Vema v Tokam, Commissioner of Police [1995] PGNC 81; N1361 (19 September 1995)

N1361

PAPUA NEW GUINEA
[National Court of Justice]

OS NO. 137 OF 1995

BETWEEN:

SEBASTIAN VEMA
(Applicant)

AND:

HENRY TOKAM, COMMISSIONER OF POLICE
(First Respondent)

AND:

THE STATE
(Second Respondent)

Waigani: Brown J.
1995: 19 Sept

Administrative Law - Judicial review of Police Commissioner’s order of dismissal in disciplinary proceedings - Procedural regularity - Natural justice afforded applicant - No power in Court to interfere.

Constitution - s.41 harsh and oppressive act - Test "on balance".

Held:

The Commissioner of Police confirmed the recommendation of the investigating officer, an Inspector of Police to dismiss the applicant for disgraceful conduct in that he was found guilty of having sexual intercourse with a woman picked up in a police car whilst he was on duty. The applicant argued that he had not been afforded the right to be heard. He further said, that if the Commissions actions were lawful, pursuant to s.41, in the circumstances the dismissal was a harsh and oppressive act.

The facts appear from the judgment.

Judicial review
P. Kuman, for the applicant
Pauline Mogish, for 1st & 2nd respondents

Reasons for Decision

Brown J.: The applicant comes by way of judicial review to seek orders quashing the decision of the Police Commissioner terminating his appointment as a Constable of the Royal Papua New Guinea Constabulary, for disgraceful conduct. He had been charged with a serious disciplinary breach on the 15 December 1993 arising out of an incident on the 24 September 1993 when the applicant with two other members of the Police Force, all then on duty in uniform had "picked up three ladies from Port Moresby and taken them to 7 Mile in a Police vehicle where the members each had sexual intercourse with the girls".

The other also, I am told, have been dismissed and seek reinstatement by way of judicial review. The girl with whom this man had intercourse was named in the disciplinary proceedings and in fact he was also charged with her rape, but those proceedings were discontinued and the applicant here, discharged on the indictment, (or charge).

A discharge in those circumstances is not an acquittal.

The girls, it appeared, had changed their minds and decided not to proceed with the case. A nolle prosecui was entered, a procedure available to the State Prosecutor, to stop prosecution them pending. Why the girls changed their minds is a matter for conjecture, but it is certainly not because they have been compensated for the act of intercourse, which was admitted by the applicant. Anecdotal evidence suggests that the girls may have been coerced into withdrawing their complaint, or had been frightened into doing so, but I need not make any findings in that regard, except to point out that other jurisdictions, (recognising the possibility of coercion), have legislation in place which effectively circumvents the sudden refusal of a victim in these circumstances, to give evidence in Court, so that the States obligation to uphold the law and prosecute criminal acts, such as rape, is not frustrated by the girls understandable wish to avoid public humiliation and possible ridicule in the public Court. In such jurisdictions, the effect of the legislation is to protect the victim to a large extent, and effectively takes away from the victim the power or obligation to choose whether or not the charge will go to trial (by declining to give evidence against the perpetrator), placing the power with the prosecutor, the responsible authority, where it should be.

Nevertheless, after time, the police disciplinary charges were heard. Despite the applicant’s denial of an opportunity to be heard, I am satisfied, both that he had the opportunity to be heard, and that the procedural requirements of Subsection 43 & 46 of the Police Force Act had been complied with. In the course of the proceedings, Senior Sergeant Slim Raufur said ("quote from "B" to affidavit of Bernard Orim, Chief Inspector") -

"I said, Do you understand the charge?

He said, Yes

I said, How do you plea?

He said, I denied the charge of using force against the lady to have sex.

I said, Do you wish to explain?

He said, Yes, this lady was with others and they came with us on their own free will. We did not use any force or threat against them. They simply agreed to have sex with us".

It must be remembered that police disciplinary proceedings are not Court proceedings for their procedures are altogether different. Mr Kuman continually resorted to arguments about a failure to be heard which shows that he misapprehended the nature of the disciplinary proceedings. The charge requires an explanation in the discretion of the person charged, and since, the charge form clearly, provides that "if a reply is not given within 14 days after your receipt of the charge, you may be deemed to have denied the truth of the charge". No complaint can now be entertained if the applicant now says that he did not avail himself of the chance to give an explanation. In fact he did so, and that explanation has clearly been considered on the face of the documents, for Inspector Kami, had noted, in mitigation, that the member pleads the act was consensual. Nevertheless, the Inspector was of the view the fact of sex, by members of the force, on duty was very disgraceful. The recommendation for dismissal was carried out by the Commissioner who so ordered on the 24 September 1994.

The applicant’s arguments that he has not had natural justice cannot be sustained on the facts, for his explanation was taken into account and the disciplinary procedures followed. On the strength of Sudi Yaku’s case ([980] PNGLR 27) police disciplinary proceedings are not criminal offences within the meaning of the Criminal Code.

He was charged with disgraceful conduct, a serious disciplinary offence which calls for a objective assessment of the members behaviour. Consensual intercourse is not necessarily wrong, but on an objective assessment, taking into account the requirements of the Forces discipline, (and the public interest to prevent, if possible the chance of being picked up by members of the Police Force for consensual intercourse), intercourse whilst on duty in company with other members was considered by Inspector Karmi, the disciplinary officer, to be disgraceful. That is a finding of his peers and as I say from an objective point of view it is a finding which is available to the Inspector. The applicant does argue that, from his point of view, (a subjective one) he did nothing wrong for the girl acquiesced. Nevertheless moral precepts have a place in our law, so that group intercourse by policemen in uniform whilst on duty in a police vehicle would call for some admonition, and the Inspector’s finding of disgraceful conduct by a policeman in these circumstances does not go beyond societies expectations. There is no power in the Court to interfere, then, when the Commissioner has not been shown to have acted beyond power.

The applicant goes onto say that, even were I to find the Commissioner had power to dismiss, his act is harsh and oppressive as understood by s.41 of the Constitution. I had occasion to consider the test in Currans’ case where I differed from my erstwhile brother Judge McDemott’s test which tended "reasonableness" in a Wedsnesbury sense.

There is nothing in this case, in my view, to support the Constable’s assertion that the act of the Commissioner to terminate him is harsh or oppressive. He has, in the opinion of his peers, acted disgracefully. His conduct risks bringing the force into disrepute once it becomes known that girls walking about town are at risk of being imposed upon for sexual favours by uniformed men. He has not considered compensating the girls for the hurt and ridicule that they have suffered (accepting the consensual nature of the act) or the suffering (if non consensual) from a customary point of view, so that to urge the Court as he does, that he has been harshly or oppressively dealt with, takes no account of the public interest in stopping persons imbued with authority by the uniform, from having their own way with women free of recrimination. Women’s expectations of fairness under the Constitution would again be frustrated were I to find the policeman harshly treated when the woman has been put upon and I dare to say, abused without recompense. On balance, I am not satisfied he has been harshly or oppressively treated.

The applicant says that he has a legitimate expectation to remain in the Force because he was returned to work upon his discharge from the criminal charges. The disciplinary proceedings were stayed, in accordance with proper practise, while the more serious were completed, the disciplinary proceedings fell to be determined. The fact that his suspension was lifted then and he was paid for a period following his discharge from the indictment, cannot be seen to be condonation of his behaviour where the disciplinary tribunal is still deliberating. The deliberations were completed upon the Commissioner’s determination of the 24 September 1994 and nowhere has it been shown that any person in authority has led this man to believe that notwithstanding the deliberations of the Tribunal he would be excused from the consequences of this act. Pending determination he was entitled to his salary for his criminal charge had been discontinued releasing him from that impediment to work. No policeman facing a rape charge could in my view properly be rostered for duty.

The application must fail. Judicial review is refused. I order the applicant to pay the respondent’s costs.

_________________________________

Lawyer for the Applicant: Joe Wal Lawyers
Lawyer for the Respondent: Francis Damen - Solicitor General