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Wena v Tokam, Police Commissioner [1997] PGNC 54; N1570 (9 May 1997)

Unreported National Court Decisions

N1570

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 106 OF 1996
BETWEEN
MICHAEL KAPA WENA - Applicant
And
HENRY TOKAM, POLICE COMMISSIONER - Respondent

Mount Hagen

Injia J
21 October 1996
9 May 1997

ADMINISTRATIVE LAW - Judicial Review of Disciplinary authority’s decision to dismiss policeman - Grounds for review - Reasons for decision not provided to Applicant at time of decision - Reasons available at the time of decision but not communicated to Applicant - Applicant did not request for reasons for decision - Reasons provided to Applicant and Court at time of review - Whether breach of principles of natural justice occurred - Police Force Act (Ch. 65), S. 46, National Court Rules, Order 16.

Cases Cited:

Kelly Yawip v Police Commissioner N 1370 (1996)

Dicky Nanan v Police Commissioner N 1507 (1997)

Counsel:

D Kwimberi for the Applicant

J Kumura for the Respondent

9 May 1997

INJIA J: The Applicant is seeking judicial review of the Respondent’s decision to dismiss him on disciplinary grounds under s. 46 of the Police Force Act (Ch. No. 65). The decision was made on or about 22 December 1993. Leave to apply for judicial review was granted on 12 April 1996.

Pursuant to the Statement in support of application for leave filed on 12th February 1996 and amended pursuant to order of the Court on 19 September 1996, the grounds of review set out in para. 4 and 5 are as follows:

“4. Reasons:

(a) There was insufficient evidence to sustain the charge of serious Disciplinary charge under Section 43 (b) and (c) of the Police Force Act, Chapter 65.

(b) Proper disciplinary procedures of laying charge, were not followed.

(c) Penalty was too excessive, unreasonable, harsh and oppressive in the circumstance. The alleged offence was Plaintiff’s first disciplinary offence.

(d) Plaintiff was not advised of his dismissal and was allowed to perform duties without pay until February 1994.

The First Respondent failed to provide reason or good reasons for the Plaintiff’s dismissal, upon consideration (of) all reports under Section 46 (4) of the Police Force Act.

5. The grounds on which the relief is sought are as follows:

(a) That the dismissal was wrong in law;

(b) That the order was contrary to Principles of Natural Justice.”

Pursuant to Order 16 rule 6 of the National Court Rules under which these proceedings are brought, the Applicant is restricted to the grounds raised in the statement unless leave is sought and granted at the hearing to amend the grounds. Apart from the amendment sought and order made on 19 September 1996, further leave was not sought at the hearing.

A chronology of events regarding disciplinary procedures resulting in the Applicant’s dismissal is as follows.

The Applicant was a Senior Constable based at Porgera Police Station, Enga Province. On 7 July 1993, the Applicant was charged with 3 serious disciplinary offences.

On 13 July 1993, he was served with the three charges by his Supervisor, Inspector J. Yansuan. At the time of service, he was asked by Insp. Yansuan whether he denied or admitted the charge and what explanation, if any, he had to the charges. The three charges and his explanation on the three charges are set out below:

First Charge:

Between the 18th of July 1991 and October, 1992 at Porgera, you were negligent in the discharge of your duties in that you had in your possession an Unlicensed High Powered Firearm, namely, a SMITH and WESTON PISTOL, Serial Number 25092 which came into your possession and had failed to inform or handover the Pistol to your PSC Inspector TENDE, instead you gave it back to the Unlicensed owner.

Thereby Contravening to Section 43 (c) of the Police Force Act (Ch. 65).

Explanation:

The pistol was in my possession. However the owner of the pistol came to my house and asked me to give it back to him. He told me that the PSC Inspector TENDE had sent him to get the pistol from him. With this I believed him and gave it back to him.

Second Charge:

That on the 3rd day of March, 1992 at Porgera you did wilfully Disobey a Lawful Order given by a person having authority to give it, to wit Inspector TENDE the PSC in that you did not hand over to him the pistol, namely a SMITH and WESTON PISTOL, Serial No: 25092 which was in your possession for which you were minuted to do so.

Thereby Contravening to Section 43 (b) of the Police Force Act (Ch. 65).

Explanation:

The minute was received after the pistol was given back to the owner. Therefore I did not handover the pistol to him. It was on his instruction that I gave the pistol back to the owner and when I received his minute, I was annoyed and did not come and explain to him.

Third Charge:

That on the 22nd day of January 1993 at Porgera you did wilfully Disobey a lawful order given by a person having authority to give it, to wit, PSC, Inspector TENDE in that you failed to handover the unlicensed Pistol, Serial Number, 25092 when you were minuted for the second time to do so.

Thereby Contravening to Section 43 (b) of the Police Force Act (Chapter 65).

Explanation:

Yes. The reason why I did not respond to the minute by PSC was that the pistol had already been given to the owner upon PSC Inspector TENDE’s instructions. I therefore did not approach the PSC.

On 15 July 1993, the Applicant gave a full reply to the 3 charges in writing. His reply is as follows:

“SUBJECT: EXPLANATION TO THREE SDORS UNDER SECTION 43 (B) (C) POLICE FORCE ACT, S/CONST. 5996 WENA KAPIA

Dear Sir,

I wish to give my explanations in regards to three (3) SDORS substained on me under Section 43 (b) (c) of the Police Force Act Ch. 65 on the 13th July 1993. During 1990 and 1991 I was acting as a PSC in Porgera and my policemen confiscated three (3) High powered pistols and that pistols handed over one (1) Mr B Irume who was a PPC at that time and when the incoming PSC for Porgera Mr DW Tende to takeover from me I handed over one (1) to him and he exchange with Mr George Wauglo who he was taking over from PSC Wabag. The last one was with me until June the 1st 1991, 6th June 1991 I was not in my house and the owner of the pistol approached the PSC Mr Tende and asked to get the pistol back so Mr Tende send S/Const. Solomon Wemen with the owner of the pistol to my house and asked my wife that where is S/Const. Wena and my wife told them that he is not around so they went back. The other day they came to my house again and I asked them saying what do you want and in replied they told me that the PSC send us to come and see you to give the pistol back to the owner so I thought that my boss’s order so I handed over pistol back to the owner. Later the PSC informed me again that I want the pistol back but I thought that in the first place your order saying that I must give the pistol back so I handed over back to the owner, and how you want the pistol back so that means you change your mind again and trying to charge me so I didn’t say anything to him, the PSC. I did not know anything between the PSC and the owner what their decisions made bribery or other things but I honestly and truly handed over the pistol back to the owner because of the order from my PSC. I did not denied the first charge of SDOR because of the order that I have followed from the PSC. I had now SDORs in the past years since I have joined the force in 1974 till now 1993. That is all about my first explanations of SDOR.

My second and third charges is the same explanations that the PSC for Porgera told me that he want the pistol back and also he write a minute to me saying that he want the pistol back to his possession but I did not say anything to him because at the first place he himself send a policemen with the owner of the pistol to my house and I already give the pistol back to the owner and yet he want the pistol back to his possession and that means he just pulling me around and trying to charge me so now the PPC charge me for that same pistol so that is not my fault because I follow the directions from the PSC to give the pistol back to the owner. During 1992 some policemen went to the owner of the pistol’s house and bring back the pistol back so I did not know where the pistol is now. I also did not know that I am going to charge for that pistol because I knew that I follow up the order from the PSC and not my own decisions to give the pistol back to the owner and get any bribery such as money, pigs or anything. If Mr Tende didn’t give me the order to give the pistol back I should have the pistol still in my possession.

My second and third charges I was not guilty because I have already handover the pistol and the minute came to me late because I follow the directions from the PSC and give the pistol back so he just trying to charge me so I face three extra false things in it so that is all I have to say.”

On 28 January 1994, the Applicant was served with three penalty notices in respect of each charge. Each notice stated that the Applicant was dismissed from the Force effective from 22 December 1993 but the actual date on which the decision was made is not shown on the dismissal notice. No reasons for decision are stated on the penalty notices. Also, Insp. Yansuan who served the penalty notices did not give him any reasons for the decision.

On 14 March 1996, the Applicant sought leave to apply for judicial review against the decision. In the statement in support, he did not rely on the grounds that no reasons or good reasons for decision was given. This ground was introduced by subsequent amendment by leave of the Court.

Both parties have produced evidence in this review. The Applicant’s evidence consists of the Applicant’s 2 affidavits sworn 23 February 1996 and 25 March 1996. He was cross-examined on his two affidavits by the Respondent’s counsel. The Respondent has relied on the affidavit of J.M. Kumura sworn 24 July 1996 in which he attaches the relevant disciplinary process documents obtained from his client, the Respondent.

The grounds of review in paragraphs 4 and 5 are mixed. The grounds in paragraph 5 really describe the essence of the grounds set out in paragraph 4. The grounds in paragraph 4 relate to both guilt and penalty. Grounds 4 (a), (b), (d) (in part) and (e) relate to guilt and 4 (c) and (d) in part relate to penalty. All the grounds in para. 4 relate to breach of the disciplinary provisions of the Police Force Act. Ground 4 (e) also relates to breach of principles of natural justice.

In the submission (Additional) of the Applicant’s lawyer filed on 1 November 1996, he introduced a new ground of the review which is that the Respondent failed to serve copies of certain internal statements and reports from his sub-ordinates which were placed before the Respondent which he may have considered in deciding on the charges. It is submitted this was in contravention of S. 46 of the Act and also amounted denial of natural justice. In my view, this ground is not open to the Applicant pursuant to Order 16 r. 6. Even if it is open, my view is that there is not such requirement under S. 46 of the Act and that there is no room to import rules of common law as to natural justice into S. 46: Dicky Nanan v Police Commissioner & Ors N 1507 (1997).

Returning to the grounds of review properly before me, grounds 4 (b) can be dismissed outright because I do not find any procedural error in terms of compliance with the requirements of S. 46 as to laying and service of charge, giving of opportunity for reply, deliberating, and delivery and service of penalty notice on the Applicant.

As to grounds 4 (e), the Applicant relies on my decision in Kelly Yawip v Commissioner of Police N 1370 (1996). As I said in that case, the duty to give reasons for decision is not a requirement of the disciplinary procedure prescribed in S. 46 of the Police Force Act but it is a requirement of the common law and equity principles of natural justice which is implied into the statute. In Kelly Yawip’s case, it was a case where the Respondent failed to give any reasons for his decision to dismiss the Applicant at all, even up to the time of the hearing of the judicial review application. In the present case however, the Respondent has provided to this Court and the Applicant all the necessary internal reports, recommendations, and reasons for the decision to dismiss based on those recommendations. Although these reasons were not provided to the Applicant at the time the decision to dismiss him was conveyed to him, the fact is that they were available at the time the decision was made. Had the Applicant requested for the reasons, he would no doubt have been supplied with the reasons. He has now been made aware of those reasons. Further, it is also open to me to infer from the way these judicial review proceedings have been conducted by the Applicant that the failure to give reasons for decision was not a significant part of the Applicant’s case up until the hearing was well under way and the Applicant’s saw it necessary then to seek to amend the grounds to plead this ground. For these reasons, I would distinguish my decision in Kelly Yawip’s case from this case on the facts and decline to apply my ruling in that case to the facts of the present case.

The next related issue is whether the reasons given were good reasons for the decision. This issue goes to the other related issue of whether there was sufficient evidence to sustain the charges as alleged in ground 4 (a) insofar as guilt is concerned and ground 4 (c) insofar as penalty is concerned.

Before the Respondent were several reports or documents for his consideration. These were quiet properly before the Respondent pursuant to S. 46 (4) of the Act: Dicky Nanan v Police Commissioner & Ors N 1507 (1996). They are:

1. The Applicant’s reply.

2. Report of Insp. J Yansuan dated 14 July 1993. He was the Police Station Commander at Porgera and the Applicant’s Supervisor.

3. Report of Assistant Commissioner K. Ludwick dated 8 September 1993. He was the Assistant Commissioner of Police for the Highlands Region.

4. Report of Insp. N Karmi dated 7 December 1993. He was the officer with the Director of Police Internal Affairs, at Police Headquarters.

In all the reports Messrs Yansuan, Ludwick and Karmi, all strongly recommended dismissal because of the seriousness of the offence. They gave detailed reasons for their recommendation. I set out in full the report of Assistant Commissioner Ludwick as an example:

“SUBJECT: RE: SERIOUS DISCIPLINARY CHARGES - SENIOR CONSTABLE 5996 WENA KAPIA

I forward herewith three (3) serious disciplinary charges being duly served on the above named member on 13th July 1993 by Inspector Yansuan.

The charges relate to:

Disobedience of lawful order;

Negligent in discharged of duties; and

Disobedience of lawful orders.

Disobedience of Lawful Order

Senior Constable Kapia (accused) is stationed at Porgera. In 1992, Inspector Tende was his PSC. Around March 1992, the member came to be in possession of a S/W Pistol, Serial Number 25092. This has come to the knowledge of Inspector Tende following incidences of domestic nature in which it was reported that S/Const Kapia has been threatening his wife with a pistol. In the course of investigations, Inspector Tende issued a minute dated 3/3/93 to S/Const. Kapia to surrender the pistol to him. Copy of this minute is enclosed marked F.1. In addition to this minute, the then PPC, Chief Inspector Wagluo was aware of the situation and has issued a minute to PSC Porgera dated 18/1/92, instructing that the pistol be surrendered. Copy of this minute is enclosed marked F.2.

Despite instructions from PPC Wagluo and PSC Tende for S/Const. Kapia to hand in the pistol, the member has failed to comply and hence has willingly disobeyed the lawful orders from the authorised officers.

Disobedience of Lawful Orders

Failure by the member to comply with the orders of 3/3/93, Inspector Tende issued another order dated 22/1/93 to the member to hand in the pistol after realising that S/Const. Kapia has failed to institute criminal proceedings against the owner of the pistol for being in possession of unlicensed pistol. Copy of this order is enclosed, marked F.3.

Again, despite the receipt of the instructions from the PSC, the member choose to ignore the orders and continue to keep the weapon without good reasons or having to take appropriate actions against the owner.

Negligent in Discharge of Duties

Around July 1991, three (3) pistols came into the possession of S/Const. Kapia. A villager, by the name of Pundi Pakiru was in possession of an unlicensed pistol which he admitted possession of and belongs to the Late Malipu Balakau.

Police came to know about the pistol on 18th July 1991 following domestic incident involving Pundi brothers in which the pistol was used injuring one of them. According to the statements from S/Const. Mek, he was incharge of the case and during his investigations he failed to pick up the pistol as it was already taken in by S/Const. Kapia. This was not made known to S/Const. Mek who was then a/PSC and other members at Porgera at that time.

Between July 1991 and March 1992, S/Const. Kapia was holding the pistol in his house and failed to perform his duties as policeman to initiate and conduct investigations with the view of taking criminal actions against Pundi Pakiru and his brothers. The fact that the pistol was in his possession came to light after he threatened his wife with it. Therefore, S/Const. Kapia has neglected his duties as policeman to inform his superior about the pistol or in the absence of that could institute charges against Pundi Pakiru. He was guilty of negligent in the discharge of his duties.

The whole episode is stink and amounts to criminal conscience on the part of S/Const. Kapia. When he took hold of the pistols, he came to form an sinister motives and that was to gain personal benefits out of them.

There are evidence to prove that the member has actually sold the pistol back to Pundi Pakiru. The member admitted that he gave the pistol back to Pundi Pakiru which was completely improper. In S/Const. Mek’s statements (marked F.4.), it was rumoured that S/Const. Kapia sold the pistol back to Pakiru was the reasonable conclusions despite denials from Pundi Pakiru (F.5) and the member himself (F.6).

Another statements from S/Const. Mek (F.7) indicated the fact that s/Const. Kapia had actually approached one of the Pundi brothers (Michael Pundi) and stated that he plan to return the pistol to them on the condition that he be paid some money.

It is pity that this matter was treated with disciplinary action which if properly investigated, should amount to criminal charges.

There are enough evidences to sustain all three (3) charges. I strongly recommends that the member be dismissed immediately from the Force as penalties.”

There is evidence to show that the Respondent acted on these recommendations and dismissed the Applicant.

On the evidence, I am satisfied that there existed good reasons to warrant a finding of guilt on all three charges. The evidence in the form of these various internal reports far outweighed the Applicant’s explanation to the three charges.

On the question of penalty, Insp. Karmi’s report shows that the Applicant had 4 “prior convictions” for disciplinary offences. They are:

1. MDOR 10-1-76: Wilfully disobey a lawful order. Reprimanded.

2. MDOR 31-5-80: Use intoxicating liquor. Loss of 2 days pay.

3. MDOR 11-3-84: Improper conduct. Loss of 3 days pay.

4. District Court Kieta 8-8-88: Unlawful assault. Fined K60.00 in default 3 weeks in hard labour.

I note that the Applicant in his reply dated 15 July 1993 admits only one prior conviction which was sustained by him whilst he was stationed at Wewak. But in his grounds for application for judicial review, para. 4 (c), the Applicant says he has no prior convictions. Based on this conflicting story, I am unable to agree with him that he has only one prior conviction. I am prepared to go by the respondent’s record.

In view of the seriousness of the present offence and the four (4) “prior convictions”, Insp. Karmi strongly recommended dismissal and the Respondent no doubt acted on the recommendation. In my view, I am inclined to agree with the Respondent. The Commissioner viewed the 3 charges as serious and decided to dismiss him. I do not take the decisions of the Respondent and the unanimous recommendation of his three Senior Officers lightly.

For these reasons, I dismiss grounds (4) (a) and (c).

That leaves ground 4 (d). There is no evidence to support the Plaintiff’s assertion that he worked for 3 months without pay. He could have summonsed the financial records of the Police Department to show that he was put off the pay-roll for three (3) months. Also under S. 53 and 54 of the Act, suspension of a member, with or without pay, pending determination of disciplinary proceedings is in the discretion of the Respondent. If such a decision was made, then such decision was within the discretion of the Respondent.

For these reasons, the application is dismissed with costs to the Respondent.

Lawyer for the Applicant: Paulus M Dowa Lawyers

Lawyer for the Respondent: Solicitor General