State v Commissioner of Police, ex parte Chand [2001] FJLawRp 15; [2001] 1 FLR 69 (7 February 2001)

STATE v COMMISSIONER OF POLICE & ATTORNEY-GENERAL
ex parte Mahen Chand

High Court Civil Jurisdiction

28 June, 7 August, 12 October, 2000, 7 February, 2001

HBJ0016/00S

Judicial Review – whether Commissioner's discharge of Applicant for ceasing to be an efficient Police officer or desirable in the public interest arbitrary and unreasonable – whether R1 breached natural justice – whether R1 sought approval of the Disciplined Services Commission - Police Act s14(1)(c).

The Applicant was found guilty of 4 counts of assault occasioning bodily harm and assault occasioning grievous bodily harm, 2 of which were later upheld on appeal, and acquitted on the 4th count. R1 asked the Applicant to show cause why he should not be discharged. His solicitor made representations that he as he was discharged on conditions, he was not convicted. R1 exercised his powers of summary dismissal. The Applicant sought judicial review on 4 grounds: that the First Respondent breached natural justice, that R1 acted unfairly and failed to take account of relevant factors, that R1's decision was arbitrary and unreasonable, and that the penalty of dismissal was too harsh. The Court said that by virtue of their position police officers are expected to set an example to the public and it is undesirable that police officers commit criminal offences. The Court found that the Applicant through his former solicitor made representations by letter, which was subsequently rejected by R1, hence the Applicant was not refused natural justice. The Court also found that an allegation that R1 did not seek the approval of the Disciplined Services Commission false, by the Commission's later concurrence.

Held – The Commissioner acted within the Police Act when he imposed a penalty of dismissal from the Police Force on conviction of serious offences because to have retained the Applicant in the Force could only have led other members to draw the wrong conclusion from his retention, namely that conviction of criminal offences would never lead to dismissal from the Force. The Disciplined Services Commission's concurrence with the First Respondent's decision had the effect of substituting that date for the earlier date alleged by the Applicant.

Application for judicial review refused.

cases referred to in Judgment
Epeli Delai v State [1995] HAA 0022/95 8 August 1995
Lepani Matea v Permanent Secretary for Public Service Commission [1998] ABU 0016/98 29 May 1998
R. v Barnsley Metropolitan Borough Council, ex-parte Hook (1976) 3 All ER 452
Reg v Miles [1890] UKLawRpKQB 38; (1890) 24 QBD. 423
Richards v The Queen (1993) AC 217
S. v Recorder of Manchester (1971) AC 481

Eroni Veretawatini for the Applicant
Kini Keteca for the Respondents

7 February, 2001

JUDGMENT

Byrne, J
The Applicant was a member of the Police Force from the 22nd of October 1989 until the 24th of August 1999 when the 1st Respondent summarily dismissed him from the Force under Section 14(1)(c) of the Police Act, Cap. 85.

That section states as far as relevant that any Police Officer other than a gazetted officer may be discharged by the Commissioner at any time if the Commissioner of Police considers that he is unlikely to become or has ceased to be an efficient Police officer or that it is desirable in the public interest that he should be discharged from the Force provided that any such discharge shall be subject to the concurrence of the Police Service Commission. He now seeks leave to apply for Judicial Review of the decision to discharge him and an order for certiorari and two declarations together with an order that he be paid all his wages from the date of his discharge until re-instatement with all accrued benefits. The grounds on which he seeks leave are:

(i) that the 1st Respondent acted in breach of natural justice;

(ii) that the 1st Respondent acted unfairly and with prejudice against the Applicant and in the process failed to take into account all relevant considerations;

(iii) that the 1st Respondent's decision was arbitrary and unreasonable; and

(iv) it is also alleged that the penalty of dismissal after 9 years of unblemished service with the Respondent was too harsh and that on the authority of R. v Barnsley Metropolitan Borough Council, ex-parte Hook (1976) 3 All ER 452 the decision should on that ground alone be quashed.

As to the last ground that the penalty was too harsh, I do not agree. The Applicant was found guilty of two serious criminal offences namely: assault occasioning bodily harm and assault occasioning grievous bodily harm.

Members of the Police force by virtue of their position are expected to set an example to the public and it is undesirable for that reason that members of the Force should commit criminal offences. In my judgment to have retained the Applicant in the Force could only have led other members to draw the wrong conclusion from his retention, namely that conviction of criminal offences would never lead to dismissal from the Force.

The Police Force had a public image to maintain and conduct such as the Applicant does nothing to enhance it. I therefore consider that the Commissioner's decision cannot be attacked on the ground established by the Applicant in Hook's case.

The brief facts are that in December 1994 the Applicant was charged with two counts of assault occasioning actual bodily harm and one count of being drunk and disorderly. These charges arose after a family dispute. He was subsequently convicted in the Magistrate's Court in Suva on the 1st, 3rd and 4th charges and discharged on condition that he do not re-offend within 24 months and pay the sum of $300.00 Court costs, in default 3 months imprisonment. He later appealed to this Court where the convictions on count 1 and 3 were upheld the conviction on count 4 set aside and the Applicant then acquitted.

On 23rd of May 1995 the Applicant was interdicted from the Force and on the 15th of July 1999, the Commissioner of Police forwarded a memorandum to him asking him to show cause why he should not be discharged from the Force. It is considered by the Commissioner that the Applicant's performance in the Force was average.

On the 19th of July 1999 his then solicitor wrote a letter to the Commissioner giving various reasons why the Applicant considered he should be re-instated.

That letter alleged that the Applicant was discharged without any conviction by the Magistrates' Court and thus the power of the Commissioner to dismiss ceased immediately.

In so far as his then solicitor and his subsequent counsel claim that by his discharge the Applicant had not been convicted I must say at once that such a submission is wrong in law. I shall return to it shortly giving my reasons for so holding but first mention the Respondent's reasons for opposition to the Applicant's present application. They are that the Applicant through his former solicitor in the letter of the 19th of July 1999 made representations on dismissal of the Applicant which were subsequently rejected by the 1st Respondent. As such both Respondents deny that the Applicant was refused natural justice. I agree.

The law is well settled that where a person's livelihood is adversely affected by the decision of any administrative tribunal or body the person must be given a fair opportunity to be heard – Lepani Matea v The Permanent Secretary for Public Service Commission Civil Appeal No. ABU0016 of 1998, Court of Appeal.

The Applicant alleges that contrary to Section 14(1)(c) of the Police Act the 1st Respondent did not seek the approval of the Disciplined Services Commission. That allegation is simply not true.

In the Commissioner's letter of the 24th of August 1999 to the Applicant's then solicitor the Commissioner advised that he had discharged the Applicant from the Police Force with effect from the 24th of August 1999 and added, "the Personal file of your client is now being submitted to the Disciplined Services Commission for its concurrence". I am satisfied that the Commission indicated its concurrence with the First Respondent's decision on the 27th of October 1999 which has the effect of substituting that date for the earlier date alleged by the Applicant. I am therefore satisfied that the Applicant has not made out his grounds for seeking leave to apply for Judicial Review in that first he has not denied any opportunity to present his case to the Commissioner and secondly that his discharge from the Force was in accordance with Section 14 of the Police Act.

Before leaving this case I wish to refer to my earlier remark that the Applicant's claim that his discharge by the Magistrate's Court did not amount to a conviction is wrong.

Some of the authorities on this question were considered by Pain J. in Criminal Appeal No. HAA0022 of 1995 Epeli Delai v The State unreported decision of 8th August 1995.

There his Lordship cited the case of S. v Recorder of Manchester (1971) AC 481 in which Lord Upjohn said at page 506:

"The primary meaning of the word "conviction" denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence.... But the word "conviction" is also used in a secondary sense, that is, to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence." (Emphasis added)

In Richards v The Queen (1993) AC 217 the Privy Council had to consider what constituted a conviction under the doctrine of autrefois acquit and double jeopardy.

The Board referred to a number of cases of which in Reg v Miles [1890] UKLawRpKQB 38; (1890) 24 QBD 423 it was held there that a person who had been convicted of an assault by a court of summary jurisdiction but had been discharged, without any announcement of fine or imprisonment, on giving security to be of good behaviour could not afterwards be convicted on an indictment for the same assault. Thus in the instant case the Applicant was ordered to pay $300.00 Court costs and discharged on condition that he not re-offend within 24 months. That period was subsequently reduced by this Court to 12 months but the principle is not affected.

It is trite law now that a finding of guilty amounts to a conviction. In my judgment there is no substance in the Applicant's submission on this point.

I therefore refuse leave to apply for Judicial Review.

Application fails.

Marie Chan