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Kuringin v Baki [2024] PGSC 60; SC2592 (15 April 2024)

SC2592


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NO. 14 OF 2017


BETWEEN:
JOSHUA KURINGIN
Appellant


AND:
GARI BAKI, COMMISSIONER OF POLICE
First Respondent


AND:
DEPARTMENT OF POLICE
Second Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Kassman, J, Kaumi J, Numapo, J
2022: 27th October
2023: 15th February
2024: 15th April


SUPREME COURT PRACTICE & PROCEDURE – Notice of objection to competency of the Appeal – Grounds of Appeal not in compliance with strict rules of Order 7 Rules 9 & 10 of Supreme Court Rules – Failure to particularize grounds relied upon to support the appeal- Statutory interpretation – Plain, fair, literal and purposive meaning of s.33 Police Act – Dismissal mandatory upon conviction on dishonesty and imposition of a term of imprisonment for an offence – Court to give paramount consideration to the dispensation of justice – Section 158 of the Constitution – Court must interpret and apply the law in a way that it gives effect to the intention and purpose of Parliament - Court must not get into the role of legislating in the disguise of statutory interpretation and application – Appeal dismissed.


Cases Cited:
Jimmy Lama v NBD Investments Ltd (2015) SC1423
Pacific Equities & Investments Ltd v Goledu (2009) SC962
Elema v Pacific MMI Insurance Ltd [2011] PGSC 9; SC1114
Beon Correctional Institute & State v Catherine Mal (2022) PGSC 1; SC2186
Minister for Lands v William Robert Frame [1980] PNGLR 433
Dr Allan Marat v Hanuang Power (2014) SC1357
Manning v Romongi (2022) PGSC 14; SC2197


Counsel:
J. Lome, for the Appellant
A. Kajoka, for the Respondent


DECISION


15th April, 2024


  1. BY THE COURT: A. INTRODUCTION: Before the Court was the Appellant’s notice of motion pursuant to Order 10 (1) of the Supreme Court Rules appealing the decision of the trial judge in the National Court on a judicial review proceedings, commenced by way of Order 16 of the National Court Rules.
  2. The Appellant’s application for a judicial review was dismissed with costs by the National Court. The application relates to OS No. 486 of 2009: Joshua Kuringin –v- Commissioner of Police & The State.
  3. The Orders the Appellant sought in the judicial review proceedings was to quash the decision of the trial judge and the matter be remitted back to the National Court for hearing of the substantive judicial review before another judge with costs to be paid by the Respondents.

B. THE NOTICE OF APPEAL


The notice of appeal sets out the five (5) Grounds of Appeal as follows:


(i) The learned trial judge erred in law in holding that a member of Police Force who is sentenced to an imprisonment term is liable to an instant dismissal from the Police Force under Section 33 of the Police Act, when upon a plain construction of Section 33;

(a) The provision (s.33) is only restricted to offences involving “dishonesty” or for a “term of imprisonment” for offences involving “dishonesty”,

(b) The provision (s.33) does not extend to include “other offences” such as unlawful assault;

(ii) The learned trial judge erred in law in holding that there is no distinction between simple and indictable offences under s.33 of the Police Act and that a conviction under the Summary Offences Act also warrants an instant dismissal under s.33 of the Police Act when s.3 of the Criminal Code Act 1974 makes a clear distinction between simple and indictable offences;

(iii) The learned trial judge erred in law in holding that once a person is convicted with an offence or a term of imprisonment is imposed, dismissal is mandatory under s.33 of the Police Act;

(iv) The learned trial judge erred in law in misapplying s.33 of the Police Act when that particular section is restricted to “offences involving dishonesty” only.

(v) The learned trial judge erred in law in dismissing the Appellant’s application for judicial review without being properly heard on merits upon taking the above view when s. 33 of the Police Act was not applicable to the Appellant’s case.

C. BACKGROUND


  1. The Appellant was the Acting Senior Sergeant of Police based in Kerema, Gulf Province. He was at the time of his dismissal, the Officer In-charge of Community Policing in the province.
  2. He joined the Police Force in 1994 and has served in the Constabulary for over 30 years with no criminal or disciplinary records.
  3. Appellant was charged with one count of unlawful assault under s. 6 (3) of the Summary Offences Act in 2004 and appeared before the District Court in Kerema. He was convicted and sentenced to three (3) months imprisonment which was wholly suspended and he was placed on 18 months good behaviour bond.
  4. Following his conviction, the Appellant was served with ten (10) serious disciplinary offences under the internal disciplinary process of the Police Force. The disciplinary charges arose from his conviction from the assault charge.
  5. Appellant responded to the allegations contained in the disciplinary charges. In August of 2006 he was served with Notice of Penalty arising from the serious disciplinary offences and was found guilty on all counts and subsequently dismissed from the Police Force.
  6. Aggrieved by the decision, the Appellant appealed against the decision of the then Police Commissioner, Sam Inguba. His appeal however, was refused and the previous decision to have him dismissed from the Force was upheld by the new Commissioner of Police, Mr Gari Baki.
  7. Appellant sought and was granted leave for judicial review pursuant to Order 16 Rules 1 & 3 of the National Court Rules.
  8. The substantive judicial review commenced at the National Court in which the Appellant sought an Order in the nature of the writ of certiorari pursuant to Order 16 Rule (1)(2)(a) of the National Court Rules to quash the decision of the First Defendant to dismiss the Appellant from the Police Force.
  9. Furthermore, a declaration pursuant to Order 16 Rule (1)(2) of the National Court Rules to declare as null and void the decision of the First Defendant to dismiss the Appellant from the Police Force.
  10. Appellant further sought an order in the nature of mandamus pursuant to Order 16 Rule (1)(2)(a) of the National Court Rules to reinstate the Appellant to his substantive position in the Police Force.
  11. After hearing arguments in the judicial review proceedings from both parties, the trial judge refused the application.
  12. The trial judge ruled that once a member of the Police Force is convicted of an offence and is sentenced to a term of imprisonment, his dismissal is made mandatory by operation of Section 33 of the Police Act.
  13. Section 33 of the Police Act

“Section 33. Persons 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 the term of imprisonment is imposed shall be dismissed forthwith from the Force.”

D. OBJECTION TO COMPETENCY


  1. Ms Kajoka for the Respondents raised a preliminary issue in relation to the competency of the appeal and asked to be heard on it. Respondents have not raised it in the extract of submission nor did they file any notice of objection concerning it.
  2. Ms Kajoka submitted orally that the grounds of appeal were not in compliance with the strict rules of Order 7 Rule 9 of the Supreme Court Rules which stated that the notice of appeal shall state briefly but specifically the grounds relied upon in support of the appeal.
  3. Counsel submitted that there has been a substantial failure by the Appellant to particularize the grounds relied on in support of the appeal which offend against Order 7 Rules 9 (c) and 10 of the Supreme Court Rules.
  4. The Supreme Court decision in Jimmy Lama v NBD Investments Ltd (2015) SC1423; in which the court in making reference to an earlier case; [Pacific Equities & Investments Ltd v Goledu (2009) SC062] pointed out three requirements in relation to Order 7 Rules 9 (c) and 10 regarding appeals in the following terms:

“The ground relied on in support of the appeal must be stated briefly but specifically.


It is alleged that a judgment is against the evidence or weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence.


If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.”


The Court went to say at paragraph 20;


“We glean from the observations in those cases the requirement that any ground of appeal must make grammatical sense and be intelligible. If it does not meet the requirement it will be incompetent.”


  1. The Respondent submitted that these grounds of appeal offend against the procedural requirements of Order 7 Rules 9 (c) and 10 of the Supreme Court Rules which requires a notice of appeal to be brief but to specify with particularity the grounds relied on to demonstrate why it is against the evidence or the weight of the evidence and why the judgment is alleged to be wrong in law. On this basis, the grounds of appeal must fail for being incompetent.
  2. Order 7 Rules 9 (c) and 10 of the SC Rules states:

“The notice of appeal shall-


(c) state briefly but specifically the grounds relied upon in support of the appeal,


(10) Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or is it wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.”


  1. The Rules made it clear that the grounds of appeal must specify with particularity the grounds relied upon to support the appeal. To just say that the decision is wrong in law without showing how or why it is wrong, is simply inadequate.
  2. Respondent submitted that the appeal is incompetent because the grounds of appeal were focused mainly on the statutory interpretation of section 33 of the Police Act and for the most part, is repetitive on the strict and literal application of the provision. Appellant has not raised any issues in relation to error of law, illegality or an arguable case, to give the appeal any basis.
  3. To object to competency of an appeal, the Respondent is required under Order 7 Rule 15 of SCR to give 14 days’ notice after the service on him of the notice of appeal. In the present case, the Respondent has not filed any notice of objection to competency and has asked the Court instead to use its discretion under its inherent powers to issue directions to file the objection.
  4. We refused to give such directions as doing so would prejudice the Appellant. Respondent had sufficient time to file the notice of objection, but had failed to do so. With the Appellant not been served with the proper notice, he would not be adequately prepared to respond to it. In any event, the right to raise the objection is not altogether lost to the Respondent as he still have the liberty to raise it again when he makes submission in response to the grounds of appeal in the substantive hearing.

E. ISSUES FOR DETERMINATION


  1. The two issues for determination are; firstly, whether or not section 33 of the Police Act extend to and include other offences in addition to the offence of dishonesty, and secondly; whether it is mandatory upon the Commissioner of Police to dismiss a member who is convicted and sentenced to a term of imprisonment for an offence regardless of whether it is a summary offence or an indictable offence.
  2. Mr Lome for the Appellant asked the Court to give section 33(2) of the Police Act its’ plain and literal meaning and submitted that dismissal is restricted to the indictable offence of dishonesty under the Criminal Code and does not apply to simple offences prescribed under the Summary Offences Act such as unlawful assault.
  3. Mr Lome submitted that the operative words that connects dishonesty to imprisonment hence, dismissal from the Force is the phrase “or for which” under subsection (2) of section 33 of the Police Act. It reads:
  4. Ms Kajoka for the Respondents submitted that section 33(2) has two parts to it; firstly, on conviction of an offence of dishonesty and secondly, where a term of imprisonment is imposed for an offence. The Commissioner is obliged to dismiss a member when either of these two situations occurs. The phrase “or for which” does not support the argument that section 33(2) in its plain meaning is restrictive and applies only to the offence of dishonesty. It means any other offence for which a member is sentenced to a term of imprisonment. The use of the word “or” extend and applies to other offences where a term of imprisonment is imposed. It would have a different meaning if the word “and” is used in place of “or” but it is not.
  5. Section 33(2) in its plain, fair and liberal meaning states that for a member to be dismissed, he must either be convicted for an offence of dishonesty, or, sentenced to a term of imprisonment. It means that a member who is convicted of an offence of dishonesty can be expected to be dismissed even if a term of imprisonment is not imposed on him, whilst a member who is given a term of imprisonment for an offence other than dishonesty, regardless of what the offence is, maybe dismissed.
  6. Mr Lome tried to distinguish between indictable offences prescribed under the Criminal Code and simple offences under the Summary Offences Act. Counsel submitted that section 3 of the Criminal Code defines what is considered as crimes, misdemeanors and simple offences. Misdemeanors and simple offences are dealt with by the District Court whilst serious assaults under the Criminal Code are brought to the National Court by way of an indictment. This relates to the jurisdictions of the Courts and has no relevance to the issue at hand. Appellant had not convinced us that the Commissioner cannot dismiss a member who has been convicted and imprisoned for a simple offence.
  7. Counsel further submitted that dishonesty is an indictable offence under the Criminal Code whilst unlawful assault is a simple offence prescribed under the Summary Offences Act. The Commissioner can only dismiss a member who is convicted of an indictable offence under the Criminal Code and not on other offences considered as simple offence. Counsel however, has not provided any case laws or authorities supporting this proposition.
  8. Section 33 of the Police Act refers to a member who is convicted of a criminal offence. It does not distinguish between simple offence and indictable offence. Any offence, whether simple or indictable, that is capable of attracting statutory penalty including imprisonment, is a criminal offence. Section 33 makes it mandatory for the Commissioner to dismiss a member convicted of a criminal offence.
  9. Furthermore, there is nothing under section 33 or any other provisions of the Police Act that state that dismissal only applies to a member convicted of an indictable offence under the Criminal Code. To say so, would be reading too much into the law, and is contrary to the intention of Parliament. The law must be read and applied the way it is found.

F. SUMMARY


  1. We find that the Appellant had spent considerable amount of time expressing his own opinion on section 33 of the Police Act and how it should be interpreted and applied but failed to reinforce his argument by not providing any precedent case laws, recent judgments or reference to any statute laws and/or practice relating to the same. For the most part, the grounds of appeal relied upon were repetitive and focused mainly on the statutory interpretation of section 33.
  2. Appellant had not raised any substantive issues in relation to error of law, illegality or an arguable case to give the appeal any legitimate basis.
  3. In addition, the Appellant had not shown to the Court that the Commissioner had exceeded his powers or acted ultra vires or denied him natural justice. The assertion that the dismissal of the Appellant was harsh and severe is not supported by any material facts. The claim that the dismissal was illegal, is not supported by reference to any law that has been breached.
  4. The literal rule on statutory interpretation stipulated under Section 158 (2) of the Constitution requires the Court to give paramount consideration to the dispensation of justice and uphold the intention of Parliament. There are numerous case laws on statutory interpretation supporting the proposition that the Courts must endeavour to uphold the intent of Parliament when interpreting a legislation so that it is given a plain, fair and literal meaning without complicating it by technical rules of statutory interpretation. (See: Elema v Pacific MMI Insurance Ltd [2011] PGSC 9; SC1114, the Supreme Court endorsed as the correct approach the decisions of the National Courts in the cases of The State v James Yali (2005) N2932 and in Gari Baki v Allan Kopi (2008) N4023. In James Yali, the Supreme Court upheld the decision of Cannings J by stating that:

“The court’s duty is to give a legislative provision its proper meaning, after carefully considering its purpose and context, and, in accordance with Section 158 of the Constitution, to give paramount consideration to the dispensation of justice.”


With respect to Gari Baki, the Supreme Court endorsed the observation made by Injia DCJ (as he then was) where His Honour said:


“The principles of statutory interpretation are settled. The Court must give effect to the legislative intention and purpose expressed in the language used in the statute. If the words used in the statute are clear and unambiguous, the Court must adopt the plain and ordinary meaning of those words. There is no need for the Court to engage in any statutory interpretation exercise. If the words are not so clear or ambiguous, the Court must construe the words in a fair and liberal manner in ascertaining their meaning and give an interpretation which gives meaning and effect to the legislative intention in the provision. The purpose of words or phrases used in question should be read and construed in the context of the provision as a whole. The Court should avoid a technical or legalistic construction of words and phrases used in a statutory provision without regard to other provisions which give context and meaning to the particular word(s) and phrases in question.”


  1. The Court’s duty is to interpret and apply the law as given by Parliament in such a way to give meaning and effect to the intention and purpose of the legislation in question and not to legislate in the guise of statutory interpretation and application. It is trite law that the provisions of the Constitution and all Acts of Parliament must be given a fair, large and liberal and purposive meaning so as to give effect to the intention and purpose of the legislation unless any such interpretation is going to cause injustice or mischief (Beon Correctional Institute & State v Catherine Mal (2022) PGSC 1; SC2186; Minister for Lands v William Robert Frame (1980) PNGLR 433, and Dr. Allan Marat v Hanuang Power (2014) SC1357).
  2. Based on these case authorities, we approved and endorsed the decision of the trial judge in that his Honour was correct in concluding that section 33(2) of the Police Act allows the Commissioner to dismiss a member if he is satisfied that, firstly, the member is convicted of an offence involving dishonesty and secondly, where a term of imprisonment is imposed. A member stands dismissed by operation of law when these two events occurred.
  3. We agree with the trial judge that where a member is convicted and sentenced for a criminal offence, it becomes mandatory for the Commissioner to dismiss the member from the Police Force. This is the plain and ordinary meaning of section 33 of the Police Act as intended by Parliament. This view is consistent with decisions made by the National Court in other similar cases in the past involving policemen and women. A member who has been convicted and sentenced to a term of imprisonment should not continue to serve as a member of Police Force (Antonia Dawa v. Sam Inguba, Commissioner of Police & The State (2005) N2899).
  4. We accept that section 33(2) in its plain, fair and literal meaning has two parts to it. The first part relates to a member who is convicted of the offence of dishonesty, and the second part applies to a member who is sentenced to a term of imprisonment regardless of what the offence is, and irrespective of whether it is a simple or an indictable offence. If a member is convicted and/or sentenced to a term of imprisonment, he is liable for dismissal. In Manning v Romongi (2022) PGSC 14; SC2197 the Supreme Court held that:

“From a consideration of the plain and liberal meaning of section 33(2), it is clear that for section 33(2) to be enlivened there must be either a member who is convicted for an offence involving dishonesty or a member who is convicted for which a term of imprisonment is imposed...”


  1. The Supreme Court decision in Re: Manning v Romongi (supra) made it abundantly clear that section 33(2) is not intended to be restrictive to the offence of dishonesty only but it also extend and applies to other criminal offences for which a member is convicted and sentenced to a term of imprisonment.
  2. We agree with the trial judge that dismissal of rogue policemen and women is necessary to uphold the integrity of the Police Force as a disciplined organization. Members are expected to abide by a code of conduct and to uphold the rule of law and lead by example. The Police Force cannot afford to have convicted criminals wearing police uniforms and serving in the Force. It sends a wrong signal to the society as a whole.

G. CONCLUSION


  1. We make the following conclusions:

H. ORDER


(i) The Appeal is dismissed.

(ii) Costs of this Appeal to be paid by the Appellant, to be taxed if not agreed.

________________________________________________________________
Jefferson Lawyers: Lawyers for the Appellant
Office of the Solicitor-General: Lawyers for the Respondents

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