Unreported National Court Decisions
N1432
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 525 OF 1995
SENGI LAKI - Applicant
OS 526 OF 1995
VINCENT AVAKEA - Applicant
OS 545 OF 1995
FRANK SIWI - Applicant
v
THE COMMISSIONER OF POLICE - Defendant
Mount Hagen
Akuram AJ
30 May 1996
JUDICIAL REVIEW - Administrative decisions of Police Commissioner - serious disciplinary charge - no reasons and no records substantiating the dismissible - review granted.
On application for judicial review.
Held:
1.       Breach of Order 16, Rule 5 of the National Court Rules do not render proceedings void - Order 1, Rule 8. Applied.
2.       Request to adjourn to allow the Police Commissioner to give reasons for his findings and subsequent dismissal runs counter to the whole purpose of giving reasons at the same time the decision to dismissal is made as it would respond to the grounds of appeal and not represent the real reasons given at the time decision is made.
3.       In judicial review, the Applicant need not show that there is insufficient evidence to substantiate the charges and subsequent dismissal but the Respondent to show from its records that there is sufficient evidence to substantiate the charges upon which he made his decision.
Cases Cited:
Paul Undipe v The Police Commissioner (1991) PNGLR 97
Rose Kekedo v Burns Philps (1988-89) PNGLR 722
Philip Alumba v The Commissioner of Police (Unreported & numbered) OS 470 of 1995 dated 3/5/96
Statutes Cited:
National Court Rules, Orders 1, Rule 8, Order 16, Rule 5
30 May 1996
AKURAM AJ:  These are applications for judicial review of the Police Commissioner’s decision dismissing the three Applicants from the Police Force, effective as of 30th November 1995 on various and serious counts of misconduct.
I have heard submissions based on the affidavit evidence of each applicants.  The Respondent/Defendant’s Counsel had made a preliminary submission to the effect that there is no application filed by way of Notice of Motion, after the Leave was granted, for judicial review and was then in breach of Order 16, Rule 5 of the National Court Rule.  What we have now is the original Originating Summons and Notice of Motion seeking orders for leave to apply for judicial review.  Although I concur in his views, I am also of the view that non compliance with the Rules do not render the proceedings void.
Order 1, Rule 8 reads:
8.       Non-compliance with Rules not to render proceedings void.
Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.
Furthermore, the leave was granted on the 20/12/95 and matter set for hearing on 18/1/95.  State was served on the 27th December 1995 of the Notice of Motion and originating Summons.  The Notice of trial was filed on 12th February after two adjournments giving notice that matter will be tried on the 24th April 1996.  I heard the matter on 22/4/96 obtained both oral and written submissions by 29/4/96.  The copy of the Notice of trial was in fact directed to Mr Pokia and Mr Gonapa.  However, there was no notice of objection to the trial dates nor to the manner of procedure raised, prior to trial, to the Plaintiffs or their Counsel.
I therefore rule that non-compliance with the Rules (O. 16, R. 5) do not render these proceedings void.  In fact it was the courts direction that these matters were set down for trial on 18/1/96, 2/2/96, 22/2/96, and 22/4/96.
I will now deal with the substantive arguments.
The grounds of the application are the same as those stated in the application for leave and are as follows:
(i)       There was insufficient evidence to substantiate any of the charges found against the Plaintiff’s.
(ii)      The penalty applied in each instance was excessive.
(iii)     The decision of the Commissioner was contrary to natural justice in that the Commissioner:
(a)      Failed to provide the plaintiff’s with copies of any evidence substantiating the charges put against them;
(b)      Failed to give the Applicants an opportunity to present oral evidence;
(c)      Failed to provide the Applicant’s with an opportunity to cross-examine witnesses providing evidence in support of the charges;
(d)      Failed to provide the Applicant’s with an opportunity to address the Commissioner on penalty;
(e)      Failed to provide any sufficient reasons for his decision.
The Counsel for the Defendant/Respondent agreed that there are no reasons given by the Commissioner for each of the serious disciplinary charges.  However he submits that this alone should not render the whole proceedings null and void.  He requested the court to adjourn the matters and request the Commissioner to provide his reasons before making the decision.  I agree that may be one of the alternatives available but it has to be looked at in the circumstances of other grounds of appeal and the nature of each offence and also the implications of having such a procedure.  I am of the view that it runs counter to the whole purpose of giving reasons.  The purpose of giving reasons is to justify, upon the facts or evidence presented before the authority or tribunal, that these are the reasons for which such a penalty is imposed.  The danger of providing reasons after the grounds for the application are provided is that the reasons will not go to the time when Commissioner was directing his mind during assessment of the evidence and coming to the decision to dismiss as in this case, but he will be merely explaining and responding to those grounds.  So the reasons would be more defensive for the decision made and not as they would have appeared at the time of the decision.  However, if the reasons were given but not available then court would and should ask that they be provided prior to making the decision after giving the applicants an opportunity to respond to them.  I therefore will not adjourn to allow the Defendant to provide his reasons for a decision made in early November.  So in this regard there is a breach of natural justice in that the applicants were not informed of the reasons for their dismissal which is distinct from the fact that each of them have been charged.
As to ground number one, that there is insufficient evidence to substantiate the charges laid against them, the Applicants denied all the charges.  This means that the Commissioner must then obtain evidence from witnesses and replies from the applicants and evaluate them to find the guilt or innocence of applicants.  This goes to the crux of the purpose of judicial review, which I have said in previous similar case, that this court must have before it, the records of the authority or tribunal or decision making body to see whether it acted in excess of its jurisdiction or not complied with the rules of natural justice or made an error on the face of the record.  (See Paul Undipe v The Police Commissioner (1991) PNGLR 97 and Rose Kekedo v Burns Philps (1988-89) PNGLR 722).
In the present case, all we have is the copy of charges, replies by the applicants the notice to the Highlands Commander of the findings of the Commissioner of each of the charges date 16th November 1995 and the notice of penalty.  There are no evidence upon which the Commissioner based his findings on.  As I have said in Philip Alumba v The Commissioner of Police, OS 470 of 1995 dated 3/5/96, that in the absence of the evidence from the Police 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 say that in the absence of such records or evidence for the Commissioner, I have to give the benefit to the Applicants and say there is nothing.  As is always the practice in review proceedings, the superior court must have the records of the proceedings below so that it can review the records to see whether there is:
(a)      Want or excess of jurisdiction;
(b)      Breach or non-compliance with rules of natural justice; or
(c)      Error of law on the face of the records.
This cannot be done in the present cases.  I cannot say that this was insufficient evidence or that the Commissioner’s decision was not contrary to natural justice or that the penalty is not too excessive.
The Counsel for the Respondent/Defendant submitted that the Applicants have to prove or show that there was insufficient evidence to substantiate the charges.  As it is, the applicants have not brought forward any evidence to show there is insufficient evidence.  This is a misconception of the purpose and procedure for judicial review because all that the reviewing court needs is to see the records of the Commissioner to see whether the evidence presented to him was sufficient to sustain the charge.  The reviewing court is only reviewing the Commissioner’s decision and not trying to call fresh evidence as if it is a new trial.
Based on the above views expressed, I am of the view that there is no record to show that Commissioner had sufficient evidence to substantiate the charges and consequent dismissals.  I therefore grant the application for judicial review and make the following orders:
1.       That the Police Commissioner’s decision to dismiss the applicants from the Police Force is quashed.
2.       That they be re-instated to the Police Force with entitlements commensurate with their positions prior to dismissal.
3.       That costs follow the event.
Lawyer for the Applicants: O’Connor Lawyers
Lawyer for the Respondents: Solicitor General