Yawip v Commissioner of Police [1995] PGNC 79; N1370 (14 September 1995)

N1370

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE

OS 203 OF 1995

BETWEEN:

KELLY YAWIP
- Applicant -

AND:

COMMISSIONER OF POLICE
- First Respondent -

AND:

THE STATE
- Second Respondent -

MOUNT HAGEN: INJIA, J
1995: SEPTEMBER 4TH, 14TH

Judicial Review - Police Force Act Ch. No. 65 as amended by Police Force (Amendment) Act 1993 - Sections 43(c) and 46 - Ultimate power of Police Commissioner to hear and determine charge without decision being subject to review by an administrative review or appeal tribunal.

Administrative Law - Natural justice - Disciplinary proceedings resulting in a finding of guilt and impositions of penalty - Duty to give reasons for the decision on both guilt and penalty.

HELD:

(1) The Police Force (Amendment) Act 1993 which abolished the Police Appeals Tribunal has the effect of giving the Police Commissioner ultimate powers in determining disciplinary offences under the Police Force Act and such power must be exercised in a fair and reasonable manner.

(2) Where the Police Commissioner hears and determines a serious disciplinary offence under Section 46 of the Police Force Act, and the proceedings result in a finding of guilt and imposition of a penalty, he must give reasons and good reasons for the decision on both guilt and penalty and such reasons must be given at the time the officer is informed of the decision pursuant to S.46(5) of the Act.

(3) Where no reasons for decision are provided at the time the officer is notified of the decision under S.46(5)or at the time of the hearing of the review, the court is entitled to infer that there were no good reasons for the decision.

(4) The first respondent erred in law in failing to give reasons for finding the applicant guilty of a serious disciplinary charge under Section 43(c) of the Police Force Act (negligent and careless performance of duty) and imposing a penalty of demotion in rank from Chief Inspector to Inspector.

(5) The first respondent erred in finding a charge under S.43(c) when the evidence did not or was not sufficient to support the charge.

(6) The first respondent’s decision on both guilt and penalty be quashed and the applicant re-instated to his former position of Chief Inspector forthwith, effective 17 March 1995.

CASES CITED IN THE JUDGMENT
Ridge -v- Baldwin [1963] WLR 935
Falsheer -v- Iambakey Okuk [1980] PNGLR 101
Okuk -v- Falsheer [1980] PNGLR 274
Kekedo -v- Burns Phillip (PNG) Ltd [1988-89] PNGLR 122
Niggints -v- Tokam [1993] PNGLR 66
Kuringi Nepo -v- Police Appeals Tribunal N1256 [1994]

M. TAMUTAI for the Applicant
M. POKIA for the Respondents

14TH SEPTEMBER 1994

INJIA, J.This is an application for judicial review of the decision of the First Respondent made on 17 March 1995 in which the applicant was found guilty of a serious disciplinary charge laid under S.43(c) of the Police Force Act Ch. 65 and demoted in rank from Chief Inspector to Inspector by way of punishment.

The facts are that on 20 October 1993, the applicant was the Police Station Commander of Mendi Police Station holding the rank of Chief Inspector. On that date, he and other policemen went to Bui Ebi CIS to participate in a social match. He was driven by Constable Mason in a police suzuki vehicle reg. number ZGQ 520 because at that time he was suspended from driving a police vehicle following complaints of misuse of police vehicle after working hours. Const. Mason was appointed by the applicant as his official driver as required by the Provincial Police Commander (PPC) Mr Joe Poma. After the end of the game, at about 5pm, light refreshments were served followed by a few beers which the applicant and others had. At about 7pm, the applicant decided to leave the CIS early because he had to drive the Deputy Administrator of Southern Highlands whose wife was sick and needed medical attention. Before he left, he told Const. Mason to follow him back to Mendi. Constable Mason drove back sometimes in the evening and met an accident on the Okuk Highway road.

On 9/11/93, Const. Mason was charged with driving the vehicle without due care and attention on the Okuk Highway. On 9 November 1993, he pleaded guilty and was fined K200.00 in default 2 months imprisonment by the Mendi District Court. According to a statement he made to the Mendi District Court on allocatus, Const. Mason said he told the applicant if they could leave but he was told to wait because he (the applicant) was drinking with the Deputy Administrator. Later he realised that the applicant had left the gathering without informing him. So at around 9.30-10pm he drove back and as he was driving, the tyres contacted some loose gravel on the road which caused the vehicle to skid off and turn over. The vehicle sustained damages to the value of K4,519.93.
He told the court that if the applicant had listened to him and they both left early, the accident would not have occurred.

On 27 April 1994, the PPC charged the applicant with a serious disciplinary offence under S.43(c) of the Police Force Act which read:

"On Wednesday 20th October at CIS BUI-YEBI, Mendi, SHP, you were guilty of negligent in the discharge of your duties in that you fail to properly safeguard and control the Police vehicle; suzuki reg. no. ZGQ 520 while the said vehicle was under your command, control and supervision but you left the vehicle with Const. SAM MASON at CIS Bui-Yebi with no command, control and supervision and as a result the said vehicle was involved in an accident resulting with excessive damages to it. Your negligent in the discharge of your duties amounts to the breach of the provisions of section 43(c) of the Police Force Act, Chapter No. 65."

The charge paper was served on the applicant on 5/5/94 and he was required to give his explanation within 14 days and if a reply was not given in that period, the applicant would "be deemed to have denied the truth of the charge". On 6 May 1994, the applicant gave a detailed reply to the charge in which he maintained that he commanded Const. Mason to drive the vehicle back to town and that he (the applicant) was not negligent. Instead, Constable Mason allowed his uncle policeman Const. Patrick Mek to drive the vehicle and it was Const. Mek who may have been driving when the accident occurred. The applicant also complained about the delay of 7 months in charging him. He complained that he was being penalised for something he did not do. On 17 March 1995, the applicant was "found guilty as charged" and by way of penalty he was "demoted to the rank of a Inspector on salary point F091 effective March 17 1995." The Notice of Penalty did not provide any reasons for the decision. To date, neither the plaintiff nor his lawyer have requested the first respondent for the reasons. As at the date of hearing of this review, no affidavits were filed by the first respondent explaining his reasons for the decision even though he has been served with the documentation in these proceedings.

The grounds for the review are as follows:

1. That the decision was wrong in law;
2. That the decision was contrary to the provisions of the Police Forces Act, Chapter 65 of the Revised Laws;
3. The Plaintiff was not provided with information or evidence against him for him to see;
4. The Plaintiff was not provided with reasons for his demotion;
5. That the decision was contrary to natural justice;
6. That the Plaintiff was charged for an offence which he never committed;
7. That the punishment was harsh and oppressive to the Plaintiff;
8. That the decision was contrary to principles of Natural Justice.
   

The principles relating to judicial review of decisions of administrative disciplinary authorities are settled in Kekedo -v- Burns Philip (PNG) Ltd [1988 - 89] PNGLR 122: Judicial review is available where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.

Grounds (3), (4), (5) and (8) relate to the principles of natural justice. The applicant was charged with a serious disciplinary offence under S.43(c). The disciplinary procedures are set out in Section 46 which provides:

(1) Where there is reason to believe that a member of the Regular Constabulary Branch has committed a disciplinary offence other than an offence that may be dealt with under Subdivision B, the provisions of this section apply.

(2) The member may be charged by the Commissioner or by a commissioned officer authorised by the Commissioner to lay charges under this Subdivision.

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

(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

(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 within 14 days after his receipt of the charge he may be deemed to have denied the truth of the charge.

(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 -

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

(b) reduce the member’s salary; or

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

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

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

(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

(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

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

(5) The Commissioner shall notify the member of a punishment imposed on him or a recommendation made concerning him under Subsection (4) and where the punishment is other than the imposition of a fine not exceeding K4.00 or a penalty involving loss of pay not exceeding K4.00, the member may, within the prescribed time, appeal to a Police Appeal Tribunal constituted under Subdivision D. (underlining is mine)

I am of the view that the applicant was adequately informed of the charge in the charge document, that he was given ample opportunity to reply to the charge, that he was fully aware of the charge when he replied a day after he was served with the charge document and was able to give a detailed reply to the charge. There is no evidence that he requested for the evidence or information which formed the basis of the charge before he replied to the charge and that such request was denied.

There is however no reason for the decision. At the hearing of this review, Mr Pokia, the first respondent’s counsel defended the first respondent’s decision on what he supposed were the reasons for the decision. The applicant’s counsel did likewise. I too do not know what his reasons were on the issue of both guilt and penalty. It may be that the Notice of Penalty form does not provide reasons for the decision to be set out in the document. Indeed there is nothing in S.46 which requires the Police Commissioner to give reasons for his decision. All that is required of him is for him to furnish an opinion as to the guilt or otherwise (S.46(4)) and notify the officer of the punishment imposed upon him (S.46(5). The notice of penalty is framed in such a way as to reflect this - that no reasons are required to be given. Whatever the reasons might be for not giving the reasons for decision, the principles are clear. This applicant falls into the third class of servants or officers described in Ridge -v- Baldwin [1963] UKHL 2; [1963] 2 WLR 935 who hold office, not at the pleasure of the State, but their positions are governed by statute where statutory provisions exist to ensure the strict observance of the principles of natural justice. Policemen do not hold office at the pleasure of the State. Their positions are defined by statute. The officer cannot be dismissed (or demoted) without first telling him what is alleged against him and hearing his defence and explanation and reasons being given for the decision. These principles were adopted and applied by Greville Smith, J in Falsheer -v- Iambakey Okuk [1980] PNGLR 101, and subsequently approved by the Supreme Court in Okuk -v- Falsheer [1980] PNGLR 274.

In this regard, I also find the principles enunciated by Amet, J in the case of Niggints -v- Tokam [1993] PNGLR 66 pertinent to this case. In that case, His Honour said at
p. 71-72:

"The statement of principle I now enunciate is that the departmental head who decides in his discretion, on proper consideration of the Public Services Commission’s recommendation, not to accept it should state the reasons for not so accepting the recommendation. It is not sufficient to dismiss the recommendation in the way the first respondent did:

"Recommendations from the Public Services Commission are only recommendations. I do not accept the Public Services Commission recommendations and therefore, you remain dismissed."

If no reasons are stated other than this kind of statement, it leaves the court no option than to conclude that there were no good reasons at all. Public officials discharging public duties are required for public accountability to provide reasons for their actions and decisions. If their decisions affect substantial interests and welfare of other officers and their families good management and common sense principles of fairness require that reasons be given.

Powers such as the power to dismiss and power to accept or not accept recommendation are not absolute and unfettered. They are not intended to be exercised arbitrarily and without good reasons."

The first respondent is no different from the CIS Commissioner in that they are both departmental heads of disciplined forces. One significant difference is that whereas the CIS Commissioner’s decision was subject to review by the Public Services Commission in that case, in the present case, the first respondent’s decision cannot be subject of review by an independent administrative appellate body such as the Police Appeals Tribunal which existed before the Police Force Act was amended by the Police Force (Amendment) Act 1993. The amendment abolished the Police Appeals Tribunal. The effect of the amendment is that it gives the Police Commissioner ultimate disciplinary powers which is not subject to review by an administrative appellate body. That is one reason why the Police Commissioner must be more discrete and fair in his deliberations. His power to discipline officers cannot be exercised arbitrarily, he does not have an absolute and unfettered power. Where his decision affects substantial interests and the welfare of the officers and their families, the Commissioner must give reasons and good reasons. And reasons must be given at the time the decision is made, not afterwards. It is not sufficient to issue a notice of penalty in a prescribed form which merely says "You have been found guilty as charged.... By way of penalty you are: Demoted to rank of Inspector on salary point F091 effective 17th March 1995" as it was done in the present case. The requirement to give reasons applies to all disciplinary matters which come before the Commissioner, whether or not the charge is replied to by the officer charged and whether or not the charge is explicitly denied or admitted. In a case where the officer gives a detailed explanation to the charge, it would be most unfair to him not to be informed of the reasons for decision.

The Police Commissioner’s duty to give reasons for decision on the aspect of both guilt and penalty is not only implied by the common law as adopted and applied in this country but it is also implied in the scheme of the disciplinary procedures set out in Section 46 of the Police Force Act, in particular S.46(5) which requires the Police Commissioner to notify the officer of the punishment imposed for the offence for which the officer had been found guilty.

In this regard, I would strongly recommend to the Police Commissioner to amend the Notice of Penalty form to provide a section for reasons to be provided so that they are provided as a matter of course.

I am of the view that the failure to give reasons for the decision amounts to a denial of natural justice. It is too late to ask for reasons now. In the absence of any reasons, I am left wondering what the applicant was really found guilty of and punished for. When there are no reasons, the court is left with the unavoidable conclusion that there were no good reasons for the decision: Niggints -v- Tokam, p. 72.

This brings me to grounds (1), (2) and (6). Grounds (1), (2) and (6) are similar in that they challenge the decision to charge the applicant under S.43(c) for something the applicant did not do. Mr Tamutai of counsel for the applicant submits that the applicant should not have been charged for the negligent driving of the vehicle by Const. Mason. In any case, he submits, the applicant issued the necessary command instructions for Const. Mason to drive the vehicle back to Mendi which instructions Const. Mason complied with but in a negligent manner for which Const. Mason is solely liable for.

Section 43(c) provides that a member who is negligent or careless in the discharge of his duties is guilty of a disciplinary offence. In my view the nature of the alleged offence was within the terms of S.43(c).However, I am of the view that the alleged facts did not support a finding of guilt. The applicant was at all times divested of any direct control in the driving of the vehicle. Const. Mason was at all times directly in possession and control of the vehicle. Constable Mason’s claim in the District Court that the accident would not have occurred if the applicant listened to him is inexcusable because he was the driver of the vehicle and he was under a duty to ensure that the vehicle was driven safely at all times, with or without the presence of the applicant. It is submitted by Mr Pokia that the applicant left the vehicle with Const. Mason knowing that Const. Mason was drinking beer that evening and therefore he was negligent. Nevertheless, as I have said, both the applicant and Const. Mason were involved in drinking at the social gathering which both of them were authorised to attend and even if the applicant was present in the vehicle when the vehicle was driven, it would not have mattered because it was purely to do with Const. Mason’s driving ability that evening. Consequently, Const. Mason was solely responsible for the accident for which he was tried in a court of law, convicted and punished. For these reasons, I am of the view that the first respondent erred in law in finding the charge under S.43(c) sustained in the circumstances. Further no reasonable tribunal or authority would have found the applicant guilty of the charge in the circumstances.

Mr Pokia has referred me to the case of Kuringi Nepo -v- The Police Appeals Tribunal N1256 [29 July 1994]. In that case, the member was drunk and abusive towards another policeman at his house. He was charged with behaving in a disgraceful manner and dismissed. An appeal to the Police Appeals Tribunal was dismissed. In my view, the present case is clearly distinguishable from that case because the two charges are totally different in form and character.

For these reasons, I find that there has been a substantial miscarriage of justice which warrants this court to interfere with the first respondent’s decision. I quash the decision of the first respondent made on 17 March 1995 on both guilt and penalty and order that he be re-instated to his former position as Chief Inspector forthwith, effective 17 March 1995 with full benefits on that rank. I award costs of these proceedings to the plaintiff.

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Lawyer for the Applicant: Mathew Tamutai
Lawyer for the Respondents: Solicitor General