Alumba v Commissioner of Police [1996] PGNC 5; N1438 (3 May 1996)

Unreported National Court Decisions

N1438

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 470 OF 1995
PHILIP ALUMBA - Applicant
v
THE COMMISSIONER OF POLICE - Respondent
Hagen

Akuram AJ
2-3 May 1996

JUDICIAL REVIEW - charge of disgraceful conduct - dismissal - purpose of judicial review - absence of record of proceedings and reasons from Respondent.

Held:

The purpose of judicial review of a lower court or decision making authority is to see from its records below whether it acted in excess of its jurisdiction or not complied with rules of natural justice or made an error on the face of the record.

Cases Cited:

Paul Undipe v The Police Commissioner (1991) PNGLR 97

Rose Kekeko v Burns Philip (1988-89) PNGLR 722

Counsel:

Mr O’Connor for Applicant

3 May 1996

AKURAM AJ: This is an application for Judicial Review of the Police Commissioner’s decision in dismissing the Applicant from the Police Force.

The bracts of the matter is that on the 29th of July, 1993 at Porgera (Payam) Village there was awas a police raid conducted under the Supervision of Provincial Police Commander - Superintendent Sheekiot, RDU Commander - Superintendent Sobi, Police Station Commander Porgera, Inspector Yansman, Inspector Korahan & Mobile Commander and other NCO’s. The Policemen came from both with and outside Enga Province as there was a tribal fight and one Policemen on duty was killed. The police personnel therecame from:

1. ټ&#R60; Dpid Deploymployment with “ARA” Company;

2. ҈ Enga Task Formber personnesonnels;

3. ـ #160; Wapenamanda Polirsonnels;

4.ـ҈&&#160ag Police reserve;

5. d W60; Wabag abag Poli PolicPolice personnels;

6. &ـ 8220#8220;14&#;14&#;14”8221; Yaibos based Police personnels;

7. Highway ̶#;15&; 221unkurunki based Police pnels;

8.; Highwayghway &#82 0;8220;1620;16” Mulitaka based Police personnels;

9. ҈;ټ Lm Districttrict Police personnels.

“By way of penalty you are: Dismissed from the force effective C.O.B. 29th September 1995.”

The Applicant was served the Notice on the 9th October 1995, which is 10 days later.

The Applicant in his evidence in his statement denies the charge and gave reasons that during the raid, he was tasked to stay at Porgera Police Station and watch over the remandees in the cells. He was only seen at the site when he and other members drove out to inform the Policemen on the field to stop what they were doing and return to the Poliction.

There are no reasons nor Police Commissioner’s copy of the SDOR file cone containing relevant information upon which Commissioner used and decided to dismiss the Applicant. So we really do not know what evidence was used or whether Applicant’s reply to the charges were part of the materials available to the Commissioner to reach his decision. This isrtantuse the purposurpose of a judicial review of a lower cwer court or decision making authority is to see from its records below wh it acted in excess of its jurisdiction or not complied with rules of natural justice or maor made an error on the face of the record (See Paul Undipe v The Police Commissioner (1991) PNGLR, 97 and Rose Kekedo v Burns Phillip (1988-88) PNGLR 722).

However, it must be noted that both Mr Yamboli and Mr Pokia did not have carriage of the matter but a State lawyer based in Goroka. It is not known what he has done for the case. Mr Yamboli wo Goroka last last week Thursday (25/4/96) but could not locate the Officer nor the file. Theren record a Notice of e of Intention to defend but no defence dated 28th January 1995 which er a year ago. Applicpplication was by Mrby Mr Yamboli & Pokia to adjourn but I ruled that this case will proceed exparte due to the long delay in expediting this matter. The State or Solicitneral eral was served on 4th of December 1995. I therefore hear submissioissions from the Applicant’s Counsel exparte.

All the evidence in support of the application are in ffidaf the Applicant sant sworn on 27/10/95. In the absence of the ece ence from the PolicPolice Commissioner’s proceedings, I can only say that he either had some evidence which he relied on in reaching his decision but I cannot say this with certainty.; On the other hand, I can can say that in the absence of such evidence or records from the Commissioner, I have to give the benefit to the Applicant and say there is nothing. As is always tactice in rein review proceedings, the superior court must have the records of proceedings below so that it can review the records to see whether there is:

(a) &#Want ce exof s risductsdictsdiction;

(b) ټ Breach each or non compliance with the rules of natural justor

So from from the the affidaffidavit avit evidence of the Applicant, I can only say what id isect. T60; That is he was never heard in that his reasons for denial were never tver taken aken into account. There is also no reasoven.iven. Therefore in the absef anyf any evidence to the contrary I will believe the Applicant’s story.

I thre grant the application for judicial review and make the following orders:

1. #160; ټ&##10; That that the Commissioner’s decision to dismiss the Applicant from the Police Force is quashed.

2. ҈&&#That hat re-iede-ied to the Police Force with the entitletitles as s as if he was not dismissed back-dated toed to the time he was said to be dismissed

L for the Applicant: O’Connor Lawyers

Lawy>Lawyer for the Respondent: No appearance