State v Commissioner of Police, Ex parte Talawadua [2001] FJHC 183; HBJ0026.1998 (25 April 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

ACTION NO. HBJ0026 OF 1998

THE STATE

V

THE COMMISSIONER OF POLICE
AND ATTORNEY-GENERAL OF FIJI

EX-PARTE:

SEMI TALAWADUA

A.K. Singh for the Applicant
K.T. Keteca for the Respondents

Dates of Hearing: 24th February, 29th June 2000
Date of Judgment: 25th April 2001

JUDGMENT

On the 18th of June 1999 I gave the Applicant leave to apply for Judicial Review of the decision of the Commissioner of Police of the 23rd of September 1998 dismissing the Applicant from the Police Force on that day.

In my Ruling I set out the facts which are undisputed and which disclose that during his time in the Police Force the Applicant had an extremely poor record as a Police Officer. Details of this are set out on pages 2 and 3 of my Ruling and I shall not repeat them here.

At page 4 of my Ruling I said this:

"I have no doubt that the Applicant must have been well aware from his record that sooner or later the patience of his superiors and the Commissioner would be exhausted. His record shows that he has been consistently a nuisance and bad example to his fellow officers. He has received numerous reprimands and fines and was reduced to the rank of Constable in 1992. There can also be no doubt that the warning made by the Commissioner was in the clearest terms and includes this statement:

"It is therefore my fervent hope that you will take heed of this advice and change your attitude accordingly for your own good.""

I continued on page 5 and said this:

"All that said, I am left with a nagging doubt about the fairness of the Applicant's dismissal on the 23rd of September 1998. In my judgment it is arguable that the Applicant should have been given perhaps one last opportunity to explain the circumstances of the charge leading to his last Court appearance. Perhaps he can say nothing more but at least I think he should have been given the opportunity to give an explanation which he was denied. I therefore propose to give him leave to apply for Judicial Review basically because he was not convicted of any criminal offence. In this respect his case is different from that of the six car-hire drivers who eventually lost their licences after scores of convictions for offences connected with their practice at London's Heathrow Airport - Cinnamond v. British Airports Authority (1980) 1 WLR 582."

Accordingly I gave the Applicant leave to apply for Judicial Review and received further submissions on the substantive Motion from the parties. These submissions have helped me review the case and I have now come to the conclusion that the Applicant should not be granted Judicial Review.

In Cinnamond v. British Airports Authority (1980) 1 WLR 582 in a case dealing with a number of car-hire drivers operating illegally at Heathrow Airport the Court of Appeal rejected a submission that the Plaintiffs had been denied natural justice in that they had not been heard by the British Airports Authority before a ban on them operating was imposed.

At page 590 Lord Denning M.R. said:

"In cases where there is no legitimate expectation there is no call for a hearing."

At page 592 Shaw L.J. said:

"As to the suggestion of unfairness in that the drivers were not given an opportunity of making representations, it is clear on the history of this matter that the drivers put themselves so far outside the limits of tolerable conduct as to disentitle themselves to expect that any further representations on their part could have any influence or relevance. The long history of contraventions, of flouting the regulations, and of totally dis-regarding the penalties demonstrate that in this particular case there was no effective deterrent. The only way of dealing with the situation was by excluding them altogether."

Reading the submissions I received on the substantive Motion and considering afresh the relevant case law I am no longer left with any nagging doubt about the fairness of the Applicant's dismissal on the 23rd of September 1998. I am satisfied in the light of his history as a Policeman that as a matter of common sense and practicality nothing more could be said on behalf of the Applicant to induce the Commissioner to change his mind. The Applicant was given more chances than he might normally have expected to improve his behaviour and he ignored these chances. It is vital that as far as possible members of the Police Force must be above reproach both in their public and private lives. They are the custodians of the law and order and the public is entitled to see that they always uphold the high standards which as members of the Force the public is entitled to expect from them.

For these reasons the application for Judicial Review is dismissed. There will be no order for costs.

JOHN E. BYRNE
JUDGE

Case refer to in Judgment:

Cinnamond v. British Airports Authority (1980) 1 WLR 582.