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Schram - monstrous abuse of process & reversed onus of proof


ADELAIDE - I think the article, 'Dr Schram is a great man but he should respect our courts',  reflects pretty accurately the delusional state of those administering much of Papua New Guinea's judicial system.

The author mistakes the abuse of the judicial process for the proper administration of justice.

Dr Schram has been subjected to a perverted process whereby the onus of proof has effectively been reversed, leaving him forced to prove his innocence.

It is always open to a judge to dismiss an action because he or she forms the view that the claims made have no merit or are merely vexatious.

Given reports of the judge's scathing comments about the plaintiff's inability to offer any evidence to support their claims this option was certainly available, yet it has not been pursued.

References to getting Interpol to drag Dr Schram back to PNG to face its version of justice border on the bizarre.

Just what does the author think Interpol exists to do? Further the ambitions of cynical, process abusing shysters such as those pursuing Dr Schram?

The ugly truth is that this entire fiasco has been a monstrous abuse of process that has, in practice, denied Dr Schram both due process and natural justice.

As has repeatedly been pointed out, it would have been very, very easy for any competent authority to confirm the validity or otherwise of Dr Schram's qualifications, yet this was never done.

The take home message from this case is that PNG's judicial system can be easily abused by those determined to do so.

It is another example of the maladministration, incompetence and corruption that is a rampaging cancer within virtually all PNG's important institutions.

No academic administrator ought to now be in any doubt that any attempt to impose necessary reforms upon the management and direction of PNG's institutions of higher learning will be resisted by those who feel it is against their interests, including by using spurious charges to harass and intimidate.

This case will do enormous damage to PNG's interests in both the short and long term.

Quite how it can hope to attract the services of top class academics in the future is beyond my comprehension.


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Hugh Tavonavona

That is exactly why our main universities in Lae and Port Moresby are performing badly. There is corruption and petty politics in every nook of these institutions and it feeds into most national academics. I think the composition of the University Councils contribute partly to this chaos.

Philip Fitzpatrick

What the Criminal Code appears to do is link 'false pretence' to a wide variety of situations.

I can't find anywhere in the Code that links 'false pretence' with providing a false certificate related to employment.

Maybe I'm missing something or maybe the cops can't read the Act.

Philip Fitzpatrick

The cops must have charged Dr Schram with something to arrest him.

I've flicked through the Criminal Code Act and can't find anything that's applicable. Can someone enlighten us?

They obviously don't think its just an administrative matter.

As mentioned in a number of stories we've published, the charge is ‘false pretence’ - KJ

Chris Overland

I thank A G Sitori for his (I'm assuming male gender and apologise if this is not the case) fulsome explanation of the PNG legal system.

I have no reason whatsoever to doubt the veracity of what he says about that system. I entirely concur with his views about the differences between how the Common Law Works as opposed to the European system of judicial investigation and review.

However, I fear that his earnest explanation of events rather underlines my central point, which is that this fiasco is a clear abuse of process.

I base this assertion, partly at least, upon my own not inconsiderable experience with confirming the bona fides of qualifications by applicants for employment, especially in the health care field.

For example, there are very well established protocols in the Australian hospital system to confirm the veracity of claims to possess various medical and related qualifications.

People seeking employment as doctors or nurses or allied health professionals are required to produce verifiable evidence that they possess the qualifications required to do so.

It is not rocket science to check up on whether people possess such qualifications. Applicants must offer various proofs such as original certificates, professional registration details or certified copies of documents. These can be followed up with the originating authority, be it here or overseas, as required.

Even in such a tightly regulated system there are, of course, some famous cases of people offering forged or otherwise bogus material as proofs for professional qualifications which they do not possess. Invariably, these cases arise where the relevant employer has failed to do his or her homework.

The point is, doing these checks is an administrative process, not a legal one.

If a person's qualifications to perform a particular role are challenged, then there are clear administrative means of ascertaining the veracity or otherwise of such claims.

There is absolutely no requirement to go to the courts about this. Falsely claiming to possess a particular qualification may be deceptive, dishonest and unethical but, in my experience at least, it very rarely involves committing a crime.

In this case, even if Dr Schram has lied about his doctorate (which I don't believe for one minute) the actions that have occurred look and feel like vindictive and malicious conduct by plaintiffs utilising the legal process to harass and intimidate Dr Schram.

The presumed objective, now achieved, was to drive him out of his job without ever having to actually prove the veracity of the claims made.

The courts have, in a sense, been made to play out a role that should never, ever have been thrust upon them: trying to mediate in an entirely administrative matter involving obviously vexatious litigants without, as the national court judge correctly observed, a shred of evidence to back their assertions.

As for the Police, they should have run screaming from this case at high speed. It is a civil matter, not a criminal matter, as Mr Sitori himself acknowledges.

It beggars belief that Dr Schram's passport was confiscated. What in the hell has this case got to do with the immigration authorities? Nothing!

Mr Sitori is trying to put the best possible spin on this matter and, in a sense, I don't blame him.

To do otherwise is to admit that PNG's Police, Courts and Immigration Department have allowed themselves to become enmeshed in a fairly straight forward administrative matter and, in doing so, elevate it into an international cause celebre.

That is some sort of achievement in itself but definitely one that is not to anyone's credit.

Philip Fitzpatrick

That's how I understood the latest developments - the national court simply varied the bail conditions while the district court has yet to determine the substantive issue of the authenticity of his qualifications.

Does one actually require a PhD to be a vice-chancellor by the way?

AG Sitori obviously has insider information. That it was Dr Schram's suggestion that he go to Italy to obtain a certified copy of his certificate is interesting. I'm not sure why that is necessary given that he says he has already supplied copies and other supporting documentation on numerous occasions. That the national court accepted this and varied his bail conditions is truly curious.

I would also be very curious to hear what sort of case the police present in the district court. Everyone seems to think there is no case to answer but is this really true?

I can appreciate that Chris is appalled at this sorry saga and has conflated it with the general running of the judicial system but given all the bad news that keeps coming out of PNG I guess this is an easy thing to do. Most people new expect that any news out of PNG will be bad and perhaps we colour our viewpoint with this proclivity, which is a shame.

I think the Schram affair still has a way to run and I don't think his failure to return as promised, if in fact he doesn't, will be the end of the matter.

Lindsay F Bond

Followers of PNG Attitude would most likely thank A G Sitori for this contribution.

Of courts and jurisdictions, for folk not knowing but now the better appraised, a degree of logic does pertain to this unusual proceedings, where a sense of ridicule wafts across a tolerance of other place.

A G Sitori

A foreign judicial system was imposed on PNG, which previously had its own primitive moot ones which would not work in a modern society.

Mr Overland alludes that the author mistakes the abuse of the judicial process for the proper administration of justice. The judicial process was not being abused in this matter.

Dr Schram refuses to recognise that the country operates on a common law system and not the civil law system that his country of origin operates on. In the common law jurisdiction, a party has to go looking for justice. Go to any courts in any commonwealth country where adversarial processes happens and people doggedly have to assist the courts by turning up and presenting documents, statements etc that support their side of the story.

PNG may have put a tinge to this system of law when it was adopted with glee on independence. It was the only system that we had, even though there were Germans with civil law processes in New Guinea for a short while.

This imported judicial system is the adversarial type where parties decide the course of the legal journey. The parties decide the arguments and what evidence they produce to back their arguments. The magistrate or the judge in court is merely a referee and tries to observes proper protocols are followed to sustain or disprove their arguments and reasoning. This is the system that is common in all common law countries more so amongst the commonwealth countries.

The other form is the civil system that is in practice in Europe and America where the judicial officer, i.e., the judge or the magistrate, is the chief enquirer. There is no need to go on a discourse there as the author has no understanding nor an appreciation and experience in this form of jurisprudence other than the small distinction mentioned here.

Also embedded in all of these is the police independence to decide matters brought before them which they elect to deal with in a set manner. The police and individual officers who are investigative officers act independently on complaints that are lodged with each investigative and charging officer.

There have been incidents where commissioned officers who tried to interfere with charging duties of junior officers have got into trouble for pulling ranks. Again there are plenty of shades of grey in how police carry out their duties.

Police independent work is a democratic tenet that may not be working well but it is something that is embedded in policing authority and it is crucial in policing work.

There are some assumptions drawn from Mr Overland’s comments here that the courts were involved from the start. The courts do not become involved on its own volition and in the criminal court, the district court acts on information on a complaint brought to it by the police.

For a start, there are two courts: the district courts with two divisions – a grade 4 court that deal with simple complaints (offences) and schedule 2 matters and the district court grade 5 courts that deal with committal matters.

The second and bigger courts are the national courts and they deal with indictable offences that are listed in the criminal code.

There is an assumption that the courts mean all these courts. This is creating a lot of misunderstanding. The district courts and the national courts are two distinctly different arenas and they do things differently.

The courts in PNG and Australia have lower courts where matters on complaints are brought. The district court acts on complaints and on the severity of the charges are either tried summarily or on committal by a grade 5 magistrate. When the committal court finds that there is a prima facie case, the matters proceed from the committal court to the national court on indictment.

When the indictments are presented only then does the national court become involved. For a matter to appear in the committal court, the charge will have to be a felony listed under the criminal code. The courts in the criminal process only becomes involved when a complaint is lodged for the magistracy and for the national court judge to preside on a matter, an indictment has to be lodged.

Dr Schram is appearing in two courts at this stage. In the first court -district court committals - a complaint had been lodged over documents he advanced to the University Council.

Information was laid and on that basis police charges were drawn up and are before the committal court. He was granted bail on condition that he post bail of K2,000.

In the second court, the national court, Dr Schram has made an application to vary this earlier bail condition. The national court judge sat as a bail court and dealt with the bail variation application.

The judge did not deal with the substantive complaint which is a matter for district court in its committal jurisdiction.

One of the conditions Dr Schram has advanced is to go to Italy to get a certified original copy of his PhD certificate. The national court agreed to it and has varied the bail condition which included returning his passport and increasing his bail money. Two guarantors have pledged sureties also.

Bail applications always have guarantors who either pledge money or commit money as surety if the bailee does not answer bail. Dr Schram says he has involved Stan Joyce so it is assumed Mr Joyce is a guarantor. If Dr Schram does not turn up in court, the issue of surety takes front and centre.

What Mr Overland has alluded to are the observations by the judge in the national court which is correct but the national court has jurisdiction to deal only with the bail variation in this instance and not the substantive matter.

The national court agreed to the arguments presented to it only for the bail variation and granted the application.

For the substantive matter in the district court, it is for the presiding magistrate to listen to both sides – the police and Dr Schram - and make a decision based on that.

The judge in the national court is making a decision only on the bail variation and has allowed Dr Schram to travel.

The substantive committal court process will still be in progress on 12 June and my earlier commentary was that Dr Schram should turn up in court to show good faith to the judge and national court that believed him in the bail variation application.

Mr Overland’s observation about the reversal of the onus of proof is right: “Dr Schram has been subjected to a perverted process whereby the onus of proof has effectively been reversed, leaving him forced to prove his innocence.”

However given the number of fake qualifications and certificates floating around the world, one needs to take this with a pinch of salt. Australia has had its share of fake doctors. There is that recent story in America of certain individuals doctoring their certificates to buy guns that are used in mass killings. There are a lot of photocopied and fake certificates being branded around in this country.

Enga Teachers College just had the fiasco of fake receipts which resulted in a lot of students being expelled. Some primary school teachers have been teaching with fake teaching certificates. A lot of secondary institutions in this country are realising faked and forged documents.

Given these scenarios, while it is in the face of the rule of law, Dr Schram can bring a copy easily to court. He could have done it before and it begets the question of why wasn’t he believed in the first instance. Academic work for masters degrees and doctorates are not done in isolation, there are panels of eminent people who supervise and certify thesis work and any several of them could have confirmed they supervised and certified the thesis along with the university.

The earlier piece was that this second court – the national court - has granted him variation to his bail condition to travel. He owes it to his lawyers and guarantors to return to the committal court on the 12th. He could produce the original authenticated certificate and file a no case submission.

On the matter of Dr Schram in Lae, there were some matters between two opposing university council groups. Decision making processes within the university administration are not a court and it is moot to be discussing these. The proper place to review a decision of an administrative body was with the judicial review court and it is not clear if Dr Schram elected to have the judicial court review the decision of the University Council.

It was amiss for me to mention Interpol but the messaging was that there are alternate ways to get a true copy. It was for the parties to bring to the attention of the court that these avenues had been explored. They did not. Instead Dr Schram advanced the idea to go get the vetted document.

The national court granted the variation and it made observations.
The parties can ask the committal court on 12 June to take cognisance of the observation of the judge in the national court bail variation.

The national court agreed to the variation; it now looks like wool was pulled over its already blind eye.

Dr Schram has made a huge impact on the country via Unitech and it would be a shame that he gets a warrant outstanding against him for absconding bail.

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