ROYAL COMMISSION OF INQUIRY INTO PROCESSES AND PROCEDURES FOLLOWED BY THE GOVERNMENT OF PAPUA NEW GUINEA INTO OBTAINING THE OFF-SHORE LOAN FROM THE UNION BANK OF SWITZERLAND AND RELATED TRANSACTIONS
PRACTICE NOTE No. 4 of 2021
Introduction
1. This Practice Note No. 4 details the procedure for a witness by counsel or personally (“the cross-examiner”) to seek leave to examine another witness (“the cross-examinee”), as referred to in paragraphs 19 and 20 of Practice Note No. 3.
2. This Practice Note No. 4 is supplementary to Practice Note No. 3. To the extent of any inconsistency, this Practice Note No. 4 supersedes Practice Note No. 3.
Notice seeking leave to cross-examine
3.Notice seeking leave to examine a cross-examinee shall be given in writing using the form at Schedule A to this Practice Direction (“the Notice”), to the Technical Assistants and International Solicitors Assisting the Commission of Inquiry by email to coisolicitorsassisting@minterellison.com, attention Ms Kathryn Finlayson (“the Solicitors Assisting
4. The Notice shall state:
(a) the name of the cross-examiner and, if applicable, the name and firm of the legal representative of the cross-examiner;
(b) the name of the cross-examinee/s;
(c) the topics and cross-examination questions the cross-examiner intends to put to the cross-examinee/s (“the cross-examination subjects”);
(d) references to the cross-examinee’s statement, affidavit, statutory declaration or the like, including references to the date of the document, exhibit number, page and/or paragraph number (as applicable), annexure or exhibit number (as applicable), or transcript references to any oral evidence, that are relevant to the cross-examination subjects; and
(e) the grounds on which it is submitted that the cross-examiner has a relevant interest in the cross-examination subjects, including references to the cross-examiner’s own evidence.
5. Subject to any further leave or extension of time granted by the Commission, the deadline for giving the Notice is Tuesday, 20 July 2021 at 4pm.
Review by Counsel Assisting
6. Counsel Assisting shall review the Notice and decide (“Counsel Assisting’s decision”):
(a) whether, in the decision of Counsel Assisting, the cross-examiner has a relevant interest in the cross-examination subjects, or not; and
(b) if so, whether Counsel Assisting are able to put the cross-examination subjects to the cross-examinee in place of the cross-examiner.
7.Counsel Assisting’s decision shall be provided to the cross-examiner by Wednesday, 21 July 2021 at 4pm.
Grant of leave to cross-examine
8. To the extent that the cross-examiner disagrees with Counsel Assisting’s decision (paragraph 7) and wishes to press the matters referred to in the Notice, the cross-examiner shall provide to the Solicitors Assisting brief written submissions addressed to the Commission by Tuesday, 23 July 2021 at 4pm.
9. The Commission may grant leave to a cross-examiner to examine a cross-examinee.
10. Such leave may be granted on terms, including (without limitation) the following:
(a) limitation of the cross-examination subjects;
(b) the imposition of time or other limitations upon the examination; and
(c) the requirement for Counsel Assisting to put the cross-examination subjects to the cross-examinee in place of the cross-examiner.
11. If leave is not granted by the Commission pursuant to paragraphs 8-10 above, the Commission may grant leave to be further heard in oral hearing as to the matters referred to in Notice.
12. Nothing in this Practice Note No. 4 prevents a person from seeking, or further seeking, leave to examine a witness at any time, whether in writing or orally, on notice or on an urgent basis, if something that has occurred during a hearing or in documents leads the person to believe their interest may be affected. Whether or not the person has complied with the foregoing paragraphs of this Practice Note No. 4 will be a factor taken into account by the Commission in the grant of any such leave.
Chief Sir Salamo Injia Kt GCL
Chairman and Chief Commissioner
Dated: 15 July 2021
The Honourable Margaret White AO
Commissioner
Dated: 15 July 2021
PRACTICE NOTE No. 3 of 2021
Introduction
1. In this practice note:
“Commission” is a reference to the Commission of Inquiry described in the heading as established on 19 August 2019.
“Inquiry” is a reference to the subject matter of the Commission.
“Counsel” means a person admitted to practice in Papua New Guinea or, if the witness is outside Papua New Guinea, a person entitled to practice as a lawyer in that jurisdiction.
“Counsel Assisting” means the Counsel Assisting the Commission as appointed.
2. This practice note repeals and replaces Practice Notes 1 and 2.
3. Section 5 of the Commissions of Inquiry Act 1951 (the “Act”) provides that the Commission may make such rules, not inconsistent with the terms of the instrument of its appointment, for the conduct of proceedings before it, for the times and places of its meetings and for adjournment, as it thinks proper.
4. These rules of procedure are made by the Commission to apply to the Commission of Inquiry established by the Prime Minister on 30 August 2019 and directed to inquire into, make findings and report on the processes and procedures followed by the Government of Papua New Guinea in obtaining the off-shore loan from the Union Bank of Switzerland in 2014 and related transactions.
Public hearings
5. Public hearings are held at APEC House, Paga Ring Road, Port Moresby. Unless directed otherwise by the Commission, witnesses and legal representatives present in Port Moresby are expected to attend in person; all others may attend and give evidence by remote video.
6. Dates for public hearings will be communicated on the Commission website. The substantive hearings of evidence for the remaining phases of the Commission are 7-18 June (Port Moresby/Brisbane) and 12-31 July 2021 (Port Moresby) and all witnesses and persons granted leave to appear should prepare accordingly.
7. Any person can attend a public hearing subject to paragraph 54 hereof, unless directed otherwise by the Commission.
8. Unless directed otherwise, public hearings of the Commission will be live streamed via the Commission Facebook page.
9. Unless directed otherwise, transcripts of public hearings will be made available on the Commission website as soon as practicable following the relevant hearing.
10. In view of the COVID pandemic, hearings may be conducted by video link (using Zoom) and/or telephone and will be video recorded with a transcript taken. The Commission may sit at other locations and use video-conference and telephone facilities, as it sees fit.
11. Parties granted leave to appear will be provided with details to access the Commission’s video-conference platform, to participate in public hearings in real time.
Leave to appear
12. Any person who has a bona fide interest in the subject matter of the Inquiry may make an application to the Commission for leave to appear, either in person or by counsel.
13. Any person who has been granted leave to appear need not re-apply for leave. This includes any person who has appeared before the Commission in answer to a summons and been given leave.
14. Any application for leave under paragraph 12 above, should be lodged in writing as soon as practicable and no later than 30 May 2021, with the Secretary of the Commission. A written application seeking leave to appear should either be emailed to the Secretary to the Commission, Mr Mathew Yuangu, at secretary@coiubsl.com or filed in hard copy at the Office of the Commission at APEC House, Paga Ring Road, Port Moresby.
15. A written application seeking leave to appear shall include:
a) an outline of no more than three pages identifying the term or terms of reference (Terms of Reference | Coiubsl) in which the person or entity claims an interest, explaining the nature of that interest and giving reasons why they should be given leave to appear;
b). provide contact details; and
c). be accompanied by a signed affidavit by the person claiming a bona fide interest in the subject matter of the Inquiry.
16. The Commission may deal with any application seeking leave to appear under paragraph 12 above without oral hearing, in which case there will be written or email communication to the person or their counsel representing about the application.
17. An application seeking leave to appear under paragraph 12 may be listed for oral hearing at such time as determined and communicated by the Commission at APEC Haus, Paga Ring Road, Port Moresby or at such other location as the Commission directs. The Commission may invite an applicant to make oral submissions in support of their application for leave to appear.
18. Subject to any direction to the contrary, a person or party who has satisfied the Commission that they have a bona fide interest in the matter and has been granted leave to appear having regard to section 8 of the Act may appear at public hearings of the Commission at which evidence will be taken or submissions received relating to issues in which the party has been granted leave.
19. Participation in public hearings, further to the granting of leave to appear, including the examination of witnesses or the presentation of oral submissions, requires the grant of further leave by the Commission, which leave may be granted on terms including (without limitation) the following:
a) limitation of the particular topics or issues upon which the party may examine or present submissions;
b). the imposition of time or other limitations upon examination or presentation of submissions;
c). the provision of prior notice to the Commission of documents or other evidence relevant to the terms of reference to be referred to in examination or submissions together with written outline of any proposed submissions; and
d). the requirement that submissions be presented in writing only.
20. Applications for leave under paragraph 19 should be made in writing at least one business day prior to the relevant hearing where possible. The application may be determined by the Commissioners in chambers or at a public hearing. In an urgent or special case, parties granted leave to appear may make an oral application to participate in a public hearing.
21. Nothing in this Practice Note prevents a person from seeking leave to appear at any time if something that has occurred during the hearing leads the person to believe their interest may be affected and which would entitle the person to appear or be represented by counsel.
Conduct of hearings
22. The Commission’s usual public hearing hours will be from 9:30 am to 12:30 pm and from 2:00 pm to 4:30 pm. The Commission may sit different hours. The Commission will endeavour to notify persons given leave to attend or other interested persons of the timing and places of its hearing; but such notice may not always be able to be given on the website.
23. Subject to the control of the Commission, Counsel Assisting the Commission will determine which witnesses are called at a public hearing and when, and what documents are sought to be tendered to the Commission.
24. The Commission may request or direct a person summoned to appear as a witness to provide a synopsis of the evidence they propose to give.
Etiquette for participating in a virtual hearing
25. Etiquette for participating in a virtual hearing is the same as participating in an ‘in person’ hearing. Only one person should speak at a time and each person must take care not to speak over other participants, especially the Commissioners. Only persons seated at the bar table (either in person or electronically) or a witness may speak, by leave only. All other persons in attendance at the hearing must maintain silence at all times.
26. When a person is not speaking, his or her microphone is to be muted to minimise unnecessary background noise.
27. (a) There may be a delay between the individual speaking and the sound being heard by the other participants. Allowances are to be made during the hearing as appropriate to accommodate any delay being experienced to avoid one participant talking over another.
Witnesses who appear by video-conference
28. With the Commission’s leave, a witness may give evidence by telephone if suitable video conference technology is not available. Such circumstances are likely to be exceptional. Any witness summonsed who considers that she or he may not be able to give evidence by video conference must contact the Technical Assistants and International Solicitors Assisting the Commission as soon as possible at coisolicitorsassisting@minterellison.com.
29. Specific arrangements for a witness to give evidence including testing the video-conference connection will be provided ahead of testimony.
30. Each witness appearing by video-conference must:
a) join the video-conferencing platform from a quiet and appropriate location;
b) be alone in the room where they connect to the video-conferencing platform, unless they are accompanied by an information technology officer to assist with the video conference, a representative of the Commission or a support person / legal representative with appropriate leave to appear; and
c) join the video-conferencing platform at least 15 minutes before their scheduled start time to enable final arrangements for their testimony to be confirmed.
31. A Commissioner or Commission Associate will administer the appropriate oath or affirmation to a witness. Any witness appearing virtually and intending to swear an oath should ensure there is a Holy Bible or other holy book available for this purpose.
32. Any witness who wishes to have a support person or legal representative present in the room while they give evidence must seek approval from the Commission at least 24 hours before giving evidence. Any support person or legal representative of a witness must not communicate with a witness while the witness is giving evidence without leave from the Commission.
Applications to call a witness or tender a document
33. Any person who has satisfied the Commission that they have a bona fide interest in the matter and has been granted leave to attend the Commission and who wishes to have the evidence of a witness placed before the Commission should notify the Secretary of the Commission of the name of the witness in writing and provide a signed synopsis of his or her expected evidence. The Commission’s Solicitors or Counsel Assisting the Commission may interview the witness and take a further statement from that person. Counsel Assisting the Commission will then decide whether to call the witness.
34. Any person who has satisfied the Commission that they have a bona fide interest in the matter or has been granted leave to attend the Commission and who wishes to tender a document to the Commission should notify the Secretary of the Commission in writing of the document and should provide a copy of the document if it has not already been produced to the Commission. Counsel Assisting the Commission will decide whether to seek to tender the document.
35. If Counsel Assisting the Commission has declined a person’s request to call a witness or tender a document, the person may write to the Secretary to the Commission setting out the reasons why it is contended that the witness should be called or the document tendered.
36. Should Counsel Assisting the Commission affirm their decision not to place the evidence before the Commission, the person concerned may apply to the Secretary of the Commission for the application for leave to call the witness or tender the document to be determined by the Commission. The Commission may determine that application without oral hearing or in such other way as it directs.
Publication of evidence
37. Where the Commission considers it appropriate, statements and documents tendered in public hearings of the Commission will be made available on the Commission website. It is anticipated that this will be the usual course for statements and documents.
38. Proposed evidence and proposed statements which have not been formally or publicly tendered will be made available, where the Commission considers it appropriate, electronically via a secure website to persons with leave to appear. The documents contained in this link are confidential and should be treated as such and not be shared unless and until publicly tendered in a hearing of the Commission.
39. The Commission reserves the right to restrict access to documents tendered to it, where it deems appropriate.
Searching and obtaining copies of Commission’s official records of proceedings
40. The Commission keeps official records of proceedings in various forms, including audio, video, physical and electronic records. A transcript is kept of audio recordings.
41. Any person with a bona fide interest in the proceedings, including a witness or potential witnesses and their legal representatives may, with the permission of the Commission’s Secretary, search and obtain copies of official records.
42. It is not the case that a witness or potential witness will be expected to seek, search and obtain copies of all or every record. Only those records that are relevant to their evidence or proposed evidence should be sought to be searched and copies obtained.
Persons with relevant information
43. Any person who has any information relevant to any of the Terms of Reference, whether that information relates to a person or to a document or thing, should contact the Secretary to the Commission to discuss.
Examination of witnesses
44. All witnesses will be called by Counsel Assisting the Commission who will generally examine the witness first.
45. Any application for the further examination of the witness’s own legal representative, or by or on behalf of any person considered by the Commission to have sufficient interest in doing so will be determined by the Commission in accordance with paragraph 19 of this Practice Note.
46. Any application under paragraph 19 of this Practice Note will need to identify the topics on which leave is sought to examine. The Commission may impose such conditions or restrictions on that leave as it sees fit in the interests of efficiency and fairness.
47. A copy of any document proposed to be put to a witness in further examination must be provided to Counsel Assisting the Commission as soon as possible after a decision is made to use the document for that purpose and in all cases well prior to being put to the witness.
48. Following any further examination Counsel Assisting the Commission may re-examine the witness.
Procedural Matters
49. If a person who has satisfied the Commission that they have a bona fide interest in the matter or has been granted leave to appear intends to raise a procedural matter, the person should write to the Secretary of the Commission identifying the issue to be raised and setting out a brief outline of the submissions the person proposes to make in relation to the issue.
50. A person who wishes to raise such an issue should give the Secretary to the Commission as much written advance notice as possible.
51. Without limiting its generality, the term “procedural matters” includes objections to or restrictions on the production or use of documents, matters relating to the way in which witnesses are to be examined, applications for corrections to any transcript and administrative arrangements for the conduct of hearings.
Media
52. Media will be allowed access to public hearings. The media must respect the integrity of the proceedings and do nothing to interfere with the conduct of proceedings. Cameras will not be allowed in the hearing room during the conduct of hearings, unless specifically allowed by direction of the Commission. The public hearings will generally be recorded and live-streamed.
Counsel Assisting the Commission
53. A reference in this Practice Note to Counsel Assisting the Commission is to Dr James Renwick CSC SC, Dr Dominic Katter, and, or Mr Levente Jurth; or such other Counsel Assisting as may be appointed.
Presence of Children
54. Due to the nature of various matters being inquired into, unless specifically allowed by direction of the Commission, children shall not be allowed into the hearing room during Commission hearings.
Variation of practice
55. The Commission may vary the practices set out in this practice note.
Effect
56. This Practice Note No. 3 of 2021 is effective from the date of signing.
57. Practice Notes No. 1 of 2019 and No. 2 of 2021 are repealed from the date of signing of this Practice Note.
Chief Sir Salamo Injia Kt. GCL
Chief Commissioner & Chairman of Inquiry
Dated: 11 May 2021
The Honourable Margaret White AO
Commissioner
Dated: 11 May 2021
PRACTICE NOTE - No. 2 of 2021
Commencement of hearings
1. Section 5 of the Commissions of Inquiry Act 1951 (“the Act”) provides that the Commission may make such rules, not inconsistent with the terms of the instrument of its appointment, for the conduct of proceedings before it, for the times and places of its meetings and for adjournment, as it thinks proper.
2. These rules of procedure are made by the Commission to apply to the Commission of Inquiry directed by the Prime Minister on 30 August 2019, to inquire into, make findings and report on the processes and procedures followed by the Government of Papua New Guinea in obtaining the off-shore loan from the Union Bank of Switzerland in 2014 and related transactions.
Public hearings
3. Public hearings are currently intended to be held at Apec House, Waigani, National Capital District, Papua New Guinea. In view of the Covid Pandemic, hearings may be conducted by video link, using Zoom, and will be video recorded with a transcript taken. The Commission may sit at other locations and use video-conference and telephone facilities, as it sees fit.
4. Dates for public hearings will be communicated on the Commission website.
5. Any person can attend a public hearing, unless directed otherwise by the Commission.
Leave to appear
6. Any person who has a bona fide interest in the subject matter of the Inquiry may make an application to the Commission for leave to appear either in person or by counsel.
7. Those who have already appeared before the Commission upon the Commission’s request and with leave of the Commission, need not re-apply for leave. The Commission may review and vary the conditions upon which leave was granted to render consistency with this Practice Note. The Commission may make such use, as it sees fit, of the documents already submitted to the Commission at preliminary hearings of the Commission. Counsel assisting the Commission may also make use, as they see fit, of those documents in the course of preparing the particular witness’ evidence for the public hearings.
8. Any application for leave under paragraph 6 above, should be lodged in writing as soon as practicable with the Secretary of the Commission.
9. A written application seeking leave to appear shall include:
a) an outline of no more than three pages identifying the term or terms of reference (Terms of Reference | Coiubsl) in which the person claims an interest, explaining the nature of that interest and giving reasons why they should be given leave to appear before the Commission in person or be represented by counsel having regard to section 8 of the Act;
b) provide contact details; and
c) be accompanied by a signed affidavit by the person having a bona fide interest in the subject matter.
10. A written application seeking leave to appear should either be emailed to the Secretary to the Commission, Mr Mathew Yuangu, at myuangu64@gmail.com or filed in hard copy at the Office of the Commission at Apec Haus, National Capital District, Papua New Guinea.
11. The Commission may deal with any application seeking leave to appear under paragraph 6 above without oral hearing, in which case there will be written or email communication to the person or their counsel representing as to the application.
12. An application seeking leave to appear under paragraph 6 may be listed for oral hearing at such time as determined and communicated by the Commission at Apec Haus, Waigani or at such other location as the Commission directs. The Commission may invite an applicant to make oral submissions in support of their application for leave to appear.
13. Subject to any direction to the contrary, a person or party who has satisfied the Commission that they have a bona fide interest in the matter and has been granted leave to appear having regard to section 8 of the Act may appear at public hearings of the Commission at which evidence will be taken or submissions received relating to issues in which the party has been granted leave.
14. Participation in public hearings, further to the granting of leave to appear, including the examination of witnesses or the presentation of submissions, requires the grant of further leave by the Commission, which leave may be granted on terms which may include (without limitation) the following:
a) limitation of the particular topics or issues upon which the party may examine or present submissions;
b) the imposition of time or other limitations upon examination or presentation of submissions;
c) the provision of prior notice to the Commission of documents or other evidence relevant to the terms of reference to be referred to in examination or submissions together with written outline of any proposed submissions; and
d) the requirement that submissions be presented in writing only.
15. Nothing in this Practice Note prevents a person from seeking leave to appear at any time if something that has occurred during the hearing leads the person to believe their interest may be affected which would entitle such person to appear or be represented by counsel as provided in section 8 of the Act.
Conduct of hearings
16. The Commission’s usual public hearing hours will be from 9:30 am to 12:30 pm and from 2:00 pm to 4:30 pm. The Commission may sit different hours. The Commission will endeavour to notify parties given leave to attend or other interested parties of the timing and places of its hearing; but such notice may not always be able to be given on the website.
17. Subject to the control of the Commission, Counsel Assisting the Commission will determine which witnesses are called at public hearing and when, and what documents are sought to be tendered to the Commission.
18. The Commission may request or direct the appearance of witnesses to provide a synopsis of the evidence they propose to give.
Applications to call a witness or tender a document
19. Any person who has satisfied the Commission that they have a bona fide interest in the matter and has been granted leave to attend the Commission and who wishes to have the evidence of a witness placed before the Commission should notify the Secretary of the Commission of the name of the witness in writing and provide a signed affidavit of his or her expected evidence. The Commission’s Solicitors or Counsel Assisting the Commission may interview the witness and take a further statement from them. Counsel Assisting the Commission will then decide whether to call the witness at public hearing.
20. Any person who has satisfied the Commission that they have a bona fide interest in the matter or has been granted leave to attend the Commission and who wishes to tender a document to the Commission should notify the Secretary of the Commission in writing of the document, and should provide a copy of the document if it has not already been produced to the Commission. Counsel Assisting the Commission will then decide whether to seek to tender the document.
21. If Counsel Assisting the Commission has declined a person’s request to call a witness or tender a document, the person may write to the Secretary to the Commission setting out the reasons why it is contended that the witness should be called or the document tendered.
22. Should Counsel Assisting the Commission affirm their decision not to place the evidence before the Commission, the person concerned may apply to the Secretary of the Commission for the application for leave to call the witness or tender the document to be determined by the Commission. The Commission may determine that application without oral hearing or in such other way as it directs.
Relevant information
23. Any person who has any information relevant to any of the Terms of Reference whether that information relates to a person or to a document or thing should contact the Secretary to the Commission to discuss.
Examination of witnesses
24. All witnesses will be called by Counsel Assisting the Commission who will generally examine the witness first.
25. Any application then made for the further examination of the witness by their own legal representative, or by or on behalf of any person considered by the Commission to have sufficient interest in doing so will then be determined by the Commission in accordance with paragraph 14 of this Practice Note.
26. Any application under paragraph 14 of this Practice Note will need to identify the topics on which leave is sought to examine and the Commission may impose such conditions or restrictions on that leave as it sees fit in the interests of efficiency and fairness.
27. A copy of any document proposed to be put to a witness in further examination must be provided to Counsel Assisting the Commission as soon as possible after a decision is made to use the document for the purpose and in all cases well prior to being put to the witness.
28. Following any further examination Counsel Assisting the Commission may re-examine the witness.
Procedural Matters.
29. If a person who has satisfied the Commission that they have a bona fide interest in the matter or has been granted leave to appear intends to raise a procedural matter, the person should write to the Secretary of the Commission identifying the issue to be raised and setting out a brief outline of the submissions the person proposes to make in relation to the issue.
30. A party who wishes to raise such an issue should give the Secretary to the Commission as much written advance notice as possible of that intention.
31. Without limiting its generality, the term “procedural matters” includes objections to or restrictions on the production or use of documents, matters relating to the way in which witnesses are to be examined, applications for corrections to any transcript and administrative arrangements for the conduct of hearings.
Media
32. Media will be allowed access to public hearings. The media must respect the integrity of the proceedings and do nothing to interfere with the conduct of proceedings. Cameras will not be allowed in the hearing room during the conduct of hearings, unless specifically allowed by direction of the Commission. The public hearings will generally be recorded.
Counsel Assisting the Commission
33. A reference in this practice note to Counsel Assisting the Commission is to Dr James Renwick CSC SC, Dr Dominic Katter, and, or Mr Levente Jurth; or such other Counsel Assisting as may be appointed.
Presence of Children
34. Due to the nature of various matters being inquired into, unless specifically allowed by direction of the Commission, children shall not be allowed into the hearing room during Commission hearings.
Variation of practice
35. The Commission may vary the practices set out in this practice note.
Effect
36. This Practice Note No. 2 of 2021 is effective from the date of signing.
37. Practice Note No.1 of 2019 is repealed from the date of signing of this Practice Note.
Chief Sir Salamo Injia Kt. GCL
Chief Commissioner & Chairman of Inquiry
Dated: 22 March 2021
The Honourable Margaret White AO
Commissioner
Dated: 22 March 2021