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Magaidimo v Commissioner of Police [2004] PGNC 26; N2752 (20 September 2004)

N2752

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 613 OF 2002

BETWEEN:

JOHN MAGAIDIMO

Plaintiff

AND:

COMMISSIONER FOR POLICE

First Defendant

AND:

THE STATE

Second Defendant

Mt. Hagen: Gavara-Nanu J
2004: 7th & 20th September

ADMINISTRATIVE LAW – Judicial review - Dismissal from the Police Force – Police Force Act, Chapter No. 65, ss. 43(c) and (f), 45 (1) (a) (b) (d) and (e), 46 (4), 57 and 61 - Double punishment– Principles of natural justice – Right to be heard on penalty – Maximum penalty not fixed or automatic – Discretion to impose penalties other than the maximum penalty – Termination having no basis in law – Dismissal unlawful.

Cases cited:
Toll -v- Kibi Kara & Others [1990] PNGLR 71.

Counsel:

P. Kunai for the plaintiff.

R. Koimo for the defendants.

Gavara-Nanu J: At the time of writing this judgment, I have become aware that the Police Force Act, Chapter No. 65, under which the plaintiff was charged and dismissed was repealed prior to the plaintiff being charged. That being the case, it would seem that my application and exposition of the provisions of that Act, in this judgment may only be academic. However, the end result is the same viz., the plaintiff’s dismissal was unlawful for the reasons given in the judgment and that he was charged under the repealed law. He is therefore entitled to be reinstated to his former position or a position equal to it in the Police Force with all his entitlements.

My observations on the principles of natural justice and the Court’s broad discretionary powers in reviewing administrative actions as in this case nonetheless remain the views of this Court, as they are issues which have been determined independently of the repealed Police Force Act.

The plaintiff was a Senior Sergeant in the Royal Papua New Guinea Constabulary and the Acting Regional Officer In-Charge of the Criminal Investigation Division, (hereinafter referred to as ’CID’), of the Highlands Region based in Mt. Hagen when he was dismissed from the Police Force through a Notice of Penalty.

The Notice of Penalty was undated. However, it was served on the plaintiff on 28th September, 2000 and the dismissal took effect on the same day.

The background facts leading up to the dismissal are these. On 22nd January, 1999, the plaintiff was arrested and charged with misappropriating sum of K3, 580.10t, which was for court exhibits allegedly under his control. This was a criminal offence under s 383 A of the Criminal Code Act.

The plaintiff eventually appeared before the Committal Court in Mt. Hagen and was committed to stand trial in the National Court. When the matter came before the National Court, the charge was amended from misappropriation to stealing.

While waiting for his trial in the National Court on the stealing charge, the plaintiff was served with four serious disciplinary charges for offences under the Police Force Act, Chapter No. 65, on 6th July, 1999. All the charges were reduced to writing and were all dated 2nd June, 1999.

Prior to being charged with misappropriation on 22nd January, 1999, he was suspended from duties without pay from 6th November, 1998 to 15th February, 1999, which was a period of three months one week, and that translates to about six fortnights. After that, the suspension was lifted but he was transferred from CID to General Duties Section. He continued working in the General Duties Section until his dismissal on 28th September, 2000.

At the time of his dismissal, he had served in the Police Force for about 25 years.

The first three disciplinary charges were laid under s.43 (c) of the Police Force Act, for negligence or for being careless in the discharge of his duties.

The fourth disciplinary charge was laid under s.43 (f) of that Act, for accepting fees, in connection with his duties.

The first of the three disciplinary charges alleged that between 6th December, 1996 and 6th November, 1998, in Mt. Hagen, the plaintiff was negligent in the discharge of his duties whilst acting as the Regional Officer In-Charge of CID for the highlands region who was charged with the duty of the safe custody of K1,140.10, which was a court exhibit in a stealing case, and that he had failed to adequately account for the disappearance of that money.

The second disciplinary charge alleged that between 12th February, 1997 and 6 November, 1998, in Mt. Hagen, the plaintiff was negligent in the discharge of his duties, whilst being charged with the duty of the safe custody of K500.00, which was a court exhibit in a bribery case, and that he had failed to adequately account for the disappearance of that money.

In the third disciplinary charge, it was alleged that between 4th August, 1997 and 6th November, 1998, in Mt. Hagen, the plaintiff was negligent in the discharge of his duties, whilst having custody of K1,140.00, which was a court exhibit in a robbery case, and that he had failed to adequately account for the disappearance of that money.

In respect of the fourth charge, it was alleged that between 12th February, 1997 and 6th November, 1998, in Mt. Hagen, the plaintiff accepted a fee in the sum of K500.00, for the release of a wreck vehicle from Mt. Hagen Police Station and that he had failed to adequately account for the disappearance of the K500.00 he received.

The four charges were dealt with as serious disciplinary charges under s.46 of the Act.

On 8th July, 1999, the plaintiff replied to the charges where he denied all four charges.

On 20th May, 2002, the stealing charge before the National Court was nollied by the State, so the plaintiff who was an accused then, was discharged by the National Court, from the stealing charge.

So the plaintiff who was dismissed from the Police Force on 28th September, 2000, on four disciplinary charges was discharged by the National Court on the stealing charge on 20th May, 2002, which was about one year eight months after he was dismissed.

The plaintiff is here seeking declarations that the first defendant was wrong in dismissing him, and that his dismissal from the Police Force be quashed and that he be reinstated to his previous position with all his entitlements.

The plaintiff also says that the penalty was excessive in the circumstances of the case.

Mr. Kunai submitted for the plaintiff that there was breach of natural justice by the first defendant because the plaintiff was not given the opportunity to address or be heard on penalty.

The penalties which could be imposed on the plaintiff are those enumerated under s.46 (4) of the Act.

Those penalties are:-

(i) fine not exceeding K40.00, or
(ii) reducing the plaintiff’s salary, or
(iii) lowering the plaintiff to a lower rank and being paid a salary at that lower rank, or
(iv) in addition to or instead of imposing the penalty mentioned in (iii) above, transfer the plaintiff to other duties or to some other locality, or
(v) impose penalties enumerated under s.45(1) (a),(b),(d) or (e), which are minor offences penalties, or
(vi) dismissal.

I make two observations regarding the possible penalties that could have been imposed on the plaintiff under s.46 (4). Firstly, as it can be seen above, the first defendant had very wide discretion in deciding on the penalty for the plaintiff. Such penalty included any of the penalties for minor disciplinary offences prescribed under s.45 (1) (a) (b) (d) or (e).

Secondly, from the penalties that could be imposed on the plaintiff, the first defendant decided to impose the maximum penalty of dismissal.

It is to be noted that the maximum penalty was not automatic nor was it fixed. This is also made clear by s.61 which deals with dismissal. It provides:-

S.61 Dismissal.

Where under this division, the dismissal of a member of the Regular Constabulary Branch is recommended to the Commissioner; (and in the case of a recommendation for the dismissal of a Commissioned Officer, the dismissal has been approved by the Minister), the Commissioner may dismiss the member or may impose such lesser penalty prescribed by this Act for the offence as he thinks proper. (my underling).

So under s. 61, in deciding whether to impose the penalty of dismissal of a regular member of the Police Force as in this case or on a

Commissioned Officer upon approval by the Minister, the first defendant has a wide discretion. In other words, he has the discretion to impose a penalty other than dismissal.

There is no question that the four disciplinary charges laid against the plaintiff arose out of or were related to the criminal charge laid against him for stealing. This is clear from the terms of the Notice of Penalty, part of which reads:-

"The explanation submitted by you was received and considered, however, it appears that the evidence contained in the file outweigh the submission from you in your defence.

The charge is serious and this type of behaviour is unacceptable to the good order and discipline of the Constabulary.

Commissioner’s Circular No. 16/94, "Police Misbehaviour" part of paragraph one (1) stipulates any member who commits any act of theft or dishonesty can expect to be dismissal.

Stealing Court Exhibits money by members who are occupying responsible positions in the Constabulary is now prevalent and drastic measures are being taken to eradicate the corrupt practice.

The serious disciplinary charge is sustained and by way of penalty, you are dismissed from the Constabulary, effective from the date of service of the penalty.

A submission on penalty was not received at Police Headquarters. Reasons for the imposition of this penalty are as follows:-

"The nature and seriousness of the offence. The deterrent effect it will have on the other members of the Constabulary.

If this type of behaviour is allowed to continue, the discipline of the Force will be severely impacted upon".

So not only is it clear that the plaintiff’s four disciplinary charges related to his stealing charge, but that the first defendant was also of the view that the plaintiff was guilty of the stealing.

It is equally clear that the first defendant’s view that the plaintiff was guilty of stealing does not accord with the discharge of the plaintiff by the National Court on the stealing charge.

In my opinion, this case should have been dealt with under s.57. That section deals with members of the Police Force who have been charged with criminal offences. The penalty under that section can only be imposed on the member if he is convicted of the charge.

In this case, the first defendant decided not to invoke s.57.

But, be that as it may, as I said, it is clear that the maximum penalty was imposed because it was the view of the first defendant that the plaintiff was guilty of stealing court exhibits.

It is not in dispute that the plaintiff was not heard on penalty before being dismissed from the Police Force on 28th September, 2000. The plaintiff says that amounted to breach of natural justice by the first defendant.

In deciding whether the plaintiff should have been given the opportunity to address on penalty, I find valuable guidance in Toll -v- Kibi Kara & Others [1990] PNGLR 71. There, Hinchliffe J. in invoking s.53 (1) of the Lawyers Act, 1986, held that the Lawyers Statutory Committee denied the plaintiff natural justice, when he was not given the opportunity to address on penalty as provided in that section. Section 53 (1) specifically provides that the Lawyers Statutory Committee when inquiring into complaints has to observe principles of natural justice. That requirement is mandatory.

In that case, his Honour in support of his view, quoted from Hotop’s Principles of Australian Administrative Law, 6th Ed, at pages 199 to 200, where the learned author says:

"In the case of a disciplinary proceedings where after a finding of guilty, the penalty is not automatic and the decision maker has a discretion in the fixing of the appropriate penalty, the person affected is entitled to be given the opportunity to be heard separately on the question of penalty even in the case of non-statutory domestic body".

This principle is relevant and applicable to this case, and I respectfully adopt it.

The Police Force Act does not specially express the need to observe principles of natural justice, but it is clear that the principles of natural justice had to be accorded to the plaintiff, especially when the penalty imposed was the maximum and where the first defendant had the discretion in deciding on the appropriate penalty for the plaintiff.

Furthermore, and more importantly, the first defendant himself had acknowledged that the plaintiff was supposed to have been heard on his penalty. This is clear from the last paragraph of the Notice of Penalty, where the first defendant said;-

"A submission on penalty was not received at Police Headquarters".

This clearly means that the plaintiff had the right to be heard on penalty. But he was not given that opportunity before being dismissed from the Police Force.

It follows that in dismissing the plaintiff without giving him the opportunity to be heard on penalty, there was a clear breach of natural justice by the first defendant.

There is another point which is in plaintiff’s favour. That is, the plaintiff clearly was penalized twice. First was when he was transferred from CID to the General Duties Section after he was charged with the four disciplinary charges and before his dismissal. Transferring him from CID, which is where he was always attached, to the General Duties Section was a penalty on its own under s.46 (4) (d), which is a penalty provision and which provides -"in addition to or instead of imposing a punishment specified in Paragraph (c), transfer the member to other duties or to some other locality ..."

Consequently, the subsequent dismissal of the plaintiff from the Police Force amounted to double punishment.

For all these reasons, I find and declare that the dismissal of the plaintiff on 28th September 2000 was unlawful.

The plaintiff swore an affidavit on 18th November, 2002, where he says, he could not seek review of his dismissal without knowing the outcome of his criminal charge before the National Court.

He said, soon after his case was nollied on 20th May, 2002, he instructed the Public Solicitor’s Office in Mt. Hagen to seek judicial review against his dismissal but his review was not pursued by the Public Solicitor.

He also says in the affidavit that he subsequently instructed Powes Parkop Lawyers in Port Moresby to challenge his dismissal, but it was too costly for him because he had to pay for his airfares to and from Port Moresby to see the lawyers and pay for accommodation, meals and transport when in Port Moresby, so he withdrew his instructions to Powes Parkop Lawyers.

The current proceedings were instituted on 7th October 2002, which was just over four months after his criminal case was nollied.

In the circumstances I do not consider that there has been an undue delay by the plaintiff in making this application.

I therefore order that the plaintiff be reinstated to his previous position or if not, to a position equal to the position he held at the time of his dismissal from the Police Force.

I also order that his salaries, entitlements and other emoluments which he lost as a result of his dismissal be back dated to the date when such salaries, entitlements and emoluments were stopped from being paid to him and be paid to him.

I also order that his lost salaries resulting from his suspension from 6th November, 1998 to 15th February, 1999, without pay be fully reimbursed to him.

I direct that the parties through their lawyers enter into discussions immediately and agree on the amounts to be paid to the plaintiff in lost salaries and entitlements and decide on how and when they can be paid to him. This may require the parties to agree on a payment schedule.

The defendants will pay the plaintiff’s costs.
_____________________________________________________

Lawyers for the plaintiff: Kunai & Co. Lawyers.
Lawyers for the defendants: Public Solicitor.