Kuringin v Baki [2017] PGNC 26; N6619 (15 February 2017)

N6619 PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 486 OF 2009

BETWEEN

JOSHUA KURINGIN
Plaintiff

AND

GARI BAKI, COMMISSIONER OF POLICE
First Defendant

AND

DEPARTMENT OF POLICE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J

2017: 13^th & 15^th February

JUDICIAL REVIEW – Review of Commissioner of Police’s decision to dismiss member – Dismissal from Police Force – Member convicted by District Court of criminal offences – Unlawful assault – Sentenced to an imprisonment term of three months wholly suspended – Whether dismissal instant – Police Act – Section 33

Cases cited:

Antonia Dawa v. Sam Inguba, Commissioner of Police & The State (2005) N2899
Ua Rage v. Grant Muddle & The State: OS (JR) No. 246 of 2016 (Unnumbered & Unreported Judgment of 7^th December 2016 per Makail J)
Counsel:

Mr Jeffrey Lome, for Plaintiff
Ms Bathsheba Kulumbu, for Defendants

JUDGMENT

15^th February, 2017

1. MAKAIL J: This is an application for judicial review of the decision of the First Defendant to dismiss the Plaintiff from the Police Force on disciplinary grounds.

2. The brief uncontested facts are that in March 2004, the Plaintiff was charged by police with one count of drunk and disorderly behaviour and two counts of unlawful assault of two other members of the Police Force contrary to Sections 4 and 6 (3) of the Summary Offences Act. On 16^th April 2004, he was convicted by the Kerema District Court on the charges of unlawful assault and for each offence, sentenced to an imprisonment term of three months, which was wholly suspended and placed on good behaviour bond.

3. Following that, on 31^st May 2004 the First Defendant laid ten serious disciplinary charges (“disciplinary charges”) on him under the Police Act. Eight of them related to the unlawful assault of his colleagues and superiors, one of them being the Provincial Police Commander for Gulf Province. The remaining two related to being drunk and disorderly behaviour. The Plaintiff’s conduct was considered disrespectful, criminal in nature, prejudicial to the Police Force and a misconduct under Section 20 (1) (d), (r), (ay) & (az) respectively.

4. He was invited to provide a response to the disciplinary charges within twenty-one days which he did, denying them and explaining why he should not be found guilty of these disciplinary offences.

5. The First Defendant considered his response and upheld the disciplinary charges and by way of penalty, dismissed him from the Police Force.

6. According to the grounds of review he alleged, amongst other things, that the finding of guilt by the First Defendant was wrong because the First Defendant failed to or did not give adequate consideration to the statements of witnesses whose evidence showed that he did not assault his colleagues.

7. As to penalty he was not heard before being dismissed by the First Defendant, hence denied natural justice. Further, the First Defendant failed to take into account or did not give adequate consideration to his unblemished criminal and disciplinary record in the Police Force in addition to being a first-time offender hence the penalty of dismissal was too harsh and severe in the circumstances.

8. It is irrelevant though unclear from the evidence whether the convictions by the District Court followed a contested hearing or a guilty plea. But there is no evidence that they have been set aside on appeal and in any case, his counsel confirmed that, they have not been set aside.

9. In a case where a member of the Police Force is convicted by a Court of Law of a criminal offence, in terms of discipline, how does the Commissioner of Police deal with it? Does the Commissioner invoke the disciplinary procedure under Part IV (Discipline) Sections 18 to 31 to investigate and determine it or dismiss the member forthwith based on the conviction? I consider this to be the critical issue. It was raised by the Court in light of Section 33 of the Police Act which states:

“33. Person convicted of criminal offence.

(1) Subject to Section 34, no person who has been convicted in any court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or reappointed to the Force.

(2) A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.”

10. In Antonia Dawa v. Sam Inguba, Commissioner of Police & The State (2005) N2899 the Plaintiff sought judicial review of the Commissioner’s decision to dismiss her from the Police Force after she was convicted by the Boroko District Court and sentenced to twelve months imprisonment for unlawful assault.

11. She was charged with two disciplinary charges arising from the criminal conviction and related incidents. There was no evidence that she replied to them. The Commissioner upheld the charges and dismissed her from the Force. It was argued on her behalf that the disciplinary process followed under Part IV, Division 1(Sections 18 – 20) (Introduction) and Division 3 (Sections 23 – 27) (Serious Offences) of the Police Act in dealing with her was in breach of Section 33 in that upon criminal conviction for assault and imprisonment for twelve (12) months, by the Boroko District Court, she should have been dismissed forthwith. The disciplinary procedure was “unreasonable” in that the outcome – a dismissal - was pre-determined by operation of law and she should not have been put through the disciplinary process.

12. The Court held that even if the review was successful, she was bound to be dismissed forthwith by simply issuing an instrument or notice of dismissal under Section 33 (2), which will take effect forthwith by law. Further, that it was open to the Commissioner to follow the disciplinary process to effect the dismissal which will be to the Plaintiff’s advantage as she will be given an opportunity to be heard before she is dismissed.

13. Furthermore, Section 33 (2) allows the Commissioner to dismiss a member forthwith, without giving the member an opportunity to be heard if it came to his knowledge and there is material or evidence to support a criminal conviction and/ or a sentence of imprisonment. Finally, that a member who is convicted and/ or sentenced to imprisonment stands dismissed, by operation of law, effective from the date of conviction.

14. I reject the submissions of counsel for the Plaintiff that the above case can be distinguished from this case and should not be followed. I find that case almost identical with this case. The common facts between them are that each Plaintiff was charged with unlawful assault under the Summary Offences Act, convicted and sentenced to an imprisonment term. Then each was charged with serious disciplinary offences by the Commissioner.

15. And it may be that in the earlier case the Plaintiff was charged with assaulting a civilian - wife of another member and in this case assaulting two other members of the Force, however, the fact remains that each was a case of unlawful assault.

16. Despite this, counsel for the Plaintiff further argued that the Court did not rule that the “term of imprisonment” in Section 33 (2) refers to other criminal offences. The correct view is that for the Commissioner to dismiss a member forthwith, the member must be convicted of an offence involving dishonesty or convicted of the offence involving dishonesty where a term of imprisonment is imposed.

17. The other is the Court did not hold that the word “offence” in Section 33 to mean a simple offence or indictable offence. The distinction must be made because the Plaintiff was convicted of unlawful assault under the Summary Offences Act which is a simple offence. Thus, an instant dismissal would not be warranted under Section 33.
18. Counsel for the Defendants did not seriously oppose the position of the Plaintiff in terms of the First Defendant conducting disciplinary proceedings and hearing into the conviction of the Plaintiff by the District Court. She submitted it was open to the First Defendant to take that course. This submission is consistent with the position the Defendants took in Antonia’s case.

19. She went on to argue that even if the course taken by the Commissioner was correct the Plaintiff failed to show where the First Defendant exceeded his power, denied him natural justice and that the penalty of dismissal was harsh and severe.

20. Alternatively, she argued that it was within the discretion of the First Defendant to invoke Section 33 and dismiss the Plaintiff from the Force forthwith based on the conviction.

21. I reject both arguments of the Plaintiff. First, on a plain construction of Section 33, it makes it mandatory for the Commissioner to dismiss a member from the Force if he is satisfied that first the member is convicted of an offence involving dishonesty and secondly, where a term of imprisonment is imposed.

22. In my view, in the second case the offence where an imprisonment term is imposed is not restricted to offences involving dishonesty but any other offence. For instance a member is convicted of wilful murder of a member of the public and is sentenced to life imprisonment. In such case, the Commissioner is obliged to dismiss the member.

23. As to the Plaintiff’s second argument, Section 33 does not make a distinction between simple and indictable offence. To interpret the provision in that manner would be reading too much into it and contrary to the intention of Parliament.

24. There are good reasons for this. One of them is that the Police Force is a discipline organisation. Members are expected by the code of conduct and ethics as well as society to be disciplined, uphold the rule of law and lead by example. Where a member is convicted of an offence involving dishonesty or sentenced to a term of imprisonment, he or she is instantly dismissed. In other words, there is no room for undisciplined and rogue policemen and women in the Force. They must go in order for discipline and good order to be maintained in the Force.

25. My view is consistent with and reinforced by the Court’s decision in Antonia’s case. I am unable to agree with the Plaintiff. I will follow the earlier decision. The reasons given by the Court in that case equally applies to this case.

26. It follows that a member who is sentenced to an imprisonment term is liable to an instant dismissal under Section 33. I agree with counsel for the Defendants’ alternative submission that it was within the discretion of the First Defendant to invoke his power under Section 33 even though, in this case, I consider that it was not necessary for the First Defendant to invoke and follow the disciplinary procedure under Part IV (Discipline). Thus, the grounds to challenge the exercise of discretion by the First Defendant are irrelevant and unnecessary.

27. I invite parties to compare this case with Ua Rage v. Grant Muddle & The State: OS (JR) No. 246 of 2016 (Unnumbered & Unreported Judgment of 7^th December 2016 per Makail J) and Section 54 (2) & (3) of the Public Services (Management) Act.

28. I conclude that it was within the discretion of the First Defendant to dismiss the Plaintiff based on the convictions by the District Court pursuant to Section 33.

29. The application for judicial review is dismissed. Costs shall follow the event.

Judgment and orders accordingly,
________________________________________________________________
Jefferson Lawyers : Lawyers for the Plaintiff
Solicitor-General : Lawyers for the Defendants