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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO: 135 OF 2000
MATHEW TOTORI
Plaintiff
AND:
BOB NENTA, POLICE COMMISSIONER
First Defendant
AND:
DEPARTMENT OF POLICE
Second Defendant
KOKOPO: Lenalia, J.
2002: 13 Sept. and 28 Feb. 2003
ADMINISTRATIVE LAW – Judicial Review – Judicial review of administrative action – Dismissal from Police Force – Disciplinary charges – Disciplinary proceedings against a member of Police Force – Determination resulting in guilty findings – Police Force Act, Ch. No. 65.
JUDICIAL REVIEW – Serious disciplinary offences – Procedure taken in laying, serving charges and documents in support of charge or charges laid – Charges served – Police.
JUDICIAL REVIEW – Principles of natural justice – What is the duty to act fairly – Whether or not there is requirement to cross-examine witness or witnesses – Doctrine of ultra vires – Orders made ultra vires are out of jurisdiction and void –
JUDICIAL REVIEW – Administrative law – Quasi judicial functions – Administrative powers ought to be exercised only within their true limits – Governance of public functions
The Court in these proceedings is asked to remove to it and quash several decisions made by the then Commissioner of Police on which the First Defendant after having found the Plaintiff guilty, demoted him to a lower rank on the first charge and on the second charge, the Plaintiff was dismissed from the Police Force. Both charges were serious charges and both decisions were made to be effective from 20th May 1996.
CASES CITED:
The following cases are cited:
Kekedo -v- Burns Philip (Png) Ltd & Others [1988-89] PNGLR
Tandali -v- The State [1990] PNGLR 170
Yaku -v- The State [1984] PNGLR 254
R -v- Rymes [1853] EngR 330; (1953) 175 E.R. 573
The State -v- Tanedo [1975] PNGLR 395
Selly Farapo -v- The Commissioner of Police [1996] PNGLR 17
Thomas Kavali -v- Thomas Hoihoi (1984) N472 (M)
Falsher -v- Iambaki Okuk [1980] PNGLR 101
Ningints -v- Tokam [1993] PNGLR 66
Counsel:
W. Donald, for the Plaintiffs
No for or by the Defendants
28 February 2003
LENALIA, J. The Plaintiff being a former Policeman in the rank of an Inspector was granted leave pursuant to Order 16 r3 of the National Court Rules on 12th February, 2001. Leave being granted the Plaintiff seeks the following orders.
The Plaintiff to the date of his dismissal had been a policeman for almost 28 years. He had worked his way up to the rank he was dismissed from being an Inspector. The Plaintiff says, in his whole career with the Papua New Guinea Constabulary, he had never been charged and he had maintained an unblemished and distinguished record and career.
Being dismissed from the Papua New Guinea Constabulary, the Plaintiff now seeks orders for certiorari to remove into this Court and for this Court to quash the two decisions made against him by the First Defendant in May 20th 1996 from which decisions the Plaintiff was first demoted from the rank of Inspector to six levels below his rank to that of a Constable. That was the penalty for the first charge. The penalty for the second charge was dismissal from the Police Force.
The two serious disciplinary charges laid against the Plaintiff were brought pursuant to s. 43 (g) of the Police Force Act, Ch. No. 65. A disciplinary offence is defined by s. 43 (a) to (h) in the following words:
"43. Disciplinary offences.
A member of the Regular Constabulary Branch who –
(a) commits a breach of this Act; or
(b) wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it, or
(c) is negligent or careless in the discharge of his duties; or
(d) is inefficient or incompetent from causes within his own control; or
(e) uses intoxicating liquors or drugs to excess, or
(f) solicits or accepts a fee, reward, gratuity or gift in connexion with the discharge of his official duties (other than his official remuneration); or
(g) having made or subscribed an oath or affirmation in the form in Schedule 1, does or says anything in violation of that oath or affirmation,
is guilty of a disciplinary offence and is liable to be dealt with and punished under this Division".
Both charges were serious disciplinary offences and the first of which related to allegations that the Plaintiff between 23rd day of September 1994 and 6th of April in 1995, he in his official capacity or otherwise looted and converted a vehicle an Hyundai Reg. No. RAB. 454 white in colour for or to his own private use and thereafter "pooled" or took the said vehicle to Wairiki village and to his official residence at Tomaringa Police Barracks.
Further, that during the time within which the vehicle was pooled at the Plaintiff official residence at Tomaringa Police Barracks, the Plaintiff allowed his son or his sons to use the said vehicle for test drives at the Tomaringa oval before the owner of that vehicle come to remove the vehicle. The owner of the vehicle in issue on the first charge was Mr. Bluet Paul Faiz.
The second charge related to an incident on or about Wednesday 21st September 1994, between Rabaul and Tomaringa Barracks, the Plaintiff in his official capacity or otherwise looted and converted a quantity of items including two large radio cassette players, two remote controllers, children’s toy cars, three video decks, a car stereo and many other items.
It was alleged in that second charge further that, upon arrival at Tomaringa Police Barracks, the aforementioned items were subsequently transferred from the Police vehicle used to transport those looted items onto the Plaintiff’s in-laws yellow open back utility vehicle and such properties mentioned in the second charge were driven away to Wairiki village. As further alleged, he was accompanied by his wife Mrs. Theresia Totori. That the above properties were stored up in a private bush material house and were then kept for his own private use.
After the First Defendant had laid the two charges, the Plaintiff was served with the charges on 16 August 1995. The Plaintiff denied the substance of the two charges. On his reply to the then Police Commissioner on the first charge, the Plaintiff admitted that although he had actually taken the vehicle in issue to Wairiki village, he had pooled the vehicle there for safe-keeping because the Police car park at the Tomaringa Barracks was no long safe due to police and army personnel interfering and tempering with motor vehicles parked at the Police Barracks car park.
The Plaintiff’s evidence is he never concealed the vehicle or even kept it secret with the intention of converting it for his own private use. He says he explained the situation to his wife’s relatives, village councillors and church elders. He even told his colleague officers and the Officer-in-Charge of the Motor Traffic Division in the Province. Despite these named persons, no evidence came from anyone of them.
In relation to the second charge, the Plaintiff’s reply even shows that, the Plaintiff partially admitted to taking or in the words in the wording of the second charge "looted" children’s toys and other items but did not include the two radio cassette players with two remote controllers, two video decks and other items. The Plaintiff’s admission also related to a quantity of foodstuff and further a quantity of soft drinks.
It is evident from the foregoing facts and evidence put by the Plaintiff that he denied both charges and as well he replied comprehensively to all allegations put against him.
After having considered the Plaintiff’s replies to both charges, the First Defendant found the Plaintiff guilty on both disciplinary charges and on the first charge, the Plaintiff was demoted to the rank of a Constable on a salary point F.0.17. On the second charge the penalty was that the Plaintiff was to be dismissed and was in fact dismissed from the Police Force. Both decisions were made effective as from 20th May 1996.
The decisions and penalties of the two charges were conveyed to the Plaintiff and served on him 27th May 1996. After having learnt of the severity of the respective penalties, the Plaintiff gave Notice to the Police Commissioner about his intention to appeal against the severity of the penalties imposed on him. He did this the day after he was served with the notice of penalties.
Then on 12th June 1996, the First Defendant wrote back to the Plaintiff advising him that his appeal would not be considered. The reason for this was that the old Police Appeal Tribunal provided for under ss. 47 and 48 of the Police Force Act were no longer in existence. In fact amendment No. 14 of 1993, the Police Force (Amendment) Act 1993 repealed those provisions and the amendment came into effect on 20th May 1993, well before the Plaintiff was charged.
In that same letter, the First Defendant suggested by way of advice to the Plaintiff that, if he wanted to peruse the appeal, he should do that by way of making an application for judicial review before the National Court. Thereafter the Plaintiff started to look for lawyers enquiring with a number of them including seeking assistance from the President of the Police Association. He eventually engaged KUBAK Lawyers.
It took a very long time for the Plaintiff to commence these proceedings. He explains this in his evidence. Eventually, the Plaintiff filed these proceedings on 22nd March 2000. The Secretary to the Department of Attorney General was given notice of leave to apply for judicial review on a notice dated 17th March 2000. The Statement filed pursuant to O.16 r.3 Sub-rule (2) was filed on the same date. All documents were filed on the same date together with the Notice of Motion seeking orders in terms of that Notice.
Deponent Tigalo Guien filed an affidavit of service on 6th July 2000 saying she effected service of these proceedings on 3rd July 2000. That such service was effected on Linda Wonuahli who was the then Executive Secretary to the Attorney General. By that time there had been a change of lawyers from KUBAK Lawyers to NAMALIU Lawyers of which the deponent was then employed.
It is noted from the documents that a Notice of Motion was filed on 27th July 2000, by Mr. Kamura, the then Acting Solicitor General being counsel in absence for the two Defendants. In that Notice, he sought three declarations. The first of the orders they sought was for a declaration that since no mandatory notice was given to the State as required by s. 5 of the Claims By and Against the State Act, the proceedings should be dismissed and due to the nature of the proceedings being a judicial review on which the State is a party, there being no notice, the proceedings were and are void and invalid.
I feel, I am obligated to canvas the evidence put by the defence since it had been filed and seeing, no objection was taken by the counsel for the Plaintiff. In any event, the Defence Notice was never argued and the evidence there put would have been appropriately decided at the time their application was set for hearing.
There was evidence from three witnesses from the Attorney General’s Office, that of Ms. Linda Wonuahli, Ms. Kisolel Kiapin and that of Mr. Joseph Kais. All deponents reposed to the fact that the Plaintiff did not comply with serving on the State the required notice required pursuant to s.5 (2) of the Claims By and Against the State Act 1996.
As alluded to, it appears that the State’s Notice was never moved and despite these irregularities the National Court perhaps due to the State lawyers inability to file a defence, the Plaintiff went ahead to apply for Leave and eventually was granted on 12th of February, 2001. The Plaintiff’s lawyers sent out notices to set down for trial on 22nd November 2001.
I have noted on the file several correspondences between the Plaintiff’s lawyers and the Office of the Attorney General, which show that the parties were at longer-heads on the issues of the required notice not being served on the Office of the Attorney General. As appears the case was not defended and was then listed before me for trial on 13th of September 2002.
The Law
This Court has discretionary power to either grant or refuse relief arising at the two different stages of judicial review pursuant to Order 16 of the National Court Rules 1983. First at the initial stages where an application for leave is being made and secondly at the substantive hearing see Order 16 rr 5, 6 & 7 of the National Court Rules.
First, s. 59 of the Constitution specifies that the principles of natural justice are the rules of the underlying how to be developed for the control of judicial and administrative proceedings. On the same token, the common law rules of natural justice were adopted by Schedule 2.2 of the Constitution as from 16th September 1975 at Independence Day.
It is an inevitable consequence of our concept of governance dealing with the, separation of powers that the Public Service, Statutory bodies, government departments and all organizations both public and private, will have their departmental heads or managers make decisions. Thus as often been stated, judicial review is not a second appeal process. It is a fundamental different operation. Instead of substituting its own decision from the facts presented before it for that of the body which made the decision, the Court on review is only concerned with the question of whether or not the act or order in issue should be allowed to stand or not.
Judicial review therefore primarily means review and is based on the fundamental principle inherent throughout common law jurisdictions that powers can be validly exercised only within their true limits and ought to be done according to the requirement of legislation governing such bodies. See "Administrative Law" by Sir William Wade at 37 – 39.
In this jurisdiction the volume of determinations on the issue is quite substantial. In the case of Kekedo -v- Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122, the Supreme Court said that, the purpose of judicial review is not to examine the subordinate authority’s decision with the view to substituting its own decision or opinion. It is not concerned with the decision but with the decision making process. It has also been said that the Court’s powers of review is only available to consider the validity of a decision of a tribunal and to interfere with that decision only if it can be shown from the records that such decision was made unlawful or was unfair or made contrary to the principles of natural justice: Tandali -v- The State [1990] PNGLR 170.
Judicial review guards against the doctrine of "ultra vires" or acting outside the limits and bounds of a given set of rules or principles. By the principles of natural justice it is thought that where a tribunal or authority exceeds its powers or where there was an error on the face of the records or where there has been a breach of the rules of natural justice it is said that it amounts to substantial miscarriage of justice. In brief, the principles enunciated over the past years can be summarised into the following categories.
(1) A tribunal must have exceeded its powers; or
(2) Where there is an error on the face of the records; or
(3) Where there has been breach of the rules of natural justice.
The result of anyone of the above factors amount to substantial miscarriage of justice.
Applying these principles to the material facts put before me where does the Plaintiff’s claim fall into. The Plaintiff in his pleadings and evidence raises a number of issues as well as by the counsel’s abstract of submissions. Prior to addressing those issues, let the Court say that the Plaintiff in these proceedings was charged with disgraceful conduct of two serious disciplinary offences which in my view calls for an objective assessment of the Plaintiff’s behaviour and on the strength of the case of Yaku -v- Commissioner of Police [1980] PNGLR 27, police disciplinary proceedings are not criminal proceedings within the meaning of the Criminal Code.
The first issue raised in submission by Mr. Donald of counsel for the Plaintiff relates to the two charges being served on the Plaintiff some three occasions. I suppose the reasons for that lead me to the second argument raised both by the Plaintiff’s evidence and the counsel’s submissions that in the first instance the two charges were laid pursuant to s. 43 (4) of the Police Force Act Ch. No. 65 which proviso did not exist.
One ought to understand the Criminal process and the processes taken administratively in taking any action to be able to perceive and understand the reasons why on the first two occasions, the charges served on the Plaintiff were cited to be laid pursuant to s. 43 (4) of the Police Force Act. On the face of it, the Commissioner could not proceed with the charges as originally laid as they would have been defective.
Of course they had to be amended to an appropriate section to accommodate for the charges as well as the right section in law for which the Plaintiff was intended to be charged, under. That section being, s. 43 (g) of the Act.
Quite obviously, administratively and as a matter of condition precedent, the First Defendant in his capacity as the Commissioner of Police or any officer under his authority and under his delegated powers were entitled in law to make amendments to the two charges, otherwise the two Defendants would have proceeded without any legal basis and would have been ultra vires the definition of the legislation concern and without legal legs to stand on.
Civilly Order 8 rr. 50 to 59 provide for an amendment to be done for purposes of determining the real issues or questions raised by or otherwise depending on
the proceedings or for purposes of correcting any defect or error in the proceedings. Amendments are incorporated also to avoid multiplicity
of proceedings. In the Criminal track, amendment is allowable by s. 535 of the Criminal Code on which case law says amendments should not be made after the counsel for the defence has addressed the jury: Simili Kara -v- The State [1984] PNGLR 254, see also R –v- Rymes [1853] EngR 330; (1953) 175 ER 573. The State -v- Tanedo [1975] PNGLR 395.
I conclude that there is no merit on the first issue raised in relation to amendments.
The next issue raised in evidence and submissions is that after being found guilty of the two charges, on the first charge, the Plaintiff was demoted from the rank of Inspector right down to that of a Constable. The Plaintiff argues in his evidence that, this being the case was in breach of the "Police Force Code of Ethics". The Court was not presented with a copy of this document as evidence of any principles set by such rules. As it turned out, the Plaintiff was demoted six ranks down to the rank of an ordinary Constable.
Where a member of the Regular Constabulary Branch is charged or has committed a disciplinary offence, the procedure adopted in dealing with serious disciplinary offences is defined by s. 46 of the Police Force Act. The Commissioner of Police is required to consider all reports concerned and where he considers that a charge has been sustained he then imposes a penalty pursuant to s. 46 (4)(a) – (h) of the Act. A reduction in rank imposed on a member under s. 46 (4)(c) of the Act in my view can be to any rank below his rank and the Act simply provides that the Commissioner may reduce the member to a rank having a lower classification and to a salary point within that classification.
As can be seen from that section that there is no specific mention as to whether or not the affected member should be demoted to a rank below his or her rank prior to committing the serious disciplinary charge or charges in the case of the Plaintiff. In absence of any authority suggesting that where a member is reduced in rank and salary, he should be demoted to a rank below his substantive rank before the offence arose, it is my view that it is open to the Police Commissioner to reduce a member of the Regular Constabulary Branch to any rank having a lower classification. This action must be seen as a balancing act on the part of the Police Commissioner or an officer under him to make the punishment fit the serious disciplinary charge or charges being laid and charged against an affected member.
Subsection (4)(a) of the Act provide as follows:
"(4) If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the member charged and any further report that he thinks necessary, the Commissioner is of opinion that the charge has been sustained, he may-
(c) reduce the member to a rank having a lower classification, and to a salary within that classification; or".
My view is this, the current position in law and due to the serious nature of any serious disciplinary charges brought against a member, it is open to the Commissioner to reduce a member to any ranks lower than his or her substantive rank. The second argument discussed above has no merit.
The third argument raise by the Plaintiff in his evidence and by his counsel submissions is that questioning the procedure taken by the First Defendant in laying the charges to the time the Plaintiff replied. This point seems to be the main thrust of these proceedings. Administrative law deals with control over powers exercised by public authorities. The functions of those administrative bodies and those exercising quasi, judicial powers as the case of Commissioner in these proceedings, their functions are varied and the law concerning them are extensive. The primary purpose of judicial review is to keep the powers of those bodies within their legal bounds so as to protect the citizen against their abuse.
The Police Force Act under which the Plaintiff was disciplined sets out what is required of the Commissioner of Police when taking action against a member of the Police Force. The Commissioner has powers to determine and discipline a member for offences laid pursuant to ss. 43 (a) to (h) and 46 of the Act. Disciplinary offences are defined by s. 43 (a) – (h) and say what are those offences and by s. 45 of the Act, the Commissioner of Police can impose any penalty provided there and it is in his discretion to impose any penalty including dismissal. Offences of lesser nature and degree are classified as minor offences which penalties are provided for under s. 44 whilst serious disciplinary charges, the procedures are set by s. 46 of the Act.
The Plaintiff was demoted from his substantive rank of an Inspector to a Constable. I suppose that could not have made a lot of difference since the penalty for the second offence was dismissal. The procedure in dealing with serious disciplinary offences the same procedures, are followed. The Commissioner of Police receives a complaint being laid and filed against a member. That complaint may be, accompanied by some other reports or evidences. After considering such complaints he then decides what charges would be laid. He or a commissioned officer as required by s.44 of the Act serves the charge on the member concerned by the Officer-in-Charge of the Police Station where the member is based. Such member is required to answer to the charge or charges, as was the case in the current proceedings.
On that reply pursuant to s. 46 (3)(b)(i)(ii) of the Act, a member can either admit to or deny the charge or charges as the case may be but such reply ought to be done within 14 days. From my reading of s. 43 (a)(b)(i)(ii) of the Act a member when replying to a charge, ought to include a statement either admitting or denying the charge and he should include any supporting evidence to support his indication either of his guilt or innocence. This would be more so where a member indicates his innocence. The Plaintiff did not file and any supporting evidence to substantiate his allegations of innocence.
The National Court has at least tried to set down the procedure which should be taken and adopted by the Police Commissioner or a commissioned officer. In Selly Farapo -v- The Commissioner of Police [1996] PNGLR 17 my brother Akuram, A.J. (as he then was) attempted to set out the procedure which should be taken when a member of the Police Force is charged with a disciplinary charge. They include:
(a) Serve the charge or charges on the member
(b) Obtain a reply
(c) Obtain evidence from all parties affected
(d) Give to the member charge copies together with statement of witnesses
(e) Statements of the member charge should be also served on the other parties.
(f) The Commissioner is then to decide according to all facts presented before him.
I beg to partially differ from what His Honour has set out above in the procedure to be adopted due to two reasons. First, the proposed procedure is not in order of the manner on which the steps are set out in that list. Secondly, even if there was a rigid set of procedure, it ought to accommodate the intention of ss. 44 & 46 of the Police Force Act. The reason for that is because, the Police Force Act sets out its own procedures in the sections cited.
I am reminded here that, the proceedings before me is a judicial review which is only concerned with the "decision making process". The Supreme Court in Kekedo -v- Burns Philips (supra) did not define what is the "decision making process" but the same Court said in Tandali -v- The State [1990] PNGLR 170 where it was stated that, the Court’s powers of judicial review are available to consider the validity of a decision of a tribunal and to interfere with such decision only if such decision was shown to be made unlawful, unfair or contrary to the principles of natural justice.
Counsel argues in submission that there may have been real likelihood of bias in the manner under which the investigators proceeded in serving the two charges upon the Plaintiff without any explanation and without any basis for doing so, and that the Plaintiff was then exposed to the reasonable suspicion that the investigators had pre-empted the outcome of the disciplinary proceedings. They cited the case of Thomas Kavali -v- Thomas Hoihoi (1984) N472 (M) for the proposition that the Commissioner did not give any reasons for his findings.
The above argument is in plural form and I find that on the first leg of their argument on bias, there is no merit of that contention as there is no evidence to support the issue of bias. The second leg of the contention of bias and lack of service of essential documents supporting the charges leads me to the next part of my discussion being the "principles of natural justice".
What are the "principles of natural justice" then. It is this rule or principle, which say that first a person affected by a decision has a right to be heard and he must be heard fairly. A person affected must be heard before a decision is taken against him. In order for the person affected to be fairly heard, adequate notice ought to be given him, see David Faulkes on "Administrative Law" Fifth Edition. Ch. 8.
It has been held that an officer cannot be dismissed without first telling him what is alleged against him and to hear his defence any explanations he may have and it is essential that reasons for a decision should be given to the person affected. Falsher –v- Iambaki Okuk [1980] PNGLR 101. These principles were subsequently approved by the Supreme Court in the same case of Okuk -v- Falsher [1980] PNGLR 274.
Policemen and Policewomen in this jurisdiction are servants of the State whose positions and their terms of employment are defined by the Police Force Act. When they are dismissed or demoted, they should be informed of such decisions. Almost invariably a member affected will know the reasons why he or she has been dismissed or demoted because he or she was the cause of whatever charges were put against them. The law requires that they ought to be given reasons: Nigints -v- Tokam [1993] PNGLR 66.
The allegation put in paragraph 18 of the counsel submission that there was no explanation given to the Plaintiff in relation to what documents and evidences were relied on reaching the decision or findings is in my view questions the decision making process. The Police Force Act does not specifically provide for reasons to be provided to an affected member, the requirement under the principle of natural justice is that, a member who is affected by a decision ought to be given an opportunity to be heard and if he is to be dismissed or demoted, he or she must be provided with the reasons why the authority came to such a conclusion. I am of the view the Plaintiff was given sufficient notice of the charges put against him and he appropriately replied.
Having come this far in this discussion, I return now to the requirement under s. 5 (2) of Claims By And Against The State Act of 1996. The wording of that Subsection is clear. It says:
"Notice of claims against the State
(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant".
Under Subsection (2), the Plaintiff was required to serve that notice within six (6) months after the occurrence out of which the claim arose. I find from
all evidence that the required Notice pursuant to s. 5 (1) and (2) of the Claim By And Against the State Act of 1996 were not compiled with and secondly I further find that, the Plaintiff was given sufficient notice of punishment and all other necessary
documents. I must dismiss this claim. The Plaintiff shall meet his own costs.
__________________________________________________________________
Lawyer for the Plaintiff : NAMALIU Lawyers
No lawyers appeared for the Defendants.
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