Akao v Attorney General [2017] SBHC 92; HCSI-CC 517 of 2016 (25 August 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 517 of 2016

BETWEEN: SELWYN AKAO - Claimant
AND: ATTORNEY GENERAL
(Representing the Commissioner of Police) - Defendant

Date of Hearing: 27^th July 2017.
Date of Ruling: 25^th August 2017.

Mrs. S. M. Choniey and B. Kaehuna for the Claimant.
Mr. F. Hollison for the Defendant.

KENIAPISIA; PJ:

RULING ON CHAPTER 15 CONFERENCE

Introduction

1. Pleadings and sworn statements have closed. This conference is called pursuant to Rule 15.3.16, this being a judicial review claim. Under the old Civil Procedure Rules, this would be an application for leave, to precede a judicial review claim. Under the new Rules, it is a chapter 15 conference. This conference is likened to a filtering process, whereby the Court must consider and be satisfied with matters in Rule 15.3.18 (a) – (d), before it can hear the claim.
   
2. The matters that Court must be satisfied with in this filtering process, I will refer to as “a four tests filtering process”. Test 1, whether claimant has an arguable case? Test 2, whether claimant is directly affected by the subject matter? Test 3, whether there has been no undue delay in making the claim? The fourth test is whether there is no other remedy that resolves the matter fully and directly?
   
3. Case law authorities in this Court have made it clear that a judicial review claim, at this conference, must pass all four tests, before the Court can hear the claim^[1].
   

Background

4. On or around 3^rd December 2008, the Commissioner of the Royal Solomon Islands Police Force (“the Commissioner”) interdicted or suspended the claimant, from official duties, whilst investigations were made into allegations of offences against discipline made against Mr Akao, a police constable, under Part V of the Police Act (Cap 110), as read with Regulation 5 (ee) of the Police Regulations 1972, (“the Regulations”) for his alleged involvement in the investigation into the death of late Isu in November 2008.
   
5. In June 2009, the Professional Standards and Internal Investigations Department (“PSIID”) within the Royal Solomon Islands Police Force (“RSIPF”) concluded its investigations into the alleged disciplinary offences committed by the claimant. PSIID recommended that the claimant be charged for both criminal and disciplinary offences.
   
6. In July 2009, claimant was formally charged, with a total of eight (8) counts for prejudice to good order and discipline, contrary to Regulation 5 (ee) of the Regulations.
   
7. On or about 28^th July 2009, claimant appeared before the RSIPF disciplinary panel and argued that the charges were not properly written in the correct forms. No plea was entered and matter was adjourned.
   
8. On or about the 19^th October 2009, claimant failed to attend a convened panel hearing, despite written directives dated 12 October 2009, issued to him, prior to the hearing.
   
9. On or about 2^nd November 2009, claimant also failed to attend another convened panel hearing though, he was informed by way of writing prior to the hearing.
   
10. On or about 9^th November 2009, claimant appeared before the tribunal and asked that he be represented by his lawyer, but the Commissioner refused the request on the basis that the panel is not a court of law.
    
11. On or about the 16^th November 2009, claimant again failed to appear before the panel as he had commenced the High Court Civil Case No. 441 of 2009 (“HC-CC No. 441 of 2009”). In HC-CC No. 441 of 2009, Akao claimed that he was entitled under the Constitution to be represented by a lawyer during the inquiry before the panel. The judgment dismissing his claim was delivered on the 11^th May 2011, two years later.
    
12. After the judgment was delivered in May 2011, claimant had again failed to attend several hearings convened by the panel (8^th June 2011 – Akao failed to attend; 22^nd June 2011 – Akao failed to attend; 13^th October 2011 – Akao objected to panel composition and 17^th November 2011 – Akao failed to attend). Akao’s argument as submitted by counsel is that, there were short notices. From evidence this was true. But the charges are not new and Akao reside very close to the Police headquarters; where hearings were convened. I would think that two weeks’ notice would be reasonable; for future purposes.
    
13. From 2012 to 2016, evidence has shown that two things have happened further prolonging the hearing of the charges laid against the claimant. First, office of the Commissioner was having difficulty, securing Senior Police Officers who would, preside over hearing of Akao’s disciplinary case. This is because the Commissioner wanted to delegate this task to his senior sub-ordinates in line with Section 36 (1) of the Police Act (Cap 110). Second is the filing of this second High Court proceeding by the claimant.
    
14. On failure to complete the disciplinary case against the claimant, I found that both parties are equally responsible for the long delay since 2008/2009. From 2008 to 2011, various hearings were convened, yet Mr Akao either refused to attend or had obtained adjournments for his own reasons. In 2009, Akao had insisted on having a legal representative before his case can be heard. Akao went to the High Court with his insistence, the Court refusing in 2011. After the Court refusal in 2011; various other attempts were made by the Commissioner and hearings were convened. Again for his own reasons, Akao failed to attend hearings. Then after 2011, to current, the Commissioner was having difficulty locating a Senior Police Officer, who was willing to preside over Akao’s hearing. Then came this current proceeding.
    
15. In this proceeding the claimant is complaining about his suspension. He is saying the Commissioner is negligent and had unreasonably prolong the conclusion of his disciplinary case. And that he has been a slave to the suspension since 2008. As a slave, he seeks compensation for harm he endured, from the Commissioner’s negligence. I found above that he is partly to be blamed for the long delay.
    
16. The disciplinary procedure and process under Part V of the Police Act should also be discussed briefly. This is taken from the main Act and the subsidiary legislation; the Regulation. How it is practiced may be different. Have not seen evidence suggesting otherwise.
    

16.1. A Police officer who is alleged, for “any offence against discipline” or any offence against any written law, may be “suspended” by the Commissioner.

16.2. “Investigation” is then carried out into the allegation. If after investigation, a case is established against the accused officer, the accused officer is then “charged”.

16.3. The charged accused officer is then given a “fair hearing” including an opportunity to make his defence (“inquiry^[2] is made into the charges”).

16.4. If the charged officer is “punished” for the charges; she/he must be informed of his/her “right to appeal” to the Police and Prisons Services Commission (“the Commission”).

16.5. The Commissioner may “review” all disciplinary proceeding that he/she has delegated to officers below him/her. Appeal lie to the Commissioner for decisions handed by a Commanding Officer below the Commissioner, who was delegated and headed a disciplinary proceedings against a police officer.

16.6. Officer charged, whose case is presided over by a Commanding Officer can appeal to “the Commissioner and then further appeals lie to the “Commission”. Officer charged whose case is presided over by the Commissioner can “appeal direct to the Commission”.

17. For the disciplinary case brought against Mr. Akao, it has only reached the stage where charges were laid on Mr. Akao, after investigations were completed by PSIID. Various hearings were convened by an appointed panel, but inquiry not actually conducted and decisions not reached. Meanwhile Mr Akao continues to be suspended, because the disciplinary proceeding against him is yet to be concluded after various attempts to convene a hearing failed. Therefore there is no decision reached as yet on Akao’s disciplinary case; following his suspension.
    

Test 1 - Arguable Case – Can Akao challenge the suspension?

18. Turning now to the four tests. Does the claimant have an arguable case? Starting point is can he challenge the suspension? The Police Act and the Regulations provides a procedure and process for internal discipline in the RSIPF. Rightly so, because this is a disciplined force and they must be seen to be so, when issues of discipline arose internally. The disciplinary process would normally start with suspension; then investigation; then charges laid; then inquiry made into the charges and a decision is to be made by the inquiry panel. Final appeal on any decision is heard by the Commission. In this case, Akao was suspended; investigations completed; charges laid; but inquiry and decision still pending by a Panel. Reasons for the long delay already covered above. The suspension has been properly and lawfully made to kick start the disciplinary case against Akao. The suspension is the first procedural step to discipline Akao, pending inquiry and final decision. Matters of discipline are internal issues to be administered by the Commissioner. The disciplinary case against Akao is still pending enquiry and decision. It is premature to challenge the suspension. There is no decision to be scrutinised through judicial review. The decision to suspend is not a final decision on the disciplinary case against Akao. It is only the commencement. That decision will complete once an enquiry is made by a panel and the inquiry panel make its decision. Should the inquiry panel find against Akao and impose punishment, Akao can still go to the Commissioner for a review. Once Akao is not happy with the Commissioner’s decision, he can appeal to the Commission. Once Akao is not happy with the decision of the Commission, he can then come to this Court for a judicial review claim. In view of this; Court is not satisfied the claimant has an arguable case. Court cannot interfere with the internal administrative disciplinary process commenced against a police officer.

Test 2 - Undue delay

19. There is no undue delay. The suspension decision is a continuing act, till the disciplinary process discussed above is exhausted. Claimant cannot be therefore said to be late in filing this claim.

Test 3 - Claimant is directly affected

20. Claimant has been directly affected by the suspension.
    

Test 4 - Another remedy that resolves this matter fully and directly

21. In view of what I said in paragraphs 16, 17 and 18 claimant cannot come to this Court for a judicial review until he has reached the Commission with his appeal. There is yet another remedy available and claimant has not fully exhausted that other remedy. Court is not satisfied on this matter. Any and all complains relating to the suspension must be addressed using this remedial process; before coming to this Court.
    
22. Accordingly; the orders of the Court are:-
    

22.1. Claim is dismissed or Court will not hear the claim.

22.2. Parties meet their own cost; because long delay is attributable to both.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Manasau –v- Attorney General (2014) SBHC 83; HCSI- cc 332 of 2013 (8^th September 2014).
^[2] Procedure in Inquiries are found in Regulation 6 of the Regulations.