N4023

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 01 OF 2007 (JR)

Between:

GARI BAKI
Plaintiff

And:

ALLAN KOPI
First Defendant

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Injia, DCJ
2008: 31st May 31st, 15th July

JUDICIAL REVIEW – plaintiff applied for review of defendants ruling to commit him to stand trial at the National Court for contravening s.136 (1) (a) of Police Act – issue is whether the Courts ruling that an offence under s.136 (1) (a) does not apply to enlisted member of Police Force such as the plaintiff – s.136 (1) (a) Police Force Act 1988, Order 16 Rule 1 National Court Rules

JUDICIAL REVIEW – practice and procedure -plaintiff committed to stand trial for offence under s 136 (1) of the Criminal Code Act (Ch 262) - reference is an error - correct reference in notice of committal should be s 136 (1) (a) of the Police Act 1988 - Difference in application of s20 (1) (aw) and s136 (1) of the Police Act distinguished - plaintiff’s actions complained of do not fall under the wording and purpose of s 136 (1) (a) or s 20 (1) (aw) - charge laid under s 136 (1) (a) not authorized by law - District Court erred in law in committing plaintiff to stand trial on the said charge - application for judicial review granted - order in the nature of certiorari granted quashing decision of District Court to commit plaintiff to stand trial – s20 (1) (aw), s136 (1)(a) Police Act, O16 NCR
Cases Cited:

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 
Public Employees Association of Papua New Guinea v Napoleon Liosi & Public Services Commission [1988-89] PNGLR 585 
Pubic Employees Association v Public Services Commission [1983] PNGLR 206
Sudi Yaku v Commissioner of Police Ex parte The Independent State of Papua New Guinea [1980] PNGLR 27 

Counsel:

M Murray, for the Plaintiff
F Barton- Keen, for the defendants

15th July, 2008

1. INJIA DCJ: This is an application for judicial review made under O 16 of the National Court Rules. The plaintiff challenges the decision of the District Court sitting at Waigani presided over by the first defendant (the Court), made on 14th February 2007, in which the Court committed the plaintiff to stand trial on one count of contravening s 136 (1)(a) of the Police Act 1998 ("the Act"). The main issue before me relates to the Court’s ruling that an offence under s136 (1)(a) does not apply to an enlisted member of the Police Force such as the plaintiff. 

Facts:

2. The undisputed facts are that the plaintiff is an enlisted member of Force. He joined the Force in 1974. He was appointed Police Commissioner on 13 December 2006. On 8th December 2006, when he was the Deputy Police Commissioner, he was arrested and charged under s 136 (1)(a) of the Act. The charge emanated from an action he took in association with Assistant Commissioner of Police Raphael Huafolo, in refusing to implement a direction issued by the Acting Commissioner of Police to disband the National Crimes Squad which was responsible for investigating, and arresting the former Police Commissioner Mr Sam Inguba over certain allegations. The plaintiff’s action was alleged to have caused disaffection amongst members of the Force. 

3. An information was laid under s 136 (1) (a) of the Act before the District Court at Waigani. The matter proceeded by way of committal proceedings before the first respondent. Arguments were received from counsel representing the parties. The plaintiff’s contention was that an offence under s 136 (1)(a) does not apply to enlisted members because as an enlisted member of the Force, he was to be dealt with for the same matter under s 20 (1)(aw) by way of a disciplinary offence. The Court dismissed the argument and committed him to stand trial in the National Court. The notice of committal shows the plaintiff was committed to stand trial for an offence under s 136 (1) of the Criminal Code Act (Ch 262) but this reference is an error. I accept counsel’s submission that the correct reference in the notice of committal should be s 136 (1) (a) of the Police Act 1988.

Statutory provisions and principles on scope of judicial review

4. There is no dispute on this Court’s jurisdiction to review a committal decision of the District Court. There is some dispute over how this Court should exercise its discretion in matters concerning process of criminal investigation and prosecution. In the case before me, a decision on the application depends on proper construction of provisions in question which involve little or no exercise of judicial discretion. If on a proper construction of those provisions, the charge was not permitted in law, then the committal decision on that charge cannot stand and it must be quashed as a matter of law.

5. It is necessary to construe ss 20 (1) (aw) and s136 (1)(a) of the Police Act. Section 20(1)(aw) states:

"20.	Disciplinary offences.

(1)	A member of the Force who—

 (aw) does or attempts to do anything in contravention of Section 136;"

 Is guilty of a disciplinary offence and is liable to be dealt with and punished under this Section."

6. Section 136 states:

"136.	Causing disaffection.

(1)	Subject to Subsection (2), a person, who—

(a)	causes or attempts to cause, or does an act calculated to cause, disaffection among members of the Force; or

(b)	counsels or foments or attempts to counsel or foment a strike (whether or not such strike actually occurs), or who aids, abets or takes part in a strike that interferes with or prevents, or is intended or calculated to interfere with or prevent, the carrying on of any part of the duties or functions of the Force; or

(c ) induces or attempts to induce, or does an act calculated to induce, a member of the Force to withhold or limit his services or to commit a breach of discipline, is guilty of an offence.

Penalty:	Imprisonment for a term not exceeding five years.

(2)	Subsection (1) does not apply to or in relation to a person who, in good faith— (a) points out, or endeavours to point out, errors or defects in, or desirable alterations or improvements to laws, regulations or working conditions governing members of the Force; or

(b) induces members of the Force to attempt to procure by lawful means the alteration of any of the laws, regulations or working conditions governing members of the Force.

(3) For the purposes of this section the term "strike" means the act of any number of members of the Force—

(a) in discontinuing the performance of their duties whether wholly or partially, or in reducing the normal performance of their duties; or

(b)	in breaking their conditions of employment; or

(c)	in refusing or failing after such discontinuance to resume or return to their duties; or

(d)	in refusing or failing to accept engagement in any work in which they are usually employed; or

(e)	in reducing their normal output or their normal rate of work,

 due to any combination, agreement, common understanding or concerted action, whether express or implied, made or entered into by any members of the Force, but does not include an industrial organization meeting allowed under any law or authorized by the Commissioner.

(4) This section and Section 20(aw) apply notwithstanding any provision of the Industrial Relations Act (Chapter 174) or any other law." (my emphasis).

7. The principles on judicial review is settled. These principles were summarized in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 by Kapi DCJ (as he then was). The circumstances under which judicial review may be available include where the decision making authority exceeds its powers or commits an error of law. 

Plaintiff’s submissions

8. Counsel for the plaintiff submits the Magistrate committed an error of law when he ruled that s 136 (1)(a) applied to the plaintiff. The Magistrate failed to consider s 20 (1)(aw) in his ruling. It was within his jurisdiction to interpret these provisions and apply the correct interpretation to the case before him. This Court should perform that task. A proper construction of s 20 (1) (aw) is that the term "a member" of the Force in s 20 (1) (aw) means an enlisted member of the Force. Section (1) (aw) expressly makes an act which constitutes a criminal offence under s 136 (1) (a) a disciplinary offence. An enlisted member of the Force who commits an act which constitutes an offence under s136 (1)(a) can only be dealt with by way of disciplinary offence under s 20 (1) (aw). The term "a person" in s 136 (1) only refers to a person who is not covered by s 20 (1)(aw). Therefore s 136 (1) (a) only applies to civilian staff of the Force and members of the public. 

9. Further, s 136 is not a no-strike or anti-strike provision as found in other statutes governing the public service: see s 54 of the Public Service (Management) Act 1995. This section applies to all persons including members of the public with the exception of enlisted members of the Force whose conduct is covered by s 20 (1)(aw).

10. Finally, it is submitted s136 (4) supports the plaintiff’s argument that there are two distinct processes under s 20 (1)(aw) and s 136 (1) (a).

11. It follows that the plaintiff should have been charged and dealt with for a disciplinary offence under s 20 (1) (aw) and not by way of a criminal offence under s 136 (1)(a).

Respondents’ submissions

12. Counsel for the respondents submits s.3 and s.32 (1) of the Act are relevant to s 136(1). Section 3 says the Act applies to members of the Force whether inside or outside the country and s 32(1) says where a member of the Force is charged with a criminal offence other than a disciplinary offence, against the Police Act or any other Act, he may be suspended by the Commissioner. These provisions, by implication allows a member of the Police Force, wherever the member may be situated, to be charged with a criminal offence prescribed by the Act. The term "a person" in s 136(1) is not accorded a distinct meaning; it refers to a person who is also a "human being" and who is a member of the Force. Section 20 (1)(aw) does not preclude such a person from being charged with a criminal offence under s 136(1) for the same acts. If Parliament intended that a person who is an enlisted member of the Force was to be excluded from the application of s 136, it would have expressly said so, as it did in offences created under ss 137 and 138 of the Act. 

13. Further it is submitted that s 136 (1) (a) is not an anti- strike provision whereas s 136 (1) (b) and (c) are anti-strike provisions similar to s 54 of the Public Service Management Act. Section 136 as a whole applies to enlisted members and civilian staff members of the Force, as well as members of the public.

14. Finally it is submitted that s 136 (4) supports the respondents’ proposition that any person including enlisted members and civilian staff members of the Force who commit an offence under s 136 may be dealt with under s 136 (1)(a) and s 20 (1)(aw) separately.

Determination of issues

15. A preliminary issue arises as to whether separate prosecution for a disciplinary offence under s 20 (1) (aw) for an act which constitutes a criminal offence under s 136 (1) is permissible in law. The principles are settled. Subject to the express provisions of statute which may provide to the contrary, in a case where an act constitutes a criminal offence and a disciplinary offence, it is permissible to mount separate prosecutions, either simultaneously or sequentially. A successful disciplinary prosecution is not a bar to a subsequent criminal prosecution for the same acts or vice versa. A disciplinary offence is distinct from a criminal offence and the principle of double jeopardy does not apply: Sudi Yaku v Commissioner of Police Ex parte The Independent State of Papua New Guinea [1980] PNGLR 27; referred to in Public Employees Association of Papua New Guinea v Napoleon Liosi & Public Services Commission [1988-89] PNGLR 585 and approved in Pubic Employees Association v Public Services Commission [1983] PNGLR 206. In the present case there is no express provision which precludes a disciplinary prosecution under s 20 (1)(aw) and a criminal prosecution under s 136 (1) from being proceeded with either separately or simultaneously. Therefore, provided s 136 (1) applies to an enlisted member of the Force, the member may be dealt with under both provisions either simultaneously or separately. A prosecution for a criminal offence under s 136 (1), whether successful or not, is not a bar to a prosecution for a disciplinary offence under s 20 (1)(aw) and vise versa.

16. The question is whether s 136 (1)(a) applies to the plaintiff. It is necessary to construe the term " a person" in s 136 (1)(a). The principles of statutory interpretation are settled. The Court must give effect to the legislative intention and purpose expressed in the language used in the statute. If the words used in the statute are clear and unambiguous, the Court must adopt the plain and ordinary meaning of those words. There is no need for the Court to engage in any statutory interpretation exercise. If the words are not so clear or ambiguous, the Court must construe the words in a fair and liberal manner in ascertaining their meaning and give an interpretation which gives meaning and effect to the legislative intention in the provision. The purpose of words or phrases used in question should be read and construed in the context of the provision as a whole. The Court should avoid a technical or legalistic construction of words and phrases used in a statutory provision without regard to other provisions which give context and meaning to the particular word (s) and phrases in question.

17. In my view, the ordinary meaning of the term "a person" is never in doubt. It means a natural person, irrespective of his or her status in the community. The term is not accorded any special meaning in s 136 or in the Act. If Parliament intended that the term "a person" should have a special meaning, it would have expressly said so as it did in ss 137 and 138. Further, if Parliament intended that an enlisted member of the Force should only be tried for a disciplinary offence in respect of an act which constituted a criminal offence under s 136 (1), it would have expressly provided so in s 20 (1)(aw) and/or in s 136 (1) or anywhere in the Act. In the absence of such provision, the Court cannot under the guise of statutory interpretation create a provision which does not exist. Therefore, s 136(1) (a) clearly applies to any person including members of the Force, both enlisted members and civilian staff members, as well as members of the public. 

18. However, the purpose of s.136(1) (a) and indeed the purpose of s.136 as a whole is not clearly expressed in that provision. In order to understand the purpose of s.136 (1)(a), it is necessary to construe s.136 as a whole. The offences created by Subsection (1) (a) must be read together with other offences created under (b) and (c). Subsections (1) must then be read together with Subsections (2) and (3) and (4) to ascertain the legislative intent in s 136. 

19. In my view, s 136 is intended to cover actions of any staff member of the Force, both enlisted members and civilian staff members, as well as members of the public who have dealings with the Force, whose conduct causes or threatens to destabilize the proper and orderly functioning of the Force. The nature of the acts constituting "a strike" proscribed by Subsection (1)(a), the nature of the acts proscribed by Subsections (1)(b), the special definition of "strike" in Subsection (3) and the nature of the actions in terms of withdrawal or limiting of labour by the workforce proscribed in Subsection (1)(b), make it clear that s 136 is an anti- strike provision. Subsection 1 (a) covers actions which are calculated to create disaffection amongst members of the Force. The legislature, quiet logically, has placed this offence under Subsection (1)(a) because every strike originates from a source of grievance, agitation, dissatisfaction or disaffection amongst members of a workforce, over matters which interest them. Subsection (1)(b) and (c) naturally follow with prescription of various activities which constitute strike action. Subsection (3) follows with special definition of the word strike. Further, the express reference to provisions of the Industrial Relations Act (Chapter 174) in Subsection (4) which regulates strikes by organized workforces in the country, also make this legislative intention clear. Finally, other anti-strike provisions in other statutes which regulate the public service are expressed in language which are similar to s 136 (1): see s 54 of the Public Service Management Act, s 95 (1) of Teaching Service Act 1988.

Conclusion

20. In my view, the nature of the plaintiff’s actions complained of clearly do not fall under the wording and purpose of s 136 (1) (a) or s 20 (1) (aw). The actions complained of may constitute other disciplinary offences or criminal offences but they do not constitute a criminal offence under s 136 (1)(a) or a disciplinary offence under s 20 (1)(aw) of the Police Act 1998. 

21. I am satisfied that the charge laid under s 136 (1) (a) was not authorized by law on the facts presented before the District Court. I find that the District Court erred in law in committing the plaintiff to stand trial on the said charge. This specific issue was of course not addressed in the District Court. The plaintiff also has not specifically pleaded this issue in his grounds for judicial review pleaded in the Statement filed under O 16 r 3. However the issue has been fairly raised in the plaintiff’s arguments on the interpretation of s.136 (1) and also specific issues raised by this Court on the proper construction of this provision. It is an important issue of law of interest to the administration of the Force which requires attention and clarification by the Court. This Court is able to do so in this case. 

Orders:

22. The formal orders of the Court are:

1. That application for judicial review is granted.

2. An order in the nature of certiorari is granted quashing the decision of the District Court at Waigani made on 14th February 2007, to commit the plaintiff to stand trial on a charge under s 136 (1) (a) of the Police Act 1998.

3. The respondents shall pay the plaintiff’s costs of the proceedings.

_____________________________________________
Murray & Associates: Lawyer for the plaintiff
Solicitor-General: Lawyer for the respondents