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State v Commissioner of Police, Ex parte Ram [2004] FJHC 85; HBJ0014J.1998L (5 April 2004)

HIGH COURT OF FIJI
AT LAUTOKA

Judicial Review No. HBJ014.98L

THE STATE

V

COMMISSIONER OF POLICE

EX PARTE: BABU RAM

Lautoka High Court
15 March 2001, 5 April 2004
Gates J

JUDGMENT

Judicial Review; Police Act Cap 85 Section 60; Regulation 12(37) Police Regulations; High Court exercising supervisory not appellate jurisdiction; was penalty irrational?; powers of Police Disciplinary Tribunal, Sections 32, 33, 34; submissions to Commissioner of Police as body invested with power of sentence; adverse external recommendation recommending demotion; recommendation of tribunal for penalty of fine and warning; need for disclosure and for opportunity to deal with recommendation not part of Tribunal proceedings; entitlement to be heard; bare recommendation as compared with evidential material; effect of applicant’s subsequent letter of appeal.

Mr G.P. Shankar for Applicant
Mr A. Tuilevuka for the State

[1] The issues in this case are whether a penalty of demotion in rank imposed by the Commissioner of Police after disciplinary tribunal proceedings was irrational, and whether an external adverse recommendation should have been disclosed to the Applicant prior to the Commissioner’s decision on penalty in order to permit applicant an opportunity to address the recommendation.

[2] Judicial review proceedings were filed as long ago as 8 July 1998. The applicant filed an affidavit in support; and later a further 2 affidavits. Leave was opposed.

[3] Regrettably this is a case, in which the parties and particularly the aggrieved party who brings the application, have been poorly served by the court and by judicial services. Byrne J has oft stated his own trenchant view on the systemic delays at the Lautoka High Court and on the inadequacy of the services and judicial officers made available to deal with the work. These remarks followed on earlier comments in 2001 of Prakash J on systemic delays at this court centre. The Deputy Registrar informs me that after survey there is now known to be a backlog of 6,500 civil cases. For many years there has been only one civil judge, and so the problem gets worse. I tender my apologies to the parties on behalf of the judges and for my own part, the chief part, in contributing to the delay.

The Police Tribunal

[4] The applicant joined the Fiji Police Force in 1969. He was promoted Corporal in 1976. On 11 March 1998 he sat a police qualifying examination for Sergeant. In his affidavit the applicant said he was charged with conduct prejudicial to good order contrary to Regulation 12 (37) of the Police Regulations Cap 85.

[5] This charge he said “related to myself having made or copied some notes during the examination.”

[6] He appeared before a Police Disciplinary Tribunal. He admitted the charge. On 16 April 1998 he was given a memorandum from the office of the Commissioner of Police signed by an Assistant Commissioner dated 3 April 1998 informing him that his punishment was to be reduction in rank from Corporal to Constable, with ensuing reduction in pay. The applicant claims the penalty was out of all proportion to his conduct which he had frankly admitted before the Tribunal. He also called it “very severe, unreasonable, unfair.”

[7] In Permanent Secretary for PSC v Lepani Matea (unreported) Court of Appeal Fiji, Civil Appeal No. ABU0016.1998S; 29 May 1998, the court said (at p.12):

“We think that it is important to remember what many cases of high authority have determined – and they have been emphasised in the past by this Court – that judicial review is what it says, namely, a judicial review and not an appeal. The function of the Court is to ensure that the body subject to the review has acted within its jurisdiction, has directed itself properly as to the law applicable and applied that law accordingly. It must, too, observe the requirements of procedural fairness to the extent that they apply in the particular case. What it must not do is to determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits. This means, of course, that it cannot substitute its opinion for that of the body concerned on the matter of penalty.”

[8] In R v Barnsley Metropolitan Borough Council Ex p. Hook [1976] 3 All ER 452 two judges of the 3 judge Court of Appeal held that punishment which was altogether excessive and out of proportion to the occasion could be quashed on that ground and the court had jurisdiction to interfere by certiorari in such a case. The excessive penalty was the cancellation of a stall holder’s licence the applicant having urinated in the street.

[9] In Lepani Matea the court commented (p.13):

“But the penalty has to be so severe and so out of proportion that no reasonable body could impose it. Short of that standard the Court cannot interfere. We do not think that can be said of the penalty in this case.”

In that case dismissal from the Public Service was the penalty meted out for having been convicted of causing death by dangerous driving when he was sentenced to 9 months imprisonment suspended for 2 years, fined $500 i/d 4 months imprisonment, and disqualified from holding or obtaining a driving licence for 18 months.

[10] The court cannot intervene and substitute its own penalty simply because it would have preferred a less severe form of punishment. The Tribunal here recommended the imposition of a $40 fine with a final warning to be issued by the Commissioner. The Commissioner instead decided demotion was the correct penalty for conduct that amounted to cheating in an examination.

[11] Cheating is a form of dishonesty and hardly a matter to be taken lightly in the police force. Police officers are expected to be straightforward and honest. They are tasked with the duty of investigating crime, including crimes of dishonesty. The public expect their approach to such work to be completely honest and beyond question.

[12] Irrespective of whether this court, or any appellate court, would have been minded to interfere with this sentence and favour the tribunal’s recommendation, reduction in rank cannot be categorised as an irrational penalty. On this limb of the argument, leave to issue judicial review cannot be granted.

The external recommendation

[13] The evidence submitted is scanty. It is not clear who the tribunal comprised.

Regulation 13 sets out how the tribunal should conduct itself:

“13. The following procedure shall apply to all proceedings heard by any tribunal under the provisions of section 32 of the Act:---

(i) the officer charged with an offence against discipline (hereinafter referred to as “the accused”) shall be supplied with a copy of the charge prior to the hearing;

(ii) no documentary evidence shall be used in any such proceedings unless the accused has been given access thereto prior to the hearing;

(iii) the evidence of any witness taken during the course of the proceedings shall be recorded in the presence of the accused;

(iv) the evidence given at the proceedings need not be taken down in full, but the substance and material points thereof must be recorded in writing and read over to the accused;

(v) the accused shall have the right to cross-examine each witness giving evidence against him and after each such witness has given evidence he shall be asked if he desires to cross-examine such witness;

(vi) the accused shall be asked if he desires to give evidence in his own defence and to call witnesses and, if he does so desire, shall be given a reasonable opportunity to do so;

(vii) the tribunal may, in its discretion, allow the accused to be assisted by a friend, being a gazetted officer, and, when such permission is given, his defence may be conducted by such friend.

(Amended by Order 10th July 1970”.)”

[14] Section 32(1) of the Act provides:

“B. Subject to the provisions of section 33, any gazetted officer shall have power to hear and investigate charges, and if he finds the accused person guilty of an offence against discipline, to make recommendations to the Commissioner as to the punishment to be imposed.”

[15] Section 32(2) deals with with the making of a defence to a charge:

(2) No police officer shall be convicted of an offence against discipline unless the charge has been read and investigated in his presence and he has been given sufficient opportunity to make his defence thereto.”

[16] The applicant does not complain of the proceedings before the tribunal. I conclude therefore that he was able to make his case on his plea of guilty and to submit on the question on penalty. Punishment was a power only the Commissioner could impose [section 32]. Having heard the applicant’s mitigation the tribunal made its recommendation for a fine of $30 and a final warning. The record of proceedings, the defence mitigation and submissions on sentence, and the tribunal’s recommendation would all have been before the Commissioner when he came to perform his review of the proceedings as he was bound to do by virtue of section 33.

[17] Section 33 provides:

“33. (1) The Commissioner shall review all proceedings heard by any tribunal, other than proceedings heard by himself.

(2) Upon such review, the Commissioner may---

(a) quash the finding;

(b) alter the finding, find the offender guilty of another offence and punish him in accordance with his powers under the last preceding section;

(c) confirm the finding and punish the offender in accordance with his powers under section 32;

(d) remit the proceedings to the tribunal which heard them or to another tribunal, for re-hearing.”

[18] Then came the recommendation in the form of a memorandum to the Commissioner from the Divisional Police Commander Western of 27.3.98. It was signed by a Superintendent of Police S.T. Raivakadua for the DPC/Western. It read:

“Attached please find the disciplinary proceeding papers in respect of the above named officer with the recommendation of the tribunal.

In view of the seriousness of the offence and to be committed by a senior NCO who should show good examples to junior subordinates. I differ from the recommendation and feel that a much more severe punishment is called for.

Perhaps a reduction in rank is appropriate in this case and I recommend accordingly please.”

[19] This memorandum was not copied to the applicant, nor was he given a chance to deal with the memorandum prior to the Commissioner’s review and imposition of punishment.

[20] The procedure for trial of offences against discipline provides for a recommendation on punishment to come from a gazetted officer. However the Act does not confer such a role upon any gazetted officer. The power is given to the trial officer, the gazetted officer who has the power to hear and investigate charges. In this respect, the proceedings were irregular.

[21] Subsequently, on 4.6.98 the applicant wrote a letter to the Commissioner headed “Appeal on Severity of Sentence”. The letter referred to the reasons why the applicant had committed the offence. He referred to his plea of guilty as demonstrating his remorse. He cited other cases where police officers charged with more serious offences had been met with more lenient punishment, a monetary fine not reduction in rank. The letter gave a specific example.

[22] The applicant referred to his 29 years of service during which he had only committed 2 disciplinary offences only. Both were minor and the last was in 1994. He referred to the severity of the loss of income from the reduction in rank, the loss of gratuity and pension. The letter ended by asking the Commissioner to review the severity of punishment. The Commissioner did not allow the appeal.

[23] Had the applicant not been allowed to present his submissions on penalty to the tribunal, the applicant would have been denied his right to be heard. But he had been accorded an opportunity to submit what he considered a fair penalty from amongst the list of possible punishments open to the Commissioner in section 32(1)(A)(b). The tribunal then forwarded the applicant’s submissions together with its recommendation with a record of the proceedings to the Commissioner.

[24] In Lepani Matea (supra at p.10) the court said:

“Finally we add that what is a fair hearing will depend upon the circumstances of each case; it does not mean that in every case a right of personal appearance must be given.”

[25] Though the recommendation for harsher treatment came from an unauthorised quarter, the applicant’s subsequent letter to the Commissioner put his case fully on this issue and dealt with it. The irregular recommendation had been confined to penalty, put forward no fresh or prejudicial evidential material, and was not argumentative: cf. K.R. Latchan Brothers Ltd & Anor. v Sunbeam Transport Ltd & Others (unreported) Fiji Court of Appeal Civil App 45 of 1983; 16 March 1984 at p.24. The applicant had had the earlier opportunity to deal with all possible punishments open to the Commissioner when addressing the tribunal. This may have been persuasive on the tribunal in arriving at its recommendation for fine and warning.

[26] I have already observed that the external recommendation is not provided for by the procedure and it should no longer be repeated if it is still police practice. The applicant has been heard on penalty however. I see no useful purpose therefore in granting leave, which I refuse.

A.H.C.T. GATES
JUDGE

Solicitors for the Applicant: Messrs G.P. Shankar & Co., Ba
Solicitors for the State: Office of the Attorney General, Suva