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Alleged Leadership Code Breaches by John William Timakata [1999] VUOM 20; 1999.23 (28 December 1999)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

ALLEGED LEADERSHIP CODE BREACHES
BY
JOHN WILLIAM TIMAKATA
(FORMER PUBLIC PROSECUTOR)

Date: 28th December 1999

8131/9/23

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PUBLIC REPORT
ON
THE ALLEGED BREACHES OF THE LEADERSHIP CODE BY JOHN WILLIAM TIMAKATA (FORMER PUBLIC PROSECUTOR)

SUMMARY

This report is published to show how the former Public Prosecutor, who was given the duty and obligation to uphold the laws and prosecute offenders in Vanuatu, was himself wanted by authorities of another sovereign state to face justice for an offence.

Mr John William Timakata was a student at Waikato University in New Zealand in 1994 when he was charged with injuring with intent of a fellow female student. He failed to appear before the District Court Judge in New Zealand to hear the charges laid against him. A warrant was issued to arrest him but Mr Timakata returned to Vanuatu. The warrant is still pending.

In 1996, Mr Timakata was appointed as the Public Prosecutor. While serving in this position, he traveled to New Zealand under a different name to avoid being arrested by the New Zealand authorities.

The Ombudsman found that Mr Timakata might have breached the Leadership Code under the Constitution. His conduct endangered and reduced respect for and the integrity of the Public Prosecutor’s Office and the Government of the Republic of Vanuatu.

The Ombudsman recommended that Mr Timakata should not be appointed again to hold any responsible position in the public sector until he is cleared of the alleged charge laid against him by the New Zealand authorities.

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TABLE OF CONTENTS

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1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government-related bodies, and leaders. This includes the conduct of the former Public Prosecutor, John William Timakata. Mr Timakata’s alleged actions in obtaining a new Vanuatu Passport under a different name in order to enter New Zealand, apparently to avoid being arrested for a criminal charge he was alleged to have committed in New Zealand, are within the Ombudsman’s jurisdiction.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The scope of this investigation is to establish the facts about allegations that Mr Timakata obtained a new passport under a different name to travel to New Zealand, apparently to avoid being arrested for a criminal charge pending against him there.

2.2 This Office collected information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

3.1 CONSTITUTION OF THE REPUBLIC OF VANUATU

CONDUCT OF LEADERS

66. (1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself/herself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by sub-article (1).

DEFINITION OF A LEADER

67. For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.
    

[Emphasis added]

3.2 OMBUDSMAN ACT NO 14 0F 1995

FUNCTIONS OF THE OMBUDSMAN

Section 14 (2): For the purposes of paragraph (d) of subsection (1), in addition to those persons referred to as leaders under Article 67 of the Constitution, leaders shall include:

(d) all Constitutional Office holders;

[Emphasis added]

3.3 PASSPORT ACT

INTERPRETATION

1. In this Act unless the context otherwise requires -
   

'passport' means a passport issued by or on behalf of a Government of the country of which the person to whom it relates is a subject or citizen and which by means of an attached photograph and otherwise identifies that person and which is still in force:

ISSUE OF PASSPORTS

3. (1) A citizen of the Republic of Vanuatu shall be issued with a passport if he makes application either himself or by his parent or lawful guardian to the Principal Passport Officer on a prescribed form
   

POWER OF PRINCIPAL PASSPORT OFFICER TO TAKE POSSESSION OF PASSPORTS IN CERTAIN CIRCUMSTANCES

11. (1) The Principal Passport Officer may take possession of any passport which he reasonably believes is in the wrongful possession of a person or has been issued or renewed by means of any willfully false or misleading statement
    

(2) A person having in his possession or control a passport, to which subsection (1) applies shall on demand deliver it without unreasonable delay to the Principal Passport Officer

OFFENCES

13. A person who wilfully-
    

(b) makes any false statement for the obtaining of a passport, certificate of identity or travel document

(e) in any other manner contravenes the provisions of this Act;...

(f) '.........is guilty of an offence ......'

[Emphasis added]

4. OUTLINE OF EVENTS

4.1. In 1994, John William Timakata completed the requirements for a Bachelor of Law Degree at Waikato University in New Zealand.

4.2 The degree was conferred on him in 1995.

4.3 On 20/05/96, His Excellency the President appointed Mr Timakata as the Public Prosecutor. The appointment instrument is annexed A

4.4 On 28/05/96, the Judicial Services Commission confirmed the approval of Mr Timakata's appointment. The letter is annexed B.

4.5 On 12/06/96, the Public Service Department informed the Finance Department about Mr Timakata's appointment as Public Prosecutor.

4.6 On 25/09/97. Mr Timakata made a statement to the Police claiming to have lost a passport. He also made an application for a new Vanuatu passport in the name of Matariki Tion (John) William. The statement and application form are annexed C & D respectively.

4.7 On 02/10/97, Mr Timakata was issued with a new passport number with the name Matariki Tion (John) William. The passport number is A005723

4.8 On 21/11/97, the following information was received from Interpol in New Zealand:

* The summary of facts by the New Zealand Police about an assault that Mr Timakata was alleged to have committed whilst in New Zealand (Annex F). In late 1994, Mr Timakata was charged with injuring a woman with intent, an offence subject to a penalty of imprisonment, in New Zealand. The evidence further indicates that Mr Timakata did not attend for his criminal hearing, and a warrant of arrest was issued on 10 March 1995. As at 18/11/97, Mr Timakata had apparently not surrendered himself to the authorities in New Zealand.

* The victim impact statement (Annex E)

* The copy of the warrant dated 10/03/95 to arrest Mr Timakata in New Zealand (Annex G)

4.9 On 21/11/97, Interpol in Wellington sent documents detailing the list of passengers that arrived in New Zealand on Air Vanuatu Flight NF 51 from Vanuatu on 18 October 1997. The name Matariki Tion was listed with Passport number A005723. The list is annexed H.

4.10 On 06/12/97, the Vanuatu Weekly in the issue No 675 published a statement by the then Minister of Justice in which the Minister confirmed his receipt of reports about the proceedings in New Zealand. In his statement the former Minister Fr Walter Lini asked Mr Timakata to resign as Public Prosecutor. The copy of this statement is annexed I.

4.11 On 12/12/97, the Judicial Service Commission met and unanimously accepted Mr Timakata's resignation. The letter is annexed J.

4.12 On 02/09/98, the Judicial Service Commission confirmed that Mr Timakata had not yet been registered with the Law Council to practice as a legal practitioner in Vanuatu

5. RESPONSES TO THE PRELIMINARY REPORT (Working Paper)

5.1 A preliminary report in this matter was issued on 13 August 1999 to give persons or bodies who might be adversely affected an opportunity to reply.

5.2 The preliminary report was sent to Mr Timakata. However, no response was received from him.

6. FINDINGS

Finding 1: MR TIMAKATA BREACHED THE LEADERSHIP CODE OF THE CONSTITUTION

6.1 Mr Timakata, while being Public Prosecutor in Vanuatu, breached the Leadership Code in the Constitution by continuing to evade prosecution in New Zealand.

Finding 2: MR TIMAKATA'S CONDUCT DEMEANED THE POSITION OF THE PUBLIC PROSECUTOR

6.2 Mr Timakata's conduct demeaned the position of the Public Prosecutor. As the Constitutional Office-holder responsible for all criminal prosecutions in Vanuatu, he himself had an outstanding criminal charge and Warrant for his arrest. This is a breach of Article 66 (1)(b) of the Constitution.

Finding 3: MR TIMAKATA'S CONDUCT CALLED HIS OWN INTEGRITY INTO QUESTION AND DIMINISHED RESPECT FOR AND CONFIDENCE IN THE INTEGRITY THE GOVERNMENT OF THE REPUBLIC OF VANUATU

6.3 The position of Public Prosecutor is a constitutional office. While functioning as Public Prosecutor, Mr Timakata obtained a passport under a different name and used the passport to enter another sovereign nation, presumably to avoid arrest for a criminal charge. Both appear to have been illegal actions. Mr Timakata's conduct brought his own integrity into question, and also endangered and reduced the respect and confidence in the integrity of the Government of Vanuatu. This is a breach of Article 66 (1)(c) & (d) of the Constitution.

7. RECOMMENDATIONS

Recommendation 1: The Judicial Service Commission should ask Mr Timakata to submit himself to justice in New Zealand, in order to resolve the criminal case against him.

7.1 The Judicial Services Commission should ask Mr Timakata to go to New Zealand to face the charges against him before he is allowed to practise law in Vanuatu.

Recommendation 2: Mr Timakata should not hold any post in the public sector until the alleged charge against him is cleared in the court of law.

7.2 By his past actions while he held a constitutional position, Mr Timakata has demeaned the position and diminished confidence in the integrity of the Government. He should not be appointed to any position in the public sector, at least until his case in New Zealand has been settled.

Recommendation 3: The Law Council should suspend admission of Mr. Timakata to the practice of law in Vanuatu until the criminal case against him has been resolved in the court of law.

7.3 By his past actions, Mr Timakata has brought his own name into disrepute and cast a stain on his own character. His conduct was unethical and was sufficiently serious in disqualifying him the right to practice law, a profession which entails the public trust, and a faith in the moral character of its practitioners. Therefore, the Law Council should reconsider admitting Mr Timakata to the practice of law in Vanuatu.

Dated the 28th day of December 1999

Hannington G. ALATOA

OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. APPENDICES
   

1. Mr Timakata's appointment instrument instrument by His Excellency the President'
   
2. The letter of confirmation of Mr Timakata's appointment by the Judicial Services Commission
   

100. Mr Timakata's statement to the Police about his missing passport
     

4. Mr Timakata's application for a new passport
   
5. The Victim Impact Statement from New Zealand Police
   
6. The summary of facts about the charges laid against Mr Timakata by the New Zealand Police
   
7. The copy of the Warrant of Arrest (which is still pending)
   
8. The passenger list on Air Vanuatu flight NF 51 on 21/11/97
   
9. The copy of the Ministry of Justice's statement in the Vanuatu Weekly
   
10. The letter from the Judicial Services Commission to Mr Timakata accepting his resignation
    

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