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Kamangip v Orim [1998] PGNC 17; N1695 (26 March 1998)

Unreported National Court Decisions

N1695

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. N0. 462 OF 1996
BETWEEN: PIERSON JOE KAMANGIP
PLAINTIFF
AND: BERNARD ORIM
FIRST DEFENDANT
AND: COMMISSIONER OF POLICE
SECOND DEFENDANT
AND: THE STATE
THIRD DEFENDANT

Waigani

Kapi DCJ
12 March 1998
26 March 1998

JUDICIAL REVIEW – Disciplinary proceedings - Whether Commissioner is required by Police Force Act (Cap 65) to serve statements and reports on policeman. - Whether Commissioner is required by Police Force Act (Cap 65) to invite policeman to make comments before penalty is imposed. - Duty of Commissioner to provide reasons for decision implied by common law.

Counsel

S. Varimo for the Plaintiff

A. Iwais for the Defendants

26 March 1998

KAPI DCJ: This is an application for an order in the nature of certiorari by way of a judicial review pursuant to O 16 of the National Court Rules. Leave for judicial review was granted on 20^th November 1996. This matter has come before me for substantive hearing.

The plaintiff was a constable in the Royal Papua New Guinea Constabulary. On 6^th June 1994, he was charged with a criminal offence of rape. It was alleged that he raped a female while she was held in custody. He was subsequently committed to stand trial in the National Court.

While the criminal charge was still pending, he was charged with a disciplinary offence of improper conduct for raping the female whilst in custody pursuant to s 43 (g) of the Police Force Act (Cap 65). The plaintiff responded in writing and denied the charges. He was found guilty of the disciplinary offence and dismissed from the Police Force effective as from 3^rd June 1995.

He has applied for orders seeking (1) to quash the decision in relation to the conviction of the disciplinary offence (2) to quash the decision on penalty and (3) to reinstate him to his position as a constable. He relies on the following grounds:

(1) That the Firse Deft dan inas in breach of the principles of natural justice, the rule, audi alteram partem in that the Plaintiff was not given a fair opportunity twer tse ag his ase it he was not allowellowed thed the oppo opportunirtunity toty to:

(a) & respond to the prejudiciadicial materials against him, and

(b) &##160;; the adve adverse irse inference, views and reports made against him.

(if usedeliedy the First Defendant in maki making a ng a decisdecision iion in dismissing the Plaintiff from the police Force.

(2) &&#160t tha Firs First Defe Defendant erred in law in finding the Plaintiff guilty of the charge of improper conduct upon no evidor incientence in support of the Charge.

(3) That That the the First Drst Defendant erred in law in not allowing the Plaintiff to comment on the penalty before making a decision.

(4) That the Firsendaned inin the exercise oise of hisf his disc discretion in imposing a penalty of dismissal which is excessively severe in the circumstances in that le no ceratis giv the rs in the Plaintiffntiff̵’s f7;s favouravour.

(5) thatFirs Defendant erred rred in law in not giving his reasons for the decision on both guilty and penalty.

Counsel for the plaintiff has abandoned gro(2) a) on asis they ot valid grounds fods for judr judicialicial revi review. Hew. He has confined his case to grounds (1), (3) and (5).

The first ground is based on the complaint that

“..the plaintiff was not given an opportunity to answer the case against him and put his case in that he was not allowed to:

(1) respond to the prejudiciae materials against him, and

(2) adve se irferences, views aews and reports made against him”

Counsel for the plaintiff submitted that common law principles require that the plaintiff is entitled to be served with statements of witnesses and any report in order to be able to either deny or admit any allegation of fact. He submitted that the plaintiff was not served these documents prior to the decision to convict him and thereby breaching the principles of natural justice. He relied on Selly Farapo v The Commissioner of Police (Unreported judgement of the National Court dated 20^th May 1996, N1431) and Dixon v Commonwealth of Australia 61 ALR 173.

Counsel for the defendants submitted that the law governing the question of whether or not the plaintiff is entitled to be served with the documents in issue is governed by s 46 of the Police Force Act (Cap 65) and by implication this provision excludes the application of the principles of common law. He relied on Dicky Nanan v John Maru and Police Commissioner (Unreported judgement of the National Court dated 10^th February 1997, N1507) and Michael Kapa Wena v Henry Tokam (Unreported judgement of the National Court dated 9^th May 1997, N1570).

In Selly Farapo v The Commissioner of Police (supra) the issue that has now arisen before me did not arise. In that case Akuram J. was considering the sufficiency of the evidence to support the charges. In dealing with this issue he considered the proper grounds for judicial review. In giving meaning to the principle “Judicial review is concerned not with the decision but with the decision making process” enunciated by the Supreme Court in Rose Kekedo v Burns Philip [1988-89] PNGLR 122, he went on to discuss the nature of the decision making process and general principles relating to the observance of principles of natural justice. It is not necessary to refer to all the requirements for the purposes of the present case. He stated the following as one of the requirements:

“(d) ټ Giving to the membemember charged copies of any evidence from witnesses which have been sent to the Police Commissioner but not the member. The reasons being that he would not know what eve is given against him and and as it is all written, copies be given him so he may reply to them with a view to deny or admit them.”

His Honour decided the case on the basis that the charges could not be supported by the evidence. Therefore, I find that his conclusion that statements of witnesses and reports are required to be served on the member is obiter dicta.

Dixon v Commonwealth (supra) supports the proposition, amongst others, that where a statute confers power upon a person to dismiss a person from a position, the rules of natural justice and standards of fairness recognised by common law will be applied unless there is a legislative intent to exclude the rules of natural justice. This is a matter of construction of the relevant legislation in question. The Supreme Court has held this to be the law in this jurisdiction in Iambakey Okuk v Falscheer [1980] PNGLR 274.

The question in the present case is whether the provisions of Police Force Act excludes the common law rules of natural justice. This very issue was considered by Injia J. in Dicky Nanan v John Maru and Police Commissioner (supra). His Honour fully set out section 46 in his judgement and concluded:

“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.”

His Honour made reference to Iambakey Okuk v Falscheer (supra) and continued:

“Í 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 confidentially treated except where it’s publication to a member of the Police Force or the public at larger 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.”

His Honour followed his decision in a subsequent case of Michael Kapa Wena v Henry Tokam (Unreported judgement of the National Court dated 9^th May 1997, N1570).

In Kelly Yawip v Commissioner of Police & The State (Unreported judgement of the National Court, N1370) His Honour Injia J. considered the same point and impliedly concluded that if a member who is charged requests for the evidence or information which forms the basis of the charge, he would be entitled to those documents. This was followed by Doherty J. in Steven Levi v Commissioner of Police & the State (OS 246 of 1996) (Unnumbered judgement of the National Court dated 15^th November 1996). It is not necessary for me to consider this point as in this case there is no evidence that the plaintiff made any request for the evidence or reports which formed the basis of the charge.

I have considered the decision of Injia J. in Dicky Nanan v John Maru & Police Commissioner (supra) and I am in complete agreement with his honour’s conclusions with regard to the construction of s 46 of the Police Force Act. I find that there is no requirement on the Commissioner to serve copies of statements and reports on the member concerned. I would dismiss this ground.

The next ground relied upon is that the first defendant erred in law in not allowing the plaintiff to comment on the penalty before making a decision. For the purposes of this ground, it is not disputed that the plaintiff was not invited to make any comments on penalty before the penalty was imposed.

Counsel for the plaintiff submitted that the plaintiff is entitled to be invited to make any comments relating to the question of penalty before the penalty is imposed. He relied on two decisions of Hinchliffe J., Barnabas Isoro v Commissioner of Police & The State (OS N0. 341 of 1995) (Unnumbered judgement dated 12^th April 1996 handed down in Lae) and Peter Wapuan v The Police Appeal Tribunal (OS 51 (L) of 1993) (Unnumbered judgement dated 13^th May 1996 handed down in Goroka). In these two decisions Hinchliffe J. relied on his earlier decison of Toll v Kibi Kara & Others [1990] PNGLR 71. In latter case Hinchliffe J. was concerned with an appeal to the National Court from a decision of Lawyers Statutory Committee pursuant to s 58 of the Lawyers Act 1996 (as amended). On the question of penalty His Honour concluded:

“I am quite satisfied on the evidence that the Committee did not give Mr Toll an opportunity to address it on penalty. To my mind, that is a denial of natural justice and therefore the Committee has not complied with s 53 (1) of the Lawyers Act 1986 which provides:

‘(1) ; Theittee shallshall deterdetermine its sown procedure when enquiring into complaints of improper conduct, but shall observe the rules of natural justice in carrying out an enquiry.’

The decision in Toll v Kibi Kara (supra) can be distinguished from the present case. That was a case involving different legislation and its provisions, and in particular s 53 (1) expressly adopts the principles of natural justice. With respect I am unable to agree with the conclusion reached by Hinchliffe J. that the principle in Toll v Kibi Kara (supra) is applicable to disciplinary proceedings under the Police Force Act (see Barnabas Isoro v Commissioner of Police & The State (supra) and Peter Wapuan v The Police Appeal Tribunal (supra) ). There is no equivalent of s 53 (1) of the Lawyers Act in the Police Force Act.

The proper approach in determining the issue in the present case is to consider whether as a matter of construction of the Police Force Act, the principles of natural justice may be implied before sentence is imposed. This is the same approach taken by Injia J. in Dicky Nanan v John Maru & Police Commissioner (supra) in relation to whether or not a member is entitled to receive copies of statements or reports which form the basis of the charge. I have already concluded (following Injia J.) that by necessary implication of Police Force Act (s 46), a member charged with a disciplinary offence is not entitled to be served with the evidence, information and reports which form the basis of the charge. It follows from this that there can be no assumption that the principles of natural justice apply.

I have reached the conclusion in construing the whole of s 46 that the legislature intended to regulate the procedure of disciplinary hearings by the provision s of the Act. The provision set out in detail what is to take place. Where the provision excludes what may be regarded as common law principles of natural justice either expressly or otherwise, they will not be implied by the Court. That is the rationale of the decision in Dicky Nanan v John Maru & Police Commissioner (supra) with which I agree. If the legislature intended that a member should be given an opportunity to make any comment before penalty is imposed, it would have provided that the member should be invited to make any comments before penalty is imposed in the same way he is given an opportunity to make a reply or give an explanation under s 46 (3) (b). The provision goes on in s 46 (5) to simply require that member be notified of the penalty that is imposed. There is no provision for the member to respond before penalty is imposed. I find that by necessary implication s 46 excludes any such right in the member to make any comments before penalty is imposed.

I appreciate that a response by the member before penalty is imposed would be useful when considering the appropriate penalty but I find that the legislature did not intend this right to be afforded to the member. I would dismiss this ground.

The last ground relied upon is that no reasons for decision for the conviction and penalty were given. It is not disputed that when the plaintiff was served with notice of penalty pursuant to s 46 (5) of the Police Force Act, no reasons for conviction or penalty were given.

Reliance is placed upon the case of Kelly Yawip v Commissioner of Police & The State (Unreported judgement of the National Court dated 14^th September 1995, N1370) to support this ground. In that case notice of penalty was given without any reasons for decision and no such reasons were provided up to the time of the hearing of application for judicial review. The Court held that s 46 was silent on the issue of giving reasons for decision and concluded that the Commissioner has a duty under common law to give reasons for decision on the aspect of both guilt and penalty. In addition the Court found that such a requirement is implied by the terms of s 46 (5) of the Police Force Act.

In a subsequent case, Michael Kapa Wena v Henry Tokam (supra) Injia J. considered the same issue. He was referred to his earlier decision in Kelly Yawip v Commissioner of Police (supra). He distinguished his earlier decision in the following terms:

“...the Applicant relies on my decision in Kelly Yawip v Commissioner of Police N1370 (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 Appellant all the necessary internal reports, recommendations, and reasons for the decision. 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.”

In the present case all the documents relating to the charge and the reasons for decision have been produced in Court through the affidavit of Nelson Karmi sworn on the 6^th March 1998. These documents were in existence at the time of notice of penalty. If the plaintiff had requested for them, he would have been supplied with the relevant documents. They have now been supplied and he now knows the reasons for decision. This ground cannot succeed and I would dismiss it.

In addition to the reasons I have given above, there is another reason why I would not exercise my discretion to grant the relief sought in this case. The notice of penalty was served on the plaintiff on 9^th June 1995. It took some sixteen months before the application for leave for judicial review was filed. Since the dismissal the administration of the Police Force has moved on. Even if I find a valid ground for review, I would not exercise my discretion in favour of granting it (O 16 r 4 of the National Court Rules).

I dismiss the application with costs to the defendants.

Lawyer for the Plaintiff: Z. S. Varimo

Lawyer for the Defendants: Solicitor-General