N1437

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 43 of 1995

YALDRUA KEREYAL
(Applicant)

-V-

POLICE COMMISSIONER
(Respondent)

Mt. Hagen: AKURAM, AJ
1996: 29th April & 3rd May

Administrative Law - Judicial Review - Improper conduct charges - dismissed by Police Commissioner - certiorari - purpose.

Judicial Review - improper conduct charges - dismissal - court not to interfere unless there has been an error or miscarriage of justice before it should interfere in operation of a disciplined force.

Applicant charged of improper conduct in that he altered dates and amounts in the three claims he put to BMS for himself and two other members.

HELD:

1. 	Court not to interfere unless there has been an error or miscarriage of justice before it should interfere in the operation of a disciplined force.

2. 	The right of a man to be heard in his own defence is the most elementary protection of all, and where a statutory form of protection would be less effective if it did not carry with it a right to be heard, court would not find it difficult to imply this right. The Commissioner in failing to consider Applicant’s side of the story had breached the principle of natural justice by not giving the applicant a fair hearing.

Cases cited in the judgment
Rose Kekedo -v- Burns Philp (PNG) Ltd and ANOR (1988-89) PNGLR 122
Application of PAUL UNDIPE (1991) PNGLR 297
Moses Kalandi & Suprum Simino -v- Police Commissioner (Unreported & Unnumbered) OS 58/94 dated 12/10/94.
Kuringi Nepo -v- Police Appeals Tribunal (1994) (Unreported) No. 1256 dated 29/7/94.
Dickson Wari & Rex Wanjil -v- Police Appeal Tribunal (1994) (Unreported) N.1258 dated 5/8/94.
Mallock -v- Aberdeen Corporation (1971) 2 All E R 1278.

MR. O’CONOR for Applicant.
MR. YAMBOLI for Respondent.

3rd May 1996

AKURAM, AJ. This is an Application for Judicial Review of a decision of the Commissioner of Police dismissing the Applicant from the Police Force. The Applicant was originally charged in the District Court for adultery which charge was dismissed. He was then charged on the disciplinary offence of improper conduct in that he committed adultery and served on the 1st of September 1994 together with a second charge of improper conduct in that he altered dates and amounts in the three claims he put to BMS Wabag for himself and two other members.

The claims were for duty travel to various places in Eastern Highlands, Simbu and Western Highlands Provinces investigating complaints against Police raids, etc. The original claims were for six days and the amount was K204 but he was alleged to have altered that to 7 days with the amount altered to K338 at the rate of K34 per day. It is not certain whether he actually received the money because at the time the claims were put, there was no money and also that BMS returned the claims with a query as to who made the alterations of the dates and amounts of money. (See affidavit annexure "A" pages 18 & 19 of applicant). That is how the investigations were initiated and Applicant was charged.

The Applicant denied the charges and wrote in reply to the charges on the 6th September 1994.

The Applicant’s Counsel had advised that there were two charges - one of adultery and another of alteration of documents. He had replies from the Commissioner in relation to alteration charges and not the adultery. 

The Counsel therefore made submissions in relation to the alteration of documents charge.

Counsel submitted that the Applicant denied the charge of altering the documents which were the general expenses. These general expenses were altered by various persons and any number of them could have made the alterations. He did not have access to them once they were submitted to BMS. It is not tested as to who altered them. He submitted that this is the type of case where Applicant should have cross-examined witnesses which would reveal who did it. Therefore there is need for calling of more evidence by the Commissioner but he only relied on the evidence from two policemen’s statements. The Applicant was never shown the alterations so that he could make reply.

The Counsel for the Respondent submits that there is no procedural error under Section 46 of the Police Force Act, Ch. 65. So the Commissioner was right in properly dealing with the serious Disciplinary offence charge. It’s been held in a lot of these cases that unless there is a procedural error the Court will not step into the decision of a Public body. He referred to Rose Kekedo v Burns Philp (PNG) Ltd and ANOR (1988-89) PNGLR 122 and Moses Kalandi and Suprum Simino v Police Commissioner (Unreported) OS 58/94 dated 12/10/94. He further submitted that the Applicant was charged because when the claims went to BMS Wabag, it discovered the alterations and referred the claims back to Provincial Clerk of Police dealing with filing of claims. Investigation was done on the Provincial Police Commander’s direction at the time.

As to penalty, it is submitted that it is appropriate in the circumstances as he has a long line of disciplinary offences committed. So the decision to dismiss is appropriate in the circumstances.

Mr. O’Connor submitted that procedural error itself is not enough. The issue is that of not complying with them.

In Moses Kalandi & SUPRUM SIMINO v The Police Commissioner (1994) (Unreported) OS 58 of 1994 dated 12th October 1994, I said this:

"I was referred to the case of the Application of Paul Undipe (1991) PNGLR 97, where His Honour, Woods, J, held that findings of the Police Appeals Tribunal in disciplinary proceedings under the Police Force Act should only be disturbed if their has been a miscarriage of justice. It is not sufficient that the reviewing court might have come to a different conclusion. His honour also said and I quote:

"Whilst the National court can review such disciplinary findings the court must be sure that there has been an error or a miscarriage of justice before it should interfere in the internal operation of a disciplined force. It was open to the Commissioner to find disgraceful conduct, and the Appeal Tribunal has agreed with that.

In reviewing the decision of the Executive arms of the Government and the internal decisions of the 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 merely cannot interfere in Administration 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 loses its distinctive and independent character. I must be careful not to step into the shoes of the Commissioner in the case now before me. I can only interfere if I am clearly satisfied that their has been a miscarriage of justice in the internal operation of the Police Force." (my emphasis).

This case was applied in two later decisions of his honour Woods J, in Kuringi Nepo v The Police Appeals Tribunal (1994) Unreported judgement No. 1256 dated 29th July 1994 and in Dickson Wari and Rex Wanjil v Police Appeal Tribunal (1994) Unreported Judgements No. 1258 dated 5th August 1994. Although I endorse his honour’s views, I distinguish the present case from those cases in two respects. First, those cases arose as a result of the decisions of the Police Appeals Tribunal decision upholding the Commissioners decision. They then applied to National Court for judicial Review of the Tribunal’s decision. Secondly, Paul Undipe’s and Kuringi Nepo’s Applications were only based on a single decision of the Police Commissioner after following the procedure laid down under Section 46 of the Police Force Act."
The present case is an application for Certiorari which involves an order issued to an ‘inferior court" or a person or body exercising what the high court regards as a "judicial" or "quasi-judicial" function, to have the record of the proceedings removed into the high court for review, and (if bad) to be quashed. And Certiorari usually operates where there is:

(i) Want or excess of jurisdiction,
(ii) denial of natural justice, or
(iii) error on the face of the record.

In the present case, the Counsel for Applicant submits that the Applicant was not allowed to see the alterations on the documents he is alleged to have altered and was not permitted to cross-examine which would reveal who altered the documents. So he is in fact saying that on the face of the record of the Police Commissioner’s records there is an error. I have closely looked at the Police Commissioner’s SDOR file which does not contain any of the statements from the Applicant nor those of his witnesses as stated in the Applicant’s affidavit. The documents which were sent by K. Ludwick, A/Assistant Commissioner, Commander, Highlands Region, which formed the basis of the Commissioner’s decision were the only ones and are as follows:

RE: SDOR - SENIOR CONSTABLE 6418 KEREYAL

Sir

Attachments:-

A. 	Three (3) copies of the SDOR served on Senior Constable Kereyal.

B. 	Inter Office report to PPC Enga from PSC Wabag outlining the conduct of the member and recommends that the member be dismissed as penalty.

C. 	Copy of the inter office report to the Regional CID Officer from OIC CID Wabag outlining the conduct of Senior Constable Kereyal and other members.

D. 	Copy of the signed statement from CSP Sheekiot against Senior Constable Kereyal.

E. 	Copy of the signed statement against Senior Constable Kereyal from P.A.O Tonda.

F. 	Inter office memo from OIC CID Wabag from a/PSC Wabag to investigate the allegation of False Pretence against Senior Constable Kereyal.

G. 	Inter office memo from Provincial Police Commander to PSC Wabag to investigate the alleged False Pretence against Senior Constable Kereyal.

H.	Copy of the F.F 24 from BMS Wabag to PPC Enga to provide approval letter for the claim.

I. 	Copies of the G.E Form.

It was on the basis of those documents that applicant’s fate was decided. The Applicant in his affidavit stated that he had send the following documents to the Commissioner in relation to the alteration of documents charge:

(a) Reply to charge of unlawful alteration of documents;
(b) Statement of Constable Kupar; and
(c) Statement of Constable Wamil;

These should have been part of the evidence for the Commissioner to reach a fair decision. On this basis, it could also be said that the Commissioner in failing to consider his side of the story had breached the principles of natural justice by not giving the applicant a fair hearing.

I am therefore of the view and find that the Commissioner made an error on the face of the record and secondly that he did not afford the Applicant a fair hearing thus breaching the principles of national justice of the right to be heard. This right is implied in Section 59 of the Constitution.

In the case of Malloch v Aberdean Corporation (1971) 2 AllER 1278, Lord Denning said this of the right to be heard:

"The right of a man to be heard in his own defence is the most elementary protection of all, and where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right".

The Court in that case also said that:

"The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case."

In this case Section 46 of the Police Force Act, Ch. 65 and Section 59 of the Constitution provides this Statutory protection. From the above reasons and authority I find that there was miscarriage of justice done to the Applicant in the circumstances and therefore grant the Application for review. I now make the following orders:

1. 	The order of the Police Commissioner is hereby quashed.

2. 	That the Applicant be re-instated to the Police Force with the entitlements pertaining to the rank he held prior to dismissal.

***********************************

Lawyer for the Applicant: D.L. O’CONNER
Lawyer for the Respondent: POLICE DEPARTMENT LEGAL OFFICE