N11645

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) 32 OF 2025

BETWEEN:
SMITH KOP
Plaintiff

AND
DAVID MANNING (as Commissioner of Police)
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

WAIGANI: CROWLEY J
6 NOVEMBER, 18 DECEMBER 2025

CIVIL – Judicial review – termination of employment- valid delegation of power to terminate- right to be heard - obligation to consider correspondence post decision - process of disciplinary proceedings in the Police Act 1998

Facts
The Plaintiff was a serving member of the Royal Papua New Guinea Constabulary. He was filmed taking illicit drugs and that footage was put on social media. He was stood down and subsequently sacked. He is judicially reviewing that decision.

Held
1.	The Plaintiff had a statutory right to a review of the decision to sack him
2.	He applied for the review within the required period
3.	His review was never considered.
4.	The Plaintiffs right to be heard was denied.

Cases cited
Kakas v Wakon [2007] PGSC 53; SC1319
Kariko v Korua [2020] PGSC 29; SC1939

Counsel
Ms M Takudambu for the plaintiff
Mr J Murian for the first and second defendant

1.	CROWLEY J: The Plaintiff, was a serving police officer. He seeks a review of the decision of David Manning Commissioner of the Royal Papua New Guinea Constabulary (‘RPNGC’) (First Defendant) dated 7 December 2023. By that decision the Plaintiff was dismissed from the RPNGC.

Evidence of the Plaintiff

2.	The Plaintiff filed an affidavit on 7 April 2025. In it he deposed to having joined the RPNGC in 2011 (Paragraph [3]). He was promoted to First Constable in 2021 (Paragraph [6]). On 8 May 2023 he was charged with two Serious Disciplinary Offences by Metropolitan Superintendent Silva Sika (Paragraph [10]). Those offences were:  

“That in the month of March 2023 at National Capital District (NCD) in PNG you did commit an act to wit, you were seen consumed a dangerous drug namely Methamphetamine that went viral on Air Viral in Social Media which may be a criminal offence under section 20(1)(ay) of the Police Act 1998 Chapter 65”

and 

“That in the month of March 2023 at National Capital District (NCD) in PNG you did act in a manner by conduct which reflects discredit on the force in that, you were seen consumed a dangerous drug namely, Methamphetamine that went viral on Air Viral in Social Media under section 20(1)(az) of the Police Act 1998 Chapter 65” (see Annexure B Affidavit of Smith Kop filed 7 April 2025).

3.	Nowhere in his affidavit does Mr Kop deny these charges. Nor does he explain them. He complaints that his dismissal was procedurally flawed; “I verily believe that my dismissal was unlawful…”. (Paragraph [9] Affidavit of Smith Kop filed 7 April 2025).

4.	Mr Kop conducted his own research: 

“…and found no evidence such as a Gazettal Notice, Police Circular or an internal Memo from Commissioner of Police, the First Defendant herein appointing Silva Sika as a Disciplinary Officer or delegating these disciplinary powers to Mr Sika under Section 17 of the Police Force Act 1998” (Paragraph [12] Affidavit of Smith Kop filed 7 April 2025).

5.	Mr. Kop was unlikely to ever make detective since his investigative skills failed to turn up an “Instrument of Delegation Under the Police Act 1998” dated 23 December 2019. In that document the First Defendant appointed inter alia, Metropolitan Commanders as disciplinary officers for “serious offences laying of charges” (see Annexure A, Affidavit of David Manning filed 3 June 2025).

6.	Mr. Kop further complained that he was incorrectly identified as a “Constable” in the charges when he was in fact a “First Constable”. The legal effect of this mis-title is that “… the Commissioner of Police would have had the option of demoting me instead of instantly dismissing me from the Force which I believe was harsh and oppressive” (Paragraph [17] Affidavit of Smith Kop filed 7 April 2025).

7.	Mr. Kop next complains that, after his conviction and dismissal on 7 December 2023 he wrote to the Office of the Commissioner on 22 February 2024 seeking a review of that decision (‘the 22 February 2024 letter’) (Paragraph [22] Affidavit of Smith Kop filed 7 April 2025). 

8.	His final complaint is of “Undue delay & Explanation of Delay (if any)” in responding to that letter. This argument is only valid if there is a legal obligation to respond to the 22 February 2024 letter which I will return to this below. 

Police Commissioners’ Evidence

9.	 The First Defendant’s affidavit identifies that he is the Commissioner of Police. The Plaintiff was dismissed after being found guilty of two serious disciplinary charges. “Video footage captured and posted on social media shows that he, in company with of [sic] another policeman namely Israel Billy, were seen taking dangerous drug, specifically Methamphetamine, which is a criminal offence. Such action brings discredit upon the force.”

10.	 The First Defendants deposed to having issued a Notice of Penalty on 7 December 2023 dismissing the Plaintiff from the force. This was served on the Plaintiff on 16 February 2024. 

11.	 The First Defendant is silent on the Plaintiff’s letter of 24 February 2024 seeking a review. 

Legal Framework

12.	 The Police Act 1998 does not specify what the decision maker should take into account except in the broadest sense. 

13.	 The relevant process establishes that a decision is made to charge (in this case) a member of the police force (Section 23(1) & (2)). 

14.	 On a charge being laid the member is given a copy of the charge and it is explained to them (Section 23(3)(a)). The Member is given copies of all reports that are to be considered in relation to the charge (if they request them) (Section 23(3(b)), invited to state whether they admit or denied the truth of the charge and give any explanation they want to. They must do this within 14 working days (Section 23(3)(c)(i) & (ii)).

15.	 The Commissioner then appoints a disciplinary officer to investigate the matter and report to the Commissioner (s24(1)). The disciplinary officer then considers the reports relating to the charge, the reply and explanation (if any) of the member and any further reports that the disciplinary officer thinks fit (Section 24(3)). 

16.	 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 (Section 24(4)).

17.	 After conducting the investigation, the disciplinary officer gives the Commissioner a report advising whether in his opinion the charge has been sustained, and where it was sustained, what punishment is recommended (Section 25(1).

18.	 After considering the report the Commissioner may accept the disciplinary officer’s opinion that the charge has been sustained and impose a penalty (Section 25(2)(a) & (b)) or accept the disciplinary officer reports that in his opinion the charge has not been sustained and dismiss the charge (Section 25(3)(a)&(b)).

19.	 Section 25(4) sets out a process if the Commissioner does not accept the recommendation of the disciplinary officer which is not relevant here. 

20.	 Where a penalty is imposed by a disciplinary officer, the member affected may, within seven days of notification apply in writing to the Commissioner for a review of the decision (section 26(5)). On a review, the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final (Section 26(7))

Grounds of Relief 

21.	 The grounds on which relief is sought are that the decision:

a.	was ultra vires because Metropolitan Super intendent Mr Silva Sika who charged the Plaintiff did not have the delegated powers to do so;
b.	there was a breach of natural justice because the adjudicating officer and First Defendant failed to detect that Silva Sika did not have the authority to charge the Plaintiff; 
c.	due to the error of fact, incorrectly recording the Plaintiff’s rank and therefore failing to consider demotion lack of legal authority of the officer who charge; and
d.	the First Respondent should have considered demotion considering the Plaintiffs 12 years of service “…without committing offence, serious or otherwise during his time with the Police” (Paragraph [4(b)] Statement Pursuant to Order 16 Rule 3(2)(a) of the National Court Rules 1983).

22.	 These metamorphosed into slightly different grounds. By the time of hearing, they had become: 

a.	Improper exercise of power; 
b.	Denial of a right to be heard;
c.	Taking into account irrelevant considerations (incorrect rank); and 
d.	Making decisions based on allegations never proven.

23.	 The First and Second Defendant did not raise objection to the transmogrification of the grounds of review. For reasons that will become apparent, I only intend to deal with the “Denial of the Right” to be heard. 

Denial of a Right to be heard

24.	The argument regarding the denial of a right to be heard is expressed in these terms: 

“The right to be heard before an adverse decision is made is a fundamental principle of natural justice… the Plaintiff exercised this right by writing to the Commissioner requesting review of his dismissal. The Commissioner’s silence was a complete denial of the opportunity to be heard, thereby invalidating the process” (Paragraph 7.1 & 7.3 Submissions of the Plaintiff filed 19 August 2025).

25.	 The Plaintiff asserts that he sent a letter dated 22 February 2023 to the First Defendant. He annexes a copy of that letter his affidavit. The heading to that letter is “Application for Administrative Review of My Dismissal Pursuant to Section 26(5) of the Police Act 1998”. The back page of the copy, (Annexure A to the Affidavit of Smith Kop) identifies that it was served on the PA to the Commissioner on 5 March 2024. 

26.	 The date of the 22 February 2023 letter is within seven days of the notification receipt by the Plaintiff of the penalty (thus satisfying section 26(5) of the Police Act 1998). The First Defendant did not dispute that evidence. 

27.	 In oral submissions counsel for the First and Second Defendant said that there was no obligation on the Police Commissioner to respond to that letter. I disagree. The disciplinary regime set out in s17 to 26 of the Police Act 1998 (particularly s26(5), (6) and (7)) indicate a right to seek review of the decision of the Commissioner. It would make a mockery of the legislation if there was no obligation on the Police Commissioner to respond.

28.	 Therefore, the Plaintiff has been denied a right to be heard because his application for a review was ignored. As the Plaintiff has succeeded on this ground, I do not propose to consider the other grounds.

Conclusion

29.	 Though the Plaintiff did not seek an order in the nature of mandamus that is the appropriate order to make. The procedural flaw that I have found was the denial of the consideration of the Plaintiffs review contained in the letter of 22 February 2023. Therefore, I will order that the First Defendant consider that letter according to law.

ORDERS

1.	An order in the nature of mandamus requiring the First Respondent to consider the review of the decision of 7 December 2023 contained in the Plaintiffs letter dated 22 February 2024.
2.	That the review is conducted according to law
3.	That the First and Second Defendants pay the Plaintiffs cost to be taxed if not agreed.
4.	Time is abridged. 
__________________________________________________________________
Lawyers for the plaintiff: Utunu Legal Service
Lawyer for the first & second defendant: Solicitor General