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Dawa v Commissioner for Police [2005] PGNC 56; N2899 (2 September 2005)

N2899

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS NO. 75 OF 2005

BETWEEN:

ANTONIA DAWA
-Plaintiff--

AND:

SAM INBUGA – COMMISSIONER FOR POLICE
-First Respondent-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Second Respondent-

WAIGANI : Injia, DCJ
2005 : August 10th
September 2nd

JUDICIAL REVIEW – Dismissal of Member of Police Force on disciplinary grounds – Dismissal following criminal conviction for assault and imprisonment – Grounds of review – Error of law – Whether dismissal is automatic upon criminal conviction and imprisonment – Whether disciplinary process under Police Act applies – Police Act 1998, s.32(3.

Cases cited:
Kim Fond & Sons Pty Ltd v Minister for Physical and Planning N12464 (1996)
Kelly Kerua v UPNG N2534 (2004);
Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] I KB 223.

Counsel:
Mr Yandeken for the Plaintiff
K Isari for the First Respondent
Ken Cherake for the Second Respondent

2nd September 2005

INJIA, DCJ: This is an application for judicial review of the Police Commissioner’s decision to dismiss the Plaintiff from the Police Force on 18 February 2004 on disciplinary grounds. The application is filed under Order 16 of the National Court Rules. Leave to apply for Judicial review was granted on 9 June 2005. A Notice of Motion seeking the substantive relief was filed on 24 June 2005.

The brief facts are that on 18 December 2002, the Waigani District Court convicted the Plaintiff on a criminal charge of unlawful assault of one Mrs. Walaun and sentenced her to 12 months imprisonment. The whole of this sentence was suspended on eight (8) conditions, inter alia, that she pay K400.00 in compensation to the victim and she be placed on good behaviour bond for twelve (12) months. She paid the compensation to the victim. The Good Behaviour Bond period expired on 18 December 2003.

On 23 June 2003, the Plaintiff was charged with two disciplinary offences arising from the criminal conviction and related incidents, as follows:-

"That on the 27th of August 2002 at Tasion P:olice Barracks NCD, you did commit an act by assaulting Massain Walaun wife of First Constable Walaun inflicting serious injuries to her which may be a criminal offence."

"That on the 27th of August 2002 at Tasion Police Barracks NCD, you did act in a manner by word which is prejudicial to good order and discipline in the Force in that you insulted Nassain walaun wife of First Constable Walaun by saying "lukim brus tit ya mi brukim pinis yu save kaikai kok blong Dawa long en" "kan blong yu sting".

There is no evidence that she replied to the charges within the period stipulated in the charge documents.

On 9 July 2003, the Commissioner decided to dismiss her from the Police Force. The Commission gave the following reasons:

"The evidence contained in the attached statements in the file is sufficient to find you guilty on the charge levelled against you. Photographs and medical evidence corroborate the extent to which you violently assaulted Mrs. Walaun. The assault and use of insulting words towards Mrs. Walaun was unprovoked. It was only after the intervention of Mrs. Walaun’s two brothers that you ceased your violent behaviour. Such conduct by a serving member of the Constabulary is totally unacceptable.

On 18 December 2002 you appeared before Waigani District Court to answer charges of using Insulting Words and Unlawfully Assaulting Mrs. Walaun and was convicted and sentenced to twelve (12) months imprisonment, suspended for twelve (12) months. You were also ordered to pay K400.00 compensation.

For this reason I find you guilty as charged and by way of penalty, you are DISMISSED from the Force, effective from the date of service of this Notice of Penalty.

Reasons for the imposition of this penalty are as follows:-

• The nature and seriousness of the offence was taken into account;
  
• You were convicted at Waigani District Court on 18 December 2002 for charges arising from this matter and was sentenced to twelve (12) months imprisonment. The sentence was wholly suspended on conviction you was of good behaviour for a period of twelve (12) months;
  
• The medical and photographic evidence recording the extent of the injuries sustained to the victim were taken into account;
  
• Section 33(2) Police Force Act requires that a member of the Constabulary who has been convicted of an offence involving dishonesty or for which a term of imprisonment is imposed SHALL be dismissed forthwith from the Constabulary unless mitigating circumstances prevail. There are no mitigating circumstances in this case;
  
• As an experienced member of the Constabulary you would be aware of other options available to you to deal with such matters but instead, you chose to resort to unprovoked violence on another person;
  
• Members of the Constabulary are not above the law and cannot take matters into their own hands by violently resolving situations in the manner you did;
  
• Your discipline record was taken into account;
  
• Your behaviour in this case seriously breached Constabulary standards and 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 deterrent effect it will have on other members of the Constabulary."
  

The Amended Statement in Support filed on 25 May 2005, in para. 4, sets out nine (9) grounds of review as follows:-

"(a) The Police Commissioner wrongly dismissed the Plaintiff from the Police Force when:-

(i) the offences of "Assault" and "Insult" were not committed within the scope of the Plaintiff’s duty, and
(ii) on the face of the record the process upon which the delegated officer, Mr Andrews, OPM relied on to lay, the two (2) charges against the Plaintiff under section 20(1)(az) and section 20(1)(ay) of the Police Force Act was biased and with bad faith and influence as against the weight of evidence that the two (2) offences were not serious Criminal offences in nature.
(b) The Police Commissioner and his delegated officers erred in regarding the Plaintiff’s "insult" as a serious Disciplinary offence and dismissed the Plaintiff on that charge when insult was not a serious criminal or disciplinary offence, warranting dismissal.
(c) Further, the Police Commissioner and his delegated officers erred in regarding the Plaintiff’s "Assault" as serious Disciplinary offence and dismissed the Plaintiff on that charge when Assault was not serious disciplinary offence, warranting dismissal.
(d) The Police Commissioner wrongly applied section 33(2) of the Police Force Act to dismiss the Plaintiff from the Police Force when the statutory intention and meaning of the provision was for convicted persons who are serving their sentences in the prison and not for those whose sentence were suspended and pardoned or placed on good behaviour bond.
(e) The Police Commissioned erred in finding that there were no mitigating factors present in that based on the evidence before him, a reasonable tribunal would not have made an error in not finding any mitigating factors.
(f) The Police Commissioner and his delegated officers were unreasonable and unfair in recommending and imposing the penalty of dismissal against the Plaintiff in that they failed to consider that the Plaintiff was provoked with heated jealousy by the other woman having an affair with her husband and that the fight was inevitable, domestic and should not have been taken seriously by the Defendant and his delegated officers.
(g) The Police Commissioner’s finding that the Plaintiff had not provided a written explanation against the charges was against the weight of the evidence before him.
(h) The Police Commissioner erred in dismissing the Plaintiff from the Police Force, in that based on the evidence before him, a reasonable tribunal would not have imposed a penalty of dismissal against the Plaintiff.
(i) The penalty of dismissal from the Police Force was therefore too excessive, harsh and oppressive in the circumstances."

The challenge to the decision is based on two (2) main grounds: (1) breach of s.32(3) of the Police Act 1998 (raised by ground (d); and (2) on the exercise of discretion under the Wednesbury’s principle of reasonableness of the decision to charge her and find her guilty of the offences (raised by grounds (a), (b), (c), (g) and on penalty (raised by ground (e), (f), (h) and (i). I deal with the submissions on s.33 first. Section 33 provides:

"33. Person convicted of Criminal offence.

(1) Subject to Section 34, no person who has been convicted in any Court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or re-appointed to the Force.

(2) A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force."

Mr. Endeken submits the disciplinary process followed under Part IV, Division 1(s.18 – 20) (Introduction) and Division 3 (ss.23 – 27) (Serious Offences) in dealing with the plaintiff was in breach of s.33 in that upon criminal conviction for assault and imprisonment for twelve (12) months, by the Boroko District Court, she should have been dismissed forthwith. The disciplinary procedure was "unreasonable" in that the outcome – a dismissal - was pre-determined by operation of law and she should not have been put through the disciplinary process: Kelly Kerua v UPNG N2534 (2004); Kim Fond & Sons Pty ltd v Minister for Physical and Planning N12464 (1996) and Associated Provincial Picture Hosue Ltd v Wednesbury Corporation [1948] I KB 223.

Mr. Isari submits the plaintiff, like any other member, was dealt with under the normal disciplinary process under the Police Act and the Commissioner did not err in law. Upon criminal conviction, the member stood liable to be disciplined and that is the normal procedure for discharging and dismissing convicted members.

In my view, the submissions by plaintiff’s counsel is misconceived. The argument also does not assist the plaintiff’s cause for re-instatement she seeks in the event that her application is successful. Even if she succeeds in the application, she stands liable to be dismissed forthwith, as suggested by Mr. Endeken, simply by issuing an Instrument or Notice of dismissal under s.33(2), which takes effect forthwith by law, I agree with Mr. Bonner that it is open to the Commissioner to follow the disciplinary process to effect the dismissal. The process in my view accords with principles of natural justice, because the process by which the decision of the Court is ascertained is an investigative process and that may take place in the context of a disciplinary process which is set out in Part IV of the Police Act. It is also to the member’s advantage to be given an opportunity to be heard before he/she is dismissed and the disciplinary process affords that opportunity. The member cannot complain of unfairness or unreasonableness for being given the opportunity.

I think s.33(2) allows the Commissioner to dismiss the member forthwith, without giving the member an opportunity to be heard if it comes to his knowledge and there is material or evidence to support a criminal conviction and/or a sentence of imprisonment. I also think a member who is convicted and/or sentenced to imprisonment stands dismissed, by operation of law, effective from the date of conviction. And so even if I accept Mr. Endeken’s submission, the Commissioner would easily dismiss her with retrospective effect from the date of conviction.

In respect of the grounds under the Wednesbury principles of reasonableness and as to finding of guilt and sentence, I accept Mr. Isasri’s submission that the decision was not so unreasonable in the circumstances. The officer committed the offence whilst on duty for which she was convicted. The disciplinary offence of assault alone, was sufficient to warrant a dismissal. I agree with the Commissioner that the assault was serious, that injury was inflicted to the victim, and as a member of the Police Force, she was completely wrong by taking the law into her own hands. I agree with the Commissioner that her conduct "seriously breached Constabulary Standards and 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 serious impacted upon". The Commissioner is in a best position, than this Court, to assess the seriousness of the impact of undisciplined and criminal behaviour of members and I must defer to his judgment on all these type of matters. Having considered all the submissions and evidence on this issue, I dismiss the application with costs to the Respondent.
__________________________________________________________

Lawyer for the Plaintiff : Ketan Lawyers
Lawyer for the Respondent : Solicitor General