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Paliau v Commissioner for Police [1999] PGNC 1; N1841 (25 January 1999)

Unreported National Court Decisions

N1841

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 580 OF 1999
BETWEEN: SAPTAN PALIAU
PLAINTIFF
AND: COMMISSIONER FOR POLICE
FIRST DEFENDANT
AND: INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT

Lae

Vagi AJ
18 January 1999
25 January 1999

Cases Cited

Toll –vs- Kibi Kara [1990] PNGLR 71

Counsel

Mr P. Ousi, for the Plaintiff

No appearance by counsel for defendants

25 January 1999

VAGI AJ: By way of an originating summons filed on 25^th November 1998 the plaintiff sought leave of the Court for a judicial review relating to an order of the first defendant served on him on 17^th August 1998. The first defendant ordered that the plaintiff be dismissed from the Police Force. The plaintiff also sought, in the nature of certiorari, an order bring the decision of the firs defendant before the court to be quashed and sought a further order that he be re-instated to his previous position as Senior Constable with salary, wages and entitlement backdated to the date of his dismissal.

Leave for judicial review was granted by the Court on 20^th January 1999. AT this review the defendants have not been represented by counsel.

The decision of the first defendant arose out of a disciplinary charge against the plaintiff for that on an unspecified date in early 1997, he fired a shot from a police issue revolver from his house at Bumbu Police Barracks area, an occupied land without a lawful excuse. This is a serious disciplinary offence under s 43 (g) of the Police Force Act (The Act). Subsequently he was demanded to provide a written explanation on the incident. In response he provided a written explanation to the extent that in early 1997, after signing off from duty, he went home to the barracks when his wife picked an argument over some domestic matter. By then he was unloading firearm from the police vehicle into his house when in the process one of the revolver that was in his jacket pocket went off while removing it. This statement was confirmed by the statement of his wife Mrs Susie Paliau. She also stated that the revolver went off while the plaintiff was removing it from his pocket. There was no intent on her husband’s part to harm her or anyone else. According to her it was an accident.

This incident was reported to the Internal Investigation Unit. Consequently the plaintiff was transferred from the Task Force Unit to the Serious Crimes Squad. The transfer was done on a collective decision of both the Task Force Unit Commander and the Commander of the Criminal Investigation Division (CID).

All the reports on the incidents were forwarded to the Metropolitan Superintendent who then forwarded them to the Assistant Police Commissioner for Coastal and Boarder. The Assistant Police Commissioner then forwarded the same reports to the Director of Internal Affairs at the Police Headquarters Konedobu, with the recommendation that the matter should not be further dealt with as he found that the transfer of the plaintiff from one unit to another was a sufficient punishment.

Mr Ousi of counsel for the plaintiff argues that no formal charge was laid against the plaintiff as a requirement under s 46 (3) of the Act. Therefore there was no formal reply to the charge before the decision of his dismissal was made.

Section 46 (3) is in these terms:

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

(a) & be promptly furnished witd with a copyhe ch whicll, iso de be explained to hito him by m by the Othe Officefficer-in-r-in-charge and,

(b) be invited &#821> <;>16060 #160;&#160  to reromptly, stating whet whether he admits or denies the truth of the charge; and

(ii)҈&ـ to any natiot he desires to give in e in regarregard to it.

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

The first defendant had only been provided with the reports of the plaintiff’s superior officers as well as the statement by him and his wife on the incident before he made the order for dismissal. I find this to be an error of procedure under s 43 (g) of the Act and amounted to denial of natural justice. This Court in Toll v Kibi Kara [1990] PNGLR 71, per Hinchliffe J at 75 said:

“I am not satisfied on the evidence that the Committee did not give Mr Toll an opportunity to address it on penalty. To my mind that is denial of nature justice and therefore the Committee has not complied with s 53 (1) of the Lawyers Act 1996”

Section 46 (3) of the Police Force Act is very similar to s 53 (1) of the Lawyers Act, in so far as the procedures to be followed are concern. Mr Toll appealed against the decision of the Lawyers Statutory Committee for an improper conduct pursuant to s. 58 of the Lawyers Act. However, there are slight variations between the two Acts. The “improper conduct” spoken about in Toll’s case is “a conduct by a lawyer in pursuit of his profession that would be occasionally regarded as disgraceful or dishonourable by his fellow lawyers of good repute and competency, and dishonesty is not an element. In the case of a member of the Regular Constabulary Branch, the member is guilty of disgraceful and improper conduct “in his official capacity or otherwise” does cover the situation where the guilty member is still a member outside of his line of duty. So whether he commits the offence while on duty or not, he is still a member or as long as he is a member.

Discharging a firearm in an occupied land is a criminal offence under the Firearms Act. I think the Police would have done well had they considered charging the plaintiff with an offence under the Firearms Act. It would have been his right to defend himself in the District Court, given that he had made his position clean to his superior officers.

A finding of guilt had been made after adjudicating only on the recommendations of the Metropolitan Superintendent in Lae. His recommendations were taken into account when arriving at the decision. The reasons for the decision were as follows:

“Carelendling of fire firearms is now prevalent in the Constabulary. You failed to take precautionary measures when in possession of the said firearm and failed to adhere to the firearm safety proced Your action are regarded aded as very serious and dangerous to the lives of others. Fortunately no one was killed or injured by your actions. You were drunk at the time. The lives of the police community in the Barracks were threatened by your actions. Your actions were disgraceful and brought discredit to the Constabulary. A submission on penalty was received at the Police Headquarters. This submission was taken into account when making the decision as to penalty. Reasons for the imposition of the penalty are as follows:

the Metropolitan Superintendent recommended penalty of dismissal. I concur with the penalty of dismissal. Your behaviour and conduct was very disgraceful and improfessional. What you did had created a very bad image of the Constabulary. You were previously warned on 21/11/95 that should you re-offend a penalty of dismissal will be considered. The penalty of dismissal is consistent with past penalty imposed on similar matters.........”

It appears from the reasons there was no consideration of the plaintiff’s own statement of how the shot went off. It does indicate that there was no formal charge under s. 46 (3) of the Act which would have compelled the plaintiff to give his reply promptly as required under s. 46 (3) (b) (i) & (ii).

The penalty of dismissal is a recommendation of the Metropolitan Superintendent which I find is outside of the provisions of s. 46 and were also in conflict with the recommendation of two Senior Officers. The Commander of the Task Force Unit, Mr Guiness’ letter dated 8^th January 1998 stated that “transfer” from the Task Force Unit to the Serious Crimes Squad be taken as sufficient punishment. That recommendation was based on the plaintiff’s job performance that he is diligent, enthusiastic and conscious worker. He is committed dedicated and has preparedness to work. Mr Guiness also spoke of a grudge between the plaintiff and Sergeant Gumbaia who had initially reported the incident to the Internal Investigation Unit, and who himself is not a witness to the incident. Similarly the Assistant Police Commissioner for Coastal and Boarder Mr Kulunga recommended that transfer was sufficient punishment and that the matter should not be taken further.

The plaintiff had no other avenues left to pursue other than to seek a judicial review. In the past he would have appealed to the Police Appeal Tribunal but those appeal provisions in s 47 to 54 in subdivision iv. 7D of the Act have been repealed by s 4 of the Police Force (Amendment) Act 1993.

As to the question of whether the plaintiff has been fairly dealt with according to law, I find from the evidence of the plaintiff he is not. All the recommendations and the reports of his superiors are all in his favour. It is almost two years since the alleged offence was committed before his dismissal. This is one case in which I find denial of natural justice. I do not think any useful purpose would be served to send this matter back to be dealt with according to law.

The penalty of dismissal is a tall order given that the plaintiff has being a member of the Police Force since 1984. For the past four years he was attached to the Task Force Unit. It takes many years for a member to be “toughen” up before he becomes a member in the Task Force. This is the unit which deals with serious law and order problems both in the urban and rural areas. I find the plaintiff is an asset than a liability. I quash the order of the first defendant. In its place I re-instate the plaintiff to his previous position as the Senior Constable with wages and entitled backdated to the date of his dismissal. The second defendant to meet the costs of the proceedings.

Lawyer for the plaintiff: Warner Shand Lawyers.