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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Action No. HBJ 09 of 2021
IN THE MATTER of an Application for Judicial Review by
PENIELI RATEI AND TOMASI NAULU (Applicants)
AND
IN THE MATTER of the decision made on 4th and 18th August 2021 by the
COMMISSIONER OF POLICE whereby it claimed to have terminated the
employment of the Applicants from the Fiji Police Force.
BETWEEN
PENIELI RATEI of Lot 9, Narere Industrial Road, Narere.
And TOMASI NAULU of Lot 35, Duvula Road, Nadera.
APPLICANTS
AND
THE COMMISSIONER OF POLICE of Police Head Quarters,
Vinod Patel Complex, Laucala Beach, Nasinu.
FIRST RESPONDENT
AND
THE ATTORNEY GENERAL, Suvavou House, Suva.
SECOND RESPONDENT
Counsel : Ms. Raikaci N. for the Applicants
Ms. Faktaufon M. for the Respondents
Date of Hearing : 17th June 2022
Date of Ruling : 30th June 2022
RULING
(On the application for leave to file and application for Judicial Review)
[1] The Applicants filed the following documents on 05th November 2021:
(a) Notice of Motion;
(b) Application for leave to apply for Judicial Review under Order 53 Rule 3(2) of the High Court Rules;
(c) Affidavit in support of the application for leave to apply for Judicial Review; and
(d) Affidavit in Reply to the Respondents response filed on 01st February 2022.
[2] The Respondents filed its Notice of Opposition on 13th December 2021 and Affidavit in Response filed on 06th January 2022.
[3] The First Applicant joined the Fiji Police Force (Force) as a special constable on 03rd March 1997 and was absorbed in to the regular force in the year 2000. At the time of this incident he was holding the rank of Sergeant.
[4] The Second Applicant joined the Force as a special constable in 2018 and was absorbed into the regular force in 2019.
[5] On 21st May 2021 the First Applicant and his team searched a taxi (LT966) driven by one Jonacani Bolavutia Banimarama at Mead Road Command Post. Three weeks before, the same taxi was involved in delivering a parcel of dried leaves believed to be an illicit drug. However the parcel was in the possession of another person by the name of Ronald Raju. On 21st May there were no illicit substances found in the taxi but the two Applicants proceeded to take a photograph of the Taxi driver and later uploaded it in to one of police operations Viber group without any reasonable directive from the Commissioner of Police or any other senior official in the Force. The taxi driver was neither confirmed to be a high risk individual nor was he to be charged with an offence.
[6] On 22nd May 2021 both Applicants were charged for violating section 18(1) of the Police Act under section 60(c) (d) of the Police Act 1965 and Regulation 12(37) of Police Regulations 1965 for the Conduct Prejudicial to Good Order and the Discipline of the Force.
[7] Subsequent to the charges filed both Applicants were directed by the Commissioner of Police to proceed to take their annual and long service leave and thereafter interdicted from duty with half pay pending outcome of the investigation.
[8] The two Applicants were accorded a hearing on the charges before a Police Tribunal stipulated under the disciplinary procedure of the Force. The Applicants were represented at the hearing by a Senior Superintendent of Police. On 28th July 2021 the Police Tribunal found both applicants guilty of conduct prejudicial to good order and discipline of the Force.
[9] The Applicants averred that they sought time to file written mitigation before the sentencing however the Tribunal informed that they should do it orally and that will be reduced to writing and submitted with their file to the Commissioner for his consideration before passing the sentence. The Applicants believe that this was never done as they were not shown any written document to that effect or there was no mention by the Commissioner in his letter dated 4th August 2021 where they were imposed a fine (2 and 5 days of pay) and warning effective for 12 months period. On the same day the Commissioner ordered that their interdiction be uplifted.
[10] On 13th August 2021 the Commissioner wrote back to both Applicants requesting to show cause why their services be retained by the Force in light of the findings of the Tribunal. The two Applicants responded in writing and on 18th August 2021 the Commissioner dismissed both Applicants with immediate effect on the basis of their convictions at the Tribunal. The two Applicants appealed on the said decision on 27th August 2021 to the Commissioner which they yet to receive a response.
[11] By filing this action the Applicants have sought the following orders from the Court.
THAT the grounds upon which the Applicants are seeking reliefs against the COMMISSIONER OF POLICE are as follows:-
(i) That the decision made by THE COMMISSIONER OF POLICE on the 18th of August 2021 is procedurally unfair and improper because he failed to exercise his own independent discretion in good faith when he took into account irrelevant considerations and failed to take into account relevant consideration, in that, the Tribunal was functus when the Applicants had been penalized for the same offence on 4th August 2021.
(ii) That THE COMMISSIONER OF POLICE failed to give written reasons for his decision to dismiss the Applicants on the 18th of August 2021, hence abusing the powers conferred upon him by Section 16 (1) (b) of the 2013 Constitution of the Republic of Fiji.
(iii) That THE COMMISSIONER OF POLICE decision on 18th August 2021 is ultra vires in that he contravenes or exceeds the powers conferred upon him by Section 16 (1) (a) and (b) of the Constitution and Sections 30 (b), 32(1) B and Section 33 of the Police Act respectively, and therefore, his decision to dismiss the Applicants from the Force with immediate effect is null, void and of no legal effect.
(iv) The decision made by THE COMMISSIONER OF POLICE is irrational insofar that it is unreasonable and lacks proportionality considering the offence purportedly committed by the Applicants in comparison with the punishment given.
(v) The COMMISSIONER OF POLICE had breached the Applicants’ “legitimate expectation” by finding them guilty of an act that is routinely and openly practiced, or rather an established or accepted routine practice in the Fiji Police Force and condoned and/or consented to by senior officials as confirmed by the judgment of the Tribunal, as such, the Applicants’ conduct was not prejudicial to “good order and discipline of the Force”.
(vi) In dismissing the Applicants on 18th August 2021, the COMMISSIONER OF POLICE had further breached the Applicants’ legitimate expectation in their continuous employment in the Fiji Police Force, following the rescission of their interdiction and payment of their respective fines and a warning that remain inforce for 12 months issued on the 4th day of August, 2021, for the same offence.
(vii) That the COMMISSIONER’s power to review the findings of the Tribunal is mandated be Section 33 (2) (a-d) of the Police Act and nowhere under these provisions does it state that the Police Commissioner has the powers to re-punish an offender after the finding of guilt by the Tribunal on the same set of facts.
(viii) That in the exercise of his discretion under Section 33 (2) of the Police Act, the COMMISSIONER OF POLICE failed to quash the Tribunal’s finding of guilt against the 1st Applicant for uploading the complainant’s photo on viber, an act which is not an offence under the Police Act, hence, a violation of Section 14 (1) (a) of the 2013 Constitution.
(ix) That the COMMISSIONER OF POLICE failed to consult and/or to give ample time to the Applicants to show cause or a chance to be properly heard before he dismissed the Applicants. This is in contravention of the principle of natural justice; the Latin phrase audi alteram partem rule meaning “listen to the other side” or “let the other side be heard as well”.
[12] As stated in Proline Boating Company Limited v The Director of Lands, Registrar of Titles, Dominion Finance Limited and Proline Marketing Limited [Unreported] Civil Appeal ABU0020 of 2013 the Court perused this Application to see whether the Applicants have fulfilled the mandatory statutory requirements under Order 53 Rule 3(2) and Rule 3(5) of the High Court Rules 1988. The Court is satisfied as the application for leave has been made by way of Originating motion supported by an affidavit. The two Applicants were directly subjected to the act that has been sought for judicial review. Therefore both Applicants have sufficient interest in the matter which this application relates. Further as discussed in the Proline Boating case the Court is satisfied that the Applicants did not have an inordinate delay in bringing this application before this Court.
[13] In Fiji Airline Pilots Association v Permanent Secretary for Labour and Industrial Relations [1998] FJCA 14; Abu0059u.97s (27 February 1998) the Court of Appeal held:
... The basic principle is that the Judge is only required to be satisfied that the material available discloses what might, on further consideration, turn out to be an arguable case in favour of granting the relief. If it does, he or she should grant the application - per Lord Diplock in Inland Revenue Commissioners v National Federation of Self Employed, [1981] UKHL 2; [1982] AC 617 at 644. This principle was applied by this Court in National Farmers’ Union v Sugar Industry Tribunal and Others (CA 8/1990; 7 June 1990).
In State v Connors, ex parte Shah [2008] FJHC 64; HBJ47.2007 (7 April 2008) it was held:
as was said in Sitiveni Ligamamada Rabuka and Commission of Inquiry into the Deed of Settlement Dated 17 September 19923; In re Anthony Stephens v. Attorney-General of Fiji (JR No. 26 of 1993, 4 May 1995):
“This Court is not concerned with a review of the decision which the Commission reached at the Inquiry but simply with a review of the manner or process in which the decision was reached. It is the decision-making process employed by the Commission of Inquiry in reaching its decision which is the primary concern of this Court”.
[14] Section 32(2) of the Police Act 1965 provides:
No police officer shall be convicted of an offence against discipline unless the charge has been read and investigated in his or her presence and he or she has been given sufficient opportunity to make his or her defence thereto.
[15] From the averments of the applicant’s affidavit in support and the judgement of the Tribunal it is clear that the disciplinary charge has been informed to both of them and has been given sufficient time to defend the charge. Further the Court notes that both of them had representation during the proceedings of the Tribunal.
[16] The disciplinary charge against the applicants was based on a breach of section 18(1) of the Police Act 1965 which took place on 21st May 2021 during the search of taxi and the driver Jonacani Bolavutia Banimarama. The two Applicants got involved in taking a photo of the driver during the search and uploading it into a police Viber group.
[17] Section 18(1) states Any police officer may cause to be taken, for use and record in the registry of the force, photographs, descriptions, measurements, palm prints and foot prints of any person in lawful custody for any offence punishable by imprisonment, weather such person has been convicted of such offence or not.
[18] It appears that the two Applicants do not dispute the main incident where they have taken the photo of the taxi driver and uploading it into their Viber group. What they say is that taking photographs of suspected criminals, suspicious characters as well as in cases of interest and posting them on Viber groups for the purpose of profiling and information sharing has been the general practice in the Force.
[19] The Applicants shall not be able to find resort by saying it was the general practice, when an act is prohibited by Law. On the other hand the Court notes that section 18(1) of the Police Act is in line with Section 24(1) of the Constitution of the Republic of Fiji where every person has a right to their personal privacy. Therefore taking the facial photo of Jonacani Bolavutia Banimarama when he was not a suspect who was in lawful custody and using it by uploading on to a Viber group where other personnel get access to, would have been grounds for discipline action.
[20] Now I will address the grounds on which the Applicants have sought relief in this action. The main issue that needs consideration is whether the Commissioner’s action on 18th August 2021 to dismiss the two Applicants would stand before the law, when the Acting Commissioner has imposed a fine and a warning on 4th August 2021.
[21] Under section 33 (1) of the Police Act the Commissioner has power to review the proceedings heard by the tribunals. In doing so the Commissioner as per section 33(2) (c) of the Act, may confirm the findings and punish the offender in accordance with section 32 of the Act.
[22] It is clear from the affidavit of the Applicants that when the Acting Commissioner imposed the fine and the warning, there was no consideration of Applicant’s mitigation by the Acting Commissioner. This procedural lapse has been rectified when the Commissioner sought ‘show cause’ from the two Applicants by way his letter dated 13th August 2021. Further according to section 32(1) (A) of the Police Act the Commissioner has powers to impose any one or more of the punishments listed under the section. Therefore a combination of a fine and a dismissal can be imposed under the powers of the section 32(1) (A) of the Act.
[23] It has been submitted by the Applicants that the Commissioner’s decision on 18th August 2021 is in contravention with the doctrine of functus officio. The definition of functus officio is “having discharged his duties”. The Applicants’ view is that when the Acting Commissioner issued the fine and the warning on 4th, the Commissioner thereafter did not have any authority over the matter to impose a dismissal on 18th. Further to this argument the Applicants also pointed out section 30(b) of the Police Act where it states “any police officer who commits an offence against discipline as may be prescribed under the provisions of this Act shall be liable to suffer punishment in accordance with the provisions of this Act; provided that- save as is expressly provided under the provisions of this Act, no such officer shall be punished twice for the same offence”.
[24] In my view this means, no officer should be subjected to disciplinary processes twice on the same facts. The word “punishment” should be understood in regards to a disciplinary process initiated on an alleged breach of a regulation or a section of the Act and not in isolation. A combination of two punishments as allowed by section 32(1) (A) of the Act cannot be taken as double punishment. The mere fact that the Commissioner allowed opportunity to hear the two Applicants on their mitigation as it was not given before, cannot be interpreted as the Commissioner acted beyond his powers to re-punish the Applicants. Therefore the Court is of the view that there is no grounds for consideration of ultra vires or functus officio. Further there is no breach of the rule audi alteram partem as the Commissioner heard both applicants before passing of his decision on 18th August.
[25] The Applicants submitted during the hearing of this matter that the Commissioner’s decision has breached their legitimate expectation. I believe the Applicants position is that the breach is in ‘substantive legitimate expectation’ after receiving the Acting Commissioner’s letter dated 04th August stating that uplift of their interdiction. The Court is of the view that the Acting Commissioner’s decision on 4th is an incomplete decision as he failed to consider Applicants mitigation. It is important that when a disciplinary inquiry is conducted by the police tribunal on the basis of ‘delegated hearing’, the final decision maker should hear and consider the Applicants before making the final order. In my view this is the very basis of section 33(1) in the Police Act. Therefore it is the view of this Court that the Applicants are not entitled to have a ‘legitimate expectation’ based on an incomplete decision made by the Acting Commissioner.
[26] In addition to that the Plaintiffs did not produce any material before this Court to consider that there had been earlier established practices to treat such breaches lightly. Therefore the Court rules that there were no ‘procedural legitimate expectation’ available for the Applicants.
[27] In giving consideration to the issue whether the Commissioner exceeded his powers, the Court notes the powers given to the Commissioner by section 32 of the Police Act and Section 129 (7) (b) and (c) of the Constitution where the Commissioner can dismiss or remove persons from the Force. In this case the Commissioner by his letter dated 18th August 2021 has given sufficient reasons in written form for the Applicant’s dismissal. Therefore there is no violation of section 16(1) (b) of the Constitution.
[28] The first Applicant states that the uploading the driver’s photo is not an offence under the Police Act therefore the Commissioner has violated section 14(1) (a) of the Constitution. It is my view that taking the photo and uploading it cannot be taken in isolation. The act by both Applicants is in contrary to section 18 of the Police Act. Section 12 (37) of the Police Regulations 1965 states ‘any officer is guilty of any other act, conduct, disorder or neglect to the prejudice of good order or discipline shall be guilty of an offence against discipline for the purpose of section 30 of the Act’. Hence the ground averred by the first Applicant fails.
[29] The final ground for consideration is whether the Commissioner was unreasonable and lacked proportionality in considering the offence committed by the Applicants and the punishment given. It is important to keep in mind that Commissioner’s powers under section 32(1) (A) has been created by the legislature. And the Court must not usurp that discretion. I have noted from the affidavits that the only considerations the Commissioner did prior to issuing the letters of dismissal were the decision of the Police Tribunal and powers under section 32. In other words reasons and the law. Lord Hailsham LC in Re W [1971] AC 682 at 700 stated ‘two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable’. Hence I do not see this as a ground for allowing this application.
[30] For the reasons set out above I see no issue to be determined if this Court grants leave to file an application for judicial review.
ORDERS
Yohan Liyanage
JUDGE
30th June 2022
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