Yaku v Commissioner of Police [1980] PNGLR 27 (2 July 1979)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 27 - Re Application for Writ of Certiorari; Re Police Force (Interim Arrangements) Act 1973 and a Ruling Made and Delivered on 2 July 1979 by the Police Appeal Tribunal at Lae: Constable 2109 Sudi Yaku v Commissioner of Police 

[1980] PNGLR 27

N217

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SUDI YAKU

V.

COMMISSIONER OF POLICE, EX PARTE THE STATE

Waigani

Andrew J

18 March 1979

28 March 1979

PREROGATIVE WRITS - Certiorari - Returnable before Supreme Court or National Court - Jurisdiction of National Court - Constitution of the Independent State of Papua New Guinea s. 155(4)[xxxviii]¹.

CRIMINAL LAW - Judgment and punishment - Double punishment - Conviction and sentence for criminal offence - Subsequent disciplinary charge resulting in dismissal from police force - Nature of both proceedings - Prosecution for offence no bar to disciplinary proceedings - Whether double punishment - “Offence” - “Same act or omission” - Disciplinary charge not punishable “offence” under Criminal Code - Not double punishment - Criminal Code s. 16[xxxix]², s. 3 - Police Force (Interim Arrangements) Act 1973 s. 80(g).

WORDS AND PHRASES - “Act or omission” - Double punishment - Act or omission must constitute offence known to Criminal Code - Police disciplinary charge not punishable offence under Criminal Code - Criminal Code s. 16, s. 3.

A member of the police force was convicted and fined upon a charge of unlawful assault under s. 353 of the Criminal Code; he was subsequently charged under s. 80(g) of the Police Force (Interim Arrangements) Act 1973, with the disciplinary charge of disgraceful conduct (arising out of the same conduct as that constituting the unlawful assault); he was found guilty of the latter charge and dismissed from the police force. An appeal to the Police Appeal Tribunal, was allowed on the ground that the second “penalty of dismissal ... constitutes a double penalty and is therefore prohibited by s. 16 of the Criminal Code”.

On the return of an order nisi for certiorari directed to the magistrate sitting as the Police Appeal Tribunal constituted under the Police Force (Interim Arrangements) Act 1973.

Held:

(1)      The National Court had jurisdiction to hear and determine the matter under s. 155(4) of the Constitution of the Independent State of Papua New Guinea.

(2)      The hearing and determination of a disciplinary charge against a member of the police force laid under Div. 8 of the Police Force (Interim Arrangements) Act 1973 is neither a criminal prosecution nor a civil action.

The Queen v. White; Ex parte Byrnes [1963] HCA 58; (1963) 109 C.L.R. 665, and

Attorney General (Victoria) v. Riach [1978] VicRp 32; [1978] V.R. 301 referred to.

(3)      A criminal conviction does not in the absence of any statutory provisions ban subsequent disciplinary action.

In re Weare [1893] UKLawRpKQB 130; [1893] 2 Q.B. 439 referred to.

(4)      The act or omission referred to in s. 16 of the Criminal Code, for which “a person cannot be twice punished”, must be an offence coming within one of the categories of offences established by s. 3 of the Criminal Code (viz. crimes, misdemeanours and simple offences) and may be either a summary offence or an indictable one; acts or omissions that are not punishable cannot either in logic or by the structure of the Criminal Code be punishable.

Tapopwa Thomas v. The State [1979] P.N.G.L.R. 139 and

Gaiari-Ganereba v. Giddings [1967-68] P. & N.G.L.R. 346 referred to.

(5)      The disciplinary charge of disgraceful conduct under s. 80(g) of the Police Force (Interim Arrangements) Act 1973, was not an “offence” known to the Criminal Code, and accordingly it could not be said that there had been double punishment for the one offence or for the same act or omission.

(6)      The order nisi for certiorari should be made absolute.

Certiorari.

This was the return of an order nisi for a writ of certiorari directed to a stipendiary magistrate sitting as the Police Appeal Tribunal constituted under the Police Force (Interim Arrangements) Act 1973, and made returnable before the Supreme Court or the National Court.

Counsel:

I. R. Peterson, for the applicant.

D. E. Reatau-Mea, for the respondent.

Cur. adv. vult.

28 March 1980

ANDREW J: This is the return of an order nisi for certiorari directed to the stipendiary magistrate at Lae comprising a Police Appeal Tribunal established under the Police Force (Interim Arrangements) Act 1973.

The order nisi had been made returnable before the Supreme Court or the National Court. Order 81 r. 2 of the Supreme Court Rules 1977 provides that order to show cause shall be to show cause before the Supreme Court, unless the matter appears to be one of urgency, in which case the court or judge may make the order returnable before a single judge in court or chambers.

The Constitution of the Independent State of Papua New Guinea, s. 155(4) provides as follows:

“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.”

I do not think that the matter is of such urgency that it warrants being made returnable before the National Court rather than the Supreme Court. However I ruled, pursuant to s. 155(4) of the Constitution and with the approval of counsel, and upon having been apprised of the issues involved, that it was proper that I, sitting as a judge of the National Court, should determine the matter.

The facts as I now set them out are not in dispute.

Constable 2109 Sudi Yaku was convicted on 16th August, 1978 by the local court at Bulolo upon a charge of unlawful assault. The charge was laid under s. 353 of the Criminal Code. He was fined the sum of K100.00 and in default of payment he was sentenced to be imprisoned for a period of six months.

He was subsequently charged under s. 80(g) of the Police Force (Interim Arrangements) Act 1973, with a serious disciplinary charge, namely that: “on the 12th August 1978 at Mumeng you were guilty of disgraceful conduct in your official capacity in that you did unlawfully assault Gedengo Bemden”. He was found guilty of this charge and he was dismissed from the police force by the Commissioner of Police.

He then appealed against this decision to the Police Appeal Tribunal on the ground of excessive severity of the punishment. His appeal was successful, the Tribunal giving the following reasons:

“I confirm that in my opinion, that further penalty of dismissal imposed by a Commissioner, in respect of a policeman already convicted and sentenced by a court of summary jurisdiction for the same offence, (and in regard to whom no recommendation has been made under s. 94 of the Police Force (Interim Arrangements) Act 1973), constitutes a double penalty and is therefore prohibited by s. 16 of the Criminal Code.”

The Independent State of Papua New Guinea disputes this finding. There is no dispute that the disciplinary charge of disgraceful conduct was for the act of assault for which Constable Yaku was convicted by the local court at Bulolo.

The Police Force (Interim Arrangements) Act 1973 is concerned with the regulation of the Royal Papua New Guinean Constabulary. Division 8 of the Act contains provisions relating to the discipline of all members of the force. By s. 80 it is provided that any member who, inter alia, commits any breach of the provisions of the Act and is guilty of any disgraceful or improper conduct either in his official capacity or otherwise, is guilty of a disciplinary offence and is liable to be dealt with and punished under Div. 8. Punishment for a serious disciplinary offence includes, inter alia, a fine not exceeding K40.00, reduction in salary and in rank, transfer to other duties and dismissal from the force.

Division 8 of the Act relating to disciplinary offences is part of the law regulating the relationship between the police force and its members and in creating “offences” and providing for their “punishment” does no more than define what is misconduct on the part of a member of the force warranting disciplinary action on behalf of the force and the disciplinary penalties that may be imposed are recommended for such misconduct; it does not create offences punishable as crimes. Neither the Police Commissioner nor the Police Appeal Tribunals in performing the duties imposed by Div. 8 sits as a court of law exercising judicial power; each sits as an administrative tribunal maintaining the discipline of the police force in the manner prescribed by law. It follows that the hearing and determination of a charge against a member of the police force laid under Div. 8 of the Police Force (Interim Arrangements) Act 1973, is neither a criminal prosecution nor a civil action.

Support for these findings can be found in similar legislation and in cases relating to the Public Service. The various Australian Commonwealth and State Public Service Acts and our Public Service (Interim Arrangements) Act 1973, contain very similar provisions relating to the discipline of officers. In interpreting those provisions the High Court in The Queen v. White; Ex parte Byrnes[xl]³ and the Supreme Court in Attorney-General (Victoria) v. Riach[xli]⁴ have come to exactly those conclusions.

In my opinion a criminal conviction does not, in the absence of any statutory provisions, bar subsequent disciplinary action. Any other result would be absurd. How could it be said that a public servant found guilty of stealing monies from the public service could not then be dismissed? It is clear law today that a professional body has the right to suspend or expel a member following a conviction in a criminal court. See In Re Weare[xlii]⁵ and see Double Jeopardy by M. L. Friedland (1969) at p. 318.

It follows from what I have already said that when Constable Yaku was found guilty of the charge under Div. 8 of the Police Force (Interim Arrangements) Act 1973 the penalty which he incurred and for that matter, the ones he might also have incurred, although including pecuniary ones, were not for a criminal offence. A penalty or fine which he might suffer was described in The Queen v. White; Ex parte Byrnes as “nothing but a mulct to be deducted from salary or pay”[xliii]⁶.

It is necessary however, to consider the effect of s. 16 of the Criminal Code. That section is as follows:

“16.    —PERSON NOT TO BE TWICE PUNISHED FOR SAME OFFENCE.

A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing that death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.”

The section heading refers to being twice punished for the “same offence” but it forbids double punishment for “the same act or omission” and the body of the section makes no such reference to “same offence”. See Tapopwa Thomas v. The State[xliv]⁷ and Gaiari-Ganereba v. Giddings[xlv]⁸. There is perhaps some looseness of language in the words “act or omission” though the implication is and must be (after all, this is a Criminal Code) that the act or omission is of a criminal nature because it invites punishment and that is made clearer later in the section when reference is made to an act or omission causing the death of another person. It may be said, with great respect, that “act or omission” not being defined in the Code, it may have been better had the word “offence” been used, especially since that word is defined in s. 2. The Code of course concerns itself with offences since it is they that make up the body of the Code: See Double Jeopardy (supra) and ss. 16 and 17 of the Criminal Code; The Queensland Lawyer Vol. 5, parts 3, 4 at p. 78.

Section 3 of the Criminal Code indicates the three categories of offences to which the Code relates, viz. crimes, misdemeanours and simple offences. I think that the act or omission referred to in the section must be an offence coming within one of the categories of offences established by s. 3 of the Code and this may be either a summary offence or an indictable one.

The section acknowledges that the rule against double punishment applies to all acts or omissions whether summary or indictable that are regarded by the various statutes of the State as of a criminal nature or as involving a liability to penalties or punishments of a quasi-criminal kind (e.g. the Motor Traffic Act 1950) but not to disciplinary offences.

I think the section, when referring to punishable acts or omissions must mean offences, since acts or omissions that are not punishable cannot either in logic or by the structure of the Code, be punishable. One can only be punished for an offence. The Code just does not contemplate punishment being imposed otherwise than upon a conviction for an offence. The same act or omission may of course constitute many different offences. In the present case there is no doubt Constable Yaku’s conviction and sentence by the local court at Bulolo meant that there was a previous lawful punishment imposed consequent upon a lawful conviction for an offence. However the subsequent disciplinary proceeding and punishment of dismissal from the police force by the Police Commissioner was neither a criminal prosecution nor a civil action. He was not punished for any offence as defined by s. 3 of the Code. He was merely punished by an administrative tribunal maintaining the discipline of the police force for a disciplinary charge and that proceeding was neither criminal nor quasi-criminal in its nature.

The point I am making is that the charge of unlawful assault was an offence known to the Code. The disciplinary charge was disgraceful conduct which was ultimately found to warrant disciplinary action. It was not an “offence” punishable as a crime. It was not determined by any criminal prosecution or for that matter by any civil action. As such the acts or omissions, namely the act of disgraceful conduct, was not the same act or omission (or offence) as the unlawful assault. It was not an offence known to the Code because it was neither a crime, misdemeanour nor simple offence. It follows that Constable Yaku was not twice punished for the one offence or for the same act or omission.

I should mention that in my view both s. 37(8) of the Constitution and s. 17 of the Criminal Code are not relevant to the present argument as clearly Constable Yaku was not tried for a crime in respect of which he had previously been convicted or acquitted and he had not been tried for a crime in respect of which he could on some previous indictment have been convicted.

It might be said that s. 20 of the Interpretation (Interim Provisions) Act 1975 is relevant:

“20.    —OFFENCES UNDER TWO OR MORE LAWS.

Where an act of omission constitute an offence under two or more provisions, or both under a provision and under another law of the State, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those provisions, or either under that provision or under that other law, but shall not be liable to be punished twice for the same offence.”

This section is more limited than s. 16 of the Criminal Code. It is designed to meet a situation where the same act or omission constitutes an offence under each of two or more Acts of Parliament. In my opinion it is not relevant to the present case as the limitation is to the same offence. I have already held that the offences here were not the same.

For all of these reasons the order nisi will be made absolute.

There will be no order as to costs.

Order nisi made absolute.

No order as to costs.

Solicitor for the applicant: R. Woods, Acting State Solicitor.

Solicitor for the respondent: D. E. Reatau-Mea.

[xxxviii]Infra p. 28.

[xxxix]Infra p. 31.

[xl](1963) 109 C.L.R. 665.

[xli][1978] V.R. 301.

[xlii][1893] 2 Q.B. 439.

[xliii](1963) 109 C.L.R., at p. 668.

[xliv](1979) P.N.G.L.R. 139.

[xlv][1967-68] P. & N.G.L.R. 346.