Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Giwoso v Commissioner of Police [1997] PGNC 53; N1578 (9 May 1997)

Unreported National Court Decisions

N1578

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 406 OF 1995
BETWEEN
GARUMU GIWOSO - APPLICANT
AND
THE COMMISSIONER OF POLICE - RESPONDENT

Mount Hagen

Injia J
12 February 1997
9 May 1997

JUDICIAL REVIEW - Decision of disciplinary authority - Nature of Court’s discretion in reviewing decision on excessiveness of punishment - Disciplinary offence involved - interference with administration of justice and law enforcement - National Court Rules, Order 16.

Cases Cited

Kekedo v Burns Philp (PNG) ltd & Anor [1988-89] PNGLR 122

Counsel

D O’Connor for the Applicant

J Kumura for the Respondent

9 May 1997

INJIA J: The Applicant is a policewoman based in Mount Hagen. She is seeking judicial review of the Respondent’s decision to demote her on disciplinary grounds pursuant to provisions of the Police Force Act Ch. 65 (the Act). These proceedings are brought under Order 16 of the National Court Rules.

The history of the disciplinary proceedings is as follows. On 4 April 1995, the Applicant was charged with disciplinary offence under s. 43 (c) of the Act that “On Friday 31st day of March, 1995 at Mount Hagen, you were negligent in the discharge of your duties in that you without lawful justification released one James Mamia from the Police Cells who was arrested on Warrant of Arrest and placed in the cells on 3 Traffic charges” thereby contravening Section 43 (c) of the Police Force Act (Ch. 65). On 5 April 1995, the Applicant replied to the charge in writing. In her reply, she admitted the charge by saying “First of all, I do agree with the negligence of my duty as I was careless in releasing the Defendant on the 31st March 1995 at about 6.00 p.m. While being arrested on a Bench Warrant. In fact I am not denying that, as quoted in the O/B”. She said James Mamia was facing 3 traffic charges in the Local Court at Mount Hagen in which she was a Police Prosecutor. James Mamia was a relative of her husband. The Police Prosecutor in this Court was one Joseph Sangam. The cases were adjourned to 30 March 1995 at 9.30 a.m. for trial but the Defendant failed to appear so upon application of Police Prosecutor Joseph Sangam, a Bench Warrant was issued. On 31 Friday March 1995, the Bench Warrant was given to the Police Informant to execute. The Defendant was arrested and placed in the police cells on the same day. It was a Friday and the Defendant had booked himself to fly out of Mount Hagen to Port Moresby to attend a course in motor mechanic. So on “humanitarian grounds”, she had very genuine reasons “to release this Defendant from the cells only to be fair in his right to his further education and welfare”. She asked for a lenient punishment because she had been a very hard working woman at the Mount Hagen Police Station for the last (14) years during which period she has not been charged with any disciplinary offence.

It is not clear from her written explanation how she managed to release the Defendant from the police cells. In the reasons for decision prepared by Inspector N. Kami dated 25 July 1995, it shows that the Applicant “persuaded another prosecutor for the release of the suspect immediately. Both members released the suspect in the afternoon neglected their duties as Police Prosecutors by not seeking authority from the Court or the Station commander or OIC Prosecution”. The other prosecutor persuaded is her fellow Police Prosecutor Joseph Sangam. Mr Sangam was also charged in relation to this same incident and demoted on disciplinary grounds. His demotion was reviewed by the National Court: see Unnumbered judgment of Akuram, J: OS No. 365/95 Joseph Sangam v The Commissioner of Police dated 25 October 1996.

It is an undisputed fact that Joseph Sangam was the prosecuting counsel in the case against the Defendant. He was the ultimate officer who released the Defendant but the persuasion came from his fellow prosecutor, the Applicant. In that sense, the Applicant quite correctly admitted said she was responsible for releasing the Defendant.

The grounds of review are:

i. The decision was harsh and oppressive.

ii. The penalty was too excessive.

iii. The decision of the Commissioner was contrary to natural justice:

(a) I was not accompanied by my officer of the Section when I was called to parade before the Officer who read and explained the charge to me and asked me to enter plea. I was deprived that right as stipulated under the Constabulary Standing Order (SCO 304) (2) when I was dealt with a serious disciplinary offence.

(b) I had no original intent when I did the act. I reported my releasing of the Defendant in the Occurrence Book for the attention of my Supervisors. When I did the act, I had no intention to interfere with the course of justice.

What I did was in the belief that the Defendant was being deprived of the right to education and employment.

(c) I was not afforded a fair hearing when I pleaded guilty to the charge but explained in writing the reasons for the release. In my case, my explanation should have been considered and that the plea would have been amended to one of Not guilty and evidence called.

(d) Section 42 (3) of the Constitution states:

A person who is arrested or detained:

SHALL, UNLESS HE IS RELEASED be brought without delay before a court or a judicial officer.

This is exactly what I was trying to do and so I was not negligent at all.

(e) Consideration was not given to my written reports and for my plea for mercy and leniency. After all, the matters against the Defendant that I released have all been finalised with convictions.

(f) The Commissioner did not obtain statement from all witnesses in accordance with Standing Orders No. 304 4(a) of the Police Force.

(g) There was insufficient evidence to find me guilty of the charge.

The Applicant’s counsel has made submissions on the finding of guilt based on the weight of the evidence. These submissions relate to ground (iii) (d) and in part (iii) (e) and (iii) (g). However, I am satisfied that the Respondent properly found the Applicant guilty of the charge based on her admission of the charge. I dismiss all these grounds.

The grounds (iii) (a) and (iii) (e) in part, and (iii) (f) relate to denial of natural justice. These were not pursued in the Applicant’s affidavits and in her counsel’s submission. I take it that they are not pursued. In any case, I see no impropriety in the disciplinary procedures employed by the Respondent. I dismiss these grounds.

Grounds (i) & (ii) relate to excessiveness of punishment. The punishment imposed on the Applicant was that she was demoted to Constable on salary point FO11 effective from 11th August 1995. In the reasons for decision, the Respondent viewed the offence as a serious matter and even amounting to contempt of Court warranting demotion as a lesson to her and other members of the Force.

On principle, I can only interfere with the punishment on the grounds, inter alia, that on the facts, no reasonable tribunal or authority would have imposed the punishment it imposed: Kekedo v Burns Philp (PNG) Ltd & Anor [1988-89] PNGLR 122.

In my view, the penalty was warranted. I have no doubt that the Applicant is a very dedicated and long serving member of the Police Force. However, she allowed her long history of service and dedication to her job to be compromised by her accommodating the interest of her husband’s relative. She stood to be reminded that the judicial process of law and police law-enforcement cannot be compromised by policemen and policewomen under any circumstance. A demotion in rank was considered as appropriate penalty by the Respondent. I do not see any reason for interfering with his decision on punishment.

The Applicant relies on a lesser punishment of a fine substituted by the National Court presided over by Akuram, J. I agree with the Respondent’s lawyer that this case can be distinguished from that case on the following grounds:

1. That application was not contested by the Respondent whereas the present one is.

2. His Honour did not have the reasons for decision from the Respondent before him whereas I have those reasons.

It is submitted for the Applicant that Joseph Sangam was a principal offender who has now received a lesser punishment substituted by the Court whereas the Applicant was not a principal offender.

However, I am of the view that the Applicant was the main offender as well in the sense that without her role, Joseph Sangam would have had no reason to compromise his job and release the Defendant. Joseph Sangam did not stand to benefit from this exercise whereas the Applicant did.

The other grounds relied on by the Applicant are of no consequence. For these reasons, I dismiss the application and confirm the decision of the Respondent. I make no order as to costs.

Lawyer for the Applicant: DL O’Connor Lawyers

Lawyer for the Respondent: Solicitor General