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Wari v Police Appeals Tribunal [1994] PGNC 14; N1258 (5 August 1994)

Unreported National Court Decisions

N1258

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 10 OF 1993
DICKSON WARI - PLAINTIFF
V
POLICE APPEAL TRIBUNAL - DEFENDANT
REX WANJIL - PLAINTIFF
V
POLICE APPEAL TRIBUNAL - DEFENDANT

Mount Hagen

Woods J
13 July 1994
5 August 1994

JUDICIAL REVIEW - Police Appeals Tribunal - Charges of improper conduct - criminal conviction - consequential risk to community - interference by Court in internal operation of a Discipline Force.

Cases Cited

Application of Paul Undipe [1991] PNGLR 297

5 August 1994

WOODS J: These are applications for Review of the proceedings of the Police Appeal Tribunal in the hearing of Appeals from the Commissioner of Police in dismissing the Plaintiffs from the Police Force following the hearing of charges of improper conduct namely the unlawful use of a Police vehicle.

It must first be noted that the provisions of the Police Force Act Ch 65 providing for appeals to the Police Appeal Tribunal have now been repealed by the Police Force (Amendment) Act 1993 however there was a provision saving any matters commenced before the coming into operation of this amendment Act.

It is submitted that the Appeal Tribunal did not consider the merits of the cases, it avoided the issues and the sentences of dismissal were too extreme in the circumstances and in particular because after the incident which led to the charge the Plaintiffs were reinstated and sent to serve in North Solomons for a number of months. This suggests that the Plaintiffs were still regarded as responsible and effective members of the police force for many months after the incident. So it did not make sense to dismiss officers who were yet regarded as able officers for such an extreme situation as service in the North Solomons.

The charges arose out of an incident on 1st November 1990 when the Plaintiffs and others were posted to Kaupena on the Hagen - Mendi Highway to protect a Highway construction Company during the difficult period when the Nebilyer people were making the Mendi Highway a very dangerous road to pass along and were engaged in their own tribal fight. On the day in question the Plaintiffs and one other police took a police vehicle into Hagen and on the return trip they were held up by Nebilyer people and the vehicle was badly damaged and some police weapons were stolen. It was alleged that the Plaintiffs had no authority to make the trip into Hagen that afternoon especially in view of the tense situation on the Highway. It is alleged that any movement away from the Camp at Kaupena had to be authorised and was usually in a state of armed preparedness and to protect the staff of the Construction Company. However on that day in question it is alleged that there had already been a full patrol into Hagen on escort duty that morning and the trip by the appellants was unnecessary, was not authorised and was without appropriate protective measures. The result of the incident was that a government vehicle suffered substantial damage, and some weapons and ammunition fell into the hands of criminal elements thereby putting the general community at further risk.

The plaintiffs were charged in the District Court for unlawful use of a motor vehicle and were convicted. Following that conviction the disciplinary charges were taken by the Force. In the meantime however the Plaintiffs had after a short period of suspension been posted to North Solomons for duty. They spent some time on duty there before being advised that the Commissioner had examined the case and ordered they be dismissed. The Plaintiffs appealed to the Police Appeal Tribunal which endorsed the Commissioner's determination.

The procedure for dealing with serious offences is laid down in Section 46 of the Police Force Act. It would appear that these provisions were followed. The Commissioner was faced with the police own internal report of the incident. Then there were the convictions by the District Court at Mendi. The recommendations were not forwarded to the Police Headquarters until after the District Court convictions so that is presumable why there was this lengthy delay from the incident in November 1990 until the matter of dismissal was considered late in 1991.

The Commissioner was entitled to take the action he took, this was a matter which had even resulted in convictions in the District Court and the fact that the incident meant that dangerous weapons got into the hands of criminals would lead the public in general to be concerned about the standard of police action, discipline and behaviour.

The Plaintiffs availed themselves of their right to appeal to the Police Appeal Tribunal. That Tribunal placed great emphasis on the weight to be attached to the District Court convictions especially in view of the fact that the Plaintiffs appealed on the basis of innocence of the charge. The convictions from the District Court must add weight to the disciplinary charge. So what else can the Commissioner find, there is no way he can disregard that conviction, and he has not. And so of course the Tribunal cannot disregard or overrule the District Court conviction. So the ground of appeal of innocence of the charge cannot be maintained.

So the only matter of argument left must be the severity of the sentences. That must be a matter for the discretion of the Commissioner. As I said in The Application of Paul Undipe [1991] PNGLR 297 “in reviewing the decision of Executive arms of Government and the internal decisions of disciplined forces the National Court must not be seen to be interfering in the operation of responsible government and the operation of authorities given their own status and role under the Constitution. The power to intervene with or set aside executive policy runs counter to the theory of responsible government. This Court cannot merely interfere in administrative decisions of the Executive or Disciplined forces merely because on the facts the Court may have formed a different view. If the National Court does that it becomes no more than a part of the Administration or Force and thereby loses its distinctive and independent character. I must be careful not to step into the shoes of the Commissioner in the case before me now. I can only interfere if I am clearly satisfied that there has been a miscarriage of justice in the internal operation of the Police Force”.

The Commissioner was entitled to consider the exceptional nature of the incident especially as the illegal actions of the Plaintiffs put dangerous weapons into the hands of criminals. And the Tribunal was entitled to say that the weight of the conviction in effect predetermined the Commissioners ruling. This was not merely some internal matter of disgraceful conduct within the Force, it was a matter that had serious repercussions for the public at large. So how can this court find that there has been a miscarriage of justice, even if the plaintiffs had continued to serve in the Force in what may have been high risk duty operations.

Some of the Commissioners penalties may be harsh but in a disciplined force that may be necessary, especially as the security and orderliness of our society may depend on the force.

On the material before me I cannot find that there has been a miscarriage of justice such that this court should interfere. I dismiss the applications.

Lawyer for the Plaintiff: DL O’Connor