Rameta v Attorney General [2013] KIHC 32; Civil Case 29.2013 (11 October 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL CASE NO. 29 OF 2013

BETWEEN

IAKOBA RAMETA
PLAINTIFF

AND

ATTORNEY GENERAL IRO THE COMMISSIONER OF POLICE
DEFENDANT

Before: Hon Chief Justice Sir John Muria

11 October 2013

Mr Banuera Berina for Plaintiff
Mr Birimaka Tekanene for Defendant

JUDGMENT

Muria CJ: By his Originating Summons dated 20 May 2013 and filed on 21 May 2013 the plaintiff seeks an interpretation of section 41(1)(b) of the Police Service Act 2008 and determination of the following question:

"Can a Senior Police Officer who has instructed his junior officers to do something which the said Senior Officer knows to be improper be convicted of the offence of negligence contrary to section 41(1)(b) of the said Act?"

FACTUAL BACKGROUND

2. The facts in this case are not in dispute. The plaintiff was a Police Officer of the Rank of Inspector in the Kiribati Police Service. He was in charge of National Intelligence Unit (NIU) in the Police Service. On 18 April 2013 he was charged with two counts of disciplinary offences, namely in Count 1, of Improper Conduct, contrary to s.41(1)(c)(ii) of the Police Act 2008 and in Count 2, of Negligence, contrary to s.41(1)(b) of the Police Act. The plaintiff pleaded guilty to Count 1 and not guilty to Count 2.

3. In the present case, the plaintiff was charged with one count of Improper Conduct under section 41(1)(c) and one count of Negligence under section 41(1)(b). The particulars of the offence in Count 1 are:

"Between the months of November and December 2012, at the Police Headquarters, IP Iakob'a Rameta, did not observe honesty and integrity, and acted himself in an improper way by misusing the government fund known as a "Standing Imprest" thus demonstrating his inability to lead others".

The particulars of the offence in Count 2 are:

"Between the months of November and December 2012, IP Iakob'a Rameta, had fail to properly supervise his subordinate by demanding them to sign the payment register for the Standing Imprest without giving them any payment (cash).

The plaintiff pleaded "guilty" to Count 1 and "not guilty" to Count 2. The Police Non Summary Board found the plaintiff guilty of both counts and convicted him.

4. The Standing Imprest was kept under the plaintiff's control and to be used to meet expenses in collecting intelligence by members of the National Intelligence Unit. In 2012 the plaintiff started using the Standing Imprest to purchase copies of "Te Uekera" newspapers, coffees and other office needs instead of using the money for intelligence work. He had members of the National Intelligence Unit signed for use of the fund to collect intelligence when in fact the expenses incurred were not for collecting intelligence. The plaintiff admitted that what he did was wrong and deliberate. It was for that reason that he pleaded not guilty to the second charge relating to Negligence under s.41(1)(b) of the Act.

5. The Police Non summary Board found the plaintiff guilty on both counts. The plaintiff was demoted in Rank from Inspector to a Senior Constable.

6. The plaintiff maintained that he was not negligent because as he put it, "my actions were willful", not negligent.

7. For the plaintiff, it was submitted by Mr Berina of Counsel for the plaintiff that the actions of the plaintiff were deliberate improper conduct and could not be regarded as negligent. It was therefore not appropriate to charge the plaintiff with negligence under s.41(1)(b) for actions that did not amount to negligence.

8. The learned Solicitor General on the other hand submitted that the disciplinary offence of negligence is a separate offence under section 41(1)(b) of the Police Service Act. The offence is intended to cover conduct of an officer falling below the standard of care expected of him when performing his duty.

9. Thus Counsel urged that the applicant/plaintiff in this case intended to and did deliberately carry out what he did knowing that his actions were improper. That, says counsel, is negligence of duty contrary to section 41(1)(b) of the Act.

10. The first thing that needs to be said is that the disciplinary offence of negligence in section 41(1)(b) is a separate offence. The provision states as follows:

"(1) A police officer, special constable or police recruit commits a breach of discipline if the person, while in Kiribati or overseas –

(b) is careless, lazy or negligent in carrying out his or her duties, without reasonable cause, including for example by failing to properly supervise his or her subordinates";

The said provision covers actions or conducts of an officer, constable or recruit that, among other things, are negligent in the performance of his duty.

11. The learned Solicitor General was, in my view, correct in his submission that negligence is a separate offence under section 41(1)(b) of the Act. As such it was available against the plaintiff so long as there was evidence to ground a charge under the section.

12. The first question which may be asked is whether a senior police officer such as the plaintiff can be charged with and convicted of the offence of negligence under section 41(1)(b) of the Act. The answer must obviously be in the affirmative.

13. The thrust of the plaintiff's case is that his actions were deliberate. As such he could not be charged with negligence because his actions were deliberate. Implied in this argument is that the elements of negligence do not exist or is no longer available if the conduct or actions complained of were deliberate.

14. Despite the strong argument advanced by Mr Berina the Court does not share the plaintiff's contention. On the contrary, the Court accepts the argument put by the learned Solicitor General that the plaintiff's actions were deliberate, but that in the course of doing so, he allowed his actions to fall below the required standard expected of him in his position as a senior officer in the Police Service. As such he was negligent in the performance of his duty.

15. The plaintiff in this case was a senior officer in the Rank of Inspector of Police in the Kiribati Police Service. A higher standard and a duty of care was expected of him in carrying out his duty as a senior officer in the proper management and use of the "Standing Imprest", a public fund, entrusted to his care. He readily admitted that he misused the Government fund by instructing his junior officers to sign the register purporting to show that they collected the money standing against their signatures when in fact they did not receive any money. Such a conduct fell below the standard required of the plaintiff as a senior officer in the Rank of Inspector. He gave no thought as to the risk or failed to appreciate the risk of his action. That is negligence by the plaintiff in the performance of his duty.

16. In my judgment section 41(1)(b) is clearly intended to cover situations, where an officer conducts himself in such a way that his actions result in a risk of his performance of his duty falling below standard required of him. That is a duty performed negligently.

17. Thus the question: "Can a Senior Police Officer who has instructed his junior officers to do something which the said Senior Officer knows to be improper be convicted of the offence of negligence contrary to section 41(1)(b) of the said Act?"
Answer: Yes.

18. The question is answered accordingly. The declaration sought is refused with costs.

Dated the day of November 2013

SIR JOHN MURIA
Chief Justice