Unreported National Court Decisions
N1853
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 210 OF 1998
BETWEEN: AGARIA BANI
PLAINTIFF
AND: COMMISSIONER OF POLICE
FIRST DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT
Waigani
Sevua J
15 July 1998
20 April 1999
ADMINISTRATIVE LAW – Judicial Review – Police Disciplinary proceedings – Natural Justice – Whether Police Commissioner required to serve statements and reports on plaintiff – Whether failure to serve amounts to breach of audi alteram partem rule of natural justice – Whether failure to give plaintiff opportunity to address on penalty constitutes an error of law - Whether Police Commissioner entitled to accept evidence against plaintiff and reject plaintiff’s evidence – Police Force Act, Ch 65, Section 46.
Counsel
Z. Varimo for Plaintiff
R. Tuva for Defendants
20 April 1999
SEVUA J: The plaintiff seeks a judicial review in respect of his demotion from Sergeant to Constable.
The plaintiff was a Sergeant of Police and the NCO in charge of security personnel assigned to the Leader of the Opposition, Honourable Bernard Narokobi. He was charged with four serious disciplinary offences under s.46 of the Police Force Act, found guilty and demoted to the rank of Senior Constable.
It is not intended to set out the four charges, suffice it to say, the first two relate to the plaintiff’s failure to carry out his duty to meet the Opposition Leader at Jacksons Airport, pick him up and drop him at his residence. The last two charges relate to consumption of alcohol.
In seeking the remedy of certoriorari to quash the decision of the first defendant, the plaintiff relied on the following grounds.
That the first defendant erred in law in that he:
1.       Sustained the four disciplinary charges against the plaintiff upon no evidence or insufficient evidence.
2.       Was in breach of the principle of natural justice, the rule audi alteram partem, in that the plaintiff was not given a fair opportunity to answer the case against him and put his own case in that he was not allowed the opportunity to:
(i)       respond to the prejudiced materials against him; and 
(ii)      the adverse inferences, views and reports made against him.
3.       Did not give an opportunity to the plaintiff or invite him to address on penalty before making his decision which resulted in the plaintiff’s demotion.
The defendants have filed an affidavit sworn on 13th July, 1998; by Inspector John Waira, 2IC, Disciplinary Section, Police Internal Affairs Directorate. 
In my view, the evidence in that affidavit adequately addressed the grounds for review which the plaintiff relies on, however, I will refer to the relevant parts of the affidavit when discussing the plaintiff’s submissions. 
In his written submissions, the plaintiff has abandoned grounds 2 and 3 of his ground for review. In spite of that, I intend to make some remarks on those grounds for the benefit of counsel.
In short, the plaintiff submits that there is no evidence for the first defendant to convict him of the first two charges, ie, failure to pick up the Opposition Leader at Jacksons Airport on 16th August, 1997; and failure to respond to his immediate superior, Chief Inspector Joe Gawi’s demand for a written explanation of his failure on 16th August, 1997.
The plaintiff’s explanation in his submission was that there had been a change of itinerary for the Opposition Leader’s travel from Goroka to Port Moresby which was not communicated to him. He referred to a conversation with a Mrs Miriam Limo, whom he said, knew of that itinerary and had passed it on to a policeman (unnamed) however that policeman did not notify the plaintiff of the change in itinerary.
Let me, at this juncture, and say that the plaintiff has submitted that the first defendant’s evidence, especially from Chief Inspector Joe Gawi, was hearsay therefore the Commissioner should not have relied on it to convict him (plaintiff). If I were to accept that submission, I should also find that the plaintiff’s evidence, particularly, his reference to the change of itinerary communicated to Mrs Miriam Limo and the unnamed policeman, was hearsay. He did not obtain a statement from her or that policeman. In my view, he cannot therefore ask the Court to find that Chief Inspector Joe Gawi’s evidence is hearsay, whilst on the other hand, expects the Court to accept his hearsay evidence.
I think the plaintiff forgot to appreciate the chain of command that exists in the disciplined forces in addressing issues. In this case, the Commander of National Security Unit, Chief Inspector Joe Gawi used that chain of command to obtain statements from policemen attached to the Close Protection Unit assigned to the Opposition Leader. Those policemen submitted statements to him during his investigation of the conduct of the plaintiff, and such statements formed the basis of the charges laid against the plaintiff.
In my view, the plaintiff’s explanation on the changed itinerary was merely an excuse to justify his failure to carrying out his lawful duty. He did not obtain an affidavit from Mrs Miriam Limo to support his case and basically, I think that was the reason the first defendant did not consider his explanation credible. I would have formed the same view if I were the Commissioner. The plaintiff tried to rely on hearsay evidence, particularly, a conversation that he was not a party to, nor did he hear himself, but he heard from a third party. That is clearly hearsay.
The plaintiff’s explanation could not have been credible because, if there had been a communication breakdown as he asserted, he was not available on the police radio communication network when called. Constable Yoko, one of the two policemen escorting Mr Narokobi said in his statement that the plaintiff was not reached by two way radio through Zero Bravo and the Mobile Forces Channel 9 radio network. The plaintiff did not respond when called on those radio channels.
In respect of the two charges associated with the consumption of alcohol, there is sufficient evidence available to the Commissioner to find the plaintiff guilty. The heavy smell of liquor and beer bottle tops found inside the Opposition Leader’s official vehicle could not have got there in mysterious circumstances. The plaintiff could not deny and try to shift the blame to Senior Constable Kisa. The investigation by Chief Inspector Gawi revealed that the plaintiff was responsible for consuming alcohol in the Opposition Leader’s car, afterall, the car was left under his care and control.
Again the plaintiff has attacked the evidence of Chief Inspector Gawi as hearsay. However, I reiterate that the investigation by Chief Inspector Gawi, consisted of statements from police witnesses. Those statements were compiled by Chief Inspector Gawi who used them to lay charges against the plaintiff. I can see nothing wrong in placing reliance on those statements. I dismiss the plaintiff’s argument on hearsay evidence.
In my view, those statements are not hearsay but direct evidence from witnesses who observed and knew of the conduct of the plaintiff. The first defendant is entitled in law to believe those witnesses’ evidence and disregard the plaintiff’s evidence. In my view, the first defendant correctly found those witnesses’ evidence presented by Chief Inspector Gawi to be credible and he accepted that evidence. There is nothing wrong with that. The issue between those evidence is credibility. The Commission is entitled to believe one witness and disbelieve the other.
The first defendant is not required by law to serve those statements or any other report on the plaintiff. Section 46 of the Police Force Act does not envisage that. This issue has already been decided in previous cases and I consider that, that issue has now been settled. See Dicky Nanan -v- John Maru and Police Commissioner, unreported National Court judgment of 10th February, 1997; N1507; Michael Kapa Wena -v- Henray Tokam, unreported National Court judgment of 9th May, 1997; N1570; Pierson Joe Kamangip -v- Bernard Orim and Commissioner of Police and The State, unreported National Court judgment of 26th March, 1998; N1695; Geregl Mauglo -v- The Police Commissioner and The State, unreported National Court judgment of 26th May, 1997; N1728; and Sede Kure -v- Commissioner of Police and The State, unreported National Court judgment of 18th June, 1998; N1729.
I have considered the decision of Injia, J and Kapi, DCJ in the first three cases referred to, and, as I myself held in the last two cases, I find that there is no requirement on the Commissioner under s.46 of the Police Force Act, to serve copies of statements, reports or other documents on the plaintiff. Of course, if the plaintiff requested copies of such documents, he should be provided with copies.
The third ground relates to the first defendant not giving an opportunity to the plaintiff to comment on penalty before making the decision to demote the plaintiff. Again, this issue has been settled, at least by three Judges of this Court and I refer to Injia, J’s and Kapi, DCJ’s approach in Dicky Nanan (supra) and Pierson Joe Kamangip (supra). I followed that approach in
At least three Judges have reached the same conclusion in three different cases while Hinchliffe, J has held the opposite view in Barnabas Isoro -v- Commissioner of Police & State (OS 341/95) unreported judgment of 12th April, 1996; and Peter Wapum -v- The Police Appeal Tribunal (OS 51L/93), unreported judgment of 13th May, 1996. Hinchliffe, J’s view in those two cases follow Toll -v- Kibi Kara and others [1990] PNGLR 71. However, I agree with the observation of Kapi, DCJ in Pierson Joe Kamangip (supra). I find that s.46 of the Police Force Act which regulates the procedures of police disciplinary proceedings does not stipulate or envisage what the plaintiff has raised in ground 3 of this application. This Court therefore cannot imply what is not expressed in the Act.
Finally, in view of the past bad records of the plaintiff, I see no reason for his complaint about his demotion. In fact, I consider that the conviction on these charges warranted his dismissal from the Police Force, but he was very fortunate that instead of dismissal, he was demoted. In my view, he cannot complain, because he does not come to this Court with clean hands in seeking equitable relief. His previous record of convictions speaks for itself, and in my view, the first defendant did not err in law or in fact in his decision to demote the plaintiff.
I consider that the plaintiff has no basis at all to complain about his demotion. There is no error in the procedures employed in dealing with his case.
Annexure 1 of Inspector Waira’s affidavit sets out the plaintiff’s prior convictions. Between 27th November, 1978; and 11th August, 1987; he was convicted five times of absence without leave (AWOL). Those are minor disciplinary charges, however on 14th March, 1980; he was convicted of disgraceful conduct, a serious disciplinary charge, which led to the loss of three weeks wages. Worse still, he was convicted of a criminal offence, namely, wilful damage, by the Boroko District Court on 14th October, 1982 and find K40.00 in default 40 days imprisonment with hard labour. These records are relevant for the purpose of punishment in respect of the charges, the subject of these proceedings.
Like I said, the plaintiff does not come to this Court with clean hands, therefore he is not entitled to the equitable relief sought. He who comes to equity must come with clean hands, so says a maximum of equity. There is no proper basis for the Court’s discretion to be exercised in the plaintiff’s favour, and his application for review is dismissed with costs.
Lawyer for Plaintiff: Z. S. Varimo
Lawyer for Defendants: Acting Solicitor General