Saboko v Commissioner of Police [2006] PGNC 40; N2975 (21 February 2006)

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JUDICIAL REVIEW – application for review – plaintiff a former officer of Police Force – dismissed for disciplinary reasons – alleged stealing of pay cheques – whether acquittal on criminal charges prevents laying of disciplinary charges – grounds of judicial review – Wednesbury unreasonableness.

A member of the Police Force was charged under the Criminal Code with stealing five pay cheques. He was tried and acquitted in the District Court. A delegate of the Commissioner of Police then charged him with disciplinary offences relating to the same missing pay cheques. He was found guilty of one out of five charges and dismissed from the Police Force. He sought and was granted leave to seek judicial review. This was the hearing of the substantive application for review. His primary ground of review was that both the decision to find him guilty and the decision to impose the penalty of dismissal were so unreasonable no reasonable decision making authority in the position of the Commissioner of Police could have made those decisions.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Clement Kilepak v Ellison Kaivovo (2003) N2402
Dicky Nanan v John Maru and Police Commissioner (1997) N1507
Geregl Mauglo v The Police Commissioner and The State (1998) N1728
Gideon Barereba v Margaret Elias (2002) N2197
John Magaidimo v Commissioner of Police (2004) N2752
Kita Sapu v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2426
Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797
Morobe Provincial Government v Minister for Village Services (1994) N1215
Ombudsman Commission v Peter Yama (2004) SC747
Paul Pora v Commissioner of Police (1997) N1569
Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123
Peter Luga v Richard Sikani (2002) N2285
Pierson Joe Kamangip v Bernard Orim and The State [1998] PNGLR 95
Sudi Yaku v Commissioner of Police and The State [1980] PNGLR 27
Toll v Kibi Kara and Others [1990] PNGLR 71

AJ – Acting Justice
CJ – Chief Justice
Const – Constable
DCJ – Deputy Chief Justice
eg – for example
ie – that is; by which is meant
J – Justice
K – Kina
Ltd – Limited
N – National Court judgment
No – number
OS – originating summons
p – page
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
pp – pages
Pty – Proprietary
SC – Supreme Court judgment
Sgt – Sergeant
Snr – Senior
Supt – Superintendent
v – versus
= – equals
% – per cent

This was an action in which the plaintiff sought judicial review of his dismissal as a member of the Police Force.

This is a judgment on an application for judicial review. The plaintiff is seeking review of his dismissal as a member of the Police Force.

On 25 September 1998 the Commissioner of Police dismissed the plaintiff from the Police Force. It is that decision which is the subject of the application for judicial review. At the time the plaintiff held the rank of Sergeant. He was paymaster at the Mt Hagen Police Barracks. The Commissioner had caused an investigation to be conducted, laid disciplinary charges against the plaintiff, found him guilty and imposed the penalty of dismissal.

On 22 February 1999 the plaintiff’s lawyers, Kunai & Co of Mt Hagen, filed an originating summons and other documents under Order 16 of the National Court Rules. These documents sought leave for judicial review and set out the grounds on which the plaintiff proposed to rely.

More than four years passed before the application for judicial review was heard. The delay was not attributable to the conduct of either the plaintiff or the defendants.

Mr Kunai, for the plaintiff, tendered two documents by consent and called the plaintiff, Paul Saboko, to give oral evidence.

Column 1 of the table below gives the exhibit number, column 2 describes the nature of the document and column 3 summarises the contents.

Exhibit	Description	Content
A	Affidavit: Paul Saboko, plaintiff, 10.02.99	States that he joined the Police Force in 1979 and served until he was dismissed on 25.09.98 – was stationed at Mt Hagen in 1995 as paymaster – on 03.12.96 the Police charged him with stealing five pay cheques – on 04.09.97 the District Court at Mt Hagen (Mr R Appa) found him not guilty of all charges – on 05.04.98 he was served with five disciplinary charges – on 09.04.98 he responded in writing to the disciplinary charges. The first defendant, the Commissioner of Police, later responded: found him guilty of one of the charges, not guilty of four, and dismissed him from the Police Force, with effect from 25.09.98.
B	Letter: Commissioner of Police/ Commander, Highlands Command, 07.09.98	The letter is captioned: NOTICE OF PENALTY – SERGEANT: 7916. PAUL SABAKO [sic]. The letter informs the Commander that the member facing serious disciplinary charges have been dealt with and that he has been found guilty of the first count while he has not been found guilty of the other four counts. Consequently the member is dismissed effective from 25.09.98. Attached to this letter is a memo to the plaintiff headed "NOTICE OF PENALTY FOR SERIOUS DISCIPLINARY OFFENCE". This notice was served on the plaintiff on 18 September 1998.

The plaintiff Paul Saboko adopted his affidavit in examination-in-chief. He stated that he was a police officer for 19 years prior to his dismissal. He was charged by the Police Commissioner with five counts of stealing cheques. He was the paymaster. He held the rank of Sergeant in the Police Force. Each count related to a cheque for K185.00.

He was subject to criminal proceedings in the District Court and disciplinary charges under the Police Force Act. In respect of the disciplinary charges, the Commissioner of Police found him guilty of the first charge and not guilty of the other four charges. He said that it was wrong for the Commissioner of Police to charge him under the repealed Police Force Act. Asked if he had received from the Commissioner of Police the notice of penalty, he replied, yes. Asked if he had responded to the charges, he said yes. Asked if he was allowed to make submissions on penalty, he replied no.

He was asked how many times he heard from the Commissioner of Police. He said he heard from him only once and that was by the notice of dismissal.

In cross-examination he stated that he provided responses to the charges. Mr Ovia referred him to the annexures to his affidavit of 10 February 1999 and asked him if those were his responses to the charges. The plaintiff answered yes. Asked if his response was mainly relating to the District Court proceedings, which found him not guilty of all five counts, he said yes.

Mr Ovia asked the plaintiff where in his responses he explained what happened to the missing cheques. He replied that this has been explained when he replied to the five charges. He admitted that his evidence was mostly on the findings of the District Court which ruled that there was insufficient evidence but he did not agree with the suggestion that he had not explained what happened to the missing cheques.

He agreed that in the trial in the District Court some of the State witnesses were not available.

Asked if he had requested the Commissioner to furnish him with any documents or statements to enable him to provide his response, he said no.

In re-examination Paul Saboko stated that when he responded to the five charges he maintained that he had been found not guilty by the District Court of all charges and therefore it was unfair to lay the same charges against him.

Mr Ovia, for the defendants, tendered one affidavit by consent and called no witnesses to give oral evidence.

Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

Exhibit	Description	Content
D1	Affidavit: Anthony Mota, 14.06.99	He is a member of the Police Force, holding the rank of Inspector and attached to the Internal Affairs Directorate. He took carriage of the plaintiff's disciplinary matter in the course of his duty as an adjudicating officer – confirmed that the plaintiff was charged with five serious disciplinary charges. He adjudicated on the case by considering the following evidence: letter from Acting OIC Internal Audits to PPC requiring clarification of the recording of pay cheques; minute by Acting Commissioner Mapi dated 24.12.96 to OIC Internal Audit; summary of case prepared by investigation officer Const Pius Peng; Dept of Finance payroll printout for the missing cheques; letter from plaintiff to OIC Staff and Salaries, Police HQ, for cheques refunded by BMS Mt Hagen; statement by Provincial Admin Officer, Lape Mokae; statement by Audit Clerk, BMS Mt Hagen, Harry Maria; statement by Snr Const Garungo Monda; minute from Provinical Finance and Admin Officer to Robert Boyama, dated 12.03.98; statement by Robert Boyama re missing cheques; report by Acting Divisional Commander Highlands, Chief Supt John Wakon. He prepared an adjudication report with findings and recommendations to the Director Internal Affairs, Supt Kataka Maring. Supt Maring varied the penalty from demotion to dismissal and a notice of penalty was prepared for the Commissioner’s signature. The plaintiff was advised by a letter dated 7 September 1998; dismissal to be effective from 25 September 1998.

There was no oral evidence for the defendants. The defendants’ case was closed.

The plaintiff was a member of the Police Force from 1979 until his dismissal on 25 September 1998. For the last few years of his tenure in the Force, at least from 1995 onwards, the plaintiff held the rank of Sergeant and was the paymaster at Mt Hagen Police Station.

He was subject to both criminal and disciplinary proceedings relating to five pay cheques of another member of the Police Force, Robert Boyama, which went missing in early 1995.

Robert Boyama was employed as a station clerk at Mt Hagen Police Station on 10 March 1994. He resigned on 1 February 1995 but was not taken off the payroll until 9 June 1995. From February to June 1995 the payroll system generated eight cheques in favour of Robert Boyama. Three were returned to BMS Mt Hagen. Five were missing.

On 3 December 1996 the plaintiff was arrested and charged with five counts of stealing under Sections 372(1) and 372(7)(b) of the Criminal Code, which state:

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

(7) If the offender is a clerk or servant, and the thing stolen ... came into the possession of the offender on account of his employer, he is liable to imprisonment for a term not exceeding seven years.

Each of the charges related to a missing cheque, and date and number of the cheque was stated. Except for that variation the five charges were expressed in the same terms, namely:

That on Friday 17 February 1995 [Paul Saboko, aged 29 years of Budua, Bogia, Madang Province] being employed as a servant by the Independent State of Papua New Guinea stole cheque No [eg, 34036437] valued at K185.54 the property of the Independent State of Papua New Guinea which came into your possession on account of your employer.

When he was charged with those criminal offences the plaintiff was suspended without pay. His suspension continued until the day after he was acquitted by the District Court.

On 5 December 1996 he appeared in the District Court at Mt Hagen for the first time. He denied all charges. The trial was held on 23 August 1997 before the presiding magistrate, Mr R Appa.

On 4 September 1997 Mr Appa delivered the verdict, acquitting the plaintiff of all charges. In his written reasons for decision his Worship noted that the five cheques that had gone missing belonged to a former police officer, Robert Boyamo, who had resigned. His cheques were supposed to go back to the Department of Finance. The prosecution led evidence that the plaintiff was one of two persons who used to collect cheques for police personnel from the BMS at Mt Hagen. It was alleged that five pay cheques drawn to Robert Boyamo to the value of K185.54 each, a total of K927.70, had been collected or were in possession of the plaintiff and were missing. The missing cheques were in respect of the pay periods ending 17 February, 17 March, 14 April, 28 April and 12 May 1995. The evidence was that three other cheques, for the pay periods ending 3 March, 31 March and 26 May 1995 had been repaid to the BMS. The plaintiff gave evidence that he had given four of the missing cheques to Robert Boyamo. The fifth cheque was given to a typist, Gloria Paro.

This defence evidence raised some doubts in the court firstly because the police investigation did not go far enough to tracing up with the banks to discover evidence on who actually cashed those missing cheques and at which location. Secondly because after the defence fresh evidence, prosecution was at liberty to call evidence in rebuttal but failed to do so. The evidence of Robert Boyamo and Gloria Paro would have been of some assistance if they were called.

Since this is a criminal case the prosecution carried a heavy burden of proving the case beyond reasonable doubt and since the court had some doubts on the guilt of the defendant, the defendant is awarded this benefit of the doubt and therefore the defendant is not guilty of all the five charges and is acquitted. Bail be refunded.

It is further recommended that the defendant be reinstated to his former position with all the entitlements backdated.

About six months later, in March 1998, the matter continued to be investigated internally. On 12 March 1998 the Provincial Finance and Admin Officer, Mr Mokae, wrote to Robert Boyamo asking him to make a statement in relation to the matter.

Robert Boyamo subsequently made a statement saying that he had never received the missing cheques.

On 5 May 1998, the plaintiff was served with five disciplinary charges under Sections 43(g) of the Police Force Act, Chapter 65 of the Revised Laws, which at that time stated:

A member of the Regular Constabulary Branch who ... is guilty of disgraceful or improper conduct in his official capacity or otherwise ... is guilty of a disciplinary offence and is liable to be dealt with and punished under this Division.

Each of the charges related to a missing cheque, and the number of the cheque was stated. Except for that variation the five charges were expressed in the same terms, namely:

On the 17th of February 1995 at Mt Hagen Police Barracks Kimininga you were guilty of improper conduct in your official capacity in that you stole pay cheque No [eg, 34036437] valued at K185.54 the property of the Independent State of Papua New Guinea.

Each charge was expressed to be laid by Supt G D Labi QPM, an officer authorised by the Commissioner of Police to lay disciplinary charges. Each charge document concluded with these words:

If you desire the charge will be explained to you by the officer-in-charge, If you desire the officer-in-charge to explain the charge you should contact him immediately.

You are invited to reply promptly stating whether you admit or deny the truth of the charge and to give any explanation you desire in regard to the charge.

If a reply is not given by you within 14 days after your receipt of the charge you may be deemed to have denied the truth of the charge.

The plaintiff responded to the charges by writing two letters to the Commissioner of Police. One was dated 9 April 1998. It appears it should have been dated 9 May 1998. The plaintiff made these points:

In his other, undated, letter to the Commissioner the plaintiff gave further details of his trial. He stated that three State witnesses gave evidence but another three, including ex-Station Clerk Robert Boyamo, the owner of the alleged missing pay cheques, did not testify. He emphasised that the District Court had dismissed his case as there was insufficient evidence. He stated that he was a trained police officer and his basic police duties were to protect the lives and properties of the public. He was untrained to work as a paymaster. He had not been charged with any other disciplinary offence.

On 16 June 1998 the Acting Commander Highlands Region, Chief Supt Wakon, wrote to the Director of Internal Affairs recommending that the plaintiff be dismissed as he had stolen the five cheques valued at K927.70.

On 31 August 1998 the 2IC Discipline, Anthony Mota, prepared a four-page report on the five charges for the Director of Internal Affairs. On the issue of guilt, Mr Mota sated:

Despite the dismissal by the Grade Five Court there is sufficient evidence to hold the member responsible in the disciplinary proceedings for improper conduct. There is evidence that the cheques were in the hands of the member who was the paymaster during that period and therefore he should be responsible for stealing. ...

Evidence for the first charge is sufficient to find the member guilty for this charge. Evidence showed that the member was the paymaster for the police personnel for Mt Hagen police station. He knew that Mr Boyamo resigned from the department and was studying at Madang and his cheques should have been returned to BMS but this did not happen.

He claims that he had returned the cheques to the PAO Mr Lap but this is denied by the officer and having his two witnesses to support his evidence. The member did not produce any documentary evidence or witness to this effect to support his evidence.

Mr Mota recommended that because of the technical defects in charge Nos 2 to 5, the plaintiff should be found not guilty of those charges but guilty of charge No 1. He recommended that the plaintiff be demoted from the rank of Sergeant to Constable.

Mr Mota’s recommendation was given to the Director of Internal Affairs, Supt Maring, who accepted the recommendation as to the findings of guilt but disagreed with the recommendation as to penalty. Supt Maring instead prepared a notice of dismissal for the Commissioner’s consideration.

In September 1998, the then Commissioner of Police, Peter Aigilo QPM LLB, signed an undated "Notice of Penalty for Serious Disciplinary Offence". It was served on the plaintiff on 18 September 1998. The Commissioner found the plaintiff guilty of charge No 1 and not guilty of charge Nos 2, 3, 4 and 5. The penalty was dismissal from the Police Force.

The Commissioner gave the following reasons for finding the plaintiff guilty of charge No 1:

Evidence for the first charge is sufficient to find you guilty for this charge. Evidence showed that you were the paymaster for the police personnel for Mt Hagen police station. You knew well that Mr Boyamo resigned from the department and was studying at Madang and his cheques should have been returned to BMS but you did not do this.

You claimed that you had returned the cheques to PAO Mr Lap but this was denied by the officer and had his two witnesses to support his evidence. You did not produce any documentary evidence or witness to support your evidence.

Stealing by a policeman by virtue of [his] employment and misusing that privilege is a serious offence and should not be taken lightly, this is a disgrace to the Constabulary. You should be held responsible for this charge.

Evidence relating to charges 2, 3, 4 and 5 are intact to sustain the charges, however, the PPC and the Divisional Commander have been given time to correct the charges, including the dates the offences were committed. In fact the offence was committed in 1995 and charges laid in May 1998. For technical reasons these four charges are considered no sustained.

For the first charge I find that your actions were unprofessional and unethical and a disgrace by a senior NCO of your calibre. By way of penalty you are dismissed from the Constabulary effective 25th September 1998.

The technical defects in charge Nos 2, 3, 4 and 5 were that the same date – 17 February 1995 – appeared on each of the charges. Different dates, corresponding to the dates on the missing cheques, should have been given for each of these charges.

The Commissioner gave the following reasons for his decision to dismiss the plaintiff from the Police Force:

There is more than sufficient evidence on the file in particular your position as paymaster with all the trust vested in you to handle all monies including salaries for Mt Hagen police personnel.

The nature of the offence is serious which stealing is involved [sic]. Many members both civilian and uniform personnel in Mt Hagen regarded you as someone with criminal mind serving them at the time. Despite your denial there was more than sufficient evidence to convict you for disciplinary charge against you for stealing.

I have taken into account your service history with the Constabulary and the nature of the offence which shows a total disregard to the strong instructions contained in Circular No 16/94.

I have considered your record and your disciplinary file which showed you were disciplined once before, however with this offence, it leaves me no option but to dismiss you from the Force to take effect on the 25th September 1998.

On 25 September 1998 the plaintiff was dismissed. He commenced the present court proceedings on 22 February 1999.

The statement filed under Order 16, Rule 3(2)(a) of the National Court Rules is the document that sets the parameters of these proceedings. Order 16, Rule 3(2) (grant of leave to apply for judicial review) states:

An application for leave [to apply for judicial review] must be made by originating summons ... and must be supported—

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on.

If leave is granted the plaintiff is constrained by the relief sought and the grounds on which it is sought that are set out in the Order 16, Rule 3(2)(a) statement, unless leave is granted to amend the relief or the grounds. This is the case per force of Order 16, Rule 6 (statements and affidavits), which relevantly provides:

(1) Copies of the statement in support of an application for leave under Rule 3 must be served with the notice of motion [by which the application for judicial review is made] and, subject to Sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.

(2) The Court may on the hearing of the notice of motion allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

As to ground 1, Mr Kunai submitted that the plaintiff was not provided with sufficient facts in support of the charges. The plaintiff was denied natural justice, as he did not know who was giving evidence against him. Therefore the plaintiff was not given the opportunity to properly state his case in his defence prior to determination of the charges. It amounts to an ambush scenario. He should have been able to cross-examine the witnesses.

As to ground 2 – the double jeopardy argument – Mr Kunai submitted that a court of competent jurisdiction had properly tried and acquitted the applicant on all five criminal charges. It was therefore fundamentally unfair and unreasonable to charge the plaintiff with disciplinary offences relating to exactly the same things of which he had been acquitted. The plaintiff was put in double jeopardy.

Mr Kunai did not pursue the third ground – that the Commissioner gave no reasons for finding the plaintiff guilty – with much vigour.

By contrast Mr Kunai strongly argued that the Commissioner breached the principles of natural justice by not allowing the plaintiff to make submissions on the question of penalty. He relied on Toll v Kibi Kara and Others [1990] PNGLR 71, National Court, Hinchliffe J, in support of that proposition. The Commissioner, having found the plaintiff guilty, had a discretion to exercise. The dismissal of the plaintiff was not automatic upon his being found guilty. The Commissioner had a duty to invite a response from the plaintiff on the penalty.

The last ground of review – that the penalty of dismissal was excessive – was also couched as an unreasonableness argument.

Mr Kunai did not make any significant submissions on the issue of the remedies that should be granted in the event that the plaintiff obtains an order for judicial review.

Mr Ovia submitted that the court only needs to be satisfied that the Commissioner of Police followed the correct procedures. The plaintiff was charged under Section 46 of the Police Force Act (Chapter No 65 of the Revised Laws). The Commissioner was required to do three things:

Those requirements were satisfied, Mr Ovia submitted. The Act did not require any additional materials to be given to the member being charged. Nor did the member found guilty have to be granted an additional right to be heard on the question of penalty (Pierson Joe Kamangip v Bernard Orim and The State [1998] PNGLR 95, National Court, Kapi DCJ).

Mr Ovia also suggested that the court pay regard to the proper approach to ‘police review’ cases outlined by Sevua J in Geregl Mauglo v The Police Commissioner and The State (1998) N1728, where his Honour stated:

In relation to the argument on penalty, let me say at this juncture that, there is no evidence that the plaintiff was punished twice prior to dismissal. The only credible evidence is that the plaintiff was dismissed on 3rd November, 1989. There is no record of any other penalty under s.46 of the Act.

I think the plaintiff’s argument under s.41 Constitution that the penalty was harsh and oppressive stemmed from a misconceived view that the first defendant should have imposed a penalty other than dismissal. This argument is without any legal or constitutional basis. In my view, you cannot say dismissal is harsh and oppressive, when a law prescribes dismissal as a penalty amongst other penalties. ...

There is a misconception by lawyers and their policemen clients, in relation to police dismissal cases, that they can come to the National Court to seek review on the question of severity of penalty. This is wrong. Judicial review is not concerned with the decision, but with the process of decision making, ie, the procedures in the decision making process. See Rose Kekedo -v- Burns Philp [1988-89] PNGLR 122.

Mr Ovia argued that there was no double jeopardy in this case. The Commissioner followed the correct procedures and exercised the discretion available to him lawfully.

The Commissioner’s decision to find the plaintiff guilty of a serious disciplinary offence and to dismiss him from the Police Force were made under the Police Force Act Chapter 65 of the Revised Laws. That Act was repealed and replaced by the Police Act No 37 of 1998, which commenced operation on 1 February 1999 (see the long title to the Police Act and the notice of commencement published in National Gazette No G18 of 1 February 1999). All disciplinary action against the plaintiff was undertaken before the commencement of the Police Act.

During 1998, when the plaintiff was charged and dismissed, the operative provision for dealing with serious disciplinary offences, was Section 43 (dealing with serious offences) of the Police Force Act, which stated:

(1) Where there is reason to believe that a member of the Regular Constabulary Branch has committed a disciplinary offence other than an offence that may be dealt with under Subdivision B, the provisions of this section apply.

(2) The member may be charged by the Commissioner or a commissioned officer authorized by the Commissioner to lay charges under this Subdivision.

(3) On a charge being laid against a member of the Regular Constabulary Branch, he shall–

(a) be promptly furnished with a copy of the charge, which shall, if he so desires, be explained to him by the officer-in-charge; and

(i) to reply promptly, stating whether he admits or denies the truth of the charge; and

and if a reply is not given by the member within 14 days after his receipt of the charge he may be deemed to have denied the truth of the charge.

(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 the 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

(d) in addition to or instead of imposing a punishment specified in Paragraph (c), (e) transfer the member to other duties or to some other locality; or

(e) in the case of a commissioned officer – impose a penalty referred to in Subsection 45(1)(a), (b) or (e); or

(f) in the case of a member other than a commissioned officer – impose a penalty referred to in Section 45(1)(a), (b), (d) or (e); or

(g) in the case of a member who is a commissioned officer – recommend to the Minister that the member be dismissed from the Force; or

(h) in the case of a member other than a commissioned officer – dismiss the member from the Force.

(5) The Commissioner shall notify the member of a punishment imposed on him or a recommendation made concerning him under Subsection (4) and where the punishment is other than the imposition of a fine not exceeding K4.00 or a penalty involving loss of pay not exceeding K4.00, the member may within the prescribed time, appeal to a Police Appeal Tribunal constituted under Subdivision D.

Nowadays allegations of serious disciplinary offences by members of the Police Force are to be dealt with under Division IV.3 (serious offences) of the Police Act, which provides:

(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.

(3) On a charge being laid against a member of the Force that member shall—

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge; and

(i) to reply within 14 days, stating whether he admits or denies the truth of the charge; and

(4) A charge or other documentation is deemed to have been furnished to a member under this section—

(b) where, it being unreasonable because of distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.

(5) Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4)(a) or within 28 days after posting in accordance with Subsection 4(b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24.

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be—

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2) The Commissioner after considering the report referred to Subsection (1), may, where—

(a) the disciplinary officer is of opinion that the charge has been sustained; and

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26.

(a) the disciplinary officer reports that in his opinion the charge has not been sustained; and

(b) after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained,

(4) Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.

(5) Where the Commissioner imposes a penalty under Section 26(1), other than a penalty in terms of Paragraph (g) of that subsection, the Commissioner may, in addition to such penalty direct that the offending member complete a course of retraining in accordance with Section 26(2).

(6) A retraining course for the purposes of Section 26(2) shall comprise such course of training and instructions as the Commissioner determines, and may include an examination or examinations.

(7) Where, at the conclusion of such time as the Commissioner may allow, the offending member has satisfactorily completed the retraining course, and passed any examinations connected therewith—

(a) the penalty in the case of a fine, or forfeiture of pay, may, in the discretion of the Commissioner be remitted in whole or in part, and the proportion so remitted shall be repaid to the offending member; and

(b) any reduction in rank or salary may be reversed in whole or in part as from the date of satisfactory completion of the retraining course, and the passing of the examination.

(1) Subject to Subsection (2), any one or more of the following penalties may be imposed under this Division:—

(d) reduction of the member to a rank having a lower classification, and to a salary within that classification;

(e) in addition to or instead of a punishment specified in Paragraph (d), the transfer of the member to other duties;

(f) in addition to or instead of a punishment specified in Paragraph (d) or (e), the transfer of the member to some other locality;

(2) In addition to any penalty imposed under Subsection (1)(a) to (f) inclusive, the Commissioner may also require the member to undergo a course of re-training.

(3) The penalty specified in Subsection (1)(f) shall not be imposed on a member of the Community Auxiliary Police or on a Special Constable.

(4) The Commissioner shall notify a member of a penalty imposed on that member.

(5) Where a penalty is imposed under this section by a disciplinary officer, the member affected may, within seven days of notification to the member under Subsection (4) of the penalty, or within such further time as the Commissioner may allow, apply in writing to the Commissioner for a review of the decision.

(b) sending the application by ordinary post addressed to the Commissioner; or

and is deemed to have been made on the day on which it is so delivered or posted.

(7) On a review under Subsection (5), the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final.

(8) The Commissioner may direct that a penalty imposed under Subsection (1) by a specified rank of disciplinary officers shall not be put into execution until confirmed by him.

(9) The power conferred on the Commissioner for this section to confirm a penalty is deemed to include the power to increase or otherwise to vary the penalty in any way not inconsistent with this Act.

(10) The power of the Commissioner to delegate under Section 17 is limited for the purposes of Subsections (6) and (7) to a power to delegate to a member of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made.

The Commissioner's decision in respect to the finding of guilt and in respect to penalty for serious disciplinary charges is final.

I have set out the above provisions as they demonstrate the significant changes to the law effected by the 1998 Act: the procedures are more elaborate and the right of appeal has been abolished.

However, it must be emphasised that the current application for judicial review is to be determined having regard to the law that applied in 1998 under the Police Force Act.

The issues in this case emerge from the grounds of review and the relief sought. That is:

DID THE COMMISSIONER ERR IN LAW BY NOT PROVIDING THE PLAINTIFF WITH THE EVIDENCE OF THE CHARGES?

This issue was extensively addressed by Kapi DCJ, as he then was, in Pierson Joe Kamangip v Bernard Orim and The State [1998] PNGLR 95. His Honour relied on the decision of Injia J, as he then was, in Dicky Nanan v John Maru and Police Commissioner (1997) N1507 to reject a similar argument. His Honour stated:

The question in the present case is whether the provisions of the Police Force Act excludes the common law rules of natural justice. This very issue was considered by Injia J. in Dicky Nanan v John Maru and Police Commissioner (supra). His Honour fully set out section 46 in his judgement and concluded:

"It is clear from Section 46(3) that the Commissioner is only required to serve a copy of the charge and not any report, internal or otherwise, on the member concerned. It is also clear from Section 46(4) that the Commissioner is given wide discretion to consider any existing report, internal or otherwise, relating to the offence when he is considering whether to charge the member, when considering the reply given by the member and even to call for and consider 'any further report' that he thinks is necessary to make an informed decision. In the present case, the Commissioner was not required to serve its existing internal report of the First Defendant or any other relevant report on the plaintiff at any time in the disciplinary process."

His Honour made reference to Iambakey Okuk v Falscheer (supra) and continued:

"Í would further expand the scope of this principle to say that where words in a statute do not by necessary implication exclude certain principles of natural justice, the common law can supply those principles by implication to the statute. In the present case, any common law rule of natural justice which might require an internal investigation report or any other internal document to be served on the member is neither expressly stated or excluded. But by necessary implication in Section 46(3) and (4), such a requirement is excluded. This is imperative from reading these provisions together. Therefore, there is no room for the common law to supply any such principles of common law into the statute.

These principles accords with the purpose of the Police Force Act and in particular, the disciplinary provisions in Section 46. The Police Force is a disciplined force. It is entrusted with the duty of enforcing the law and maintaining peace and order in the community. Therefore, it's members are expected to conduct themselves in accordance with strict code of conduct. Internal secrecy and confidentiality should be part of its discipline mechanism. Internal investigative mechanisms and reports should be confidentially treated except where it's publication to a member of the Police Force or the public at large is required by law. These underlying values are reflected in Section 46(3) and (4) when it excludes the availability of any internal report to the member concerned. What the statute has by necessary implication excluded, the Courts cannot supply it by implication under the common law."

His Honour followed his decision in a subsequent case of Michael Kapa Wena v Henry Tokam (unreported judgement of the National Court dated 9th May 1997, N1570).

In Kelly Yawip v Commissioner of Police & The State (unreported judgement of the National Court, N1370) his Honour Injia J. considered the same point and impliedly concluded that if a member who is charged requests for the evidence or information which forms the basis of the charge, he would be entitled to those documents. This was followed by Doherty J. in Steven Levi v Commissioner of Police & the State (OS 246 of 1996) (unnumbered judgement of the National Court dated 15th November 1996). It is not necessary for me to consider this point as in this case there is no evidence that the plaintiff made any request for the evidence or reports which formed the basis of the charge.

I have considered the decision of Injia J. in Dicky Nanan v John Maru & Police Commissioner (supra) and I am in complete agreement with his Honour's conclusions with regard to the construction of s 46 of the Police Force Act. I find that there is no requirement on the Commissioner to serve copies of statements and reports on the member concerned. I would dismiss this ground.

Mr Kunai presented no clear argument or authority to warrant departure from that approach. I therefore dismiss this ground of review.

WAS THE LAYING OF THE CHARGES UNREASONABLE HAVING REGARD TO THE PLAINTIFF’S ACQUITTAL ON THE CRIMINAL CHARGES?

This was the double jeopardy argument. Mr Kunai seemed to be drawing an analogy with the provisions of the Constitution and the Criminal Code that prevent double jeopardy arising if a person is dealt with by a court exercising criminal jurisdiction. These are also known as the principles of autrefois convict and autrefois acquit. In plain language, the law says that if you have been acquitted of an offence you can’t face court again for the same offence. The other side of the coin is that if you have been convicted of an offence, you cannot be charged with the same offence again. The prosecutor is allowed only one bite at the cherry.

These principles, which are a key component of the system of criminal justice in Papua New Guinea, are enforced by Section 37(8) of the Constitution and Sections 16, 17, 560 and 564 of the Criminal Code.

No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

Section 16 of the Criminal Code (person not to be punished twice for same offence) states:

(1) Subject to Subsection (2), a person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission.

(2) Subsection (1) does not apply where an act or omission is such that by means of it the offender causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing the death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

It is a defence to a charge of any offence to show that the accused person has already been-

(a) tried and convicted or acquitted, on an indictment on which he might have been convicted of the offence with which he is charged; or

(b) acquitted on indictment, or convicted, of an offence of which he might be convicted on the indictment or complaint on which he is charged.

(1) If the accused person does not apply to quash the indictment, he must either plead to it, or demur to it on the ground that it does not disclose any offence cognizable by the court.

(a) that he is guilty of the offence charged in the indictment, or, with the consent of a State Prosecutor, of any other offence of which he might be convicted on the indictment; or

(i) on an indictment on which he might have been convicted of the offence with which he is charged; or

(i) on which he might have been convicted of the offence with which he is charged; or

(e) that he has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that he cannot under this Code be tried for the offence charged in the indictment; or

(3) Two or more pleas may be pleaded together, except that the plea of guilty cannot be pleaded with any other plea to the same charge.

Section 564 of the Criminal Code (plea of autrefois convict or autrefois acquit) states:

In a plea that the accused person has already been convicted or acquitted, it is sufficient to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, or of the other offence of which he alleges that he has been convicted or acquitted, and in the latter case to describe the offence in any way in which it is commonly known.

Mr Kunai tried to build on these criminal law principles and transpose them to the present case by arguing that because the plaintiff had been acquitted of the five criminal charges in the District Court the Commissioner and his delegate, Supt Labi, were prevented by law from laying the disciplinary charges against the plaintiff. This is a useful argument but it is flawed and I dismiss it. It fails to appreciate that the criminal laws, that apply to all persons in the country, and the disciplinary code for members of the Police Force, which apply only to members of the Police Force, are independent, parallel sets of laws. Breach of one set of laws may or may not amount to breach of the other set of laws. The same principle applies to the Criminal Code and the Leadership Code. The Criminal Code applies to everybody. The Leadership Code applies only to leaders (as described by Section 26 of the Constitution). A leader who is dealt with under the Criminal Code can also be dealt with under the Leadership Code.

In Sudi Yaku v Commissioner of Police and The State [1980] PNGLR 27 Andrew J was faced with a double jeopardy argument made on behalf of a member of the Police Force who had been convicted under the Criminal Code of unlawful assault and subsequently charged under the Police Force Act with disgraceful conduct. His Honour held that the member was not in jeopardy of double punishment.

In the present case I find that the Commissioner was not automatically prevented or estopped from laying disciplinary charges due to the plaintiff’s acquittal. However, I do not think that that disposes of this ground of review. Mr Kunai developed the second ground of review into an unreasonableness argument based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The ‘Wednesbury principles’, as they have come to be known, have been adopted and adapted by the courts in PNG in a multitude of cases. For example in Ombudsman Commission v Peter Yama (2004) SC747, Supreme Court, Injia DCJ, Sakora J, Sawong J, explained the principles in these terms:

The Wednesbury principle of "unreasonableness" is described by Lord Green MR as a decision that is "so absurd that no sensible person could dream that it lay within the powers of the authority -- a decision that no reasonable body, could have come to." It is embodied in the principle of "irrationality" that we referred earlier. We prefer a simplified break-up of this principle into six categories by Doherty J in Kim Foon & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996) as follows:

(b) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;

(f) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

It is the sixth and last sub-principle that I think best sums up the classic Wednesbury test of unreasonableness. The court in the exercise of its supervisory jurisdiction is required to ask: is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker could have made the decision?

Applied to the present case, the question to ask is: were the decisions to (a) lay the disciplinary charges against the plaintiff and (b) find him guilty of one of the five charges, so unreasonable no reasonable person in the position of the Commissioner or his delegate could have made those decisions?

Having regard to all the circumstances of this case, I answer this question in the affirmative for the following reasons:

Given all these considerations I conclude that the decisions of the Commissioner and his delegates were unreasonable in the Wednesbury sense.

DID THE COMMISSIONER ERR BY NOT GIVING REASONS FOR FINDING THE PLAINTIFF GUILTY?

No. The Commissioner gave reasons for both the decision to find the plaintiff guilty and the decision to dismiss him. I reject this ground of review.

DID THE COMMISSIONER BREACH THE PRINCIPLES OF NATURAL JUSTICE BY NOT ALLOWING THE PLAINTIFF TO MAKE SUBMISSIONS ON PENALTY?

The approach of the courts has not been uniform but the preponderance of authority supports the view that a separate hearing on penalty is not necessary. In Kita Sapu v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2426, Kirriwom J surveyed the authorities and reached that conclusion. His Honour stated:

The question as to whether or not there has to be a separate opportunity given to the applicant to respond on the aspect of penalty after the Commissioner has found the member guilty and gave his reasons for his decision has been subject of divided opinion in the decisions so far handed down by this court. See Dicky Nanan v John Maru & Police Commissioner [1996] National Court N1507; Kelly Yawip v Police Commissioner & State [1995] PNGLR 93; Pierson Joe Kamangip v Bernard Orim & Police Commissioner & The State [1998] National Court N1695; Sgt Kim Ananis v Commissioner for Police & The State [1999] National Court N1845; Geregl Mauglo v Police Commissioner & The State [1998] National Court N1728 and for the benefit of appreciating where the division has crept in, Toll v Kibi Kara & Ors [1990] PNGLR 71. Majority view seems to favour dispensing with the requirement for separate submission on penalty after finding of guilt for disciplinary offence. I think that the audi alteram patterm principle in common law must not be confused with the procedure that was developed through the Parliament in the criminal courts where the accused has two opportunities to speak, first, in his answer to the charge when he is arraigned, and the second is, when he is convicted and asked to explain as to why he should not be punished for his crime. This is based on strict adversarial system of dispensing justice and for good historical reason too. A judge or magistrate who sits in judgement of a person he had just convicted after considering the evidence before him or on his on plea of guilty does not even know the person before him and that is the first time, in most cases, he has seen that person. He needs to know more about him, about his family, his job history, his personal antecedents and even to hear him for the last time express his remorse or offer restitution before he passes the sentence. A disciplinary hearing is conducted in an inquisitional manner that all relevant materials are bundled together and placed before the tribunal to adjudicate on the matter. In most cases these materials include personal staff files maintained by the employer of the employee and are adequate to assist the tribunal to not only arrive at a conclusion of guilt alone, but often times, there is adequate information there for penalty to be likewise determined without requiring another hearing from the officer charged. The procedure is almost informal and flexible that additional information is obtainable either way at any and every stage of the proceedings until the final decision is reached which includes the penalty. That is the way the practice has developed and it ought to remain that way. It is quicker, plain and not repetitive of the process.

I think one has to be very careful in adopting a criminal procedure available to a convicted person in a court of law in accordance with a statutory regime and the constitutionally guaranteed protections. The two-staged criminal procedure in my view need not necessarily apply in an administrative tribunal on disciplinary cases, which only tend to protract or prolong a case and which in reality is unnecessary. The practical reality of this view is that it would not make one iota of a difference what is said on penalty because the evidence and the overwhelming nature of the case already before the decision-maker would be such that dismissal is inevitable and it must be imposed and no amount of persuasion by the officer affected is going to change that.

In this case before me, all relevant material was before the Commissioner. Unlike a judicial officer who has before him an accused person for the very first time in his life to be sentenced, the Commissioner is not placed in the same disadvantage as the judge or magistrate. He probably knows the member, if not personally or by face, then by the records that are placed before him that the Department has kept of him since his recruitment. Those records speak much louder of the person to the Commissioner than what the evidence in a trial or in court depositions inform the judge about the prisoner before him in court. He already knows enough about the officer to decide what he should do with him and he does not need to ask the member concerned to assist him in arriving at a just and fair decision on penalty. Safeguarding and upholding the integrity and good rapport of the Force in the community would far outweigh any notion of fairness and justice to an errant constable who brings disrepute and bad name to the Force by his most disgraceful conduct and whose presence in the Force naturally is no longer required. Need the Commissioner hear anything more from the officer concerned if he had not expressed himself when he was already given the opportunity to do so? This is repetitive, time consuming and unwarranted.

I therefore go along with the majority view that there was no requirement in law for the Commissioner to hear the plaintiff separately on penalty. There was sufficient material before the Commissioner to decide on appropriate penalty and there were clear precedents already set in this kind of cases involving members of the Constabulary. I dismiss this argument.

Mr Kunai presented no clear argument or authority to warrant departure from that approach. I therefore dismiss this ground of review.

I will address this fifth and last ground of review in the same way I addressed the third ground. The question to ask is: was the decision to dismiss the plaintiff so unreasonable no reasonable person in the position of the Commissioner or his delegate could have made that decision?

Having regard to all the circumstances of this case, I am inclined to answer this question in the negative. The question is to be addressed on the presumption that the plaintiff has properly been found guilty of one serious disciplinary offence – stealing a pay cheque. The plaintiff was performing the duties of the paymaster. A disciplined force cannot tolerate a person holding such a position of trust and responsibility if that person displays dishonesty. Even though the amount of the cheque was modest, the Commissioner did not act so unreasonably that no reasonable person in his position could have made that decision.

One of the five grounds of review has therefore been upheld and the decision of the Commissioner to lay the charges and find the plaintiff guilty are therefore ripe for judicial review.

The plaintiff has succeeded in proving an error of law on the part of the Commissioner of Police. The next question is: what remedies should the court grant? This sort of issue was explained recently by the Supreme Court (Jalina J, Cannings J, Manuhu J) in Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797 in these terms:

It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.

The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified. Here it was the Commissioner’s decision to lay the charges (in May 1998) and find the plaintiff guilty of one of the charges (September 1998) that has been found to have been infected by error of law on the ground of unreasonableness.

I consider that those decisions, particularly the second one, were wrong in law and flagrantly so. The decision to find the plaintiff guilty cannot stand and therefore it will be quashed. It follows that the decision to dismiss the plaintiff from the Police Force cannot stand and will be quashed. The appellant’s Order 16, Rule 3(2)(a) statement expressly sought orders of that nature.

The next issue is whether I should remit the matter to the first defendant, the Commissioner of Police, and direct that he re-make his decision whether to find the plaintiff guilty in accordance with law (ie an order in the nature of the prerogative writ of mandamus). Or whether I should simply order that the plaintiff be reinstated. As the Supreme Court indicated in Asiki the former remedy is a more classical style of order for judicial review and faithful to the common law pedigree of this area of administrative law, which suggests that the courts should refrain from entering the arena of the executive arm of government. There is, however, a considerable body of case law showing that the courts in Papua New Guinea have not been reluctant to take the latter approach, particularly in regard to public servants who have been dismissed from office as a result of a decision-making process found to have been unlawful. For example in Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123 the court ordered the reinstatement of a hospital pharmacist who had been unlawfully dismissed even though he had not asked to be reinstated.

I consider that the interests of justice require that the plaintiff be reinstated to his former position or to an equivalent position and I will make an order accordingly. It follows that the first defendant’s decision to dismiss the plaintiff with effect from 25 September 1998 will be quashed.

The final issue is back-pay. Should the plaintiff be compensated for the loss of salary and other entitlements he incurred from the date of his dismissal to the date of his reinstatement. By the time that he is reinstated this will be a period of seven and a half years.

The plaintiff has not specifically sought this remedy in his Order 16, Rule 3(2)(a) statement, but it is a remedy sought in the originating summons so I will consider whether it is an order that should be made. The jurisdictional basis for making such an order lies in Section 155(4) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. [Emphasis added]

As the Supreme Court emphasised in Asiki all remedies in judicial review proceedings are discretionary. If a person succeeds in establishing that he has been unlawfully dismissed from public employment and that he should be reinstated, it does not necessarily follow that the court will order back-pay, ie payment of salary and other emoluments lost in the period since dismissal. Different approaches have been taken in the past.

On the one hand the courts have stressed that dismissed public officials who succeed in judicial review should not necessarily receive a windfall gain, ie ‘get paid for doing nothing’, if they are reinstated by order of the court. Cases in this category include: Paul Pora v Commissioner of Police (1997) N1569, National Court, Injia J; and Gideon Barereba v Margaret Elias (2002) N2197, National Court, Sevua J.

On the other hand there is a group of cases where the courts have ordered that the public official be both reinstated and paid salary and other emoluments lost by being unlawfully dismissed. Cases in this category include: Morobe Provincial Government v Minister for Village Services (1994) N1215, National Court, Salika J; Peter Luga v Richard Sikani (2002) N2285, National Court, Sakora J; Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; and John Magaidimo v Commissioner of Police (2004) N2752, National Court, Gavara-Nanu J. Asiki’s case ultimately fell into this category.

In the circumstances of this case I will take a centreline approach that balances the conflicting interests at play. On the one hand, the court can show some compassion to someone like the plaintiff who has been fighting his case for many years and ultimately won a judicial review after being unlawfully dismissed. On the other hand, I do not feel comfortable in ordering that a considerable sum of public money be paid to someone who has not been gainfully employed by the State for seven and a half years.

I will exercise my discretion by ordering that the appellant be paid a sum of money equivalent to the salary and emoluments payable in respect of the position he held or its equivalent, in the period from the date of the trial – 4 November 2004 – to the date of his reinstatement. I consider that that is a just outcome. I will make the order subject to further assessment by the National Court.

The National Court grants the application for judicial review and directs entry of judgment in the following terms:

Judgment accordingly.
_________________________________________________________
Lawyers for the plaintiff : Kunai Lawyers
Lawyer for the defendants : Solicitor-General

National Court of Papua New Guinea

Saboko v Commissioner of Police [2006] PGNC 40; N2975 (21 February 2006)