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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 nece saryicmplon,ti. 46S. 46 (3) & (4) of the Police Force Act (Ch No 65) precludes the Commissioner from serving internal police investigation reporthe maon thicemacerneany sof the dihe disciplsciplinaryinary proc process.

2. Waere tusta the,Poli e Fore Force Act (Ch No 65), clearly, by necessary implication, precluded the Police Commissioner from serving the internal police invetion t on atterhe poan afd, the cohe common mmon law plaw princirinciples ples of naof 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 ispplication for judi judicial review by the plaintiff, a former policeman, of a decision by the second defendant to dismiss him from the Police Force for discipl reasons. The first defendant we Pole Police Officer icer immediately responsible for disciplinary matters in the Police Force at the time of the plaintiff’s dismissal. The plaintiff wsmissed on d on 29th September, 1995. Leave to Review the said iecision was granted on 12th April, 1996.

The statement of facts in support of the application for leave should exhaely st the orders soug sought and the grounds for judicial review: Order 16 Rule 6 (1), Nationalional Court Rules. The principal ordought aret are:

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

(b) ҈ Furtherrther 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 officipacit madereach oach of the rules of natural justice and asnd as a co a consequence is void and of no effect.

(c) ـ Furthernor in the fthe further alternative, the plaintiff’s dismissal from the Force by Notice of Penalty for Serious Dlinarence d on the Plaintiff on 09th October, 1995 dismissing the Plaintiff from from the Fthe Force orce 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 Defenwhich findifindings themselves were made in breach of the rules of natural justice and or under suspicious circumstances.

(d) A declanatiot tha dehesionision 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 requiremend ciranceshe particular casr case ande and by v by virtue of Section 41(I) of the National Constitution is an unlawful act.

(e) &&#160ecladationation that that the Plaintiff is and remains a member of the Police Force and holds the rank of Senior Constable.

(f0;҈ An order that the Plainti f be paid all his entitlemenlements frts from thom the date of this dismissal.

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

(a) The said fin ongslle ad imed improper conduct in the conduct of his official capacity and the recommendations of the Plaintiffs dismissal from the Force containedhe sarst Dant&#s Repas made in breach oach of thef the rule rules of s of naturnatural 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 even if it was found that the Plaintiff was given an opportunity and that the Plaintiff responded to thrges,Firstndantnot give the Plaintiff an opportunity to respond to the allegallegationations pris prior toor to publishing his Report.

(c) The findings of thetFirsenDefendant 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) ـ The Secend Defendanendant failed to properly exercise his discretion in considering that appropriate penalty for the alleged ces uSecti (4) of the Police Force Act was a dismissal when the weight of the evie evidencedence did did not support the making of such a decision.

At the hearing, oral and documentary evidence was provided by both parties. Taintiff called evidence bnce 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 prof 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 s and groundrounds 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 remains0; The order sought in para 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. Thontested evidence is thas that, the plaintiff was a Senior Constable based at Mulitaka Police Station. On 29th July 1a Polarty Waom Wabag ibag including the plaintiff and other policemen visited Payam village at P at Pogera and a raid took place. Thd wasied out as a resultesult of a policeman who was allegedly shot dead by warring clansmeansmen the previous day. There was wread uction of n of properties. One as shot dead by policeolice in the raid. Th0; The plaintiff admhat that he was presenthe scene of the raid but did not actually take part in the raid. Insteademainedained all thll the time in the police vehicle in whi went. As a result of the raid, due to public outcry tcry over the raid, Police Headquarters arranged for an internal investigateam headed by the First Dest 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&#82teas team later collected the names of policemen implicated and arranged a meeting with them at Wabag. Each policemen implicate swas spoken to by the Firsendant and his team and allegations put to them and their reir responses recorded.

All these events took place in 1993. the tigation was completeplete, on 19th November 1993, the, the First Defendant compiled an internal report for the Second Defendanthis Deputy Commissioner. The plff was implicated ined in the report in paragraph 6.77 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 evi agaihe plaintiff wiff was provided by Kiar Pulapia himself and Senior Constable Michael Weel Wena. laintiff’s explan toan to the First Defendant at Wabag was also taken into account in the report. It was twas this reporth wich was used by the Secofendant and his subordinates to lay disciplinary charges ages against those implicated in the report including the plaintiff.

th January 1994, the plaintiff was charged with serious diss 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”. Targe however did not spec specifically mention any house belonging to Kiar Pulapia. It appears charge paper waer was servethe plaintiff on 19th May, 1994 at Pogera Police Station. On the sam he replied lied lied to the charge by fax. He deniedcharge and detailetailed reasons. On or a29th Seth Septemberember 1995, the First Defendant issued Notice of Dismissal effectivh Sepr 1995. Thi; This notice was served on the plaintiff on 09th October 1995 at Wabag Poag 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 set the discidisciplinary procedure for dealing with policemen charged with serious disciplinary offences. Section 46 provides:S.4p>S.46 &#160ling with us Offences

(1) t&##160; Wh0; Where thre there is reason to believe that a member e ar Coularych hach has committed a disciplinary offencefence other than an offence that may be debe dealt walt with under Sub-Division B, the provisions of thition apply.

(2) ҈& The mehe mehe memb 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 agid against a member of the Regular Constabulary Branch, he shall:

a. ټ&##160; b60; be prom promptly furnished w copyhe ch whicll, if he so desires, be expl explainedained to h to him byim by the officer-in-charge; and

b. ټ &#be in:e in:

(i)&#160  &#160repl promptly, statintating whether he admits or denies the truth of the ch and

(ii0; to any any explanation thon that he desires to give iive in regn regard to it,

and if a reply is not given by the member wi14 dater hceipthe charge he may be deemed to have denied the truth of the chhe charge.arge.

(4

(4) If, after considering reprrts relating to the offence and charge, the reply and explanation (if any) of the member charged and any fu repoat heks nery, tmmissioner is of opinion that the charge has been seen sustaiustained, ned, he mahe may:

(a) &#160e thn member a sum notm not exceeding K40.00; or

(b) & reduce the member’s217;s salary; or(c)&ـ҈ reduce the member to a rank having a lower classificatiocation, ann, and to d to a sala salary within that classification; or

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

(f) in the oase me a r obeer ther than a commned or-imp penalty referrederred to i to in secn section 45 (i) (a), (b), (d) or (e); or

(g) ҈& in the the case oase of a memberis a ssionficer-recommend tend to theo the Mini Minister that the member be dismissed from the Force; or

(h) ټ&#in the the of&#1 f&#1 member other thar than a cn a commissioned officer-dismiss the member from the Force.

(5) &##160;; The Csie Csionell nell notify the member of a punishment imposed on h on him orim or a recommendation made concerning him under Subsection (4). (myrlini/p>

It is submisubmitted 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. I held by the Supreme Cour Court in Iambakey Okuk v Falsheer0] PNGLR 274 at 287 per Kapr Kapi J.(as he then was) that “where positive words in a statute do not expressly state or exclude rinciples of natural justicustice 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 natuustice, the common law can supply those principles by implication to the statute. In ; In the pt case, any cany common law rule of natural justice which might require an internal investigation report or any other internal document to be served on the memb neither expressly stated or excluded. But by necessacessary imtiication 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 suany such principles of comm common law into the statute.

These principles accords with the purpose of the Police Force Act and in pular, the disciplinary provisions in Section 46. The The Policce is a disc disciplined force. It is entrusted with the duty of enforcing the law and maintaining peace and order in the community. Therefore, it’s memaers are expected to ct thees in accordance ance with strict code of conduct. Internal secrecy onfidentidentialitiality should be part of it’s disci mechanism. Internal investigative mishanisms and repd reports should be confidentiality treated except where it’s public to a member of the Police lice Force or the public at large is required by law. These underlying vaare refe reflected in Section 46 (3) and (4) when it excludes the availability of any internal report to the member concerned. the statute has by necy imcy implication excluded, the Courts cannot supply it by impl implication under the common law.

The plaintiff has relied on my don in Kelly Yawip v Police Commissioner N1370 [1995] to subo 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 casction 46 (5) wa5) was completely silent in the giving of reasons for decision. Therefore, the c law supplsupplied it by necessary implication. ommonprinciplesatf naturaltural justice as to giving of reasons sons were so clear and refined and considered fundamental that they had tomplie>

In the presepresent case, there are no clear principles of common law as to serving ofng of internal reports on the policeman concerned. In any case, Sect6 (3) and) 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 upported by d by any grounds in the statement. But I understand is to relo relate to the lengthy time taken by the Second dant to serve the charge on the plaintiff and the lengthy time taken to deliberate on the cthe charge. In my view, no denial ofral justice occurred here.&ere. Indeere is no statutory rery requirement for the Commissioner to promptly hear and determine thrge.

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

Ther soin paragraph (d) (d) of the OS is based on Section 41 (I) of the Constitution. But iBut it is upported byed by any ground in the statement. In any event, it t approprpropriate for the Court in a judicial review application to indulge in constitutiouestions. This order is also denied.

The otherother orders sought in the OS are consequential orders. Because I have rejecte prie principal orders sought, these orders can not be granted.

The final ground in the statement, ground (c) challenges enalty of dismissal imposed on the plaintiff. The Commissioner d the cone conduct of t 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 wlong-time policeman with a th 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 enaltynalty 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 e plaintiff when he repliedplied to the charge. I allowed the piff to call 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 fing 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