Aegaiya v Baki, Commissioner of Police [2009] PGNC 92; N3693 (27 July 2009)

N3693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 748 OF 2007

ROBIN AEGAIYA
Plaintiff

V

GARI BAKI, COMMISSIONER OF POLICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2009: 3, 4 June, 27 July

JUDICIAL REVIEW – grounds of judicial review – disciplinary charges – whether laying a charge under a repealed law is an error of law.

JUDICIAL REVIEW – remedies – whether delay in applying for leave for judicial review is relevant when the court exercises discretion whether to grant relief in a substantive application for judicial review.

The plaintiff is a member of the Police Force charged in April 2000 with a disciplinary offence under the repealed Police Force Act (Chapter No 65 of the Revised Laws). The law in place at the time he was charged was the Police Act No 37 of 1998. He was found guilty of the offence and in 2001 demoted to the rank of Chief Sergeant. In December 2007 he applied for leave to seek judicial review of the penalty of demotion on the ground that he had been charged under a non-existent law. In February 2008 leave was granted. This is a trial of the substantive application for judicial review.

Held:

(1) It is part of the principles of natural justice – and part of the right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence.

(2) Here, the charge was drafted under a law that was no longer in existence. The charge was defective and therefore the decisions to find the plaintiff guilty of the charge and to impose a penalty were defective.

(3) However, the substantial and unsatisfactory delay between those decisions and the filing of the application for leave (six years, six months) and the further delay between the granting of leave and the hearing of the judicial review (one year, three months) make it detrimental to good administration to reinstate the plaintiff.

(4) The primary relief sought by the plaintiff (reinstatement and back-pay) was accordingly refused.

(5) However, declarations were made that the charge laid against the plaintiff, the decision to find him guilty and the decision to demote him were made unlawfully; and orders were made requiring the Commissioner of Police to amend the personnel file of the plaintiff to clearly record and reflect the Court’s findings.

Cases cited:

The following cases are cited in the judgment:

Clement Kilepak v Ellison Kaivovo (2003) N2402
Lae Rental Homes Ltd v Viviso Seravo (2003) N2483
Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01
Michael Winmarang v David Ericho and The State (2006) N3040
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00
The State v John Ritsi Kutetoa (2005) N2814
Tony Vagi Heni v Guba Idau Maima (1994) N1201

Counsel:

R Uware, for the plaintiff
C Havak, for the defendants

1. CANNINGS J: The plaintiff, Robin Aegaiya, has been a member of the Royal Papua New Guinea Constabulary (the Police Force) since 1974. He was promoted on several occasions, most recently in 1992 to the rank of Inspector. That was the rank he held in April 2000 when, while holding the position of OIC Prosecutions at Goroka, Eastern Highlands Province, he was charged with a disciplinary offence. The charge was being careless in the discharge of his duties in that he lost a court exhibit, a Winchester revolver, which was under his custody and safekeeping. He denied the charge but in June 2001 was found guilty and demoted to the rank of Chief Sergeant.

2. In December 2007 he applied for leave to seek judicial review of the penalty of demotion. In February 2008 leave was granted. This is a trial of the substantive application for judicial review.

THE GROUND OF REVIEW AND THE RELIEF SOUGHT

3. The primary ground of judicial review is that the charge laid against the plaintiff was defective as it was based on a non-existent law, the repealed Police Force Act (Chapter No 65 of the Revised Laws). The law in place at the time he was charged was the Police Act No 37 of 1998. He argues that the decision to find him guilty and the decision to demote him were made without any legal basis and he should be reinstated to the rank of Inspector and paid back-pay to the date of his demotion.

4. The first defendant, the Commissioner of Police, disagrees. His position is that the charge was validly laid in accordance with the repeal and savings provisions of the Police Act. No errors of law were committed but even if there were the matter has been too long delayed to warrant reinstatement.

ISSUES

5. There are four issues before the Court:

1. Was the charge defective?

2. If the charge was defective, what are the consequences?

3. Has the matter been too long delayed to warrant reinstatement?

4. What declarations or orders should the Court make?

1. WAS THE CHARGE DEFECTIVE?

6. The charge was laid under Section 43(c) of the Police Force Act, which made it a disciplinary offence for a member of the Force to be careless in the discharge of his duties. At the time the charge was laid – April 2000 – the Police Force Act had been repealed. It was repealed and replaced by the Police Act 1998, which commenced operation on 1 February 1999.

7. Mr Havak, for the defendants, submitted that this was not a problem because of Section 157 (repeals and savings) of the Police Act, which states:

(1) The Police Force Act (Chapter No 65) is repealed.

(2) The repeal of the Police Force Act does not affect the validity of anything done under that Act and all Orders, Commands, Decisions and other things given made or done under that Act which were in force immediately before the commencement of this Act continue in force as if given made or done under this Act.

(3) Proceedings commenced under the Police Force Act continue as if that Act had not been repealed.

(4) The Police Force Regulation is continued as if made under this Act.

(5) Where in any other enactment there is a reference to the Police Force Act (Chapter 65), such reference shall be read as if it were a reference to this Act and a reference to a portion of the Police Force Act shall be read as if it were a reference to the corresponding portion of this Act.

8. Mr Havak submits that Section 157(2) applies to the present case as it protects orders, commands, decisions and other things under the Police Force Act that were in force immediately before the commencement of the Police Act.

9. However, Section 157(2) simply ensures that things done under the repealed Act continue in force – they do not lose their force or effect – even though there is a new Act in operation. For this provision to apply in the present case, the charge against the plaintiff would have had to be laid before the date of commencement of the new Act: 1 February 1999. But the charge was not laid until April 2000, more than twelve months after the commencement of the new law.

10. Although the offence was alleged to have been committed during the period from 21 December 1998 to 11 April 1999 (during part of which period the old law still applied), the disciplinary offence provisions of the Police Act were more in the nature of an amendment than a repeal of the disciplinary offence provisions of the Police Force Act. Therefore the charge should have been laid under the new law. Similar principles of statutory interpretation apply to criminal cases. It sometimes happens that a person will be charged with committing an offence but the law has changed between the time that they are alleged to have committed the offence and the time that they are charged. The general rule is that if the new law has, in substance rather than form, amended (rather than repealed) the old law, the person should be charged under the new law. Only if the new law is a completely new law that amounts to a repeal, in substance rather than form, of the old law, should the charge be laid under the old law (The State v John Ritsi Kutetoa (2005) N2814).

11. I reject the defendants’ argument. This is a case where the charge, laid more than 12 months after commencement of the new law, the Police Act 1998, should have been laid under that law. As it was laid under the repealed law, the charge was defective.

2. IF THE CHARGE WAS DEFECTIVE, WHAT ARE THE CONSEQUENCES?

12. It is part of the principles of natural justice – and part of the right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy the person charged will not know the case that he or she has to answer. The person laying the charge and the person determining the charge will not have a clear mind on the real issues to be decided.

13. If the charge is defective it follows that any decision to find the charged person guilty and any penalty imposed based on the guilty finding will also be defective (Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00; Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01; Michael Winmarang v David Ericho and The State (2006) N3040).

14. The decision to find the plaintiff guilty and the decision to demote him were therefore affected by error of law and made contrary to the principles of natural justice. Neither decision was lawfully made.

3. HAS THE MATTER BEEN TOO LONG DELAYED TO WARRANT REINSTATEMENT?

15. It is now time to consider the consequences of the finding that the plaintiffs demotion was unlawful. It does not necessarily follow that he should be reinstated. This is a judicial review, which is a two-stage decision making process. First the plaintiff must establish one or more grounds of judicial review. If he succeeds, the second stage of the process is persuading the court that he should be granted a remedy (Mision Asiki v Manasupe Zurenuoc (2005) SC797).

16. Deciding on what remedies should be granted is a matter of discretion. One of the things the court must take into account is whether there has been any delay on the part of the plaintiff; and if there has been whether there is a satisfactory explanation for it. Delay in seeking relief is one of the main things the court takes into account when it decides whether to grant leave for judicial review. It is also a vital consideration if leave is granted and the matter goes for substantive judicial review (Tony Vagi Heni v Guba Idau Maima (1994) N1201; Clement Kilepak v Ellison Kaivovo (2003) N2402; Lae Rental Homes Ltd v Viviso Seravo (2003) N2483).

17. The issue of delay is to be considered under Order 16, Rule 4(1) (delay in applying for relief) of the National Court Rules, which relevantly provides:

... where in any case the Court considers that there has been undue delay in making an application for judicial review ... the Court may refuse to grant ... any relief sought on the application, if, in the opinion of the Court, the granting of the relief sought ... would be detrimental to good administration.

18. Mr Uware for the plaintiff concedes that the delay between the time of the plaintiffs demotion (June 2001) and the time of filing the application for leave to seek judicial review (December 2007) is substantial but submits that there are good reasons for it and that this was explained to the satisfaction of the Court at the leave hearing.

19. The fact that it was satisfactorily explained at the leave hearing is neither here nor there. A higher standard applies at the substantive hearing, especially where, as here, the defendants are taking issue with the delay.

20. So, what is the explanation? The plaintiff has given evidence that in July 2001 he wrote to the Commissioner of Police seeking an administrative review of his demotion and did not receive a reply. In 2002 he was on leave in his home province of Southern Highlands and was caught up in the election-related violence that was widespread at that time. The roads around his village were blocked and he was stranded until 2004 when he managed to walk to Porgera, and from there he returned to Goroka. He had been taken off the payroll and it took some time to get his professional career back on track. He tried to get legal advice from private legal firms but could not afford their fees. He approached the Public Solicitor in February 2007 and it was with the Public Solicitor’s assistance that he eventually, in December 2007, secured a copy from his personnel file of the Commissioner’s reply to his letter of July 2001. The Commissioner’s letter – saying that the decision to demote him to Chief Sergeant still stands – was dated 14 August 2001 but he maintains that it was never delivered to him. Once he got a copy of the letter, prompt action was taken to file the application for leave, in December 2007.

21. I do not think that this is a satisfactory explanation. The plaintiff had no legal right to ask for an administrative review of his demotion. There is no provision of the Police Act that provides for such a review or for any reconsideration by the Commissioner of a decision to impose a penalty for a disciplinary offence. Section 27 (no right to appeal) makes that clear:

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

22. There was no good reason for the plaintiff to be waiting for a reply to his request for an administrative review. The plaintiff is a long-serving member of the Force – by 2001 he had served for 27 years – and having been involved in police prosecutions he is expected to be fairly well versed in the law. He would surely have known the importance of getting a case started promptly after he was demoted. As for his being stuck in the village for two years, it is hard to believe that a senior member of the Police Force would not be able to negotiate his way safely out of his own village in his own province even in the face of a hazardous security situation. Be that as it may he emerged in 2004 and still waited almost three years before approaching the Public Solicitor. And then it took another ten months to get his application for review filed.

23. In the meantime, things have moved on. Commissioners of the Force came and went (John Wakon to Joseph Kupo to Sam Inguba to the current Commissioner, Gari Baki). Members of the Force involved in the plaintiffs case changed rank or position or left the Force. I find myself in agreement with Mr Havak’s submission that in the fluid and dynamic environment which is policing in Papua New Guinea, it would be counterproductive and detrimental to the good administration of the Police Force to turn the clock so far back and reinstate the plaintiff.

24. I also take into account that a long time passed between the granting of leave (February 2008) and the hearing of the judicial review (June 2009), a period of one year, three months, which is another undue delay that has not been satisfactorily explained.

25. I conclude that the matter has been too long delayed to warrant reinstatement and I refuse to make such an order. It follows that the plaintiff is not entitled to any back-pay.

4. WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

26. Though he will be neither reinstated nor paid back-pay, I think that the plaintiff, having come this far and proven the ground of review on which his case was based, is entitled to a declaration that what happened was unlawful. He was dealt with unfairly as the charge laid against him was defective and the decisions made concerning him were unlawful. I will make declarations to that effect and also make orders to ensure that the plaintiffs personnel file reflects this. This will mean that subject to any other disciplinary offences appearing on his file he will have a clean slate.

ORDER

1. It is declared that the disciplinary charge dated 10 January 2000 and served on the plaintiff on 27 April 2000 is unlawful and that the decision that the charge was sustained and the decision that the plaintiff was demoted to the rank of Chief Sergeant, conveyed by the notice of penalty signed by J Kupo QPM, Acting Commissioner of Police, are unlawful.

2. The first defendant, the Commissioner of Police, shall, within 30 days after service of this order upon him, take all steps necessary to amend the personnel file of the plaintiff so that it clearly reflects this order and without limiting the generality of the foregoing shall place a sealed copy of this order and the judgment of the National Court on the file and ensure that all records of the Police Force record and show that the decisions referred to in order (1) above have been made unlawfully.

3. The first defendant, the Commissioner of Police, shall ensure that any future application by or consideration of the plaintiff for promotion, transfer, redeployment or any other change in his status or terms or conditions of his service or employment is dealt with on its merits and in light of the declarations and orders of the National Court in these proceedings.

4. Other relief sought under the notice of motion filed on 13 February 2008 is refused.

5. The parties shall bear their own costs.

6. Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________

Public Solicitor: Lawyer for the Plaintiff
Solicitor –General: Lawyer for the Defendants