Farapo v Commissioner of Police [1996] PGLawRp 719; [1996] PNGLR 17 (20 May 1996)

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ADMINISTRATIVE LAW - Judicial review - Police Force disciplinary charges under s 43(g) Police Force Act Ch 65 - Whether principles of natural justice complied with.

CONSTITUTIONAL LAW - Judicial review - Dismissal from employment - Whether the Police Commissioner complied with the principles of natural justice - Section 59 Constitution.

The applicant policeman was charged with two counts of disciplinary offences under s 43(g) of the Police Force Act Ch 65 for wilful damage to property and a further two counts of being drunk and failing to turn up for duty as rostered. He was found guilty and dismissed from the Police Force. He applied by way of judicial review to have the decision to dismiss him reviewed on the basis of impropriety in the decision making process whereby he was inter alia not accorded the principles of natural justice.

N1>1. Judicial review is not concerned with the decision or the reasons as to why the decision is made but with the decision making process: Kekedo v Burns Philps [1988-89] PNGLR 122 adopted. Tandali v The State [1990] PNGLR 170 referred to.

N1>2. With reference to s 45 of the Police Force Act Ch 65 and in accordance with the constitutional requirement of a fair hearing under s 37(4) of the Constitution and the principles of natural justice both under s 59 of the Constitution and at common law, the decision making process in the circumstances of this case should involve the following sequence of events.

N2>(d) Giving to the member charged copies of any evidence from witnesses which have been sent to the Police Commissioner but not the member. The reasons being that he would not know what evidence is given against him and as it is all written, copies be given him so he may replay to them with a view to deny or admit them;

N2>(e) Copies of statement from member charged should also be served onto the parties affected or complaining from which the charge arose for their response;

N2>(f) After obtaining all these, the Commissioner is then in a better position to assess them and see whether there is a case against the member charged or whether member is to be found guilty.

In the circumstances of this case, this process was not followed in all instances and therefore the applicant was not given a fair hearing in that he was not accorded the natural justice principle of the right to be heard.

N1>3. The words “in the official capacity” refers to a member committing a disciplinary offence whilst on duty and not off-duty.

N1>5. Judicial review granted, orders of Police Commissioner quashed, applicants re-instated to the Force.

Constitutional Reference No. 3 of 1978 Re intergroup Fighting Act 1977 [1977] PNGLR 421.

AKURAM AJ: The applicant was first served with two serious disciplinary charges which read “on the 5th of November 1994 at Mt. Hagen you were guilty of disgraceful conduct otherwise than in your official capacity in that you did without reasonable excuse damaged property namely seven (7) louvre blades of Room 19, Barracks No. 3 at Kiminiga Police Barracks, the property of the Police Department. Thereby contravening [to] s 43(g) of the Police Force Act, Ch 65”.

He was served the said charge at 10.15 am on 2nd December 1994. He admitted the charge but explained later in writing to the Commissioner saying it was because he was locked up and beaten up and pushed against the louvres hence causing them to break. So it was not intentional and a direct act of breaking the louvres. The two policemen who beat him up in a locked room were Constable Paulias Wesley and Constable Moses Koagi. He says they should also be charged.

The second charge was for the same incident but this time for the breaking of covers of the cassette player. He denied this charge giving two reasons. First the said cassette radio was not in the said Room 19 and secondly he had no arguments with the owner Darius Morkum. The charge basically was worded the same.

N2>1. Applicant’s written reply to the Police Director Internal Affairs dated 7/11/94;

The purpose of Judicial review is stated in Kekeko v Burns Philips [1988-89] PNGLR 122 where Supreme Court said that: “the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision making process”. (emphasis added).

First it did not define “what is the reasoning of the subordinate authority” or put in another way - “what constitutes” the reasoning of the subordinate authority. Secondly, the Supreme Court did not define what is “the decision making process” or “what constitutes the decision making process”. Some help in defining the above two queries raised can be obtained by looking at His Honour Sheehen J’s decision in Tandali v The State [1990] PNGLR 170 where the respondent’s Counsel quoted on page 4 of his written submission, that:

“This Court’s power of judicial review are only available to consider the validity of a decision of a tribunal and to interference with that decision only if it can be shown that it was made unlawfully, unfairly or contrary to the principles of national justice”.

as a result of all these three above reasons, substantial miscarriage of justice has been done. In relation to the two queries I raised earlier, I concur with the Supreme Court’s decision in Kekedo v Burns Philip (supra) that in a matter for judicial review, the review court is not concerned with the decision or the reasons as to why the decision is made but with the decision making process. The decision is the end result of what the authority or tribunal does. The tribunal or authority must have the evidence and assess it in order to reach it’s decision. So the decision making process would involve what is set out in s 46 of the Police Force Act, as in this case and also comply with the Constitutional provisions of a fair hearing (s 37 (4)) and of natural justice principles (s 59 Constitution) and the common law principles of natural justice of a fair hearing as set out in Ridge v Baldwin [1963] UKHL 2; (1964) AC 40 and taking into account s 62 of Constitution, the decision making process in the circumstances of this case involve the following sequence of events::

N2>(e) Copies of statement from member charged should also be served onto the parties affected or complaining from which the charge arose for their response;

N2>(f) After obtaining all these, the Commissioner is then in a better position to assess them and see whether there is a case against the member charged or whether member is to be found guilty;

I set out the above guideline because the Police Force (Amendment) Act of 1993 has repealed the right of appeal. Therefore the Commissioner has to make sure a member affected is given every opportunity for a fair hearing within the bounds of constitutional requirements and the principles of natural justice and especially the audi alteram partem rule. It also means that the member, who has no right of appeal is given a fair hearing within the provisions set out in the Police Force Act. In saying this, I am mindful of and also guided by Lord Denning’s observations in Malloch v Aberdeen Corporation [1971] 2 All ER 1278 which I respectfully adopt:

“The right of a men to be heard in his defence is the most elementary protection of all and where a Statutory form of protection would be less effective if it did not carry with it a right to be heard. I would not find it difficult to imply this right”.

“The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case”.

This is what I think the Supreme Court meant by saying: “Judicial review is concerned not with the decision but with the decision making process”, in Kekedo v Burns Philips (supra) and not what respondent’s counsel say at paragraph 3 of his submission p 3. In this instance I adopt the decision making process I set out above in relation to the two previous charges. I apply that same consideration in assessing the process undertaken by the Commissioner to reach his decision in relation to these two other charges.

First, the wording of the charge. They both say “in the official capacity”. This term must be used in its proper context. We all know that the member is employed as a policemen. But there are times he is not performing his official duties when he may allegedly commit certain offences. In this case he was not rostered for duty and whilst off duty he is alleged to have committed the offences of wilful damages of seven (7) louvre blades and radio cassette cover. So it cannot be said “whilst in his official capacity”. The charges should have read:

“On the 5th of November 1994 at Mt. Hagen you were guilty of disgraceful conduct in that you did without reasonable excuse damage property namely seven (7) louvre blades of Room No. 19, Barracks No. 3 at Kiminiga Police Barracks, the property of the Police Department.”

There is no evidence showing that he committed the offence whilst on official duty but there is evidence to suggest that he committed the offence when he was off-duty.

There is also another matter which I want to point out and that is the use of the word “guilty” right from the start. This gives an impression that the member is presumed guilty so he has to prove his innocence. This shifts the burden of proof to the member charged and not the person or party alleging he committed the offence. As such, the charge could be regarded as against the provisions of the Constitution (s 37(4)) in that a person is innocent until proven guilty [see Constitutional Reference No. 3 of 1978 Re Intergroup Fighting Act 1977 [1978] PNGLR 241].

Second matter I would like to look at is the evidence against the member/applicant. So far we have his statement against that of the two policemen. Although the applicant admitted to the charge, he however offers an explanation in relation to the first charge by saying he was pushed against the louvre blades by Paulius Wesley and Moses Koagi hence breaking the louvre blades. In my view those two members should have also been charged as co-offenders, together with the applicant. On the alternative, because the applicant is saying that the louvres were broken during a fight, there must be independent evidence from people who were not involved in the fight in room 19. Paulias Wesley says Constable Alex was present and took applicant out of the Barracks, Constable Willie Nambos was said to have accompanied Paulias to the betelnut market but his evidence was not called. What I am saying is, Constable Paulias Wesley is saying a lot of things but he agrees on one incident, that is he had an argument with applicant. He made a lot of allegations without any proof from any independent witnesses.

The statement of Darius Morkum was all hearsay. He only wrote what Hendry, a boy who stays with Abel Tavip told him. Hendry did not provide a statement of his own. The Provincial Police Commander, John Wakon, who charged the applicant did not obtain any statements from these people who were eye witnesses. Darius did not see any thing and yet his word stood firm to prove that applicant damaged his radio/cassette cover.

N2>(i) That applicant was not in his official capacity as a policemen on duty when the alleged incidents happened, as there is no evidence to suggest otherwise; and

N2>(ii) That there is insufficient evidence to find the two charges proved based on what I have said above.

I therefore grant the application for judicial review and quash the decision of the Police Commissioner on the first and second charges for offences dated 5th of November 1994.

I will now deal with two charges for incidents that occurred on 11th March 1995 at Kiminiga Lodge.

First I adopt what I said in relation to the first two charges of the use of the words “guilty” and “in your official capacity” in the charges sheet and say the same as I said above in this instance.

Secondly, witness Kepu Jacob was the shift “C” Supervisor under whom the applicant was rostered for duty from 8.00 am to 4 pm. He said when the applicant got his pay, he failed to return for duty because he went drinking. This may explain why applicant was in uniform when found outside Kiminga Lodge. However, the Commissioner’s findings on facts on page 3, (Annexure “F”) says he was to report for duty from 12 midnight. This is contrary to the evidence available from Jacob Kepu. It is the evidence of Thomas Upaiga the shift “B” supervisor who is said to have said his members were rostered from 12 midnight to 8.00 am. Thirdly, all the evidence are that of Thomas Upaiga and Jacob Kepu which were all hearsay. The real witnesses were the Securimax security men but no statement was obtained from them. The applicant denied both charges of 11/3/95.

The applicant in his reply to charges on 3rd of April 1995 denied both charges. He complained however, of being beaten and taken to the cells. I do not condone what he may have done, but as the reviewing court, I have a duty to see the records of the disciplinary authority to see whether there is evidence substantiating the charges for which he was found guilty and dismissed.

As to the evidence, I do not think hearsay evidence should be relied on especially when it is used to dismiss a member. I adopt what I have said in relation to the two previous charges of obtaining and assessing the evidence. In these two charges, I am of the view that there was no fair hearing and therefore I find that a breach of natural justice occured.

I therefore grant the application for judicial review and quash the Commissioner’s decisions.

N2>2. Applicant be re-instated back-dated to time of notice of dismissal with all entitlements.

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Papua New Guinea Law Reports

Farapo v Commissioner of Police [1996] PGLawRp 719; [1996] PNGLR 17 (20 May 1996)

PNG Law Reports 1996