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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBJ 4 of 2017
BETWEEN
MAHENDRA SINGH
Applicant
AND
THE COMMISSIONER OF POLICE
First Respondent
AND
ATTORNEY GENERAL OF FIJI
Second Respondent
Counsel: Messrs KLaw for the Plaintiff
Pillai Naidu & Associates for the Defendant
R U L I NG
INTRODUCTION
BACKGROUND
THE COMMISSIONER’S POWERS TO DISCIPLINE
8. The Commissioner has general powers under section 129(7)(b) and (c) of the 2013 Constitution, respectively, to remove persons from the Fiji Police Force, and, to take disciplinary action against persons in the Force[8]. These general powers must be read together with section 32(1) and (2) of the Police Act and also Regulation 13 of the Police Regulations. Section 32(1)A of the Police Act gives the Police Commissioner power to impose various punishments (including dismissal) in the trial of any disciplinary offence against any inspectorate officer[9] or any subordinate officer[10]. Section 163(h)[11] of the Revised Edition of the Law (Consequential Amendments) 2016 amends section 32(1)A by consolidating the old section 32(1)A(a) with section 32(1)A(b)[12].
9. Under section 37 of the Police Act, the Commissioner has power to dismiss or reduce in rank any police officer convicted by any court[13]. This section has been amended by section 163(i) (i) and (ii) respectively[14] with effect that the Commissioner now has powers to dismiss even a convicted gazetted officer and also giving the Commissioner the final authority to dismiss.
Provided that the punishment of dismissal shall be subject to the concurrence of the Police Service Commission,
Police Services Commission/Disciplined Services Commission
No Conviction Unless Charge Read & Investigated In Officer’s Presence
Gazetted Officer To Hear & Investigate Charges
Procedure At Trials
Procedure at trials for offences against discipline
13. The following procedure shall apply to all proceedings heard by any tribunal under the provisions of section 32 of the Act:-
(i) the officer charged with an offence against discipline (hereinafter referred to as "the accused") shall be supplied with a copy of the charge prior to the hearing;
(ii) no documentary evidence shall be used in any such proceedings unless the accused has been given access thereto prior to the hearing;
(iii) the evidence of any witness taken during the course of the proceedings shall be recorded in the presence of the accused;
(iv) the evidence given at the proceedings need not be taken down in full, but the substance and material points thereof must be recorded in writing and read over to the accused;
(v) the accused shall have the right to cross-examine each witness giving evidence against him and after each such witness has given evidence he shall be asked if he desires to cross-examine such witness;
(vi) the accused shall be asked if he desires to give evidence in his own defence and to call witnesses and, if he does so desire, shall be given a reasonable opportunity to do so;
(vii) the tribunal may, in its discretion, allow the accused to be assisted by a friend, being a gazetted officer, and, when such permission is given, his defence may be conducted by such friend.
SINGH’S APPLICATION
COMMENTS ON THE AFFIDAVITS
HOW SINGH’S CASE WAS HANDLED BY THE POLICE?
CAUTION INTERVIEW – 24/02/17
| Qst 9: | Do you have a valid driving licence? |
| Ans: | Yes. |
| Qst 10: | On the 14/2/17 at about 4am where were you driving to? |
| Ans: | Ba |
| Qst 11: | What were you going to do in Ba? |
| Ans: | I was going to pick Bimal. |
| Qst 12: | What happen when you was driving? |
| Ans; | I got into an accident. |
| Qst 13: | How does the accident happen? |
| Ans: | When I reached Tavarau I crossed the road where waters was crossing the road and the vehicle floated. |
| Qst 14: | What happen next? |
| Ans: | I applied the break, the vehicle skidded towards my right. |
| Qst 15: | What happen next? |
| Ans: | I turned the steering to the left but the vehicle went off road. |
| Qst 16: | What speed you was traveling in? |
| Ans: | 60 to 70 km/hr. |
| Qst 17: | How deep the water crossing the road? |
| Ans: | Up to my ankle. |
| Qst 18: | When you was driving did you saw the water coming the road? |
| Ans: | No. |
| Qst 19: | When did you know that water was there? |
| Ans: | When I was crossing it. |
| Qst 20: | How come did you not able to see the water? |
| Ans: | It was heavily raining and the was clear, not muddy water. |
| Qst 21: | Is there any force, threat, inducement or assault put to you in order to obtain your statement? |
| Ans: | No |
| Qst 22: | Will you sign to acknowledge that there was no force, threat or inducement or assault put to you? |
| Ans: | Yes Sign: Witt: |
CHARGE OF CARELESS DRIVING – PAYMENT OF FINE – 27/02/17
DEFAULTER SHEET & MEETING WITH ASP JONE (TRIBUNAL) – 07/03/17
FIJI POLICE – DEFAULTER SHEET
Lautoka Police Station
| Defaulter’s Register Serial No. 0 07/103/17 7 | Tribunal ASP JONE E POL 910 | ||||
| | |||||
| No. | Rank | Name | Charge | Result of Hearing | |
| 3441 | PC | MAHENDRA SINGH | DAMAGING BY NEGLECT: Under Section 60, Regulation 12(16) of Police Regulation, Cap 85. In that you on the 14th day of February, 2017 at Kings Road Tavarau Ba being the driver of vehicle registration No. GP 742 (F/45) which was committed to
your charge without due care and attention lost control of the said vehicle by crossing to the opposite lane which ended up in the
drain, causing damages to the Police vehicle with a total estimated cost of $20,706.39. WITNESSES PC 5140 Ashnal | Plea | |
| Findings: | |||||
| Recommendation: | |||||
| | |||||
| Signed Tribunal | |||||
| | |||||
| Commissioner of Police | |||||
WAS THERE EVER A TRIBUNAL HEARING?
29. Singh deposes in his affidavit that he was called by, and appeared before, ASP Jone. Only the two of them were at that meeting. At their meeting, ASP Jone told him that if he pleaded guilty to the charge, ASP Jone would recommend that he paid the damage to the vehicle at the rate of $25 per fortnight. He said ASP Jone never asked him to mitigate[22].
GIVEN THAT SINGH HAD PLEADED GUILTY – WAS THERE A NEED FOR A HEARING?
| 25. | These procedures relate to trials conducted where allegations have been put to the officer that he or she is guilty of an offence
against discipline. Offences against discipline are set out under regulation 12 of the Regulations. When an officer is alleged to have committed a disciplinary
offence the tribunal (which is essentially the Commissioner of Police) is appointed to hear the case. Section 32(1)(B) allows investigations
into the charges against the officer and if found to be guilty, recommendations are made to the Commissioner of Police. |
| 26. | In considering the procedures prescribed for the disciplining of the Force, it is evident that an accused officer must be given the
charge and an opportunity of responding. Upon completion of the hearing the option of the tribunal will either be in the finding
of guilt or otherwise, and if the former then the tribunal moves to determine the appropriate action to take. |
| 27. | However, it is submitted that the circumstances surrounding the Applicant’s situation would not render the need for a trial
process under regulation 13 of the Regulations. This is because by admitting to the allegations of committing the offence or negligent execution of duties in causing the vehicular
accident, the Applicant was indeed admitting to the fact that he was guilty of being negligent. |
| 28. | There was no need to carry out investigations or to carry out a trial under regulation 13 because the Applicant had not complained
about the finding of guilt, in fact he had admitted to the same and still admits to the same in his affidavit and various submissions
in these proceedings. |
| 29. | By doing so, the Applicant, it is argued, had given up his right to a trial under Regulation 13 of the Regulations. There was no need
to comply with Regulation 13 of the Regulations, but only a need to submit on the question of determining the appropriate action,
which in any case the Commissioner of Police was empowered to do under section 129 of the Constitution and section 32 of the Act. |
LETTER TO SINGH TO SHOW CAUSE – 06/04/17 &
SINGH’S RESPONSE – 04/05/17
Sir,
.....................................
...... I was driving Police Vehicle Registration GP 742 [Fleet 45] with crew namely Police Constable 5140 Ashnal Seth .... We were heading towards Ba from Lautoka and whilst approaching Tavarau, there was heavy flow water flowing across the road after heavy down pours. I couldn’t just judge the strength of the flow as it was dark, I continued driving but the flow of water pushed the vehicle to the side after the vehicle had floated onto the water, which had caused the vehicle to overturn on the other side of the road.
Show Cause
...... I was not careless and the water on the road had receded whilst we were covering Lautoka area. I had no deliberate intention to take the vehicle into the water knowing the consequences of it (my emphasis)
I was later charged with the offence of Careless Driving and was served with a TIN [Srl#:3015960]. I have paid the fine at LTA as per the receipt # 6840037 on 27/02/17 as I didn’t wish to argue and waste unnecessary time of the judicial system.
With my knowledge and experience as a Traffic Man, I was not at any time Careless whilst driving the Police Vehicle as the cause of the accident was not directly done by me as the other circumstances were implicated and in this case which was flooding which is clearly shown on the rough sketch plan drawn by the officer attending the scene. I was never involved in any Police vehicle accidents in the past years and this is the first incident on (sic) which I am caught up with (my emphasis).
Mitigation
Moreover, the said vehicle GP742 (F/45) has been involved in 3 incidents previously and has the pre-accident value of $30,000 and the mileage of more than 259,00 + and was nearing the completion of its lease term this year.
The vehicle was written off by the assessors of New India Insurance and the total sum of $30,000 was paid by the insurance company to Niranjans Autoport Ltd and the vehicle has been taken by the Insurance Company.
[All relevant documents are attached for your ease of reference].
Finally, we have been doing Highway Coverage during the tour of my duty and also I have been served various units and formations, to my knowledge I have never been implicated in any wrong doing or acts of any nature that will tarnish my career. This incident has left me in an awkward position on which there was no level of carelessness or not any negligence on my part on such incident. I have been driving on the same road for the past many tears but never had involved in any act of this nature. If I would have the knowledge of such circumstances on which high level of water was overflowing onto the road: I affirm that I would never have driven the Police vehicle into it on any situation to damage the vehicle.
Sir, the above are my testimonies and confirmation which is made by me which I think is correct to the best of my knowledge.
I strongly look upon your good office to consider my situation on which I was on the time of incident, and upon a fair and favourable response from your good self in the prospects of my future ahead with the Fiji Police Force.
You’re obediently (Sic)
Mahendra Singh
Police Constable
3341
COMMENTS
38. A cornerstone of natural justice is ‘the hearing rule’. The Police Act and the Police Regulations make provisions founded on this rule. The rule commands that an officer facing disciplinary charges be told the case that he or she is to meet. This rule is embodied in Regulation 13(i)[23]. The rule also commands that an officer be afforded a reasonable chance to answer that case before any decision is made that will negatively affect his or her right, or an existing interest or legitimate expectation. This is set out in Regulation 13(vi)[24] and also in section 32(2) of the Police Act. This rule was also stated by the Fiji court of Appeal in Talawadua v Commissioner of Police [2002] FJCA 7; ABU0054U.2001S (31 May 2002):
Only in rare cases is relief refused
In a case such as this where the fundamental right to be heard before an adverse decision is made (especially one affecting livelihood) has been denied, only in the rarest of circumstances will relief be refused. First because the Court’s function on Judicial Review is to ensure that the rules of natural justice are observed and not to substitute its own opinion on the merits. Secondly because of the inherent danger that in the absence of explanation wrong decisions may be reached and injustices done. These two points are illustrated in the judgments of this Court and the Supreme Court in the case of (the) Permanent Secretary for Public Service Commission and the Permanent Secretary for Education, Women and Culture v. Pani Matea of the 29th of May 1998 and 10th March 1999 respectively. In this Court at page 12 of the Judgment having referred to a view expressed in the High Court to the effect that the respondent’s dismissal was too harsh a punishment the Court said:
“..... it is important to remember what many cases of high authority have determined - and they have been emphasized in the past in this Court - that Judicial Review is what it says, namely, a Judicial Review and not an appeal. The function of the Court is to ensure that the body subject to review has acted within its jurisdiction, has directed itself properly as to the law applicable and applied the law accordingly. It must, too, observe the requirements of procedural fairness to the extent that they apply to the particular case. What it must not do is to determine the merits of the matter, or substitute its own opinion for that of the body concerned upon the merits.”
(emphasis added)
In the Supreme Court at the end of the Judgment upholding the Court of Appeal’s decision the pen-ultimate paragraph reads:
“There is regrettably one other aspect on which we must comment. Counsel for the appellant included in his written submission to this Court suggestions that a hearing by the Commission would serve no useful purpose, as the Commission would still give the same decision. Wisely he withdrew those suggestions when their gravity was pointed up to him. The case is obviously not one of those rare ones in which the outcome as to penalty is a foregone conclusion. On the contrary, after this lapse of time a fair-minded Commission could reasonably decide to take no action. And, if there were reason to infer that the Commission had approached the issue of penalty with closed minds any decision adverse to the respondent would be vulnerable to Judicial Review on that ground.”
The gravity or danger referred to in the decision of the Supreme Court was vividly articulated by Megarry J. in John v. Rees (1970) Ch. 345 at 401 when he said:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”
40. Any information, negative or positive, which the Police has about the officer must be disclosed to the officer. This is embodied in Regulation 13(ii),(iii) and (iv)[25].
| 30. | .......It could not be said that the Applicant did not have any opportunity to answer any allegations before a “tribunal”
where the Applicant had admitted to the allegations in the first place. What was there to answer if the Applicant had already admitted to committing the offence. |
| 31. | Therefore there was no need to comply with regulation 13 of the Regulations. It would be moot to expect the tribunal to carry out a trial where the Applicant had already admitted neglect
by damage. |
| 32. | We refer the honourable court to State v Registrar if Trade Unions, ex parte Fiji Public Service Association [1991] FJLawRp 8; [1991] 37 FLR 55 (17July 1991) where the court stated as follows in relation to the right to a fair hearing: |
| | In my judgement the case law establishes that the right to a fair hearing can be limited and that its extent depends on what tucker L.J called “the circumstances of the case, the nature of the inquiry, the rules
under which the tribunal is acting, the special matter that is being dealt with ....” Russell v Duke of Norfolk [1949] 1 All E.R. 109 at page 118. In Rike v Baldwin [1963] UKHL 2; [1964] A.C 40 at pp. 64-65 Lord Reid said that the test is what a reasonable man would regard as fair procedure in particular circumstances. In
the much later case of Lloyd v McMahon [1987] UKHL 5; [1987] 1 All E.R 1118 at p. 1161 Lord Bridge said: |
| | My Lords, 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 requirement of fairness demand when any body, 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. |
| | In other words His Lordship was saying that the rules of natural justice are flexible and must depend on the circumstances of particular
cases and the functions and responsibilities of the decision –maker. Thus in de Smith’s Judicial Review of Administrative
Action Fourth Edition at p. 185 dealing with the Audi Alteram Parten Rule it is said: |
| | Thus the further removed from the judicial paradigm a particular function is, the weaker will be the analogy between the procedure
appropriate for its exercise and that followed in a court of law. Although terminology is not always consistent, decision-making
power is likely to be characterised as “administrative” when the court has decided that it may be reliably exercised
pursuant to a procedure that deviates in one or more significant ways from that familiar in courts of law. |
| 33. | The Applicant was given a chance to explain his actions as can be observed in the correspondence dated 6 April 2017.... |
| 34. | The Applicant did present his case to the First Respondent as can be observed in his response in the form of a letter dated 4 May
2017.... |
| 35. | After having considered the Applicant’s response purporting to show cause why his employment should not be terminated, then
First Respondent proceeded to terminate the Applicant’s employment. This was relayed to the Applicant in a letter dated 19
May 2017. |
| 36. | In the present case, the Applicant was afforded the right to present his case as was reasonably possible given the circumstances. |
| 37. | Even after the First Respondent made the decision to terminate the Applicant’s employment, the Applicant was able to make submissions
to the First Respondent to reconsider the decision to terminate the Applicant’s employment. |
It cannot be in doubt that, although the Commission is given a discretion to decide whether an inquiry will be held, it must institute an inquiry when dismissal is a possible result of the proceedings. Regulation 26 intends that a gazetted officer will not be dismissed for the commission of a disciplinary offence without receiving the protection which it provides. The discretion not to hold an inquiry is conferred on the Commission so that it may deal speedily with those cases which, in its view, although not that of the Commissioner, do not warrant dismissal.
The judgments in the cases of The Permanent Secretary for the Public Service Commission and another v Lagiloa, Civil appeal 38 of 1996, and The Permanent Secretary for the Public Service Commission and another v Matea, Civil appeal 16 of 1998, have stated that, where the person’s livelihood is at stake, it is a breach of natural justice if he is not given the right to be heard.
It was summarised by this court in Matea’s case;
"The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilised legal system that it is to be presumed that the legislative body intended that a failure to observe it would render the decision null and void. If there are no words in the instrument setting up the deciding body requiring that such a person be heard the common law will supply the omission. It will imply the right to be given a fair opportunity to be heard. While the legislative body may exclude, limit or displace the rule it must be done clearly and expressly by words of plain intendment. The intention must be made unambiguously clear. Finally we add that what is a fair hearing will depend on the circumstances of each case; it does not mean that in every case right of personal appearance must be given."
On appeal by the PSC, the Supreme Court held:
"...the appeal on such a question is virtually hopeless. There are numerous authorities establishing, at common law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it."
The question in the present case therefore is not whether there was a right to be heard but whether such a right was provided.
Counsel for the respondent points out that the appellant was able to put his case to the tribunal. Moreover, the lawyer representing him clearly anticipated the possible need to mitigate the penalty at that stage and, at the conclusion of his written submission, referred to sentence. It is suggested that this provided a reasonable opportunity to be heard.
ORDERS
(i) I declare that thision of the 1st Respondent vide letter dated 18ed 18 May 2017 is unfair, invalid, unjust, arbitrary, void and of no legal effect and, in any event, was in breach of the rules of natural justice.
(ii) an Order for Certiorari removing into the High Court the decision of the 1st Respondent vide letter dated 18 May 2017 be quashed forthwith.
(iii) an Order that Singh be paid full salary together with all benefits and entitlements if any for the period 18 May 2017 to 25 February 2019.
(iv) an Order of Mandamus directing the 1st Respondent to reinstate and or renew Singh’s employment contract on existing terms and conditions, OR, in the alternative, pay general damages to Singh.
(v) the matter is remitted to the 1st Respondent under Order 53 Rule 9(4) of the High Court Rules 1988 to reconsider it and reach a decision in accordance with the findings of this Court
(ix) an order that the 1st Respondent pay the costs of this action to Singh to be taxed if not agreed.
.........................................
Anare Tuilevuka
JUDGE
Lautoka
25 February 2019
[1] See Singh’s Show cause letter.
[2] Singh says in his caution interview that was not muddy at all and was only ankle deep. In his Caution Interview in response to Q.17.
Caution Interview is set out above in the Ruling.
[3] Singh said that the water was about ankle deep. He said that he did not see the water as he approached that section because the water
was clear and not muddy at all.
| Qst 18: | When you was driving did you saw the water coming the road? |
| Ans: | No. |
| Qst 19: | When did you know that water was there? |
| Ans: | When I was crossing it. |
| Qst 20: | How come did you not able to see the water? |
| Ans: | It was heavily raining and the was clear, not muddy water. |
[4] He deposes at paragraph [4] of his affidavit that:
| [4] | .......there was a heavy rain fall and water overflowing across the road. I was unaware of the strength of the current flowing across
that portion of the road that pushed the police vehicle I was driving on the side causing it to overturn. |
[5] This section provides:
Offences against discipline
12. Any inspectorate or subordinate officer who commits any of the following offences:-
(16) pawns, sells, loses by neglect, makes away with, willfully or by neglect damages, or fails to report any damage to, any arms, ammunition, equipment, clothing or other appointment supplied to him or any other public property committed to his charge;
shall be guilty of an offence against discipline for the purposes of section 30 of the Act.
[6] This section provides:
Offences against discipline
30. Any police officer, other than a gazetted officer, who commits any offence against discipline as may be prescribed under the provisions of this Act shall be liable to suffer punishment in accordance with the provisions of this Act:
Provided that-
(a) nothing in this connexion shall be construed to exempt any such officer from being proceeded against for any offence by any other process of law;
(b) save as is expressly provided under the provisions of this Act, no such officer shall be punished twice for the same offence.
[7] Section 163(g) provides as follows:
163. The Police Act (Cap. 85) is amended by—
(g) in section 30, deleting ", other than a gazetted officer,"
The words “other than a gazetted officer” as underlined above, have been removed from section 30 by operation of section
163(g) of the Revised Edition of the Laws (Consequential Amendments) Act 2016. In effect, this means that the Commissioner may exercise
the same disciplinary powers to all officers irrespective of whether they are gazetted officers or not.
[8] This section provides:
(7) The Commissioner of Police has the following powers in relation to the Fiji Police Force for all ranks, members and other employees, of the Fiji Police Force—
(a) to appoint persons to the Fiji Police Force;
(b) to remove persons from the Fiji Police Force; and
(c) to take disciplinary action against persons in the Fiji Police Force,
and all written laws governing the Fiji Police Force shall be construed accordingly
[9] Section 32(1)A(a) applies:
32.-(1) For the purpose of the trial of offences against discipline under the provisions of this Act there shall be the following tribunals:-
A. The Commissioner, who shall have power to impose any one or more of the following punishments:-
(a) In the case of any inspectorate officer-
(i) admonishment;
(ii) reprimand;
(iii) severe reprimand;
(iv) a fine not exceeding seven days' pay;
(v) reduction in rank;
(vi) dismissal.
[10] Section 32(1)A(b) applies:
32.-(1) For the purpose of the trial of offences against discipline under the provisions of this Act there shall be the following tribunals:-
A. The Commissioner, who shall have power to impose any one or more of the following punishments:-
(a) .........
(b) In the case of any subordinate officer-
(i) admonishment;
(ii) reprimand;
(iii) severe reprimand;
(iv) confinement to quarters for any period not exceeding fourteen days with or without extra guards, fatigues or other duty;
(v) a fine not exceeding seven days' pay;
(vi) reduction in rank;
(vii) dismissal:
[11] This section provides as follows:
The Commissioner, who shall have power to impose any one or more of the following punishments in the case of any police officer—
(i) admonishment;
(ii) reprimand;
(iii) severe reprimand;
(iv) confinement to quarters for any period not exceeding 14 days with or without extra guards, fatigues or other duty;
(v) a fine not exceeding 7 days' pay;
(vi) reduction in rank;
(vii) dismissal.
[12] (cf. footnotes above)
[13] This section provides:
Dismissal and reduction in rank of police officers convicted by any court
37. The Commissioner may reduce in rank, or may dismiss from the Force, any police officer, other than a gazetted officer, who has been convicted by any court in respect of any offence, whether against the provisions of this Act or otherwise, unless such officer has successfully appealed from such conviction:
Provided that the Commissioner shall not dismiss from the Force any such police officer without the concurrence of the Police Service Commission.
[14] Section 163(i)(i) and (ii):
163. The Police Act (Cap. 85) is amended by—
(i) in section 37—
(i) deleting ", other than a gazetted officer,"; and
(ii) deleting ": Provided that the Commissioner shall not dismiss from the Force any such police officer without the concurrence of the Disciplined Services Commission";
[15] This section provides:
(2) 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.
[16] This section provides:
B. Subject to the provisions of section 33, any gazetted officer shall have power to hear and investigate charges, and if he finds the accused person guilty of an offence against discipline, to make recommendations to the Commissioner as to the punishment to be imposed.
[17] Tuwaqa deposes as follows:
| 5. | THAT paragraphs 1 and 2 of the Applicant’s affidavit is noted and requires no response. |
| 6. | THAT in reply to paragraph 3 of the Applicant’s Affidavit, I agree with the first part of the Affidavit but refute the second
limb of said Affidavit. |
| 7. | THAT in reply to paragraph 4 of the Applicant’s Affidavit, I state that the Applicant admitted driving the vehicle across the
road where the water was crossing as articulated in his caution interview at question 13. Annexed hereto and marked with the letter
“A” is a copy of the Applicant’s caution interview. |
| 8. | THAT paragraph 5 of the Applicant’s Affidavit is noted and requires no response. |
| 9. | THAT paragraph 6 of the Applicant’s Affidavit is denied and I put the Applicant to strict proof of his claim therein. |
| 10. | THAT paragraph 7 of the Applicant’s Affidavit is denied and I put the Applicant to strict proof of his claim therein. |
| 11. | THAT I admit paragraph 8 of the Applicant’s Affidavit. |
| 12. | THAT I admit paragraph 9 of the Applicant’s Affidavit. |
| 13. | THAT I admit paragraph 10 of the Applicant’s Affidavit. |
| 14. | THAT the Respondents disagree with paragraph 11 of the Applicant’s Affidavit and state that the First Respondent terminated
the Applicant on the grounds stated in his termination letter. The First Respondent acted within the powers vested in him under section
32 (1) A (vii) and Section 37 of the Police Act. Annexed herewith and marked with the letter “B” is a copy of said termination letter. |
| 15. | THAT the Respondents deny paragraphs 12, 13, 14 and 15 of the Applicant’s Affidavit and put the Applicant to strict proof his
claims therein. |
| 16. | THAT in lieu of the above, the Respondents pray before this honorable court to deny leave for judicial review and dismiss the Applicant’s
action with costs to the Respondents. |
[18] See comments in the Supreme Court of Canada decision in Northwestern Utilities Ltd. and al. v. Edmonton, [1979] 1 SCR 684.
[19] As he states in his show-cause letter:
I was later charged with the offence of Careless Driving and was served with a TIN [Srl#:3015960]. I have paid the fine at LTA as per the receipt # 6840037 on 27/02/17 as I didn’t wish to argue and waste unnecessary time of the judicial system.
[20] This section provides as follows:
B. Subject to the provisions of section 33, any gazetted officer shall have power to hear and investigate charges, and if he finds the accused person guilty of an offence against discipline, to make recommendations to the Commissioner as to the punishment to be imposed.
[21] At paragraph [8] of his submissions, Mr. Maopa submits:
On 07th March 2017 the applicant appeared before the Tribunal ASP Jone. The charge was never read to him or asked to mitigate. He was never told of the sentence or decision of the tribunal.
[22] Singh deposes as follows:
[6] ...... called and appeared before ASP Jone alone in his office at Lautoka Headquarters. The charge was not read me.
[7] ...... told by ASP Jone in his office that if I plead guilty to the charge he would recommend that I paid for the damage to the vehicle and deduction of $25.00 fortnightly from my salary. I then admitted to the charge to him.
[8] ...... never asked by ASP Jone to mitigate and or the sentence/decision of the tribunal, if any, was read or told to me.
[23] Regulation 13(i) says:
(i) the officer charged with an offence against discipline (hereinafter referred to as "the accused") shall be supplied with a copy of the charge prior to the hearing;
[24] Regulation 13(vi) says:
(vi) the accused shall be asked if he desires to give evidence in his own defence and to call witnesses and, if he does so desire, shall be given a reasonable opportunity to do so;
[25] Regulation 13(ii).(iii) and (iv) say:
(ii) no documentary evidence shall be used in any such proceedings unless the accused has been given access thereto prior to the hearing;
(iii) the evidence of any witness taken during the course of the proceedings shall be recorded in the presence of the accused;
(iv) the evidence given at the proceedings need not be taken down in full, but the substance and material points thereof must be recorded in writing and read over to the accused;
[26] Section 32 provides that 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.
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URL: http://www.paclii.org/fj/cases/FJHC/2019/128.html
