N1431

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 311 of 1995

SELLY FARAPO
(Applicant)

-V-

THE COMMISSIONER OF POLICE
(Respondent)

MT HAGEN: AKURAM, AJ
30th April, 3rd & 20th May 1996

Administrative Law - Judicial review of Administrative decision. Police Force disciplinary charges - dismissal - development of natural justice principles.

On application for judicial review:-

Held: 

1. 	Judicial review is not concerned with the decision or the reasons as to why the decision is made but with the decision making process.

2. 	he "decision making process" would involve what is set out in Section 45 of Police Force Act, Ch. 65, compliance with Constitutional provisions of a fair hearing (S.37 (4)) and of natural justice principles (S.59) and the Common law principles of natural justice of the right to be heard (Ridge v Baldwin). That is:

(a)	Serving of charge onto the member;

(b)	obtaining a reply from member charged;

(c)	obtaining evidence from parties affected and from independent witnesses;

(d)	Giving to the member charged copies of any evidence from witnesses which have been sent to the Police Commissioner but not the member. The reasons being that he would not know what evidence is given against him and as it is all written, copies be given him so he may replay to them with a view to deny or admit them;

(e)	Copies of statement from member charged should also be served onto the parties affected or complaining from which the charge arose for their response;

(f)	After obtaining all these, the Commissioner is then in a better position to assess them and see whether there is a case against the member charged or whether member is to be found guilty.

3.	The words "in the official capacity’ refers to a member committing a disciplinary offence whilst on duty and not off-duty in the charge.

4.	The words "guilty" in the charge is contrary to the constitution.

5.	Judicial review granted, orders of Police Commissioner quashed, applicants re-instated to the Force.

Cases cited in the judgement:
Rose Kekedo v Burns Philps (1988-89) PNGLR 122.
Tandali v The State (1990) PNGLR 170.
Ridge v Baldwin (1964) AC 40
Malloch v Aberdeen Corporation (1971) 2 All ER 1278.
Constitutional Reference No. 3 of 1978 Re intergroup Fighting Act 1977 (1977) PNGLR 421.

Statutes Cited:
Constitution - S. 37 (4), 59 & 60

MR. O’CONNOR for Applicant
MR. POKIA for Respondent

20th May 1996

AKURAM, AJ. The Applicant was first served two serious disciplinary charges in that "on the 5th of November 1994 at Mt. Hagen you were guilty of disgraceful conduct otherwise than in your official capacity in that you did without reasonable excuse damaged property namely seven (7) louvre blades of Room 19, Barracks No. 3 at Kiminiga Police Barracks, the property of the Police Department. Thereby Contravening to Section 43 (g) of the Police Force Act, Ch. 65".

He was served the said charge at 10.15 am on 2nd December 1994. He admitted the charge but explained later in writing to the Commissioner saying it was because he was locked up and beaten up and push against the louvres causing them to break. So it was not intentional and a direct act of breaking the louvres. The two policemen who beat him up in a locked room were Constable Paulias Wesley and Constable Moses Koagi. He says they should also be charged.

The second charge was for the same incident but this time for the breaking of covers of the cassette player. He denied this charge because of two reasons. First the said cassette radio was not in the said Room 19 and secondly he had no arguments with the owner DARIUS MORKUM. The charge basically was worded the same.

The evidence before the Commissioner came from:

1.	Applicant’s written reply to Director internal Affairs dated 7/11/94;

2.	Paulias Wesley;

3.	Darius Morkum.

The purpose of Judicial review is stated in Rose Kekeko -v- Burns Philips (1988-89) PNGLR 122 where Supreme Court said that: "the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision making process" (emphasis added).

The Supreme Court in that case did not define two things.

First it did not define "what is the reasoning of the subordinate authority" or put in another way - "what constitutes" the reasoning of the subordinate authority. Secondly, the Supreme Court did not define what is "the decision making process" or "what constitutes the decision making process". Some help in defining the above two questions posed can be obtained by looking at His Honour Sheehen J’s decision in Tandali -v- The State (1990) PNGLR 170 where the Respondent’s Counsel quoted on page 4 of his written submission, that:

"This Court’s power of judicial review are only available to consider the validity of a decision of a tribunal and to interference with that decision only if it can be shown that it was made unlawfully, unfairly or contrary to the principles of national justice". This can be summarised into three categories:

(1)	Where tribunal or authority exceeded its powers; or

(2)	Where there is an error on the face of the record; or

(3)	Where there is a breach of the rules of national justice; and

as a result of all these three above reasons, substantial miscarriage of justice has been done. This still does not answer my two original questions of: What constitutes the tribunal’s or authorities reasoning in reaching its decision; and what constitutes the decision making process. The answer to these two questions will give the answer to the misconception of the purpose for judicial review. I am of the firm view and agree that the principle in Kekedo’s case that court in reviewing is not concerned with the decision or the reasons as to why the decision is made but with the decision making process. The decision is the end result of what the authority or tribunal does. The tribunal or authority must have the evidence and assess it in order to reach its decision. So the decision making process would involve what is set out in Section 46 of the Police Force Act, as in this case and also comply with the Constitutional provisions of a fair hearing (S.37 (4)) and of natural justice principles (Section 59 Const.) and the Common law principles of natural justice of a fair hearing as set out in Ridge -v- Baldwin (1964) AC 40. Therefore the decision making process involves, inter alia and pursuant to S.62 of Constitution for the present purposes, the following be adopted as Constituting a fair hearing:

(a)	Serving of charge onto the member;

(b)	Obtaining a reply from member charged;

(c)	Obtaining evidence from parties affected and from independent witnesses;

(d)	Giving to the member charged copies of any evidence from witnesses which have been sent to the Police Commissioner but not the member. The reasons being that he would not know what evidence is given against him and as it is all written, copies be given him so he may reply to them with a view to deny or admit them;

(e)	Copies of statement from member charged should also be served onto the parties affected or complaining from which the charge arose for their response;

(f)	After obtaining all these, the Commissioner is then in a better position to assess them and see whether there is a case against the member charged or whether member is to be found guilty;

I set out the above guideline because the Police Force (amendment) Act of 1993 has repealed the right of appeal. Therefore the Commissioner has to make sure the member affected is given every opportunity for a fair hearing within the bounds of constitutional requirements and the principle’s of natural justice and especially the audi alteram partem rule. It also means that the member, who has no right of appeal is given a fair hearing within the provisions set out in the Police Force Act. I also say this because of the principle in Mallock’s case which I adopted in my other decisions and also here, where Lord Denning said:

"The right of a men to be heard in his 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".

It is also said in that case (supra) 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".

This is what I think is what the Supreme Court meant by saying: "Judicial review is concerned not with the decision but with the decision making process", in Rose Kekedo -v- Burns Philips (supra) and not what Respondent’s Counsel said in Para. 3 of his submission P.3. Having said that, in the present case, going through the first two disciplinary charges set out above, I will adopt above steps in reviewing the process of how Commissioner reached his decision.

First, the wording of the charge. They both say "in the official capacity". This term must be used in its proper context. We all know that the member is employed as a policemen. But there are times he is not performing his official duties when he commits certain offences. In this case he was not rostered for duty and whilst off duty he is alleged to have committed the offences of wilful damages of seven (7) louvre blades and radio cassette cover. So it cannot be said "whilst in his official capacity". The charges should have read:

"On the 5th of November 1994 at Mt. Hagen you were guilty of disgraceful conduct in that you did without reasonable excuse damage property namely seven (7) louvre blades of Room No. 19, Barracks No. 3 at Kiminiga Police Barracks, the property of the Police Department."

This is because there is no evidence showing that he was in his official capacity but he was off duty at the time.

There is also another matter which I want to point out and that is the use of the word "Guilty" right from the start. This gives an impression that the member is guilty no matter what so he has to prove his innocence. This shifts the burden of prove to the member charged and not the person or party alleging he committed the offence. As such, the charge could be regarded as against the provisions of the constitution (S.37 (4)) in that a person is innocent until proven guilty [see Constitutional Reference No. 3 of 1978 Re Intergroup Fighting Act 1977 (1977) PNGLR 241].

Second matter I would like to look at is the evidence against the member/applicant. So far we have his statement against that of the two policemen. Applicant, although admitted but in fact denied the first charge by saying he was pushed against the louvre blades by Paulius Wesley and Moses Koagi. So it was those two members who should also be charged as co-offenders, including applicant. In the alternative, because applicant is saying louvres were broken during a fight, there must be independent evidence from people who were not involved in the fight in room 19. Paulias Wesley says Constable Alex was present and took applicant out of the Barracks, Constable Willie Nambos was said to have accompanied Paulias to the buai market but his evidence was not called for. What I am saying is, Constable Paulias Wesley is saying a lot of things but he agrees on one incident, that is he had an argument with applicant. He made a lot of allegations without any proof from any further or independent witnesses.

The statement of Darius Morkum was all hearsay. He only wrote what Hendry, a boy who stays with Abel Tavip told him. Hendry did not provide a statement of his own. The Provincial Police Commander, John Wakon, who charged the applicant did not obtain any statements from these people who were eye witnesses. Darius did not see any thing and yet his word stood firm to prove that applicant damaged his radio/cassette cover.

So, from the wording of the charge and the evidence on two charges, I find:

(i)	That applicant was not in his official capacity as a policemen on duty when the alleged incidents happened, as there is totally nil evidence on this.

(ii)	That there is insufficient evidence to find the two charges proved based on what I have said above.

I therefore grant the application for judicial review and quash the decision of the Police Commissioner on the first and second charges for offences dated 5th of November 1994.

I will now deal with two charges for incidents that occurred on 11th March 1995 at Kiminiga Lodge.

First I adopt the arguments in first two charges of the use of the words "guilty" and "in your official capacity" in the charges and say the same as I said above on them.

Secondly, witness Kepu Jacob was the Shift "C" Supervisor under whom applicant was rostered for duty from 8.00 am to 4 pm shift. He said when applicant got his pay, he failed to return for duty as he went drinking. This may explain why applicant was in uniform when found outside Kiminga Lodge. However, the Commissioner’s findings on facts on page 3, (Annexure "F") says he was to report for duty from 12 midnight. This is contrary to the evidence available from Jacob Kepu. It is the evidence of Thomas Upaiga the Shift "B" supervisor who is said to have said his members were rostered from 12 midnight to 8.00 am shift. Thirdly, all the evidence is that of Thomas Upaiga and Jacob Kepu which were all hearsay. The real witnesses were the Securimax security men but no statement was obtained from them.

The applicant denied both charges of 11/3/95. So there is a real need to obtain statements from the Securimax security men to give their statements.

The applicant in his reply to charges on 3rd of April 1995 denied both charges. He complained of being beaten and taken to cells. I do not condone what he may have done, but as the reviewing court, I have a duty to see the records of the disciplinary authority to see whether there is evidence substantiating the charges for which he was found guilty and dismissed.

As to the evidence, I do not think hearsay evidence should be relied on especially when it is used to dismiss a member. I have adopt what I have said in two previous charges of obtaining and assessing the evidence. In these two charges, I am of the view that there was no fair hearing and therefore I find that a breach of natural justice is done.

I therefore granted the application for judicial review and quash the Commissioners’ decisions.

However, as my findings is on insufficiency of proper evidence, I warn the applicant not to drink if he want to stay in the force and make something of himself, as all 4 charges come about as a result of drinking.

I make the following orders:

1.	All penalties imposed for the 4 charges are quashed.

2.	Applicant be re-instated back-dated to time of notice of dismissal with all entitlements.

3.	Costs follow the event.

Lawyer for the Applicant: MR. O’CONNOR 
Lawyer for the Respondent: SOLICITOR GENERAL