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Keai v Commissioner of Police [1994] PGNC 4; N1246 (10 March 1994)

Unreported National Court Decisions

N1246

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP 57 OF 1993
FRANCIS KEAI
V
COMMISSIONER OF POLICE

Kavieng

Doherty J
10 March 1994

PROCEDURE FOR APPEAL AGAINST DECISION - Commissioner of Police dismissing a probationary constable - Correct procedure - Natural justice and equitable principles apply.

Appellant appealed against decision of respondent by using the District Court appeal procedures on the bias that he had not been able to appeal the dismissal.

Held

1. The Police Force (Amendment) Act 1993 applied and there were no appeal provisions therein.

2. Administrative decisions such as the respondents sitting as a disciplinary tribunal are subject to judicial review.

3. The proper procedure is to apply by way of O 16 of the National Court Rules.

4. The principles of natural justice providing a right to be heard apply to decisions to dismiss fromthe Police Force.

5. Principles of equity also apply and in a situation where the appellant was convicted of a criminal offence and subsequently of a further offence while on probation he did not come to the court with clean hands.

Cases Cited

The State v Giddings [1981] PNGLR 436

In the Matter of Probationary Police Constable Timothy Aipai, Fred Avosa & Others, unreported judgments of Salika J

Counsel

Mr S Watt for the Appellant

Mr B Gonapa for the Respondent

DECISION

DOHERTY J: The Appellant appeals against an Order by the Commissioner of Police dismissing him from the Police Force. The Order was given on the 22nd of June 1993 to have effect from the 23rd of July 1993.

It is common ground between Counsel for the Appellant and Counsel for the Respondent that the appeal procedures to the Police Appeals Tribunal have now been abolished with the introduction of the Police Force (Amendment) Act (1993).

The appeal before this court was laid by way of a Notice of Appeal pursuant to the District Court Act and both Counsel for the Respondent and I raised as a preliminary matter the fact that this did not appear to be the proper procedure. I consider the proper procedure for review of the Police Commissioner’s decisions in a situation such as this would require invoking the National Court’s inherent jurisdiction under s. 155 of the Constitution by an application for certiorari pursuant to Order 16 of the National Court Rules seeking a review by the court of the decision of the Commissioner in his capacity as a disciplinary tribunal of the Police Force. The District Court Act appeal procedures clearly apply only to appeals from District Court convictions and decisions and cannot be adopted into some other legislation unless specifically stated.

However, I do not dismiss this application on that procedural ground. I make that decision basically because there was no clear procedure set out for review in the Police Force Amendment Act but more relevantly because this matter has been on foot for some 8 months and if the appellant seeks judicial review now there may well be an objection of undue delay raised, further the procedural matter was not objected to by way of Notice of Objection on Competency by the Respondent.

There is no mandatory provision in the National Court Rules setting a time limit, to seek certiorari but there is a reference in O 16 R 4 indicating 4 months may be considered undue delay. This has been dealt with in cases for example in The State v Giddings 1981 [PNGLR] 423 where it was held that the facts of each case have to be borne in mind when assessing what constitutes delay. Since both Counsel have come a long way and since the facts will have to be resolved, I make an exception using the inherent jurisdiction of the court to hear the merits of this case and whilst it could be dismissed on procedural grounds, I consider it would be unjust to do so. However, I stress that future appeals of this nature should go by way of Judicial Review.

The Appellant says in his Notice of Appeal that he was a Probationary Policeman and that he was not given time or an opportunity to appeal against the decision of the Commissioner. Three grounds were set out but the third only was argued, the other two being abandoned. The third ground is worded as follows: “There has been no disciplinary charges laid against the Appellant and as such the decision of the Commissioner to dispense with the service is null and void”.

The argument as to whether a Probation Policeman is a Policeman has been dealt with in an unpublished decision by my brother Salika J in The Matter of Probationary Police Constable Timothy Aipai, Fred Avosa and others. It was held and I concur that a Probationary Policeman comes within s. 16 of the Police Force Act and is a Policeman.

In the facts before me the Appellant was dismissed on the grounds that he had appeared a year previously in the Kavieng District Court for an offence of offensive behaviour with intent to provoke a breach of the peace. The records shows that he had other disciplinary offences afterwards. He had been put on probation and apparently, although it is not clearly stated, it could have been in breach of that probation as he was subsequently convicted of having driven a Police vehicle negligently in December 1992.

The grounds of appeal was that he was no given an opportunity to reply. The record show that he did send a letter or a notice setting out his grounds of appeal to the Commissioner but there is no record at all of any response from the Commissioner.

Judge Salika has dealt with these problems in the course of his judgement which has been referred to me by Mr Gonaha. It provides that the Commissioner has powers under s. 26 (3) of the Police Force Act to dismiss a Probationary Police Officer. That is a complete discretion and is worded as follows:

“The services in the Force of a Probationer will be dispense with by the Commissioner at anytime during the period of probation. This on the face of it gives a complete power to the Commissioner to dismiss without cause or redress.”

Judge Salika has however considered that that power “must be tempered with the provisions of what I would call natural justice, ie a right to be heard”. He has said in his judgement:

“This type of situation should be distinguished from the situation where a matter of discipline arises. Where matters of discipline arise it is my view that the normal disciplinary procedures are to be used for both Probationers and confirmed members. In my respectful opinion the applicant should have been allowed to file in their appeals within the time allowed and the appeals heard as soon as possible.”

In fact I must distinguish that case and the one before me as the new Act was in force and therefore there was no longer any appeal provision in existence.

Judge Salika then went on to say “I have rules that the Commissioner while having power to dispense with the service of Probationers”. However that in my view does not go to the extent where the Probationer is alleged to have committed a serious or minor disciplinary offence.

I agree with my brother Salika that a tribunal dismissing or having power to dismiss must treat each case with natural justice giving a person a right to be heard and to reply. I apply Judge Salika’s ruling on the principles to the case before me.

I consider that the Commissioner has a power to dismiss under s. 26 (3) but he must exercise that power in the light of natural justice and give each person a right to be heard. On the facts before me the Appellant was convicted of a criminal offence. Thereafter he committed other disciplinary offences. On the facts before me he did write to the Commissioner and although there is no reply on record, it is not alleged that, that application was ignored.

This is a court exercising an equitable jurisdiction where the court must consider the merits. It is a discretion whether to allow review of an administrative action. The court in exercising its equitable jurisdiction looks both at the actions of the applicant and the actions of the Respondent. As has been said, a person coming for equitable relief should come with clean hands. I apply that to the situation before me.

Whilst there is no record of the Commissioner replying to Francis Keai, it appears to me a case where the Appellant has had two or three chances. He was convicted of a criminal offence and while on probation, he got himself into more trouble.

I consider that whilst he has a right in natural justice to seek review and to be heard, he has not come to this court with completely clean hands. He has been in breach of his probation.

In the circumstances I consider that the Commissioner was entitled to terminate the services of the Appellant despite him not giving a written reply. There is a discretion in the court to review. In this instance, I consider that the Appellant has, by his own actions, in committing two further disciplinary offences while on probation, not shown himself to come to the court with a completely clean record and on this occasion I do not uphold his application for review whilst I agree with my brother Judge Salika that the Commissioner is bound by the principles of natural justice.

In this situation, I dismiss the appeal and make no order as to costs.

Lawyer for the Appellant: Public Prosecutor

Lawyer for the Respondent: Public Solicitor