Jannanis v Commissioner of Police [1999] PGNC 5; N1845 (25 February 1999)

Unreported National Court Decisions

N1845

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 148 OF 1998
BETWEEN: SGT. KIM JANNANIS
PLAINTIFF
AND: THE COMMISSIONER OF POLICE
FIRST DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT

Waigani

Hinchliffe J
25 February 1999

JUDICIAL REVIEW - Policeman demoted by the Police Commissioner – Plaintiff was not invited to address on penalty – Police Commissioner fell into error.

Counsel

P. Ousi for the Plaintiff

Iwais for the Defendants

HINCHLIFFE J: The Plaintiff seeks the following Orders:-

1. ҈ T60; That leave be erant h to him to apply for Judicial Review of the decisions of the Commissioner of Poand the Second Defendant served on the Plaintiff on the 27^th of January, 1998 fi98 finding the Plaintiff guilty of using intoxicating liquor to excess contravening Section 43 (c )of the Police Force Act, Chapter 65 and finding the Plaintiff guilty of improper conduct and misusing a Police vehicle a Toyota Daihatsu Registration No. ZGV 589 and further finding the Plaintiff guilty of disobeying a lawful Order made by a person having authority contravening Section 43(b) of the Police Force Act and demoting the Plaintiff from the Rank of Police Sergeant to Senior Constable on salary FO43 effective on the 29^th of December, 1997.

2. ټ An order for certioertiorari that the decision of the Commissioner of Police and the Independent State of Papua New Guinea as to guilt and sentence served on the Plaintiff on the 27^th of January, 1998 be brought into this Honourable Court be quashed.

3. Ae Ordat the Pthintiaf be f be reinstated to his previous position of Sergeant for that all salary, wages and entitlements be paid to the Plaintiff back dated to 27^th of January8.

Leave was granted to apply for Judicial Review on the 14^th 1998. is tcisiothe actual Judicial Review.

It would seem to me that that on thon the evie evidencedence before the Commissioner of Police it was open for him to come to the findings that he did in relation to the three charges. The Plaintiff may well have been working long hours at the time and that he was stressed and emotionally upset, but at the end of the day it is quite clear that he is guilty of the charges. I do not propose to disturb the First Defendants findings in relation to the guilt of the Plaintiff.

As far as the penalty is concerned I am satisfied that the First Defendant fell into error when he did not call on the Plaintiff to address on penalty.

In the case of Toll v Kibi Kara & Ors 1990 PNGLR 71, I said the following Hotop Principles of Australian Administrative Law, 6 edition (1985), at 199-200, reads as follows:

“In the case of a disciplinary proceedings, where, after a finding of guilt, the penalty is not automatic and the decision maker has a discretion in the fixing of the appropriate penalty, the person affected is entitled, to be given the opportunity to be heard separately on the question of penalty even in the case of a non-statutory, domestic body: Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Calvin v Carr [1977] 2 NSWLR 308 at 337”.

Even though I am aware that at least two other Judges in the National Court have stated that the Commissioner is not required to call on the Plaintiff to address on penalty in these types of cases, unfortunately I am unable to agree with them and I stand by what I said in Toll v Kibi Kara (supra) and I can only say again that the Commissioner must call on the Plaintiff to address on penalty. In fact in this present case the first Defendant said on p. 3 of his Notice of Penalty to the Plaintiff that “a submission on penalty was received at Police Headquarters”. It would seem that that was incorrect as on the evidence it is clear that the plaintiff at no time wrote anything regarding penalty.

I should also say in regard to addressing on penalty that the Plaintiff is protected by sec. 59 of the Constitution of Papua New Guinea which provides as follows:

“59 iples of natural ural justice”.

1) ټ&#S60; ctbject to thto this Constitution and to any statute, the principles of natural je are the rules of the underlying law known by that name deme developed for control of judicial and administrative proceedings.

2) ټ T60; The minimum requiremfnt of natural justice is the duty to act fairly and, in principle, to be seen tofairly.”

Could it really be said that a person is acting fairly when he does noes not call on a person to say something when he (in this case the First Defendant), is about to hand out a penalty that could change the life of that person? To say otherwise, to my mind, is parting company with reality. Also, to argue that just because the Police Force Act does not say that the Police Commissioner has to call on the person to address on penalty, then he need not do so, is a nonsense. The Constitution is superior to the said Act and it spells out the requirements of natural justice very clearly.

Having said all of that and hopefully not appearing to be contradictory, I do not propose to send this matter back to the First Defendant to hear the Plaintiff on penalty. I say that because I am of the view that the three charges were very serious and that the penalties, to my mind, were quite light. They were certainly not excessive and they may well have been much heavier. I am of the opinion that no matter what the Plaintiff had to say it would not change the mind of the First Defendant.

I therefore dismiss the application for Judicial Review and I confirm the decision of the First Defendant.

Lawyer for the Plaintiff: Warner Shand

Lawyer for the Defendants: Solicitor General