Talopa v Police Commissioner [2002] PGNC 47; N2302 (1 November 2002)

N2302

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS No. 4 1997

BETWEEN:

HENRY TALOPA

Plaintiff

AND:

THE POLICE COMMISSIONER
1st Defendant

AND:

IVO CAPO
2nd Defendant

AND:

THE STATE
3rd Defendant

Waigani: Kapi DCJ.
14th October, 1st November 2002

JUDICIAL REVIEW – Review of Police Appeal Tribunal – Oral decision without any reasons for decision – Whether the matter should be remitted for rehearing.

JUDICIAL REVIEW – Delay in instituting and prosecuting judicial review – consideration of O 16 r 4.

Counsel:
P. Ame for the plaintiff
J. Kumura with J. Lilih for the defendants

1st November 2002

This is an application for judicial review under O 16 of the National Court Rules (Rules). The decision sought to be reviewed is the decision of the Police Appeal Tribunal (Tribunal) exercising review powers under Part IV Div. 7 Subdiv. D of the Police Force Act (Cap 65) (Old Act).

The Old Act was repealed by the Police Act 1998 (New Act) and under s 27, the decision of the Police Commissioner is final. However, any decision made by the Tribunal is valid as if it was made under the New Act (s 157 (2) of the New Act). The review of the decision of the Police Appeals Tribunal will be considered within the context of the Old Act (see s 157 (3) of the New Act.

The background to this review may be summarised as follows. The plaintiff was a policeman occupying the rank of constable and was stationed at McGregor Barracks in the National Capital District. He was charged with 9 disciplinary offences under s 43 (g) of the Old Act. He was found guilty of 8 offences and the Police Commissioner dismissed him form the Police Force to be effective from 15th September 1993.

Subsequently, the plaintiff appealed to the Tribunal against the findings of guilt on the ground of plea of innocence as well as against the severity of penalty. The Tribunal on 5th November 1994 dismissed the appeal in an oral decision. There is no record of any reasons for decision. The plaintiff is seeking a judicial review of the decision of the Tribunal.

Leave for judicial review was granted by the National Court on 27th March 1997. The substantive matter was not listed for hearing immediately following the grant of leave. The record reveals that the present lawyers for the plaintiff filed a Notice to cease to act on 30th November 1998 but subsequently received further instructions to act again in this matter and filed Notice of Appearance on 2nd April 1999. Counsel for the plaintiff explained that no action was taken earlier to prosecute the review because the plaintiff had no funds. This was the reason the lawyers ceased to act

The matter came before Sakora J for hearing only on 18th February 2002. The long period of delay may become a relevant factor in considering whether the relief sought ought be granted.

It is necessary at this stage to set out the relief sought and the grounds for judicial review. The originating summons was filed on 17th January 1997 and seeks the following orders:

"1. An order in the nature of a Certiorari to bring up and quash the decision of the First Defendant dated the 15th September 1993 to terminate the Plaintiff as a Police Constable of the Royal Papua New Guinea Constabulary.

2. A Declaration that the decision of the First Defendant dated the 15th September 1993, purporting to terminate the Plaintiff was unlawful and or irregular.
   
3. A declaration that the Plaintiff’s reply to the charges were not heard or that the First Defendant was biased in his deliberation and decision.
   
4. A declaration that the actions of Defendant was in breach of the principles of Natural Justice.
   
5. An order that the Plaintiff be given peaceful occupation of his position as Constable of the Royal Papua New Guinea Constabulary of alternatively a less-severe penalty be imposed.
   
6. An order that the Plaintiff be forthwith paid all his salaries and wages and all other lost entitlements from the effective date of termination being 15th September 1993.
   
7. A declaration that any purported review or decision by then Police Appeal/Review Tribunal and decision or order then in be null and void."
   

The summons seeks orders against the Police Commissioner in paragraphs 1-5. However, under the Old Act, the plaintiff had a right to appeal to the Tribunal to review the decision of the Police Commissioner. In fact he did appeal and the Tribunal dismissed his appeal. In the circumstances, he could not seek judicial review of the decision of the Police Commissioner but he could seek a review of the Tribunal’s decision. In fact he seeks this order in paragraph 7 of the summons.

The nature of the review is clarified by notice of motion filed on behalf of the plaintiff seeking leave for judicial review in respect of the decision by Mr Ivo Capo sitting as the Police Appeal Tribunal. The nature of the judicial review is further clarified in the Statement filed in accordance with O 16 r 3 (2) of the Rules. In paragraph 2 of the Statement the plaintiff seeks the following relief:

"(a) A declaration that the decision of the Police Commissioner to lay eight (8) charges and dismiss him seven (7) times from the Police Force under Section 43 (g) of the Police Force Act, Chapter 65 is null and void.

(b) An order in the nature of certiorari to remove or order the removal of a verbal decision by Iva Capo on the 5th August 1994 that, the Appeal by the Plaintiff be dismissed.

(c) A declaration that the refusal or otherwise the ignorance of the Second Defendant to furnish the tribunal’s decision to the plaintiff is a miscarriage of justice.

(d) An order in the nature of a mandamus that the Second Defendant furnish his reasons for the decision to uphold the tribunal’s decision within fourteen (14) days of the order."

When the matter came before Sakora J on 18th February 2002, the plaintiff abandoned the relief sought in paragraph 2 (a). I can understand why this order was abandoned because the decision of the Police Commissioner was already the subject of appeal to the Tribunal and the decision had been handed down.

Sakora J granted the relief sought in paragraph 2 (c) and (d) of the Statement. The only outstanding relief sought is in respect of paragraph 2 (b) of the Statement which seeks to quash the decision of the Tribunal in dismissing the appeal. This is the issue which has come up before me for determination.

The Tribunal has failed to furnish its reasons for decision as ordered by Sakora J. The question is, whether, this of itself is sufficient to quash the decision of the Tribunal and remit the matter back to the Tribunal for rehearing.

In Director of District Administration v Methodist Overseas Mission Trust Association; In re Vunagamata [1971-72] PNGLR 17 the Chief Commissioner for Land Titles Commission gave reasons for decision in an application under the New Guinea Land Titles Restoration Ordinance 1951-1963. In an appeal to the then Supreme Court (now the National Court), the appellant raised an error of law in applying s 9 and s 10 of New Guinea Land Restoration Ordinance. In support of this ground, counsel for the appellant argued that because the Chief Commissioner gave no reasons for his decision, this is enough to require a rehearing. On page 20 Prentice J (as he then was) said:

"No authority was urged in support of the proposition, and with all respect to his able argument, I find myself unwilling to accept the proposition. It seems to me that if I (sitting as an appellate court) came to the conclusion that the Chief Commissioner’s order could be supported by the application of either one or a combination of these sections then it should not, on this ground, be set aside. A respondent can support the judgment at the hearing of an appeal upon any legal ground appearing in the evidence."

In Lee v Lee [1973] PNGLR 89, the Court was concerned with an appeal from a decision of the District Court. The plaintiff in the District Court claimed for money said to have been loaned to the defendant whereas the defendant alleged the money was a gift. The District Court found in favour of the plaintiff and the defendant appealed to the then Supreme Court. Reasons for decision were in fact given but it was not recorded and no record could be supplied to the Court. Kelly J. addressed the issue in the following way:

"I must say that I consider that the magistrate when he gave his reasons should have made a sufficient note of them so that compliance with s. 230 (1) (b) of the Ordinance would have been possible and the unfortunate situation which has developed here could thereby have been avoided. In this case the depositions show that there was a conflict of evidence on a most material matter in the manner submitted by counsel for the respondent this may not have necessarily been so; the fact is that I just do not know the basis on which he arrived at the decision which he did.

The result is that I feel that I am compelled in the interests of justice to remit this matter for rehearing before the District Court."

In Bougainville Copper Limited and Masu Levi v Mathew Liu [1978] PNGLR 221 in an appeal to the National Court, the District Court provided a report but failed to address the relevant grounds of appeal. The Court concluded that the learned magistrate refused to make a finding for Masai Levi when the weight of the evidence indicated that the respondent was negligent in attempting to overtake a motor vehicle at a busy cross-roads and in failing to observe a signal to turn to the right. In the circumstances, the National Court allowed the appeal and remitted the matter back to the District Court for rehearing before a different magistrate.

In another case Anton Angra & Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303 no reasons for decision were provided by the District Court. Doherty J followed the decisions in Lee v Lee (supra) and Bougainville Copper & Masai Levi v Liu (supra).

Whether a case is remitted back for a rehearing for lack of reasons depends on the nature of the grounds of review. If the ground raises relate to findings of disputed facts (Lee v Lee (supra)), or a matter of procedure in respect of hearing witnesses (Anton Angra v Ina (supra)), and there is no way the reviewing tribunal can work out the basis of the decision, the decision may be quashed and the matter may be remitted back for rehearing. Where the ground of appeal does not affect the decision of the lower court in that it may be supported on some other ground, the lack of reasons for decision will not of itself be sufficient to remit the matter back for rehearing (Director of District Administration v Methodist Overseas Mission Trust Association (supra)).

In the present case, I am dealing with a judicial review of the decision of the Tribunal. However, the principles set out in the above-named cases are applicable so far as the lack of reasons for decision of the Tribunal are not made available. The decision of the Tribunal in the present case related to appeal on the grounds of innocence and severity of the penalty.

The grounds of review set out in the Statement do not relate to questions of innocence or severity of sentence as such. The grounds of review are as follows:

"(a) There were different police personnel that laid different charges against the plaintiff for alleged incidents which were from 9/4/92 to 15/4/93 a period of one year.

(b) The nine (9) charges were all heard together that the Commissioner thus aggravating the seriousness of each alleged charge.

(c) Although charges laid, the penalty of dismissal for the eight (8) was made simultaneously thus the decision was unreasonable.

(d) The penalty for the charges which was laid at different dates was made at one single day thus, shows bias on the part of the Commissioner"

The principles on judicial review are now well settled. In the leading case of Kekedo v Burns Phillip [1988-89] PNGLR 122 the Supreme Court held that judicial review is not concerned with the decision but with decision-making process. At page 124, I applied the principles in the following term:

"4. The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.

5. The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion, Judicial review is concerned not with the decision but with the decision-making process."
   

These principles have been followed in numerous cases. The grounds of review are limited.

In the present case, counsel for the plaintiff failed to satisfy me that there is any substance in the grounds of review. I am unable to appreciate the basis for grounds (a) – (c). These grounds appear to suggest that the procedures referred to in the said grounds may be contrary to law and therefore invalid. I invited counsel for the plaintiff to address me on these issues but he failed to do so. He made no reference to any authority or statutory provision to support any of the grounds. I am not satisfied that these grounds have any substance.

The only ground that raises a reviewable ground is ground (d) in respect of bias. However, counsel for the plaintiff failed to make any submissions in support of this ground. I am not satisfied that the circumstances alleged in this ground amount to bias.

In the result I would dismiss all the grounds as unmeritorious.

Even if there was any merit in the grounds, I would not in the exercise of my discretion grant the relief sought on the ground that there has been an undue delay in instituting and prosecuting the review. The Plaintiff seeks an order in the nature of certiorari and the application was made well outside the period of 4 months (see O 16 r 4(2) of the Rules. The Tribunal handed down its decision on 5th August 1994. The application for judicial review was filed on 17th July 1997. Furthermore it took several more years before this review has come before me for determination. Grant of relief in these circumstances would be detrimental to good administration.

For the above reasons, I would dismiss the application for judicial review with costs to the defendants.
_____________________________________________________________________
Lawyers for the Plaintiff : AME LAWYERS
Lawyer for the Defendants : SOLICITOR-GENERAL