Kamo v Police [2001] PGNC 131; N2084 (12 April 2001)

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JUDICIAL REVIEW – Disciplinary proceedings – Policeman – Four Disciplinary Charges – Opportunity given to reply on issue of conviction only - Found guilty – Penalty – Dismissal – Separate opportunity to address on penalty not given to policeman before penalty imposed - – Requirement of natural justice to give such opportunity – Punishment quashed –Matter referred to Commissioner for re-hearing on penalty – Police Force Act 1996, S.46; Constitution, S.59.

Cases cited:
Sudi Yaku v. Commissioner of Police [1980] PNGLR 27.
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
Kelly Yawip v. The Police Commissioner [1995] PNGLR 93
Michael Kapa Wena v. Henry Tokam & Police Commissioner N1370 (1997)
Dicky Nanan v. John Manu & Police Commissioner N1507 (1997)
Pierson Joe Kamagip v. Commissioner of Police N1695 (1998)
Tiga Nalu v. Police Commissioner N1927 (1999).
Agaria Bani v. Commissioner of Police N1853 (1999).
Pierson Joe Kamagip v. Police Commissioner N1853 (1999)

INJIA, J.: This is an application for judicial review, pursuant to Order 16 of the National Court Rules of a decision of the First Respondent ("The Commissioner") made on 10/12/99, to dismiss the applicant from the police force for disciplinary reasons. The decision was made after the Commissioner found him guilty on 4 misconduct charges. Leave to apply for judicial review was granted by this Court on 18/2/2000.

The facts which are not in dispute were that the applicant was before his dismissal, a police first constable based at Lae. On 29/7/98, at 5.30a.m. or thereabouts, he drove police vehicle Reg. No. ZGY350 to Nadzab airport to drop off two policemen. On his return, he overtook a truck but the truck did not give him enough space for him to overtake until they reached a "roadblock". The police vehicle then collided with another on-coming vehicle. The accident was investigated by police which led to the arrest of the applicant. He was charged under the Motor Traffic Act with driving the said vehicle without due care and attention and prosecuted before the District Court at Lae. He pleaded guilty to the charge and the Court fined him K80.00 in default 2 months imprisonment. He paid the fine. The District Court also "recommended under section 57 of the Police Force (I.A.) Act 1973 as revised that the said member be.... (1) reduced in salary by K30.00 for 26 fortnights under the Police Force Act."

Between 22/9/98 – 11/2/99, the applicant was charged with 4 counts of misconduct. Two of these charges related to the accident of 29/7/98. The other two charges related to absence from duty without authorized leave ("AWOL"). These charges are as follows:-

On 31/12/98, the applicant was charged with the following serious disciplinary charge:

On 11/2/99, the applicant was charged with the following serious disciplinary offence:

The four charges were duly served on the applicant at different times. And he was given 14 days to reply to each charge. The applicant replied to those changes at different times. The Commissioner determined the 4 charges together, found each charge sustained and imposed a penalty of dismissal in respect of each charge. On 10/12/99, the applicant was notified in writing of this decision. The notification contained full reasons for the decision, both on the issue of conviction and penalty.

The grounds of review as set out in Statement in Support for leave filed pursuant to Order 16 r3(1)(a) are as follows:

1.	The First defendant through his delegated officer Mr. Anthony Wagambie erred in law by not suspending the Plaintiff from duty before, at the time or after the charges were laid as Statutory requirements under the Section 53(2) of the Police Force Act Chapter 65 and also Section 68(3) of the Public Service Act Chapter 67.

2.	On the First charge of Drive Without Due Care and Attention, the plaintiff was already being arrested and brought before the open court where he was found guilty and fined K80.00, and further ordered to reduce his fortnight salaries by K30.00 for 26 fortnights. Therefore, the Police Commissioner erred in law under the section 16 of the PNG Criminal Code Act Chapter 262 when he imposed another penalty or punishment on the same matter.

3.	On the 2nd charge of Misused of Motor Vehicle, a Toyota Landcruiser, Reg. No. ZGY 350. The Plaintiff was authorized by his immediate boss, Inspector KU KALOPE to use the said vehicle at his own discretion depending on the *situation. Refer the* same report on the affidavit sworn and filed by the said Inspector on the annexure "J" of the plaintiff’s affidavit. The said M/vehicle was used by the plaintiff which was inline with the Commander Mobile Squad 13’s directive where he was to take care of the entire Mobile Squad’s families whilst their husbands were away in Aitape Tidal Wave Operation. In other words the use of the said vehicle to drop off Policeman’s child at Nadzab Airport was one of his task duties and as such the use was an official.
	*Therefore, the Police Commissioner through his delegated officer Mr. Anthony Wagambie erred in law under the Section 25(2) of the Motor Traffic Act Chapter 243 when he served the charge of Misuse.*
4.	The 3rd and 4th charges were all same charges of AWOL or absent Without Authorized Leave. The Plaintiff’s explanation on these charges are self explanatory. The first part of the days of AWOL was authorized Days off in lieu of Overtime hours worked. Refer to the Plaintiff’s letter to request days off in annexure "E" and his Commander’s Affidavit on annexure "J" of the plaintiff’s affidavit.

5.	*On the 23rd October to December, 1998 the plaintiff was back at work. Refer to his SGT Inkung’s Statement on Annexure "F" and the plaintiff’s explanation on the annexure "H" of his affidavit.*

6.	Early January 1999 the plaintiff went to Kimbe after seeking permission from his commander and officially performing duties there with the approval from the Police Station Commander, Inspector Thomas REU on permanent basis as the plaintiff was on approved transfer to Kimbe General Duties on cross-transfer basis with Constable Morgen where the Police Station Commander was aware of it. Refer to Police Station Commander at that time Inspector Thomas Reu’s letter on Annexure "K" and also refer to the approval minutes from the plaintiff’s Boss, Inspector Ku KALOPEI and Director S.S.D on Annexures "A1 & A2" of the plaintiff’s affidavit.

7.	In the circumstances the Police Commissioner through his delegated officer Mr. Anthony Wagambie Erred in serving those two charges on AWOL without first obtaining the full report as to why the plaintiff was absent from duty.
8.	The Police Commissioner’s decision making authority erred in not investigating those charges properly before recommending the plaintiff’s dismissal from the Police Force as the Termination could be disastrous for the plaintiff and his defendants.
9.	*The Police Commissioner erred in law by not addressing the plaintiff on the penalty before dismissing him from the Police Force.*

In support of the application, the applicant has filed his own affidavit sworn on 10th

January 2000. The respondent has filed an affidavit of Senior Inspector John R. Waira sworn 2/5/2000. He is the Officer-In-Charge of the Police Discipline Section at Police Headquarters at Konedobu. Both parties have filed written submissions as previously directed.

The nature and scope of judicial review is settled. It is available where the disciplinary authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses it powers. The purpose of review is not to examine the reasoning of the subordinate authority with a view to substituting "its own opinion. Judicial review is concerned not with the decision but the decision making process": Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Judicial review is a restrictive process and the grant of prerogative writ of certiorari is discretionary. "It is not an open forum for disgruntled applicants and/or their lawyers to stage an all-out attack on every conceivable error extracted from a post-mortem examination of the disciplinary records kept by the disciplinary authority": Tiga Nalu v. Police Commissioner N1927 (1999). The Judicial review relief of certiorari which the applicant seeks is ordinarily available to scrutinizing the exercise of administrative discretion as evident on the face of the record. It is not an open forum for aggrieved applicants to raise any conceivable argument conceived ex post facto, which were not raised before the administrative authority and which did not form any basis of the decision of the administrative authority.

The first ground of review is obviously without merit. This point was not raised by the applicant when he submitted his reply to the charges and no decision was made on this point by the Commissioner. In any event, I do not see how the applicant can be aggrieved by the decision not to suspend him whilst the charges were pending determination.

The second ground of review relates to the first charge. In my view it is also without merit. A criminal conviction by a Court of law is not a bar to disciplinary punishment for the same wrong: Sudi Yaku v. Commissioner of Police [1980] PNGLR 27. For this reason, I confirm the conviction on the first charge. As to the punishment of dismissal on this charge, I will come to it later in my judgment.

The third ground has merit. This ground relates to the second charge. The applicant denied the charge in his reply and stated that he was authorized by his superior Insp. Kalopei to drop off two families at the airport. Chief Superintendent A. Wagambie in his report to the Police Headquarters dated 3/4/99 (Annexure "L" to Waira’s affidavit) recommended that a "Not Guilty verdict" be returned on this charge "due to lack of evidence on unauthorized use of vehicle; it is proposed that the member be only adjudicated on Due Care and Attention Charge only". The reasons given by the Commissioner for finding him guilty is that "despite your denial the evidence is intact and conclusive to substantiate the charges and secure disciplinary conviction". A brief prepared for the Commissioner by Insp. Waira dated 28/10/99 which recommended a conviction on this charge gives the following findings:

"Incidences of misuse of police vehicle resulting in involvement in accident and leading to disciplinary actions are now prevalent in the Constabulary and the member’s actions are one of the many cases.

The member’s actions not to make sure to take proper care and control over the State property is unacceptable and reflects ill-disciplined personality and show no pride on self respect as being a Senior Non Commissioned Officer.

The member’s actions are viewed as total misused and joyride, frequently members pretend and misused police vehicles under the cover of performing official police duties and failing to obtain permission for usage of police vehicle for personal purposes.

The Constabulary cannot and will not condone such irresponsible actions by a member whose behaviours and actions defeated the very purpose of the Constabulary’s existence.".

Mr. Ousi for the applicant submits that Supt. Wagambie’s recommendation was for a charge on misuse of car and not for unauthorized use of car, for which he was charged. Mr. Bonnie submits the charge of an unauthorized use was open on the evidence.

I accept Mr. Ousi’s submissions. Inspector Waira’s findings which formed the basis for the conviction on this charge was clearly one of misuse of vehicle. Those findings did not relate to unauthorized use of the vehicle. But there is another more fundamental error committed by the Commissioner. Assuming that the Commissioner’s finding were understood to relate to unauthorized use of the motor vehicle, the question is whether the finding was supported by the evidence. In my view, it is clear that there was no evidence to show that the applicant’s use was unauthorized. It is clear to me that the Commissioner had no evidentiary basis to reach the conclusion he reached. Indeed, the lack of evidence was made clear to him by his most senior officer on the ground, Met. Supt. Wagambie, who was the officer named in the Charge document as the officer from whom the applicant failed to get prior authorization to use the vehicle. A finding of guilt based on no evidence is a fundamental error of law for which judicial review is available to quash the decision.

For these reasons, I quash that conviction and substitute a verdict of Not Guilty on the second charge. I also quash the penalty of dismissal on this charge.

The third and fourth charges are to do with AWOL. Grounds 4 – 7 of the review relate to AWOL. The two charges are actually for one unbroken period: 25/9/98 – (31/12/98 – 1/1/99)31/1/99. There were four internal reports before the Commissioner: (a) a report from Sen. Inspector David Sine dated 15/3/99. (2) Chief Supt. A. Wagambie dated 7/4/99. (3) Inspector C. Dalla dated 24/12/98 . (4) Supt. F. Inkung dated 7/12/98. All these officers were senior officers based at Lae and they were his superiors. Copies of these reports are annexed to Insp. Waira’s affidavit. These reports showed that the applicant absented himself from duties at the Mobile M/S 13 Squad at Lae and "self-transferred" himself to Kimbe without the knowledge and approval of his superiors in Lae. Whilst in Kimbe, there was no evidence of him performing duties but he was continuing to receive his normal pay in this period. There was a report of the applicant excusing himself from duties on Bougainville when MS/13 was rostered on duty at Buka. There was also evidence that he was ordered to transfer to General Duties Section at Lae but he "self-transferred himself to Kimbe".

The applicant’s explanation was that he was approved to cross-transfer with someone to Kimbe, by Chief Insp. Nome M. Kembu and Inspector K. Kalopei. There are copies of 2 letters, one from Chief Inspector Kembe dated 25/1/96 which states the Cross-Transfer of Const. Keike of Kimbe and Const. Kamo was recommended to the Transfer Panel for "endorsement". The other memo is from Inspector Kalopei dated 12/5/97 which is written to the PPC of Kimbe stating the Cross-Transfer recommendation had been approved and asking him to identify a member to cross-transfer. Copies of these letters are annexed to Insp. Waira’s affidavit. So whilst waiting, the MS Squad left for Buka and he stayed back to effect his transfer. On 31/12/99 he went to Kimbe to check the progress of his cross-transfer, but the officer at Kimbe with whom he would cross-transfer went on leave. So the applicant waited and reported on duty there. He told the Commissioner, "while I was at Kimbe the members I was Cross-Transfer with came to Lae and asked for me here at Lae. Because I knew that I was on approved Cross-Transfer with the member that’s why I left the area of Duty".

The Commissioner’s basis for finding the applicant guilty on the two AWOL charges as set out in the notice of termination are as follows:

"Absenteeism is a serious problem in the Constabulary. To leave a place of posting without approval from the authority and getting paid are regarded as dishonesty, corruptions and stealing from the State.

The actions taken by you are regarded as a no care attitudes and bad for discipline in general.

You submitted your explanations, but failed to provide concrete evidence to back up your side of the story.

Despite your denial the evidence is intact and conclusive to substantiate the charges and secure disciplinary conviction".

Mr. Ousi of counsel for the applicant submits that the applicant’s movement to Kimbe and being based there was part of his authorized/approved transfer, and that whilst at Kimbe, he was on duty for which he continued to receive his normal pay. He submits the decision to dismiss him is "tainted by bias, poor investigations and misconstruing the facts of the case in that the period the Appellant was said to have been absent from duty, he was in fact on duty at Kimbe, West New Britain Province, and the period that he said to have been absent was period upon which he was on duty" at Kimbe. Mr. S. Bonner of counsel for the respondent submits that although the applicant’s transfer to Kimbe was recommended to the Commissioner, the Commissioner never authorized the transfer in accordance with S.32(2) and S.153 of the Police Force Act. He submits the plaintiff failed to report to Lae Police Station and instead...asconded(sic) himself from duty, and enjoyed the benefits, and entitlements without performing his duties until he was officially charged therein".

In my view, there is sufficient evidence to show that the applicant’s transfer to Kimbe was authorized and that he understood that to be the case. But the real issue is whether the actual effecting of the transfer was authorized by his superiors. The Commissioner concluded that the applicant ‘s actual transfer was not authorized. The Commander had all the evidence before him to arrive at this conclusion. It was a determination based on a wide range of relevant considerations including aspects of discipline, control of movement of personnel, fiscal planning, logistical and strategic planning and implementation. He chose not to believe the applicant. In previous similar judicial review cases, I have held the firm view that the police force is a disciplined force and its members are expected to conduct themselves in accordance with strict code of conduct: Dicky Nanan v. Police Commissioner, adopted by Sevua J in Geregal Mauglo v. Police Commissioner N1728 (1998). This means they must respect their senior officers and act strictly in accordance with instructions from their superiors. In my view, the Commissioner is better placed than I am to be the ultimate decider on all aspects or matters of internal discipline and transfer of its members to different localities. It is not proper for this Court to examine his reasoning to see if it makes sense, is logical or rational. For these reasons, I dismiss grounds 4, 5 and 6 of the review.

Ground 7 is a procedural point which follows from grounds 4, 5 and 6 and it is dismissed as well.

Ground 8 is also a procedural point which follows on from grounds 4, 5 and 6. It is also dismissed.

The upshot of the foregoing discussions is that the conviction on the first, third and fourth charges are upheld. The conviction and penalty on the second charge are quashed.

The last ground (9) raises the issue of whether the applicant should have been given a separate opportunity to address on the issue of penalty after he was found guilty of the three offences which I have upheld. The Commissioner in his Notice of penalty states that "A submission on penalty was not received at Police Headquarters. Therefore no submissions were taken into account when making a decision as to penalty".

Mr. Ousi submits that the Commissioner’s admissions constitutes a denial of natural justice to the applicant. He submits it is a requirement of the principle of natural justice that the Commissioner must afford the member an opportunity to address on penalty. As this has not been done in the present case, the penalty imposed must be quashed. In support, he cites a decision of Hinchliffe J in Sioni Buttler v. Commissioner of Police.

Mr. Bonner submits there is no requirement under Section 46 the Police Force Act for the Commissioner to give separate opportunity to the member to be heard on penalty.

He submits S.46 requires only one single reply to be sought of the member charged, and that is when the charge is first laid and served on him. He cites in support a decision of Sheehan J in Waira v. Commissioner of Police. He submits this view reflects the wide discretion conferred on the Commissioner in all aspects of the disciplinary process to inform himself in whatever manner he thinks first without adherence to strict technical rules of practice and procedure and evidence, and then make a decision.

I have not had the benefit of reading the two opposing views of my brothers Sevua J and Sheehan J on the issue so I am in no position to comment on their respective views. I will state my own opinion on the issue.

In trying to understand the Commissioner’s admission that the applicant was not given an opportunity to address on penalty, I have had recourse to the charge document form. The endorsement at the bottom of the front page of the charge documents states:

"You are invited to reply to this charge forthwith, stating whether you admit or deny the truth of the charge and give any explanation you desire in regard thereto and if a reply is not given within fourteen (14) days after your receipt of the charge you may be deemed to have denied the truth of the charge. (my underlining).

The endorsement on the back of the charge document which is required to be completed by the person serving the charge states:

"I, ..................... certify that I personally serve with a copy of this charge at .................. a.m. on.......................19................ and at the same time showed him the originals.

It is true that the Police Force Act does not specify the precise details of how the Commissioner is to determine the charge once a reply is received from the member. Section 46 which sets out the disciplinary process does not make any distinction between a determination on conviction and penalty and whether separate opportunities be given to a member to address on conviction and penalty. It is not clear from S.46 whether when the charge document is laid and served, and an opportunity of 14 days is given to the member to reply, the member will be required to give a single reply which covers both conviction and penalty.

However the charge document is designed to invite the member to reply to the charge on the issue of conviction or "liability" only. This procedure is the correct procedure envisaged in Section 46 of the Act. In my view, this is understandably the correct procedure to follow because the determination on the question of conviction is always the first phase in any judicial, quasi-judicial or administrative disciplinary hearing. It would not be proper and quite out of procedure to speculate if the member is going to plead guilty or not guilty and invite him to make a reply on the appropriate penalty as well when he makes his reply on the issue of conviction. It would also be pre-mature to postulate on punishment at that stage. If the charge is determined and a not guilty verdict is pronounced, that is the end of the matter. But if a guilty verdict is pronounced, then the proceedings must advance to the next phase of determining the appropriate penalty. Principles of good administration and natural justice would require that the member be advised of the finding of guilt and then given a further opportunity to address on penalty.

In the past when the Courts have been asked to intervene in the administrative disciplinary process of the Police Force, the Courts have not hesitated to import into the disciplinary provisions of the Police Force Act requirements of natural justice, intended to ensure that the member is given reasonable opportunity to be heard on the charge laid against him, that the charges are fairly determined and that reasons are given for decision on both conviction and penalty. An example of this is the Commissioner’s duty to give reasons for decisions both on liability and punishment, which I enunciated in Kelly Yawip v. The Police Commissioner [1995] PNGLR 93; and which I applied in Michael Kapa Wena v. The Police Commissioner N1370 (1997) and Dicky Nanan v. Police Commissioner N1507 (1997). Those principles found favour of my brother Kapi DCJ In Pierson Joe Kamagip v. Police Commissioner N1853 (1999). I believe as a result of my decision in Kelly Yawip and other similar decisions of other National Court judges, the Commissioner has taken steps to modify its disciplinary procedure to accord with principles of natural justice.

In my view, it is only a natural extension of the principle of the audi alteram partem leg of the principle of natural justice adopted in Section 59 of the Constitution, and applied in such cases as Kelly Yawip and Pierson Joe Kamagip that the opportunity to address on penalty be given at the appropriate time; before the punishment is determined and pronounced. This opportunity follows a finding of guilt on the charge and it is separate from the first opportunity to reply to the charge given when the charge is first served on the member. The issues of liability and penalty are inseparable facets of the disciplinary process and it would seem quite absurd that whilst the member charged is given an opportunity to be heard on the issue of conviction, he is not heard on issue of penalty. It is clear to me that the Police Commissioner has wide discretion to consider a range of penalties ranging from a reprimand to dismissal, and it is only fair and just that before exercising his discretion as to what punishment to impose, he should inform the member that he has been found guilty on the charge and invite the member to address him on penalty. Just as the opportunity to be heard on conviction is fundamental, so is the opportunity to be heard before penalty is imposed so fundamental to a fair hearing in a disciplinary hearing. Failure to observe this basic requirement of natural justice will inevitably invalidate the penalty imposed.

I am satisfied that the applicant in the present case was not given the opportunity to address on penalty after he was found guilty on the 1st, 3rd and 4th charges. Whilst I confirm those three convictions, I quash the punishment of dismissal on each of those three charges. I have already quashed the conviction and penalty on the second charge. I order that the matter of punishment be referred to the Commissioner to determine. In order to expedite the process, I order that the applicant submit his case on penalty within 30 days. I further order that the Commissioner make his decision on penalty and notify the applicant of the decision and the reasons for the decision, within 30 days therefrom. Costs of these proceedings is awarded to the applicant.
_____________________________________________________________________
Lawyer for the applicant : Warner Shand
Lawyer for the respondent : Principal Legal Officer – Police Dept.

1.	On 29/7/98, at Lae, you were guilty of disgraceful conduct otherwise then in your official capacity in that you did drive a motor vehicle to wit, a Toyota Landcruiser, Ten seater Reg. No. ZGY350, upon a public street to wit, Okuk Highway without due care and attention thereby contravening s.43(g) of the Police Force Act (Ch. No. 65.).

2.	On 29/7/98, you were guilty of disgraceful conduct otherwise than in your official capacity in that you did drive the said motor vehicle without first obtaining the consent of the owner of the motor vehicle to wit the Metropolitan Commander, Chief Superintendent Anthony Wagambie thereby contravening section 43(g) of the Police Force Act (Ch. No. 65.).

National Court of Papua New Guinea

Kamo v Police [2001] PGNC 131; N2084 (12 April 2001)