Koki v Inguba [2009] PGNC 161; N3785 (16 November 2009)

N3785

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 320 OF 2006

BETWEEN

RICHARD KOKI
Plaintiff

AND

SAM INGUBA
First defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Wabag: Yalo, AJ
2008: 20 June, 20 August,
2009: 16 November

CIVIL PRACTICE – Judicial Review – Order 16 rules 3 – 5 of the National Court Rules – substantive judicial review application following grant of leave – Grounds of review – procedural irregularities – non compliance with procedures prescribed by Police Act. Proper Grounds of review – excess of jurisdiction, error of law, breach of natural justice, unreasonableness.

PROCEDURE – Judicial Review involves the reviewing of the decision-making process of the decision-maker – the reviewing court is not a court of appeal.

JUDICIAL REVIEW – Principles of natural justice – Section 59 Constitution – "minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly". Obligation to observe principles of natural justice - imposed by the Constitution, Police Act (statute) and the underlying law, Schedule 2.2 Constitution.

Held:

1. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process. The reviewing court is not a court of appeal: Kekedo v Burns Philip & Ors [1988-89] PNGLR 122 and Associated Provincial Pictures House Ltd v Wednesbury Corporation [1948] 1KB 223; [1947] EWCA Civ 1; [1947] 2 ALL ER 680 followed.

2. Where administrative authorities exercise administrative powers which may affect others they are obliged to observe the rules of natural justice. Such obligation in our jurisdiction is an onerous one. It is onerous because it is not just a requirement of the common law which we have adopted as our underlying law under Schedule 2.2 of the Constitution. The principles of natural justice developed under the underlying law are subject to the principles of natural justice entrenched both in our Constitution and our statutes, so says Section 59(1) Constitution. .. Our Constitution, the higher law imposes the obligation.

3. Section 59 sets the minimum requirement of the principles of natural justice. That minimum requirement is the duty to act fairly and, in principle, to be seen to act fairly.

4. It is quite unique in our jurisdiction as to how we have valued and recognized the importance of fairness or the principles of natural justice. Firstly, we have adopted the common law principles of natural justice as our underlying law. Secondly, the principles of natural justice are ensured all throughout our statutes. As if these were inadequate we have provided for it in our Constitution at Section 59. Above all these, the Constitution has laid down the minimum standard of the principles of natural justice. We have provided for fairness at all levels of the hierarchy of laws in our jurisdiction. So there is an onerous obligation to observe the minimum standard of the principles of natural justice.

Cases Cited
Papua New Guinea Cases

Kekedo v Burns Philip & Ors [1988-89] PNGLR 122
Chan v Ombudsman Commission [1998] PNGLR 171
Ombudsman Commission v Yama (2004) SC747

Overseas Cases

Associated Provincial Pictures House Ltd v Wednesbury Corporation [1948] 1KB 223; [1947] EWCA Civ 1; [1947] 2 ALL ER 680

Cases referred to

John Mua Nilkare v Ombudsman Commission (1995) N1344
John Magaidimo v Commissioner of Police (2004) N2752
Sudi Yaku v Commissioner of Police, Ex parte The State [1980] PNGLR 27
OS No 542 of 2006 Wesley Gau v Sam Inguba and The Independent State of Papua New Guinea (02.07.08) (Unnumbered)(Unreported)

Counsel

Mr Russell Uware, for the Plaintiff
Ms Jacinta Doa, for the Defendants

16 November, 2009

1 YALO, AJ: This is an application under Order 16 rule 5 of the National Court Rules (NCR). The plaintiff, Mr Richard Koki sought orders in the nature of certiorari to quash the administrative disciplinary penalties of the first defendant demoting him by two ranks. Mr Koki was an Inspector in the Royal Papua New Guinea Constabulary (RPNGC) when he was demoted through administrative disciplinary process. Mr Koki was demoted to Chief Sergeant and later to Senior Sergeant. Mr Koki sought and was granted leave of this Court on 20 August 2008 to apply for judicial review of his demotions. The substantive application was moved on 2 June 2009. This is the ruling on that application.

2 The plaintiff seeks the following remedies in this substantive application:

(a) A declaration that demotion in relation to the first charge, whereby he was demoted to Chief Sergeant at salary point F081, and in relation to the second charge whereby he was demoted to Senior Sergeant on salary point F071, imposed by the first defendant is unlawful, null and void, and of no effect.

(b) An Order in the nature of certiorari to bring into this Honourable Court, charges by way of two (2) Serious Disciplinary Offence Report (SDORs) dated 10 December 2001 and be quashed.

(c) An Order in the nature of certiorari to bring into this Honourable Court, notice of penalty served on 24 June 2003 and be quashed.

(d) An Order in that the Plaintiff be reinstated to his former position of Inspector with all his entitlements backdated to the date of the demotion.

(e) The first defendant meet the costs of the application.

3 The plaintiff relied on the following grounds in support of his application.

(a) Breach of the principles of natural justice. The plaintiffs response to the charges were not considered by the first defendant in finally determining the charges because they were never brought to the latter’s attention.

(b) Disciplinary officer not appointed. There is no evidence that a disciplinary officer was appointed as required under Section 24 of the Police Act to investigate the complaint against the plaintiff. Therefore the first defendant did not have an investigative report before him from the disciplinary officer to determine the complaint and impose penalties.

(c) No disciplinary report. See (b) above.

(d) The plaintiff was demoted without complying with Section 24 of the Police Act.

(e) Unreasonableness of notice of penalty. The penalty was so harsh and did not fit the nature of the complaint and charges.

PLAINTIFFS SUBMISSIONS

4 Mr Koki relied on his application filed on 26 August 2008 and the originating process and affidavit in support all filed on 5 May 2006. He further relied on his supplementary affidavit filed on 25 October 2006 and another filed on 22 June 2009. His counsel relied on written submissions to make the application. The following facts deposed to in the affidavit in support and restated in his written submissions are relevant. Mr Koki was a part of the first batch of direct entry cadets in 1993. He was made a commissioned officer in 1995. After passing out of the Bomana Police College he was an Instructor from the end of 1995 to 1997. At the end of 1997 he was posted to the Highlands Region attached to the Mobile Group as a Squad Commander. He was eventually promoted to the rank of Acting Highlands Mobile Group Commander. In 1998 Mr Koki served on Bougainville commanding a police mobile squad. At the time he was alleged to have committed the offence for which he was disciplined he was serving as the Acting Police Station Commander (PSC) at Wabag Police Station. On the relevant day he was tasked by the PPC to take stock of properties belonging to the Enga Provincial Government which had been rented for police units to occupy.

5 On or about 3 September 2001 Mr Koki received orders from the then Provincial Police Commander (PPC) Superintendent John Anawe to attend at a premise on Beat Street, Wabag Town. This property was rented to the police but was vacated leaving State assets in the house. Mr Koki was in the company of two of his colleagues, Constables Nelson Kalimda and Emmanuel Malken. When they arrived at the property they met Mr Mek Apakas who was taking care of the property and they explained that they were there to retrieve certain properties belonging to the State. Mr Apakas refused to cooperate. When Mr Koki and his team returned to the station to seek further instructions from the PPC, the latter ordered them to return to the premise and retrieve the State’s properties with reasonable force if necessary.

6 Mr Koki drove to the same premise to execute the orders but Mr Apakas protested and he threw stones at the team. A crowd that had gathered there got abusive and aggressive and Constable Kalimda fired a shot from a pump action shot gun to stop the crowd. The crowd dispersed and Constables Kalimda and Malken walked into the premise and retrieved the State’s properties they were ordered to retrieve. Mr Koki remained in the police vehicle. Mr Apakas continued to throw stones at the police vehicle and verbally assaulted them. This prompted the police constables to push Mr Apakas. Mr Koki reported the incident to the PPC but he did not have the report in writing. Mr Apakas reported to the police headquarters in Port Moresby that Mr Koki’s team had assaulted him.

7 An internal investigation team from Port Moresby investigated the complaint. On 29 October 2001 the investigation team interviewed Mr Koki in Port Moresby. On 17 January 2002 Mr Koki was presented with three serious disciplinary charges at Wabag. The charges were dated 10 December 2001. The first charge read:

"On the 3rd day of September 2001 at Beat Street, Wabag Town did commit an act namely unlawfully assaulted a member of public namely MECK APAKAS which may be a criminal offence. Thereby contravening Section 20(1)(ay) of the Police Force Act".

8 The second charge read:

"On the 3rd day of September 2001 at Beat Street, Wabag, did fail to exercise proper supervision over members under your control namely constables N. KALIMDA and E. MALKEN who have unlawfully assaulted a member of the public namely MECK APAKAS".

9 There is no record of the third charge but I note that penalty is imposed on Mr Koki for this charge. Both charges stated that Mr Koki had 14 days each within which to provide his response to the charges. On 29 January 2002 Mr Koki responded to the charges to Superintendent John Anawe with relevant evidence and he posted five copies to the Port Moresby based Internal Investigation Unit. Mr Koki did not hear from the investigation team until 24 June 2003 when he received a notice that he was demoted by two ranks from Inspector down to Senior Sergeant. On 4 July 2003 Mr Koki flew to Port Moresby from Wabag and personally hand delivered his administrative appeal dated 29 June 2003. On 3 September 2003 he telephoned the Deputy Commissioner’s Office and the Staff Officer, Chief Inspector Joseph Tondop handed him a copy of a letter stating that his appeal was considered and refused.

DEFENDANTS’ SUBMISSIONS

10 The defendants relied on an affidavit filed by Mr Ette Hodges the Principal Legal Officer with the RPNGC. Mr Hodges’ affidavit deposed to very brief facts relating to the history of Mr Koki’s disciplinary proceedings and the delay in bringing the leave application. Except for the annexures he has provided his affidavit is of no assistance to the substantive application.

11 The defendants further relied on their written submissions filed on 22 June 2009. In that document they referred further to written submissions filed by Ms Faith Barton Keene on 5 December 2006 but this document is not on file. The defendants submitted that the plaintiff was investigated and disciplined in accordance with the provisions of the Police Act. An authorized senior police officer, Superintendent Toakinini Akuila charged Mr Koki pursuant to Section 23(3)(a) of the Police Act. He was served his charges and given an opportunity to respond to the charges. After Mr Koki was penalized he exercised his right to appeal and he did forward his administrative appeal to the first defendant but the appeal was considered and declined. Mr Koki was not denied his rights under the Police Act. It is not a requirement of the law that the first defendant should have served copies of the investigation report and or other relevant documents and therefore there was no violation of the principles of natural justice. The defendants conceded that under Sections 24 and 25 of the Act it is a mandatory requirement that a disciplinary officer be appointed and he investigates the allegations and make recommendations for the first defendant to consider and determine the allegations. Whether or not those provisions were complied with were facts the defendants could not make "readily available" to this Court. However the defendants nevertheless maintained that they complied with those provisions.

12 On the issue of whether the penalty was unreasonable the defendants submitted that Mr Koki was penalized under Section 26 of the Act which provides for various administrative disciplinary penalties. The penalties were imposed after considering the complaint and witnesses statements and evidence and that those were made known to the plaintiff. The defendants submitted that there was no unreasonableness and no ultra vires exercise of powers by the first defendant. He properly and lawfully exercised his powers as provided for under Section 197 of the Constitution to maintain the integrity and to ensure the smooth running of the RPNGC.

ISSUES

13 The remedies sought and the grounds relied on raise two main issues. These are whether the first defendant complied with the Police Act 1988 (the Act) to bring administrative disciplinary proceedings against the plaintiff and whether the penalties were unreasonable. The first issue requires the Court to examine the Act and the administrative disciplinary procedures provided therein and determine whether those procedures were complied. The second issue requires the examination of the penalties against the nature of the complaint and the charges.

THE RELEVANT LAW

14 The plaintiff claims that the first defendant’s administrative action is unreasonable and in breach of the principles of natural justice. In our jurisdiction the duty to act fairly and to observe the principles of natural justice is not just a matter of common law. The Constitution at Section 59 sets down the minimum requirement for natural justice. Section 59 Constitution states:

Division 4.—Principles of Natural Justice

59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

15 It is not uncommon to find this minimum standard of the principles of natural justice required under the Constitution embodied in the whole body of enabling legislation for State departments and entities in our jurisdiction. For instance under Part III – Investigations (Sections 17 – 23 in particular Section 20) of the Organic Law on the Duties and Responsibilities of Leadership and under Part IV - Complaints and proceedings – (Sections 16 – 24) of the Organic Law on the Ombudsman Commission these Organic Laws provide for administrative investigative processes and the principles of natural justice are embodied as mandatory integral part of these processes. Part XIV – (Sections 50 – 52) of the Public Services (Management) Act 1995 which provides for administrative disciplinary procedures also embodies the minimum standard of the principles of natural justice required by Section 59 of the Constitution. What is common in these administrative disciplinary procedures is the need for the administrative authority to investigate, present charges and provide opportunity for the person investigated and charged to reply to the charge(s). It is sometimes referred to as the right to be heard on the charges. Where responses are made to the charge or the right to be heard is exercised by a response to the charge the administrative authority must give due consideration to the responses. These embody the principles of natural justice. These are but a few examples.

16 Part IV, Division 3 of the Police Act 1998 (the Act) provides for the procedure relevant to administrative disciplinary proceedings and it makes the principles of natural justice a mandatory integral part of the process. Section 19 of the Act provides for the appointment of disciplinary officer. Section 20 provides for various categories of disciplinary offences. I have quoted only the subsections that are relevant for the present purposes. Division 3 states in part:

Division 3.—Serious Offences

20. DISCIPLINARY OFFENCES

(1) A member of the Force who–

(a) ....

(j) while on duty acts offensively towards any member of the public; or ...

(o) without good and sufficient cause discharges a firearm; or

(p) uses unnecessary force on any person in the execution of his duty; or

(q) behaves towards another member in an oppressive, offensive, abusive or insulting manner; or...

(t) fails to exercise proper supervision over a member under his control; or

(ay) commits an act or misconduct which may be a criminal offence, not being a purely indictable offence, under any Act, regulation, or by-law; or

(az) acts in any manner, whether by word, conduct or omission which is prejudicial to good order and discipline in the Force, or which reflects discredit on the Force,

is guilty of a disciplinary offence and is liable to be dealt with and punished under this Division.

23. Dealing with serious offences.

(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

(c) be invited—

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

(ii) to give any explanation that he desires to give in regard to it.

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

(a) where it has been personally served on the member; or

(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.

24. Determination of charge.

(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—

(a) a person other than the person who has charged the member; and

(b) of superior rank to the member charged.

(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.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.

25. IMPOSITION OF PENALTY WHERE CHARGE SUSTAINED.

(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

(b) the Commissioner concurs with that opinion,

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

(3) Where–

(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,

the Commissioner shall dismiss the charge.

(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.

26. PENALTIES FOR SERIOUS OFFENCES.

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

(a) a fine not exceeding K200.00;

(b) reduction of the member’s salary;

(c) forfeiture of not more than four weeks’ pay;

(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;

(g) dismissal of the member from the Force.

(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.

(6) An application under Subsection (5) for a review may be effected by–

(a) delivery in person to a disciplinary officer; or

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

(c) delivery in such other manner as may be approved by the Commissioner,

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. [My underlining]

17 The plaintiff argued that the first defendant did not follow the procedures set down in the provisions referred to above to demote him by two ranks. Is the plaintiff correct?

18 The purpose of judicial review is to examine the process or the procedure followed or the steps taken by the decision-maker to reach the final decision he reached and which the plaintiff complains of and determine whether the process or procedure was proper and in accordance with the law. The principles on the nature and scope of judicial review of actions or exercise of powers by administrative authorities are well settled in our jurisdiction. That is, it is a process whereby a Court reviews the process by which an administrative authority has reached a decision. Judicial review involves reviewing the legality of the process and procedures followed to arrive at a decision. Where a plaintiff in his cause of action complains of an administrative authority not complying with the administrative procedures established by statute the court’s role is to examine the authority’s actions and determine if what the Parliament has said was followed. The reviewing court is not a court of appeal. In Associated Provincial Pictures House Ltd v Wednesbury Corporation [1948] 1KB 223; [1947] EWCA Civ 1; [1947] 2 ALL ER 680 Lord Greene MR held:

"The power of the court to interfere ... is not as an appellate authority to override the decision of the local authority, but as judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them..."

19 There are numerous relevant authorities in our jurisdiction: Kekedo v Burns Philip & Ors [1988-89] PNGLR 122; Chan v Ombudsman Commission [1998] PNGLR 171; Ombudsman Commission v Yama (2004) SC747. In Kekedo Kapi DCJ as he then was stated:

"the circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuse its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process".

20 In Ombudsman Commission v Yama (supra) the Court held:

"Proper matters subject of judicial review are illegality, procedural impropriety and irrationality or unreasonableness. The plaintiff must come to the Court promptly if he or she is genuinely aggrieved. ‘The right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy...’ (Review of Administrative Action, Law Book Co. 1987 at p. 22 adopted in John Mua Nilkare v Ombudsman Commission (1995) N1344)".

21 So how do these principles apply in this case? This Court has on previous occasions had the opportunity to interpret and apply parts of the Police Act 1995 although dealing with different circumstances in each case: John Magaidimo v Commissioner of Police N2752 (2004); Sudi Yaku v Commissioner of Police, Ex parte The State [1980] PNGLR 27; and OS No 542 of 2006 Wesley Gau v Sam Inguba and The Independent State of Papua New Guinea (02.07.08) (Unnumbered)(Unreported).

RULING

22 The alleged offence for which the plaintiff was disciplined occurred on 3 September 2001. The allegations were investigated by the RPNGC’s Port Moresby-based Internal Investigations Unit. On 27 October 2001 the plaintiff was interviewed by the investigation officers. Mr Koki denied the charges during the interview. On 17 January 2002 Mr Koki was served two charges both dated 10 December 2001. The first charge stated that Mr Koki unlawfully assaulted Mr Meck Apakas thereby contravening Section 20(1)(ay) of the Act. The second charge stated that Mr Koki failed to exercise proper supervision of his officers who unlawfully assaulted the same Mr Apakas thereby contravening Section 20(1)(t) of the Act. On 29 January 2002 Mr Koki forwarded to his Superior Superintendent John Anawe PPC Enga Province and the Port Moresby-based investigation team his written response dated 28 January 2002. Mr Koki did not hear from the investigation team until 24 June 2003 when he received a notice dated 13 June 2002 that he was demoted by two ranks from Inspector down to Senior Sergeant. The notice of penalty read, in part:

"Consider transferring him out of Porgera to Wabag and eventually out of Enga Province".

23 The undated Notice of Penalty for Serious Disciplinary Offence signed by the Commissioner of Police served on Mr Koki by Superintendent Anawe on 24 June 2003 stated that in relation to the three charges: "No explanation from you was received at Police Headquarters since these charges were served to (sic) your on 17 January 2002". It further stated that there is more than sufficient evidence to find the plaintiff guilty on all three charges. That there was evidence that Mr Koki physically assaulted Mr Apakas and that he failed to prevent constables Kalimda and Malken from assaulting Mr Apakas unprovoked and failed to prevent Constable Kalimda from discharging his firearm directly into the public. It further stated that for those reasons the charges were proven. For the first charge the plaintiff was demoted from Inspector to Chief Sergeant on salary point F081. In respect of the second charge Mr Koki was further demoted to Senior Sergeant on salary point F071. For the third charge the penalty was the same as for the second charge. The plaintiff appealed his penalties on 29 June 2003 but he was advised on 3 September 2003 that his appeal was unsuccessful.

24 It is striking for the court to note that Superintendent Anawe wrote to the first defendant 13 days later following the notice of penalty was served on Mr Koki. Mr Anawe made reference to witnesses fabricating evidence to substantiate the complaint against Mr Koki. More importantly Mr Anawe advised the first defendant that his office on the ground in Wabag never received any complaint from Mr Apakas. The complaint was received directly in Port Moresby. The setting up of the investigation team bypassed his command at the provincial level. He queried about the strict chain of command practiced in the RPNGC and stated that it should have been followed in this instance. Mr Anawe further confirmed that on 3 September 2001 he authorized Mr Koki’s team to go to the State premises occupied by Mr Apakas and retrieve certain State assets from the premises. He stated that Mr Koki’s actions on that day were justified. There is no evidence that the first defendant considered the PPC’s letter or that he had obtained a statement from the PPC and determine whether the PPC had directed Mr Koki and his officers to execute the duty on that day.

25 The disciplinary process under the Act commences with the receipt of a complaint or the existence of circumstances warranting the Commissioner of Police to appoint a disciplinary officer. The next step is where the Commissioner of Police appoints a disciplinary officer under Section 19 of the Act. This provision states:

19. DISCIPLINARY OFFICERS

(1) The Commissioner may from time to time and at any time appoint commissioned officers to act as disciplinary officers for the purposes of this Part.

(2) Where the Commissioner acts as a disciplinary officer the provisions of this part shall apply with any necessary modifications.

26 There is evidence that Inspector John Paumbari and Chief Sergeant John Kaona conducted a record of interview of the plaintiff on 27 October 2001. There is further evidence that Superintendent Tokanini Akuila being a commissioned officer authorized by the Commissioner of Police under Section 19 of the Act to lay charges laid the three charges subject of this application. However there is no evidence before this Court that a disciplinary officer, such as Superintendent Akuila, was ever appointed by the first defendant to conduct investigations into allegations against Mr Koki. I can only assume that such appointment may have been made because the defendants say so and the charges purport to say so, but where is the evidence to convince the court in light of the fact that the plaintiff is disputing that such an appointment was made. Was the appointment made verbally or was there an internal memo or an instrument making such appointment?

27 Section 19(1) of the Act does not suggest that the fact that an officer is a commissioned officer means that he automatically becomes a disciplinary officer. It seems to suggest that there is no permanent disciplinary officer. The Commissioner of Police appoints a commissioned officer "from time to time and at any time" to be a disciplinary officer. This means that where an administrative investigation is necessary the Commissioner of Police appoints such an officer. It is more or less an ad hoc appointment. I reiterate that there is no evidence presented by the defendants that neither Mr Akuila nor any commissioned officer was appointed as a disciplinary officer to investigate Mr Koki.

28 The fact that Section 19(1) is expressed in discretionary terms does not mean that the Commissioner of Police is free not to appoint a disciplinary officer. The discretionary term "may" expressed under Subsection (1) should be read relative to and or together with Subsection (2). That is to construct the provision in a manner to say that it is the Commissioner’s prerogative to either appoint a commissioned officer as a disciplinary officer or he appoints himself. I believe this is the proper construction when one reads Section 19 together with Section 24(1) of the Act. Section 24(1) states that in any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner. Section 24(1) is expressed in mandatory terms and therefore a mandatory rather than a discretionary obligation is imposed on the Commissioner of Police. Prior to any administrative investigation is conducted for the purposes of or under Part IV of the Act the Commissioner of Police must comply with Sections 19 and 24(1) of the Act. I am satisfied that the ground of review (b) raised in support of the application has been made out.

29 The second step in the administrative disciplinary process under the Act is that where there is reason to believe that an officer has committed a serious disciplinary offence either the Commissioner or an authorized disciplinary officer charges the office concerned. This step is provided for under Section 23(1) and (2) of the Act. Under Subsection (3) the officer shall 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 where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge. The officer has 14 days within which to respond to the charge(s), stating whether he admits or denies the truth of the charge and give any explanation that he so desires to give in regard to it.

30 Section 23(5) states that where a reply is not given by the officer 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 officer is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24 of the Act.

31 Section 24 of the Act provides for the determination of the charge(s). Subsection (1) states that in any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner. Subsection (1) provides for three distinct mandatory steps. Firstly, it repeats the Commissioner’s obligation under Section 19 of the Act in relation to the appointment of a disciplinary officer. Secondly, the disciplinary officer shall investigate the complaint or alleged disciplinary offence(s). Thirdly, the disciplinary officer shall report his investigations and findings to the Commissioner of Police.

32 As I stated earlier the ground of review that no disciplinary officer was appointed has been made out. As for the second step there was an investigation conducted by an investigation team. However since there is no evidence that a disciplinary officer was appointed to conduct investigations into the alleged offence committed by the plaintiff there is serious doubt about the validity and propriety of such an investigation. In relation to the third step I can only assume that a purportedly appointed disciplinary officer made his findings and recommendations and furnished a report to the first defendant. But evidence of such report and findings and recommendations are not before this court. Is the first defendant deliberately hiding this pertinent evidence from this court? Or should the court under these circumstances draw reasonable inference that the first defendant and his disciplinary officer have no such evidence of the investigation report and findings.

33 I have set out earlier the purpose of judicial review. In its administration of justice this court has an obligation to examine the actions of the first defendant. In the process it is necessary for this court to examine all the material facts and evidence that were before the first defendant and which he considered before reaching his final decisions. This is so that this court can examine and determine whether the first defendant did comply with the statutory procedural requirements of Part IV of the Act. It is necessary for the first defendant to demonstrate that there was convincing evidence before him which warranted the decision he reached and to rebut the suggestion that the penalties are far too excessive and therefore unreasonable. The first defendant had the onus to rebut the plaintiffs claims of procedural irregularity allegedly committed by him. Finally, even if such investigation report, findings and recommendations do exist their validity and legality is not free from serious doubt. This conclusion flows on from the finding that no disciplinary officer was appointed.

34 The next step is provided for under Subsection (3) of Section 23. Here 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. The consideration of the officer’s response and explanation(s) to the charge(s) is a mandatory duty imposed on the disciplinary officer. I am satisfied that the disciplinary officer never considered Mr Koki’s explanations and responses to the three charges. This is because paragraph No 2 of the undated Notice of Penalty states so on page 1. It states: No explanation received from you was received at Police Headquarters since these charges were served to you on 17th January 2002". The charges were served on Mr Koki on 17 January and he responded and provided his explanations to the charge 12 days later on 29 January 2002. The notice of penalty was served on Mr Koki on 13 June 2003. Whilst the unexplained delay is a matter of concern it is pertinent to note that the first defendant has taken one year and six months to conclude the proceedings.

35 There is no evidence that the first defendant or his purportedly appointed disciplinary officer enquired with Mr Koki, notwithstanding that it is not a statutory and procedural requirement. It is matter of the minimum standard of the principles of natural justice when the first defendant is dealing with an issue that affects the career of an officer and his livelihood and the welfare of his family. This would have demonstrated the first defendant’s genuine desire to go out of the non statutory requirement to be fair to the plaintiff. I further note that the PPC Wabag then, Superintendent Anawe confirmed that he received from the plaintiff his copy of the plaintiffs reply to the charges and that furthermore the plaintiff did post his explanations and response to the charges to the Internal Investigations Unit in Port Moresby. There is evidence that the only material considered by the first defendant were the complaints and the witnesses’ statements – if these statements did and do exist. These were not tested against the plaintiffs response and this was clearly unreasonable.

36 What I have just stated is necessary given the peculiar circumstances of this country. The public complaint against police brutality and breach of human rights is quite common. The police do not enjoy favourable reputation in the public mind and so the police hierarchy must minimize this damage. This involves weeding out such police conduct if it is true but it also includes investigating and making sure that such complaints are not baseless, frivolous and vexatious aimed at simply damaging the reputation of the force or that of an officer. The police hierarchy must not accept complaints against the police at face value. There are far too many claims against the State following alleged unlawful police raids and gross breaches of the Constitution relating to breaches of human rights. This costs the State substantial amount of payouts every year. Under such circumstances nothing stops a person from bringing false complaints against police officers in the hope of claiming damages against the State in civil suits. On a personal level unfounded complaints aimed at destroying the career and livelihood of officers must be prevented. The first defendant has a serious obligation to ensure that both his officers and the public are protected. He must bring fairness and balance into his investigative processes.

37 Where administrative authorities exercise administrative powers which may affect others they are obliged to observe the rules of natural justice. Such obligation in our jurisdiction is an onerous one. It is onerous because it is not just a requirement of the common law which we have adopted as our underlying law under Schedule 2.2 of the Constitution. The principles of natural justice developed under the underlying law are subject to the principles of natural justice entrenched both in our Constitution and our statutes, so says Section 59(1) Constitution. It is quite unique in our jurisdiction as to how we have valued and recognized the importance of fairness or the principles of natural justice. First, we have adopted the common law principles of natural justice as our underlying law. Secondly, the principles of natural justice are ensured all throughout our statutes. As if these were inadequate we have provided for it in our Constitution at Section 59. So we have provided for fairness at all levels of the hierarchy of laws in our jurisdiction. Furthermore, as if all these are inadequate the Constitution has set down the barest minimum standard of the principles of the natural justice under Section 59. That minimum requirement is the duty to act fairly and, in principle, to be seen to act fairly. I reiterate that any administrative authority whose actions or decisions affect the rights of others has an onerous obligation to be fair.

38 In the present case the first defendant had onerous obligation to act fairly. This included properly considering Mr Koki’s reply or response to the charges because the end result had serious implications on his rights including loss of his job and which in turn affected the welfare of his young family. Here was a very promising young officer whose performance earned him progressive promotions and who would have made invaluable contributions to this country throughout his career. Like many of his colleagues Mr Koki risked his life and served this country on Bougainville during the time of the prolonged crisis there in the late 1980s into the 1990s. His services to this country ought to have been given due consideration and not ignore it. There is a further peculiar consideration the first defendant or anyone placed in that position should always take into account when investigating and disciplining police officers based in Enga Province compared to other parts of this country. Generally speaking officers perform their constitutional duties with pride, dedication and loyalty in the most difficult of social settings offered to them by Enga Province. In this province sometimes experiences are such that the particular circumstances and the people’s attitude can make even the best police training and strong discipline in an officer’s arsenal can give way to the human weaknesses. These facts called for the first defendant to observe the minimum standard of natural justice imposed on him by the Constitution when addressing his mind to a matter the end result would seriously affect the future of an officer including his family. The first defendant failed to meet the minimum requirement of the principles of natural justice imposed on him by Section 59 of Constitution and the same requirement of fairness embodied under the Police Act. I am satisfied that the grounds of review (a), (c) and (d) have been made out.

39 This leads me to the final ground of review, namely unreasonableness of the penalties. Were the penalties unreasonable? Having determined that the first four grounds of review have been made out, it is futile for me to determine this ground of review. The first defendant did not follow the procedural requirements laid down by the Act and he acted ultra vires and he could not have come to the penalties he imposed on Mr Koki. Without getting into much discussion the fact that the first defendant acted without following the statutory procedures is unreasonable in itself in that no reasonable person placed in his position determining the issue would have acted in the manner as he did. Therefore the penalties in the end were unreasonable. If I had found that the first defendant acted following the procedures set out in the Act it is still open to this court to consider whether the penalties were reasonable. As Lord Greene MR stated in Associated Provincial Pictures House Ltd v Wednesbury Corporation (supra):

"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere".

40 The answers to the two main issues I have set out to answer are as follows. First, the first defendant failed to comply with the Act in disciplining Mr Koki. The grounds of review are made out and I grant the orders sought in Mr Koki’s originating summons. Secondly, as a result of the findings in relation to the first issue it was unreasonable to have imposed the penalties at all without complying with the mandatory procedures under the Act.

41 Finally, Mr Koki has sought an order that he be reinstated to his rank as an Inspector and that his entitlements be paid to him backdated to the date of his demotion. I am aware that Mr Koki is terminated from RPNGC following separate disciplinary proceedings. Under the circumstance reinstating him back to his position as an Inspector may not be an appropriate remedy. However it is not unreasonable to grant order to entitle him to salary and entitlements which he otherwise would have received but for his improper demotions.

ORDERS

1. The Serious Disciplinary Offence Report dated 10 December 2001 wherein the plaintiff was charged with unlawfully assaulting a Mr Meck Apakas on 3 September 2001 on Beat Street, Wabag, Town Enga Province pursuant to Section 20(1)(ay) of the Act is null and void.

2. The Serious Disciplinary Offence Report dated 10 December 2001 wherein the plaintiff was charged with failing to exercise proper supervision over officers under his control pursuant to Section 20(1)(t) of the Act on 3 September 2001 on Beat Street, Wabag, Town Enga Province is null and void.

3. Any investigation conducted and any serious disciplinary report issued and any penalty imposed on Mr Koki in relation to the third charge is null and void.

4. The undated notice of penalty for serious discipline offence punishing the Plaintiff for the charges referred to under Orders 1 – 3 above and the same notice which was attached to a minute dated 13 June 2003 by the first defendant addressed to PPC – Enga Province is null and void.

5. An order in the nature of certiorari is hereby granted to bring into this court and be quashed the three charges or serious disciplinary offences report dated 10 December 2001 respectively and referred to above under Orders 1 – 3.

6. An order in the nature of certiorari is hereby granted to bring into this court and be quashed the undated notice of penalty served on the plaintiff on 23 June 2003 and which is referred to above under Order 3.

7. An order that the plaintiff be reinstated to his former position of Inspector is refused.

8. The second defendant shall pay the plaintiff all his salaries and other usual entitlements he would have received at Inspector’s rank backdated from the date of his demotion to the date of his termination from the RPNGC. For the avoidance of doubt the plaintiff is only entitled to backdated payment of such salaries and such usual entitlements calculated as the difference between the salaries and entitlements he received from the date of his demotion to the date of his termination and those that he would have received as an Inspector from the date of his demotion to the date of his termination.

9. Costs follow the event and such costs to be taxed if not agreed.

10. I award interests at 8% pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 1962 calculated from the date of the institution of these proceedings to the date of this judgment.

___________________________________

Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendant