N5481

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 448 OF 2006

PETER TUPA
Plaintiff

V

COMMISSIONER OF POLICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2006: 14, 20 November
2007: 23 February

JUDICIAL REVIEW – application for review – plaintiff a former member of Police Force – dismissed for disciplinary reasons – allegedly obtaining money by false pretences – whether procedures under Police Act, Division IV.3 (serious offences) complied with – whether the officer who investigated the matter was appointed by the Commissioner under Section 24 (determination of the charge) – whether a lawful investigation was conducted under Section 24 – whether the report furnished to the Commissioner advising an opinion that charges were sustained and recommending dismissal evidenced a proper investigation – whether a copy of the report furnished to the Commissioner must first be given to the member, to reply to.

POLICE – disciplinary offences – relationship to criminal offences – whether acquittal of criminal charges prevents disciplinary charges being laid or continued in relation to same subject matter.

The plaintiff was a member of the Police Force. He was charged under the Criminal Code with committing criminal offences and charged, in relation to the same acts, under the Police Act with serious disciplinary offences. The National Court acquitted him of the criminal charges. He continued to face the disciplinary charges and was found guilty and dismissed from the Police Force. He sought and was granted leave for judicial review of his dismissal on various grounds relating mainly to alleged breaches of the procedural requirements of the Police Act. 

Held:

(1)	The officer who conducts an investigation into serious disciplinary offences must be duly appointed by the Commissioner under Section 24(1) of the Police Act.

(2)	To comply with Section 24 of the Police Act, an investigation must be a genuine investigation involving collection, assessment and weighing of evidence – not just a rehash of another investigation – and the report must, standing alone, demonstrate that a proper investigation has taken place.

(3)	The report to the Commissioner under Section 25(1) must be prepared by the disciplinary officer.

(4)	It is not necessary for the report under Section 25(1) to be furnished to the member charged.

(5)	The disciplinary officer must consider the explanations offered by the member charged.

(6)	Investigation and reporting of disciplinary offences and decisions by the Commissioner do not necessarily have to be put on hold if criminal proceedings relating to the same subject matter are pending.

Cases cited

The following cases are cited in the judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Clement Kilepak v Ellison Kaivovo (2003) N2402
Dicky Nanan v John Maru and Police Commissioner (1997) N1507
Geregl Mauglo v The Police Commissioner and The State (1998) N1728
Gideon Barereba v Margaret Elias (2002) N2197
Jim Kas v The Honourable Mr Justice Mark Sevua, Their Worships Mr Sition Passingan and Mr Mark Pupaka and The Independent State of Papua New Guinea (2000) N2010
John Magaidimo v Commissioner of Police (2004) N2752
Kita Sapu v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2426
Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797
Morobe Provincial Government v Minister for Village Services (1994) N1215
Ombudsman Commission v Peter Yama (2004) SC747
Paul Pora v Commissioner of Police (1997) N1569
Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123
Peter Luga v Richard Sikani (2002) N2285
Pierson Joe Kamangip v Bernard Orim and The State [1998] PNGLR 95
Sudi Yaku v Commissioner of Police and The State [1980] PNGLR 27
Toll v Kibi Kara and Others [1990] PNGLR 71

JUDICIAL REVIEW

This was an action in which the plaintiff sought judicial review of his dismissal as a member of the Police Force.

Counsel

P Tupa, in person, & R Uware, for the plaintiff
P Ifina, for the defendants

23rd February, 2007 

1. CANNINGS J: This is a judgment on an application for judicial review. The plaintiff is seeking review of his dismissal as a member of the Police Force. The case raises issues about what standards are to be met when an internal investigation is conducted into allegations against a police officer and what procedures are to be followed to give the officer the right to be heard. 

2. The plaintiff relied on two affidavits by himself. He deposed to the nature of the allegations against him, the criminal charges he faced and the course of events that led to him being dismissed from the Force.

3. For the defendants, one affidavit was relied on. It was by Chief Sergeant Alphonse Maipe who is attached to the Discipline Section of the Internal Affairs Directorate at Police Headquarters. He states that he oversighted the adjudication process for the plaintiff's disciplinary charges, prepared an adjudication report and recommended to the Director of Internal Affairs that the plaintiff be dismissed due to the serious nature of the offences and the strong evidence available. He annexed a copy of his report and various documents relating to the allegations against the plaintiff.

4. No oral evidence was called. The only disputed fact that is significant is whether the plaintiff responded to the disciplinary charge. I make a finding on that issue below.

BACKGROUND 

5. The plaintiff joined the Police Force on 5 February 1980 and served continuously until the date of his dismissal, 3 March 2004. He then held the rank of Sergeant and was stationed at Ambunti, East Sepik Province.

6. On 12 June 2002 he was charged under the Criminal Code with stealing and false pretences in connexion with his alleged fraudulent receipt of bail and other money from individuals facing criminal charges. The offences were allegedly committed at Ambunti in March 2001. He was committed for trial in the National Court.

7. On 20 August 2002 he was suspended from duty because of the criminal charges against him. The suspension was uplifted and he resumed duty on 18 September 2002 by virtue of a direction from the East Sepik PPC Chief Supt Leo Kabilo.

8. In the meantime, however, on 2 September 2002 Chief Supt Kabilo issued nine disciplinary charges against the plaintiff regarding the same matters over which he had been criminally charged and suspended. The charges were served on him on 26 September 2002 at Ambunti Police Station. The charges were in nine separate documents each headed "Serious Disciplinary Offence Report". All the documents used the same format and wording except for the meat of the charge that appeared beneath the number of each charge.

9. For example, the first document, containing the first charge, stated:

I, Leo KABILO, Chief Superintendent, being a Commissioned Officer authorised by the Commissioner of Police to lay charges as per Section 19 Part IV of the Police Force Act and having reason to believe that you have committed a disciplinary offence other than that which is or is intended to be dealt with as a minor offence as per Section 22 of the said Act, do hereby charge you as follows:

(Insert here a full wording of the charge under Section 20 of the Police Force Act)

First Charge:
On the 30th day of March, 2001 at Ambunti/Wewak, East Sepik Province, did by false pretence and with intent to defraud obtained from one Sam Nidum K1,000.00 in cash as bail money and with intent thereby than to defraud the said Samson Nidum.

Thereby contravening Section 20 (ay) of the Police Force Act (Insert sub section)

You so desire the charge will be explained to you by a senior officer of police and in addition you are also entitled to be furnished with a copy of all reports that are to be considered in relation to the charge. If you wish to have the charge explained to you and/or be supplied with a copy of the said report, you should contact your Police Station Commander or Officer in Charge immediately. If any further report subsequently becomes available, a copy of this report shall be served on you and you shall have a right of reply to this.

You are invited to provide a response to this charge within 14 days if the charge has been served personally on you, within 28 days if the charge has been posted to you as per Subsection 4(b) of Section 23 of the Police Force Act. You should provide in this response any explanation you desire in regard to the charge and should also provide any submission you may wish to make in relation to penalty should the charge be sustained.

If a response is not provided by you within 14 days of you being served personally with a copy of this charge, or within 28 days of a copy of this charge being mailed to you as per Subsection 4(b) of Section 23 of the Police Force Act, you will be deemed to have denied the truth of this charge.

10. The total amount alleged to have been fraudulently obtained was approximately K16,000.00.

11. I find that the plaintiff responded to the disciplinary charges by a three-page letter to the PPC dated 7 October 2002. He submitted that he was the victim of a frame-up by another police officer. He maintained that he was an honest officer with a good name in the Ambunti District. He urged the PPC not to make a decision on the charges until the criminal charges against him (which he submitted were also a frame-up) were determined. Chief Sergeant Maipe states on more than one occasion in his affidavit that the plaintiff did not respond. But there is no evidence of any checks being made to ascertain that fact. The plaintiff states in his affidavit that he did respond and that fact is asserted in the Order 16, Rule 3(2)(a) statement. The defendants have had the opportunity to rebut it, eg by presenting evidence of due diligence procedures conducted to confirm that a response was not received. The defendants have not adequately rebutted the plaintiff's evidence. That is why I find that he did, in fact, respond.

12. On 22 January 2003 Chief Supt Kabilo referred the matter to the Assistant Commissioner for the Momase Region, Rafael R Huafolo QPM, Divisional Headquarters, Lae, strongly recommending that the plaintiff be dismissed from the Force.

13. On 7 February 2003 ACP Huafolo referred the matter to the Director of Internal Affairs. He said that he had considered the charges at length and recommended dismissal.

14. The Director referred the matter to Chief Sergeant Alphonse Maipe who oversighted an "adjudication process" and prepared a 13-page report for the OIC Discipline. The report, dated 18 August 2003, gave details of each charge and the findings of fact made but did not actually refer to the evidence in support of the findings. For example, on charge No 1 the report stated:

The complainant in this matter is Mr Nathan Singep of Yarakai village Ambunti District ESP. It was alleged that on 20th of March 2001 the complainant was arrested by the subject member for buying unregistered firearm at Ambunti police station.

After arresting the complainant the member demanded three thousand kina (K3,000.00) from the complainant for his release, but the complainant only had K500.00 cash on hand, so he gave the member K500.00 and again the member asked the Complainant to give him the hand-watch valued at K60.00.

He then released the complainant and told him to come back next day, which was 21.03.2001 to complete the full payment before he can be released free.

Next day 21st of March 2001 the complainant went back to Ambunti police station as instructed by the member. The complainant then paid another amount of K1,800.00 to the member. The member again asked the complainant to buy him a carton of beer. The complainant was a non-drinker so instead of buying him a carton of beer he gave him K90.00 cash money.

By false pretences by the member to the complainant, the complainant on reasonable grounds that it was true he gave the member the total amount of K2,450.00.

The member then told the complainant that after the court case the complainant would come and get all his money and his hand-watch back.

After a month on 24th April 2001 the complainant went back to Ambunti Police Station to check with his court case for arrangement to travel to Maprik, but there was no arrangements and up until now the complainant did not get his money and hand-watch, and the member had done away with the complainant's money and the hand-watch.

15. The findings on the other eight charges were similarly expressed. No reference was made to the particular witness statement or other piece of evidence relied on to support each finding. It appears that no fresh investigation was done and that Chief Sergeant Maipe relied on witness statements, the plaintiff's record of interview and other documents pertaining to the criminal charges in the criminal investigation file. The report went on to state:

There is sufficient evidence in the attached statements in the file to find the member guilty on all nine counts.

The member did not submit any reply to the charges either to admit or deny the charges. But according to the evidence provided by all the witnesses in the file had strongly implicated the member to the offences.

16. The report noted that the plaintiff had been committed to stand trial in the National Court at Maprik regarding the charges but had failed to turn up and a warrant was issued for his arrest. There was more than enough evidence to conclude that he committed the disciplinary offences and that each offence was serious enough to warrant dismissal, the report concluded.

17. On the day he received the adjudication report, 18 August 2003, the Director of Internal Affairs, Chief Supt John Maru, wrote a minute to the DCP Administration, enclosed the report, stated that the plaintiff had been found guilty and recommended dismissal.

18. On 19 August 2003 the DCP Administration referred the matter to the first defendant, the Commissioner of Police, Sam E Inguba QPM, who endorsed the recommendation for dismissal and referred the matter back to the DCP Administration to prepare a notice of penalty for service on the plaintiff.

19. A notice of penalty of six pages was then signed by the Commissioner. After reciting the charges the Commissioner stated:

There was no written explanation received from you at Police Headquarters and this was taken into consideration when arriving at the decision. …

The evidence contained in the attached statements in the file is sufficient to find you guilty on all nine charges levelled against you.

It was established in the evidence in the file that you did commit these offences of false pretences. Your criminal actions had created a very bad relationship between the members of the public and the Constabulary.

The people of Ambunti District no longer have trust and confidence in the Police Force because of your untrustworthiness, attitude and behaviour.

Your criminal intentions have seriously breached constabulary standards and community expectation of your conduct as a member of the Police Force and should not be allowed to continue.

20. The Commissioner stated in relation to each of the nine charges that he found the plaintiff guilty as charged and the penalty was dismissal from the Force.

21. On 27 August 2003 the Commissioner forwarded the notice of penalty to the PPC for East Sepik and directed him to arrange service on the plaintiff. That process took over six months to complete.

22. On 3 March 2004 the notice of penalty was served on the plaintiff at Wewak and he was thereby dismissed from the Force.

23. Meanwhile the criminal charges continued to be dealt with. Twelve months after the plaintiff was dismissed from the Force, on 23 March 2005, Sawong J, sitting in the National Court at Wewak, upheld an application by defence counsel under Section 552(4) of the Criminal Code for the discharge of the plaintiff from the criminal charges.

24. The plaintiff made a number of requests for reinstatement to the PPC and Police Headquarters throughout 2005 and the first half of 2006, arguing that he had been acquitted of the criminal charges and his dismissal should be reviewed. These requests were not acceded to.

25. On 27 June 2006 he filed an application for leave to seek judicial review in the National Court at Madang. On 25 August 2006 Davani J granted leave and directed the first defendant to respond to the plaintiff's request for reconsideration of the decision to dismiss the plaintiff.

26. On 17 October 2006 the Acting Commissioner of Police, Tom Kulunga OBE QPM DPS, wrote to the plaintiff, indicating that the penalty of dismissal stood. As for the criminal case, the Acting Commissioner stated:

Your criminal case for the alleged offences have been dismissed because the key witnesses did not turn up due to transport difficulties because of the location where your criminal case was held. That does not mean that there is no evidence.

27. I heard the substantive application for judicial review in Madang on 14 and 20 November 2006. The plaintiff represented himself as his lawyer, Mr Uware of the Office of the Public Solicitor, was unable to attend. The plaintiff said he wanted his case heard though his lawyer was absent. Mr Ifina, of Police Headquarters, represented the defendants on the 14th. He was not present on the 20th but the hearing on that day was brief. In addition to the oral submissions made on the 14th I have considered written submissions by both Mr Uware and Mr Ifina.

THE ORDER 16, RULE 3(2)(a) STATEMENT

28. The statement filed under Order 16, Rule 3(2)(a) of the National Court Rules is the document that sets the parameters of these proceedings. Order 16, Rule 3(2) (grant of leave to apply for judicial review) states:

An application for leave [to apply for judicial review] must be made by originating summons … and must be supported—

(a)	by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b)	by affidavit, to be filed before the application is made, verifying the facts relied on.

29. If leave is granted the plaintiff is constrained by the relief sought and the grounds on which it is sought that are set out in the Order 16, Rule 3(2)(a) statement, unless leave is granted to amend the relief or the grounds. This is the case per force of Order 16, Rule 6 (statements and affidavits), which relevantly provides:

(1)	Copies of the statement in support of an application for leave under Rule 3 must be served with the notice of motion [by which the application for judicial review is made] and, subject to Sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.

(2)	The Court may on the hearing of the notice of motion allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

30. Five grounds of review were pleaded in the Order 16, Rule 3(2)(a) statement and during the hearing I granted the plaintiff leave to add one more. The six grounds are:

1	The First Defendant/Respondent has acted in excess of his jurisdiction under Section 24 of the Police Act by not appointing a disciplinary officer.

2	Investigations were not conducted into the allegations and no disciplinary report was made.

3	A disciplinary report was not furnished to the First Defendant/Respondent with recommendations for punishment, and therefore dismissal of Plaintiff/Applicant by First Defendant/Respondent was ultra vires Section 25 of the Police Act.

4	A disciplinary report was not made available to the Plaintiff/Applicant for him to reply and as such the First Defendant/Respondent's decision to dismiss Plaintiff/Applicant without according the Plaintiff/Applicant of this statutory right contravenes Section 24 of the Police Act.

5	The First Defendant/Respondent proceeded to dismiss the Plaintiff/Applicant although explanation provided by Plaintiff/Applicant and statements obtained from witnesses provide that Plaintiff/Applicant was not guilty of the allegation contained in the charges.

6	The first defendant acted unreasonably by dismissing the plaintiff when he was still attending to his criminal case which had yet to be decided by the National Court.

31. The plaintiff seeks the following primary orders:

•	the notice of penalty be quashed;
•	reinstatement;
•	entitlements back-dated to the date of dismissal;
•	damages.

DISCIPLINARY PROCEDURES

32. The Commissioner's decisions to lay the charges, find the plaintiff guilty of a serious disciplinary offence and dismiss him from the Police Force were made under the Police Act No 37 of 1998, which commenced operation on 1 February 1999. (See the long title to the Police Act and the notice of commencement published in National Gazette No G18 of 1 February 1999).

33. Serious disciplinary offences against members of the Police Force are dealt with under Division IV.3 (serious offences) of the Police Act 1998, which provides:

23.	Dealing with serious offences.

(1)	Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(2)	A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.

(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.

(4)	A charge or other documentation is deemed to have been furnished to a member under this section—

(a)	where it has been personally served on the member; or

(b)	where, it being unreasonable because of distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.

(5)	Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4)(a) or within 28 days after posting in accordance with Subsection 4(b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24.

24.	Determination of charge.

(1)	In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2)	Where a disciplinary officer is appointed under Subsection (1) that officer shall be—

(a)	a person other than the person who has charged the member; and

(b)	of superior rank to the member charged.

(3)	The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4)	Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.

25.	Imposition of penalty where charge sustained.

(1)	After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2)	The Commissioner after considering the report referred to in Subsection (1), may, where—

(a)	the disciplinary officer is of the opinion that the charge has been sustained; and

(b)	the Commissioner concurs with that opinion,

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26.

(3)	Where—

(a)	the disciplinary officer reports that in his opinion the charge has not been sustained; and

(b)	after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained,

the Commissioner shall dismiss the charge.

(4)	Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.

(5)	Where the Commissioner imposes a penalty under Section 26(1), other than a penalty in terms of Paragraph (g) of that subsection, the Commissioner may, in addition to such penalty direct that the offending member complete a course of retraining in accordance with Section 26(2).

(6)	A retraining course for the purposes of Section 26(2) shall comprise such course of training and instructions as the Commissioner determines, and may include an examination or examinations.

(7)	Where, at the conclusion of such time as the Commissioner may allow, the offending member has satisfactorily completed the retraining course, and passed any examinations connected therewith—

(a)	the penalty in the case of a fine, or forfeiture of pay, may, in the discretion of the Commissioner be remitted in whole or in part, and the proportion so remitted shall be repaid to the offending member; and

(b)	any reduction in rank or salary may be reversed in whole or in part as from the date of satisfactory completion of the retraining course, and the passing of the examination.

26.	Penalties for serious offences.

(1)	Subject to Subsection (2), any one or more of the following penalties may be imposed under this Division:—

(a)	a fine not exceeding K200.00;

(b)	reduction of the member's salary;

(c)	forfeiture of not more than four weeks' pay;

(d)	reduction of the member to a rank having a lower classification, and to a salary within that classification;

(e)	in addition to or instead of a punishment specified in Paragraph (d), the transfer of the member to other duties;

(f)	in addition to or instead of a punishment specified in Paragraph (d) or (e), the transfer of the member to some other locality;

(g)	dismissal of the member from the Force.

(2)	In addition to any penalty imposed under Subsection (1)(a) to (f) inclusive, the Commissioner may also require the member to undergo a course of re-training.

(3)	The penalty specified in Subsection (1)(f) shall not be imposed on a member of the Community Auxiliary Police or on a Special Constable.

(4)	The Commissioner shall notify a member of a penalty imposed on that member.

(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)	An application under Subsection (5) for a review may be effected by—

(a)	delivery in person to a disciplinary officer; or

(b)	sending the application by ordinary post addressed to the Commissioner; or

(c)	delivery in such other manner as may be approved by the Commissioner,

and is deemed to have been made on the day on which it is so delivered or posted.

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

(8)	The Commissioner may direct that a penalty imposed under Subsection (1) by a specified rank of disciplinary officers shall not be put into execution until confirmed by him.

(9)	The power conferred on the Commissioner for this section to confirm a penalty is deemed to include the power to increase or otherwise to vary the penalty in any way not inconsistent with this Act.

(10)	The power of the Commissioner to delegate under Section 17 is limited for the purposes of Subsections (6) and (7) to a power to delegate to a member of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made.

27.	No right to appeal.

The Commissioner's decision in respect to the finding of guilt and in respect to penalty for serious disciplinary charges is final.

MAJOR ISSUES 

34. The issues in this case emerge from the grounds of review and the relief sought. That is:

1	Did the Commissioner err by having the matter investigated by an officer who was not a duly appointed disciplinary officer?

2	Did the investigation fail to comply with the legal requirements? 

3	Was an improper disciplinary report furnished to the Commissioner?

4	Did the Commissioner err by not making the disciplinary report available to the plaintiff for him to reply to?

5	Did the Commissioner err by dismissing the plaintiff without considering his response? 

6	Did the Commissioner act unreasonably by dismissing the plaintiff when his criminal case was pending?

7	What relief, if any, should be granted?

FIRST ISSUE: DID THE COMMISSIONER ERR BY HAVING THE MATTER INVESTIGATED BY AN OFFICER WHO WAS NOT A DULY APPOINTED DISCIPLINARY OFFICER?
 
35. Yes. Section 24(1) of the Police Act was not complied with. Chief Sergeant Maipe was not a disciplinary officer appointed by the Commissioner. Therefore his report was made contrary to Section 24 of the Police Act. 

SECOND ISSUE: DID THE INVESTIGATION FAIL TO COMPLY WITH THE LEGAL REQUIREMENTS?

36. Yes. Even if Chief Sergeant Maipe was properly appointed his report was made contrary to the Act as it showed that no proper investigation was carried out. There was no separate investigation. There was no reference to the evidence, no reference to any documents, no cross-referencing to the exhibits, no testing of the witness statements, no weighing of evidence. The document that was referred to the Commissioner was not a report within the meaning of Section 25(1) of the Act. 

THIRD ISSUE: WAS AN IMPROPER DISCIPLINARY REPORT FURNISHED TO THE COMMISSIONER?

37. Yes, due to the answers to issues Nos 1 and 2.

FOURTH ISSUE: DID THE COMMISSIONER ERR BY NOT MAKING THE DISCIPLINARY REPORT AVAILABLE TO THE PLAINTIFF FOR HIM TO REPLY TO?

38. No, there was no obligation to make this report available under Section 25(3). 

FIFTH ISSUE: DID THE COMMISSIONER ERR BY DISMISSING THE PLAINTIFF WITHOUT CONSIDERING HIS RESPONSE? 

39. Yes. He did respond and the disciplinary officer should have gone out of his way to ascertain whether he had responded.

SIXTH ISSUE: DID THE COMMISSIONER ACT UNREASONABLY BY DISMISSING THE PLAINTIFF WHEN HIS CRIMINAL CASE WAS PENDING?

40. No. He did not have to wait. If there had been a proper investigation of the disciplinary charges and the plaintiff had been given the right to be heard and the Commissioner had considered his response, and then dismissed him while the criminal charges were pending, that would not necessarily have been unlawful. It will depend on the circumstances however, see Saboko's case.

SUMMARY OF DETERMINATION OF GROUNDS OF REVIEW

41. To sum up:

•	ground No 1 – disciplinary officer not appointed – is upheld;
•	ground No 2 – improper investigation – is upheld;
•	ground No 3 – improper report – is upheld;
•	ground No 4 – failure to furnish disciplinary report – is dismissed;
•	ground No 5 – failure to consider response – is upheld;
•	ground No 6 – dismissing plaintiff while criminal charges pending – is dismissed.

42. Four of the six grounds of review have been upheld and the decisions of the Commissioner to find the plaintiff guilty and dismiss him are therefore ripe for judicial review.

FINAL ISSUE: WHAT RELIEF, IF ANY, SHOULD BE GRANTED?

43. The plaintiff has succeeded in proving an error of law on the part of the Commissioner of Police. The next question is: what remedies should the court grant? This sort of issue was explained recently by the Supreme Court (Jalina J, Cannings J, Manuhu J) in Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797 in these terms:

It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

… in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the … proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.

44. The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified. Here it was the Commissioner's decisions to find the plaintiff guilty of the nine charges and dismiss him (made in August 2003 and given effect in March 2004) that have been found to have been infected by errors of law. The decision to find the plaintiff guilty cannot stand and therefore it will be quashed. It follows that the decision to dismiss the plaintiff from the Police Force cannot stand and will also be quashed. The plaintiff's Order 16, Rule 3(2)(a) statement expressly sought orders of that nature.

45. The next issue is whether I should remit the matter to the first defendant, the Commissioner of Police, and direct that he re-make his decision whether to find the plaintiff guilty in accordance with law (ie an order in the nature of the prerogative writ of mandamus). Or whether I should simply order that the plaintiff be reinstated. As the Supreme Court indicated in Asiki the former remedy is a more classical style of order for judicial review and faithful to the common law pedigree of this area of administrative law, which suggests that the courts should refrain from entering the arena of the executive arm of government. There is, however, a considerable body of case law showing that the courts in Papua New Guinea have not been reluctant to take the latter approach, particularly in regard to public servants who have been dismissed from office as a result of a decision-making process found to have been unlawful. For example in Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123 the court ordered the reinstatement of a hospital pharmacist who had been unlawfully dismissed even though he had not asked to be reinstated.

46. I consider that the interests of justice require that the plaintiff be reinstated to his former position or to an equivalent position and I will make an order accordingly. It follows that the first defendant's decision to dismiss the plaintiff with effect from 25 September 1998 will be quashed.

47. The final issue is back-pay. Should the plaintiff be compensated for the loss of salary and other entitlements he incurred from the date of his dismissal to the date of his reinstatement? By the time that he is reinstated this will be a period of about three years.

48. As the Supreme Court emphasised in Asiki all remedies in judicial review proceedings are discretionary. If a person succeeds in establishing that he has been unlawfully dismissed from public employment and that he should be reinstated it does not necessarily follow that the court will order back-pay, ie payment of salary and other emoluments lost in the period since dismissal. Different approaches have been taken in the past. 

49. On the one hand the courts have stressed that dismissed public officials who succeed in judicial review should not necessarily receive a windfall gain, ie 'get paid for doing nothing', if they are reinstated by order of the court. Cases in this category include: Paul Pora v Commissioner of Police (1997) N1569, National Court, Injia J; and Gideon Barereba v Margaret Elias (2002) N2197, National Court, Sevua J. 

50. On the other hand there is a group of cases where the courts have ordered that the public official be both reinstated and paid salary and other emoluments lost by being unlawfully dismissed. Cases in this category include: Morobe Provincial Government v Minister for Village Services (1994) N1215, National Court, Salika J; Peter Luga v Richard Sikani (2002) N2285, National Court, Sakora J; Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; and John Magaidimo v Commissioner of Police (2004) N2752, National Court, Gavara-Nanu J. Asiki's case ultimately fell into this category.

51. In the circumstances of this case I will take a centreline approach that balances the conflicting interests at play. On the one hand, the court can show some compassion to someone like the plaintiff who has been fighting his case for many years and ultimately won a judicial review after being unlawfully dismissed. On the other hand, I do not feel comfortable in ordering that a considerable sum of public money be paid to someone who has not been gainfully employed by the State for almost three years. 

52. I will exercise my discretion by ordering that the plaintiff be paid a sum of money equivalent to the salary and emoluments payable in respect of the position he held or its equivalent, in the period from the date of commencement of these proceedings – 27 June 2006 – to the date of his reinstatement. I consider that that is a just outcome. I will make the order subject to further assessment by the National Court.

ORDER

53. I grant the application for judicial review and direct entry of judgment in the following terms:

1	the decision of the first defendant, the Commissioner of Police, conveyed by the "Notice of penalty for serious disciplinary offence", served on the plaintiff, Peter Tupa, on 3 March 2004, finding the plaintiff guilty of nine serious disciplinary offences, is quashed;

2	the decision of the first defendant, the Commissioner of Police, conveyed by the "Notice of penalty for serious disciplinary offence", served on the plaintiff, Peter Tupa, on 3 March 2004, dismissing the plaintiff from the Police Force, is quashed;

3	the first defendant, the Commissioner of Police, must reinstate the plaintiff to his former or an equivalent rank or position in the Police Force, or if his former or equivalent rank or position is unavailable he must be reinstated in a way that makes him an unattached officer and in either case he must from the date of reinstatement be paid salary and other emoluments at a level equivalent to those paid in respect of his former rank or position;

4	reinstatement of the plaintiff must be effected within 60 days after the date of entry of this judgment;

5	the Commissioner of Police and the State must pay to the plaintiff a sum of money equal to the salary and emoluments, less tax, payable in respect of the rank or position he held or an equivalent rank or position, in the period from 27 June 2006 to the date of his reinstatement;

6	for purposes of assessment of that sum this matter shall be remitted to the National Court at Madang and the Registrar of the National Court or his delegate shall set the matter down for hearing for those purposes within 60 days after the date of entry of this judgment;

7	costs of these proceedings are to be paid by the Commissioner of Police and the State to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
____________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for Defendants