Tewei v Attorney General [2022] KICA 4; Civil Appeal 1 of 2020 (1 August 2022)

IN THE KIRIBATI COURT OF APPEAL CIVIL JURISDICTION HELD AT BETIO REPUBLIC OF KIRIBATI			Civil Appeal No. 1 of 2020
BETWEEN	ABERAAM TEWEI		APPELLANT
AND	ATTORNEY-GENERAL IRO THE COMMISSIONER OF POLICE		FIRST RESPONDENT
AND	THE PUBLIC SERVICE COMMISSION		SECOND RESPONDENT
Hearing:		22 July 2022
Before:		Blanchard JA Hansen JA Heath JA
Counsel:		Mr B Berina for Appellant Mr M Mweretaka for Respondents
Judgment:		1st August 2022

JUDGMENT OF THE COURT

The appeal

[1] At material times, Mr Aberaam Tewei was a senior constable employed in the Kiribati Police Service. As a result of events that occurred between 22 August 2014 and 23 February 2015, Mr Tewei was charged with 93 disciplinary offences alleging that he had been absent from duty without leave or other reasonable excuse. On 18 May 2015, a disciplinary board found all charges to have been proved and made a recommendation to the Commissioner of Police (the Commissioner) that Mr Tewei be dismissed from the Police Service. On 5 June 2015, the Commissioner, on review, upheld the disciplinary board's decision. With one modification, on 25 August 2015, the Commissioner's decision was confirmed by the Public Service Commission (the Commission). The one difference was that the Commission decided that Mr Tewei's position should be "terminated," as opposed to him being "dismissed". In due course, the Commission advised the Beretitenti to impose that penalty, and he did so.

[2] By originating application dated 6 July 2018, Mr Tewei applied to the High Court for judicial review, in the form of declaratory relief designed to determine specific questions about the way in which the disciplinary procedure had been undertaken. The application focussed on the roles played by the Commissioner and the Commission, rather than the disciplinary board itself. Although nothing other than declaratory relief has been sought, it is clear that, if some or all of the questions posed were answered in favour of Mr Tewei, some form of rehearing would have been justified.

[3] The High Court heard Mr Tewei's application on 25 August 2020. In a judgment given on 14 September 2020, Muria CJ made a series of declarations, the effect of which was to confirm the Commission's decision to terminate Mr Tewei's employment. Mr Tewei appeals against the High Court's dismissal of his substantive application.

Background facts

[4] Mr Tewei joined the Kiribati Police Service in January 1995. At the time that the events in issue began to unfold, he was serving as a senior constable at the Bonriki Fire Station.

[5] On 22 August 2014, the Commissioner notified the Officer Commanding Bonriki Fire Station of his decision to relocate certain serving officers, to take effect from 25 August until 31 December 2014.^[1] Mr Tewei was one of those. He was to be transferred to Kanton Island, where he was to become Officer Commanding.

[6] Mr Tewei continued to work at the Bonriki Fire Station until early November 2014. At that time, he asked his Officer Commanding, Sergeant Kauongo, "to give [him] leave not to report for duty as [he] was going to do [his] preparations to go to Kanton". Sergeant Kauongo granted the leave sought. From that time, Mr Tewei's name did not appear on the duty roster.

[7] After leave was given, Mr Tewei did not report to the Bonriki Fire Station for work but did contact the accounts section of the Police Service regularly to ascertain what travel arrangements were being made for him. He was told, consistently, that he was to wait to hear from them.

[8] Eventually, Mr Tewei was advised that he would travel to Kanton Island on a patrol boat. However, on the day that he was scheduled to travel, Mr Tewei was told that he was no longer required because a "replacement" had been found. On 23 February 2015, Mr Tewei was ordered to return to work. At the same time, he was instructed to explain why he had not reported for duty meantime.

[9] Mr Tewei resumed duty at Bikenibeu Police Station, with permission from Officer Commanding, Tarawa. However, on the same day, that officer telephoned Mr Tewei and required him to return to Bonriki Fire Station, adding that he may be disciplined. Subsequently, 93 charges of being absent from duty without leave or other reasonable cause were laid against Mr Tewei.

[10] The disciplinary board heard the charges against Mr Tewei at the same time as others brought against another police officer, Mr Baitere. Sadly, Mr Baitere has since passed away. We confine our consideration of the issues to those affecting Mr Tewei only. Where necessary, we have amended extracts from documents relating to the disciplinary hearing to ensure reference is made to Mr Tewei alone.

The disciplinary process: the scheme of the Police Service Act 2008

[11] Disciplinary control of police officers is governed by Division 6 of the Police Service Act 2008 (the Act). Section 40(1 ) states its purpose: "to provide a system of disciplining members of the Police Service, to ensure that appropriate standards of behaviour are maintained within the Police Service".

[12] Section 41 (1) identifies the circumstances in which a breach of discipline will occur. Mr Tewei was charged with 93 disciplinary counts alleging that he had been absent from duty without leave. Each charge represented one day when he was absent. The charges were brought under s 41 (1 )(f) of the Act, which states:

A police officer, special constable or police recruit commits a breach of discipline if the person, while in Kiribati or overseas-...

(f) if absent from duty without-

• (i) leave; or
  
• (ii) reasonable cause

[13] Section 42 of the Act sets out the types of penalty that may be imposed on an officer who commits a breach of discipline:

42. Types of penalties

The following types of penalties may be imposed on a police officer, special constable or police recruit who commits a breach of discipline-

(a) a caution or reprimand; or
(b) a fine of up to 14 days' pay; or
(c) the forfeiture or deferment of a salary increment for up to one year; or
(d) a reduction in the person's level of salary, within the limits of the salary fixed for the rank held by the person; or
(e) a reduction in rank; or
(f) a transfer; or
(g) dismissal.

[14] Mr Tewei was, for disciplinary purposes, characterised as a "junior police officer":

s 44(1). Discipline of "junior police officers" is governed by Sub-division 2 of Division 6 of the Act. Section 44(2) refers to each such person as an "accused officer". Discipline of senior police officers is governed by the separate regime set out in Sub-division 3 of Division 6 of the Act.

[15] Where a junior police officer is accused of a disciplinary breach, the Commissioner may order him or her to appear before a disciplinary board. The order must be in writing and state the disciplinary breach that is alleged to have been committed by the accused officer, the alleged facts on which the disciplinary breach is based and the time, date and place of the disciplinary board hearing: s 45(1) and (2) of the Act.

[16] The Act envisages two types of disciplinary board. A "summary board" may be convened where the penalty is to be restricted to a caution or reprimand, or a fine of up to 14 days' pay: s 46(2)(a). A "non-summary board" is convened if a recommendation may be made to the Commissioner to impose penalties of the type to which s 42 refers, including "dismissal": s 46(2)(b). Whether a "summary" or "non-summary" board is convened, it must conduct a hearing that follows the requirements of s 47 of the Act. The disciplinary board's task is to determine whether a charge has been proved and, if so, to make a recommendation to the Commissioner as to what, if any, action is to be taken in respect of any disciplinary breach: S 45(1).

[17] Section 47 of the Act sets out the process to be followed by a disciplinary board, whether "summary" or "non-summary" in nature:

47. Proceedings before a disciplinary board

(1) The proceedings before a disciplinary board must be heard in the presence of the accused officer unless, despite having been given notice of the proceedings in accordance with section 45, the accused officer fails to attend before the disciplinary board.
(2) However, if, prior to the review of the disciplinary board's decision by the Commissioner under section 49, the accused officer shows sufficient cause that prevented the accused officer from attending before the disciplinary board, the accused officer is entitled to a rehearing.
(3) The proceedings before the disciplinary board are to be conducted with as little formality and technicality as possible, given the need to properly and fairly consider the complaint made against the accused officer.
(4) The disciplinary board may decide all or part of the proceedings from the documents brought before the disciplinary board, without the parties or the witnesses appearing, if-

• (a) the parties agree; and
• (b) the disciplinary board considers it appropriate in all the circumstances.

(5) Subject to subsection (4), the accused officer is entitled to —

• (a) be represented by a person, whether or not that person is a legal practitioner; and
• (b) cross-examine witnesses; and
• (c) make a statement in his or her defence, either orally or in writing.

(6) The disciplinary board may direct the accused officer to answer a question even if the answer might tend to incriminate the accused officer.
(7) However —

• (a) the answer given by the accused officer in response to a direction under subsection (6) is not admissible in any other proceedings, whether criminal or civil; and
• (b) any information, document or other evidence that is obtained only as a direct or indirect result of the answer given by the accused officer in response to a direction under subsection (6) is not admissible in any criminal or civil proceedings.

(8) The disciplinary board is not bound by the rules of evidence, but may inform itself in any way it considers appropriate.
(9) The standard of proof in the proceedings is strict liability, which is more than the balance of probabilities, but less than beyond a reasonable doubt.
(10) The disciplinary board must keep a written record of the proceedings, in which it records —

• (a) the statements of the accused officer and all witnesses; and
• (b) any reports relating to the accused officer that are tendered at the proceedings.

(11) If the disciplinary board finds the accused officer guilty of a breach of discipline, the disciplinary board may consider any breaches of discipline committed by the accused officer in the past when recommending to the Commissioner what penalty to impose on the accused officer.
(12) At the end of the proceedings, the disciplinary board must — (a) inform the accused officer —

• (i) of its decision, together with any recommendation as to penalty; and
• (ii) that the Commissioner is required to review the disciplinary board's decision under section 49; and
• (iii) that the accused officer is entitled, within 14 days of having been informed of the decision, to make written representations to the Commissioner about its decision and any recommendation as to penalty; and

(b) forthwith communicate its decision and any recommendation to the Commissioner.

[18] Once a disciplinary board has decided that a charge has been proved and formulated a recommendation as to penalty, it is necessary for the Commissioner to conduct a review of the decision. Section 49(1), (2) and (3) states:

49. Commissioner's review of disciplinary board's decision

(1) Subject to subsection (2), the Commissioner must review the decision of a disciplinary board, and any recommendation as to penalty, as soon as possible after being advised of the decision.
(2) The Commissioner may not review the decision of a disciplinary board until at least 14 days have elapsed from the date on which the accused officer was informed of the decision under section 47(12)(a), unless-

• (a) the accused officer has, before the expiration of the 14 days, made written representations to the Commissioner about-
  • (i) the decision; and
  • (ii) any recommendation as to penalty,

of the disciplinary board; or

(b) the accused officer has, before the expiration of the 14 days, informed the Commissioner in writing that he or she does not intend to make any representations to the Commissioner about the decision or the recommendation.

(3) After reviewing the disciplinary board's decision, the Commissioner must —

• (a) confirm the decision and impose the penalty recommended by the disciplinary board; or
• (b) confirm the decision but impose a different penalty to the penalty recommended by the disciplinary board; or
• (c) annul the decision and the penalty; or
• (d) order a rehearing.

[19] The Commissioner has two functions when conducting a review. The first is to decide whether or not to confirm the disciplinary board's decision that the charge has been proved. The second is to determine what penalty should be imposed, using the board's recommendation as a starting point.

[20] If a disciplinary decision is made against a "junior officer", that person is entitled to appeal to the Commission against the Commissioner's decision. Aright of appeal is conferred by s 49(5) of the Act. The appeal is undertaken pursuant to s 68 of the Act, which provides:

68. Appeal from certain decisions of the Commissioner

(1) This section applies where a provision of this Act confers a right to appeal against a decision of the Commissioner to the Public Service Commission.
(2) The appeal must be made within 14 days after the person affected by the Commissioner's decision was notified of the decision.
(3) On the appeal, the Public Service Commission-

• (a) has the same powers as the Commissioner; and
• (b) may-
  1. confirm the decision; or
  2. set the decision aside, and substitute another decision that the Public Service Commission considers appropriate.

(4) However, the Public Service Commission must give the person an opportunity to be heard before the Public Service Commission increases any punishment that was imposed by the Commissioner.

[21] By contrast, disciplinary procedures involving senior officers require the initial hearing of a charge to be conducted by the Commissioner who then determines whether the charge has been proved and makes a recommendation to the Commission as to what action, if any, is to be taken: s 51(1). ^[2] After the Commissioner has made a decision that the charge has been proved and has provided a recommendation as to penalty, the Commission's task is to review the decision that the charge has been proved and to impose a penalty. ^[3] In the case of a senior officer, the Commission must, where a penalty is to be imposed, advise the Beretitenti to impose the penalty.^[4]

The disciplinary process for Mr Tewei

[22] A non-summary board (the Board) was convened to hear the charges brought against Mr Tewei. ^[5] Although there were 93 charges, each fell to be determined by reference to s 41 (1 of the Act.^[6] It was clearly a situation in which all 93 charges would or would not be proved. To find that Mr Tewei had committed a disciplinary offence, it was necessary for the Board to be satisfied that he had been absent from duty "without leave" or "reasonable cause".

[23] A hearing took place on 6 May 2015, the minutes of which have been made available to us. ^[7] The minutes record evidence given at the hearing and submissions made by those representing both the prosecutor and accused officer.

[24] The nub of Mr Tewei's defence was that Sergeant Kauongo had given him permission not to attend for duty. That decision was confirmed by the fact that Mr Tewei's name did not appear in the duty roster during the relevant period. That being the case, he denied being absent from duty without leave or other reasonable cause.

[25] Mr Tewei gave evidence before the Board. He was not challenged about his evidence that he had asked Sergeant Kauongo for leave. ^[8] Nor was he questioned about whether he honestly believed on reasonable grounds that Sergeant Kauongo had authority to grant the requested leave. The minutes of the hearing record the following exchanges between the prosecutor and Mr Tewei:

Prosecutor:

Aberaam what type of leave do you apply?
Aberaam: I just told my boss to take my leave

Prosecutor: In your statement you said that you were given a leave but you did not come to work.

Aberaam: No, I came to see Kauongo many times and told me that there is no problem.

Prosecutor: Do you not worried about not turning to duty; are you comfortable when you are in your house without doing a work is that ethical to stay in your house and get your pay without doing the work?

[Defendant Lawyer] Chairman the question is repeated and it out of question. The point that we argued on is fail to turn for duty but not staying in the house or being comfortable and also is not about ethics but it is all about absent from duty without reasonable cause.

Chairman: Prosecutor please focus your questions on absent from duty.

Prosecutor: What I mean here is that it is ethical not to turn for duty. I need to clarify to Aberaam that did he thinks that he did not come to work is a right decisions? No further question chairman.

(Emphasis added)

[26] The Board gave its decision on 18 May 2015, in a letter to counsel for Mr Tewei, Mr Berina. The Board wrote:

The board strongly found [Mr Tewei] guilty as charged and recommends [him] to

Commissioner of Police for dismissal based on the following grounds;

1. There were enough and strong evidences to prove that [he] didn't turn up for duty which total up beyond 12 times a year as clearly in line with Commissioner's and Executive Policy. This gives the board no other options but to dismiss [him] accordingly as it way far more and way beyond 12 times.
   
2. In the past, [Kiribati Police Service] had dismissed few officers for the same case and that stands firm as a precedent for consistency in decision making.
   
3. The board focused its' prove according to strict liability standard cls 47 (9) of Police Service Act 2008 which basically means that mens rea or intention is irrelevant. All we need to prove in these cases was that the accused officers did not turn up for work, no matter what their reasons were. According to evidences, the board proved that both officers didn't turn for work and found them guilty as charged.
   
4. The board also taking into account each officer's disciplinary records 2 years back in order to be on track and cementing our code of conduct.
   

According to section 47 (12)(a)(iii), Police Service Act 2008, your [clients is] entitled within 14 days of having been informed of the decision to make written representations to the Commissioner about the board decision if [he doesn't] agree.

(Original emphasis)

[27] On review to the Commissioner, Mr Berina made a written submission dated 28 May 2015. Relevantly, he wrote:

2. The finding of the Non Summary Board that the said officers did not turn up for duty is not disputed. But the offence did not stop there. In order for the said officers to be found guilty not only must there be evidence that they did not turn up for duty, there must also be evidence that when they did not turn up for duty they did not have leave or they did not have reasonable excuse.
   
3. The Board had clearly failed to consider the issue of reasonable excuse or leave. Had it done so, it would have found from the evidence that SNC Aberam did have leave from Sergeant Kauongo not to turn up for work. The Non Summary Board has not stated in its findings on what days the officer SNC Aberam did not have the leave of his superior officer when he was absent from duty. The Board found more than 12 days but it has not stated on what days the officer was absent from duty without leave from his superior officer. The Board could not have made any finding against the said officer on this point because the evidence clearly established that Sergeant Kauongo gave him leave and that such leave was never revoked.
   
4. Eventually his name did not appear In the roster. When his name did not appear in the roster his failure to turn up for work could not be regarded as an absence from duty. He simply did not have any duty to perform. Again the Board did not address this issue (when an officer's name does not appear in thew roster). According to Inspector Iurubwaara if an officer's name does not appear on the duty roster it means he has no duty to perform. The Prosecutor did not challenge this evidence which came from his own witness.
   
7. The Non Summary Board had made its finding based on the admission of both officers that they did not turn up for duty on the days stated in the charge sheets. The Non Summary Board however failed to consider the evidence that: -
   
   1. Both accused were given leave to be absent from work and therefore they had reasonable excuse.
      
   2. On the days that their names did not appear in the duty roster they had no duty to perform and therefore they did not have to report for duty.
      
8. If anyone must be disciplined for the failure of both officers to turn up for work it must be their superior officers. Not only did they give them leave not to come to work, they eventually decided not to include their names in the duty roster. But the problem here is that both officers had been notified of their intended transfer. The question as to who was their proper respective superior officer after the notice of transfer was served on them is an issue that may have to be considered another time.
   
10. [After setting out s 41 (f) of the Act] Absence from duty alone therefore is not enough to found a conviction. The Non Summary Board should also examine the evidence to find whether or not the accused had leave or reasonable excuse when they were absent from duty. If it had done so it would have found that not only did the accused officers had leave from their respective superiors when they were absent from duty; they also had reasonable excuse not to turn up for duty because their names did not appear on the duty roster and therefore they had no duty to perform.
    
11. Based on the above I respectfully ask the Commissioner, on behalf of both convicted officers, to set aside the convictions of both accused and to acquit them of all the charges against them.

(Original emphasis)

[28] The Commissioner responded on 5 June 2015. He confirmed the Board's decision to find Mr Tewei guilty on all charges and adopted its recommendation to dismiss him. In his letter, the Commissioner advised Mr Berina of his client's right to appeal to the Commission within 14 days. Relevantly, the Commissioner said:

1. You agreed (as you mentioned) that [your client] did not turn up for work or never performed police duty on the dates shown on the charge sheets. That is ... and Senior Constable Aberaam Tewei never worked for a total of 93 days.
   
2. You also stated that there is also a need to prove that they were not on leave or had no reasonable cause for being absence from work.
   

1. The Office Manager was called as a witness and proved that they were not on leave;
   
2. Your raised the defense that [your client was] allowed by their superior to take leave. What exactly these superior officers (Inspector lerubwara and Sergeant Kauongo) said when you cross-examined them?
   • Did you approve their request for leave? YES.
   • Did you tell my client when to report back for work? NO.

These officers are trying to tell you and the Non-Summary Board something which is very true that will show that your clients are guilty. First, they (including the Commissioner) have no authority to grant leave outside the leave entitlements prescribed under the National Condition of Service (NCS). Second, there is a commonsense practice that officers in charge of stations often used when people under their command have been selected for transfer and that is to allow them a one day leave before their departure in order to prepare and pack up their things for the transfer. That is what they mean by saying YES when you asked - did you approve the request for leave? When you asked them did you tell my client when to report back for duty and they replied NO. This is because they knew that your clients have been selected for a transfer and their actual date of transfer is not under their control but under the control of police headquarters. It is therefore the responsibility of your clients (not the officer in-charge station who knows nothing about when the transport for the officer transferring is to be available) to report back to work (in their previous station) until the time their transport for transfer is available. This has been the practice for decades that your clients are very familiar with as they have been in the service for over 10 years.

3. Your [client] cannot claim [he] honestly believe what [he] did was right as [his] intention is not the issue here.
   
4. Our policy is-to dismiss a police officer who has failed to perform work 12 times in a year and there are officers who have been given such a punishment.
   

[29] Mr Tewei appealed to the Commission. In an affidavit in the High Court proceeding, Mr Tiikai, the Senior Assistant Secretary to the Commission confirmed that the Commission agreed with the finding that Mr Tewei had committed disciplinary breaches and explained why the Commission had come to a different view on penalty. Mr Tiikai deposed:

3. Having discussed and considered the matter, the Commission noted that Kiribati Police Service recommendation was for a DISMISSAL however, the Public Service Commission in its deliberation in considering the weight of the offences and the appropriate punishment to be imposed between a Dismissal and Termination decided that a TERMINATION to be applied instead."

[30] Mr Tiikai continued:

4. In paragraphs 43 to 44 of his affidavit, the plaintiff argued that the decision of the ... Commission, is wrong as it cannot make such decision or recommendation to the Beretitenti.
   
5. In fact, under the Public Service Commission (Functions) Act 1983 the decision to terminate the appointment of the plaintiff vested with the Beretitenti based on the advice of the Commission.
   
6. Even under section 54A(3) of the Police Services Act 2008 it is very clear that after reviewing the decision of the Commissioner the Second Respondent must confirm the decision and advise the Beretitenti to impose the penalty recommended by the Commissioner.
   

[31] On 25 August 2015, the Commission wrote to the Commissioner stating that:

Te Beretitenti on the advice of the ... Commission, has approved the Termination of Appointment in respect of Mr Abaraam Tewei, as Senior Constable, L 14-13, with effect from 21 ^st September 2015.

Analysis

(a) Introductory comments

[32] With respect to both the Chief Justice and counsel, we prefer to approach the questions raised in Mr Tewei's application by analysing what was required at each step of the disciplinary proceeding and determining whether what occurred met those requirements. We proceed on that basis because, in our view, there are a number of difficulties inherent in the way in which the disciplinary process was undertaken that may not be adequately resolved by only providing answers to specific questions posed by Mr Tewei's application.

2. What ought to have happened?
   

[33] Once Mr Tewei was charged, it was incumbent on the Commissioner to order Mr Tewei to appear before either a "summary" or "non-summary" disciplinary board. Before any disciplinary hearing commenced, Mr Tewei was entitled to receive in writing particulars of the breach that was alleged to have been committed by him, the alleged facts on which the breach was based and the time, date and place of the proposed hearing.^[9] There is no dispute that the Commissioner complied with these requirements.

[34] Once a non-summary board had been convened, its powers were restricted to the imposition of one of the seven types of penalty set out in s 42 of the Act.^[10] While "dismissal" was an available penalty,^[11] "termination" of an appointment as a police officer is not. That throws into question whether the view taken by the Commission to reduce the penalty from "dismissal" to "termination" was lawful, in the context of the disciplinary process created by the Act.^[12]

[35] In the context of the particular charge that Mr Tewei faced, being absent from duty without leave or other reasonable cause, it was necessary for the Board to be satisfied that Mr Tewei had neither been granted leave nor had any other reasonable cause to be absent from duty. The Board's approach was to treat absence from duty, of itself, as sufficient to prove the charge. ^[13] The Board said that "mens rea or intention is irrelevant".
[36] While the Board was not bound by rules of evidence ^[14] it was required to apply a particular standard of proof in determining whether the charge had been proved. Section 47(9) of the Act states:

47. Proceedings before a disciplinary board

(9) The standard of proof in the proceedings is strict liability, which is more than the balance of probabilities, but less than beyond a reasonable doubt.

[37] The use of the term "strict liability" in juxtaposition to a standard of proof falling somewhere between balance of probabilities and beyond reasonable doubt is a strong indicator that mere failure to report for duty was not enough to constitute a disciplinary offence. It was still necessary for the Board to consider whether it had been proved that Mr Tewei's absence from duty was due to leave or other reasonable cause.

[38] Determination of the relevant standard of proof is informed by a decision of the Supreme Court of New Zealand, in Z v Dental Complaints Assessment Committee. ^[15] Albeit in the context of a statute that did not contain a provision in the same terms as s 47(9), the Supreme Court considered the standard to apply in professional disciplinary proceedings. In delivering the judgment of himself, Blanchard and Tipping JJ, McGrath J said:

[112] Despite these exceptions, the rule that a flexible approach is taken to applying the civil standard of proof where there are grave allegations in civil proceedings remains generally applicable in England. There is accordingly a single civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. We are satisfied that the rule is long established, sound in principle and that, in general, it should continue to apply to civil proceedings in New Zealand.

(Footnotes omitted)

[39] The test adopted in Z v Dental Complaints Assessment Committee reflects (in a practical sense) a hybrid standard applied regularly in civil cases when grave allegations are addressed by a Court. Such cases acknowledge that the standard of proof is the balance of probabilities but emphasises that the Court must "have regard to the gravity of the allegation" in issue. The standard of proof to which s 47(9) refers can also be regarded as "flexible" in nature. While the Board did not need to make a finding that a disciplinary offence had been proved beyond reasonable doubt, it could not have found the charge proved if it had considered that it was more probable than not. In our view, s 47(9) required the Board to make a robust judgment to determine whether the charge had been proved by the prosecutor to a standard that left the Board confident (as opposed to certain) that a disciplinary offence had been committed.

[40] Assuming the Board were satisfied that the charge had been proved, it was required to inform the accused officer of that decision, together with any recommendation as to penalty that it would make to the Commissioner. ^[16]It was also required to inform the accused officer that the Commissioner was required to review the Board's decision under s 49 of the Act^[17] and that he was entitled, within 14 days of having been informed of the decision, to make written representations to the Commissioner about the Board's decision and any recommendations as to penalty. ^[18]The Board was then required to communicate its decision and any recommendation to the Commissioner, "forthwith". ^[19]

[41] Mr Tewei was entitled to make written recommendations to the Commissioner to assist him in reviewing the finding of disciplinary breach and the recommendation of penalty. On his review of the Board's decision, the Commissioner was entitled to confirm the decision and impose the recommended penalty, confirm the decision but impose a different penalty, annul the decision and the penalty or order a re-hearing.^[20] After reviewing the decision the Commissioner was obliged to give the accused officer a written notice stating his decision and the penalty. Further, notice was to be given that the accused officer "may appeal against the Commissioner's decision to the [Commission] under s 68".

[42] On an appeal to the Commission under s 68, the Commission had the same powers as the Commissioner, and was obliged to confirm the decision or set it aside, and substitute another decision that the Commission considers appropriate.^[21] In cases involving junior officers, such as Mr Tewei, there is no requirement for the Commission to make any recommendation to the Beretitenti. That is consistent with s 102(1) of the Constitution of Kiribati, which makes it clear that the Commissioner is responsible for "appointments, removal and the exercise of disciplinary control over officers below the rank of Assistant Commissioner".
[43] The Commission's power to make a recommendation to the Beretitenti arises only from its separate and discrete function of reviewing the Commissioner's decision and any recommendation as to penalty in a case involving senior police officers. ^[22] The Commission erred in following a process that did not apply to the discipline of junior officers such as Mr Tewei.

(c) Did the disciplinary process miscarry?

[44] We are satisfied that the disciplinary process miscarried in at least three important respects:

(a) First, neither the Board nor the Commissioner applied the correct standard of proof. The Board, in saying there was "enough and strong evidences to prove that" Mr Tewei did not "turn up for duty" beyond 12 times per year reinforced its earlier comment that it should regard the charge as one of "strict liability" meaning that "mens rea or intention" should be ignored. ^[23] The Commissioner, while not referring explicitly to the standard of proof adopted by the Board, implicitly proceeded on the same basis.^[24] It was not enough for the prosecutor to show that Mr Tewei had not reported for duty at the relevant time. Nor was it sufficient to rely on the absence of actual authority for Sergeant Kauongo to grant "leave" on the basis sought by Mr Tewei. Rather, it was necessary for the prosecutor to demonstrate that Mr Tewei did not honestly believe on reasonable grounds that Mr Kauongo was authorised to grant the type of leave he had sought. That point was never explored with Mr Tewei during the disciplinary hearing.^[25] Neither the Board nor the Commission regarded Mr Tewei's belief as relevant.^[26] That was an error.

(b) Second, the penalty of "dismissal" was imposed without any assessment of whether it was appropriate to meet the particular circumstances of Mr Tewei. Rather, it was imposed to give effect to a policy. In effect, the Board (in making its recommendation) and the Commissioner (in imposing penalty) fettered their discretion as to penalty by assuming that they should apply uncritically an approach taken in other like cases without a proper comparison of the circumstances in which each had occurred. The approach taken by the Commissioner is confirmed by what he said in his decision letter: namely, that "our policy is to dismiss a police officer who has failed to perform work 12 times in a year and there are officers who have been given such a punishment. ^[27] The fact that the Commission thought dismissal was too harsh a penalty,^[28] suggests that an individualised approach to penalty may have yielded a different result.

(c) Third, the Commission erred in the approach it took. It exercised powers on the basis that it was reviewing a decision of the Commissioner in respect of a senior officer, under s 54 of the Act, rather than dealing with an appeal brought from a decision of the Commissioner in respect of a junior officer, under s 68 of the Act. Section 68 of the Act limited the Commission's power to confirming the decision, setting aside the decision or substituting a different decision that it considered appropriate.^[29] There is no role for the Beretitenti to play on an appeal under s 68. In any event, "termination" was not one of the penalty options listed in s 42 of the Act.

[45] There are two further points of law on which Mr Tewei sought declarations on which we wish to comment but without expressing any final view as to the appropriate answer. The first was one reflecting the proposition that the Commissioner was performing a quasi-judicial function in reviewing the decision of the Board. The second was that the Commissioner had not given adequate reasons for his decision. There seems to be little doubt that the Commissioner was exercising, at least, a quasi-judicial function in respect of which some reasons were required. But, in disciplinary cases of this type, the extent of the reasons that are required will depend upon the nature of the decision and what is necessary to explain how the relevant tribunal has reached its conclusion. In the present case, the reasons given have been sufficient for us to determine that errors were made in the application of relevant legal tests.

[46] There are a number of authorities that would require careful consideration if any authoritative decision were to be given on the extent of reasons required. In particular (without being exhaustive), we refer to cases such as Public Service Board of New South Wales v Osmond,^[30] R v Civil Service Appeal Board, ex parte Cunningham^[31] and Lewis v Wilson & Horton Ltd.^[32] We decline to express any view on this point in a case in which we have not had the benefit of full argument.

(d) Relief

[47] Having found that the disciplinary process miscarried in material respects, we must decide what remedy should follow. As previously indicated, the originating application sought declaratory relief only. In our view, the question of relief requires reconsideration in light of our conclusions.

[48] The application is directed to the decisions made by the Commissioner and the Commission. It is not directed to the decision of the Board. It is clear that the decision of the Commissioner must be set aside, as will the act of the Beretitenti in consequence of it. The Commission did not determine the appeal before it in accordance with s 68 of the Act. ^[33] And, by purporting to impose a sanction of "termination of appointment" the Commission strayed beyond the boundaries of penalties permitted by s 42 of the Act. ^[34] So far as the Commissioner is concerned, he misapplied the applicable standard of proof and imposed a penalty without proper consideration of Mr Tewei's circumstances. ^[35]

[49] It may assist counsel if we were to indicate, on a provisional basis only, the types of orders that might be seen as appropriate, having regard to our reasons for holding that the disciplinary process miscarried. We make it clear that we have an open mind as to remedy if either counsel wished to address us further.

[50] As the proceeding was directed to the role of the Commissioner and the Commission, we would be minded to make orders quashing each of those on the basis of material legal error. In consequence, the Commissioner would need to consider the Board's decision afresh and on the basis of the approach we have articulated. If orders to that effect were made, counsel for Mr Tewei would be entitled to make written representations to the Commissioner in light of our views, and the Commissioner would make his determination after receiving them.

[51] Given the failure of the prosecutor to challenge Mr Tewei's belief of the impact of Sergeant Kauongo's decision to grant leave, counsel may wish to consider whether a quashing of the relevant decisions without any re-hearing would be appropriate. We say that because the Commissioner must conduct his review based on the existing evidence before the Board. Mr Tewei was not challenged, before the Board, on his belief that Sergeant Kauongo had authority to grant leave to him.^[36] As a result, there would appear to be no evidence on which the Commissioner could be satisfied to the required standard that Mr Tewei did not honestly believe on reasonable grounds that he was not required to report for duty.

[52] If counsel agree on relief, a joint memorandum shall be filed on or before 5 August 2022 specifying what relief can be granted. We would then deal with questions of relief on the papers. However, if counsel cannot agree, Mr Tewei shall file and serve an amended application, together with a supporting memorandum, on or before 8 August 2022 in which particulars of the relief sought are set out. If the Attorney were to oppose the relief sought, a memorandum in opposition shall be filed and served by midday on 10 August 2022.

Conclusion

The appeal is adjourned on that basis. If a joint memorandum is filed, the Registrar shall refer it to us on receipt so that we can deal with the balance of this appeal on the papers. If no joint memorandum has been filed by close of business on 5 August 2022, the Registrar shall re-list the appeal for further argument at 9.00am on 11 August 2022. We will give a decision on relief as soon as practicable after hearing from counsel. In the meantime, costs are reserved.

Blanchard JA

Hansen JA

Heath JA

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^[1] The Commissioner’s decision was made under powers conferred by s 25 of the Police Service Act 2008
^[2] Police Service Act 2008, s 51(1).
^[3] Ibid, s 54(1).

^[4] Ibid, s 54(3).

^[5] See para [16] above.
^[6] Police Service Act 2008, s 41(1)(f), set out at para [12] above.
^[7] Those minutes constitute part of the written record of the proceeding that s 47(10) of the Act requires the Board to keep. 8 See para [6] above.

^[8] See para [6] above.

^[9] Police Service Act 2008, s 45(1) and (2).

^[10] Section 42 of the Police Service Act 2008 is set out at para [13] above.

^[11] Police Service Act 2008, s 42 (g).

^[12] See paras [29]-[30] above.
^[13] See para [26] above.
^[14] Police Service Act 2008, s 47(8) set out at para [17] above.
^[15] Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1 (SC).

^[16] Police Service Act 2008, s 47(12)(a)(i).

^[17] Ibid, s 47 (12) (a) (ii).

^[18] Ibid, s 47 (12) (a) (iii).

^[19] Ibid, s 47 (12) (b).

^[20] Ibid, s 49 (3), set out at para [18] above.

^[21] Ibid, s 68 (3).

^[22] Police Service Act 2008, s 54(1) and (3).

^[23] See para [26] above
^[24] See para [28] above.

^[25] See para [24] above.

^[26] See para 3 of the Board's decision, and para 3 of the Commissioner's decision set out at paras [26] and [28] above.
^[27] See para 4 of the Commissioner's letter of 5 June 2015, set out at para [28] above.

^[28] See para [29] above.
^[29] Police Service Act 2008, s 68(3), set out at para [20] above.
^[30] Public Service Board of New South Wales v Osmond (1986) 63 ALR 559 (HCA).

^[31] R v Civil Service Appeal Board, ex parte Cunningham [1991] 3 All ER 310 (CA) at 319 (Lord Donaldson MR).
^[32] Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA) at paras [81]—[85] (Elias CJ, for the Court).
^[33] See paras [20], [29]—[31], [43] and [44](c) above.
^[34] See para [13] above.
^[35] See para [44](a) and (b) above.
^[36] See para [25] above.