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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE IN MADANG]
OS 686 OF 2000
-V-
THE COMMISSIONER OF POLICE
(First Respondent)
AND
PAPUA NEW GUINEA
MADANG : SAWONG J.
2002 : 5TH DECEMBER
&
2003 : 21ST JULY
JUDICIAL REVIEW – Decision of disciplinary authority – Dismissal of policeman by Police Commissioner for disciplinary reasons – Grounds – Breach of Principles of Natural Justice – whether Police Commissioner require to serve copies of internal police investigation reports or statements on member charged with disciplinary offence – whether opportunity given to member to address on penalty before penalty was imposed – Police Force Act 1998
Cases Cited:
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122;
Kelly Yanip v Police Commissioner [1995] PNGLR 93;
Tiga Nalu v Police Commissioner N1927 (1999);
Philip Kamo v Police Commissioner N2084 (2001).
Counsel:
B. TABAI, for the Applicants
NO APPEARANCE, for the Respondents
21st July, 2003
SAWONG J: The applicants are applying for Judicial Review under O.16 of the National Court Rules. Leave to apply for review was granted on 14th March, 2001. The application was not contested by the respondents even though they were advised of the date of hearing of the substantive application.
The applicants are seeking a review of the Police Commissioner’s ("the Commissioner") decision in finding each of them guilty and the decision of the Commissioner to dismiss six of them as policeman from the Police Force and to demote one of them to a lower rank for disciplinary reasons. The six applicants who were dismissed from the force are Chief Sergeant Alfred Kumasi, Sergeant Bernard Mingnaut, Sergeant Apola Titima, Constable Paul Vingu, policewoman Constable Dorothy Vingu and Constable Francis Warwakai. The policeman who was demoted in rank was Inspector Jacob Bando.
Each of the applicants has filed one affidavit each except for Alfred Kumasi who is the lead plaintiff who has filed two affidavits. Alfred Kumasi’s affidavit is sworn on 1st December, 2000 which was an affidavit in support of the application for leave and in addition he swore another affidavit on the 8th July, 2002. Each of the other applicants’ affidavits was sworn also on the 8th July, 2002.
The respondents have not filed any answering affidavits nor did they call any evidence at the trial. Each of the applicants also gave oral evidence.
From all the affidavit materials and the oral evidence the undisputed circumstances or facts are as follows. Between the 22nd and 23rd of July, 1997 policeman based in Madang conducted raids and were alleged to have been involved in burning down of houses at the Bukbuk, Finch Road and Sisiak settlements. As a result on or about the 14th of August, 1997 a team of policemen from Lae were sent to Madang to investigate this incident. The team comprised of Superintendent Awan Sete, Inspector Rudolf Ribma and Detective Sergeant Butu Mesi. The team was led by Superintendent Sete.
The team conducted inquiries amongst the policemen in Madang between the 15th of August, 1997 to the 11th of September, 1997. As a result of the investigations certain policemen were identified to have been involved either directly or indirectly in the burning down of the houses at the settlements referred to earlier. The applicants were some of those policemen identified as alleged to have been involved in the burning down of the houses in the settlements. On the 10th September, 1997 the members of the investigation team began interviewing the policemen implicated starting with Paul Vingu and Franics Warwakai. Both plaintiffs were interviewed separately each by a member of the investigating team. The interviews were not completed on that day and the interviews were suspended and were to continue the next day. However, on the 11th September, 1997 at about 11:45a.m. a commotion took place at the Jomba Police Station where the members of the investigating team were allegedly threatened with assault in respect of the investigations. It was claimed that the members of the Madang police were not happy with the investigations being carried out and as such they were demanding that the investigations be stopped immediately and that members of the team return to Lae. The applicants were alleged to have been involved in the whole incident and threatened to assault the members of the investigating team.
Consequently, each of the applicants was charged with three counts of disgraceful conduct and threatening behaviour. They were charged under s.43 (g) of the Police Force Act (Ch. 65). The charges were served on each of them. Each of the applicants responded to the charges denying the allegations. However, after considering their responses the Commissioner found each of them guilty on all three counts each and decided to dismiss the six of them and demote the other.
The applicant, Titima Apola says that he was only served with the charge in relation to Mr Sete and that he was not served with the charges relating to Mr Mesi and Mr Ribma. I do not accept this assertion because the charges were all contained in one document. In other words all three charges were set out in the one document and were served on all the other applicants. The evidence is that the charges were similarly worded.
Subsequently, each of the applicants was informed indirectly and in some instances directly of their dismissal. For instance, Alfred
Kumasi in his affidavit says that he was never served with the notice of penalty. He found out indirectly on the 4th of August, 2000
when he rang the Police Savings and Loans Society to apply for a loan when he was informed of his dismissal. Thereupon, on the same
day he made various inquiries with his commanding officers and others. Subsequently, he heard that he was to be served with the Notice
of Penalty on the 8th August, 2000 but he and others avoided being served with that notice as they were of the view that the Commissioner
had been unfair in not informing each of them of the progress of the charges.
Francis Warwakai was served with his dismissal notice on the 21st January, 2001 at Wau Police Station. Paul Vingu was served with
his Notice of Penalty on the 10th of August, 2000. Dorothy Vingu was served with her Notice of Penalty in or about October, 2000.
Titima Apola was served with his Notice of Dismissal together with others either in August or October of 2000. None of these applicants
have attached or annexed to their affidavits the Notice of Dismissal. Each of the applicants say that the Commissioner did not give
them an opportunity to be heard on penalty before they were dismissed or demoted.
The only applicant who has attached his Notice of Dismissal to his affidavit is Bernard Mingnaut. In that second page of that notice the then Commissioner stated that after considering the explanations received from him, he found him guilty on all counts. The Commissioner stated that the explanation made by him was taken into account, however it appeared that all other evidence contained in the file outweighed the evidence or reply submitted by the applicant in his defence. He stated in part and I quote:
"The charges are serious and this type of behaviour is unacceptable to the good order and discipline of the Constabulary.
Your conduct is a talk in the police community and undermine authorities in Madang, setting a bad precedent and bad for good order and discipline in the force generally.
Your conduct has developed this content and hatred between local police and internal investigation unit. It is a bad trend."
In that document the Commissioner went further in relation to penalty by stating as follows:
"A submission on penalty was received at police headquarters. The submission was taken into account when making a decision as to penalty. Reasons for the imposition of this penalty are as follows:
The reason why I believe that this penalty should be imposed are as follows:
The nature and seriousness of the offence. The deterrent effect it would have on other members of the Constabulary. The members’ behaviour seriously breached Constabulary standards and the community expectations of the conduct of a member of the Police Force. If this type of behaviour is allowed to continue, the discipline of the Force will be severely impacted upon.
The serious disciplinary charge sustained and by way of penalty you are dismissed from the Constabulary, effective from the date of service of the penalty."
Grounds for Review.
The applicants’ counsel has filed written submissions. The respondents have not filed any submissions at all.
Firstly, it is trite law that judicial review is a discretionary power which is exercised in special cases by the court. It is available to correct some error in the decision making process and not the decision itself. See Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Judicial review is not another re-hearing of the applicants’ grievances over the same disciplinary charges but a review of the disciplinary process as evident on the face of the record. As such the court must exercise caution in accepting any extraneous or fresh material, evidence or information, which were not available, before the decision making authority and which did not form part of the decision making process. See Tiga Nalu v The Police Commissioner N1927 (1999).
The relevant statute under consideration is the provisions of the repealed Act. The relevant provision was s.46. It set out the procedures to be used in dealing with serious disciplinary offences. It read:
"S.46 Dealing with Serious Offences.
(1) Where there is reason to believe that a member of the Regular Constabulary Branch has committed a disciplinary offence other than an offence that may be dealt with under Sub-Division B, the provisions of this section apply.
(2) The 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 against a member of the Regular Constabulary Branch, he shall: -
- be promptly furnished with a copy of the charge, which shall, if he so desires, be explained to him by the officer-in-charge; and
- be invited:-
- (i) to reply promptly, stating whether he admits or denies the truth of the charge; and
- (ii) to give any explanation that he desires to give in regard to it.
and if a reply is not given by the member within 14 days after his receipt of the charge he may be deemed to have denied the truth of the charge.
(4) If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the member charged and any further report that he thinks necessary, the Commissioner is of opinion that the charge has been sustained, he may:-
(a) fine the member a sum not exceeding K40.00; or
(b) reduce the member’s salary; or
(c) reduce the member to a rank having a lower classification, and to a salary within that classification; or
(d) in addition to or instead of imposing a punishment specified in paragraph (c), transfer the member to other duties or to some other locality; or
(e) in the case of a commissioned officer-impose a penalty referred to in Subsection 45(i)(a)(b) or (c); or
(f) in the case of a member other than a commissioned officer-impose a penalty referred to in section 45(i)(a)(b)(d) or (e); or
(g) in the case of a member who is a commissioned officer-recommended to the Minister that the member be dismissed from the Force; or
(h) in the case of a member other than a commissioned officer-dismiss the member from the Force.
(5) The Commissioner shall notify the member of a punishment imposed on him or a recommendation made concerning him under Subsection (4)". (my underlining).
Section 46 (4) prescribed the penalty provisions. It stated that if the charges had been proved or sustained the Commissioner may: -
(a) Fine the member a sum not exceeding K40.00; or
(b) Reduce the member’s salary; or
(c) Reduce the member to a rank having a lower classification and to a salary within that classification; or
(d) In addition to or instead of imposing a punishment specified in paragraph (c) transfer the member to other duties or to some other locality; or
(e) In the case of a Commission Officer – impose a penalty referred to in Ss.45 (1) (a), (b) or (e); or
(f) In the case of a member other than a Commission Officer – impose a penalty referred to in s.45 (1) (a), (b), (d) or (e); or
(g) In the case of a member who is a Commission Officer – recommend to the Minister that the member be dismissed from Force; or
(h) In the case of a member other than a Commission Officer – dismiss the member from the Force.
This provision has been judicially considered in several cases. They include Dicky Nanam v John Maru & Police Commissioner ( Unreported judgement of the National Court, dated 10th February, 1997, N1507, Michael Katawena v Henry Tokam (Unreported judgment of the National Court dated 9th May, 1997, N1570), Pierson Joe Kamangip v Bernard Orim & the Police Commissioner (Unreported judgment of the National Court dated 26th March, 1998, N1695 and Simon Ottogoma v The State (Unreported judgment of the National Court, dated 26th November, 2001, N2154). In all these cases the National Court have consistently held that the intent of the Legislature was to regulate the procedures of disciplinary hearings by the provisions of the Act. Section 46 set out in detail what is to take place. It is a codified procedure. In other words it codifies the procedures to be used and followed in dealing with serious disciplinary offences committed by policemen.
For instance in the case of, a Commission Officer, the Commissioner could also impose penalties set out in s.45 (1) (a) (b) or (e). Alternately, the Commissioner could recommend to the Minister to dismiss that Commission Officer under s.46 (4) (g). Thus, under s.46 (4) (g) the power to dismiss a Commission Officer does not lie with the Commissioner rather it is with the Minister. The Commissioner merely recommends to the Minister to dismiss a Commission Officer.
On the other hand the Commissioner has power to dismiss a member of the Police Force who is not a Commission Officer. See s.46 (4) (h).
By virtue of s.46 (4) (e) and (f) the Commissioner had power to impose some other alternative penalties as prescribed under s.45 (1) (a) (b) or (e) in relation to a Commission Officer.
In the case of a member who is not a Commission Officer the alternative penalties provided under s.45 (1) (a) (b) (d) or (e) may be imposed. These would include a caution, a reprimand or confinement to barracks for period not exceeding 14 days or forfeiture of not more than one month pay.
I now deal with each of the grounds for review.
Ground 1
Ground 1 seeks to challenge the Commissioners decision to dismiss the six plaintiffs. Mr Tabai in his submissions submitted that the plaintiffs Alfred Kumasi, Bernard Mingaut and Dorothy Vingu denied the allegations and forwarded their replies against their charges. He submitted that they submitted with their responses statements from other witnesses who supported their versions. He submitted that despite all these pieces of evidence the Commissioner went ahead and made a finding of guilt. He submits that it is not known what materials, statements and reports the Commissioner considered nor why he believed those statements and reports when arriving at the decision.
In my view this ground is mischievous. Section 26 of the Police Force Act of 1998 prescribes penalties for serious offences. These submissions that have been made are against findings of guilt or convictions.
As I have alluded to earlier the judicial review jurisdiction of this court is not concerned with a re-hearing of the applicant’s grievances but concerned with the decision making process not the decision itself.
The evidence is that the applicants were all properly charged. They were all served and they each responded to the charges. The commissioner considered their responses as well as other statements and reports and found each of them guilty.
I dismiss this ground as without any merit.
Ground 2
The challenge here is that whilst the applicants were charged under s.43 (g) of the repealed Act, the penalties were imposed by using the new Act. It is submitted on behalf of the applicant that the Commissioner should not have done that. In other words Mr Tabai submitted that as the applicants have been charged under the repealed Act, the Commissioner ought to have dealt with them under the provisions of that Act and not under the new Act.
This ground is also nonsensical and does not make sense as it refers to s.23 (3) of the Police Force Act. I presume that it refers to s.23 (3) of the new Act. If my assumption is correct then, it makes no sense at all. The reasons for this are quite simple. Section 23 of the new Act deals with serious offences. It sets out the methodology and the procedures to be used in charging a member of the Force involving serious offences. It does not deal with penalty provisions which is dealt with elsewhere. Section 23 (3) provides the procedures to be followed where a decision is made to charge a member of the force with serious disciplinary offence.
The overwhelming evidence is that each of the applicants was charged under s.43 (g) of the repealed Act. They all responded to the charges against each of them. As I have alluded to earlier there is some confusion as to the relevant statute the Commissioner relied on to impose the penalties that he did. For instance, in the document headed "Notice of Penalty for serious discipline offence" issued to J. Bando in the body of the notice it refers to "s.43 (g) of the Police Force Act, 1998 (Ch. 65)". It sets out the three charges against J. Bando and also sets out the provisions that he is alleged to have contravened.
Again, a notice of penalty issued to policewoman, Constable Vingu sets out the charges and under each charge sets out the provision that has been alleged to have contravene namely, s.43 (g) of the Police Force Act, 1998, Ch. 65. In my view the references to Police Force Act of 1998 is incorrect because s.43 of the 1998 Act relates to appointment of members of regular Constabulary. It has nothing to do with disciplinary offences. It is clear to me that the reference to "1998" was not correct although the correct provision was s.43 (g) of the repealed Act, (Ch. 65).
Mr Tabai has submitted that the Commissioner had followed the correct procedures in charging the six applicants. The applicants had also responded to the charges and that the Commissioner had acted properly and followed all the necessary procedures as set out in the repealed Act in charging them. However, he submitted that the Commissioner acted beyond his powers and acted ultra-vires and contrary to law when he imposed the penalties according to the provisions of the new Act. He submitted that s. 157 of the new Act specifically states that proceedings commenced under the repealed Act continues as if that Act had not been repealed. Mr Tabai submits that in effect this meant that this was a saving provision which meant that the Commissioner had to deal with the applicants under the provisions of the repealed Act and that whatever penalties that were to be imposed were to be imposed in accordance with the penalties set out in s.46 (4) of the repealed Act and not under the new Act.
Mr Tabai submits that the Notices of Penalties served on each plaintiff however showed that the penalties were imposed pursuant to the new Act. This he submits was wrong in law. He submitted that the proper procedure would have been to impose the penalties under the provisions of the repealed Act, in particular s.46 (4) of the repealed Act. He submitted that in imposing the penalty of dismissal against Alfred Kumasi, Bernard Mingnaut and Titima Apola in my view were wrong.
In my view reading the notices of penalty which contained the charges and the penalties together it is obvious that the Commissioner dealt with the applicants under the provisions of the repealed Act. It follows that their complaints cannot be sustained and must be dismissed.
He further submitted that their dismissals were wrong because as they were Commission Officers the Commissioner did not have power to dismiss them but rather to recommend to the Minister for the member to be dismissed from the Force.
This argument can be disposed of very quickly as being without any merit. The evidence from the three applicants, Alfred Kumasi, Bernard
Mingnaut and Titima Apola are that they are not Commission Officers. Alfred Kumasi in his affidavit says that, at the time of his
dismissal he was a Chief Sergeant. Bernard Mingnaut was a Sergeant at the time of his dismissal. Titima Apola has deposed in his
affidavit that at the relevant time he was dismissed, he was a Sergeant in the Police Force.
The repealed Act in particular s.17 sets out the ranks in the force who are Commission Officers. Chief Sergeants and Sergeants are
not Commission Officers. In my view Mr Tabai’s submission on this aspect is misconceived on the factual basis. The evidence
from each of these applicants show that they were not commission officers. Accordingly, I reject this part of his submission.
This ground is also dismissed.
Ground 3
The next ground relied upon is that the Commissioner erred in law in not allowing the applicants to comment on the penalty before making a decision. For the purposes of this ground, it is not disputed that the applicants were not invited to make any comments on the penalty before the penalty was imposed.
Mr Tabai submitted that this was a breach of the principle of natural justice. He submitted that the Commissioner ought to have allowed the applicants to address on penalty before he imposed the penalties.
Counsel for the applicants submitted that the applicants ought to have been invited to make any comments relating to the question of penalty before any penalty is imposed. He relied on two decisions of Hinchliffe J, in Barnabas Isoro v Commissioner of Police and State (OS 341 of 1995) (un-numbered judgment dated 12th April, 1996 handed down in Lae, Peter Wapu v The Police Appeals Tribunal (OS 51 (L) of 1993) (un-numbered judgment dated 13th May, 1996 handed down in Goroka and Toll v Kibi Kara & Ors [1990] PNGLR 71 and the decision of Kirriwom J, in Kathy Dobb v The Commissioner of Police and the State (OS 522 of 1996) (un-reported judgment of 31st July, 1998).
In Barnabas Isoro (supra) and Peter Wupuwan (supra) Hinchliffe J relied on his earlier decision of Toll v Kibi Kara & Ors [1990] PNGLR 71. In that case Hinchliffe J was concerned with an appeal to the National Court from a decision of the Lawyer’s Statutory Committee pursuant to s.53 (1) of the Lawyer’s 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 Lawyer’s Act 1986 which provides:
"(1) The committee shall determine its own procedures when inquiring into complaints of improper conduct but shall observe the rules of natural justice in carrying out an inquiry.
The committee after finding Mr Tor guilty of the charges against him, penalised him. He did in his absence without inviting him to address it on penalty."
The authorities relied on by counsel for the applicants are not helpful in determining this issue. Firstly the decision in Toll v Kibi Kara (supra) can be distinguished from the present case. That case was involving different legislation and its provisions.
There are a number of cases dealt with by the National Court in relation to this particular issue involving dismissed policemen. They include Dicky Nanam v John Maru & Police Commissioner (Unreported judgment of the National Court dated 10th February, 1997, N1507, Michael Katawena v Henry Tokam (Unreported judgment of the National Court dated 9th May, 1997 N1570, Pierson Joe Kamangip v Bernard Orim & The Police Commissioner (unreported judgment of the National Court dated 26th March, 1998 N1695 and Simon Ottogoma v The State (unreported judgment of the National Court dated 26th November, 2001 N2154).
In Pierson Joe Kamangip (supra) the plaintiff who was a Constable in the Police Force, was charged with a criminal offence of rape. It was alleged that he had raped a female whilst 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 repealed Act.
The plaintiff responded in writing and denied the charges. He applied for judicial review seeking:
One of the grounds for challenging his dismissal was that he had not been allowed to make any comments on the penalty before the Police Commissioner made the decision to dismiss him.
Kapi DCJ, considered the issue of whether provisions of the Police Force Act excludes the common law principles of rules of natural justice. His Honour at p. 8 said:
"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 principle of natural justice may be implied before sentence is imposed. This is the same approach taken by Injia J in Dicky Nanam v John Maru & Police Commissioner (supra) in relation to whether or not a member is entitled 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 the Police Force Act (s.46), a member charged with the disciplinary offence is not entitled to be served with the evidence, information and reports which form the basis of 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 procedures of disciplinary hearings by the provisions of the Act. The provisions set out in detail what is to take place. Where the provisions exclude what may be regarded as common law principle of natural justice either expressly or otherwise, they will not be implied by the court. That is the rationale of the decision in Dicky Nanam v John Maru & Police Commissioner (supra) with which I agree. If the Legislature intended that a member should give 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 it is given an opportunity to make a reply or given 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 have considered the submissions and in particular s.46 I agree and endorse the views expressed by the Deputy CJ. For those reasons I would dismiss this ground of the review also.
Ground 4
Here the challenge is that the Police Commissioner’s decision to dismiss the plaintiffs by invoking powers provided under both the repealed Act and the new Act was inconsistent to amount to a contravention of the normal procedures set out for discipline in the Police Force generally.
In view of my conclusions I have come in regard to the first three grounds of review, I would also dismiss this ground as being without any merit. As I have found the Police Commissioner charged the applicants under the provisions of the repealed Act. The penalties were also issued under the provisions of the repealed Act and not as made out to be under the provisions of the new Act. In my view this ground is mis-conceived. For the same reasons that I have given in grounds 2 and 3, I would also dismiss this ground.
Ground 5
Under this ground the challenge is that it was wrong to issue three separate charges for an alleged single offence. As I have alluded to earlier, the evidence is that each of the applicants was charged with three different counts contained in one document. In any case each of the applicants responded to their three different charges. Judicial review is not concerned with the decision itself. It is concerned with the decision making process. The overwhelming evidence is that the charges were served on each of the applicants and they all responded to each of the charges levelled against them. Mr Tabai has conceded that the applicants were properly charged with the disciplinary offences. This ground is without any merit and is dismissed.
CONCLUSION.
As all the grounds of review have been dismissed the consequential orders sought in grounds 6, 7, 8 and 9 are as a consequence refused.
___________________________________________________________________
LAWYER FOR THE APPLICANT : ACANUFA LAWYERS
LAWYER FOR THE RESPONDENTS : NO APPEARANCE
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