[1999] PNGLR 114

PAPUA NEW GUINEA

[national court of justice at lae]

SGT. KIM JANNANIS

V

THE COMMISSIONER OF POLICE; and
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

waigani: hinchliffe j
25 February 1999

Judicial Review – Policeman demoted by the Police Commissioner – Plaintiff was not invited to address on penalty – Whether Police Commissioner fell into error.

Facts

Disciplinary proceedings were initiated by the Police Commissioner against the plaintiff. The plaintiff was then a Sergeant in the Police Force. The plaintiff was charged and found guilty of improper conduct and of misusing a police vehicle, and further of disobeying lawful order pursuant to s 43(b) and (c) of the Police Force Act. He was then demoted in rank to senior constable. He sought leave for judicial review of the Police Commissioner’s decision and leave was granted resulting in this substantive hearing. The plaintiff’s main argument was that before the Police Commissioner proceeded to determine the penalty, he was required to hear submissions from the plaintiff on penalty as a requirement of the principles of natural justice and the duty to act fairly and, in principle to be seen to act fairly.

Held

1.	Before deciding on penalty, the Police Commissioner is required to call on the plaintiff to address on penalty: Toll v Kibi Kara and Others [1990] PNGLR 71 referred to.

2.	"Could it really be said that a person is acting fairly when he does not call on a person to say something when he (in this case the first defendant), is about to hand out a penalty that could change the life of that person? To say otherwise, to my mind, is parting company with reality." Per Hinchliffe J.

3.	Having said that, I do not propose to refer this matter back to the first defendant to hear the plaintiff on penalty. Under the circumstances, the penalty was not excessive given the very serious nature of the charges.

4.	Application for judicial review dismissed. Decision of the first defendant confirmed.

Papua New Guinea case cited

Toll v Kibi Kara and Others [1990] PNGLR 7.

Other case cited

Calvin v Carr [1977] 2 NSWLR 308 at 337.
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378.

Counsel

P Ousi, for the plaintiff.
A Iwais, for the defendants.

25 February 1999

Hinchliffe j. The plaintiff seeks the following orders:-

1.	That leave be granted to him to apply for judicial review of the decisions of the Commissioner of Police and the second defendant served on the plaintiff on the 27th of January, 1998 finding the plaintiff guilty of using intoxicating liquor to excess contravening s 43(c) of the Police Force Act, Ch 65 and finding the plaintiff guilty of improper conduct and misusing a police vehicle a Toyota Daihatsu registration no. ZGV 589 and further finding the plaintiff guilty of disobeying a lawful order made by a person having authority contravening s 43(b) of the Police Force Act and demoting the plaintiff from the rank of police sergeant to senior constable on salary FO43 effective on the 29th of December, 1997. 

2.	An order for certiorari that the decision of the Commissioner of Police and the Independent State of Papua New Guinea as to guilt and sentence served on the plaintiff on the 27th of January 1998 be brought into this Honourable Court be quashed.

3.	An order that the plaintiff be reinstated to his previous position of sergeant for that all salary, wages and entitlements be paid to the plaintiff backdated to 27th of January 1998.

4.	Cost of these proceedings.

Leave was granted to apply for judicial review on the 14th July 1998. This is the decision on the actual judicial review. 

It would seem to me that on the evidence before the Commissioner of Police, it was open for him to come to the findings that he did in relation to the three charges. The plaintiff may well have been working long hours at the time and that he was stressed and emotionally upset, but at the end of the day it is quite clear that he is guilty of the charges. I do not propose to disturb the first defendant’s findings in relation to the guilt of the plaintiff.

As far as the penalty is concerned I am satisfied that the first defendant fell into error when he did not call on the plaintiff to address on penalty. 

In the case of Toll v Kibi Kara & Ors [1990] PNGLR 71, I said and adopted the following from "Hotop Principles of Australian Administrative Law, 6 edition (1985), at 199-200, as follows:

"In the case of a disciplinary proceedings, where, after a finding of guilt, the penalty is not automatic and the decision maker has a discretion in the fixing of the appropriate penalty, the person affected is entitled, to be given the opportunity to be heard separately on the question of penalty even in the case of a non-statutory, domestic body: Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Calvin v Carr [1977] 2 NSWLR 308 at 337".

Even though I am aware that at least two other Judges in the National Court have stated that the Commissioner is not required to call on the plaintiff to address on penalty in these types of cases, unfortunately I am unable to agree with them and I stand by what I said in Toll v Kibi Kara (supra) and I can only say again that the Commissioner must call on the plaintiff to address on penalty. In fact in this present case the first defendant said on p. 3 of his notice of penalty to the plaintiff that "a submission on penalty was received at Police Headquarters". It would seem that that was incorrect as on the evidence it is clear that the plaintiff at no time wrote anything regarding penalty.

I should also say in regard to addressing on penalty that the plaintiff is protected by s 59 of the Constitution of Papua New Guinea, which provides as follows:

"59 Principles of natural justice".

1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings. 

2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly."

Could it really be said that a person is acting fairly when he does not call on a person to say something when he (in this case the first defendant), is about to hand out a penalty that could change the life of that person? To say otherwise, to my mind, is parting company with reality. Also, to argue that just because the Police Force Act does not say that the Police Commissioner has to call on the person to address on penalty, then he need not do so, is a nonsense. The Constitution is superior to the said Act and it spells out the requirements of natural justice very clearly. 

Having said all of that and hopefully not appearing to be contradictory, I do not propose to send this matter back to the First defendant to hear the plaintiff on penalty. I say that because I am of the view that the three charges were very serious and that the penalties, to my mind, were quite light. They were certainly not excessive and they may well have been much heavier. I am of the opinion that no matter what the plaintiff had to say it would not change the mind of the first defendant. 

I therefore dismiss the application for judicial review and I confirm the decision of the first defendant.

Lawyer for the plaintiff: Warner Shand.
Lawyer for the defendants: Solicitor General.