or vary
    the decision of Secretary.”

    31. This last finding of the Tribunal is not correct. Section 19(2) of the Act
    gives the Tribunal power to vary the decision. And, the letter of the Secretary
    dated 4 March 2015 to the Plaintiff says his decision is on penalty: “Therefore
    the following penalty is imposed upon you…”:

    32. Pursuant to that notice the Plaintiff lodged his appeal. In the above cited
    paragraph 8 of the Tribunal’s decision the Plaintiff obviously addresses the
    Tribunal on penalty. In the above cited paragraph 14 the Plaintiff raises matters
    in regard to innocence and mitigation of penalty.

    33. The principle of reasonableness as developed in Associated Provincial
    Picture Houses v Wednesbury Corp. [1947] 2 All ER 680 (Wednesbury)is often
    cited in our jurisdiction, for example in Magiri v PNG Forest Authority (2009)
    N3670. In Wednesbury a municipal authority exercising powers to restrict
    children going to the appellant’s cinema. Lord Greene M.R. discussed
    reasonableness in the context of the authority exercising discretion given to it by
    the relevant legislation, in essence (p. 685 C), “a conclusion so unreasonable
    that no reasonable authority could ever have come to it”.

    34. In applying the Wednesbury principle to the findings made by the
    Tribunal it is clear that the Tribunal was unreasonably swayed by the
    seriousness of the charge compared to the more serious matter of Allan Tukar
    taking bribes. The Tribunal did not reasonably consider the aims of the Act in
    regard to soliciting bribes under Section 14(h) of the Act. Section 14(h) looks to
    stop NJSS staff soliciting bribes and to stop the NJSS staff accepting bribes. In
    looking only at the situation of the Plaintiff the Tribunal ignored the situation
    with Allan Tukar and that was unreasonable within the Wednesbury meaning.

    Order 16 and relevant cases on a review

    35. To consider the legal framework of a Judicial Review, Order 16 Rule

  • Page 11 of 16

  • 13(1) of the Rules lists possible grounds for a review. The relevant grounds in
    that list for this Review are:

    ♣ Breach of procedure
    ♣ Taking into account irrelevant considerations
    ♣ Failing to take into account relevant considerations
    ♣ Error of law on the face of the record
    ♣ Reasonableness

    36. In deciding this Review the Court is mindful of the following cases in
    regard to Order 16, particularly on the issues of:

    ♣ The “decision-making process not the decision”
    ♣ “breach of natural justice”
    ♣ Reasonableness

    37. In Kekedo v Burns Philp (PNG)Ltd [1988-9] PNGLR 122 the Supreme
    Court said in summary of several aspects relevant to this Appeal:

    ♣ The Judicial Review jurisdiction of the National Court is
    discretionary.

    ♣ The purpose of Judicial Review is not to examine the
    reasoning of the subordinate authority with a view to substitute
    the Court’s opinion. Judicial Review is concerned with the
    decision-making process not the decision.

    ♣ The circumstances under which Judicial Review may be
    available are where the decision-making authority exceeds its
    powers, commits an error of law, commits a breach of natural
    justice, reaches a decision which no reasonable tribunal could
    have reached, or abused its powers.

    ♣ Even in cases where no appeal lies against an order or a
    decision, Judicial Review would nevertheless still be available to
    challenge the validity or reasonableness of the order or decision

    Pleadings

  • Page 12 of 16

  • 38. The Plaintiff filed an Originating Summons on 11 December 2015 which
    sought an order to quash the dismissal by the Secretary. Notice of Motion filed
    the same day sought Review of the Tribunal’s appeal decision.

    39. On 8 July 2016 the Plaintiff was granted Leave to Review the Tribunal
    decision and the dismissal by the Secretary and the matter was adjourned to 22
    August 2016. At that time the Plaintiff and the Court were not aware of the
    Secretary’s letter dated 24 June 2016 informing that the Council had confirmed
    the dismissal.

    40. On 15 July 2016, the matter was brought back to Court to vacate the
    adjourned date and for the parties to be informed of the confirmation. The
    matter was adjourned to 22 July 2016 to allow for Mr Ifina to travel to Goroka.

    41. On 22 July 2016 the Principal Legal Officer announced that he
    represented the First, Second, Third, Fourth Defendants and the Council. With
    all the parties’ consent, the Court granted leave to amend the application for
    review to include in the current proceedings the determinations at all three
    levels of the disciplinary process, namely the Secretary’s decision, Tribunal’s
    decision and the Council’s confirmation.

    42. The State argued that the pleadings are not sufficiently detailed. In Paul
    Asakusa v Andrew Kumbakor (2008) N3303 [Injia DCJ] made clear that:

    The grounds must contain reference to some established grounds
    recognized by law as proper grounds upon which judicial review
    relief is available and the statutory provision or common law
    duty alleged to have been breached.

    43. Not stating the grounds has to be distinguished from a situation where the
    contentious pleadings are merely ill-expressed. The Plaintiff is an example of
    the need to obtain legal advice from the outset of a matter.
    44. His reply to the charge is clumsy. The Originating Summons was filed by
    him but apparently with help from a “ghost writer” and later he obtained legal
    aid (Appearance, document 11, filed 16 May 2016). But he does state grounds
    with reference to sections of the Act and Admin Order time frames, albeit as
    noted in A and D some of the grounds are misconceived.

    45. He says that he did not have a fair hearing before the Tribunal as he did
    not have the opportunity to cross-examine the former security nor, most
    importantly, Allan Tukar. In this situation the Court should not shut out a person
    for “ill-expressed” pleadings.

    Charge

    46. In addition to the ground in the notice of appeal summarised in C above,

  • Page 13 of 16

  • another but undated response by the Plaintiff is an annexure to his affidavit filed
    17 May 2016 (document 13), where he states: “I was not given a chance of
    viewing the evidence of the charge…”

    47. The Plaintiff was not given the opportunity to test by cross-examining the
    former security officers on their statements dated August 2014, or the
    opportunity to cross-examine Allan Tukar. There is no statement from Allan
    Tukar in evidence but the Tribunal notes his bare denial (para14).

    48. Anyone can make a false accusation which may seem credible. But unless
    the person accused has the opportunity to confront his accuser and test the
    accusation by cross-examination, justice is not done. The process of the
    Secretary’s dismissal and the Tribunal’s appeal decision and the Council’s
    confirmation are respectively based on this denial of justice.

    49. In Kevi v The Teaching Service Commission (1997) N1555 the Court
    looked at this issue. There the matter of breach of natural justice was raised
    because the plaintiff was not provided with “an opportunity to cross-examine
    any witness who provided evidence in support of the charge”. In regard to that
    ground, the Court held that “one of the rules of natural justice is that a person
    has a right to be heard before a decision adversely affecting him is taken.” The
    Court referred to Section 59 of the Constitution and Ridge v Baldwin [1963] 2
    All ER 66 and quashed the decision of the Commission.

    Punishment

    50. With sentencing, there is a need to recognise some degree of parity with
    the punishment handed down to accomplices unless the other sentences are
    plainly beyond the sentencing range. Courts try to avoid unjustifiable disparity
    when passing sentence on co-accused while taking into account the differing
    circumstances of each accused to achieve justice.

    51. There is no evidence of what punishment the “former security officers”
    received. After all, it was they who were claiming their entitlements and
    benefited from the assistance of the Plaintiff to “fast track” the payments.
    The process of comparing punishment of offenders in the same enterprise was
    not done or at least there is no evidence before the Tribunal that the process was
    carried out. The disparity of their treatment compared with the Plaintiff’s
    dismissal shows that his dismissal was excessively severe.

    52. It is in regard to the treatment of Allan Tukar compared with the
    Plaintiff’s dismissal that excessive severity is most obvious. On the evidence,
    for example of Jasis, Allan Tukar did not do his job in processing Jasis’
    entitlements and then took a bribe to do his job. It was Allan Tukar who brought
    about the situation, which Jasis noted in his statement, to get his money he had
    to pay a bribe to Allan Tukar. However Allan Tukar is still employed as payroll

  • Page 14 of 16

  • officer.

    53. In contrast to his situation the Plaintiff did not get any cash benefit but
    only facilitated “his men” i.e. those under his command, accessing the payroll
    officer. A bribe to an officer is an offence under the Act and sadly the Plaintiff
    and former officers did not contact the Secretary directly at the outset instead of
    thinking the matter could be resolved by bribes.

    Findings

    54. There is no copy of the details of the Council’s decision only the short
    statement in the Secretary’s letter to the Plaintiff dated 24 June 2016.The
    Council had to consider the material given to the Tribunal and the Tribunal’s
    written decision. The appeal process being built upon this necessarily means
    that if the Tribunal’s decision is flawed then the Council’s decision is similarly
    flawed.

    Breach of procedure

    55. There is no evidence of referral by a Manager to the Secretary (Admin
    Orders 10.33). And, the matter was tainted when it came to the Secretary as the
    Plaintiff was not informed of his right, as guaranteed by Section 37 of the
    Constitution to remain silent (no self-incrimination) or that he could be referred
    under Admin Orders 10.35 to Police and charged (say Section 97B Criminal
    Code Act) or charged under the Admin Orders Part IV for an offence regarding
    bribes to Allan Tukar. This procedure to warn a person is fundamental in our
    system of justice and does not need to be restated in the Act. This breach of
    procedure flaws the entire process in this case.

    Taking into account irrelevant considerations
    Failing to take into account relevant considerations

    56. The Secretary and the Tribunal noted the statements of the five former
    security officers and the Plaintiff made on 21 and 22 August 2014 but in
    considering the charge then ignored the fact that the person who took the bribes
    was Allan Tukar. The only statement from Allan Tukar is paraphrased in the
    Tribunal’s decision (paragraph 14) as a bare denial.

    Error of law on the face of the record

    57. The Tribunal erred in law in finding (its decision paragraph 20 decision)
    that it was not “appropriate for this Tribunal to annul or vary the decision of
    Secretary” when the Act, Section 19(2), gives the Tribunal that power.

    Breach of natural justice

  • Page 15 of 16

  • 58. The Plaintiff was not given an opportunity to see the evidence provided in
    support of the charge until after he had made his reply to the charge. He says
    that he did not have a fair hearing before the Tribunal as he was not given the
    opportunity to cross-examine Allan Tukar nor the former security. As a result he
    was denied natural justice.

    59. The process is flawed as the Plaintiff was not given the opportunity to
    confront the persons who made statements to the Secretary and test their
    accusations. He was denied natural justice in that regard and the decision to
    dismiss him from his employment was based on untested allegations as the
    Plaintiff could not cross-examine the person who was the root cause of the
    matter, namely the payroll officer, Allan Tukar.

    Reasonableness

    60. In looking only at the situation of the Plaintiff the Tribunal ignored the
    situation with Allan Tukar and that was unreasonable within the Wednesbury
    meaning.

    Damages

    61. The Plaintiff pleads distress arising from the charge and dismissal. That
    claim is not particularised and is not considered further.

    62. If the Plaintiff be reinstated to his position at the time of the charge then
    he gets all the emoluments of his position and he sustains no loss.

    63. The Court is concerned with the decision making process. It would be
    inappropriate to suggest what might be a penalty to impose on the Plaintiff
    pursuant to Section 16 of the Act.

    Costs

    64. The Plaintiff has been represented by legal aid and it seems has received
    legal assistance from unidentified persons. Costs have been incurred by the
    Defendants and some of the grounds of the appeal to the Tribunal have no merit.
    In the circumstances each party shall pay their own costs.

    The Court orders:

    1. The recommendation, made 4 March 2015 by the Secretary National
    Judicial Staff Services to the Judicial Council, to dismiss the Plaintiff
    from his employment by the said Staff Services, is quashed.

  • Page 16 of 16

  • 2. The decision made on 4 March 2015 by the Secretary, National Judicial
    Staff Services as to punishment of the Plaintiff is quashed.

    3. The decision given on 13 November 2015 by the National Judicial Staff
    Services Appeal Tribunal is quashed.

    4. The confirmation of the Secretary’s recommendation for dismissal made
    on 24 June 2016 by the Judicial Council is quashed.

    5. The Plaintiff is forthwith reinstated to his position in the National Judicial
    Staff Services as at 6 January 2015 and at the salary for that position
    together with all entitlements related to the position then and which have
    subsequently accrued with increments.

    6. Each party to pay their own costs.

    7. Time abridged to date of settlement of this order which is forthwith.

    Ordered accordingly

    _____________________________________________________________
    Public Solicitor Goroka office: Lawyer for Plaintiff
    P. Ifina, Principal Legal Officer, NJSS: Lawyer for First to Fourth Defendants
    and the Judicial Council
    Solicitor General Goroka office: Lawyer for the Fifth Defendant