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Pasio v Attorney General [2010] SBHC 17; HCSI-CC 370 of 2008 (11 May 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)


Civil Claim No. 370 of 2008


BETWEEN


JEFFREY PASIO
First Claimant


AND


RITA BENNETTE
Second Claimant


AND


ATTORNEY GENERAL
(Representing the Commissioner of Police and the Police
and Prison Services Commission)
Defendant


Mr Hou, Public Solicitor, for the Claimants
Mr Muria for the Defendant


Date of Hearing: 30th April 2010
Date of Judgment: 11th May 2010


Judgment


  1. By an Amended Claim the Claimants Jeffrey Pasio (JP) and Rita Bennette (RB) seek a declaration that they are entitled to be paid their salaries or emoluments/wages as police officers from the date of their interdiction up to 4th August 2005. They also seek consequential orders as to interest and costs. They base their claim on s.32(3)(b) of the Police Act [Cap 110].
  2. The issue is whether the Claimants can simply rely on the wording of that section or, as the Defendants say, is the whole claim,"... premised upon the quashing of the decision/administrative acts constituting the dismissal of each of the Claimants..." I bear in mind the defence relied upon was filed before the Amended Claim was filed, with the leave of the court, on 16th February 2010. The Claim now before the court does not seek declarations that the Claimants are still police officers and /or are entitled to be re-instated as police officers.
  3. S32 is in Part V of the Police Act and that part is headed Discipline. It gives the Commissioner of Police power to interdict police officers who are under investigation for disciplinary breaches. There is no definition of what is meant by interdiction. The act says an officer, "...shall not by reason of such interdiction cease to be a police officer" [1] . Whilst there is no definition of what is meant by interdiction the whole tenor of s. 32 is to allow the Police Commissioner to temporarily remove from active duty a police officer who is under investigation for disciplinary reasons. I am not asked to decide the point but there is a similar provision in s.31 which deals with breaches of the General Orders of Solomon Islands. I do not believe the use of the words suspended and suspension in s. 31 add or take anything away from the purpose of these sections, that is the temporary removal of police officers from active duty during disciplinary investigations. It may be, and again I am not asked to decide the point, suspension is something less than interdiction. The point to bear in mind is these provisions are temporary in nature.
  4. S.32(3) deals with the payment of salaries to officers who are interdicted from duty. It says that such officers are not entitled to receive any pay whilst they are interdicted. However, s. 32(3)(a) gives the Commissioner of Police the power to override the provisions of the subsection and allow the officer to receive at least half pay.
  5. We then come to the section at the heart of this case. Section 32(3)(b) says:-

"(b) if the proceedings against any such officer do not result in the dismissal of the officer, he shall be entitled to the full amount of the emoluments which he would have received if he had not been interdicted"


In order to understand what is meant by that you must take one step back and look at s. 32(1). There is no definition of "proceedings" but it must relate to what is set out in s. 32(1) namely, "....any offence against discipline under this Act or any offence against any written law". The section (s. 32(1)) also makes it clear that interdiction can extend beyond the initial decision in those matters and can cover the period when any appeal against that initial decision is being considered. That is clearly stated by the words in the section, "...and pending the determination of any appeal".


The meaning of s.32(3)(b) is therefore quite clear. If an officer is interdicted on anything less than full pay and either they are not dismissed or they are dismissed for reasons not connected to the matters which gave rise to their interdiction, then they are entitled to recover the balance of their full salary for period of interdiction.


  1. What has happened to these two claimants? JP was a constable in the Royal Solomon Islands Police. R B was an inspector. They are husband and wife and were stationed at Munda. On 12th December 2003 both were arrested and charged with a number of offences. JP was charged with four offences and RB charged with eight. Both were charged simple larceny, which offence related to the alleged theft of a Mitsubishi motor vehicle that had been used by the Police, I believe at Noro, and which belonged to the Solomon Islands Government. The exact details of the alleged offence are set out fully in the judgments in the High Court Appeal case No 242 of 2004 and the Court of Appeal case 2 of 2005. I need not go into them here. The details of the other offences, apart from their description and the section of the Penal Code they are found in, are not known or set out anywhere in the evidence I have seen.
  2. On 16th December 2003 the then Police Commissioner wrote to them both saying, "Therefore,I, William John Morrell, Commissioner of Police, am interdicting you from duty without pay in accordance with Sections 32(1) and 32(2) of the Police Act [CAP 110]....pending the outcome of the charges you are currently facing. This interdiction is effective from the date of this letter.".
  3. Criminal proceedings in relation to the theft of the motor vehicle took place in the Western Magistrate’s Court at Gizo. JP and RB pleaded not guilty but were convicted and sentenced to two years imprisonment. That was on 9th February 2004.
  4. On 12th February 2004 Commissioner Morrell wrote to JP saying,

"I have been advised by the Professional Standards and Internal Investigations Branch of the RSIP, that on 6 February 2004 at Western Magistrates Court, Gizo you were sentenced in relation to the charge of Simple Larceny to two (2) years imprisonment.


There is no room in the Solomon Islands Police Service for officers with criminal convictions.


Therefore., I, William John Morrell, Commissioner of Police, am dismissing you from the RSIP in accordance with Section 41(1) of the Police Act [CAP 110].... Your dismissal is effective 12 February 2004."


  1. On 29th November 2004 The Manager Human Resources on behalf of the Secretary to Public Service wrote to RB,

"I write to inform you that the Police and Prison Services Commission, in pursuant to Regulations 13 and 15 of the Police and Prisons Services Regulations has decided that you be dismissed from the Royal Solomon Islands Police Force, w.e.f. 6th February 2004.


Your dismissal was a result of your interdicting (sic) without pay, following your arrest and charges with a number of serious criminal offences...", there then followed a list of offences. The letter continued, "On February 2004, you were sentenced in relation to the charge of simple larceny to two (2) years imprisonment."


  1. The reason why JP was dealt with by the Commissioner of Police and RB by the Police and Prison Services Commission is not at first easily understood. The dismissal provisions s.41(1) refers to the Commissioner being able to dismiss (or otherwise deal with), "any police officer, other than a gazetted officer". The former as a Constable clearly fell to be dealt with by the Commissioner. The latter, as an Inspector, is not a gazetted officer, which designation is for those who are Assistant Superintendents or above, but still fell to be dealt with by the Police and Prison Services Commission. The reason why is found in section 121(2) of the Constitution. That states that the Commissioner of Police has disciplinary powers over officers holding the rank of Inspector but he cannot remove them from the Police Force.
  2. Whilst there is a difference in who dismissed the two claimants (see above) the Commissioner of Police was perfectly entitled to deal with the interdictions of both JP and RB. This is because s.32(1)[2] allows the Commissioner to interdict, "... any Inspector or subordinate officer".
  3. JP and RB appealed their conviction to the High Court. The (handwritten) notice is dated 20th February 2004 and was filed in the High Court on 26th February 2004. The appeal was heard by the High Court on 29th October 2004 and a ruling delivered on 1st February 2005. The High Court dismissed the appeals.
  4. On 28th February 2005 JP and RB filed notices of appeal to the Solomon Islands Court of Appeal. The appeals were heard together on 22nd July 2005 and a judgment delivered on 4th August 2005. The Court upheld the appeals and both JP and RB were acquitted.
  5. There is no clear evidence as to what happened in respect of the "other" charges laid against the Claimants. There is a letter from the Acting Director of the Professional and Internal Investigation office (of the Royal Solomon Islands Police) dated 19th September 2007saying, "I hereby confirm that the PSII Data Officer had checked the database and found that cases against both of you have already been finalised and archived."
  6. In the agreed Court Book there are letters[3] which show that an appeal by both Claimants against dismissal was lodged (and accepted) by the Police and Prison Service Commission but there is no evidence to show if those appeals have been dealt with. The letter from the Secretary to the Police and Prison Service Commission dated 20th February 2008 clearly acknowledges that there is an appeal. One is left wondering why there has been no finalisation of the appeal process, or the promised consideration by the Commissioner, more than two years on.
  7. The issue before the court can be simply stated. The Claimants say they are entitled to recover their salaries from the date of their interdiction (6th February 2004) to the date of the Court of Appeal decision (5th August 2005) because of the wording of s. 32(3)(b). The Defendant says that they are not entitled to their salaries because they were lawfully interdicted and they were lawfully dismissed. The Amended Defence filed 27th April 2009 (which I remind myself was before the Amended Claim was filed, with leave of the court, on 16th February 2010), says the answer to the whole claim,"... is premised upon the quashing of the decision/administrative acts constituting the dismissal of each of the Claimants...".
  8. The problem is, the court is not presently being asked to rule directly on the question of the dismissals. The Amended Claim is merely seeking declarations about the consequences of the interdiction on the salaries both Claimants should have received. As I have said earlier [4] there is no question the Commissioner of Police was entitled to interdict both Claimants in December 2003, both were facing a number of criminal charges. I would have to agree that the interdiction was lawful.
  9. The reason Commissioner Morrell gives for the interdiction of both claimants in his letter of 16th December 2003 is their arrest and their subsequently being charged in respect of a number of offences (including the theft of the car). The interdiction was, "pending the outcome of the charges you are currently facing". That is a perfectly valid exercise of the power given to the Commissioner of Police by S. 32(1). It is important to remember what was said earlier, that interdiction can only be a temporary measure. A first and intermediary stage, if you like, in the disciplinary process. It must come to an end and it will do so if the officer is dismissed or when the disciplinary process is otherwise concluded. That will be when some action is taken on the proceedings giving rise to the interdiction which is less than dismissal. Alternatively, interdiction will end when it has been decided that there was no disciplinary breach and the officer is exonerated.
  10. The provisions of S.32(3)(b) are clearly intended to cover the situation where a police officer is interdicted but subsequently "cleared" in respect of the disciplinary matters or it is decided that the officer should not be dismissed or is dismissed for unconnected reasons.[5]
  11. It would after all be wholly wrong if a police officer was unable to recover the pay he has lost whilst interdicted (either on say half pay or as in the present case no pay at all) and later it was found he was innocent of the disciplinary matters under investigation. If the infraction was considered not so serious as to warrant dismissal there is provision in the Act for fines or loss of pay.
  12. As s.32(3)(b) deals with loss of pay during interdiction I have to consider if the interdiction of the Claimants has come to an end. The answer must be yes it has come to an end. As both Claimants have been dismissed from the Royal Solomon Islands Police and are no longer Police officers they can no longer be interdicted. That must follow from the wording of s. 32(1).[6] Constable Pasio was dismissed as at 12th February 2004 [7] and Inspector Bennette as at 6th February 2004 [8].
  13. In this case I can therefore only deal with the period 16th December 2003 to 12th February 2004 in respect of JP and the period 16th December 2003 to 6th February 2004 for RB.
  14. I now turn to the defence, that is the Amended Defence filed on 27th April 2009. I remind myself of the comments I made at paragraph 2 above. Even with those comments in mind I am bound to say the defence set out in paragraphs 1 and 2 fails dismally. It is clear that both Claimants have appealed the dismissal and despite that being acknowledged over two years ago[9] there is no evidence I have seen that indicates the appeals have been concluded. It is plainly wrong for the Defendants to say there has been no appeal when there has been and crass to say so when the delay in dealing with the appeal is not the fault of the Claimants. The fault lies with the Police and Prison Service Commission. If I am wrong and there has been a concluded appeal to the Police and Prison Services Commission then I question why I was not told. The submissions made to the court at the hearing of this matter were clearly on the basis that there has been no appeal to the Police and Prison Service Commission.
  15. The rest of the defence refers to the dismissal of the Claimants. I am not being asked to rule on the lawfulness of the dismissals but as they are raised in the defence I see no reason why I should not comment on them. The two Claimants were treated differently (for the reasons mentioned in paragraphs 11 and 12 above).
  16. Dealing first with Mr Pasio. The Police Commissioner’s letter of dismissal is quite clear. He was dismissed because he had, specifically, been convicted of and sentenced for an offence of simple larceny, namely the theft of the car. There is no doubt that he had been convicted and sentenced as at the date of the letter. Equally there is no doubt that the letter was written before the expiry of the time for an appeal to be lodged. Even ignoring the fact that the date of conviction was incorrectly stated[10] in the Commissioner’s letter, the records show the conviction and sentence were on the 9th February 2004[11], the letter was written at least 7 days before the time to lodge an appeal to the High Court expired. One would have to question the good sense of dismissing an officer under s. 41 of the Act given the concluding words of s. 41(1), "...unless such officer has successfully appealed from such conviction". The meaning of those words is abundantly clear, an officer cannot be dismissed under s.41 if he has successfully appealed the conviction. Technically of course Mr Pasio had not successfully appealed the conviction and therefore, according to the strict letter of the law, the Commissioner was able to dismiss him. But, in all conscience, it is hard to say it was a prudent exercise of the Commissioner’s authority when the charge had been contested by Mr Pasio and the period for appeal had not expired.
  17. The dismissal of Mrs Bennette was different. The reasons given were, "..the result of your interdiction without pay, following your arrest and charges with a number of serious criminal offences.." and apparently because she was, "sentenced in relation to the charge of simple larceny to two (2) years imprisonment". The Police and Prison Service Commission were acting under the authority given them by Regulations 13 and 15 of the Police and Prison Service Regulations. Regulation 14 directs them to follow procedures set out in various Public Service Commission Regulations. One of those, Regulation 55, specifically states that no decision on any question of misconduct, "shall be taken pending the conclusions of legal proceedings and any pending appeal". Despite that clear unequivocal prohibition one month after the High Court heard an appeal but before the court’s ruling had been handed down, the Public Service Department writes a letter of dismissal. Not only that, just as the Commissioner had done in his letter to JP, the dismissal was for a conviction which hadn’t actually happened [12].
  18. I would also like to mention the point raised in the letters from both the Police and Prison Service Commission [13] and the Commissioner of Police [14] . Whilst it may be true that, "...acquittal is not in itself a reason for automatic reinstatement" or "Acquittal does not automatically absolve a person from culpability in terms of conduct and character.." acquittal would have a very real bearing on the question, when the Police and Prison Service finally deign to deal with the appeal before it, of whether the dismissals, for the reasons given back in 2004, were lawful. I am sure that even if the Commission does not consider it to be of considerable importance, any court looking at the eventual decision of the Commission would.
  19. Having said all that, and taking everything into consideration, where does it leave the Claimants? Regretfully I have to say not really any better off than they were before commencing this action. The plain facts are that the section they are relying on relates only the time they were interdicted from duty, and because of the de facto dismissal of both claimants the interdiction ended on 6th February 2004. In addition the reasons given for dismissal are the de facto reasons for dismissal. That in turn means that the proceedings (under s.31 of the Police Act) have resulted in their dismissal and they cannot, at this time, rely on the provisions of s32(3)(b). I stress that this judgment does not answer the questions as to whether the dismissals were lawful, proper, moral, justified or whatever. I have not been asked to answer those questions in this case. It is a decision on the narrow point as to whether the Claimants can rely solely on s32(3)(b) of the Police Act.
  20. I am unable to make the declarations sought by the Claimants in their Amended Claim filed on 16th February 2010.
  21. As to costs, these are solely at the court’s discretion. I had seriously thought of ordering the Defendants to pay the Claimants’ costs because of the history of this matter. After further consideration I have decided not to do that at this time because the Claimants have had the benefit of assistance from the Public Solicitors Office and such an order would result only in an intra departmental movement of Government money. There hardly seems any point in that exercise. I will not entirely close that door though and I will leave open the question of costs so that if the Claimants have personally suffered a financial loss in bringing these proceedings I will entertain an application for costs against the Defendants.
  22. I also say that in the (probably vain) hope that all those involved in this case take some note of what is said in this judgment there may be a more considered view taken as to settlement of the issues between the parties. If that were to occur then I would more than likely take a different view on the question of costs.

Chetwynd J

[1] S.32(1) Police Act [CAP 110]
[2] Police Act [CAP 110]
[3] See 50 to 54 inclusive of the Court Book
[4] See paragraph 12 above
[5] See paragraph 5 above
[6] See paragraphs 3 and 19 above
[7] See letter from Commissioner of Police Morrell dated 12th February 2004 (page 24 of the Court Book)
[8] See letter from the Public Service Department dated 29th November 2004 (page 25 of the Court Book)
[9] See the letter dated 20th February 2008 from Secretary to the Police and Prison Services Commission (page 53 of the Court Book)
[10] See also paragraph 27
[11] See pages 27 and 28 of the Court Book
[12] See pages 27 and 28 of the Court Book
[13] See page 53 of the Court Book
[14] See page 54 of the Court Book

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