DC268

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

In The Matter of the National Judicial Staff Service Appeal Tribunal Pursuant To Section 18 of the National Judicial Staff Service Act 1987

V

In The Mattter of Appeal by Willie Lawasa of Waigani Court House.

Mt. Hagen: M.M. Pupaka
1999: 05th November

Counsel
The Appellant In Person
Mr. W. Hagahuno For The NJSS

M.M. PUPAKA: The Appellant appealed against the decision of the Secretary NJSS through his acting Deputy Secretary, Mr. H. John, dated 26/07/99. The Appellant had actually lodged a plea for leniency and to be allowed to resume work upon being suspended without pay, before, as it seems, he was recommended for dismissal by the Secretary through the acting Deputy Secretary on the 26/07/99. For the purposes of his appeal against the dismissal recommendation the Appellant seems to have adopted and relied on the statements he submitted for the purposes of his plea on the suspension order. The final decision of the Secretary of the 26/97/99 is a recommendation for dismissal. The Appellant seems to both raise severity of penalty as well as innocence of the charge.

The facts that gave rise to the disciplinary action are these:

On the 22/04/99 the Appellant was charged by the police with a criminal charge that the Appellant had in his possession a quantity of a dangerous drug (cannabis) on the 21/4/99.

On the same day, 22/04/99, it seems upon plea of guilty, the Appellant was convicted by the Boroko District Court and placed on a Good Behaviour Bond for 12 months with a K50.00 surety. There is a Certificate of Conviction available to this Tribunal as evidence of this event.
 
Based on this District Court conviction the Appellant was suspended without pay and subsequently recommended for dismissal, which decision/ recommendation he appeals against.

First of all I find nothing wrong with the manner in which the appellant has been dealt with – being suspended without pay and the eventual recommendation. Section 22 of the NJSS Act 1987 provides for the manner in which the Secretary death with the Appellant. I find nothing irregular about the proceeding followed up to the time of the decision to recommend dismissal.

Secondly the Appellant has asserted total or otherwise innocence of the charge. Briefly that ground can not hold. He has not challenged or appealed against the District Court Order of Conviction and for all purposes this Tribunal or any other body or entity can only accept the record of conviction. The Appellant has been convicted of a minimum sentence penalty offence and that is now a matter of record. The end result is that the Appellant can not possibly raise the issue of innocence before this Tribunal.

Thirdly, the Appellant raises the ground of excessive severity of penalty. He does this after being recommended for dismissal for being convicted of being in possession of a dangerous drug (cannabis) which just happens to be a minimum penalty offence under the Dangerous Drugs Act Chap. No. 228, as I said.

I can only say the argument of excessive severity here is totally misconceived. The appellant had been, up to the point in time of his conviction and suspension from work, working for the courts. The Secretary seems to have been of the view that they would not allow a convicted drug offender to be in among the ranks of court staff. I have to agree with the Secretary. The Appellant, I am sure, must know that. In some respects the Appellant has seemingly fared better than he should have. The Boroko District Court must have had its own reasons for imposing the suspended penalty it did on the Appellant. However, to my knowledge the District Court does not have any discretionary power to suspend a minimum penalty sentence both by virtue of the District Courts Act and the Probation Act. The District Court would have discretion to exercise under section 132 of the District Courts Act under certain conditions. However in my knowledge that discretion is not available to the District Court after it has proceeded to enter on record a conviction in a minimum penalty offence. However at any rate what I think of the Boroko District Court’s Order of the 22/04/99 is simply here nor there for the purposes of this appeal. I only state my views to underline the point that the Appellant’s assertions of excessive severity of the Secretary’s decision to recommend dismissal is baseless. He (the Appellant) was recommended to be dismissed from employment on the bases of a conviction on a serious offence and I can only confirm the Secretary’s recommendation to the Judicial Council.

Ergo I confirm the Secretary’s recommendation to the Judicial Council and dismiss this appeal.

In Person: Complainant
W. Hagahuno: Defendant