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Kairi v Kerepia and The State [1989] PGLawRp 37; [1988-89] PNGLR 36 (6 February 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 36 - Adrian Kairi v Pious Kerepia and The State 

[1988-89] PNGLR 36

N714

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KAIRI

V

COMMISSIONER OF CORRECTIONAL SERVICES

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Andrew AJ

6 February 1989

STATE SERVICES - Corrective institutions - Correctional officers - Disciplinary offences - Who may hear - Natural justice not breached by officer in charge witnessing offence and hearing charge - Power to suspend for “misconduct of any kind” - Corrective Institutions Regulations (Ch No 63), regs 68, 69, 71(2), 72 - Constitution, s 59(1).

ADMINISTRATIVE LAW - Judicial review of administrative acts - Regulation of corrective institutions - Disciplinary offences by correctional officers - Who may hear - Natural justice - Not breached by officer in charge witnessing offence and hearing charge - Power to suspend for “misconduct of any kind” - Corrective Institutions Regulations (Ch No 63), regs 68, 69, 71(2), 72 - Constitution, s 59(1).

Regulation 68 of the Corrective Institutions Regulations (Ch No 63) provides for the offence of disgraceful or improper conduct by a correctional officer and renders the offender liable to be dealt with under Div 4 of the Regulations.

Regulation 69 provides as follows:

N2>“(1)    Where a correctional officer has reason to believe that an assistant correctional officer under his control has committed a disciplinary offence, he shall cause a charge to be laid against him, and pending the hearing of the charge may cause him:

(a)      to be detained in a detention room or confined to the precincts of the institution; or

(b)      where in the opinion of the officer the circumstances make it necessary — to be placed in the custody of a guard;

N2>(2)      An assistant correctional officer who is detained or confined in custody under Subsection (1) shall as soon as practicable be brought before the Commissioner or a correctional officer authorized by the Commissioner.”

Regulation 71(2) provides that “the correctional officer may suspend an assistant correctional officer for misconduct of any kind”.

Held

N1>(1)      Because the question of authorisation of a correctional officer to hear disciplinary charges under s 69(2) is not an element of the offence, a person who wishes to challenge that authorisation bears the onus of showing that the offence was not so authorised.

N1>(2)      The power of the correctional officer to suspend for “misconduct of any kind” under reg 71(2) includes power to suspend for disgraceful or improper conduct under reg 68.

N1>(3)      Because the Constitution recognises the special nature of disciplined forces, there is no breach of the principles of natural justice enshrined in s 59(1) of the Constitution, where an officer in charge of a corrective institution who witnesses a disciplinary offence proceeds to hear the matter himself, provided there is a fair hearing on the merits and that the officer charged is given a fair opportunity to be heard.

Judicial Review

This was the hearing of an application for review of a decision of the Commissioner of Correctional Services or his delegate to dismiss an assistant correctional officer from employment with the Corrective Institutions Services under the Corrective Institutions Regulations (Ch No 63).

Editor's Note

An appeal to the Supreme Court has been lodged.

Counsel

J Shepherd, for the applicant.

B Gamogab, for the respondent.

6 February 1989

ANDREW AJ: This is an application by way of judicial review for an order in the nature of certiorari to remove into this Court for the purpose of quashing the decision of Pious Kerepia, Commissioner of Correctional Services or his delegate, made on or about 5 June 1987 to dismiss the plaintiff from employment with the Corrective Institutions Service. The applicant also seeks an order that the plaintiff be given 21 days to submit written arguments, sworn evidence or other relevant material to the Commissioner in relation to a redetermination by the Commissioner of a certain disciplinary offence against the plaintiff dated 11 March 1988. Leave to apply for judicial review was previously granted on 15 October 1988.

The plaintiff was an assistant correctional officer (ACO) Grade 1 in the Corrective Institutions Service stationed at Ningerum Corrective Institution in the Western Province. He was charged with a disciplinary offence under Div 7 of the Corrective Institutions Regulations (Ch No 63) as follows:

“That on the 1st day of March 1987 at Ningerum CIS you, being an ACO appointed under the provisions of section 8(1) of the Corrective Institutions Ordinance 1957-1969, were guilty of disgraceful conduct in your official capacity in that you were found sleeping in detainee cell covered with blanket, thereby contravening the provisions of regulation 68(f) of the Corrective Institutions Regulations of 1969.”

The ACO Disciplinary Offence Report dated 1 February 1988 continues as follows:

N2>“5.      Plea: Not Guilty Entered.

N2>6.       Brief Summary of Events Leading to Charge:

That on 1/3/87, member was rostered on weekend duty from 7.45- 5.30 pm on Sunday. He was drinking until day break and unable to carry out his duty and went to sleep in the detainee cell corners with blanket and found by the Provincial Gaol Commander, MR K ENGNUI, at 11.30 am.

N2>7.       Verdict — Guilty.

N2>8.       Penalty Imposed (Quote Regulation):

Suspension Reg 71.

N2>9.       Previous Conviction(s) — Quote Regulation(s); The member has been charged ten (10) disciplinary offences. Separate paper attached.

KENGNUI

Officer Hearing Charge

Date 11.03.87.

Penalty imposed sustained. Member be discharged. Regulation 71(2) CIS Act as amended to date.”

I turn first to legal argument based on the effect of the Corrective Institutions Regulations, regs 68-80 dealing with the discipline of assistant correctional officers. The plaintiff was found guilty of an offence under reg 68(f) of being “guilty of disgraceful or improper conduct in his official capacity or otherwise”. The applicant raises jurisdictional grounds, saying that the officer hearing the charge acted under the wrong regulations and that it is not shown that he was an officer authorised by the Commissioner as required by reg 69 and that accordingly he had no jurisdiction to hear the charges.

Regulation 69 is as follows:

N2>“69.    Charges of Disciplinary Offences

(1)      Where a correctional officer has reason to believe that an assistant correctional officer under his control has committed a disciplinary offence, he shall cause a charge to be laid against him, and pending the hearing of the charge may cause him:

(a)      to be detained in a detention room or confined to the precincts of the institution; or

(b)      where in the opinion of the officer the circumstances make it necessary — to be placed in the custody of a guard;

(2)      An assistant correctional officer who is detained or confined or in custody under Subsection (1) shall as soon as practicable be brought before the Commissioner or a correctional officer authorized by the Commissioner.

(3)      The Commissioner or a correctional officer before whom an assistant correctional officer is brought under Subsection (2) may on the ground of the absence of witnesses or for any other reasonable cause, remand the assistant correctional officer to detention confinement (1) for such period as he, in his discretion, thinks reasonable, not exceeding three clear days at any one time.”

Regulation 70 then sets out the procedure for the hearing of charges. It follows from reg 70(1) that an assistant correctional officer who has been charged comes before the Commissioner or correctional officer who hears and determines the charge and the assistant correctional officer is brought before him under reg 69(2). The applicant submits, as I understand his argument, that it follows that the assistant correctional officer can only be detained and have his charge determined under reg 70 by the Commissioner or the officer authorised by the Commissioner under reg 69(2) and that this delegation to the correctional officer must be statute-based. It is said that there is no evidence of any such authorisation and that Mr Engnui had no jurisdiction to hear the matter. It is not in dispute that Mr Engnui was a Provincial Gaol Commander at this time and the officer in charge of the Ningerum Corrective Institution. It is clear that the question of his authorisation is not a ground of the application and it is not an element of the offence. In these circumstances, the onus is upon the applicant to show that the officer was not so authorised. Mr Dennis Piandi, the Assistant Commissioner for Personnel and Administration at Bomana HQ, agreed that officers in charge of corrective institutions are, in general, authorised to hear disciplinary charges. He agreed that it is true that the Commissioner does not, in each case, authorise an officer who then lays a charge and hears it. The Commissioner may delegate his powers to an officer by s 2 of the Corrective Institutions Act (Ch No 63). By reg 12(c) of the Corrective Institutions Regulations an officer in charge of an institution is responsible for “the proper performance of their duties by correctional officers and assistant correctional officers under his control”. It would be a surprising result if an officer in charge of an institution was not authorised to determine all matters of discipline in relation to assistant correctional officers under his command where he is responsible for their performance and discipline. In my view, the plaintiff has not discharged the onus upon him to show that Mr Engnui was not an authorised officer within the meaning of the regulation. Clearly the delegation to lay charges and detain comes within reg 69.

It was next argued that the officer in charge was in error in proceeding under reg 68 and then proceeding to suspend the applicant, it being said that the offence of disgraceful conduct in reg 68 attracts only those punishments in reg 72 (the punishment regulation) and this does not include the power of suspension. Suspension is dealt with in reg 71 which provides: “(1) ... The correctional officer may suspend an assistant correctional officer for misconduct of any kind”. By reg 71(2) such suspension shall be reported immediately to the Commissioner who may confirm the suspension and discharge the assistant correctional officer. It is submitted that this is a separate procedure under reg 71 and is not tied into reg 68 and reg 72. But, in my view, an assistant correctional officer who offends under reg 68 “is guilty of a disciplinary offence and is liable to be dealt with under this Division” (my emphasis) (that is, Div 4 — Discipline — of Pt VI of the regulations) which means that he can be punished under reg 71. This is clearly a punishment, attracting as it does both suspension and disallowance of pay during the term of suspension. It is true that reg 71 is not listed in the punishment regulation (reg 72) and it is an unusual form of drafting, but reg 71 does not exist in isolation especially from the wording of reg 68 — “liable to be dealt with under this Division”. In any event the correctional officer may suspend for misconduct of any kind which thereby includes disgraceful or improper conduct and, in this case, the correct procedure of reporting to the Commissioner was carried out.

As indicated earlier, the charge was heard by the officer in charge on 11 March 1987 at Ningerum Corrective Institution. It is clear that he says he himself found the plaintiff asleep in the cell and it is not disputed that he laid the charge, then proceeded to determine it. It is submitted that this offends the rules of natural justice in that bias is raised and it is also said that the plaintiff was not given an opportunity to be heard. The principles of natural justice are enshrined in the Constitution, s 59:

N2>“(1)    Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying laws known by that name developed for control of judicial and administrative proceedings.”

I have no doubt that the duty to act fairly and in principle, to be seen to act fairly extends to all administrative proceedings of this nature and to such a disciplinary proceeding as this was. But the Constitution itself recognises the special nature of disciplined forces, for example, s 207 and s 208. I do not think it is especially remarkable that the officer in charge of a provincial corrective institution who, on witnessing an offence himself, then causes that person to be charged and brought before him to answer that charge. The practicality of the situation is that the officer in charge of a corrective institution bears an onerous responsibility in guarding prisoners and, inter alia, in protecting the public. He must exercise proper control and discipline over those serving under him and this is laid down in reg 12(c). No doubt his position is more difficult in a provincial institution where he may not have the necessary officers to hear and determine serious disciplinary matters. But he is the person charged with this responsibility and, in my view, his staff must be answerable to him and I do not think that, in this situation where he finds an assistant correctional officer asleep in a bed in the cells (which is a most serious matter going to the basics of discipline), it offends natural justice to hear the matter himself, providing, of course, that there is a fair hearing on the merits and that the accused is given a fair opportunity to be heard.

Upon the hearing of the matter, one senior assistant correctional officer and three assistant correctional officers gave evidence. Their evidence is equivocal. For example:

“Yes, Sir, what had happened after, I do not know, the defendant went inside the cell and sleep. I know and saw you, the Provincial Gaol Commander, went inside the cell.”

And:

“Sir, on that matter, time was not the first, it has been happening to the defendant couple of times, sleeping in the cell while on duty. Mostly on drinking time and weekends and the matter were reported to the NCO’s, never report to you, OIC, and that time you yourself, OIC, found the defendant asleep in the detainee cell.”

There then follows the crucial evidence of the defendant (the applicant here) which is now disputed. He makes clear admissions where he admits to being found asleep by the officer in charge. He reiterates this several times in answer to various questions and offers as an explanation some grievances he has against the Corrective Institution.

The plaintiff now says in evidence before me that he did not make this statement at the hearing of his charge. The officer in charge, Mr Engnui, has given evidence that he did. The plaintiff says that he had previously reported the officer in charge for misuse of government vehicles and other matters and that, as a consequence, the officer in charge was out for revenge. He says that he was on duty on this day and that he had organised a netball game. He says he then went to the men’s room where he sat down in a chair where he could observe the netball game and he briefly fell asleep as it was very hot. He says that the officer in charge forced him to sign this statement some days after 11 March 1987, on a payday, and that he said to him, “If you don’t sign, you will not get your pay”. He says he had to support his family and therefore had no choice but to sign.

I have observed both men giving evidence and I think the plaintiff’s account is a coloured one. He is maintaining that there was a conspiracy against him but I do not find him convincing as a witness. I was not impressed with his demeanour. Mr Engnui gave his evidence clearly. He may have been hesitant to admit why he was later transferred from Ningerum Corrective Institution but I did not detect any great animosity towards the plaintiff consistent with a conspiracy to convict the plaintiff. I accept the evidence of Mr Engnui and I do not accept the evidence of the plaintiff.

The charge in this case was a very serious one. In view of the plaintiff’s prior record of service with 10 prior convictions, the decision of the Commissioner to suspend him could not be said to be harsh or excessive and is reasonable in the circumstances.

It follows from all of the above that I would dismiss the application.

Application dismissed

Lawyer for the applicant/plaintiff: K Y Kara.

Lawyer for the respondent/defendant: State Solicitor.