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Alumba v Commissioner of Police [1996] PGNC 5; N1438 (3 May 1996)

Unreported National Court Decisions

N1438

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 470 OF 1995
PHILIP ALUMBA - Applicant
v
THE COMMISSIONER OF POLICE - Respondent
Hagen

Akuram AJ
2-3 May 1996

JUDICIAL REVIEW - charge of disgraceful conduct - dismissal - purpose of judicial review - absence of record of proceedings and reasons from Respondent.

Held:

The purpose of judicial review of a lower court or decision making authority is to see from its records below whether it acted in excess of its jurisdiction or not complied with rules of natural justice or made an error on the face of the record.

Cases Cited:

Paul Undipe v The Police Commissioner (1991) PNGLR 97

Rose Kekeko v Burns Philip (1988-89) PNGLR 722

Counsel:

Mr O’Connor for Applicant

3 May 1996

AKURAM AJ: This is an application for Judicial Review of the Police Commissioner’s decision in dismissing the Applicant from the Police Force.

The brief facts of the matter is that on the 29th of July, 1993 at Porgera (Payam) Village there was a police raid conducted under the Supervision of Provincial Police Commander - Superintendent Sheekiot, RDU Commander - Superintendent Sobi, Police Station Commander Porgera, Inspector Yansman, Inspector Korahan & Mobile Commander and other NCO’s. The Policemen came from both with and outside Enga Province as there was a tribal fight and one Policemen on duty was killed. The police personnel therefore came from:

1. Rapid Deployment with “A” Company;

2. Enga Task Force member personnels;

3. Wapenamanda Police personnels;

4. Wabag Police reserve;

5. Wabag Police personnels;

6. Highway “14” Yaibos based Police personnels;

7. Highway “15” Surunki based Police personnels;

8. Highway “16” Mulitaka based Police personnels;

9. Laiagam District Police personnels.

These Policemen carried out raids in Porgera villages and amongst other things burnt down house. These are the brief facts from which the Applicant was charged and served on the 11th May 1994, a period of nine months later. On the 12th May 1994, Applicant replied. Then on the 9th October 1995, Applicant was served the Notice of Dismissal. It is not known how many other Policemen charged for improper conduct acts for the police raid on the 29th July 1993. From the date of the Applicant’s reply to the charge (12-5-94) to date of receipt of Notice of Dismissal (9/10/95) is a period of 1 year, 4 months and 21 days. The Notice of Dismissal or of Penalty for Serious Disciplinary Offence says:

“By way of penalty you are: Dismissed from the force effective C.O.B. 29th September 1995.”

The Applicant was served the Notice on the 9th October 1995, which is 10 days later.

The Applicant in his evidence in his statement denies the charge and gave reasons that during the raid, he was tasked to stay at Porgera Police Station and watch over the remandees in the cells. He was only seen at the site when he and other members drove out to inform the Policemen on the field to stop what they were doing and return to the Police Station.

There are no reasons nor Police Commissioner’s copy of the SDOR file containing relevant information upon which Commissioner used and decided to dismiss the Applicant. So we really do not know what evidence was used or whether Applicant’s reply to the charges were part of the materials available to the Commissioner to reach his decision. This is important because the purpose of a judicial review of a lower court or decision making authority is to see from its records below whether it acted in excess of its jurisdiction or not complied with rules of natural justice or made an error on the face of the record (See Paul Undipe v The Police Commissioner (1991) PNGLR, 97 and Rose Kekedo v Burns Phillip (1988-88) PNGLR 722).

However, it must be noted that both Mr Yamboli and Mr Pokia did not have carriage of the matter but a State lawyer based in Goroka. It is not known what he has done for the case. Mr Yamboli went to Goroka last week Thursday (25/4/96) but could not locate the Officer nor the file. There is on record a Notice of Intention to defend but no defence dated 28th January 1995 which is over a year ago. Application was made by Mr Yamboli & Pokia to adjourn but I ruled that this case will proceed exparte due to the long delay in expediting this matter. The State or Solicitor General was served on 4th of December 1995. I therefore heard the submissions from the Applicant’s Counsel exparte.

All the evidence in support of the application are in the affidavit of the Applicant sworn on 27/10/95. In the absence of the evidence from the Police Commissioner’s proceedings, I can only say that he either had some evidence which he relied on in reaching his decision but I cannot say this with certainty. On the other hand, I can say that in the absence of such evidence or records from the Commissioner, I have to give the benefit to the Applicant and say there is nothing. As is always the practice in review proceedings, the superior court must have the records of proceedings below so that it can review the records to see whether there is:

(a) Want or excess of jurisdiction;

(b) Breach or non compliance with the rules of natural justice; or

(c) Error on the face of the record.

So from the affidavit evidence of the Applicant, I can only say that what he said is correct. That is he was never heard in that his reasons for denial were never taken into account. There is also no reasons given. Therefore in the absence of any evidence to the contrary I will believe the Applicant’s story.

I therefore grant the application for judicial review and make the following orders:

1. That the Commissioner’s decision to dismiss the Applicant from the Police Force is quashed.

2. That he be re-instated to the Police Force with the entitles as if he was not dismissed back-dated to the time he was said to be dismissed.

Lawyer for the Applicant: O’Connor Lawyers

Lawyer for the Respondent: No appearance