Nepo v Police Appeals Tribunal [1994] PGLawRp 678; [1995] PNGLR 373 (29 July 1994)

PNG Law Reports 1995

[1995] PNGLR 373 - Kuringi Nepo v Police Appeals Tribunal 

[1995] PNGLR 373

N1256

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KURINGI NEPO

V

THE POLICE APPEALS TRIBUNAL

Mount Hagen

Woods J

15 July 1994

29 July 1994

ADMINISTRATIVE LAW - Judicial review - Police appeals tribunal - charge of disgraceful conduct - Interference by Court in internal operation of a disciplined force - Only if miscarriage of justice - Role of appeal tribunal.

Facts

The applicant was dismissed from the force by the Commissioner of Police following the hearing of a charge of behaving in a disgraceful manner. His appeal to the Police Appeals Tribunal was unsuccessful. He sought a judicial review of these decisions.

Held

There was no miscarriage of justice giving the Court power to interfere with the decision of the Appeal Tribunal.

Cases cited

Application of Paul Undipe [1991] PNGLR 297.

Counsel

A McDonald, for the plaintiff.

M Pokia, for the defendant.

29 July 1994

WOODS J: This is an application for review of the proceedings of the Police Appeals Tribunal in the hearing of an Appeal from the Commissioner of Police in dismissing the appellant from the Police Force following the hearing of a charge of behaving in a disgraceful manner.

It must first be noted that the provisions of the Police Force Act (Ch 65) providing for appeals to the Police Appeals Tribunal have now been repealed by the Police Force (Amendment) Act, 1993 however there was a provision saving any matters commenced before the coming into operation of this Amendment Act.

It is submitted that the Police Appeals Tribunal did not give the plaintiff justice in the hearing of the appeal by firstly refusing the plaintiff’s right to cross-examine the witnesses for the Commissioner of Police, secondly it considered hearsay allegations of the Provincial Police Commander and thirdly it failed to properly consider other factors such that the other police involved in the incident were not charged, the weight of the plaintiff’s sworn evidence, that some of the evidence were mere statements and also failed to consider the plaintiff’s work record.

The charges arose out of an incident at Wau on the 27^th and 28^th October 1989 with some altercation between police officers at Wau police station over the treatment by a police sergeant of the member’s wives. Then there was a late night confrontation at a police officer’s house. It was alleged that the plaintiff was drunk and abusive. When the serious disciplinary charges were forwarded to Police Headquarters the Provincial Police Commander added his own comments on his view of the history of the plaintiff. The procedure for dealing with serious offences is laid down in s 46 of the Police Force Act, the relevant parts of which are ss (3) and (4).

Section 46(3) On a charge being laid against a member of the Regular Constabulary Branch, he shall:

N2>(a)      be promptly furnished with a copy of the charge, which shall, if he so desires, be explained to him by the Officer-In-Charge; and

N2>(b)      be invited -

(i)       to reply promptly stating whether he admits or denies the truth of the charge; and

(ii)      to give any explanation that he desires to give in regard to it.

and if a reply is not given by the member with 14 days after his receipt of the charge he may be deemed to have denied the truth of the charge².

Section 46(4) If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the member charged and any further report that he thinks necessary, the Commissioner is of opinion that the charge has been sustained, he may:

N2>(a)      fine the member a sum not exceeding K40.00; or

N2>(b)      reduce the member’s salary; or

N2>(c)      reduce the member to a rank having a lower classification, and to a salary within that classification; or

N2>(d)      in addition to or instead of impsoing a punishment specified in Paragraph (c), transfer the member to other duties or to some other locality; or

N2>(e)      in the case of a commissioned officer - impose a penalty referred to in Subsection 45(1)(a)(b) or (e); or

N2>(f)      in the case of a member other than a commissioned officer -impose a penalty referred to in Section 45(1)(a), (b),(d) or (e); or

N2>(g)      in the case of a member who is a commissioned officer -recommend to the Minister that the member be dismissed from the Force; or

N2>(h)      in the case of a member other than a commissioned officer - dismiss the member from the Force.

It would appear that these provisions were followed. The Commissioner was apparently satisfied as to the nature and seriousness of the charges and dismissed the plaintiff from the force. The plaintiff availed himself of his right to appeal to the Police Appeal Tribunal which heard all the evidence and the plaintiff was represented. The Tribunal dismissed the appeal.

So this application to this court whilst in the nature of a judicial review is in effect a further appeal when the plaintiff has already had two hearings.

I refer to what I said in The Application of Paul Undipe [1991] PNGLR 297:

“Whilst the National Court can review such disciplinary findings the Court must be sure that there has been an error or a miscarriage of justice before it should interfere in the internal operation of a Disciplined Force. It was open to the Commissioner to find disgraceful conduct, and the Appeal Tribunal has agreed with that. In reviewing the decision of Executive arms of Government and the internal decisions of Disciplined Forces the National Court must not be seen to be interfering in the operation of responsible government and the operation of authorities given their own status and role under the Constitution. The power to intervene with or set aside executive policy runs counter to the theory of responsible government. This court cannot merely interfere in administration decisions of the Executive or Disciplined Forces merely because on the facts the Court may have formed a different view. If the National Court does that it becomes no more than a part of the Administration or Force and thereby loses its distinctive and independent character. I must be careful not to step into the shoes of the Commissioner in the case before me now. I can only interfere if I am clearly satisfied that there has been a miscarriage of justice in the internal operation of the Police force.”

So how has there been a miscarriage of justice. Under s 46 the Commissioner was entitled to consider reports relating to the offence and charge, the reply and explanation of the plaintiff and any further report that he thinks necessary and this is what he did.

The Appeal Tribunal heard the evidence of the plaintiff and his witness and the plaintiff was aided by a representative.

There seems to be no doubt on the evidence that there was some confrontation which involved the plaintiff and there was ample evidence for the Commissioner and the Tribunal to be satisfied that the plaintiff was drunk at the time.

It is essential for the Commissioner for the smooth running of the police force that his staff behave properly to each other as well as to the public. If there is any dissension or disunity or conflict within the ranks, the Commissioner must be in a position to take appropriate action, the safety of the people of the country depend on the ability and orderliness and example of the police themselves. So when a police officer acts contrary to principles of good relations within the ranks, then the Commissioner must be able to act. And here he has done so. Some of his penalties may be harsh but in a disciplined force that may be necessary, especially as the security and orderliness of our society may depend on the force. So there may be higher standards of behaviour expected of police but then society demands and deserves such.

On the material before me I cannot find that there has been a miscarriage of justice such that this court should interfere. I dismiss this application.

Lawyer for the applicant: Warner Shand.

Lawyer for the respondent: Solicitor General.