Kerry v Clarkson [2025] PGNC 238; N11397 (24 July 2025)

N11397

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE ]
AT MADANG

OS (JR) No 228 OF 2023

NATHAN KERRY
Plaintiff

V

JOANNE H CLARKSON – ACTING DEPUTY POLICE COMMISSIONER
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Madang: Narokobi J
2025: 17 July and 24 July

JUDICIAL REVIEW– Ultra Vires -Errors of law – Breach of Natural Justice – Whether grounds of judicial review have been met and application should be granted.

The Plaintiff, Nathan Kerry is a member of the Police Force. He was charged with serious disciplinary offences under the Police Act 1998 and dismissed from the Police Force. In this proceeding he challenges the dismissal by judicial review.

Held:

(1) The disciplinary process for serious disciplinary offences by a member of the Police Force under the Police Act 1998, s 19, and ss 23 to 26, provide three distinct processes, to be performed by three different officers of the Police Force:

• Commissioned officer: if there is reason for a serious disciplinary offence by a member of the Force, a Commissioned Officer charges the member of the Force.
• Disciplinary Officer: Decides whether the charge is sustained or not, after considering any response from the member charged, and provides a report to the Commissioner with his or her recommendation(s).
• Police Commissioner: Consider the Disciplinary officer’s recommendation(s), then decides a penalty if the charges are sustained.
  

(2) The objective of this process is to afford a member of the Police Force a fair hearing consistent with s 59, “Natural Justice,” of the Constitution.

(3) In the present case, on the facts the Second Respondent performed all three roles, constituting an error of law, a breach of natural justice under s 59 of the Constitution in that the Plaintiff was not afforded a fair hearing and therefore the decision terminating him ought to be quashed.

Cases Cited
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Legislation Cited
Constitution
Police Act 1998

Counsel
Mr A Daugl, for the Plaintiff
Mr P Bati for the Respondents

DECISION

24 July 2025

1. NAROKOBI J: The Plaintiff, Nathan Kerry is a member of the Police Force. He was charged and dismissed from the Police Force. In this proceeding he challenges the dismissal by judicial review.
   
2. There are Four Respondents. Inspector Gregory Barbuda-Acting Officer in Charge of Discipline Section, Police Headquarters, Konedobu (First Respondent), Joanne H. Clarkson as Acting Deputy Commissioner of Police (Second Respondent), David Manning – Commissioner of Police (Third Respondent) and Independent State of Papua New Guinea (Fourth Respondent).
   
3. The Plaintiff was part of a cohort of members of the Police Force who were charged on allegation of committing serious disciplinary offences, Milleth Kendino, Brian Kapi, Greg Wii and Leroy Makel. The gist of the allegation was that when they apprehended a suspect, he was shot and this led to his death. Each one of them have filed separate judicial review proceedings. As the facts and circumstances are similar, my reasons and the final orders made, to each one of them will be similar. My reference to “Plaintiff,” here refers to Nathan Kerry. If in the event I were to refer to the other members in the related proceedings, I will make specific reference to their names.
   
4. The decision to terminate the Plaintiff was made on 20 September 2021. The decision to terminate was not served on the Plaintiff until 28 April 2023. The proceedings were filed on 30 August 2023.
   
5. The Plaintiff was charged for unlawful discharge of a firearm, bringing discredit to the Police by not bringing the deceased he shot to the hospital, use of offensive words and murdering a suspect, the late Balifun Mark. I also note from the charge that all five were charged for unlawful discharge of firearm. It would be logical that only one of them should be charged for discharging the firearm and the other four would be aiding and abetting in the criminal sense. The charges therefore appear defective. But that is not being challenged.
   
6. Leave for judicial review was granted on 10 November 2023 to review the decision of the Second Respondent. Stay of the decision dismissing the Plaintiff from office was made soon after that.
   
7. There were three grounds advanced by the Plaintiff with a number of sub-grounds under each main category to challenge the decision of the Second Respondent. In summary the grounds are as follows:
   
   • The Second Respondent acted ultra vires as contrary to s 26(4) of the Police Act 1998 as only the Police Commissioner had the power to terminate.
   • Failure to serve the notice of disciplinary charge before termination, and therefore not afforded the Plaintiff an opportunity to be heard, contrary to the principles of natural justice under s 59 of the Constitution.
   • The disciplinary process under ss 19 and 20 to 26 of the Police Act was not complied with and this was unreasonable.
     
8. Notice of Motion following the grant of leave was filed on 31 August 2023, seeking the remedy of certiorari to remove the decision of the Second Respondent to the National Court for it to be quashed.
   
9. Several affidavits were filed for the Plaintiff and for the State. I have read those affidavits.
   
10. Essentially the Plaintiff says that after he was charged, he was directed by his superior, the Provincial Police Commander of Madang, Chief Superintendent Mazuc Rubiang not to respond, as he was responsible for charging him. He did not respond. He further states that for the allegation of murder, he was charged, detained, granted bail, and the committal court dismissed the charges against him. He was therefore surprised to find over two years later that he was dismissed from the Police Force.
    
11. The Respondents relied on the affidavit of the Second Respondent filed on 12 March 2024. She says that the evidence against the Plaintiff was overwhelming. She had the delegated authority from the Police Commissioner under the Police Act, and after the Plaintiff did not respond, dismissed him from the Police Force.
    
12. The grounds for obtaining judicial review are well stated in the case of Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122. Kapi DCJ (as he then was) at p 124 states:
    

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 abuses its powers. And the purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion.

13. The Plaintiff was disciplinarily dealt with under s 23 of the Police Act for a serious disciplinary charge. I have considered the relevant provisions under the Police Act establishing the process dealing with serious disciplinary charges. I outline what I consider to be the steps to be complied with when disciplining a member of the Police Force in the subject legislation:
    
    • There must exist a reason to believe that a serious disciplinary offence has been committed by a member of the Police Force (s 23(1)).
    • The member is charged by the Commissioner or by a commissioned officer (s 23(2)).
    • If the member is charged by a commissioned officer, then that officer must be authorised by the Commissioner under s 19 of the Police Act (s 23(2) and s 19(1)).
    • The member of the Force must be served promptly with a copy of the charge (s 23(3)).
    • The member of the Force must respond to the charge within 14 days as to the truth or otherwise of the charge (s 23(3)).
    • The Commissioner shall appoint a disciplinary officer and report to the Commissioner whether the charge should be sustained or not. That person must be separate from the charging officer (s 24(1)).
    • The disciplinary officer shall than advise the Commissioner whether in his or her opinion the charge has been sustained (s 25(1)).
    • Where the charge is sustained, an appropriate penalty is recommended (s 25(1)).
    • The Commissioner after considering the report from the disciplinary officer, and if he or she concurs with the report, imposes a penalty (s 25(2)(b)).
    • The Commissioner shall notify a member of a penalty imposed on that member (s 26(4)).
    • The member has seven (7) days to ask the Commissioner for a review (s 26(5)).
      
14. Considering the scheme of the disciplinary process, there are three distinct processes involved, to be performed by three different officers of the Police. This would be:
    
    • Commissioned officer: a commissioned officer does the charging of a member of the Force.
    • Disciplinary Officer: Decides whether the charge is sustained or not, and provides a report to the Commissioner with his or her recommendation(s) after considering any response from the member of the Force.
    • Police Commissioner: Consider the Disciplinary officer’s recommendation(s), then decides whether a penalty and the type of penalty to be imposed provided for in the Police Act.
      
15. In my view the disciplinary process was designed this way to ensure a member of the Police Force is afforded the right to be heard and a fair hearing. This would comply with s 59, “Natural Justice,” of the Constitution.
    
16. I have considered the evidence before the court, and the submissions and in my view an error of law was committed when the disciplinary officer, made the decision to terminate the Plaintiff. That decision should have been done by the Police Commissioner after receiving the report from the disciplinary officer with its recommendations. If the Police Commissioner was not going to decide penalty, then he should have delegated to an officer other than the Disciplinary Officer pursuant to his powers to delegate in s 17 of the Police Act.
    
17. The failure to follow this process constituted an error of law, and a breach of the principles of natural justice under s 59 of the Constitution. The Plaintiff was not afforded a fair hearing because the same person was involved in the same process of charging, considering the charge and deciding the penalty. Essentially the decision maker was the “judge, jury and executioner.” The allegations against the Plaintiff were serious, and the proper process under the Police Act was to have been complied with.
    
18. I accept the Second Respondent’s statement in her affidavit that the administrative process was separate to the criminal process where the Plaintiff was being criminally dealt with. It was therefore necessary that the decision was done in full compliance with the administrative process under the Police Act.
    
19. For the reasons expressed above, the application for judicial review is granted. An order in the nature of certiorari is issued bringing to the National Court the decision of the Second Respondent dated 20 September 2021 dismissing the Plaintiff from the Police Force, and quashing it.
    
20. As a consequence of the order quashing the decision of 20 September 2021 the Plaintiff is restored to the rank he occupied prior to his dismissal.
    
21. As the First Defendant was carrying out normal administrative process all other relief sought are refused, except for costs. There must be some measure of accountability over the conduct of the members of the Police Force.
    
22. The State shall pay the Plaintiffs costs, to be taxed, if not agreed.
    
23. The file is closed, and time is abridged.
    

Darnold Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Respondents