Wena v Tokam, Police Commissioner [1997] PGNC 54; N1570 (9 May 1997)

Unreported National Court Decisions

N1570

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 106 OF 1996
BETWEEN
MICHAEL KAPA WENA - Applicant
And
HENRY TOKAM, POLICE COMMISSIONER - Respondent

Mount Hagen

Injia J
21 October 1996
9 May 1997

ADMINISTRATIVE LAW - Judicial Review of Disciplinary authority’s decision to dismiss policeman - Grounds for review - Reasons for decision not provided to Applicant at time of decision - Reasons available at the time of decision but not communicated to Applicant - Applicant did not request for reasons for decision - Reasons provided to Applicant and Court at time of review - Whether breach of principles of natural justice occurred - Police Force Act (Ch. 65), S. 46, National Court Rules, Order 16.

Cases Cited:

Kelly Yawip v Police Commissioner N 1370 (1996)

Dicky Nanan v Police Commissioner N 1507 (1997)

Counsel:

D Kwimberi for the Applicant

J Kumura for the Respondent

9 May 1997

INJIA J: The Applicant is seeking judicial review of the Respondent’s decision to dismiss him on disciplinary grounds under s. 46 of the Police Force Act (Ch. No. 65). The decision was made on or about 22 December 1993. Leave toy for judicial revl review was granted on 12 April 1996.

Pursuant to the Statement in support of application for lealed oh February 1996 and amended pursuant to order of r of the Court on 19 September 1996, the gthe grounds of review set out in para. 4 and 5 are as follows:

“4. &#1easons:

(a) #160; Thes insufficient evidencedence to sustain the charge of serious Disciplinary charge under Section 43 (b) and (c) of the Police Force Act,ter 6>

160; &#1roperiplinroy pureeduresdures of l of layingaying char charge, wge, were not followed.

(c) ; Penalty wa exne, unrable,able, harsh and oppressive in the circumstance. Theged offenoffence wace wace was Plas Plaintiff’s first disciplinary off

)ټ&##160; Plaintiff was nots not advi advised osed of hisf his dismissal and was allowed to perform duties without pay until February 1994.

The First Respondent failed to provide reason or good reasons for the Plaintiff’s dismissal, upon consideration (of) all reports under Section 46 (4) of the Police Force Act.

5. ټ The grounds on whic which the relief is sought are as follows:

(a) & That that the dismissal was wrong in law;

(b)ـ҈& Thatorder was contrary to Principinciples oles of Natf Natural ural Justice.”

Pursuant to Order 16 rule 6 of the National Court Runderh theoceedineedings args are broe brought, the Applicant is restricted to the grounds raised in the statement unless leave is sought and granted at the hearing to amend the grounds. Apart from thedment soughtought and order made on 19 September 1996, further leave was not sought at the hearing.

A chronology of events regarding disciplinary procedures resulting in the Applicant&#s dismissal is as follows.

The Applicant was a Senior Constable based at Porgera Police Station, Enga Province. On y 1993, the Applicant want was charged with 3 serious disciplinary offences.

On 13 July 1993, he was served with the threrges by his Supervisor, Inspector J. Yansuan. At the time of se, he was was asked byed by Insp. Yansuan whether he denied or admitted the charge and what explanation, if any, he had to the charges. The three charges and hplaexplanation on the threeges are set out below:

First Charge:

Between the 18th of July 1991 and October, 1992 at Porgera, you were negligenthe discharge of your duties in that you had in your possesossession an Unlicensed High Powered Firearm, namely, a SMITH and WESTON PISTOL, Serial Number 25092 which came into your possession and had failed to inform or handover the Pistol to your PSC Inspector TENDE, instead you gave it back to the Unlicensed owner.

Thereby Contravening to Section 43 (c) of the Police Force Act (Ch. 65).

Explanation:

The pistol was in my possession. However the owner ofpistolistol came to my house and asked me to give it back to him. He told me that the PSC Inspector TENDE had sent him to get the pistol from him. Whis I belihim and gave itve it back to him.

Second Cond Charge:

That on the 3rd day of March, 1992 at Porgera you did wly Di a Lawful Order gder given by a person having authority to give it, to wit Inspector TENDE ENDE the PSC in that you did not hand over to him the pistol, namely a SMITH and WESTON PISTOL, Serial No: 25092 which was in your possession for which you were minuted to do so.

Thereby Contravening to Section 43 (b) of the Police Force Act (Ch. 65).

Explanation:

The minute was received after the pistol was given back to the owner. fore I did not handover ther the pistol to him. It was on his iction that that I gave the pistol back to the owner and when I received his minute, I was annoyed and did not come and explo him

Third Charge:arge:

That on the 22nd day of January 1993 at Porgera you did wilfuwilfully Disobey a lawful order given by a person having authority to give it, to wit, PSC, Inspector TENDE in that you failed to handover the unlicensed Pistol, Serial Number, 25092 when you were minuted for the second time to do so.

Thereby Contravening to Section 43 (b) of the Police Force Act (Chapter 65).

Explanation:

Yes. The r why I did not responespond to the minute by PSC was that the pistol had already been given to the owner upon PSC Inspector TENDE’s instructions. I theredid not approach thch the Pp>

On 15 July 1993, the the Applicant gave a full reply to the 3 charges in writing. His reply ifollows:

&#8220ECT: EXPLANATION TO THREE SDORS UNDER SECTION 43 (B) (C) POC) POLICE FORCE ACT, S/CONST. 5996 WENA KAPIA

Dear Sir,

I wi give my explanations in regards to three (3) SDORS substaibstained on me under Section 43 (b) (c) of the Police Force Act Ch. 65 on the 13th July 1993. During and 1991 I was acti acting as a PSC in Porgera and my policemen confiscated three (3) High powered pistols and that pistols handed over one (1) Mr B Irume who was a PPC at that time and when the incoming PSC for Porgera Mr DW Tende to takeover from me I handed over one (1) to him and he exchange with Mr George Wauglo who he was taking over from PSC Wabag. The last one was with mel ntil June the 1st 1991, 6th June 1991 I was not in my house and the owner of the pistol approached the PSC Mr Tende and asked to get the pistol back so Mr Tende send S/Const. Solomon Wemen with the owner of the pistol to my house and asked my wife that where is S/Const. Wena and my wife told them that he is not around so they went back. The other hey came to my h my house again and I asked them saying what do you want and in replied they told me that the PSC send us to com see you to give the pistol back to the owner so I thought that my boss’s order so I so I handed over pistol back to the owner. Later the PSC informed menagain that I want the pistol back but I thought that in the first place your order saying that I must give the pistol back so I handed over back to the owner, and how you want the pistol back so that means you change your mind again and trying to charge me so I didn’t say anything to him, the PSC. I did not knothing betweentween the PSC and the owner what their decisions made bribery or other things but I honestly and truly handed over the pistol back to the owner becof the order from my PSC. I diddenied the first irst irst charge of SDOR because of the order that I have followed from the PSC. I had now SDORs in the past years since I have joined the force in 1974 till now 1993. That l about my first expl explanations of SDOR.

My second and third charges is the same explanations that the PSC for Porgera told me that he want the pistol and also he write a minute to me saying that he want the pthe pistol back to his possession but I did not say anything to him because at the first place he himself send a policemen with the owner of the pistol to my house and I already give the pistol back to the owner and yet he want the pistol back to his possession and that means he just pulling me around and trying to charge me so now the PPC charge me for that same pistol so that is not my fault because I follow the directions from the PSC to give thtol back to the owner. During 1ome policemen went went to the owner of the pistolRl’s house and bring back the pistol back so I did not know where the pistol is now. I also did not that I am g am going to charge for that pistol because I knew that I follow up the order from the PSC and not my own decisions to give the pistol back to the owner and get any bribery such as , pigs or anything. I60; If Mr didn’t g7;t give me the order to give the pistol back I should have the pistol still in my possession.

My second and third charges I was not guilty because I have already handover the pistol and the minute came to me late because I follow the directions from the PSC and give the pistol back so he just trying to charge me so I face three extra false things in it so that is all I have to say.”

On 28 January 1994, the Applicant was served with three penalty notices in respect of each charge. Each notice stated tha Appe Applicant was dismissed from the Force effective from 22 December 1993 but the actual date on which the decision was made is not shown on the dismissal notice. No reasons for decisre stoted on the penalty noty notices. Also, Insp. Yansuan who served the penalty notices did not give him any reasons for the ion.

On 14 March 1996, the Applicant sought leave to apply for judicial review againagainst the decision. In the stateme supphe did did not rely oely on the grounds that no reasons or good reasons for decision was given. This ground was introducesubsequent amendment by leave of the Court.

Both parties have produced evidence in t in this review. The Applicant&#8217idencsiconsists of the Applicant’s 2 affidavits sworn 23 February 1996 and 25 March 1rch 1996. He was cross-examined on ho affidavits by the Respondent’s counsel. The Respondent has r on thon the affi affidavit of J.M. Kumura sworn 24 July 19 which he attaches the relevant disciplinary process documents obtained from his client, tht, the Respondent.

The grounds of r in paragraphs 4 and 5 are are mixed. The grounds in paragraphal really describe the essence of the grounds set out in paragraph 4. The grounds in paragraph a relate to both guilt and penalty. Grounds 4 (a), (b), (d) (in part) and (e) relate ilt and 4 (c) and (d) in pain part relate to penalty. All the grounds in 4 rela relate to breach of the disciplinary provisions of olice Force Act. Ground 4 (e) also rs to brto breach each of principles of natural justice.

In the submission (Additiona the Applicant’s lawy lawyer filed on 1 November 1996, he introduced a new ground of the review which is that the Respondent failed to serve copies of certain internal statements and reports from his sub-ordinates which were placed before the Respondent which he may have considered in deciding on the charges. It is sted this was was in contraventf S.of S. 46 of the Act and also amounted denial of natural justice. In my view, this ground is not open to the Applicant pursuant to Order 16 r. 6.& Event is open, my viey view is that there is not such requiremeirement under S. 46 of the Act and that there is no room to import rules omon law as to natural justijustice into S. 46: Dicky Nanan v Police Commissioner & Ors N 1507 (1997).

Returning to the grounds of review properly before me, grounds 4 (b) can be dismissed outright because I do not find any procedural error in terms of compliance with the requirements of S. 46 as to laying and service of charge, giving of opportunity for reply, deliberating, and delivery and service of penalty notice on the Applicant.

As to grounds 4 (e), the Applicant relies on my decision in Kelly Yawip v Commissioner of Police N 1370 (1996). As I sa that case, the dute duty to give reasons for decision is not a requirement of the disciplinary procedure prescribed in S. 46 of the Police Force Act but it is a requirement of the common law quity principles of naturaltural justice which is implied into the statute. In Kelly Yawip&#821ase, ite, it was a case where the Respondent failed to give any reasons for his decision to dismiss the Applicant at all, even up to the time of the hearing of udicial review application. In resent case howevhoweveowever, the Respondent has provided to this Court and the Applicant all the necessary internal reports, recommendations, and reasons for the decision to dismiss based on those recommendations. Althougse reasons were note not provided to the Applicant at the time the decision to dismiss him was conveyed to him, the fact is that were available at the time the decision was made. Had the Appl requested ford for thor the reasons, he would no doubt have been supplied with the reasons. Henow been made aware of t of those reasons. Further, it is also to me o me to infer fre way these judicial revieweview proceedings have been conducted by the Applicant that the failure to give reasons for decision was not a ficant part of the Applicant’s case up until the hear hearing was well under way and the Applicant’s saw it necessary then to seek to amend the grounds to plead this ground. For treasons, I would dist distinguish my decision in Kelly Yawip’s case from this case on the facts and decline to apply my ruling in that case to the facts of the present case.

The nelated issue is whether ther the reasons given were good reasons for the decision. This issue go the other reer related issue of whether there was sufficient evidence to sustain the charges as alleged in ground 4 (a) insofar as guilt is concerned and grou(c) insofar as penalty is concerned.

Before the Resp Respondent were several reports or documents for his consideration. These were quiet properly before the Respondent pursuant to S. 46 (4) of the Act: Dicky Nanan v Police Commissioner & Ors N 1507 (1996). They are:

60; #160; Theicant’s reply.

2. ـ҈ R60; Report port of Insp. J Yansuan dated 14 July 1993. Hethe Police Station CommaCommander at Porgera and the Applican17;s visor

3. & Reoort sistant tant Cant Cant Commisommissioner K. Ludwick dated 8 September 1993. He was the Assistanmier ofer ofce fo High Regip>

4. Reporteoort of I sp.Insp. nsp. N KarN Karmi dami dated 7 December 1993. He was&#16e or with the Dihe Director of Police Internal Affairs, at , at Police Headquarters.

In all the reports Messrs Yansuan, Ludwick and Karmi, all strongly recoed dismissal because of the seriousness of the offence.&#16. Thve detailed reasons for for their recommendation. I set out in the report ofrt of Assistant Commissioner Ludwick as an example:

“SUBJECT: RE: SE DISCIPLINARY CHA- SHA- SENONSTABLE 5996 WEN6 WENA KAPIA

I forward herewith three (3) serious disciplinary char charges being duly served on the above naember on 13th July 1993 by Inspector Yansuan.

The chhe charges relate to:

Disobedience of lawful order;

Negligent in discharged of duties; and

Disobedience of lawful orders.

Disobedience of Lawful Order

Senior Constable Kapia (accused) is stationed at Porgera. In 1992, Inspector Tende was his PSC. Around Mar92, the member cber came to be in possession of a S/W Pistol, Serial Number 25092. This has comthe knowledge edge of Inspector Tende following incidences mestic nature in which it was reported that S/Const Kapia hpia has been threatening his wife with a pistol. In the course of ingations, Inspector Tende isde issued a minute dated 3/3/93 to S/Const. Kapia to surrender the pistol to him. Copy of this minutencloark marked F.1. In addition to minute, the, the then PPC, Chief Inspector Wagluoagluo was aware of the situation and has i a minute to PSC Porgera dated 18/1/92, instructing that the pistol be surrendered. C60; Copy of thiute is encs enclosed marked F.2.

Despite instructions from PPC Wagluo and PSC Tende for S/Const. Kapia to hand in the pistol, the member has failed to coand hence has willingly disobeyed the lawful orders from thom the authorised officers.

Disobedience of Lawful Orders

Failure by the member to comply with the orders of 3/3/93, Inspector Tende issued another order dated 22/1/93 to the member to hand in the pistol after realising that S/Const. Kapia has failed to institute criminal proceedings against the owner of the pistol for being in possession of unlicensed pistol. Copy of thier is enclosed,osed, marked F.3.

Again, despite the receipt of the instructions from the PSC, the member choose to ignore the orders and continue to keep the weapon without good reasonsaving to take appropriate aate actions against the owner.

Negligent in Discharge of Duties

Around July 1991, three (3) pistols came into the possession of S/Const. Kapia. A vill by the name of Pund Pundi Pakiru was in possession of an unlicensed pistol which he admitted possession of and belongs to the Late Malipu Balakau.

Police came to know about the pistol th July 1991 following dome domestic incident involving Pundi brothers in which the pistol was used injuring one of them. Accorto the statements fros from S/Const. Mek, he was incharge of the case and during his investigations he failed to pick up the piss it was already taken in by S/Const. Kapia. This was not made to S/Co S/Const. Mek Mek who was then a/PSC and other members at Porgera at that time.

Between July 1991 and March 1992, S/Const. Kapia was holding the pistol in his house and failed rform his duties as policemliceman to initiate and conduct investigations with the view of taking criminal actions against Pundi Pakiru and his brothers. The fhat the pistol was inas in his possession came to light after he threatened his wife with it. Tore, S/Const. Kapia has nhas neglected his duties as policeman to inform his superior about the pistol or in the absence of thatd institute charges against Pundi Pakiru. He was guilty of negl in t in the dischargeharge of his duties.

The whole episode is stink and amounts to criminal conscience on the part of S/Const. Kapia. When he took holthe pistolistols, he came tm an sinister motives and tand that was to gain personal benefits out of them.

There are evidence to prove that the member hasally sold the pistol back to Pundi Pakiru. The memberember admithat hhat he gave the pistol back to Pundi Pakiru which was completely improper. In S/Const. Me17;s statemeatements (marked F.4.), it was rumoured that S/Const. Kapia sold the pistol bacPakiru was the reasonable cble conclusions despite denials from Pundi Pakiru (F.5) and the member himself (F.6).

Another statements from S/Const. Mek (F.7) indicated the fact that s/Const. Kapia had actually approached one of the Pundi brothers (Michael Pundi) and stated that he plan to return the pistol to them on the condition that he be paid some money.

It is pity that this matter was treated with disciplinary action which if properly investigated, should amount to criminal charges.

There are enough evidences to sustain all three (3) charges. I stronecommends that the the member be dismissed immediately from the Force as penalties.”

There is evidence to show that the Respondent acted on these recommendations and dismissed thlicant.

On the evideevidence, I am satisfied that there existed good reasons to warrant a finding of guilt on all three charges. The evidence in the forthef these various internal reports far outweighed the Applicant’s explanation to the three charges.

On the question of penalty, Insp. Karmi’s report shows that the Applicant had 4 “prior convictions” for disciplinary offences. They are:

1. &##160;; M60; MDOR 10OR 10-1-76: Wilfully disobey a lawful order. Repded.

2. ; &#1DOR 31-5-80:5-80: Use inse intoxicating liquor. Loss ofys pa>

60;;&#160 < M1-R 14: Impropmproper conr conduct. Loss of 3 pay. pay.

4. &ـ D60; Districstrict CKieta88: Uul as.&#16ned K60.00 in defaudefault 3 weeks in hard labour.

I np>I note tote that that the Aphe Applicant in his reply dated 15 July 1993 adonly rior ction wion which hich was sustained by him whilst he was stas stationed at Wewak. But in his gr for applicatlication for judicial review, para. 4 (c), the Applicant says he has no prior convictions. Based on this conflictiorystory, I am unable to agith him that he has only one prior conviction. I am p am prepared toy they the respondent’s record.

In view of theousness of the present offence and the four (4) “prio;prior convictions”, Insp. Karmi strongly recommended dismissal and espondent no doubt acted oned on the recommendation. In my viewm inclined to agto agree with the Respondent. The Commissioner d the 3 ce 3 charges as serious and decided to dismiss him. I d take the decisions of s of the Respondent and the unas recdation of his thrs three Senior Officers lightly.

For these reasons, I dismiss groungrounds (4) (a) and (c).

That leaveund 4 (d). There is n is no evi to suto support the Plaintiff’s assertion that he worked for 3 months without pay. He coave summonsed the fine financial records of the Police Department to show that he was put off the pay-roll for three (3) months.; Also under S. 53 and 54 of the Act, suspension of a member, with or without pay, pending ding determination of disciplinary proceedings is in the discretion e Responespondent. If such a den was made, the, then such decision was within the discretion of the Respondent.

For these reasons, the application is dismissed with costs to the Respondent.

Lawyer for the Appl: Paulus M Dowa Lawyers

s

Lawyer for the Respondent: Solicitor General