Yawe v NJSS [2004] PGDC 62; DC470 (17 November 2004)

DC470

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

BETWEEN

Timothy Yawe
Appellant

V

Secretary, NJSS
Respondent

Waigani: P P Poloh
08th And 17th November 2004

Counsel
Appellant In Person.
B. Koae For The Respondent.

POLOH: The Appellant has appealed against the decision of the Secretary of National Judicial and Staff Services dated 08th June 2004. The penalty was imposed on the Appellant after he was charged that...

"On Friday 31st October 2003 between 10.00 pm to 11.00 pm and early hours of Saturday 01st November 2003 you broke the padlock and gained entry to the fuel shed and stole genset fuel. You were caught by the duty security officer, however, you argued and released without any restraint from your unlawful actions as you were drunk at that time".

The charge dated 27th January 2004 was served on the Appellant by Peter Kiap on 10th February 2004. He replied to the charge on 25th March, 2004.

This is what the Secretary said in his Notice of Decision to the Appellant:

"TAKE NOTICE that after considering reports relating to the offence and charge, and your failure within the 7 days to reply/respond to the Notice of the Charge, hence admits the charge and further reports that I have considered necessary am of the opinion that the charge, that you on Friday 31st October 2003 between 10.00 pm and 11.00 pm and early hours of Saturday 01st November 2003 you broke the padlock and unlawfully gained entry to the fuel shed and stole genset fuel. You were aggressive and drunk at the time when caught by the Securities."

Furthermore, there are records of other disciplinary cases and charges against your name thus your future employment with NJSS is seriously to be considered.

I therefore, impose the following penalty:

"You are referred to the Judicial Council for dismissal from the Service".

The Appellant's Notice of Appeal is based both on innocence of the charge and excessive severity of the punishment. On the appeal, I am satisfied that the Appellant was allowed every opportunity to reply to the charge, which he did, although he did not reply within seven (7) days.

In his reply, the Appellant has denied the truth of the charge. He has maintained this in his affidavit sworn on 08th November 2004 in support of his appeal. He has denied breaking the padlock and stealing the fuel. He is adamant that he was given the key by the Building Manager, Mr Abudi to gain entry to the fuel shed and got five (5) litres of fuel.

The charge against the Appellant which is now the subject of this appeal was based on the Memorandum of the Building Manager, Mr Abudi dated 04th November 2003 to the Deputy Secretary, Cooperate Services. Apart from that there are no other reports. In law, there is a saying, "He who asserts must prove". In this case if the Respondent is alleging that the Appellant broke the padlock and stole the fuel then he should have provided evidence to substantiate the allegation.

Apart from the Memo of the Building Manager, which is hearsay, there is no other evidence to support the charge against the Appellant. Certain questions have to be asked. Who was the Security Officer on duty that caught the Appellant on the night of the incident and where is his statement? There is nothing.

I cannot understand how the Secretary arrived at the decision in his opinion that the charge has been sustained when there is no evidence to support the charge. In my view the charge against the Appellant cannot stand. Having reached that conclusion, the end result is that I uphold the appeal on the ground of innocence. Accordingly, I quash the decision of the Secretary.