IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0025 OF 1994

Between:

NASIR ALI
s/o Shaukat Ali
Applicant

- and -

THE ATTORNEY-GENERAL OF FIJI
Respondent

Mr. S. Matawalu for the Applicant
Mr. D. Singh for the Respondent

JUDGMENT

Pursuant to leave granted on 18 May 1995 NASIR ALI the Applicant moves for judicial review of the decision given by the Commissioner of Police (hereafter referred to as the "Respondent") on or about 31 August 1993 (further to letter of 18 August 1993) whereby he directed that the Applicant be dismissed from the service of the Fiji Police Force with effect from 27 August, 1993.

The relief sought is in the following terms: (a) an order of certiorari to quash the decision or decisions of the Respondent and (b) for a declaration firstly, that the said decision was arbitrary and prejudicial to the right of the Applicant and was ultra vires the Police Act Cap. 85 and is therefore null and void and secondly, that in making such decision the Respondent took into account irrelevant considerations or did not take into consideration matters which were relevant and thereby lacked jurisdiction and thirdly that the Respondent in making the decision that he did had acted in a manner contrary to and in breach of natural justice AND for an Order directing that the Applicant be reinstated forthwith AND for an Order for costs.

This application has a long history and I do not consider it necessary to dwell on this suffice it to say that it finally came up for hearing before me on 7 November 1995.

The Applicant's lengthy Affidavit in Support of the Application for Judicial Review sworn 31 May 1995 sets out the history of the matter. The learned counsel for the Applicant has filed a useful "Chronology of Events" document. I have taken into consideration both these documents.

The Respondent's successor Isikia Savua, the present Commissioner of Police, has filed an Affidavit in Reply sworn 30 June 1995; and the Applicant replied thereto by Affidavit sworn 31 July 1995. These have also been considered by me.

I now turn to the relevant facts. The chronology is before me in written form; the learned counsel for the Applicant has summarised the facts inter alia as follows (in so far as they are relevant) in his written submissions to assist the Court: 

The Applicant's career in the Police Force:

1.	On 7th January 1977 the Applicant was recruited to serve in the Fiji Police Force and one of the terms and conditions of the service was that as a subordinate officer he shall be entitled to rent free quarters whether single or married (General Order 600).

2.	In the year 1977 after successful completion of the Basic Recruits Training the Applicant was transferred to the Central Police Station to perform Uniform Branch duties.

3.	In the year 1979 whilst at the Central Police Station he was selected on his performance and transferred to the Criminal Investigations Department as an investigator.

4.	Within a very short period as an investigator his performance was appraised by then the Director of CID late SSP Adi Balram who in the year 1981 had the Applicant transferred to the Criminal Investigations Department Registry which is regarded as the Central Nerve Centre of the Criminal Investigations Department.

5.	In the year 1987 whilst at CID Registry the Applicant was promoted to the rank of Corporal and within a few months was promoted to the rank of Sergeant as the CID Registry Sergeant.

6.	During the year 1989 the establishment and strength of the Fiji Police Force was increased and a new post of Inspector Interpol was also created hence the Applicant was appointed to act as an Inspector responsible for Interpol.

7.	In the year 1990 without any adverse report on the performance of his duties or otherwise the Applicant was quietly side transferred to the Serious Crime Squad within the CID/Headquarters as an investigator where spending a few months he was again appointed to act as Inspector Serious Crimes Squad and was also delegated powers of the Police Customs Liaison Officer a newly created post.

Report on alleged illegal activities

8.	The Applicant during the years 1990 and 1991 whilst based at Serious Crime Squad at Vanua House, Suva became aware of the illegal activities, corruption within the members of the force and fraud by certain senior Police Officers thereafter wrote a letter for an audience with the Commissioner of Police, Phillip Grey Arnfield. He was directed to prepare a detail report with supporting evidence, addressed personally to the Commissioner Arnfield.

9.	On 25th June 1992 after completing his report of 37 pages under confidential cover the Applicant handed the original and a copy to the Assistant Commissioner Jone Waisele to read the same before forwarding it to the Commissioner, Phillip G Arnfield. In the report apart from the allegations of corruption and illegal activities the Applicant highlighted the involvement of Late SSP Krishna Kumar and the Assistant Force Accountant in a Fraud Racket. I quote hereunder the contents of that paragraph under caption "GROUP INSURANCE SCHEME" at page 28 of the Applicants report.

"Though there is a committee to look after the Insurance Scheme it is sad to note that the accounts for the years 1989, 1990 and 1991 has not been audited. I personally approached Inspector Chetty in January this year for the audit report but he stated that no audit of the accounts was done. I understand large sums of money has been deposited in the bank but on the other hand has the expenditure being accounted for. Since the accounts are not being audited then it always leaves room for abuse. One may wonder where SSP Krishna Kumar had been getting money for making trips abroad and nearly everyday, having lunch and liquor with Director CID during 1989 and 1990"

"I recall that in 1989 before Christmas whilst I was the Interpol Officer SSP Krishna Kumar brought a BNZ cheque for $3,800.00 signed by him and Mr Basant Kumar of our pay office. This was a cash cheque and I gave it to D/CPL Ambika to cash the same which he did. I gave the money to SSP Krishna Kumar when he called in the afternoon. I do not know what that money was for and which account it came out of. I have my suspicion that it came out of one of the funds maintained at Headquarters and Mr Basant Kumar may well be involved in the racket".

10.	On 1st July 1992 the Applicant was summoned to see the Commissioner, Arnfield and inside his office the Commissioner appeared agitated and became aggressive. The Commissioner refused to investigate the Applicant's complaint of corruption and fraud admitting that he was aware of the clique and threatened that the Applicant was libellous. Thereafter he changed his attitude that he would give the Applicant a fresh start and would have him transferred. To the effect he stated that he would be writing to Assistant Commissioner Administration and in fact wrote a minute and some of his comments from the minute I quote hereunder:

"It is a bitter attack on his senior supervisors, based on rumour and speculation and admittedly some elements of truth".

"I have informed him of a likely transfer so that he can begin making domestic arrangements. I have retained the document in my confidential file". 

I now recite some of the details of the chronology which have not been challenged, in so far as they are relevant, which led to Applicant being subsequently dismissed from the Fiji Police Force as contained in the said Affidavit of the Applicant sworn 31st May 1995 and in the said "Chronology of Events" document:

On 2 July 1992 the Respondent refused to investigate the complaint. But on 15 August there was an investigation by Ministry of Finance thus supporting part of the complaint.

On 4 November 1992 he is transferred to Lautoka effective from 30 November. The Applicant has difficulty in finding accommodation. Despite that he receives a letter on 14 November that failure to proceed on transfer would lead to his demotion. Then on 21 December he is threatened with transfer to Nabouwalu when he told ACP (A) Mohammed Ishak that he was being victimised.

On 21 November he saw R who said it was foolish of him to make the Report and that if he did not go on transfer he would be dismissed from the Force and he refused to hear anything about accommodation.

On 29 January 1993 he was charged on two counts; he pleaded not guilty before the tribunal. The applicant was refused the opportunity to call witnesses and the tribunal failed to give its findings.

On 16 April 1993 he was told of sentence by R, namely, dismissed from Force and "suspended for 9 days" and ordered to report to Lautoka by 24 April.

On 5 May 1993 the Applicant complained to R about the defaulter proceedings and unavailability of quarters. On 13 May R replies threatening dismissal. The Applicant is informed on 17 May that tribunal will be re-convened. He was then threatened with interdiction if he does not proceed to Lautoka. Interdiction took place without charges being filed or pending.

On 17 June 1993 new defaulter charge for wilful disobedience of lawful order was served on the same facts and for A to appear before the tribunal on 14 July.

On 12 August 1993 Applicant was not allowed to call R as his witness by the tribunal.

The Applicant received a letter of dismissal from R on 18 August 1993 without the concurrence of the Police Service Commission but later (on 27 August 1993) rectified by obtaining its concurrence.

Determination of the Issue

The Issue

Mr. Matawalu submits orally along the lines contained in his written submission whereas Mr. D. Singh for the Respondent makes oral submissions.

The issue for my determination is whether the Commissioner's order for dismissal of the Applicant from the service of the Fiji Police Force was arbitrary and prejudicial to the right of the Applicant and ultra vires the Police Act Cap. 85 and therefore null and void.

Mr. Singh has put the issue by saying that the "sole issue is whether transfer was lawful one or not".

The findings of fact

The Applicant complains and I find as fact that the Respondent failed to carry out an investigation on his 37 Page Report (annexure c of Applicant's Affidavit sworn 31 May 1995) and that he was refused the opportunity to call material witness in the disciplinary proceedings against him and thus denying him natural justice and contravened the provisions of the Police Act before reaching the decision to dismiss him from the service.

I further find as fact that the whole complaint of the Applicant relates to the period when Phillip Grey Arnfield, the then Commissioner of Police was the Commissioner and it is to him that all the allegations are directed. Although his successor has filed an Affidavit in Reply it would have been preferable to have had in addition an Affidavit in Reply from Arnfield so that one could hear so to say from the "horse's mouth", since it is believed, he is still in Fiji.

Be that as it may, the Court has before it the case of a very senior police officer in the person of the Applicant who pursuant to his 37 page Report of complaint referred to hereabove has allegedly been victimised by being dismissed evidently because he complained against his colleagues in the manner he did.

The circumstances leading up to his dismissal have already been stated and I do not wish to reiterate them but certain features require identification from the chronology and I refer to them hereunder. I found the written arguments of the applicant very helpful from which I prefer to quote in extenso.

On 29 January 1993 ASP Kevueli Bulamainaivalu was appointed the tribunal when he personally served on the Applicant "two counts of Defaulter Charge". On 3 February 1993 the Applicant appears before the tribunal and pleads not guilty. His request to be represented by counsel is refused. The two counts were wilful disobedience of lawful orders (disobeying to go on transfer) and disrespectful in words, act and demeanour towards the Commissioner of Police. The tribunal concluded its hearing on 7.4.93 but without allowing the Applicant an opportunity to call witnesses in particular the Commissioner. The tribunal told the Applicant that the witnesses he intended to call were not material but the Applicant maintained that they are material. However, the Applicant had been denied the opportunity to make his defence which is in breach of the provisions of section 32(2) of the Police Act which provides:

"No Police Officer shall be convicted of an offence against discipline unless the charge has been read and investigated in his presence and he has been given sufficient opportunity to make his defence thereto." (emphasis added)

The tribunal failed to give his findings and referred the matter directly to the Respondent with the recommendation on the first Count, inter alia, that he be dismissed from the service suspended for 12 months but acquitted on the second count. This recommendation is contrary to section 35(1) of the police act which states that the period of suspension should not exceed six months.

Then on 16 April 1993 he is informed that he is "dismissed from service suspended for 9 days" and that he should report to Lautoka Police Station. This procedure it was submitted, which I uphold, is contrary to the Police Act and the Force Standing Orders and which do not authorize the Commissioner to do what he did when even the tribunal failed to give his verdict whether he found the Applicant guilty or not.

When the Applicant complained about the wrong procedure adopted in dealing with him, the tribunal is re-convened. But this it was submitted by Mr. Matawalu, and this also I uphold, would not have validated the nullity of tribunal's views. The Applicant could not find accommodation at Lautoka, despite that on 24.5.93 he receives a memorandum from the Respondent that he was being interdicted from duty.

At the time of interdiction there were no charges pending against him and the actions of the Respondent I find as submitted were contrary to his powers under section 28(1) of the Police Act which provides as follows:-

"The Commissioner may interdict from duty any Inspectorate Officer or Subordinate Officer pending the trial of any offence, whether under the provisions of this act or before a Court and pending the determination of any appeal".
(underlining mine for emphasis)

Then on 17 June 1993 the Applicant is served with Defaulter Charge for Wilful Disobedience of a lawful order for failing to report for duty at Lautoka Police Station and was interviewed under caution on 6 July 1993.

Mr. Matawalu sets out the following further facts which I hold to be true:

"On 12 August 1993 as charged Applicant appears before the tribunal ASP Mahendra Pratap and pleads not guilty. The Applicant objected to the charge and informed the tribunal that he had earlier been convicted and punished by the Commissioner Arnfield on the same facts arising out of the Commissioner's order for transfer on 1st July 1990. The tribunal refused the objections and went ahead to hear the case.

After the completion of the prosecution case the tribunal on the request of the Applicant failed and refused to call the Commissioner Arnfield as a defence witness. The tribunal ruled that he being a junior officer could not call the Commissioner Arnfield to give evidence when he the Commissioner was the supreme authority and that the tribunal could not rule against him when he the Commissioner was directing and making decisions in the Applicant's case and went ahead to convict the Applicant."

I am in full agreement with all the above submissions of Mr. Matawalu and I agree with him that the tribunal erred in law when the Applicant was not allowed to call the Respondent as his witness. This is in breach of the said section 32(2) of the Police Act. 

The nature of the application

This is an application for a review of the Respondent's decision.

In this case the Respondent is vested with certain powers under the Constitution and the Police Act to which reference has already been made and further reference will be made later. Mr. Singh maintains that it is in the exercise of these powers that the R reached the decision to dismiss the Applicant.

Mr. Singh argues that the Constitution of the Sovereign Democratic Republic of Fiji Constitution 1990 spells out the powers of the Commissioner of Police. In s 92(2) it states that "The Police Force shall be under the command of the Commissioner of Police". and that "... the Commissioner shall not, in the exercise of his responsibilities and powers with respect to the use and operational control of the Force, be subject to the direction or control of any person or authority" (s. 95(4)). He goes on to state that s 7(1) of the Police Act Cap. 85 spells out the general powers of the Commissioner including making of Orders regarding "distribution" of officers.

It is my view that whatever powers the Commissioner may have under the Constitution and the Police Act, his decisions are susceptible to judicial review; and as Mr. Matawalu said in his closing address before me the Commissioner's "administrative action must be controlled" if his commands are unlawful.

I shall now deal with the statutory provisions which give certain powers to the Commissioner and under which inter alia the Applicant bases his claims.

It is not doubted that under section 52 of the Criminal Procedure Code, which provides as follows, the applicant is entitled to lodge a complaint:

"It shall be the duty of every Police Officer below the rank of Inspector who receives information of a design to commit any cognizable offence to communicate such information to the Police Officer to whom he is subordinate, or to any other officer whose duty it is to prevent or take cognizance of the Commission of any such offence".

The Commissioner of Police was empowered to investigate complaints under section 17(3) of the Police Act Cap. 85 which provides as follows:

"It shall be the duty of every Police Officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the Commission of offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists".

It is obvious that the Commissioner ignored the provisions of the Police Act particularly s5 relating to functions of Force and section 17(3)which deals with General Powers and Duties of Police Officers.

There are two aspects of this case which are matters of great concern. Without going into any greater detail than what has already been stated hereabove the Applicant was certainly denied natural justice in not being permitted to call the witnesses he wished to call in the disciplinary proceedings. The tribunal failed to make a finding but referred the matter direct to the Respondent with recommendation which was not in compliance with section 35(1) of the Police Act. The other matter is the shoddy treatment given to the Applicant in relation to his transfer. As can be gleaned from the facts outlined hereabove the reason for transfer is as clear as daylight. All his plea fell on deaf ears from the Respondent down. He certainly was entitled to be heard on this matter but to no avail. He finally gets marching orders.

As far as the transfer is concerned I find as fact that the Applicant did his utmost best to find accommodation in Lautoka but was not successful. The Police Force did not assist him at all in finding accommodation. It appears that he is entitled to rent free quarters or allowance in lieu. I need not go into his entitlement in this regard. No one was prepared to reason out his difficulties because it was quite obvious from the very beginning of the lodgment of his Report that the Respondent was bent on transferring him out of Suva i.e. to Labasa and even to a remote outpost like Nabouwalu.

And, as submitted by Mr. Matawalu, only after the investigation into the Applicant's complaint if found to be false it was then open to the Commissioner of Police to institute disciplinary proceedings under section 12(26) and 12(27) of the subsidiary legislation of Police Act Cap. 85 which provides as follows:

12 (26). "Knowingly makes any false accusation against any other Police Officer or any other person";

12(27)	"in making any complaint against any other Police Officer or any other person, makes a false statement affecting the character of such Police Officer or other person, knowing such statement to be false, or knowingly and wilfully suppresses any material facts".

The evidence reveals that the Respondent showed animosity towards the Applicant as soon as the 37 page complaint was lodged with him. He took practically no notice of the complaint as evidenced by his refusal to investigate into the allegations but instead, to put it in a nutshell, made up his mind to transfer the Applicant. All this is evident from his conduct throughout his handling of the matter. His passive attitude became evident right from the outset when he stated in his Minute to Assistant Commissioner of Police (Administration) that:

"Admittedly some elements of truth" "I have retained the documents in my confidential file".

It became quite evident later that there was substance in his complaint, when to give an example, the Auditor-General in the Parliamentary Paper No. 39/94 revealed that $500,000.00 was fraudulently converted. It was then that the Respondent commenced some investigation but not when the Applicant complained.

In this case I am of the view that the Respondent, to whom the complaint was addressed by the Applicant, should have carried out an investigation into the complaints although they were against senior Police Officers. The said section 95(4) of the Constitution does not mean that he can refuse to investigate; particularly, as in this case, the complaints relate to penal offences; I agree with Mr. Matawalu that the Commissioner's refusal to investigate and the order for transfer of the Applicant was an arbitrary act in breach of his powers as a public servant and was prejudicial to the right of the Applicant under the Police Act. The actions of the Respondent are certainly in breach of natural justice.

Application of Law to facts

For the manner in which the Applicant was dismissed from the Force, he has applied in these judicial review proceedings to review the Respondent's decision.

It is through the judicial review process that the Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties. Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. (JUDICIAL REVIEW by SUPERSTONE & GOUDIE p.24). And as LORD BRIGHTMAN said in CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS (1982) 3 AER 141 at 155: "Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made." He observed further: "Judicial review is concerned, not with the decision, but with the decision-making process. Unless restriction on the power of the court is observed, the court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

A very useful statement on the purpose of judicial review is to be found in the following extract from the judgment of BRENNAN J in ANNETTS AND ANOTHER and McCANN & OTHERS 170 C.L.R. (High Court) p.596 at 604 which is apt to be borne in mind in considering this case:

"Judicial review is not designed to control the way in which coroners and other public officers perform their functions; it is simply an application of the law governing the extent and exercise of a power. The focus of judicial review is a power created by statute conferred on an authority prescribed by statute. (It is unnecessary to consider whether the remedies of judicial review are available in respect of an exercise of prerogative power.) The remedies prohibit the exercise of a power or compel the exercise of a power or hold invalid a purported exercise of a power. To hold a purported exercise of a power invalid is to deny it the legal effect which, if it were valid, it would have. An order prohibiting or compelling an exercise of power is made when the intended exercise of the power or the failure to exercise the power is contrary to law; an order holding a purported exercise of a power to be invalid is made when its purported exercise fails to satisfy a condition governing its validity. The law governing the extent and exercise of a power exists independently of the circumstances which evoke its exercise or the circumstances in which the exercise or purported exercise occurs. That must be so not only as a legal truism but as a matter of practical necessity: a repository of a power must know what the law requires for the valid exercise of the power before attempting its exercise."

Procedural Fairness

In this case the real question is whether in the circumstances of this case and having regard to the nature of the legislative provisions, procedural fairness was required before the Respondent reached his decision that the Applicant ought to be dismissed.

In CORNALL v A.B. (A Solicitor) 1995 1 V.R. Sup Ct. 372 at 395 ORMISTON, COLDREY and O'BRYAN JJ said:

"....in order to show that those entrusted with investigative duties ought to be subject to the obligation to afford procedural fairness, certainly in circumstances where the outcome of their investigation may directly or indirectly affect the reputation of the person investigated. We would agree that investigations may in certain circumstances be subject to that obligation but we would not agree that such an obligation applies in every case, even where reputation may be affected."

The Extent of the Obligation to afford procedural fairness:

In considering the issue before me reliance is placed on dicta in a number of cases.

The following passage from the judgment of MASON C.J. and DEANE and McHUGH JJ in ANNETTS (supra) at 598 is apt in this case:

"It can now be taken as settled that, when a statute confers upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment." (underlining mine for emphasis)

The following statement by McHUGH J in JOHNS v AUSTRALIAN SECURITIES COMMISSION (1993) 178 CLR 408 at 470 effectively states the present test as to exclusion of the rules of natural justice:

"An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute. Such an intention cannot be gleaned from "indirect reference, uncertain inferences or equivocal considerations".
(COMMISSIONER OF POLICE v TANOS (1958), 98 CLR.380, at p.396).

In CORNALL (supra) at p.395 ORMISTON, COLDREY and O'BRYAN JJ in their judgment said:

"... Nevertheless it cannot be said that every decision requires the decision-maker to afford procedural fairness and it is an inquiry which can only be answered by looking at the whole of the statute in question. As was said in Ainsworth's case: "Obviously, not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness" (per MASON CJ. Dawson, Toohey and Gaudra JJ: at 576.

It continues (p.395):

"On the other hand, as was said by the High Court in the passage immediately following that sentence, it does not follow that, because a body is engaged in an exercise which may be characterised as an inquiry or investigation, there is no duty to ensure procedural fairness. What is decisive is "the nature of the power, not the character of the proceeding which attends its exercise": ibid. Thus Ainsworth's case confirms that it is not appropriate merely to characterise a particular process of decision-making as investigative without enquiring as to the consequences of that investigation."

The above passage clearly sums up that in a situation such as the one before me procedural fairness is required.

In COUNCIL OF CIVIL SERVICE UNION AND OTHERS v MINISTER FOR THE CIVIL SERVICE (1984) 3 AER 935 at 950 LORD DIPLOCK said that:

"one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and third 'procedural impropriety'."

It is the third ground which is more relevant in the instant case. On this aspect LORD DIPLOCK in CCSU (supra) at 951 said:

"I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."

In the leading case of O'REILLY v MACKMAN (1983) 2 AC 237, LORD DIPLOCK observed as follows on the subject of giving a party the opportunity of hearing and of presenting his own case:-

"But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement."
(emphasis added)

In order to properly determine the application, nature and extent of any rules of natural justice, one must look closely at the subject-matter in question. (OGNALL J in R v JOINT HIGER COMMITTEE on SURGICAL TRAINING ex parte Milner Adm. L.R 1995 (July 1995) 454 at 465. Then he goes on to quote as follows from LORD DENNING in R v Gaming Board ex parte BENAIM 1970) 2 Q.B. 417, 430:

"It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject matter..."

OGNALL J (ibid) p.465 continues quoting from LORD BRIDGE in LLOYD v McMAHON (1987) AC 625, 702:

"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."

Similar observations were made by LORD LANE in R v COMMISSION of RACIAL EQUALITY ex parte COTTRELL and ROTHON (1980) 3 AER 265, 271 as follows:

"Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly.

Accordingly, before assessing the fairness of the manner in which the decision complained of was taken ..., it is necessary to analyse the context in which [it] was made and the nature of the decision."

In the present case the applicant was already dealt with and punished and he served his sentence after the first hearing. On the same facts he is brought before the re-convened tribunal the second time. The Police Act under section 30(b) does not allow this to be done where it provides:-

"Save as is expressly provided under the provisions of this Act no such officer shall be punished twice for the same offence." (emphasis added)

On 31 August 1993 the Respondent notified him that he is dismissed from the service on 27 August 1993 without at first the concurrence of the Police Service Commission but later rectified by him stating that concurrence had been obtained and the effective date of dismissal was 27 August 1993.

In the case before me the Applicant was denied the opportunity to call the Respondent as his witness, also he was not allowed to have himself represented by a solicitor before being finally dismissed from the Force after evidence had been taken against him. The process by which the Respondent reached his decision was clearly wrong. It is a blatant disregard of the rules of natural justice. LORD DIPLOCK in MAHON v AIR NEW ZEALAND LTD (1984) A.C. 808 at pp. 820-821 delivering the judgment of the Privy Council, said as follows in relation to a person making a finding in the exercise of an investigative jurisdiction:

"The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.... The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result."

I have stated hereabove that the Respondent's decision to terminate the Applicant's appointment is susceptible to judicial review by the Court particularly on the facts and circumstances of this case. (see MANUNIVAVALAGI DALITUICAMA KOROVULAVULA and PUBLIC SERVICE COMMISSION (Civ. App. No. 6/94 FCA). There the Court said:

"The Common law makes it clear that, generally speaking a statutory power conferred on any person or authority for public purposes is conferred, as it were, upon trust and not absolutely. Accordingly the holder of such a power does not have an unfettered discretion in exercising the power."

In this case the Respondent exercised his discretion improperly attempting to transfer the applicant with the motive as I have explained above. He did not act reasonably. The Applicant alleged that the transfer was intended as a punishment meted out to him. In reply to that Mr. Singh argued that there was no breach of any regulation on the part of the Respondent and that the Respondent has "unfettered power in him to transfer" and he referred the court in this regard to the case of MERRICKS & ANOTHER v NOTT-BOWER AND ANOTHER (1964) 1 AER 717. That case is in favour of the Applicant. There it was held that "(i) the plaintiffs had an arguable case on the question whether the power of transfer had been used as a punishment ..." That is the situation in the case before me. In MERRICKS (supra) p.720 the Plaintiffs allege, inter alia, that they were condemned and punished without being heard. The following passage from the judgment of LORD DENNING M.R. 720 states the principles of law to be followed in this kind of situation and this I find was not done in this case:

"Such being the case made, I am not prepared to say that it is unarguable. It is a well-known principle of our law that any powers conferred by statute or regulation on an executive or administrative authority must be exercised in good faith for the purpose for which they are granted. They must not be misused or abused by being applied to an ulterior purpose. Whether that principle applies here or not, I do not say; all I do say is that, if the plaintiffs allege, as they did that this was a misuse of the power of transfer that it was used, not for the purpose of good administration and efficiency but for the motive of punishment they have an arguable case which they are entitled to have tried by the courts."

As I said before, the Court is in this action merely concerned with the process or manner in which the decision was reached by the Commissioner. To sum up I find that the Applicant was treated unfairly in that he was denied the opportunity to prove himself blameless on matters which had been thought fit for disciplinary proceedings. Furthermore there was non-compliance with the provisions of the Police Act consequently the decision to dismiss was unlawful apart from there being procedural unfairness resulting in the Respondent's decision being unreasonable in the WEDNESBURY sense. In this regard I conclude with the following passage from ASSOCIATED PROVINCIAL PICTURE HOUSES LD v WEDNESBURY CORPORATION (1948) 1 KB (C.A.) 223 at 233-234

"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."

In the result, for the reasons stated above I will grant Judicial Review of the Respondent's decision to dismiss the Applicant from the Fiji Police Force.

The form of relief to be granted on applications for Judicial Review is always in the Court's discretion.

For the reasons given hereabove the termination I find was unlawful. There will therefore, be a declaration that the Respondent decided unlawfully to terminate the Applicant's employment.

It is ORDERED that certiorari go to quash the decision of the Commissioner of Police to dismiss the Applicant from service in the Fiji Police with effect from 27 August 1993.

AND it is FURTHER ORDERED that the Applicant be reinstated forthwith.

It is also ordered that the Respondent pay the Applicant's costs to be taxed if not agreed.

D. Pathik
Judge

At Suva
2 February 1996
HBJ0025J.94S