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William v Tinga [2005] PGNC 62; N2910 (5 October 2005)

N2910

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO.562 OF 2004

BETWEEN

JEROME WILLIAM
Plaintiff

AND

GAIWARY TINGA
First Defendant

AND

SAM INGUBA, COMMISSIONER OF POLICE
Second Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: LAY,J
2005: 12th & 27th October

JUDICIAL REVIEW ─ Police Force Act 1998 ─ Police Commissioners powers of review ─ duty to exercise power ─ application of general policy ─ error of law ─ duty to provide and right to obtain reports.

Cases Cited:
John Worofang v Patrick Wallace [1984] PNGLR 144; SCR No 1 of 1990;
Re Recount of Votes [1990] PNGLR 441;
Singarok v Hon. Justice Jalina, Cosmar Bidar and Regina Saku and The State N2068; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214;
R v District Commissioner for East New Britain District; Ex Parte Chan consolidated Ltd [1971-72] PNGLR 36;
R v BP [1973] PNGLR 53;
Telepage Pty. Ltd v PTC N605;
Pierson Joe Kamingip v Bernard Orim [1998] PNGLR 95

Other References:
Police Force Act 1998; Police Force Act Chapter 65;
Judicial Review of Administrative Action, De Smith, Woolf and Jowell, 5th Ed

Facts:

The Plaintiff was charged with two disciplinary charges arising out of his driving of Police motor vehicle which ended up on its roof with extensive damage. The Police Commissioner through his authorised disciplinary officer decided that the Plaintiff was guilty as charged and that the appropriate penalty was dismissal from the Police Force. The Plaintiff complained that (1)the notice of charge gave a wrong reference to the source of the disciplinary officers powers (2) the Police Commissioner did not exercise his statutory power of review on request, and (3) the Plaintiff did not receive copies of photographs on which the First Defendant disciplinary officer relied on when making his decision.

Held:

(1) Not every error of reference to a law is an error of law; the wrong reference to the source of the disciplinary officer’s powers was only an error of form, made no difference to the disciplinary officer’s real powers and did not involve the decision. It was not an error which would cause the court to intervene. (2) a public officer vested with powers to be exercised at the request of another, should exercise them. The power can be exercised by reference to a standing policy provided the office indicates that the request has been considered and no reason found to depart from the policy. In this case the decision indicated that the policy had been applied and the request had not been considered. The Police Commissioner should reconsider the request for review and confirm or annul the decision in accordance with the provisions of the Police Force Act. (3) The photographs were part of a report. A member of the Police Force has a right, pursuant to Police Force Act s23 (3) (b) to receive a report to be considered in determining disciplinary charges against him if it is requested before the decision. The Plaintiff did not request the reports and was thus not entitled to receive part of a report after the decision was made.

Appearances:

Mr. L Tilto for the Plaintiff
No appearance for the Defendants

DECISION ON APPLICATION FOR REVIEW

LAY J: This is an application for judicial review of the decision of the First and Second Defendants to dismiss the Plaintiff from the Police Force. It does not appear from the supplementary file, which has been created on the loss of the original Court file, but counsel has informed me that leave was granted on 2nd November 2004.

Background

On 26th December 2002 at about 7:30 pm the Plaintiff was driving a Toyota Land Cruiser 10 seater registration number ZGB 586 with 8 other members of Mobile Squad Two. The Plaintiff says that they travelled from Tari to Kobalu where they were based, after informing their squad commander. On the return journey the Plaintiff picked up two villagers who were headed in the same direction. As the villagers were getting on the vehicle the Plaintiff realized that they were drunk and had beer with them. The villagers were dropped at Idawi Community School about 15 minutes drive past the police camp. One of the villagers gave the Plaintiff 4 bottles of beer which he said he had on the seat unopened with the intention of consuming them some other time.

As soon as the villagers were dropped off the Plaintiff drove onto the school playing field to turn the vehicle because the road was narrow. The Plaintiff did a ‘U’ turn but missed his chosen exit spot so did another turn when the vehicle slid went off balance and overturned coming to rest on its roof.

Subsequently the Plaintiff was charged with driving without due care and attention and driving under the influence of intoxicating liquor. On a plea of guilty he was found guilty on both charges in the District Court Mendi and sentenced to 8 months imprisonment. He appealed and the National Court Mt Hagen confirmed the conviction and reduced the sentence to 12 months suspension of license and a K500 fine, in default 15 days imprisonment.

The Plaintiff resumed duties on 20th January 2003 until he was charged on 21st November 2003 with a charge of disgraceful conduct. He replied on 25th November 2004. On 3rd August 2004 the Plaintiff was served with an undated Dismissal Notice. On 10th August 2004 the Plaintiff made an application to the Second Defendant to review his decision pursuant to s26(5), (6)(a) & (7) of the Police Force Act 1998. The Second Defendant replied on the 11th August in the following terms:

"I acknowledge receipt of your two letters dated 10th August 2004 requesting for a review and appeal of your dismissal from the Police Force.

The current Constabulary policy is that dismissed members will not be eligible for reinstatement unless there is a court order to that effect.

Should you be aggrieved be (sic) my decision you have the right to seek a judicial review by the National Court..."

Grounds of Review

The Plaintiff complains about the following matters in the making of the Second Defendant’s decisions:

1. The charge referred to Sub-division C of Division 7 of the Police Force as the provision under which it was laid. The reference is incorrect and refers to an unrelated matter of salaries and allowances;
2. The Second Defendant did not exercise his review jurisdiction but simply told the Plaintiff to go to Court if he was unhappy with the decision;
3. The Plaintiff was not furnished with photographs used by the First Defendant in making his decision.
   

Mistake in Reference Quoted

In the opening words of the charge served on the Plaintiff the disciplinary officer referred to his authority to charge as being found in "Sub-Division C of Division 7 of the Police Force Act Chapter 65." This is an error. The correct Act is the Police Force Act 1998. Part IV deals with discipline and Division 3 thereof deals with serious offences and appointing disciplinary officers to deal with them. The wrong reference is solely as to the disciplinary officer’s source of power. The charge and the Notice of Penalty referred to s20(1)(az) as being the section contravened by the Plaintiff’s behaviour. That section reads:

"s20(1) A member of the Force who:

(az) acts in any manner, whether by word, conduct or omission which is prejudicial to good order and discipline in the Force, or which reflects discredit on the Force;

is guilty of a disciplinary offence..."

Where there is a wrong reference to a section, I do not consider that it would invalidate a charge or a decision, so long as the facts which constitute the offence are clearly set out. It is the facts which form the offence not the section number: John Worofang v Patrick Wallace [1984] PNGLR 144 Bredmeyer J.

It is not every mistype or misquote which amounts to an error of law. It is impossible to give a complete definition of what amounts to an error of law:

"It includes the giving f reasons that are bad in law or (where there is a duty to give reasons) inconsistent, unintelligible or substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account, exercising discretion on the basis on any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Error of law also includes decisions which are unreasonably burdensome or oppressive: Judicial Review of Administrative Action, De Smith, Woolf and Jowell, 5th Ed. Para 5-90 (5).

A wrong reference to the disciplinary officer’s source of power in no way misleads the Plaintiff as to the nature of the charge he is to answer. It is not an error of law which affects the decision making process. It is an error of form only. The error has no affect on the real jurisdiction and power of the disciplinary officer. It is not a wrong view of the law which has been taken into consideration by the disciplinary officer.

"An error or law on the face of the record...is where the record of proceedings which background the authority’s decision and/or the decision itself contains an obvious error of law.": SCR No 1 of 1990; Re Recount of Votes[1990] PNGLR 441 (Kapi DCJ, Los and Sheehan JJ) per Sheehan J. In the case of Singarok v Hon. Justice Jalina, Cosmar Bidar and Regina Saku and The State N2068 (Sheehan J) the Court dealt with the misquoting of a paragraph of an Act both in the charge and in the decision. His Honour observed:

"While failure to quote the appropriate sub paragraph of s12 can be said to be an error of law on the face of the record, the discovery of error is not a self executing invalidation of the Tribunal finding. In Judicial Review the determination of the appropriate relief, if any, remains in the discretion of the Court. In this case I am satisfied that such error is quite insignificant to have any finding of the Tribunal set aside, because it is not an error in any way affecting the substance of the decision."

That observation applies with even more force in this case, where the error does not relate to the charge itself but to the reference to jurisdiction to administer the disciplinary provisions of the Act, upon which the error had no effect. I find that the error in this case is not such as could affect the decision sought to be reviewed and consequently not an error which requires the court to interfere in the decision making process.

Failure to exercise Jurisdiction

The relevant provision of s26 of the Police Force Act is as follows:

"26(5) Where a penalty is imposed under this section by a disciplinary officer, the member affected may, within seven days of notification to the member under Subsection (4) of the penalty, or within such further time as the Commissioner may allow, apply in writing to the Commissioner for a review of the decision.

(6) ...

(7) On a review under Subsection (5), the commissioner may confirm or annul the penalty and the decision of the Commissioner is final."

S26(5) grants a right to the Plaintiff which he exercised within the time stipulated by the Act. It is clear from the wording of the letter of the Second Defendant that the Second Defendant did not review the decision made with respect to the Plaintiff but simply applied a standing policy that "dismissed members will not be eligible for reinstatement unless there is a court order to that effect." In effect the Commissioner was saying he would not review the decision in the light of the matters put to him in the request for review. He would and did simply apply the policy.

The general principle often quoted in relation to the duty of a public officer to exercise his statutory powers is the statement by Lord Cairns LC in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 225 (referred to in R v District Commissioner for East New Britain District; Ex Parte Chan consolidated Ltd [1971-72] PNGLR 36 (Minogue CJ, Clarkson and Kelly JJ) and R v BP [1973] PNGLR 53 (Minogue CJ, Kelly & Williams JJ)

"Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is provided by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised."

Now I think it cannot be disputed that in this case the provisions of the Police Force Act 1998 s26(5), & (7) deposit with a public officer, namely the Police Commissioner, a power for the benefit of persons specifically pointed out, namely persons upon whom a penalty is imposed under s26. The conditions upon which the beneficiary is entitled to call for the exercise of the power are clear, it is within 7 days of imposition of the penalty. I therefore conclude that the Police commissioner ought to exercise the power of review when he is requested to do so.

It is not every decision to exercise a statutory power of review in accordance with a pre determined policy which might be impugned. The authorities support the view that it is only those decisions or lack of decision which indicate a refusal to consider any new matter contained in the request or indicate a refusal to consider the request. In the case of Telepage Pty. Ltd vPTC N605 Kapi DCJ his Honour referred to and relied upon the following passage from the judgment of Lord Reid in British Oxygen Co v Board of Trade [1970] UKHL 4; [1971] A.C. 610 @ 625 C:

"The general rule is that anyone who has to exercise a statutory discretion must not "shut his ears to an application"...I do no think there is any difference between a policy and a rule. There may be cases where an officer or an authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is refuse to listen at all. But a Ministry or a large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing."

The complaint which can be made about the Commissioner’s letter is, that on a fair construction of it, it indicates that the contents of the letter of request for review have not been considered. Now that may not be what happened at all, it may be that the contents of the letter of request for review were considered and the Commissioner came to the view that it’s contents did not warrant departing from the established policy. The commissioner’s letter does not indicate so. And so on this ground I think that the Court could and should remit the matter back to the Commissioner with a direction that the contents of the letter of request for review be considered. Further that the Commissioner make a decision in terms that he confirms or annuls the decision under review.

The Commissioner is free to make a decision consistent with an established policy provided that he indicates that he has considered the request for review and has found nothing in it to persuade him to depart from that established policy. Of course, the decision should make clear in terms of Police Force Act 1998 s26(7) what is the Commissioners decision.

Failure to provide copies of photographs

The written decision when notified to the Plaintiff, referred to photographic evidence. The Plaintiff says he was not provided with that evidence. It is a reasonable inference, which I make, that the photographs were part of a report considered in relation to the charge. The Police Force Act s23(3) provides:

"(3) On a charge being laid against a member of the Force that member shall-

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge; and

(c) be invited—

(i) to reply within 14 days, 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."

Firstly I note that this Act contains quite different provisions from the former Police Force Act Chapter 65, which had no provision for furnishing a member with reports. This Court held in several cases that on a proper construction of that former repealed Act, a member was not entitled to the reports. See for example Pierson Joe Kamingip v Bernard Orim [1998] PNGLR 95 Kapi DCJ (as he then was).

The provisions of s23(3)(b) of the current Police Force Act 1998 are of particular note. The member is entitled to the reports if he makes a request. The reports to which the member is entitled are those "which are to be considered", that is prospectively. It is clear from those words that the request is to be made before the charge is considered. There is no right to seek reports or parts of reports after the charge has been determined. There is no evidence before me that the Plaintiff made a request to be furnished with the reports before the charge was decided and I find that he did not. The provisions of the section are clearly designed to ensure that the disciplinary officer acts fairly in accordance with the rights contained in Constitution s59. The Plaintiff did not did not take the opportunity to request the reports. I find that there is no basis for the complaint of irregularity in this regard.

I therefore find that no ground of procedural error has been made out which requires that the decision to dismiss the Plaintiff be quashed. However it has been established that the decision of the Police Commissioner set out in his letter of 11th August 2004 should be quashed and the Commissioner directed to review the decision, to dismiss the Plaintiff, in accordance with law.

ORDERS:

1. The orders sought by the Plaintiff are refused;
2. The decision of the Second Defendant contained in his letter to the Plaintiff dated 11th August 2004 is quashed;
3. The Second Defendant is directed to review the decision to dismiss the Plaintiff, in accordance with law, and confirm or annul that decision in accordance with the provisions of the Police Force Act s26(7).
4. The Defendants are to pay the Plaintiffs costs of and incidental the proceedings.
   

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Lawyers for the Plaintiff : Kari Buni Lawyers