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Tengerepa v Baki [2011] PGNC 221; N4557 (11 July 2011)

N4557
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 406 OF 2009

BETWEEN:

CHRISTOPHER TENGEREPA
Plaintiff

AND:

GARY BAKI, COMMISSIONER FOR POLICE
First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Lae: Batari, J
2011: 11th July

JUDICIAL REVIEW – Administrative decision of Police Commissioner to dismiss policeman for disciplinary cause - Review of - Grounds for review – Principles applied – Charge laid under Police Act 1998 but wrongly referenced under repealed Police Act – Whether error of law – Minor technical error – No error of law

JUDICIAL REVIEW – Natural justice – Right to be heard on penalty – Breach of – Relief sought Reemployment - Whether in interest of good administration – Applicant's position having been abolished and applicant having reached retirement age is against good administration – Application for judicial review refused and dismissed

Cases cited:

Kekedo v. Burns Philp [1988-89] PNGLR 22
Attorney General Gene v. Hamidian Rad [1999] PNGLR 444
Robin Aegaiva v. Gari Baki & The State (2009) N 3693
Michael Winmaram v David Ericho and The State (2006) N 3040
Tau Kamahuta v Sode (2006) N 2998
Asiki v Zurenuoc (2005) SC 797

Counsel:

S. Toggo, for the Plaintiff
J. Kerenge, for the Defendants

11 July, 2011

1. BATARI J: Overview: The plaintiff, Christopher Tengerepa was a serving member of the Royal Papua New Guinea Constabulary (the Police Force) when dismissed in mid 2005 on disciplinary cause. His appeal was refused by the Police Commissioner. Christopher now applies for judicial review, leave having been granted on 18th September 2009.

Background

2. The plaintiff joined the Police Force on 4 April 1977. He served in various Provincial police locations before his transfer to Lae Police Station in 1980 on the rank of First Constable. He was attached to General Duties. On 1 August, 2005 he was charged with a serious disciplinary offence and dismissed from the Force following a guilty finding.

3. The disciplinary action against the plaintiff arose from these events. On 1July, 2005 he was on escort duty transfering detainees from Lae Police Cells to Lae District Court. The Police Cell keys were then in his possession. Before he left with the detainees, he handed the Cell keys to a juvenile detainee with instructions to give the keys to the Cells Officer-In-Charge (OIC) who was then attending to other detainees in the female section of the Cells. Three suspected escapees accessed the keys from the juvenile suspect and escaped from the Police Cells.

4. As a result of the escape, the plaintiff was suspended from duties on 7 July, 2005. On 1 August, 2005 he was charged with a serious disciplinary offence purportedly under s. 20 (1) (c) of the Police Act, (Ch. 65). He responded to the charge on 5 August, 2005. The charging authority found the charges sustained and imposed the penalty of dismissal.

5. It is not known if the decision on the charge(s) immediately followed the plaintiff's response. That information is not disclosed in his affidavit. The decision may have been made sometime between August 2005 and July 2008 because on 24 July, 2008 he requested the Police Commissioner to review his decision. The Police Commissioner responded refusing his appeal on 16 November, 2008.

Grounds of Review and Relief Sought

6. The primary grounds for this judicial review application are that:

1. The penalty for dismissal was disproportionate to the seriousness of the offence, and
   
2. The charge is defective as it was based on a law that did not exist at the time of the offence.
   

Principles of Judicial Review Adopted and Applied

7. A decision of a public officer, authority or Statutory tribunal exercising statutory powers under a statute is reviewable by way of judicial review subject to the limitations under O. 16 of the National Court Rules.

8. The principles of judicial reviews is well settled that, a decision being questioned or challenged must relate not to the decision itself but the process by which that decision was reached. It must be shown that the decision-making authority committed one or a number of errors that form the basis for judicial review before the application is granted. The onus is on the plaintiff to show that the administrative authority:

1. Acted without or exceeded its authority.
2. Committed an error of law.

100. Committed a breach of natural justice.

4. Reaches a decision which no reasonable tribunal could have reached or abuses its powers.

(See, Kekedo v. Burns Philp [1988-89] PNGLR 22; Attorney General Gene
v Hamidian Rad [1999] PNGLR 444.)

9. The grounds for review here fall under (a) and (b) on contentions that, the plaintiff was charged under a law that did not exist at the time of the offence. This is a question of competence of the exercise of power by the charging authority. The plaintiff also challenges severity of his penalty on the basis that the Police Commissioner made a decision which no reasonable tribunal would have reached or abused his powers.

10. It is settled that the Court will not interfere with the decision or the punishment, "unless it is satisfied that the tribunal or disciplinary authority abused its powers or where punishment is such that no reasonable tribunal or authority would have imposed the punishment in the light of all the circumstances of the offence" (Kekedo v. Burns Philp (Supra)).

11. I adopt and follow this guideline in the conclusions reached on the issues raised in this review application.

Whether the Charge was Defective

12. There are some merits on this ground. The plaintiff's argument is that, the charge laid under the repealed Police Force Act, Chapter 65 was defective as it was based on law that does not exist. The events surrounding his disciplinary charge in 2005 are covered by the repealing legislation in the Police Act No. 37 of 1998. So, the charge(s) with the guilty finding and subsequent decisions imposing and affirming the dismissal penalty were made without legal basis. Hence, his case should have been properly dealt with by a punishment other than dismissal. Christopher is in effect, seeking reinstatement.

13. Mr. Kerenge of Counsel for the State did not specifically address this pivotal issue. On the face of the records, the Police Commissioner had proceeded against the plaintiff under s. 20 (1) (c) of the Police Force Act, Chapter 65. It should be common knowledge that the Police Force Act, Chapter 65 has been repealed and replaced by Police Act No. 37 of 1998. Hence, the Police Commissioner purportedly relied on a non-existing law to charge and dismiss the plaintiff from the Police Force.

14. Counsel merely submitted that the plaintiff was dealt with under a valid law without addressing the apparent discrepancy in the reference to the repealed Police Act. Also in a lackadaisical, unhelpful conduct of the State's case, Mr Kerenge merely announced his reliance on written Submissions previously filed by the Solicitor General and said nothing of substance. The submissions in essence, argued the alternative that, if the Police Commissioner had proceeded wrongly against the plaintiff the relief sought should not be granted as:-

1. The matter has been too long delayed to warrant reinstatement.
2. Reinstatement will not serve useful purpose as the plaintiff has reached retirement age.
3. Plaintiff has been retrenched from the Public Service.
   

Ruling

15. The Police Force Act 1998 came into operation on 1st February, 1999. Section 157 (repeals and savings) sets out the provision repealing and replacing the Police Force Act, Chapter 65 with the new Act. Disciplinary offences in the repealed Act are set out in ss 40 to 45. The current legislation provides for disciplinary offences under ss 20, 22 and 23. The charge against the plaintiff is couched in the terms of s 20 (1) (c) as:

"On the 1st July, 2005 at Lae Police Station you did fail to promptly and diligently carry out your duties in that you fail to take proper safety precautions into the safety of three hardcore and escapees namely, Joshua Makis, Rex Kama and Joe Enemp Patep resulting in the three escaping from the cells. Thereby contravening Section 20(1) (c) of the Police Force Act, Chapter 65".

16. There is no section 20 (1) (c) in the repealed Act. The charge was clearly laid under the Police Force Act, 1998 though the reference to "Chapter 65" is incorrect. This in my view is a minor technical error. It has no bearing on the substance of the charge under the new Act. The charge as it is worded under s. 20(1) (c) of the Police Force Act 1998 sufficiently complies with the principles of natural justice and the right to the full protection of the law under s. 37 (1) of the Constitution as Cannings, J averted to in Robin Aegaiva v. Gari Baki and The State (2009) N 3693:

"... that if a person is charged with committing a criminal or a disciplinary offence, the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy, the person charge will not know the case he or she has to answer".

17. It follows that if the charge is defective, the findings of guilt and the penalty imposed on the offender will be flawed: Robin Aegaiva v. Gari Baki (Supra). Michael Winmaram v David Ericho and The State (2006) N 3040.

18. In this case, the decision to find the plaintiff guilty and the decision to dismiss him from the Force are in order. They are not affected by error of law or made contrary to the principles of natural justice. The decision making process was lawful and not in any way flawed.

Whether the Penalty of Dismissal is Excessive

19. The plaintiff contends that the penalty of dismissal is excessive as being disproportionate to the offence. He advances a number of propositions in support of his contention as follows:

(a) The penalty was disproportionate because the plaintiff was pressed for time to transport the detainees to the court house.

(b) The plaintiff's collegue, John Steven who was in the police lock up and should have ensured that the keys were in safe custody as well as the plaintiff but John Steven was not charge with any disciplinary offence.

(c) The plaintiff has serve the police force for 42 years and has been listed for retrenchment but awaiting the Department of Finance to process his entitlements.

(d) The plaintiff did not have any prior adverse disciplinary record.

(e) The plaintiff was retrenched but the police Department challenged the calculation and the same is pending".

Ruling

20. I do not accept the contention that a policeman charged with the onerous responsibility of guarding police station cells that hold suspected hard-core criminals and escapees is a trivial matter. Casually and carelessly leaving cell keys with a juvenile detainee who is susceptible to all manner of pressure and other forms of undue influences from older detainees clearly demonstrates dereliction of duty of the most serious type.

21. There were three "hard-core escapees" held in the cells together with the juvenile detainee and this fact must be well known to the plaintiff who was then a Police Prosecutor. His conduct was described and I think, quite correctly as "complete negligence that is beyond any accepted standards."

22. The use of the keys by three hardcore criminal suspects to escape from the Police Cell quite clearly raises the suspicion that, the plaintiff assisted the escape. In his high position of trust, he allowed a situation where the cell keys would fall into wrong hands. With many years of service behind him, the plaintiff was not a novice in police duties and responsibilities. His conduct was possibly by design. Consequently, there was a serious breach of Police Cell security procedures and protocols which in turn placed the protection and safety of the other detainees, police cell guards and the general public at large at risk.

23. The public must have total confidence in law enforcers to keep suspected serious offenders in safe and secured lock-ups, confinements, penitentiaries, prisons and other detention locations. The conduct of the plaintiff affects that public trust.

24. In my view the decision of the Police Commissioner to dismiss the plaintiff's appeal was and is reasonable in all the circumstances of the case.

25. Nevertheless, this application may succeed on the question of penalty. In his response to the charge the plaintiff averted to the question of punishment in the following passage.

"The factors stated in my submission are factual and therefore seek your honest assessment of the penalty that may be placed upon me. I will respect your decision but as per the disciplinary procedure, I request for the following penalty.

(a) The charges are nullified.
(b) Leniency in much lighter penalty.

Forwarded for your deliberation."

26. The principles of natural justice and the protection under s. 37 of the Constitutional require that a person found guilty of a disciplinary offence for which the ultimate penalty of dismissal from Public Service employment is likely ought to be given the opportunity to be heard on penalty.

27. What the plaintiff stated in his response to the charge may be nothing more than a pre-curser to what ought to be properly put before the disciplinary Officer or Authority for consideration before a penalty is imposed. Matters of his personal and family circumstances, prior good record, character references are factors that may mitigate his conduct.

28. In failing to give the plaintiff the opportunity to be heard on penalty, the Police Commissioner in my view, denied the plaintiff natural justice. The penalty imposed is therefore defective to that extent.

Ruling - Whether the Relief Sought should be granted

29. The consequential result of an error in the imposition of a penalty is a setting aside or quashing of a decision of the administrative authority. The reviewing Court may also order reinstatement of the plaintiff.

30. There is difficulty in granting the relief of reinstatement sought because the ground I have just considered was not pleaded. The plaintiff does not rely on the right to be heard on penalty. I have considered this issue as a matter of course upon perusal of the Review Book. There is nothing on record that specifically says he was not heard on the question of penalty. He might well have been heard when he requested the Police Commissioner to review his finding of guilt and the penalty imposed. On the other hand, the plaintiff might have been satisfied that the part on "penalty" in his response letter is sufficient for the Police Commissioner to make a decision on.

31. Second, under O 16 r 4 (1) of the National Court Rules, the Court has discretion to refuse to grant the relief sought if the granting of the relief would be likely to cause hardship to or prejudice the rights of any person or would be detrimental to good administration. In my view, an Order for reinstatement would be untenable. It will not promote good administration because of the long delay in bringing this action. Many changes in the police administration have taken place since and the plaintiff's position has also been abolished. Besides, the plaintiff has been retrenched and paid his entitlements.

32. It follows that, a finding in favour of any of the grounds of review does not automatically entitle the applicant to the relief sought.

33. There is a further requirement to persuade the exercise of the Courts discretion in the plaintiff's favour. He must show that the grant of relief sought is justified on equitable grounds; Tau Kamahuta v. Sode (2006) N2998, Asiki v. Zurenuoc (2005) SC 797. I find that the plaintiff has not shown that he is entitled to the relief sought namely, reinstatement. That option is untenable as the plaintiff has reached retirement age. His reinstatement will in effect be unlawful and in breach of the retirement age provisions of the Public Service (Management) Act 1995.

Conclusion

34. I am not convinced that the plaintiff is entitled to the relief of reinstatement. Even if he was not afforded the right to be heard, the exercise of discretion in his favour will not serve any useful purpose or good administration of the Police Force because he has been retrenched and that the Police Force had gone through major changes in its staff establishment. This situation is compounded by the fact that he has reached compulsory retirement age. So, he cannot be lawfully re-engaged.

36. The end result is that this application for judicial review is refused. I order that cost follow the event to be taxed if not agreed.

______________________________________
Daniels & Associates Lawyers: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendants