Polup v Kundi [2011] PGNC 8; N4215 (11 February 2011)

N4215

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS.NO 768 OF 2009

BETWEEN:

GEORGE POLUP
Plaintiff

AND:

ALLAN KUNDI – PROVINCIAL POLICE

COMMANDER, E.N.B.P
First Defendant

AND:

GARI BAKI –
POLICE COMMISSIONER OF PAPUA NEW GUINEA
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Kokopo: Lenalia; J.
2010: 22nd October & 11th February 2011.

JUDICIAL REVIEW – Substantive Judicial Review – Judicial review from
decision of 1st and 2nd Defendants to terminate the plaintiff

PRACTICE & PROCEDURE – Judicial Review – Judicial review of decision by 1st and 2nd Defendants terminating the plaintiff's employment as a policeman

Cases cited

Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122
Chan v Ombudsman Commission [1998] PNGLR 171 or Ombudsman Commission v Yama (2004) SC747
Ila Geno and Others v Independent State of Papua New Guinea [1993] PNGLR 22

Counsel

Mr. P. Yange, for the Plaintiff,
Mr. F. Cherake, for Defendants

11 February, 2011

1. LENALIA, J. The plaintiff was granted leave for judicial review against the decisions of the 1st and 2nd Defendants on 16th April 2010. The substantive judicial review was heard on 22nd October 2010. The decision has been reserved until today.

Background history

2. The brief background history of this case is as follows. On the night of 19th and early on 20th May 2006, the plaintiff had been drunk some where and he came to the Kokopo Police Station near the duty office and the flower bed next to the flag pole where he laid down and immediately went to asleep. He slept on the grass along the flower bed until day break of the above date.

3. Constable Alfred Paisi was on duty that night made a statement about what he saw and witnessed the plaintiff do on the scene. He said, he made an attempt to wake the plaintiff but the plaintiff tried to wake up but found it hard to wake up. The reason he gave for this is because the plaintiff was too drunk. He noticed that the plaintiff's trousers and pants were half way down between his thighs and knees.

4. He finally woke up and, Constable Alfred told him to pull his trousers and pants up. The plaintiff mumbled something and said he wanted to go to the toilet. He pulled his trousers and pants further down and sat up on the same flower-bed and excreted. After he had excreted he pulled his trousers up then walked straight up to the duty office and entered and spoke to duty officers.

5. Alfred says that when he was in the office, the plaintiff speech was slurred, he was talkative and his eyes were red. Sergeant Michael Koaliu made a similar statement. He too witnessed the plaintiff excreting on the flower-bed and saw the plaintiff's action and commented that the plaintiff acted abnormally because he was very drunk. He was talkative and disorderly and his speech was slurred and he had red eyes. These are symptoms of drunkenness according to Sgt. Koaliu.

6. Chief Sergeant Stephen Kaia Ula made a similar statement with the same sentiments about the plaintiff's reckless behavior. This officer reveals in his statement that after the plaintiff had excreted, he pulled his trousers up and went to the duty office. It was Chief Sergeant Ula who asked the plaintiff to get some soil and cover his exciter.

7. Following the incident, the matter was reported to the various channels then on to the 1st Defendant and finally to the 2nd Defendant. He was served with a notice of serious disciplinary charge for excreting on the public place.

Law

8. The power of this court to review a decision of an administrative body or quasi legal authority comes from a number of sources. First s.59 of the Constitution states:

"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."

9. Secondly, s.155 (3) and (4) further gives the Supreme and National Courts the power to review decisions of administrative authorities. This section states:

"(3) The National Court—

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where—

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) 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."

10. The principles in relation to judicial review is that this Court has inherent power to review a decision of judicial authority or decisions made by quasi judicial authorities or administrative bodies. Such power comes from the sections quoted above and Order 16 of the National Court Rules.

11. It has been said that the reviewing court is not a court of appeal: Chan v Ombudsman Commission [1998] PNGLR 171 or Ombudsman Commission v Yama (2004) SC747. The purpose of judicial review is to examine the procedure followed or the steps taken by a person in authority whether quasi judicial or administrative decision-maker to reach the final decision he reached and which the plaintiff complaints of to determine whether the process or procedure was proper and in accordance with the law.

12. The principles of judicial review of actions or exercise of powers by administrative authorities are well settled in our jurisdiction.

13. It is a process whereby this Court sitting as the reviewing Court to review the process taken from the time the plaintiff was served with the notice of the disciplinary charge to the time of hearing and to the time he was terminated. Judicial review therefore involves reviewing the legality of the process and procedures followed to arrive at a decision: Kekedo v Burns Philip & Ors [1988-89] PNGLR 122.

14. The plaintiff relies on the following six grounds on this review:

1. The serious disciplinary charge was laid on 14th June 2006. It was only served on him on 3rd May 2007. It was served late and this was contrary to sections 37 (3) and (4) (b) of the Constitution and section 23 of the Police Act.
   
2. There was no full and prompt thorough investigation made by the 1st and 2nd Defendants into the allegations os as to allow the plaintiff to immediately recall sufficient evidence to defend such allegations and to reply accordingly.
   
3. The E.N.B Provincial Internal Investigations Unit did not have a complete file containing any disciplinary records as the source of these proceedings.
   
4. The Notices of penalty documents served on the plaintiff on 9th September 2008 and the refusal on the request for a review dated 30th of that month did not contain the "official insignia" of the 2nd Defendant which lacked authentication and credibility.
   
5. The actions by the defendants amounted to breach of natural justice and were bias contrary to s.59 (2) of the Constitution.
   
6. The decision to dismiss the plaintiff was oppressive in the circumstances as against the nature of the offence committed by the plaintiff.
   

15. The remaining relief sought in the Originating Summons is that the plaintiff be reinstated to his position as Constable in the Police Force with all his entitlements as from the date of his dismissal and for the 1st and 2nd Defendants to pay damages and costs suffered by the plaintiff.

16. The disciplinary offence laid against the plaintiff was laid pursuant to s.20(1)(az) of the Police Act. That proviso states that where a member of the Force "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."

17. The notice of the serious disciplinary charge dated 14th June 2006, contained self-explanatory information telling the plaintiff that, if he could not understand the charge he could consult the Police Station Commander or his immediate superior to explain the charge to him. On the last paragraph of that charge, he was informed that if he did not response within 14 or 28 days from the date of receipt of the charge, the disciplinary authority would take it that, he denied the charge.

18. However the plaintiff's evidence shows that, he replied within 14 days. On his letter dated 17th May 2007 to the Director of Internal Affairs at the Police Headquarters at Konedobu, the plaintiff said that he was guilty of the charged. He said however that, he was not summoned to be told about what he did.

19. The plaintiff was charged with a serious disciplinary charge. The Police Commissioner is empowered by Sections 23 and 24 of the Act to appoint a disciplinary officer to conduct investigations and report to the Commissioner. Under s.26 of the Act, the Commissioner is given the power to decide on an appropriate penalty to be imposed and depending on the nature of the offence charge, he imposes the penalty accordingly. I quote the above Section which state:

"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."

20. On the instant case, on 14th May 2007, the Provincial Police Commander Chief Inspector Allan Kundi wrote to the Director of Internal Affairs recommended that when adjudicating on the penalty, a fine was recommended.

21. Chief Inspector Duwang, the then officer-in-charge of Discipline on a minute to the DIA dated 23rd April 2008, indicated that he varied the recommended penalty of 4 weeks pay being cut from his salary, by the adjudicator and instead he recommended dismissal because of the serious nature of the charge displaying irresponsible attitude and lack of respect for the Constabulary and painting the bad image of the Force.

22. On another minute to the Commissioner by the Acting Deputy Commissioner Chief Inspector J. Wan dated 27th May 2008, he indicated that although the charge may not have been considered serious, the plaintiff had gone through numerous counseling but he had not improved and he should not be in the Force.

23. The plaintiff lodged a review with the 2nd Defendant on 18th September 2008. On 30th of that month, after considering all recommendations, the Police Commissioner wrote back to the plaintiff advising him that he has considered the reasons given by the plaintiff on review and has also considered the facts and evidence adjudicated upon by the disciplinary officer and considered that the decision for dismissal should stand.

24. A detailed explanation of the action taken by the Police Force right from the time the plaintiff was charged right through the disciplinary processes to the time the plaintiff was informed about the penalty then to the time he appealed is contained in the affidavit of the Adjudicating Officer Ms. Alexander Tokura dated 17th September 2009. She was based in Konedobu Police Headquarters, Port Moresby at the time the plaintiff was charged and disciplined.

Findings

25. I find that the grievance against the delay factor alone should not be considered although it may have some weight. All other grounds are unmeritorious and I find that, the process right from the time the plaintiff was charged to the time the Police Commissioner decided on and refused reinstatement of the plaintiff's appeal was proper in law.

26. On this case, the plaintiff was charged with a serious disciplinary offence. The act of excreting on a public place and the flower-pot where the flag-pole is and where PNG flags flies was disgraceful and demeaning conduct on the part of the plaintiff to the Government of the day and cannot be tolerated within the Force.

27. On the fourth ground of his grievance, the plaintiff says that, the notices of penalty served on him, did no contain the official insignias of persons in authority. This argument is flawed. I find those documents properly signed and in bold type the name of the Police Commissioner. (See Ann. "O" and "P").

28. I find all disciplinary processes within the Police Force were fully complied with in accordance with the Police Act 1998. On the delay factor, I am of the view that consideration such as the location where the plaintiff was working and the process of serving documents takes time. This was not the case where the plaintiff denied the charge.

29. This was the case where the plaintiff pleaded guilty to the charge and after he was dealt with by the disciplinary officer, he appealed to the Commissioner and I am of the view that, the Second Defendant appropriately decided on the issue of dismissal. I am also of the view that the plaintiff was appropriately punished for his disgraceful and improper conduct. I find that there was no breach of natural justice. I dismiss this case and order the parties to meet their costs.

__________________________________

Warner Shand Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants