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Mauglo v Police Commissioner and The State [1998] PGNC 36; N1728 (26 May 1998)

Unreported National Court Decisions

N1728

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 118 OF 1997
BETWEEN: GEREGL MAUGLO
PLAINTIFF
AND: THE POLICE
COMMISSIONER
DEFENDANT
AND: THE STATE
SECOND DEFENDANT

Waigani

Sevua J
26 March 1998
26 May 1998

ADMINISTRATIVE LAW – Judicial Review – Disciplinary proceedings – Natural justice – Not served with charge – Not given opportunity to be heard – Penalty – Double punishment – Whether harsh and oppressive – Whether substantial miscarriage of justice – Police Force Act Ch 65, s. 46.

Cases Cited

Dicky Nanan -v- John Maru & Police Commissioner, N1507, 10th February, 1997 (Injia, J)

Rose Kekedo -v- Burns Philp [1988-89] PNGLR 122

Pierson Joe Kamangip -v- Bernard Orim & Commissioner for Police & State, N1695, 26th March, 1998 (Kapi, DCJ)

Counsel

Mr F Alua for Plaintiff

Mr L Keria for Defendant

26 May 1998

SEVUA J: This is an application for judicial review, leave having been granted on 21^st April, 1997.

The plaintiff was a constable in the Royal Papua New Guinea Constabulary in Lae. He was transferred to Sialum then back to Lae. In December, 1989, he was dismissed from the Police Force.

The plaintiff says that whilst he was based at Sialum, his salary ceased on 22^nd September, 1989 without any reasons. On 28^th September, 1989, he was recalled to Lae, following inquiries about cessation of his salary. In Lae, he worked for five fortnights without pay. On 6^th November, 1989, the Provincial Police Commander sent a telex to Police Headquarters at Konedobu requesting that the plaintiff’s salary be reinstated. No response was received until early December, 1989, when the Provincial Police Commander verbally advised him (plaintiff) of his dismissal from the force.

The plaintiff’s complaint is that he was not served with any charge; he was not given an opportunity to be heard; he was punished twice before dismissal, and finally, his dismissal was harsh and oppressive. Therefore, a substantial miscarriage of justice has occurred.

On the outset, let me say that the plaintiff’s evidence is quite contrary to the defendants’ evidence. The affidavit of Inspector Isaac Karmi, the Officer In-Charge of Discipline Section at Police Headquarters, sworn on 18^th March, 1998, completely contradicted all that the plaintiff has alleged. From this affidavit, the Court is in a much better position to ascertain the facts prior to the dismissal of the plaintiff.

On 6^th February, 1989, the plaintiff was charged under s.46(g) of the Police Force Act Ch. 65, with the offence of disgraceful conduct for threatening a member of the public, namely, Gabriel Dang, whilst under the influence of liquor. On 3^rd April, 1989, the plaintiff was served with the charge by Inspector M. Tek at Law Police Station. In annexure “J”, which is the charge and proof of service, the plaintiff said he understood the charge, but denied it. He said he would make a statement later, which he did, on 5^th April, 1989, (annex “L”).

On 3^rd November, 1989, the first defendant dismissed the plaintiff from the force. On 8^th November, 1989 the first defendant dismissed the plaintiff from the force. On 8^th November, 1989, the notice of penalty was served on the plaintiff at Law Police Station, at 11.30 am, by Chief Inspector Giosi Labi. The plaintiff, in endorsing the proof of service of the notice of penalty, stated he would appeal against the decision.

In considering this matter, I accept the evidence of Inspector Isaac Karmi.

I will not hesitate to say that as far as the first defendant was concerned, the procedures under s.46 of the Police Force Act were correctly followed. The plaintiff was served with a disciplinary charge. He was given an opportunity to defend himself. He responded to the charge. Following consideration of the evidence including the plaintiff’s statement, the first defendant decided to dismiss the plaintiff. As far as the law is concerned, the Commissioner had the power of dismissal under s.46(g) of the Act. It was within his power to dismiss the plaintiff, and I can see no procedural error in this case.

The natural justice argument that the plaintiff was not given the opportunity to defend himself, does not apply here. The plaintiff was given that opportunity, and he did prepare and respond to the disciplinary charge laid against him.

In relation to the argument on penalty, let me say at this juncture that, there is no evidence that the plaintiff was punished twice prior to dismissal. The only credible evidence is that the plaintiff was dismissed on 3^rd November, 1989. There is no record of any other penalty under s.46 of the Act.

I think the plaintiff’s argument under s.41 Constitution that the penalty was harsh and oppressive stemmed from a misconceived view that the first defendant should have imposed a penalty other than dismissal. This argument is without any legal or constitutional basis. In my view, you cannot say dismissal is harsh and oppressive, when a law prescribes dismissal as a penalty amongst other penalties.

In any event, the plaintiff has been disciplined twice and his priors are stated in a report compiled by Senior Sergeant T. Aaron. He was charged with wilful disobedience of a lawful order, a minor disciplinary offence, and confined for 7 days on 10^th June, 1985. On 28^th September, 1989, he was fined K40.00 for negligence, a serious disciplinary offence. The plaintiff therefore dos not have a good discipline record, and in my view, the first defendant was justified in his decision for dismissal. The plaintiff is a member of a disciplined force to conduct themselves in a disciplined manner as expected of any disciplined force. I agree and adopt what His Honour, Injia, J said in Dicky Nanan -v- John Maru and Police Commissioner, N1507, 10^th February, 1997, p12 “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.

The plaintiff was drunk and disorderly. He threatened to smash the windscreen of Dang’s vehicle. This is the type of conduct which the community did not expect from the plaintiff. It is this type of conduct that the community at large does not expect from members of the Police Force.

Surely the Commissioner of Police Force does not need undisciplined policemen, like the plaintiff in the force. The community would not want to see policemen who get drunk and threaten members of the community. That conduct is unbecoming of policemen or members of the disciplined force. The Commissioner had the power to dismiss the plaintiff and he exercised that power on the basis of the facts before him, therefore, I cannot find any error of fact or law in the Commissioner’s exercise of discretion.

There is a misconception by lawyers and their policemen clients, in relation to police dismissal cases, that they can come to the National Court to seek review on the question of severity of penalty. This is wrong. Judicial review is not concerned with the decision, but with the process of decision making, ie, the procedures in the decision making process. See Rose Kekedo -v- Burns Philp [1988-89] PNGLR 122.

The National Court has, in the past, readily granted leave for judicial review in police dismissal cases, even though some cases have no merits at all. The present case is one which has no merits, and leave should not have been granted in the first place. For myself, I have come to a stage where, I will be strict in leave application. If the substantive judicial review application has no merits, it should be dismissed at the leave application stage. The Court must protect its process from abuse.

It is helpful, and I suggest that lawyers involved in police dismissal cases familiarise themselves with the decisions in Dicky Nanan -v- John Maru & Police Commissioner, N1507, 10^th February, 1997 and Pierson Joe Kamangip -v- Bernard Orim and Commissioner of Police and The State, N1695, 26^th March, 1998.

Finally, the plaintiff was dismissed on 3^rd November, 1989. Proceedings for judicial review commenced in the National Court on 24^th March, 1997, more than seven years and six months after dismissal. As alluded to, I cannot see how and why he was granted leave in the first place. In any case, even if there is a valid ground for review under Order 16 Rule 4 of the National Court Rules, I would refuse to exercise my discretion in favour of the plaintiff.

For these reasons, the plaintiff’s application for judicial review is dismissed. I order that he pays the defendants’ costs of these proceedings, to be taxed, if not agreed upon.

Lawyer for Plaintiff: Narokobi Lawyers

Lawyer for Defendant: Acting Solicitor General