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Laki v Commissioner of Police [1996] PGNC 9; N1432 (30 May 1996)

Unreported National Court Decisions

N1432

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 525 OF 1995
SENGI LAKI - Applicant
OS 526 OF 1995
VINCENT AVAKEA - Applicant
OS 545 OF 1995
FRANK SIWI - Applicant
v
THE COMMISSIONER OF POLICE - Defendant

Mount Hagen

Akuram AJ
30 May 1996

JUDICIAL REVIEW - Administrative decisions of Police Commissioner - serious disciplinary charge - no reasons and no records substantiating the dismissible - review granted.

On application for judicial review.

Held:

1. B eachrdf O16,r ule R of t of the National Court Rules do not render proceedings void - Order 1, Rule 8. Applied.

2. & R60;estquo adtourn to allo allow oliceissioo give reasons for hisr his find findings ings and subsequent dismissal runs counter to the whole purpose of giving reasons at the same time the dec to dsal ie as it would resd respond pond to thto the grounds of appeal and not represent the real reasons given at the time decision is made.

3. Ii jud rialew,vihe Atplicaplicant need not show that there is insufficient evidence to substantiate the charges and subsequent dismissal but the Respondent to show from its records that there is sufficient evidence to substantiate the charges upon which he made his decision.

Cases Cited:

Paul Undipe v The Police Commissioner (1991) PNGLR 97

Rose Kekedo v Burns Philps (1988-89) PNGLR 722

Philip Alumba v The Commissioner of Police (Unreported & numbered) OS 470 of 1995 dated 3/5/96

Statutes Cited:

National Court Rules, Orders 1, Rule 8, Order 16, Rule 5

30 May 1996

AKURAM AJ: These are applics for for judicial review of the Police Commissioner’s decision dismissing the three Applicants from the Police Force, effective as of 30th November 1995 on various and serious counts oconduct.

I have hear heard submissions based on the affidavit evidence of each applicants. The Respondent/Defendant’s Counsel had made a preliminary submission to the effect that there is no application filed by way of Notice of Motion, afterLeave was granted, for judicial review and was then in breach of Order 16, Rule 5 of the Nahe National Court Rule. What we haveis the originaiginal Originating Summons and Notice of Motion seeking orders for leave to apply for judicial review. Altho conc his views, I am I am also of the view that non compliance with the Rules do not renderender the proceedings void.

Order le 8 reads:

8. ټ&##160; N60; Non-comn-compliance with Rules not to t to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.

Furthermore, the leave was granted on the 20/12/95 and matter set for hearing on 18/1/95. State was s on the 27th Deth December 1995 of the Notice of Motion and originating Summons. The Notice of was filed oled on 12th February after two adjournments giving notice that matter will be ton the 24th April 1996.&#16. I heardmatter on 22/4/96 o/96 obtained both oral and written submissions by 29/4/96. The copy of the N of trialtrial was in fact directed to Mr Pokia and Mr Gonapa. er, there was no notice ofce of objection to the trial date to the manner of procedure raised, prior to trial, to the Plaintiffs or their Counsel.

I therefore rule that non-compliaith the Rules (O. 16, R. 5)R. 5) do not render these proceedings void. In fact it was the courtecdirection that these matters were set down for trial on 18/1/96, 2/2/96, 22/2/96, and 22/4/96.

I will now deal with the substantive arguments.

Tounds of the application are the same as those stated in thin the application for leave and are as follows:

(i) ҈& T60; There were was insufficient evidence to substantiate any of the charges found against the Plaintiff’s.

(i

(iii) ـ Thision sion o Comm Commissioner was contrary to natural justice in that the Commissioner:

(a) Faio provide thintif17;s w7;s with copies of any evidence substantiating ting the chhe charges put against them;

(b) &#16il giveAppli an ounityrnityresent oral evidencidence;

>

(c)&#(c) &160; Failedroo pe tid Appeicanticant’s with portuto crxaminnesses providing evidence in e in supposupport ofrt of the the charges;

(d) ـ Failed iled to provide tplica217;s an opportunity tity to addo address ress the Commissioner on penalty;

(e) &ـ Failed iled to proo provide any sufficiensons is den.

The Counsel for the Defendant/Resp/Respondenondent agreed that there are no reasons given by the Commissioner for eachhe se disciplinary chay charges.rges. However he submits that this alone should not render the whole proceedings null and void. He sted the court to adjouadjourn the matters and request the Commissioner to provide his reasons before making the decision.& I aghat may be one ofne of the alternatives available but it has to be looked at in the circumsrcumstances of other grounds of appeal and the nature of each offence and also the implications of having such a procedure. I am of iew that it runs cuns counter to the whole purpose of giving reasons. The purpose of giving reaions is to justify, upon the facts or evidence presented bethe authority or tribunal, that these are the reasons for wfor which such a penalty is imposed. The r of providing reasonsasonsr the grounds for the appliapplication are provided is that the reasons will not go to the time when Commissioner was directing his muring assessment of the evidence and coming to the decisionision to dismiss as in this case, but he will be merely explaining and responding to those grounds. e reasons would be more dere defensive for the decision made and not as they would have appeared at the time of the decision. Hr, if the reasons were gire given but not available then court would and should ask that they be provided prior to making the decision after giving the applicants an opportunity to respond to them. I therefore will not adjoorn to allow the Defendant to provide his reasons for a decision made in early November. So in regard there is a br a brea natural justice in that the applicants were not informed of the reasons for their dismissamissal which is distinct from the fact thah of them have been charged.

As to ground number oner one, that there is insufficient evidence to substantiate the charges laid against them, the Applicants denied all the charges. Thins that the Commissionesioner must then obtain evidence from witnesses and replies from the applicants and evaluate them to find the guilt or innocence of applicants. This goes to the cr the serpose of judicial real review, which I have said in previous similar case, that this court must have before it, the records ofauthority or tribunal or decision making body to see whether it acted in excess of its juri jurisdiction or not complied with the rules of natural justice or made an error on the face of the record. (See Paul Undipe v The P Cice Commissioner (1991) PNGLR 97 and Rose Kekedo v Burns Philps (1988-89) PNGLR 722).

In the present case, all we have is the copy of charges, replies e applicants the notice to the Highlands Commander of the fthe findings of the Commissioner of each of the charges date 16th November 1995 and the notice of penalty. There are no evidence upoc which the Commissioner based his findings on. As I have said ilip Alumbalumba v The Commissioner of Police, OS 470 of 1995 dated 3/5/96, that in the absence of the evidence from the PoCommier’s proceeroceedings, I can only say that he either had some evidence which he relierelied 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 records or evidence for the Commissioner, I have to give the benefit to the Applicants and say there is nothing. As is always the ice in rein review proceedithe superior court must havt have the records of the proceedings below so that it can review the records to see whether there is:

(b) &##160;; Breach each or nonr non-compliance with rules of natural justice; or

(c) &##160;r orolaw law on then the face of the records.

This cannot be done in the nt ca#160; I cannot saot say thay that this was insufficient evidence or that the Commissioner’s decision was not contrary to natural justice or that the penalty is not too excessive.

The Counsel for the Respondent/Defendant submitted that the Applicants have to prove or show that there was insufficient evidence to substantiate the charges. As it is, the aants have nave not brought forward any evidence to show there is insufficient evidence. This issconception of the the purpose and procedure for judicial w because all that the reviewing court needs is to see the the records of the Commissioner to see whether the evidence presented to as sufficient to sustain thin the charge. The reviewing court iy revy reviewing the Commissioner’s decision and not trying to call fresh evidence as if it is a new trial.

Based on the above views expressed, I am of the view that there is no r to show that Commissioner oner had sufficient evidence to substantiate the charges and consequent dismissals. I therefore gran applicatiication for judicial review and make the following orders:

1. ـ That tli Polimmissionerer’s decision to dismiss the applicants from the Police Force is quashed.

2. &&#160at bh rtat rtatedhe Pdhe Police Force with entitlemitlements ents commecommensuransurate with their positions prior to dismissal.

3. ټ&##160; costlofolhe the event.

Lawyer wyer for tfor the Aphe Applicants: O’Connor Lawyers

Lawyer for the Respondents: Solicitor General