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Peter v Commissioner of Police [1998] PGNC 90; N1803 (23 September 1998)

Unreported National Court Decisions

N1803

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 539 OF 1996
BETWEEN:
SAMUEL SIARI PETER
(PLAINTIFF)
AND:
THE COMMISSIONER OF POLICE
(FIRST DEFENDANT)
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(2ND DEFENDANT)

Lae

Hinchliffe J
23 SEPTEMBER 1998

Counsel

Mr P Ousi for the Plaintiff

DECISION

HINCHLIFFE J: The plaintiff is a former Police Constable. On the 22nd of November, 1991 the plaintiff was interviewed by Inspector Lua regarding damage done to the single quarters Bumbu Barracks between the 5th and 7th of November, 1991. In the record of interview the plaintiff denied damaging the louvres. On the 9th of January, 1992 upon request from Inspector Sine, he went to Mr Sine’s office and was served with a Minor Disciplinary Offence Report or MDOR. He was found guilty and penalised four day’s pay and ordered to pay K787.00 towards the cost of the alleged damage. And he deposed that he paid K787.20 towards the alleged damage.

Despite being found guilty and penalised, the plaintiff on the 13th of May, 1992 was served with a Serious Offence charge for the same offence on which he was earlier found guilty and penalised. He replied to the charges denying any wrong doing. On the 5th of September, 1992 he was served with a Dismissal Notice. He appealed to the Police Appeals Tribunal and the Police Appeals Tribunal confirmed the decision of the Police Commissioner finding him guilty and dismissing him from the Police Force despite being penalised for the same incident earlier on under the Minor Disciplinary Charge or the MDOR.

On the 23rd of January, 1997 leave was granted to the plaintiff to apply for Judicial Review of the decision of the Commissioner of Police and Police Appeals Tribunal of the 26th of November, 1993. The plaintiff seeks the following relief,

(a) &ـ An orde order for for certiorari that the decision of the Commissioner of Police and the decision of the Police Appeals Tribunal of the 26th of November, 1993 be brought in to this Honourable Court and to be quashed;

(b) &#160orde that the plaintiaintiff be reinstated to his previous position;

(c) That all salaries, agesennd entitlements be paid to the plaintiff backdated to the date of termination; and

(d) &ـ Cof theeedinp>

The plaintiff relies on the following groundsounds:-

>

(a)&#(a) &160; ټ The reenondeniled fled ford natural justice to the plaintiff;

(b) T60; The plhe plainwiff uns punished twice for the safence

(60; Thas awas a subs substantitantitantial miscarriage of justice; and

(d) ҈ &#16at noonablonablbunal doing justice would have a decision made by the respondents.

This is yet anot another pher policeolice dism dismissal case which has come before thist whee plaintiff has shas sought a Review of the decision makingaking Authority. In this instance the plaintiff was dismissed by the Commissioner of Police and that dismissal was subsequently confirmed on Appeal by the now defunct Police Appeals Tribunal.

This case is identical to another that was heard before me some time ago. The plaintiff was charged and punished twice for the same disciplinary offence.

In O.S. No. 28 of 1994 I said as follows at p.4 of the judgment:-

“Sub-divisions relating to Minor Offences are quite separate and once the decision has been made to prosecute under one of the Sub-divisions then that is final. A penalty cannot be handed out under one sub-division and then to commence the prosecutions for the same charge under the other sub-division. I found the Tribunal fell into serious error. At page 3 and 4 of the said judgement. I said:-

There is no doubt that the Plaintiffs were charged and dealt with under Sub-division B, Minor Offences and that the only powers that the Commissioner had to vary the penalty of four (4) days loss of pay was to hand out one of the other penalties in Section 45(1), he could not dismiss. Then he had the Plaintiff charged again with the same offence under the Serious Offences Sub-division which was quite improper in that they had already been dealt with for the offence and penalised. To charge again to my mind, is not in the spirit of the Constitution for basic democratic rights. It would be a sad day for the people if we allowed the situation to arise where they could be found guilty of an offence, criminal or not then discover that they are to be charged and penalised again for the same offence. In the present cases, the Police Authorities elected to prosecute under the Minor Offence Sub-division and to put it quite bluntly and somewhat commonly, I say that after making the decision they are stuck with it.”

This case is exactly the same, in fact it is the same incident and for some reason it was not heard with the others.

Over the time I have not changed my opinion and I do not propose to do so in this case. The fact that the Police Appeals Tribunal was not named as a defendant to my mind is irrelevant as the State and the Commissioner of Police are the main players and also it is obvious that the result would not be any different. Of course it is important to note that the Police Appeals Tribunal is no longer in existence.

I make the following orders:

1. ;ټ An Orde Order in t in the nature of certiorari that the decision of the Commissioner of Police and the decision of the Police Appeals Tribunal of 26th ber, be qu.

2. T60; Thatpthe plaintiff beff be reinstated to his previous position.

3. &#T60; alat ala s, wayes anes and entitlements are to be paid to the plaintiff back dated to the date of termination but any moniened stermin aree ded from the said salary, wages and entitlements.

4.

4.&#160  &##16;& Thend Dend Defendant is tois to pay the plaintiff’s costs. If not agreed then they are to be taxed.

Lawyer for 1st & 2nd Respondentlicitneral

Lafor the Plaintiff: Warner Shar Shand Land Lawyerswyers