Kalaniuvalu v Tonga Police [2013] TOSC 36; AM 02 of 2013 (12 July 2013)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

AM 2 of 2013
[P.B. 10/2012]

BETWEEN:

ASP TULU KALANIUVALU
Appellant

AND

TONGA POLICE
Respondent

'O. Pouono for the Appellant
'A. Kefu (Solicitor General) for the Respondent

JUDGMENT

1 This is an appeal against a decision of the Police Board dated 9 March 2013 brought pursuant to the provisions of Section 85(3) of the Police Act (35 of 2010).

2. On 1 January 2013 the Commissioner of Police received a complaint against the Applicant which was referred to an internal investigator on 4 January, as is required by Section 57 of the Act.

3. On 15 February 2013 the Police Employment Committee considered the internal investigator's report, as is required by Section 60 of the Act. The Committee concluded that the Applicant had committed a serious breach of discipline and that the appropriate penalty should be the termination of his employment under Section 66(1)(i) of the Act. Under Section 63(2) this recommendation was referred to the Police Board on 19 February 2013.

4. On 27 February 2013 W.P.C Hulita Takau went to the Applicant's residence and saw a letter delivered to his wife. The letter was a notice to the Applicant that he was required to appear at a meeting of the Police Board which was to be held on Friday 1st March at "Court Room 3 at the Magistrates' Courts". In fact the hearing was to be held at Court Room 3 of the Supreme Court but nothing turns on this error.

5. The proceedings before the Police Board are fully described in the Board's ruling delivered on 9 March a copy of which is Annexure D to an affidavit of Chief Inspector Sokopeti Faletau sworn on 1 July 2013. No evidence was filed by the Applicant in support of the present application and the affidavit evidence of Inspector Faletau and W.P.C. Takau is therefore undisputed.

6. In paragraph (4) of the Police Board Ruling it is stated that:

"Although notified that the hearing of the Board would be held on 1 March 2013, ASP Kalaniuvalu chose not to appear before us".

After considering the circumstances and nature of the complaint against the Applicant the Police Board approved the Employment Committee's recommendation that the Applicant's appointment with the Police Service be terminated.

7 In paragraphs 14 to 24 of her affidavit Insp. Faletau gives a detailed description of the efforts made to contact the Applicant after he failed to appear on 1st March before the Police Board. After several attempts to speak to the Applicant by telephone a text message was sent to the Applicant at about 12:58pm: "Tulu are you attending the board hearing? Please answer your phone". A text reply from the Applicant was: "No, I will write later". At 13:01 pm a second text message was sent to the Applicant: "The board requires you here by 14:15hrs and this is from the Chairman". At 13:04 a reply was received: "You have put me out of work and there are people I am currently accountable to, thanks". At 13:11 a final text message was sent to the Applicant: "If you are not here at14:15hrs the board will continue on your case". No reply was received.

8. The Applicant did not attend the Police Board on 1 March either in person or through counsel. He did not seek a review of the Police Employment Committee's recommendation as was his right under Section 83(i) of the Act. There was nothing before the Police Board to suggest that the Applicant was dissatisfied with the Committee's recommendation.

9. By Section 85(3) the appeal is confined to grounds of law or breaches of the rules of natural justice. The first two grounds of appeal filed by Mr Pouono complained of procedural defects amounting to errors of law. The third ground which complained that the penalty of termination of appointment by the Police Board was either unavailable or unwarranted was not pursued.

10. The first ground of appeal was that the Board "erred in law in finding against the Appellant" when he was not present at the hearing, when no representations were made on his behalf, when there was no evidence in the transcript that he had been notified of the hearing and when it had not been made clear to the Appellant that the Police Board had the power to confirm the Employment Committee's recommendation that he be dismissed.

11. A copy of the transcript of the proceedings before the Police Board was filed in Court on 30 May 2013. Paragraphs 125 to 127 are consistent with the evidence of Inspector Faletau already referred to. While there is no reference to the notice delivered by W.P.C. Takau, it is not the Appellant's case that this notice was not received.

12. In the absence of the Appellant and in the absence of an affidavit filed by him, Mr Pouono did the best he could in a difficult situation. He suggested that the Appellant was not supplied with all the papers he needed and that he had only received the notice dated 27 February. He was not given a fair opportunity to present his case. The difficulty about this argument is that the Appellant did not even go to the Board, or write to the Board to request an adjournment. Had he done so, I have no doubt that such a request would have been granted. From the evidence it is plain to me that the Appellant simply refused to attend despite being given every opportunity to do so. The letter of 27 February was entirely clear; the Applicant can have been in no doubt that the Police Board was meeting on 1 March to consider a recommendation that he be dismissed. I am satisfied that the Appellant, as stated by the Board "chose not to appear". Having so chosen, the Applicant cannot be heard to complain of the consequences. This ground of appeal fails.

13. The second ground of appeal alleges failure to comply with Section 79(2) of the Act. Section 79(2) deals with reasons for suspension. This suspension is carried out by the Commissioner. It has no relation to the proceedings of the Police Board.

14. It is also alleged that no hearing took place before the Police Employment Committee at which the Appellant was present. This, a matter that could have been placed before the Police Board, appears to be correct. There is however no requirement under the Act for the member to be present when the Committee complied with Section 60 by considering the Internal Investigator's report and the Appellant's response dated 2 January 2013.

15. Finally it was submitted that there had been breaches of Sections 62(1), (2) and (4) of the Act. Section 62(1) applies since the Employment Committee took the view that the Appellant's conduct warranted the termination of his employment. Section 62(2) requires the Committee's conclusions to be referred to the Board within 7 days. The Committee reached its conclusion on 15 February and that conclusion was referred to the Board on 19 February. There was no breach of Section 62(2). Section 63(4) requires the member to be given notice that the matter has been referred to the Police Board within 7 days of the referral. The notice dated 27 February was one day late. If, in fact, the Appellant was inconvenienced by this trivial procedural shortcoming then he was free to raise the matter before the Police Board. He did not do so. I do not consider that this very minor legal error affords the Appellant a reasonable ground for complaint.

13. I find no merit in either of the Appellant's grounds of appeal. The appeal is dismissed.

CHIEF JUSTICE

Dated: 12 July 2013.