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National Court of Papua New Guinea |
N2154
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 664 OF 2000
BETWEEN:
SIMON OTTOGOMA
AND:
THE STATE
-Respondent-
LAE: INJIA, J.
2001: NOVEMBER 26
JUDICIAL REVIEW – Decision of Disciplinary authority – Dismissal of policeman by Police Commissioner for disciplinary reasons – Grounds – Breach of principles of natural justice – Whether Police Commissioner required to serve copies of internal police investigation reports on member charged with disciplinary offence – Whether opportunity given to member to address on penalty before he was found guilty and punished – Police Force Act 1998, Ss.23 – 24.
Cases Cited:
Dicky Nanan v. Police Commissioner N1507 (1997).
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
Kelly Yanip v. Police Commissioner [1995] PNGLR 93.
Michael Kapa Wena v. Police Commissioner N1370 (1997).
Tiga Nalu v. Police Commissioner N1927 (1999).
Philip Kamo v. Police Commissioner N2084 (2001).
Counsel:
P. Ousi for the defendants
R. Saranduo for the respondent
26 November, 2001
INJIA, J.: The applicant is applying for judicial review under Order 16 of the National Court Rules. Leave to apply for review was granted on 21 March 2001. The application is contested by the respondent.
The applicant is seeking a review of the Police Commissioner’s ("the Commissioner") decision of 20/9/00 dismissing him from the Police Force for disciplinary reasons. The applicant has filed 3 affidavits sworn on 3/11/00, 11/12/00 and 8/8/01 respectively. He also relies on the other affidavits of Constables Dean Sawan sworn on 3/11/00; Constable Maika Nosare sworn on 3/11/00, Sgt. Razi Take sworn on 3/11/00; Police Officer Tony Wagambie sworn on 8/11/00 and Senior Inspector Peter Guiness sworn on 15/11/00.
The respondent’s case is set out in the affidavit of Senior Inspector John Waira sworn on 30/2/01.
The background circumstances are that on the night of 4/3/99, members of the Police Task Force based at Lae including the applicant, were on duty in the West Taraka area. They drove to West Taraka to apprehend a suspect for questioning. The applicant was the driver of the police vehicle and he was armed with a A-R 15 rifle. When they approached the area where the suspect was supposed to be, the suspect fled and the other task force members pursued him on foot whilst the applicant drove up to where a Yellow utility was. The applicant thought this was a stolen vehicle and signaled to the Toyota driver to slow down but it kept on going. So he took out his A/R 15 rifle and fired a warning shot. Then he saw a man inside taking out a .38 pistol and fired into the air. The applicant responded by firing 2 shots at the vehicle. When the vehicle came to stop, he realised that he had shot Const. Maipo Mazuk, a CID policeman from Kundiawa who was at the scene, to investigate a crime. Const. Mazuk received serious gunshot wounds to his left buttock and hip, which penetrated into his abdomen and intestine. He was admitted to the Angau Memorial Hospital where surgery was done on the affected parts. He recovered well and was subsequently discharged.
On 24/11/99, Police Superintendent Awan Sete laid a serious disciplinary charge against the applicant under S.21(1)(ay) of the Police Force Act 1998 read:
It is necessary to set out in full the charge document together with details completed by the charging authority, the applicant and the police officer who served the charge on the applicant. I do this because there is information contained on this charge document which significantly differ from information contained in previous charge documents which I have sighted in cases I have already dealt with. The parts filled in by the various persons referred to above are in bold print. The charge document reads:
"ROYAL PAPUA NEW CONSTABULARY
"SERIOUS DISCIPLINARY OFFENCE REPORT.
Police Station: LAE CENTRAL
Date: 24/11/99
File No.:
"NAME: SIMON OTTOGOMA
RANK: CONSTABLE
REG. NO.: 10197
STATION: LAE
"I SUPERINTENDENT AWAN SETE being a Commissioned Officer authorised by the Commissioner of Police to lay charges as per Section 19 Part IV of the Police Force Act and having reason to believe that you have committed a disciplinary offence other than that which is or is intended to be dealt with as a minor offence as per Section 21 of the said Act, do hereby charge you as follows:
(insert here a full wording of the charge under Section 20 of the Police Force Act)
"On the 4th March, 1999 at West Taraka you did commit an act Namely, in that, you wounded on MAIPE MAZULEC whereby you fired 3 shots at him injuring his stomach without justification which may be a Criminal offence.
"Thereby contravening Section 20(1)(ay) of the Police Force Act (insert sub section)
"If you so desire the charge will be explained to you by a senior officer of police and in addition you are also entitled to be furnished with a copy of all reports that are to be considered in relation to the charge. If you wish to have the charge explained to you and/or to be supplied with a copy of the said reports, you should contact your Police Station Commander or Officer in Charge immediately. If any further report subsequently becomes available, a copy of this report shall be served on you and you shall have a right of reply to this."
"You are invited to provide a response to this charge within 14 days if the charge has been served personally on you, or within 28 days if the charge has been posted to you as per Subsection 4(b) of Section 23 of the Police Force Act. You should provide in this response any explanation you desire in regard to the charge and should also provide any submission you may wish to make in relation to penalty should the charge be sustained.
"If a response is not provided by you within 14 days of you being served personally with a copy of this charge, or within 28 days of a copy of this charge being mailed to you as per Subsection 4(b) of Section 23 of the Police Force Act, you will be deemed to have denied the truth of this charge.
"PROOF OF SERVICE
"DAVID SIENE states:
(full name of Officer serving charge)
at 11.05a.m hours on the 23rd day of February, 2000.
I interviewed the accused member
at Lae Police Station (insert location)
I said "State your full name rank and number:
He said, "Const. 10197 S. OTOGOMA
"I then served a copy of the charge/s on the member, together with a copy of the evidence in support of the charge.
I said, "Do you understand this charge?"
He said, "Yes"
I said, "Do you wish me to explain this charge to you?"
He said "No"
"I then explained the charge to the member (delete if not applicable)
I said, "Do you admit or deny the charge?"
He said, "DENNY"
I said, "Do you wish to give any explanation in relation to this charge?"
He said, "YES, HE WISH TO MAKE HIS EXPLANATION IN WRITING ON LATER DATE."
I said, "If you so desire you may provide a written explanation to me within 14 days. This document should include any explanation that you may wish to give and should also include any submission you may wish to make to the Commissioner in relation to penalty in the event that the charge is sustained. Do you understand this?
He said, "YES"
I said, "Is there anything else you wish to say in relation to this charge?"
He said, "Yes, 1. I wasn’t charged criminally on this matter.
"Signature of Officer Serving Charge: (Signed)
NAME OF SERVING OFFICER: DAVID SIENE
NUMBER: P3630
RANK: CHIEF INSPECTOR
Signature of Accused Member: (Signed)"
The modified charge form purports to comply with changes in the disciplinary procedure in relation to dealing with serious disciplinary offences prescribed in the new Police Force Act 1998. This Act repealed the Police Force Act Ch. No. 65 (as Amended by Police Force (Amendment) Act 1993. The disciplinary procedure set out in S.46, of the repealed Act is now replaced by ss.23 – 27 of the new Act. The new Act makes significant changes to the disciplinary procedure. I will mention two charges, which are relevant for purposes of this review. The first one is S.23(3)(b) which requires the Commissioner or his delegate to provide, upon request, copies of "reports that are to be considered in relation to the charge" at the time the charge is served on the member, to enable him to make an informed reply to the charge. Section 24(4) also requires the Commissioner to furnish to a member a copy of any report, which was not made available to the member previously. Under the old Act no such provisions existed: see Dicky Nanan v. Police Commissioner N1507 (1997). The second significant change, which is contained in the charge document, is in elation to submissions on penalty for which I cannot find any corresponding provision in S.23 – 24 and the penalty provision in S.26. At the time the charge is served on the member, the officer serving the charge is required to advise the member in prescribed words, to include in his reply to the charge, if he so wished, his submissions on penalty: c.f. Philip Kamo v. Police Commissioner N2084 (2001).
The charge was served on the applicant on 23/2/00 by Chief Inspector David Siene. On 29/2/00, the applicant replied to the charge. In his reply, the applicant denied the charge, but did not make submissions on penalty. But he did so in a separate letter dated 17/3/01. On 25/8/00, the Commissioner found the applicant guilty of the charge and dismissed him from the Police Force. In his decision, the Commissioner said his office did not receive any submissions on penalty from the applicant. In arriving at his decision, the Commissioner took into account the following statements and reports:
There are 8 grounds of review contained in the statement in support. These are:
(a) The plaintiff is a former Police Constable attached to the Task Force, Lae.
(b) The Plaintiff was charged with a Disciplinary Charge under Section 20(1)(ay) of the Police Force Act and he replied to the Charge and gave an explanation to the charge and was found guilty and by way of penalty dismissed from the Police Force which Notice of Penalty was served on him on 20th September, 2000.
(c) The Defendant failed to provide the statements in support of the charge on the Plaintiff.
(d) The Defendants failed to give an opportunity to the Plaintiff to address on penalty before the penalty was imposed.
(e) The hearing was conducted in a manner contrary to the principles of natural justice as the Respondents had not considered the Applicant’s Submission on penalty.
(f) The finding of guilt and penalty is not supported by evidence and under normal circumstances, the circumstances of the Police shooting would give rise to a defence of accident.
(g) The finding of guilt and penalty were based on irrelevant factors and if the relevant factors were considered the Applicant would not have been found guilty or dismissed.
(h) The Respondents failed to consider other penalties before imposing the penalty of dismissal.
(i) The finding as to guilty and dismissal was unreasonable in the circumstances of the case.
Grounds (a) – (b) are merely introductory paragraphs and they can be disregarded. Grounds (c), (f), (in part) (g) (in part) and (i) relate to finding of guilt. Grounds (d), (f)(in part) and (h) relate to penalty. I will deal with them in that order.
Judicial review is a discretionary power, which is exercised, in special cases. It is available to correct some error in the decision-making process and not the decision itself: see Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Judicial review is not another re-hearing of the applicant’s grievances over the same disciplinary charge, but a review of the disciplinary process as evident on the face of the record. As such, the Court is cautious in accepting any extraneous or fresh material, evidence or information, which were not available, before the decision-making authority and which did not form part of the decision-making process: Tiga Nalu v. Police Commissioner N1927 (1999) Breach of common law principles of natural justice adopted in S.59 of the Constitution and imported into the disciplinary process of the Police Force is a proper ground upon which a decision-making authority’s decision may be inferred with: see Kelly Yanip v. Police Commissioner [1995] PNGLR 93; Michael Kapa Wena v. Police Commissioner N1370 (1997) and Philip Kamo v. Police Commissioner, supra.
Grounds challenging Finding of guilt:
Applying these principles, the fresh affidavits filed on behalf of the applicant by Const. Dean Sawan, Const Maika Nosare, Police Superintendent A. Wagambie and Sen. Insp. Peter Guiness are not proper and they must be disregarded. These very deponents supplied certified witness statements to the Commissioner regarding the incident, which the Commissioner took into account, and they cannot supply fresh evidence to this Court. The affidavit evidence of police Sgt. Razi Take is also fresh evidence and it must be disregarded. As for the applicant’s 3 affidavits, any evidence which explains breaches of the disciplinary procedural rules designed to ensure compliance with the principles of natural justice in the disciplinary process are relevant and can be considered in a review but any fresh evidence or information about the incident which he had the opportunity to address in his reply cannot be accepted. The Court must go by the record of the statements he supplied to the Commissioner, which the Commissioner considered, and which statements are part of the record: Tiga Nalu v. Police Commissioner ante, p. 8.
In relation to ground (C), the applicant’s evidence is set out in para. 23 of his affidavit sworn on 3/11/00. He states:
"The SDOR (Serious Disciplinary Offence Report) was served on me by the then Police Station Commander (PSC) Senior Inspector David Seine now Chief Inspector and Rural Co-Ordinator. I asked him to give me or serve me a copy of the file I was charged with and he said he had no copy of the file to serve to me and that I was denied access to the copy of the file I was charged with to prepare my defence. He asked me what was my plea and I told him that I was not guilty and that I would make a full written explanation to the charge."
It is clear from the above evidence and his reply to the charge that the applicant asked Chief Insp. Siene who served the charge on him to give him the whole "police file". But there is no record of such request being made endorsed on the charge document. In any case, even if such request were made, Insp. Siene was not the charging authority and he was not expected to have the whole police file with him to be able to serve the "police file"on the applicant upon his request . Also section 23(3)(b) and the endorsement on the charge document speaks of specific "reports", not the police file. So to begin with, the applicant was vague about what he was asking for. As expected, Insp. Siene could in all probability not have the whole "police file" with him. Furthermore, if that day the applicant wanted those reports, he should have been specific and a proper request made before he submitted his reply. If he had asked for the reports but had not received them and he was disadvantaged in preparing his reply, then he should have said so in his reply but he did not. In my view, the reply is a comprehensive one and an informed one too, and shows no sign of it being prepared by a disadvantaged person. For these reasons, I dismiss ground (C).
In relation to ground (D), it is submitted the lack of evidence is shown by the fact that police did not lay any criminal charge against the applicant and even if he was charged, a defence of accident was available to the accused.
In my view, there was overwhelming evidence to support a finding that, notwithstanding the accused’s explanation of an accident and a belief that he was pursuing a criminal suspect on the run in a stolen car, the direct targeting of the vehicles front seat area was unacceptable. The investigations revealed that the applicant had reasons to believe that the vehicle was a Police CID vehicle, and that he fired the shots directly at it without any corresponding threat or shots being fired from the other vehicle.
The Commissioner weighed up numerous reports and witness statements on the police side and statements of witnesses for the applicant’s side and determined that the applicant’s explanation should not be accepted. It is not for this Court to question the Commissioner’s judgment in these operational matters and decide whether the Commissioner came to the right or wrong decision on the evidence. The fact that the applicant was not charged with a criminal offence, is not significant because that is the whole purpose of S.20(1)(ay) charge. That is, any offence falling short of a clear indictable offence, may be dealt with at a disciplinary level.
In relation to ground (F), Mr. Ousi points to a number of aspects of the evidence to support his submission that certain hearsay evidence and opinion evidence were taken into account to make a finding of guilt. In my view, the Commissioner’s determination is not a formal Court hearing which is required to adhere to technical rules of evidence. The Commissioner received abundant information and reports to form a judgment in an operational matter, and I see no proper basis to interfere with his judgment.
In relation to ground (H), I also dismiss the ground of "unreasonableness" of the finding of guilt for the same reasons given above.
Grounds Challenging Penalty:
In relation to the grounds relating to penalty, Mr. Ousi’s argument is that the respondent did not take into account the applicant’s reply on penalty.
In the charge paper, the applicant was reminded that in the event he were found guilty, his reply should contain his submissions on penalty. But it is clear that his reply on penalty was submitted outside the statutory time limit of 14 days, the 14 days having expired on 9/3/99. In his initial reply, he did not make any submissions on penalty, but he did so by a letter dated 17/3/99.
In my view, it is fair to say that the applicant was fully aware of the 14 days statutory time limit for submitting his reply on guilt and if he so wished, together with his reply on penalty. But he chose not to wait for the Commissioner’s decision on guilt before he could make a reply on penalty, if found guilty. Instead he chose to address on penalty soon after making his reply to the charge and so he was bound by the statutory time of 14 days within which he was required to submit his reply on penalty as well. It may be that the Commissioner’s office did or did not receive this late reply. There is no proof of whether or not he received it. Be that as it may, even if the Commissioner had received the applicant’s late submission on penalty, the Commissioner was under no legal obligation to consider a submission on penalty made outside the statutory time limit.
Mr. Ousi then goes on to submit that the applicant was not given an opportunity to be heard on penalty and he refers to my decision in Philip Kamo v Police Commissioner N2084 (2001).
In my view however, this is a fresh ground of review, which was not raised in the statement in support. As the statement was not sought to be amended at the hearing, to add this ground, it is not open for the applicant to raise it now: see Order 16 rule 6(1) – (2). In any case, the applicant exercised his right of reply in response to the advice contained in the charge paper, but he did so late and therefore invalid. The present case can be distinguished from Philip Kamo’s case in that in the latter case, there was no endorsement on the charge paper informing the member charged of his right to reply on penalty if he wished to.
Mr. Ousi goes on to submit that the Commissioner decided against the recommendation of the applicant’s two immediate supervisors of a monetary fine instead of dismissal.
The Commissioner’s reasons on penalty are as follows:
"The reasons why I believe that this penalty should be imposed are as follows:-
The nature and seriousness of the offence. The deterrent effect it will have on other members of the Constabulary.
Your behaviour has seriously breached Constabulary standards and community expectations of the conduct of a member of the Police Force.
If this type of behaviour is allowed to continue, the discipline of the Force will be severely imparted upon.
The serious disciplinary charge is sustained, and by way of penalty, you are dismissed from the Constabulary, effective from the date of service of the penalty awarded."
On the face of the reasons given by the Commissioner on penalty, the offence for which the applicant was found guilty involving the use of a firearm was on a sensitive operational matter in which the Commissioner was in a far better position than me, to view the seriousness of the offence and impose a penalty which fitted the offence. Whilst it is true that the applicant’s two immediate superiors who had first-hand knowledge of the circumstances of the offence and the applicant’s personal circumstances, recommended a fine, there was overwhelming support from Senior Officers who compiled various reports for the penalty of dismissal. I am in no position to decide which of these opposing recommendations were right or appropriate in the circumstances. The Commissioner was in as better position to decide the issue. The Commissioner obviously did some weighing up and he arrived at the decision he did and it is not my function to re-evaluate the material and the recommendations with a view to substituting my own judgment on penalty. In the circumstances, I must pay greater deference to the Commissioner’s judgment on this aspect.
For all the above reasons, I dismiss the application. I make no order as to costs.
________________________________________________________________________
Lawyer for the applicant : Warner Shand
Lawyer for the respondent : Police Legal Section
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