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Diniro v Minister of Internal Affairs [2006] VUSC 2; CC 204 2005 (20 January 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU


Civil Case No. 204 of 2005


BETWEEN:


ROBERT OBED DINIRO
Claimant


AND:


HON. MINISTER OF INTERNAL AFFAIRS
First Defendant


AND:


POLICE SERVICE COMMISSION
Second Defendant


ORDERS AND REASONS FOR JUDGMENT


Coram: V. Lunabek CJ


Counsel: Mr. George Boar for the Claimant
Mrs. Viran Molisa Trief for the first and Second Defendants


Date of hearing: 21st December 2005
Date of Judgment: 22nd December 2005
Date of Reasons of Judgment: 20th January 2006


INTRODUCTION: Nature of claim, Relief sought and Orders.


This is a claim for Judicial Review dated and filed on 9th March 2005. The Claimant claims for:-


(1) an Order to quash a decision of the Minister dated 17 February 2005 revoking his previous decision of 11 December 2004 in relation to the Claimant.

On 22 December 2005, the Court makes the following ORDERS:


“ORDERS


  1. THAT the Claim for Judicial Review dated and filed on 16 December 2005 in Civil Case No. 204 of 2005, is hereby dismissed.
  2. THAT the parties shall pay their own costs.
  3. THAT the full written reasons be provided shortly”

REASONS FOR JUDGMENT


The Reasons for the judgment are set out below:-


The claim is filed with a sworn statement of the claimant in support of it. On 8 December 2005, the Claimant filed an Urgent Application for injunction orders against the first and second defendants from advertising and appointing a person as commissioner of Police pending the determination of the Claimant’s claim for Judicial Review.


On 13 December 2005, the court refused to grant the injunction orders sought on the basis that there is no material information showing any urgency in the making of the said injunctive orders. On the same date, it was then agreed by parties through counsel that there is no disputed facts in this case.


The case was set for hearing on 19 December 2005 and then adjourned to 21 December 2005 to allow the Respondents to finalise their submissions.


On 21 December 2005, the Respondents file a sworn statement of a Leonard Bule, chairman of the Police Service Commission, in support of the response.


ISSUE:


The only issue for the determination by the Court is whether or not the decision of the Minister of 17 February 2005 withdrawing his decision of 11 December 2004, is lawful.


FACTUAL BACKGROUND


The brief factual background leading up to the application are described below.


On 13th September 2004, the President of the Republic suspended the Claimant who was the then Commissioner of Police and appointed Mr. Arthur Caulton Edmanley as Acting Commissioner of Police.


In October 2004, the Acting Commissioner of Police brought four (4) different disciplinary charges against the claimant to be determined by the Police Service Commission in accordance with the provisions of the 8 Police Act [Cap 105].


On 24 November 2004, the second defendant, Police Service Commission found that the disciplinary charges against the Claimant in the following disciplinary causes were proved:-


The details of the charges, findings, convictions and punishments of the second Defendant Police Service Commission against the claimant are contained and set out in Annexure “RD8” to the sworn statement of the Claimant dated and filed 16 December 2005 in support of the claim.


In substance, save the Disciplinary cause No. 7 of 2004, for each charge, the Police Service Commission imposed the punishment in rank, in accordance with section 67 (2) (b) of the Police Act [CAP 105] culminating in the punishment imposed in Disciplinary cause No. 8B of 2004 which is the dismissal of the Claimant from the Vanuatu Police Force both as Commissioner of Police and member thereof with immediate effect.


The ORDERS on determination of charges by the Police Service Commission against the claimant are reproduced below for ease of reference.


POLICE SERVICE COMMISSION
REPUBLIC OF VANUATU


PART 4


ORDER ON DETERMINATION OF CHARGE


DISCIPLINARY CAUSE NO. 6 of 2004.


In the matter of ROBERT DINIRO OBED (COMMISSIONER OF POLICE)
And MAJOR ARTHUR CAULTON (ACTING COMMISSIONER OF POLICE)


In the matter of the Police (Senior Officers) Disciplinary Procedure Rules.


WHEREAS A charge having been brought by the Acting Commissioner of the Vanuatu Police Force that Robert Diniro OBED (Commissioner of Police) OF THE police Headquarters did an act or omission likely to bring discredit upon the Force contrary to section 19 (z) of the subsidiary legislation to the Police Act [CAP 105).


AND WHEREAS the Police Service Commission having inquired into the truth of the charge;


  1. That he was on the night of 29th May 2004 so drunk, misbehaved himself and abused his authority by climbing over the counter and selling liquor to the public behind the counter of the Mamu Bar (Ma Bakers Night Club) without prior authorization of the property owner; Ms Lydia DREW and or the bar tender. The dance floor was full and that everyone present were disgusted at the actions of Mr. Obed. Uniform officers arrived at 03:00hrs to check on the night club just to witness their commissioner serving the public from behind the bar. He was asked to leave but refused. Instead he ordered the club to operate beyond the required time as provided by law. He did not have the power whatsoever to do so.
  2. That although he was drunk, he knew what he was doing and according to Ms Drew, the reason why security guard did not sent him out was that he was ‘a big man of the Force’ or ‘Commissioner of Police’. Any ordinary person would have been sent out. This therefore does not reflect the fact that no one is above the law and that every person is subject to fair treatment under the law as provided by Article 5 (k) of the Constitution. The Commission considered about the attitude of Mr Obed and that he had previously incurred debts totalling to Vt 59,100 in her restaurant. This later matter is a totally different issue and would not be dealt with in this proceeding.
  3. That Mr. Obed’s actions does not reflect the capacity of his position as Commissioner of Police who is entrusted with the authority to uphold and enforce the laws of the land. Two of his subordinates who testified before the Commission in the presence of their Commissioner confirms with disgust the sighting of their boss in the bar.
  4. That on making a non guilty plea, the defaulter did not wish to make any defence with the sole reason that he may incriminate himself in the civil case 180 of 2004 pending before the court.

AND WHEREAS the Police Service Commission on finding the charge not proved/proved.


NOW THEREFORE IT IS HEREBY ORDERED AS FOLLOWS-


That the actions and attitude of Mr. Robert Diniro Obed being the Commissioner of Police on the night of 29th May 2004 did discredited not only the office of the Commissioner but upon the good name of the Police Force and that his actions did not reflect the respect which he should have for the public whose lives and properties he is vested with the power and authority to protect and that he does not have the respect for the law for which he is obliged to uphold.


Upon embarking on the finding that Mr Obed is guilty of the charge brought against him, the Commission thus, upon consideration of his incapability to safeguard the law, the Police Force and his status as a leader under the Leadership Code, awarded the punishment of ‘demotion in rank’ in accordance with section 67 (2) (b) of the Police Act (CAP 105). He is therefore demoted in rank from Commissioner of Police to Deputy Commissioner of Police.


The defaulter was informed of his rights of appeal to the Minister of internal Affairs within 7 days from the date of the hearing.


Given under out hands at Police Service Commission this 24th day of November 2004.


John KALOTAR Leonard BULE
Chairman Vice Chairman


Jean Alain MAHE Francois Luc BABA Rita NAVITI
Member Member (Secretary)”.


“POLICE SERVICE COMMISSION
REPUBLIC OF VANUATU


PART 4


ORDER ON DETERMINATION OF CHARGE


DISCIPLINARY CAUSE NO. 7 OF 2004


In the matter of MR ROBERT DINIRO OBED (COMMISSIONER OF POLICE)


And MAJOR ARTHUR CAULTON (ACTING COMMISSIONER OF POLICE)


In the matter of the Police (Senior Officers) Disciplinary Procedure Rules.


WHEREAS A charge having been brought by the Acting Commissioner of the Vanuatu Police Force that Robert Diniro OBED (Commissioner of Police) of the Police Headquarters did an act or omission likely to bring discredit upon the Force contrary to section 19 (z) of the Police Act (subsidiary) CAP 105


AND WHEREAS the Police Service Commission having inquired into the truth of the charge;


  1. That Mr Obed was wearing an unauthorized rank and calling himself a rank title that is not approved under section 7 (j) of the Subsidiary Legislation to the Police Act (CAP 105). According to the legislation, he should be wearing the authorized rank of the Commissioner of Police which is a crossed tip staves and a tusk on each epaulets instead of a crown and three pips on each epaulets which according to military ranking is the insignia of a Brigadier which title was referring himself to since his appointment to office. This to the general view of members of the Force is a self promotion and is in breach of the provisions of subsection 7 (j) of the legislation.
  2. That the documentary evidence produced by the Acting Commissioner of Police, Mr Obed was wearing the unlegislated rank insignia and title of brigadier up to the date of the hearing.
  3. That seven witnesses confirmed through written statements the allegations made by the Acting Commissioner of Police, two of which testified before the Commission in the presence of Mr Obed.
  4. That on making a non guilty plea, the defaulter did not wish to make any defence with the sole reason that he may incriminate himself in the civil case No. 180 of 2004 pending before the Court.
  5. That Mr. Obed however produced a letter signed by the former chairman of the Police Service Commission; Mr. Michael TAUN authorizing him to wear the unlegislated rank insignia and title of brigadier.

AND WHEREAS the Police Service Commission on finding the charge not proved/proved.


NOW THEREFORE IT IS HEREBY ORDERED AS FOLLOWS-


That although the commission considers the general dissatisfaction of members of Force over Mr. Obed’s wearing of an insignia and labelling himself a military rank title which is not specified anywhere in the Police Act (CAP 105) and considered the documentary evidence provided by the Acting Commissioner and upon proving for ourselves the unlegislated rank worn by Mr Obed in the proceeding, decide however that Mr Obed would not be wearing and using the unlegislated rank title and insignia if the Police Service Commission had not granted him the authority to do so.


This Commission however raises question as to what authority the previous Commission has to overwrite the law by granting the authorization.


We thus come to the conclusion that although the Acting Commissioner has without doubt proven his case, the fault does not lie upon Mr Obed but rather with either the previous commission nor the chairman thereof.


In deciding so, the commission therefore discharges Mr Obed of the charge brought against him.


Given under our hands at Police Service Commission this 24th day of November 2004.


John KALOTAP Leonard BULE
Chairman Vice Chairman


Jean Alain MAHE Francois Luc BABA Rita NAVITI
Member Member Member”


“POLICE SERVICE COMMISSION
REPUBLIC OF VANUATU


PART 4


ORDER ON DETERMINATION OF CHARGE


DISCIPLINARY CAUSE NO. 11 of 2004


In the matter of MR ROBERT DINIRO OBED (COMMISSIONER OF POLICE)
And MAJOR ARTHUR CAULTON (ACTING COMMISSIONER OF POLICE)


In the matter of the Police (Senor Officers) Disciplinary Procedure Rules.


WHEREAS A charge having been brought by the Acting Commissioner of the Vanuatu Police Force that Robert Diniro OBED (Commissioner of Police) of the Police Headquarters did failed to answer to a summon served on him by the Acting Commissioner of Police compelling him to appear before the Police Service Commission at 09:00 hrs on 9th November 2004 to answer disciplinary charges brought against him by the Acting Commissioner. His failure to appear before the Police Service Commission contradicts section 19 (b) of the Police Act (CAP 105). Commissioner Robert Diniro OBED was suspended by His Excellency Kalkot Matas KELEKELE; the President of the Republic of Vanuatu on 13th September 2004 pending investigations into a number of disciplinary charges regarding his various misconducts and abuses of power since his appointment the position of Commissioner of the Vanuatu Police Force.


AND WHEREAS the Police Service Commission having inquired into the truth of the charges;


  1. That Commissioner Robert Diniro OBED was served through his attorney; Mr Ishmael KALSAKAU on 25th October 2004, the summon compelling him to appear before the Police Service Commission at 9.00 hrs on 9th November 2004 and that the summon was served through Mr Kalsakau by consent of Mr Obed.
  2. That although having received the summons, he deliberately did not appear before the Police service Commission nor did he gave prior notification of his intention and nor the reasons thereof to the Chairman nor the Acting Commissioner of Police.
  3. That although the Police Service Commission did convened to deal with the disciplinary charges brought against him; Commissioner Obed failed to appear nor appoint a next Friend to represent him in the proceeding as provided for by section 4 of Order 113 of 1981. Being a member of the Force, he is obliged by section 7 of Order 113 of 1981 and 20 of Joint Rules 7 of 1980; subsidiary legislations to the Police Act (CAP 105) to comply with any summon served on him by the Acting Commission or through directives of the Chairman as provided for by section 2 of Order 113.
  4. That on making a non guilty plea, the defaulter did not wish to make any statement in his defence with the reason that he may incriminate himself in the civil case 180 of 2004 still pending before the court.

AND WHEREAS the Police Service Commission on finding the charge not proved/proved.


NOW THEREFORE IT IS HEREBY ORDERED AS FOLLOWS-


That the Police Service Commission found Commissioner Robert Diniro OBED guilty on the charge of ‘wilfully disobey a lawful order’ contrary to section 19 (b) of the Police Act (CAP 105) being brought against him by the Acting Commissioner of Police on the grounds;


(a) that he did not give prior notification of his intention and or reasons thereof to the chairman nor the Acting Commissioner as to why he would not appear before the Commission on 9th November 2004;

(b) that he deliberately failed to appear or appoint a Next Friend to represented him in the proceeding before the Police Service Commission on 9th November 2004; and

(c) that being the Commissioner of Police who is entrusted with the responsibility of ensuring that the laws of this country are fully enforced and respected, the commission regrets and could not tolerate Mr Obed’s ignorant and disrespectful attitude which, if not corrected, could spread and or adopted by other members of the Force.

It is this reason that we; members of the Police Service Commission, having found Mr Robert Diniro OBED guilty of the said charge, award the punishment of ‘demotion in rank from Deputy Commissioner of Police to the lower rank of Assistant Commissioner of Police’ in accordance with section 67 (2) (b) of the Police Act (CAP 105).


Given under our hands at Police Service Commission this 24th day of November 2004.


John KALOTAP Leonard BULE
Chairman Vice Chairman


Jean Alain MAHE Francois Luc BABA Rita NAVITI
Member Member Member”.


POLICE SERVICE COMMISSION
REPUBLIC OF VANUATU


PART 4


ORDER ON DETERMINATION OF CHARGE


DISCIPLINARY CAUSE NO. 8A OF 2004


In the matter of ROBERT DINIRO OBED (COMMISSIONER OF POLICE)


And MAJOR ARTHUR CAULTON (ACTING COMMISSIONER OF POLICE)


In the matter of the Police (Senor Officers) Disciplinary Procedure Rule.


WHEREAS A charge having been brought by the Acting Commissioner of the Vanuatu Police Force that Robert Diniro OBED (suspended Commissioner of police) of the Police headquarters did misused a police or government property which actions were contrary to section 19 (w) of the subsidiary legislation to the Police Act (CAP 105).


AND WHEREAS the Police Service Commission having inquired into the truth of the charge;


That on the night of 17th July 2004, Commissioner Obed misused the police vehicle registered ‘COMPOL 9806’ when he drove it from his residence at Independence Park to Roger Brand’s at Melkoffee where he parked it before going to Trader Vic's night Club. The vehicle was reportedly parked out at Roger Brand the whole night up until the next morning. His intention to use the official vehicle at the specific time was to go to the night club. Mr Obed was later found at Trader Vic's night Club misbehaving himself and causing nuisance to other customers.


The matter was initially reported to the Former Chairman; Mr Michael TAUN on 24th August 2004. Nothing was however done by Mr Taun and his commission until he was replaced on 13th September 2004. Commissioner Obed was suspended by His Excellency Kalkot Matas KELEKELE upon recommendation of the current Police Service Commission to enable or pending appropriate investigations into this and other allegations being made against Mr Obed.


A total of eleven eye witnesses willingly gave written statements to the police to testify against Mr Obed. The Acting Commissioner has however decided to impose, after the disclosure of sufficient evidences, two separate charges against the defaulter in the occurrences of 17th July 2004. These are:


(a) Count 8 A - Uses improperly any police or public property; and


(b) Count 8 B - Does an act or makes any omission likely to bring discredit upon the Force.


This was accepted by the Commission in accordance with section 13 (1) of the subsidiary legislation (Order 113) to CAP 105. The written statements provided by eleven witnesses were accepted and considered by the Commission with the reason that the defaulter was served with copies of these statements 14 days prior to the proceeding as required by section 22 of the subsidiary legislation (Joint Rules 7 ) to CAP 105. The statements of three witnesses in particular are considered as relevant to charge 8A against the defaulter. These are Sergeant Samson CARLO and constable Joseph NOAH who were on duty on the night of 17th July 2004 and Corporal Sam WILLY who was the shift supervisor on the morning of 18th July 2004.


According to Constable Noah, Commissioner Obed told him that he went to Trader Vics by taxi that night. He further started both in his written statement and while giving evidence during the proceeding that when assisting Mr Obed home from the duty vehicle, the Commissioner’s Official vehicle was not parked at home that night. According to Corporal Sam Willy who was on duty in the early hours of 18th July 2004, he saw the said vehicle parked outside Rober Brand’s at 6.15 a.m.


While making a non guilty plea, MR Obed did not wish to make any submission in his defence or answer any of the questions put to him during cross examination giving his reason that anything said could incriminate him in civil case No. 180 of 2004 pending before the court.


AND WHEREAS the Police Service Commission on finding the charge not proved/proved.


NOW THEREFORE IT IS HEREBY ORDERED AS FOLLOWS-


That having considered the evidence provided by the prime witnesses and the submissions of the Acting Commissioner, we have come to the conclusion that although no one had actually seen Mr Obed driving and or parking the vehicle at Roger Brand’s, Melcoffee is within the vicinity of Trader Vic and that no other person other than Commissioner Obed could have driven the vehicle to Melcoffee. It has been proven beyond reasonable doubt that the reason for Mr Obed to drive and park the vehicle at Melcoffee was to go to Trader Vics night Club which was not an official function that would justify the official usage thereof.


We therefore find the defaulter, Commissioner Robert Diniro Obed guilty of the charge brought against him and upon finding him guilty, we again could not tolerate such act of negligence by a Commissioner of Police. His act of negligence does not reflect the status of the position he holds which requires the accountability of all assets entrusted to his care by the government and people of the Republic of Vanuatu. It is in this view that we apply the sentence of ‘demotion in rank from Assistant Commissioner to the lower rank of superintendent or Major’ which punishment is in accordance with section 67 (2) (b) of the Police Act (CAP 105).


Given under our hands at Police Service Commission this 24th day of November 2004.


John KALORAP Leonard BULE
(chairman) (Vice Chairman)


Jean Alain MAHE Francois Luc BABA Rita NAVITI
(member0 (Member) (Member)


POLICE SERVICE COMMISSION
REPUBLIC OF VANUATU


PART 4


ORDER ON DETERMINATION OF CHARGE


DISCIPLINARY CAUSE NO. 8B OF 2004


In the matter of ROBERT DINIRO OBED (COMMISSIONER OF POLICE)


And MAJOR ARTHUR CAULTON (ACTING COMMISSIONER OF POLICE)


In the matter of the Police (Senior Officers) Disciplinary Procedure Rules.


WHEREAS A charge having been brought by the Acting Commissioner of the Vanuatu Police Force that Robert Diniro OBED (suspended Commissioner of Polie) of the Police Headquarters did ‘an act or makes an omission likely to bring discredit upon the Force or is guilty of any act, conduct, disorder or neglect to the prejudice of good order and discipline’ which is contrary to section 19 (z) of the subsidiary legislation (Joint Rules 7 of 1980) to the Police Act (CAP 105).


AND WHEREAS the Police Service Commission having inquired into the truth of the charge;


That on the night of 17th July 2004, whilst holding the position as Commissioner of the Vanuatu Police Force; Mr Robert Diniro OBED when parking his official vehicle at Roger Brand’s Melcoffi, went to Traders Vic Night Club. He was reportedly so drunk that he was behaving like an ordinary person other than the Commissioner of Police. He stole drinks from other customers, had a fight with security guards when apprehended and warned to behave and not to steal drinks from other customers and was reported by another victim to have harassed her that night by following her around the dance floor and that when she refused to dance with him, Mr Obed; a married man used obscene gestures to the lady in the presence of a parked dance floor. Mr. Obed finally locked himself in the toilet until the security guards had to climb over the wall to get him out. When retrieved, he refused to leave the club until uniformed officers were called in to remove him from the club.


It was reported by other customers and police officers who were checking on the club that night that Commissioner Obed was in a wild mood and causing a lot of nuisance. He demanded the club to operate beyond the required time provided by law. He was finally driven home by the officers whilst leaving his official vehicle at the Roger Brand’s.


His behaviour at that time does not reflect his status as the Commissioner of Police.


The matter was initially reported to the former chairman; Mr Michael TAUN ON 24th August 2004. Nothing was however done by Taun and his commission until he was replaced on 13th September 2004. Commissioner Obed was suspended by His Excellency Kalkot Matas KELEKELE upon recommendation of current Police Service Commission to enable or pending appropriate investigations into this and other allegations being made against him.


A total of eleven eye witnesses willingly gave written statements to the police to testify against Mr Obed. The Acting Commissioner has however decided to impose, after the disclosure of sufficient evidences, two separate charges against the defaulter in the occurrences of 17th July 2004. These are:


(a) Count 8A - Uses improperly any police or public property; and


(b) Count 8B- Does an act or makes any omission likely to bring discredit upon the Force.


This was accepted by the Commission in accordance with section 13 (1) of the Subsidiary legislation (Order 113) to CAP 105. The written statements provided by eleven witnesses were accepted and considered by the commission in the sense that the defaulter was served with copies of these statements 14 days prior to the proceeding as required by section 22 of the subsidiary legislation (Joint Rules 7) to CAP 105.


According to Mrs LAMOUREUX Janine, she had never personally known Mr Obed and nor his status as the Commissioner of Police. She complained of Mr. Obed’s attitude and in particular the gestures which she described as ‘action we wan married man ino should mekem long wan woman we ino save’ and that Mr Obed was following her around trying to induce her. She was harassed in front of her friends and other people who were in the club. Mrs Lamoureux was accompanied by Patrick TRAUN and Mrs. RODIN Emiliunne. Accoridng to the two witnesses, Mr Obed was stealing beer from their table by emptying their jug into a bottle of tusker he was drinking from without their permission. He did so about three times according to Patrick and Emilliunne and that when the matter was reported to a security guard, they were told that ‘hemia commissioner blong police, hemi stap workabaot wetem tri security blong hem. Mi questionem sei bik man blong police be from wanem hemi stap mekem fasin olsem’.


Mr. Daniel AMOS who is the chief security at Trader Vics described Commissioner Obed as ‘Mi bin lukim police Commissioner ikam isaed long Trader vics hemi full drong mo mi bin lukim hem hemi stap holholem ol woman olbaot nomo’. Mr Ben Erick who had apprehended Mr Obed about his behaviour stated that (quote)’ol fren blong mi oli kam talem long mi sei bambae mi toktok long bik man blong police from samfala man insaed oli stap comen sei commissioner blong police emi stap stilim ol drinks blong olgeta. Taem miko insaed nao mi luk commissioner blong police istap stanap nao mi sigaotem hem gud mo mi bin talem long hem se “yu no stap stillim ol drinks blong ol man”. Taem mi tok long hem nao hemi wantem faitem mi nao mi talem long hem se “Mi no askem fait, mi talem gud long yu sei yu no stap stillim drinks blong ol man”.


Constable Joseph NOA, while giving evidence in the proceeding told the commission that Commissioner Obed had refused to leave the club and that he had to call his superior; Sergeant Sam CALO from the Police Station to assist in removing Mr Obed from the club. According to the Officers, Mr Obed was srunk that he ws a nuisance to other customers and demanding another song which they forcibly played for him before their Commissioner finally agreed to leave the club. The officers drove him home while leaving his official vehicle parked at Roger Brand.


While making a non guilty plea, Mr Obed did not wish to make any submission in his defence or answer any of the questions put to him during cross examination giving his reason that anything said could criminate him in civil case No. 180 of 2004 pending before the court.


AND WHEREAS the Police Service Commission on finding the charge not proved/proved.


NOW THEREFORE IT IS HEREBY ORDERED AS FOLLOWS-


That having considered the documentary evidence as provided by the witnesses and the submissions of the Acting Commissioner, we find the defaulter; suspended Commissioner Robert Diniro OBED guilty of the charge of ‘Does an act or makes an omission likely to bring discredit upon the force or is guilty of any act, conduct, disorder or neglect to the prejudice of good order and discipline’ contrary to section 19(z) of the Police Act (CAP. 105).


We further consider that his behaviour on the night of 17th July 2004 does, not only discredited the name of the Police Force but that his actions does not reflect his status as the Police Commissioner. We also share the concern of those ho had witnessed his attitude, behaviour and actions- stealing drinks, including and performing obscene and disgusting gesture to a mother, threatening to fight with a security guard, locking himself in the toilet demanding the club to operate beyond the required time as provided by the law and refusing to leave the club. It is our believe that those who had witnessed such attitude would raise such questions as – is this really the Commissioner of Police?, is he, being the Commissioner of Police, above the law that even security guards are afraid to apprehend?, is he also accountable to and or covered by the Leadership Code?. What would happen to any ordinary citizen if he or she acts in the same manner? ... etc.


It is obvious that Mr Obed was taking advantage of his position as Police Commissioner to induce women and acting beyond the state of a sound person because he knew that he would not be investigated by members of the Police Force and that no one would have any authority to question his behaviour simply because he is the Commissioner.


We finally come to the final question that ‘ would he retain the position as commissioner of police when he had proven through his attitude that he has no respect for others whose lives and properties he is bound by the law to protect? Certainly not! He has proven his incapability to run the affairs of this nation in terms of national security. It is therefore our deepest regret that he was ever appointed into the position of Commissioner of Police.


It is upon this view that we apply the punishment as specified in subsection 67(2)(a) and hereby declare that the defaulter; Commissioner of Police; Mr Robert Obed Diniro is ‘Dismissed from the Vanuatu Police Force’ both as being the Commissioner ad member thereof with immediate effect.


Given under our hands at Police Service Commission this 24th November 2004.


JOHN KALOTAP Leanard BULE
(Chairman) (Vice Chairman)


Jean Allain MAHE Jean Luc BABA Rita NAVITI
(member) (member) (member)”.


On 1 December 2004, the Claimant appealed the decisions of the Police Service Commission to the Minister of Internal Affairs who is responsible for the Police under section 69 of the Police Act. The Notice of Appeal is annexed to sworn statement of the claimant and marked “RD9”. It is set our as follows:-


“IN THE MATTER OF: THE POLICE ACT


AND IN THE MATTER OF: AN APPEAL FROM THE DECISION OF THE POLICE SERVICE COMMISSION


BETWEEN:


ROBERT OBED DINIRO
Appellant


AND:


POLICE SERVICE COMMISSION
Respondent


NOTICE OF APPEAL


TAKE NOTICE that I, Robert Obed DINIRO appeal against the Decision of the Police Service Commission delivered in respect of the Disciplinary Hearing dated 24th November 2004 determining inter alia that;


(a) In respect of the first charge under section 19 (z) of the Police Rules that I be demoted to the position Deputy Commissioner.

(b) As to the third charge under section 19 (b) of the Police Rules that I be demoted to the position of Assistant Commissioner.

(c) As to the fourth charge under section 19 (z) of the Police Rules that I be demoted to the position of Superintendent of Major.

(d) As to the fifth charge under section 19 (z) of the Police Rules that I be dismissed from that day.

AND FURTHER TAKE NOTICE that the Grounds therefore will be filed upon the receipt of the formal written convictions of the said Police Service Commission.


DATED this 01st day of December 2004.


Robert Obed DINIRO

Appellant”


There was no other material information filed in support of the appeal before the Minister for his determination. The Orders on determination of charges against the claimant dated 24 November 2004 were not placed before the Minister.


By 11 December 2004, the Minister wrote a letter to the Chairman of the second Respondent, Police Service Commission in the following terms:-


“TO: The Chairman Date: 11th December 2004

Police Service Commission


From: Hon. George Andre Wells

Minister of Police


SUBJECT: QUASHING OF CONVICTIONS AND REINSTATMENT


I Honourable George Andre WELLS, Minister of Police having considered the appeals of Major Joshua BONG, Commander of VMF and Brigadier Robert Obed DINIRO, Commissioner of Police and after reviewing previous decisions taken against the two said persons hereby quash all convictions against them and reinstate the said Major Joshua BONG to his full duties as the Commander of VMF and hereby reinstate Brigadier Robert Obed DINIRO to his full duties as Commissioner of Police with immediate effect.


Given under my hand and seal this 11th day of December, 2004.


Yours faithfully,


Honourable George Andre WELLS

Minister of Police


cc: Major Joshua BONG

Brigadier Robert Obed DINIRO”


The Minister’s letter of 11 December 2004 come to the attention of the second Defendant around 27 January 2005. Enquiries were made as to the original of the said letter because the commission had never been served with the original of the letter nor been informed of its existence as shown in the statement of Leonard Bule.


Through the process of inquiries copies of the orders on determination of disciplinary charges against the claimant were provided to the attention of the Minister for his information.


By letter dated 17th February 2005, the Minister wrote to the chairman of the Police Service Commission to the effect that following careful consideration of the full report of the Commission on the Claimant’s actions and further advice from the state Law office, he hereby withdrew his letter dated 11 December 2004 and his decisions for reinstatement of the Claimant. Therefore the Commission’s decision on 24 November 2004 for the Claimant’s dismissal was upheld.


On 16 June 2005, the President of the Republic of Vanuatu issued an Instrument of removal of the Claimant as Commissioner of Police effective from 24 November 2004.


On 9 November 2005, the Claimant filed this Judicial Review claim claiming for the decision of the Minister dated 17 February 2005 revoking his previous decision of 11 December 2004 to be quashed.


THE CASE FOR CLAIMANT


The thrust of the Claimant’s case is that the decision of the Minister on 11 December 2004 is made on the appeal from the Claimant under section 69 (1) of the Police Act. Once the Minister decided, he could not revoke his decision by making another decision. The Claimant says the decision of the Minister dated 17 February 2005 is unlawful as the Minister lack jurisdiction to do so. The Minister is functus officio.


THE CASE FOR DEFENDANTS


The Defendant’s case is that the Minister’s decision by letter of 17 February 2005 was taken within his powers and according to law. Therefore the decision is lawful and should be allowed to stand.


THE LAW


Both counsel make reference to the Court on passages from H.W.R. Wade and C.F. Forsyth in Administrative law and I am guided by the following Statement of that Book:-


“In principle there is a clear contrast between the functions and statutory Tribunal and that of a Statutory Enquiry. The Statutory Tribunal finds facts and gathers evidence and decides the case by applying the legal rules laid down by statute or regulation. The typical inquiry hear evidence and find facts but the person conducting it finally makes a recommendation to a Minister as to how the Minister should act on some questions of policy....whether the decision will turn upon what the Minister thinks is in the public interest but where the Minister before he decides need to be fully informed and to give a fair consideration to objections. In other words Tribunal makes judicial decisions but enquiry are preliminaries to Administrative or Political decisions often described as quasi-judicial decisions”. (at pp 910).


Further (at pp 262) the learned Authors states:


“It may be necessary to determine whether there is a power to revoke or modify a decision or orders of an Administrative Tribunal. The question here is whether the authority itself has power to do this. In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears ‘the powers may be exercised and the duty shall be performed from time to time as occasion requires. But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision once validly made, is an irrevocable legal act and cannot be recalled or revised. The same argument, which requires finality for the decisions of courts of law apply to the decisions of statutory tribunal, Ministers and authorities”.


The following are the relevant provisions of the Police Act [CAP 105]:


DISCIPLINARY PROCEEDINGS AGAINST SENIOR OFFICERS


  1. A senior officer who commits an offence against discipline prescribed by this Act or by any regulations made hereunder shall be dealt with and punished in accordance with section 67 and 71.

DISCIPLINARY POWERS OF THE COMMISSION


67.(1) A charge of an offence against discipline alleged to have been committed by a senior officer shall be reported by the Commissioner without unnecessary delay to the Commission which shall inquire into the truth of the charge.


(2) The Commission, if it finds the charge proved, may impose on the defaulter 1 of the following punishments-


(a) dismissal from the Force;

(b) reduction in rank;

(c) loss of seniority;

(d) a fine not exceeding 15 days; or

(e) a reprimand.

(3) The punishments prescribed by subsection (2) are sufficient in themselves and only 1 such punishment may be awarded for each offence against discipline.


RIGHTS OF DEFAULTER


  1. A senior officer charged with an offence against discipline under the provisions of section 67 shall have the rights prescribed by section 60.

APPEALS BY SENIOR OFFICERS


69. (1) A senior officer who has been found to have committed an offence against discipline in accordance with the provisions of section 67 may, within 7 days of such conviction, appeal to the Minister against the conviction or the punishment imposed or both conviction and punishment and the Minister shall confirm, vary or quash the conviction or punishment but shall not increase any punishment on appeal without giving the defaulter an opportunity of being heard.


INTERDICTION FROM DUTY OF SENIOR OFFICERS


  1. (1) The Minister may, on the recommendation of the Commissioner and at any time, interdict from duty any senior officer pending-

(a) an inquiry under section 67 (1) into any disciplinary offence of which he is charged; or


(b) a trial of inquiry into any offence under this or any other Act for the time being in force of which he is charged before a court.


(2) A senior officer who is interdicted shall, for the period of such interdiction, cease to exercise the powers, privileges and benefits of his office but shall continue subject to the same responsibilities, discipline and penalties and to the same authority as if he had not been interdicted.


(3) A senior officer who is interdicted shall receive such proportion of his pay not being less than half as the Minister may decide. Upon termination of the interdiction, such outstanding proportion shall be –


(a) paid in full to the member if he is found not to have committed the offence for which he was interdicted, or any other offence arising out of the same set of fact; or

(b) paid in full or part to the member or otherwise disposed of at the discretion of the Minister if such member was found to have committed the offence for which he was interdicted or any other offence arising out of the same set of facts.

DISMISSAL AND REDUCTION IN RANK OF SENIOR OFFICERS FOLLOWING COURT CONVICTION.


71.(1) The Commission may, on the recommendation of the Commission, reduce in rank or dismiss from the Force any senior officer who has been convicted by a court of any offence under this or any other Act, unless such member has successfully appealed from such conviction.


(2) A senior officer may appeal against a reduction in rank or dismissal in the manner provided for in section 69.

APPLICATION OF THE LAW


In the present case, the facts are not disputed by the parties. The question is whether the Minister himself has the power to revoke or modify a decision or orders he made by letter of 11 December 2004 in accordance with Section 69 of the Police Act. Applying the law to the undisputed facts, it is accepted that “In the interpretation of statutory powers and duties there is a Rule that, unless the contrary intention appears ‘the powers may be exercised and the duty shall be performed from time to time as occasion requires’.


Having perused the provisions of the Police Act [Cap 105], there is no express provision prohibiting the Minister to revoke or modify a decision or order made under section 69 of the Police Act.


As a matter of interpretation, there is a power for the Minister to revoke or modify such a decision.


However, I agree and accept that the power of the Minister under section 69 of the Act is a power to decide questions affecting legal rights. In those cases the Courts are strongly inclined to hold that the decision once validly made, is an irrevocable legal act and cannot be recalled or revised. The same argument which requires finality for the decisions of courts of law apply to the decisions of statutory Tribunal, Ministers and Authorities.


The question for the determination of the Minister as Appellate authority under section 69 of the Police Act, is not whether the decision which the decision-maker (police service Commission) made was the correct or preferable one on the material before the Police Service Commission. The question for the determination of the Minister is whether that decision was the correct or preferable one on the material before the Minister as appellate authority. The Police Act [Cap 105] offers little general guidance on the criteria and rules which the Minister as appellate authority is to apply in the performance of his duty of reviewing the decisions of the Police Act. Even in a case such as the present where the police Act under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Minister is not, however, at large. In the appeal review under section 69 of the Act, the Minister is obliged to act judicially, that is to say, with judicial fairness and detachment.


In his appellate review proceedings of the decision of the Police Service Commission, the Minister is subject to the general constraints to which the Police Service Commission whose decision is under appeal review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists, that regard must be had to the relevant considerations, and that matters absolutely apart from the matters which by law ought to be taken into consideration, must be ignored. In other ways, the Minister, would have to show not only that he decided reasonably on the material before him, but that he had the relevant material before him in correct form.


In the present case, is the decision of the Minister by letter dated 11 December 2004, validly made, thus, constituting an irrevocable legal act which cannot be recalled or revised?


On the facts which are not in dispute, the Decision of 11 December 2004 is defective and not validly made for the following reasons:-


First, it is erroneous in that it refers to appeal by two persons – the claimant and Major Joshua Bong. However, there was only one appeal made by the Claimant on 1 December 2004. Major Bong did not file any appeal and he was never convicted of any disciplinary offences. Mr Bong did have a charge brought against him and the charge was dismissed by the Police Service Commission in November 2004. This is evidenced in the sworn statement of Leonard Bule. It is apparent that the Minister considers facts which are not in existence.


Second, the Minister purported to reinstate the claimant back to his full duties as Commissioner of Police. However, the Minister does not have any power under the police Act to reinstate an officer back to full duties. The minister’s powers under section 69 of the Act, is only to confirm, vary or quash the conviction or punishment made by the Police Service Commission under section 67 of the same Act.


Third, the facts show that the Minster purported to make a decision by letter dated 11 December 2004 having considered only the information from the claimant contained in his Notice of Appeal without any supporting grounds. The Minister made his decision of 11 December 2004 without having all the relevant material before him. It is clear that the decision of 11 December 2004 could not be validity made as it was made on a misunderstanding or ignorance of an established and relevant fact and also in a misapprehension of the law. The decision of 11 December 2004 is, therefore, invalid and unlawful.


Finally, the facts show that the Minister revoke his decision of 11 December 2004 and substitute it by his decision of 17 February 2005 after that he had received all the relevant material before him in early February 2005 (ie copies of the orders on determination of charges in the Disciplinary causes involving the Claimant) in correct form. In the circumstances of this case, it is open to the Minister to receive full and relevant information regarding the circumstances leading up to the Claimant’s appeal and then make the decision by letter dated 17 February 2005 on the principle of ‘error of materials facts’. This principle is explained in Wade & Forsyth in Administrative Law (7th ed) at pp.316-317 in this way:-


“Error of material fact


Mere factual mistake has become a ground of judicial review, described as ‘misunderstanding or ignorance of an established and relevant fact’, or acting ‘upon an incorrect basis of fact’. In a case where the Secretary of State had power to give directions if he was satisfied that the local education authority were acting unreasonable, Lord Wilberforce, in explaining that such powers were to some extent subject to judicial review, said [in Secretary of State for Education and Science v. Tameside MBC ]1977] AC 1014 at 1047]:


If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If those requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge.


Lord Wilberforce approved a remark by Lord Denning MR in another case that the Court could intervene if a minister ‘plainly misdirects himself in fact or in law’.


At pp.317-318, Wade & Forsyth state:


This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less need in this country, since decisions based upon wrong facts are a cause of injustice which the courts should be able to remedy. If a ‘wrong factual basis’ doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law. A minister, for example, would have to show not only that he decided reasonably on the material before him, but that he had the relevant material before him in correct form. This would tighten still further the Court’s control over administrative findings of fact and would consign much of the old law about jurisdictional fact, etc., to well-deserved oblivion. It would make judicial review into a comprehensive system able to correct serious errors of all kinds”. (Emphasis Added)


I accept this principle and the persuasive authorities cited and I adopt and apply them as my own in this case.


CONCLUSION


The Minister having considered full information regarding the circumstances to the Claimant’s appeal, on the principle of “error of material fact”, withdrew his decision of 11 December 2004 and replace it by his decision of 17 February 2005 by confirming the decision of the police service commission of 24 November 2004 dismissing the claimant as Commissioner of Police and a member of Police Force.


I answer to the issue posed as follows: The decision of the Minister of 17 February 2005 withdrawing his decision of 11 December 2004, is lawful.


For the forgoing reasons, the Court dismisses the claim on 22 December 2005.


On a final note, although, the Claimant challenges the decision of the Minister of Police dated 17 February 2005, the Claimant did not challenge his removal by the President of the Republic of Vanuatu as Commissioner of Police issued on 16 June 2005 and effective from 24 November 2004.


Dated at Port Vila this 20th January 2006.


BY THE COURT


VINCENT LUNABEK
Chief justice


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