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Nalu v Commissioner of Police [1999] PGNC 101; N1927 (12 November 1999)

Unreported National Court Decisions

N1927

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 156 OF 1998
BETWEEN: TIGA NALU
-PLAINTIFF-
AND: THE COMMISSIONER OF POLICE
-FIRST DEFENDANT-
AND: THE STATE
-SECOND DEFENDANT-

Lae

Injia J
9 SEPTEMBER 1999
12 NOVEMBER 1999

ADMINISTRATIVE LAW - Judicial review - Disciplinary process - Dismissal of policemen from Police Force - Nature of review - Procedure - Pleadings - Grounds - Evidence - Police Force Act 1998, S.26; National Court Rules Order 16.

Counsel

B. Ovia for the Plaintiff

Mr Iwais for the Defendants

12 November 1999

INJIA J: This is an application for judicial review of the plaintiff’s dismissal from the police force, on disciplinary grounds by the 1st Respondent on 29/1/98. At the time of his dismissal, the plaintiff held the rank of Senior Constable. The Plaintiff seeks an order in the nature of certiorari quashing the said decision and an order in the nature of mandamus, either remitting the matter back to the Commissioner to be re-considered in accordance with law, or alternatively, an order reinstating the plaintiff to his substantive position with full salary and other entitlements back-dated to 29/1/98. Leave to seek review was granted on 4/9/99. The application is made under Order 16 of the National Court Rules.

The disciplinary procedures prescribed by the Police Force Act (Chapter 65) followed by the Commissioner in dismissing the plaintiff is not disputed. On 10/11/97, the plaintiff was charged that “on the 29th day of March 1997, at Lae Police Station, you were guilty of disgraceful conduct in your official capacity in that you did receive a property namely a piece of uncooked pig meat knowing that at the time of receiving it, it had been stolen or unlawfully obtained” thereby contravening Section 43(g) of the Police Force Act (Chapter 65). The charge paper was served on the plaintiff on 21/10/97. The plaintiff replied to the charge in writing on 4/11/97 together with a statement from policeman Anigura Amicks dated 21/10/97 and Policeman Frank Kwarkuto dated 21/10/97. On 11/3/98, the Commissioner dismissed the plaintiff from the Police Force after finding him guilty of the charge. In determining the plaintiff’s guilt and the penalty, the Commissioner took into account an internal investigation report dated 28 January 1998 prepared by Inspector J.R. Waira who is Second-In-Charge of Discipline at Police Headquarters; report by D/Chief Inspector Mr Povis dated 27/10/97; report by Assistant Commissioner T. Kulunga dated 30/10/97; report by S/Sgt. A.D. Waki dated 22/10/97; a further detailed report by S/Sgt. A.D. Waki dated 1/9/97; statement of complaint by the victim Mr. Saing Gogena dated 2/4/97; statement by Const. Amicks Anigura dated 21/10/97; statement by Const. Frank Kwarkuto dated 21/10/97; plaintiff’s statement to police regarding the complaint dated 21/10/97 and the plaintiff’s reply to the charge dated 4/11/97. These documents are annexed to the affidavit of Insp. John R. Waira sworn on 27/5/99. Inspector Waira is the OIC of the Police Discipline Section at the Police Headquarters.

The grounds of review set out in the statement of facts filed in support of application for leave are:

(a) &#1hat the first defendant dant acted ultra vires his powers.

(b) ҈& That that the firs first defendant coned irant ms.

(d) &ـ&#1hat the first dest defendant conducted his proceedings contrary to the rules of naturaatural jusl justice.

Pursuant to Order 16 rul) of the National Court Rules, the plaintiff is confined to these grounds whes when it comes to raising evidence and submissions in support.

The plaintiff’s basic complaints are set out in paragraph 4 or 5 of his affidavit sworn on 7/4/98. They are:-

“4. awas unsoirlyatreated becd because my two members namely, Constable Anigura and Constable Kwarkuto who actually took the pig meat from the Mobile Squad “Charlie 13” landcruiser tovehichich driving at the tthe time, ime, have have not been disciplined in any way. I who did not know anything but ate the meat in good faith, thinking that it came from fellow policemen who are law-abiding and law-enforcement officers so the meat could not possibly be stolen. The Mobile officers are also still in the Force. I feel it is totally unfair that I the least guilty, if in fact guilty, was disciplined and dismissed whereas the others have not been dealt with.

5. &##160;; I60as wwas wrongfuongfully found guilty and therefore, wrongfully dismissed from the Force. If the statements of my witnesses were considered together wi resp I woot be found guilty and dismissed. I havI have neve never beer been in trouble before in my thirty years of service and feel that even if I’m guilty, the penalty was too severe. I, therefore, ask the Court for the remedies requested in my Originating Summons.”

The plaintiff’s affidavit evidence, paragraph 4 - 5, supra, only appears to relate to ground (c) of the statements in support. All the other grounds have no evidentiary support from the plaintiff. In the written submissions by the plaintiff’s lawyer he has extracted some discrepancies and procedural breaches from the documents constituting the records of proceedings filed by Inspector Waira, but they have no evidentiary support from the plaintiff.

At the outset let me say that the grounds of review purporting to challenge the finding of guilt as they are pleaded are vaguely worded and not sufficiently particularised, to demonstrate the error on the face of the record. Judicial review is a discretionary remedy which is exercised in favour of an applicant on proper cause being shown. The exercise of the judicial discretion is governed by established principles, some of the pertinent ones being reflected in Order 16. It is not an open forum for disgruntled plaintiffs and/or their lawyers to stage an all-out attack on the day of the review hearing on every conceivable error extracted from a post-mortem examination of the disciplinary records provided by the disciplinary authority. For this reason, I dismiss ground (a), (b) and (d) of the grounds of review for failing to attract evidentiary support from the plaintiff. Consequently, all submissions made by the plaintiff’s lawyer in respect of those grounds are rejected.

The only other ground relating to issue of guilt is ground (c). Paragraph 4 of the plaintiff’s affidavit relates to this ground. The applicant is challenging the finding of guilt based on disparity of treatment of co-offenders. He says two other policemen, Constable Aniguro and Constable Kwarkato who received the meat and shared the meat with him were not charged and dismissed and they are still in the police force. But disparate treatment of co-offenders in charging and convicting a member of the police force is not a valid ground for challenging the conviction whereas it could be a relevant basis for challenging the penalty. I reject this argument.

The other point on guilt is that the plaintiff says he received the pig meat in good faith from a certain unnamed policeman knowing that the pig from which the meat came was slaughtered by some policemen without the permission of its owner when they went to investigate an alleged hold up at Ampo Lutheran Guest House. In their statements, two other policemen who accompanied the plaintiff and shared some of the meat, Constable Anigura and Constable Kavabuto gave the same story as the plaintiff.

However, the detailed investigation report of S/Sgt. Waki dated 1/9/99, refers to the evidence of one Gabriel Bigawara at page 5, where he says 2 police vehicles were involved at the time of shooting of the pig at the soccer field. One of the vehicle was the Toyota Landcruiser allocated to Mobile Squad. The other vehicle was a Mitsubishi Lancer allocated to 3 Mile police, which appeared from the evidence was driven by the plaintiff. S/Sgt. Waki at page 7 also refers to a conversation he had with the plaintiff in the course of his investigation, whereby the plaintiff initially denied any knowledge of “the pig being stolen from 4 Mile”. However, when further questioned he admitted being given a piece of uncooked pig at Hunter by Constable Kilala. Constable Kilala was with Constable Maino when Constable Maino shot the pig and Constable Kilala helped Constable Maino put the dead pig in the Toyota Landcruiser.

The crucial question is whether the plaintiff was aware of the pig being shot by Constable Maino. The evidence of Gabriel Digawara would support the view that he was aware. In the alternative, even if he was not present at the scene and time the pig was shot Constable Kilala would have explained where the pig meat came from, to the plaintiff when he gave it to him. There is no statement from Constable, Kilala referred to in S/Sgt. Waki’s report. The only evidence on this point is from the plaintiff and Constable Anigura and Constable Kavakuto, all of whom said, when Constable Anigura asked Constable Kilala where he got the pig meat from, he said “kaikai tasol mipela kisim long wantok yah.” They took it for granted and accepted it in good faith.

Senior Sergeant Waki in his report, which the Commissioner accepted at page 7 found that the plaintiff had lied about the whole thing. S/Const. Waki says “S/C Tiga denied that he did not know who killed or stole the pig. He was not honest. He was dishonest to himself. He later admitted that he was given a piece of uncooked meat by Constable Kilala at the gate of Ampo that night. This was after he was shown evidence that he knew who stole the pig and he was telling lies”. At page 8 of the report, S/Sgt Waki refers to Constable Maino and Constable Kilala as saying they “admitted they went to 4 Mile to assist 3 Mile police members in a robbery. However, they denied that they did not kill any pig. They were dishonest and could not tell the truth.”

In my view, the report of S/Sgt. Waki is fairly detailed and comprehensive. I have no reason to doubt the accuracy and veracity of the matters contained in that report, following his investigation at an administrative level. There is no doubt that the plaintiff and his two friends played a central role in attending to the robbery at 4 Mile because that was part of their area of responsibility. The Mobile Squad was there only to assist them attend to the robbery. They would know where the pig meat came from at this part of the night. It would be quite unusual for exchange of raw pig meat at night time among friends as suggested by the plaintiff and his two friends. Therefore, Inspector Waira was justified in concluding in his report at page 2 that the plaintiff was present when the pig was shot and killed and butchered and distributed amongst them. In arriving at this conclusion, I am mindful that the whole disciplinary process of deciding the guilt or otherwise of a member is not done in accordance with technical rules of procedure and evidence. The disciplinary authority has before him various reports and statements of witnesses to enhance his judgment on matters of discipline and it is not the task of this Court to substitute its own judgment for that of the disciplinary authority. I would pay defference to the findings of the Commissioner and reject the plaintiff’s argument on this aspect.

On penalty, the Commissioner felt that the punishment of dismissal was warranted for the reasons he gave that it is not in the interest of the disciplined police force that a corrupt and dishonest policeman should be maintained by the force for to do so would bring disrepute and decline in community support for the police force. I do note that the initial recommendation by Inspector Waira was for a forfeiture of 1 month’s pay but the Commissioner found the seriousness of the offence overriding and imposed dismissal. Further, Inspector Waira in his report at page 3 shows 5 prior disciplinary convictions for minor disciplinary offences between 1972 - 1988 resulting in punishment ranging from a reprimand to a fine of K2.00 - K300 to loss of 3 days’ pay.

In my view, considering the limited role the plaintiff played in simply receiving part of the stolen pig meat weighed against his 30 years of service in the force and his record of convictions for 5 minor disciplinary offences, and the disparate treatment he received compared with the other policemen involved, I consider the punishment of dismissal was excessive in the circumstances.

I quash the punishment and pursuant to S.26 of the Police Act 1998, I impose a lesser punishment of reduction in rank from Senior Constable to ordinary Constable. I further order that this decision take effect from the date of this decision. Consequently, given the Court’s finding on guilt, and the principle that one should not be rewarded for unperformed labour, I refuse to make his salary and related entitlements backdated to the time of dismissal.

For these reasons, I grant the plaintiff’s application in part. Each party shall bear their own costs.

Lawyer for the Plaintiff: Gamoga & Co.

Lawyer for the Defendants: Solicitor-General