Anunga v Huafolo [2024] PGNC 121; N10785 (10 May 2024)

N10785

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 191 OF 2020

BETWEEN:
AIWOK ANUNGA
-Plaintiff-

AND:
RAPHAEL R. HUAFOLO, DPS, QPM – DEPUTY COMMISSIONER OF POLICE AND CHIEF ADMINISTRATION
-First Defendant-

AND:
DAVID MANNING, CSTJ, QPM AS COMMISSIONER OF POLICE
-Second Defendant-

THE INDEPENDENT STATE OF PAPUA NEW GUNIEA
-Third Defendant-

Madang: Narokobi J
2023: 19th July
2024: 10th May

JUDICIAL REVIEW – Error of Law - Whether Dismissal Process Provided for under the Police Act 1998, s 33(2)(a) was complied with.

The plaintiff was dismissed from the Police Force after he was convicted for stealing and sentenced to two years, wholly suspended. He appealed the decision to dismiss him within the internal administrative process of the Royal Papua New Guinea Constabulary. After a year, there was no outcome to his appeal (administrative review), so he now seeks judicial review of his dismissal citing error of law, abuse of administrative process, breach of natural justice and that the penalty was harsh and oppressive. This is the decision on the substantive review after grant of leave for judicial review.

Held:

(1) Section 33(2) of the Police Act 1998 is in mandatory terms that a member of the Police Force who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.

(2) The plaintiff was convicted of an offence involving dishonesty, ie stealing and therefore attracted the self-executing operation of s 33(2) of the Police Act.

(3) The disciplinary process provided for minor offences under ss 18 to 22 of the Police Act, and ss 23 to 27 for serious offences under the same Act do not apply to a dismissal under ss 33(2) of the Police Act. The only avenue to appeal a dismissal under ss 33(2) of the Police Act is where the conviction is quashed, or the member of the force receives a pardon, or the conviction is otherwise nullified (s 34(1)(a) and (b), Police Act). The plaintiff’s conviction has not been set aside, and therefore the process under s 34 is not available to him.

(4) There was therefore no error of law, abuse of administrative process, breach of natural justice or imposition of a penalty that was harsh and oppressive.

(5) The judicial review is accordingly refused, and parties are ordered to bear their own costs.

Cases Cited

Antonia Dawa v. Sam Inguba - Commissioner for Police (2005) N2899
Kuringin v. Baki (2017) N6619
Manning v Romongi (2022) SC2197

Statutes Cited

Constitution
Police Act 1998

Counsel

Mr D Wa’au, for the Plaintiff
Mr E Manihambu, for the Defendants

DECISION

10th May 2024

1. NAROKOBI J: The plaintiff was found guilty by the National Court in Madang for stealing on 17 May 2017. On 11 January 2019 he was dismissed from the Police by the first defendant. On 22 February 2019 he appealed to the Police Commissioner to review the decision to terminate him. The Police Commissioner wrote to him on 26 February 2019 that his appeal of dismissal has been “referred to the Police Review Officer.” The letter goes on to state that he would be contacted once a decision was made on his appeal. After more than a year of waiting he sought judicial review. Leave for judicial review was granted on 3 November 2020.
   
2. It is important to state at the outset the provision in which the first defendant relied on to dismiss the plaintiff from the Police Force. Section 33 of the Police Act 1998 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.

3. It is not disputed that the plaintiff was convicted of stealing under the Criminal Code and given a two-year suspended sentence on conditions.
   
4. The following grounds for judicial review are advanced by the plaintiff challenging the decision of the defendants which I reproduce from the statement filed pursuant to Order 16, r 6 of the National Court Rules:
   

Error of Law.

1. The penalty of dismissal imposed on the Plaintiff contravenes Sections

33 and 34 of the Police Force Act, 1998 and Sections 41 (l)(a)(b) and 59 (2) of the Constitution in that the Plaintiff was dealt with in a proscribe manner by the First and Second Defendant in imposing the penalty of dismissal.

The First Defendant's decision to dismiss the Plaintiff under Subsection 33(2) of Police Force Act, 1998 was unreasonable and exaggerated claim that the Plaintiff was sentenced to 2 years imprisonment with hard labour instead the Plaintiff was sentenced to 2 years with full suspension on conditions.

3. Thus, the First Defendant failed to consider the law provided under Subsection 34 (l)(a) when making decision under Section 33 (2) of the Police Force Act, 1998.
   

Abuse of administrative process.

1. The Defendants delayed the dismissal for almost years and allowed the Plaintiff to continue employment until he was put off the payroll on 13 January 2019.
2. The Plaintiff’s appeal has been unnecessarily delayed and to — date there is no determination and outcome of his appeal to the Police Commissioner.
   

Breach of Natural justice.

1. The Plaintiff was doubly punished by the open court and administratively for the same offence.
   
2. The Plaintiffs right to be heard was deprived as the Defendants delayed dismissal forthwith from the date of conviction on 17 May 2017 to the date of dismissal on 11 January 2019 and further delay in service of the notice of dismissal on 18 February 2019.
   
3. More importantly, the Plaintiff was advised to work pending his review application until he was put off the payroll on November 2017 despite, the Plaintiff is still allowed to work as policeman to — date.
   

Decision was harsh and oppressive in the circumstance.

1. The penalty of dismissal is deemed has and oppressive as the Plaintiff was a first-time offender and all the penalties under Sections 25 and 26 of the Police Force Act, 1998 was not exhausted considering all the relevant facts, penalty of dismissal imposed, and further decision was harsh and oppressive contravening Section 59(2) of Constitution.
   
2. Defendants failed to consider the relevant facts of the guilty plea and the wholly suspended sentence imposed by the Madang National Court when making the decision for dismissal that is deemed harsh and oppressive in the circumstance of the Plaintiffs case.
   
5. There is really one issue that will determine the review, that is whether s 33(2) of the Police Act was complied with? Attended to this is the question of the proper interpretation of that provision.
   
6. I have had regard to the Supreme Court case of Manning v Romongi (2022) SC2197. In that case the Supreme Court endorsed the view of Injia CJ as he then was in Antonia Dawa v. Sam Inguba - Commissioner for Police (2005) N2899 at [8]:
   

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

7. The Supreme Court also at [8] endorsed the view of Makail J in Kuringin v. Baki (2017) N6619. There, Makhail J followed Dawa v. Inguba (supra), and stated at [21]:

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.

8. The implication of that decision is that the disciplinary process provided for minor offences under ss 18 to 22 of the Police Act, and ss 23 to 27 for serious offences under the same Act do not apply to a dismissal under ss 33(2). The only avenue to appeal a dismissal under ss 33(2) of the Police Act is where the conviction is quashed, or the member of the force receives a pardon, or the conviction is otherwise nullified (s 34(1)(a) and (b), Police Act). The plaintiff’s conviction has not been set aside, and therefore the process under s 34 is not available to him.
   
9. With the clear position of the law as interpreted by the Supreme Court, the facts of the present case cannot be distinguished from those authorities referred to. Section 33 of the Police Act does not make concession as to whether the conviction is on a guilty plea and the sentence wholly suspended.
   
10. I have therefore reached the view that there was no error of law, abuse of administrative process, imposition of a harsh penalty or breach of natural justice.
    
11. The judicial review is refused, and each party is ordered to bear their own costs.
    

DFW Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants