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Nanan v Maru and Police Commissioner [1997] PGNC 6; N1507 (10 February 1997)

Unreported National Court Decisions

N1507

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 541 OF 1995
BETWEEN:
DICKY NANAN - APPLICANT
AND
JOHN MARU - FIRST RESPONDENT
AND
POLICE COMMISSIONER - SECOND RESPONDENT

Mount Hagen

Injia J
21 June 1996
5 July 1996
12 September 1996
10 February 1997

JUDICIAL REVIEW - Disciplinary proceedings - dismissal of Policeman by Police Commissioner for committing serious disciplinary offence - grounds for judicial review - policeman not served with internal police investigation report - whether Commissioner required by Police Force Act (Ch No 65) to serve report on policeman at any stage of the disciplinary process - whether Commissioner required by principles of natural justice to serve report - Police Force Act, (Ch No 65), S. 46.

Held

1. By necessary implication, S. 46 (3) & (4) of the Police Force Act (Ch No 65) precludes the Commissioner from serving internal police investigation report on the matter on the policeman concerned at any stage of the disciplinary process.

2. Where a statute, the Police Force Act (Ch No 65), clearly, by necessary implication, precluded the Police Commissioner from serving the internal police investigation report on the matter on the policeman affected, the common law principles of natural justice cannot supply such requirement by implication.

Cases Cited

Kanda v Government of Malaysia [1962] 2 AC 322

Iambakey Okuk v Falsheer [1980] PNGLR 274

Kelly Yawip v Police Commissioner N1370 [1995]

Counsel

P Peraki for plaintiff

M Pokia for defendants

10 February 1997

INJIA J: This is an application for judicial review by the plaintiff, a former policeman, of a decision by the second defendant to dismiss him from the Police Force for disciplinary reasons. The first defendant was the Police Officer immediately responsible for disciplinary matters in the Police Force at the time of the plaintiff’s dismissal. The plaintiff was dismissed on 29th September, 1995. Leave to Review the said decision was granted on 12th April, 1996.

The statement of facts in support of the application for leave should exhaustively set out the orders sought and the grounds for judicial review: Order 16 Rule 6 (1), National Court Rules. The principal orders sought are:

(a) An order in the nature of certiorari to remove into the National Court and quash the findings made by the First Defendant in his reported dated 19th November 1993 of amongst others Plaintiff’s alleged improper conduct in the conduct of his official capacity and the recommendations of the Plaintiff’s dismissal from the Force contained in the said First Defendant’s Report.

(b) Further or in the alternative, a declaration that the said First Defendant’s findings of the Plaintiff’s alleged improper conduct in the conduct of his official capacity was made in breach of the rules of natural justice and as a consequence is void and of no effect.

(c) Further or in the further alternative, the plaintiff’s dismissal from the Force by Notice of Penalty for Serious Disciplinary Offence served on the Plaintiff on 09th October, 1995 dismissing the Plaintiff from the Force effective 29th September, 1995 be declared void and of no effect as the Second Defendant’s decision to dismiss the Plaintiff from the Force was solely on his findings of the First Defendant which findings themselves were made in breach of the rules of natural justice and or under suspicious circumstances.

(d) A declaration that the decision of the Second Defendant to dismiss the Plaintiff from the Police Force is harsh and oppressive and/or is not warranted by or is disproportionate to the requirements and circumstances of the particular case and by virtue of Section 41(I) of the National Constitution is an unlawful act.

(e) A declaration that the Plaintiff is and remains a member of the Police Force and holds the rank of Senior Constable.

(f) An order that the Plaintiff be paid all his entitlements from the date of this dismissal.

There are four (4) grounds relied upon by the plaintiff which are:

(a) The said findings of alleged improper conduct in the conduct of his official capacity and the recommendations of the Plaintiffs dismissal from the Force contained in the said First Defendant’s Report was made in breach of the rules of natural justice in that the Plaintiff was given no opportunity to fully present his case by himself before the Investigation Committee headed by the First Defendant.

(b) In the alternative, even if it was found that the Plaintiff was given an opportunity and that the Plaintiff responded to the charges, the First Defendant did not give the Plaintiff an opportunity to respond to the allegations prior to publishing his Report.

(c) The findings of the First Defendant is void and of no effect on the basis that the First Defendant failed to give due weight and or consideration to the reply by the Plaintiff in respect of the charges laid against him.

(d) The Second Defendant failed to properly exercise his discretion in considering that appropriate penalty for the alleged offences under Section 46 (4) of the Police Force Act was a dismissal when the weight of the evidence did not support the making of such a decision.

At the hearing, oral and documentary evidence was provided by both parties. The plaintiff called evidence both on the disciplinary procedure employed by the defendants to discipline the plaintiff as well as the severity of the penalty. The First Defendant was called to counter allegations of procedural impropriety and severity of sentence.

In my view, the nature of the orders sought by the plaintiff and the grounds relied upon by the plaintiff do not call for a detailed examination of the evidence adduced before the Court. Many of these orders and grounds can be disposed of summarily without a detailed examination of the evidence.

The order sought in paragraph “A” of the OS is a general order and it remains. The order sought in paragraph “B” of the OS provides the basis for the Order sought in paragraph “A” of OS and they can be dealt with together.

The order sought in paragraph “C” of the OS is founded on ground (a) of the statement in support. This ground appears to be the main ground in contention by the parties at the hearing. The uncontested evidence is that, the plaintiff was a Senior Constable based at Mulitaka Police Station. On 29th July 1993, a Police party from Wabag including the plaintiff and other policemen visited Payam village at Pogera and a raid took place. The raid was carried out as a result of a policeman who was allegedly shot dead by warring clansmen the previous day. There was widespread destruction of properties. One man was shot dead by police in the raid. The plaintiff admits that he was present at the scene of the raid but did not actually take part in the raid. Instead he remained all the time in the police vehicle in which he went. As a result of the raid, due to public outcry over the raid, Police Headquarters arranged for an internal investigation team headed by the First Defendant to visit the scene and investigate the raid.

As part of this exercise, the Police team consulted and interviewed village people affected and other witnesses. The First Defendant’s team later collected the names of policemen implicated and arranged a meeting with them at Wabag. Each policemen implicated was spoken to by the First Defendant and his team and allegations put to them and their responses recorded.

All these events took place in 1993. After the investigation was complete, on 19th November 1993, the First Defendant compiled an internal report for the Second Defendant and his Deputy Commissioner. The plaintiff was implicated in the report in paragraph 6.77 to 6.83. In these paragraphs, the plaintiff is said to have armed himself with a gun and set fire to one Kiar Pulapia’s house and other houses. The evidence against the plaintiff was provided by Kiar Pulapia himself and Senior Constable Michael Wena. The plaintiff’s explanation to the First Defendant at Wabag was also taken into account in the report. It was this report which was used by the Second Defendant and his subordinates to lay disciplinary charges against those implicated in the report including the plaintiff.

On 10th January 1994, the plaintiff was charged with serious disciplinary charge under Section 43 (g) of the Police Force Act (Ch 65) of “unlawfully burning down a number of houses during police raid at Payam village, Pogera, Enga Province”. The charge however did not specifically mention any house belonging to Kiar Pulapia. It appears this charge paper was served on the plaintiff on 19th May, 1994 at Pogera Police Station. On the same day he replied to the charge by fax. He denied the charge and gave detailed reasons. On or about 29th September 1995, the First Defendant issued Notice of Dismissal effective 29th September 1995. This notice was served on the plaintiff on 09th October 1995 at Wabag Police Station.

The main issue before me is whether the defendants were required by law to serve a copy of the internal police investigation report on the plaintiff before or after he was charged with a disciplinary offence in order for the plaintiff to respond to the allegations in that report. The relevant law on this issue is Section 46 the Police Force Act (Ch 65). This section sets out the disciplinary procedure for dealing with policemen charged with serious disciplinary offences. Section 46 provides:

S.46 Dealing with Serious Offences

(1) Where there is reason to believe that a member of the Regular Constabulary Branch has committed a disciplinary offence other than an offence that may be dealt with under Sub-Division B, the provisions of this section apply.

(2) The member may be charged by the Commissioner or by a commissioned officer authorised by the Commissioner to lay charges under this Subdivision.

(3) On a charge being laid against a member of the Regular Constabulary Branch, he shall:

a. be promptly furnished with a copy of the charge, which shall, if he so desires, be explained to him by the officer-in-charge; and

b. be invited:

(i) to reply promptly, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it,

and if a reply is not given by the member within 14 days after his receipt of the charge he may be deemed to have denied the truth of the charge.

(4) If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the member charged and any further report that he thinks necessary, the Commissioner is of opinion that the charge has been sustained, he may:

(a) fine the member a sum not exceeding K40.00; or

(b) reduce the member’s salary; or

(c) reduce the member to a rank having a lower classification, and to a salary within that classification; or

(d) in addition to or instead of imposing a punishment specified in paragraph (c), transfer the member to other duties or to some other locality; or

(e) in the case of a commissioned officer-impose a penalty referred to in Subsection 45 (i) (a) (b) or (c); or

(f) in the case of a member other than a commissioned officer-impose a penalty referred to in section 45 (i) (a), (b), (d) or (e); or

(g) in the case of a member who is a commissioned officer-recommend to the Minister that the member be dismissed from the Force; or

(h) in the case of a member other than a commissioned officer-dismiss the member from the Force.

(5) The Commissioner shall notify the member of a punishment imposed on him or a recommendation made concerning him under Subsection (4). (my underlining).

It is clear from Section 46 (3) that the Commissioner is only required to serve a copy of the charge and not any report, internal or otherwise, on the member concerned. It is also clear from Section 46 (4) that the Commissioner is given wide discretion to consider any existing report, internal or otherwise, relating to the offence when he is considering whether to charge the member, when considering the reply given by the member and even to call for and consider “any further report” that he thinks is necessary to make an informed decision. In the present case, the Commissioner was not required to serve it’s existing internal report of the First Defendant or any other relevant report on the plaintiff at any time in the disciplinary process.

It is submitted for the plaintiff that even if it was not a statutory requirement to serve the internal report on the plaintiff, it was a requirement of natural justice that such report be served on the plaintiff in order to afford him an opportunity to reply to it. A number of common law cases have been cited in support of this proposition including Kanda v Government of Malaysia [1962] UKPC 2; [1962] AC 322 per Lord Penny at p. 337. It was held by the Supreme Court in Iambakey Okuk v Falsheer [1980] PNGLR 274 at 287 per Kapi J.(as he then was) that “where positive words in a statute do not expressly state or exclude the principles of natural justice the common law will supply this implication to the statute”. I would further expand the scope of this principle to say that where words in a statute do not by necessary implication exclude certain principles of natural justice, the common law can supply those principles by implication to the statute. In the present case, any common law rule of natural justice which might require an internal investigation report or any other internal document to be served on the member is neither expressly stated or excluded. But by necessary implication in Section 46 (3) and (4), such a requirement is excluded. This is imperative from reading these provisions together. Therefore, there is no room for the common law to supply any such principles of common law into the statute.

These principles accords with the purpose of the Police Force Act and in particular, the disciplinary provisions in Section 46. The Police Force is a disciplined force. It is entrusted with the duty of enforcing the law and maintaining peace and order in the community. Therefore, it’s members are expected to conduct themselves in accordance with strict code of conduct. Internal secrecy and confidentiality should be part of it’s discipline mechanism. Internal investigative mechanisms and reports should be confidentiality treated except where it’s publication to a member of the Police Force or the public at large is required by law. These underlying values are reflected in Section 46 (3) and (4) when it excludes the availability of any internal report to the member concerned. What the statute has by necessary implication excluded, the Courts cannot supply it by implication under the common law.

The plaintiff has relied on my decision in Kelly Yawip v Police Commissioner N1370 [1995] to submit that I should imply the common law principles of natural justice into Section 46 (3) and (4). But that case is distinguishable from this case. In that case, Section 46 (5) was completely silent in the giving of reasons for decision. Therefore, the common law supplied it by necessary implication. The common law principles of natural justice as to giving of reasons were so clear and refined and considered fundamental that they had to be implied.

In the present case, there are no clear principles of common law as to serving of internal reports on the policeman concerned. In any case, Section 46 (3) and (4) is worded clearly to exclude the principles of natural justice by necessary implication.

For the foregoing reasons, I would reject grounds (a) of the statement and deny the order sought in paragraph (c) of the OS.

At this point, it is necessary to dispose of the order sought in paragraph (b) of the OS. This order is not supported by any grounds in the statement. But I understand this is to relate to the lengthy time taken by the Second Defendant to serve the charge on the plaintiff and the lengthy time taken to deliberate on the charge. In my view, no denial of natural justice occurred here. Indeed there is no statutory requirement for the Commissioner to promptly hear and determine the charge.

In relation to the weight of the evidence, the reasons given by the Second Defendant for the decision shows that the plaintiff’s explanation was taken into account and weighed carefully. He came to the conclusion that there was strong direct evidence implicating him and rejected his explanation. Such conclusion of fact is something which I should pay deference to. For these reasons, I reject ground (b) of the statement and deny the order sought in paragraph (b) of the OS.

The order sought in paragraph (d) of the OS is based on Section 41 (I) of the Constitution. But it is not supported by any ground in the statement. In any event, it is not appropriate for the Court in a judicial review application to indulge in constitutional questions. This order is also denied.

The other orders sought in the OS are consequential orders. Because I have rejected the principal orders sought, these orders can not be granted.

The final ground in the statement, ground (c) challenges the penalty of dismissal imposed on the plaintiff. The Commissioner viewed the conduct of the plaintiff as serious and unworthy of a member of the Police Force and decided to dismiss him.

Although, I agree with him and Pastor Eli Kamakali that he was a long-time policeman with a clear record and a religious person, his conduct that day showed that he did not deserve to continue to be a member of a discipline force. I would not disturb the penalty imposed by the Commissioner.

In this application, the plaintiff has called evidence from policemen and other witnesses whose statements were not put before the Commissioner by the plaintiff when he replied to the charge. I allowed the plaintiff to call the evidence to see if there was anything fundamentally wrong done by the Commissioner when he deliberated on the matter which would lead me to interfere with his decision. I have found nothing fundamentally wrong in the manner in which he reached his decision on both guilt and penalty even in the absence of these material.

For these reasons, I dismiss the application with costs to the defendant.

Lawyer for the Plaintiff: Peraki Lawyers

Lawyer for the Defendant: Solicitor General