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Sapu v Commissioner of Police [2003] PGNC 80; N2426 (9 July 2003)

N2426

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. 285 OF 2000

BETWEEN:

KITA SAPU
–Plaintiff-

AND:

THE COMMISSIONER OF POLICE

- First Defendant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Second Defendant-

LAE: Kirriwom, J

2002: 16 October

2003: 9 July

ADMINISTRATIVE LAW – Judicial review – Grounds for – Errors of law and Bias – Powers of prerogative writs – Certiorari – Mandamus – Inherent jurisdiction of the Court – s.155(4), Constitution

Judicial review – Application for – writs of certiorari and mandamus – examination of records of disciplinary proceedings before Commissioner - Order 16 National Court Rules

Judicial review – Disciplinary action – Serious Disciplinary offence - Disgraceful conduct – Finding of guilty - Dismissal of policeman from the Force

Judicial review – Right to be heard – Failure to be heard before penalty - Whether failure constitute denial of natural justice in Ridge v Baldwin principle of audi alteram patterm

PRACTICE AND PROCEDURE – Right to address on sentence – Statutory right – Adjudication of guilt by administrative body is neither criminal nor civil – Need to exercise caution and avoid adopting criminal procedure into administrative disciplinary process that is likely to protract and prolong the adjudicatory process - No separate hearing on penalty warranted or required.

Cases cited:
Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417
Kekedo v Burns Philp (PNG) Limited & Ors [1988-89] PNGLR 122.
Kathy Dob v The Commissioner for Police and the State [1998] Unreported National Court – O.S 522 of 1996
Sudi Yaku v Commissioner of Police ex parte The State [1980] PNGLR 27 at 31-32
Sebastian Vema v Henry Tokam, Commissioner of Police and the State [1995] PNGLR 368
Pearson Joe Kamangip v Bernard Orim, Commissioner of Police and the State (1998) N1695
Tiga Nalu v The Commissioner of Police and the State [1999] National Court Judgement N1927
Alconbury [2001] UKHL 23; (2001) 2 All ER 929
Dicky Nanan v John Maru & Police commissioner [1996] National Court N1507
Kelly Yawip v Police commissioner & State [1995] PNGLR 93
Pierson Joe Kamangip v Bernard Orim & Police Commissioner & The State [1998] National Court N1695
Sgt Kim Ananis v Commissioner for Police & The State [1999] National Court N1845
Geregl Mauglo v Police Commissioner & The State [1998] National Court N1728
Toll v Kibi Kara & Ors [1990] PNGLR 71.

Legislations and Texts referred to:
Redfern Legal Centre’s Lawyers Practice Manual (NSW) by Rees Ronalds and West, Law Book Co publication (1983)
Administrative Law of Papua New Guinea, Cases Materials and Text, Michael A. Ntumy, Pacific Law Press, Hobart 1992.
Police Act 1998, No.37 of 1998

Counsel:
Paul Ousi for the Plaintiff

9th July, 2003

Kirriwom, J. The Plaintiff applies for judicial review of the decision of the Commissioner for Police. On 2 March 2000 the Commissioner found him guilty on a disciplinary charge brought under s.43(g) of the Police Force Act Ch. 65 of "disgraceful conduct in his official capacity in that he unlawfully assaulted another person namely Werenu Lavari a national female by having sexual intercourse on her" and dismissed him from the Police Force.

Background

The plaintiff, whilst in the company of two other male companions, one of whom was also a policeman on duty together with the Plaintiff on the night of 20 July 1998 at Ialibu, gave lift to three village girls in the police vehicle that Constable Koni Nagicana was driving, drove the girls to an old airstrip and there had sexual intercourse with the girls instead of driving them to their village. Both he and Const Koni Nangicana were charged criminally and also under internal Police disciplinary procedure under the Police Force Act.

The assault case against the plaintiff was struck out in the District Court at Ialibu when the police offered no evidence. However Const Nangicana was convicted on his own admission to "having consensual sexual intercourse" with Lily Nolai and ordered to pay compensation of K800 to the victim.

It is not known what happened to the disciplinary action against Const Nangicana although record shows that OIC Discipline did also recommend for his dismissal from the Force. But he is not before me and what happened to him is not relevant here. However the plaintiff was dealt with under the disciplinary provisions where he was adjudged guilty and dismissed from the Force. That is how the matter is now before me by way of judicial review pursuant to the procedure under Order 16.

Chronology

It is important to bear in mind the key events of this case in their orderly sequence:

• Incident was alleged to have occurred on the night of 20 July 1998.
• Complaint officially recorded on 27 July 1998 by Sgt Jack Bungtabu. Complaint lodged by Cornelius Nolai Nanda, father of Lilly Nolai, one of the alleged victims of sexual assault. Matter referred to PWC Clare Rambu to carry out investigation.
• On 29 September 1998 Kita Sapu was charged for assault under s.6(2) of the Summary Offence Act.
• On 30th September 1998 Kita Sapu was also charged with a serious disciplinary offence under s.43(g) of Police Force Act Ch. 65 which was not served on him until after the completion of the criminal case.
• On 10 November 1998 the criminal case of assault was struck out when police offered no evidence.
• On 30 November 1998 Kita Sapu forwarded his reply to the disciplinary charge to Director Internal Affairs.
• On 2 March 2000 plaintiff was dismissed from the Police Force.
• On 22 May 2000 plaintiff commenced proceedings seeking leave to apply for judicial review.
• It is not known when the leave application was heard but leave was granted on 8 June 2001.
• It is not known if the matter was given any earlier hearing date but the substantive hearing was completed before me on 16 October 2002.
  

Facts and Circumstances

The Plaintiff was originally based in Lae. He had been a policeman of some 8 years prior to his dismissal. At the time of this alleged incident he was based at Ialibu Police Station, Southern Highlands where he originally is from. He is a young married man without children and at the time aged 29 from Popupu Village, Ialibu District.

On the night of 20th July 1998 the Plaintiff and Constable Koni Nangicana were on duty. Three young girls from the nearby villages were at the police station and waiting to be dropped off in their village upon prior arrangement with the plaintiff. This is clear from the girls’ story and also from the Plaintiff himself. I use the term ‘girls’ advisedly because they were teenagers as they were between 15 and 17 years and not reached maturity to be called ladies or women.

On instruction from their senior NCO Albert Tipilyan, the two constables took the three girls in the Police vehicle to drive them to their village. A civilian by the name of James Nema who was at the police station at the time also jumped in with them. Instead of driving the girls to their village the two constables and the civilian drove to an old isolated airstrip where the three men had sexual intercourse with the girls. They then returned with the girls to Ialibu where further acts of sexual intercourse took place throughout the night in a private residence till next morning. The incident became a public issue in the small township of Ialibu where the father of one of the girls reported the matter to the police after she failed to return home that night.

All three females gave separate statements in which they alleged were each separately ‘raped’ first at the secluded airstrip and later that night at a private residence till dawn the next day. The Plaintiff is alleged to have had sex with Weremu Levari, a girl aged 17, Constable Koni Nangicana had sex with Lily Nolai, aged 16 years and the civilian James Noma with Wiame Naria, aged only 15 years old.

On 17 November 1998, the Ialibu District Court convicted Koni Nangicana and ordered him to pay K800.00 compensation to the victim. The learned magistrate made these brief notes:

"17 November 1998 Finding – Guilty

Reasons - a) Freely admitted having sexual intercourse.

- There is evidence proving certain degree of consent.
- There is also evidence proving used certain amount of Force (tearing of under trousers).

Allocatus: Caution me.

COURT ORDER: No conviction entered, defendant discharged. To compensate with K800.00 within two weeks. Any disciplinary action to be taken for use of official car to conduct sexual intercourse, this court would leave it with Public Service Commission and Police Department."

The assault charges under the Summary Offences Act on separate complaints of sexual nature seem rather strange or unusual to say the least but perhaps the uncertainty of proving the issue of non-consent and the age factor may have influenced the police to lay such appropriate charges that could at least secure conviction of the offenders concerned. This could be deduced from the evidence of conviction of the Plaintiff’s comrade where he ‘freely admitted having sexual intercourse" with the victim Lily Nolai on the night of the alleged incident. There is no denial by the Plaintiff of his association with Koni Nangicana at the material time of this complaint. In fact his own story places them together throughout the course of this night.

In responding to the serious disciplinary charge against him the Plaintiff took issue with the legitimacy of this investigation claiming it to be actuated by ill-will against him by PWC Clare Rambu having conduct of the investigation of the case who he alleged was a close relative of the victim. He denied having sexual intercourse with the victim and claimed that this complaint was fabricated.

On 18 November 1999, almost a year later, the Plaintiff was adjudged guilty and penalty of dismissal was imposed. In his prayers for relief as pleaded in the Originating Summons the Plaintiff is seeking, inter alia:

1. An Order in the nature of Certiorari to bring the decision of the Commissioner before this Court to be quashed;
2. An Order that the Commissioner’s termination of the Plaintiff from the Force is null and void and of no effect.
3. Reinstatement of the Plaintiff into the Police Force with his substantive rank and salaries backdated to the date of termination.
   

Grounds for Judicial Review

Plaintiff’s grounds for judicial review are:-

1. Allegations by the victim that formed the basis for the disciplinary charge was false as the outcome of the criminal case in the District Court showed.
2. The Commissioner’s finding of guilt and the penalty of dismissal thereof was contrary to the decision of the District Court on the criminal case and therefore against the evidence and the weight of the evidence.
3. The Commissioner erred in law in not hearing the Plaintiff on penalty before imposing the maximum punishment of dismissal from the Force.
4. The Commissioner was biased in his decision by allowing external pressure from the public in Ialibu through his direct contact with them to influence him in arriving at his decision.
   

Both grounds 1 and 2 can be dealt with together. Lack of evidence is a ground for invoking the discretionary powers of the court for judicial review. If the disciplinary authority did not have evidence to reach the decision that he reached, then he must have been influenced by some other factors. It is therefore necessary to examine the nature of the evidence that was before the subordinate tribunal through certiorari by requiring the production of the records that in this case the Police Commissioner or the OIC Discipline had before him when he adjudicated on this matter and reached his decision.

Grounds 3 and 4 can also be dealt with together generally under bias. The manner in which the plaintiff has advanced his case is a distorted and mixture of different grounds lumped together in some incoherent fashion that I will attempt to address the issues as best as I can. There will therefore be overlapping of discussions between these two grounds and grounds 1 and 2 above.

The Constitution provides under section 155(4) that both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. By virtue of this provision the court is entitled to make any orders in the nature of mandamus or certiorari to do justice in the circumstances of a given case.

There is reference to a writ of mandamus sought by the Plaintiff in his statement in support. This prayer for relief is not specifically sought in the originating summons nor referred to in the Plaintiff’s submissions so I disregard it. This is a clear example of inconsistency and incoherence in the substance of the application s pleaded in its supporting documentation.

A fundamental rule in judicial review application as clearly restated in the Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417 is that the applicant for judicial review must exhaust all other remedies available or provided by law, for example statutory provisions for appeal.

The power of the prerogative writ of certiorari is to compel the Commissioner to produce before this Court certified records of proceedings before him in relation to this case for the court to examine and ascertain whether there are any irregularities in the manner that the Commissioner arrived at or reached his final decision. The Plaintiff is asking this court to exercise its inherent powers under the Constitution to quash the decision of the Commissioner once it has been satisfied that the Commissioner had erred in law in reaching his decision or breached a principle of natural justice or exceeded his powers or reached a decision that no reasonable tribunal could have reached or abused its powers. This is the law as stated by the Supreme Court in Kekedo v Burns Philp (PNG) Limited & Ors [1988-89] PNGLR 122.

• I questioned the use of the statement or expression ‘judicial review is concerned not with the decision but with the decision-making process’ in Kathy Dob v The Commissioner for Police and the State [1998] Unreported National Court – O.S 522 of 1996 referred to by Counsel for the Plaintiff where I said that you cannot segregate the process as a distinct component in itself from the ultimate decision reached in the substantive cause of the matter in order to pick and choose what is reviewable and what is not. I maintain this view still. There is no question about the courts discretionary power under judicial review jurisdiction to review and undo administrative and executive acts or decisions. Apart from its traditional role of reviewing administrative actions of public bodies, it is hailed also as an alternative legal process by which a person can invoke the jurisdiction of the courts either by way of appeal or as an originating process and new grounds are emerging with the changes taking place. There are many case precedents that show this development in this field of law under Order 16 National Court Rules procedure and section 155(2)(b) and 155(4) applications under the Constitution. It will therefore necessary at some point in time for a clearer statement of law to be formulated for guidance of the courts and practitioners alike as to the exact role and purpose of judicial review, bearing in mind that law is a developing and often changing norm or concept due to the ever changing circumstances of people from time to time and from place to place. I say this with no disrespect to the most helpful guide in Kekedo v Burns Philp (PNG) Ltd (supra) and the informative textbook on Administrative Law of Papua New Guinea, Cases Materials and Texts by Michael A. Ntumy, published by Pacific Law Press Hobart Australia (1992).
  

Evidence

The Plaintiff submitted that he was innocent of the allegation against him and the charge was made up. Consequently the Commissioner’s finding lacks evidence and contrary to the weight of the evidence before him. He argues further that if there was any substance to the allegation at all, he ought to have been charged with rape because the facts are consistent with sexual intercourse by force and the complaint was one of rape of the victim. He claims that the complaint was a fabrication because if the victim was sincere, she ought not have waited until eight day after the event to complain to the authorities and that she ought to have given evidence in the District Court Ialibu against him for the charge of assault but she did not and the criminal case was struck out, although not dismissed.

Senior Inspector John R. Waria swore an Affidavit on 23rd October 2001 that was filed in this proceeding on behalf of the Defendants. He is the Officer-In-Charge of the Police Internal Discipline Section and he adjudicated on behalf of the Commissioner as is the requirement under the Police Act of 1998. Amongst other things he deposed to in his Affidavit he annexed signed statements from witnesses including:-

1. The victim, Werenu Lewali (Annexure ‘J’)- She says the plaintiff whom they knew saw her and her friends walking around town and told them to wait for him and he would drop them in the police vehicle. They trusted him and waited for him. He even locked them in a room which they later learnt was the female cell. About 8pm they were taken out of the cell and told that they were driving them home. Koni drove to the old airstrip where they stopped vehicle and Kita pulled her out of the car and some distance away from the car he forcefully removed her clothes and had sex with her by force and against her will. At the time he had his gun with him. The other two girls were similarly attacked by the other two men. They went back to town and ended up at another house where they were left to spend the night. At that house Kita had sex with the complainant again, while James Wema also had sex again with Wiame Naria and this time another civilian who was sleeping in that house called Justin had sex with the girl Lilly Nolai.
   
2. Nolai Lily (Annex ‘K’) and Wiane Narea (Annexure ‘L’) and their stories are similar to Weremu Levari and they each explain the sexual attack on them by the the other two men Koni Nangicana and James Nema.
   

100. Senior Constable Albert Tipilyan who was on duty on the night of 20th July 1998 at Ialibu Police Station saw the three girls at the Police station in the company of the Plaintiff and Constable Koni with a civilian jumping into the Police vehicle to be dropped off at their village at Yakena about four kilometres away. Not long after they had gone he saw the vehicle return with the same three girls in it and neither the Plaintiff nor the other men explained to him the reason for not having dropped off the girls or what was going on. Instead Constable Koni asked him to accompany them which he sensibly declined the invitation (Annexure ‘N’).
     

4. The plaintiff’s own statement and reply to disciplinary charge (Annexure ‘Q1’ and ‘Q2’). In Q1 the Plaintiff admits to being with the complainant at some intermittent periods throughout the day in question in between official engagements and ultimately sleeping with the victim at a house that night till next morning after knocking of work although no sex is admitted. This is however contradicted by the victim and the victim further alleges sexual intercourse taking place even prior to the Plaintiff knocking off work in the pretext of taking her and her two friends to their village as instructed by his senior NCO A. Tipilyan.
   

The Commissioner also had the Plaintiff’s own subsequent reply to the Charge of Serious disciplinary offence which contained exculpatory version of the facts that he had revised (Annex G1) together with a statement from his only witness James Nema (Annex G2) who is an accomplice, both annexed to the Affidavit of the Plaintiff sworn 22nd May 2000.

All these evidence was before the Police Disciplinary officer who adjudicated on the case and reached his verdict. The Plaintiff disputed PWC Clare Rambu’s impartiality in the conduct of the Investigation of the complaint alleging close relationship between herself and the victim thereby prejudicing her investigation as not being objective but tainted by personal grudges against him. There is no evidence that this was the case. This is one of those blank assertion to which no answer has been filed nor was it taken further apart from it being alleged. His plea for innocence is largely founded on the striking out of the criminal charge of assault by the Ialibu District Court when police offered no evidence. There is this misconception that the disciplinary charge was piggy-backed by the assault charge and once that charge was thrown out due to lack of evidence, there was no case for him to answer as far as the disciplinary proceeding was concerned. This is all wrong.

It must be pointed out at the outset that the criminal proceeding had no relevance to the disciplinary action. The outcome of the criminal case in the District Court had no bearing on the disciplinary action. They were not pursuing the same result. As Andrew, J said in Sudi Yaku v Commissioner of Police ex parte The State [1980] PNGLR 27 at 31-32:

"I think the section, when referring to punishable acts or omissions must mean offences, since acts or omissions that are not punishable cannot either in logic or by the structure of the Code, be punishable. One can only be punished for an offence. The Code just does not contemplate punishment being imposed otherwise than upon a conviction for an offence. The same act or omission may of course constitute many different offences. In the present case there is no doubt Constable Yaku’s conviction and sentence by the local court at Bulolo meant that there was a previous lawful punishment imposed consequent upon a lawful conviction for an offence. However the subsequent disciplinary proceeding and punishment of dismissal from the police force by the Police Commissioner was neither a criminal prosecution nor a civil action. He was not punished for any offence as defined by s. 3 of the Code. He was merely punished by an administrative tribunal maintaining the discipline of the police force for a disciplinary charge and that proceeding was neither criminal nor quasi-criminal in its nature.

The point I am making is that the charge of unlawful assault was an offence known to the Code. The disciplinary charge was disgraceful conduct which was ultimately found to warrant disciplinary action. It was not an "offence" punishable as a crime. It was not determined by any criminal prosecution or for that matter by any civil action. As such the acts or omissions, namely the act of disgraceful conduct, was not the same act or omission (or offence) as the unlawful assault. It was not an offence known to the Code because it was neither a crime, misdemeanour nor simple offence. It follows that Constable Yaku was not twice punished for the one offence or for the same act or omission."

To emphasise the point that Andrew J was stating in Sudi Yaku’s case is that the disciplinary offence charged is one of ‘disgraceful conduct’. The disgraceful conduct in this case is having sexual intercourse with the victim first at the isolated airstrip in the company of two other men and girls which was committed whilst on duty and subsequently in a private residence till next morning regardless of whether it was during official working hours or after. The fact remains that there was a complaint of his improper conduct and there was evidence of his engaging in sexual intercourse with the complainant throughout that night. This has already reflected poorly on police public relations and good image and reputation of the police in Ialibu. The Commissioner’s concern was the integrity of the Police Force that was brought into disrepute and tarnished by the behaviour of the two policemen including the Plaintiff and the disciplinary action was targeted at addressing that misconduct. The fact that the criminal charge in the District Court was struck out was of no significance at all to the disciplinary action in the same way as it would not have mattered had the Plaintiff been indeed tried and either acquitted or convicted.

It is therefore immaterial whether the Plaintiff had sexual intercourse with the victim or merely slept with her without coitus or copulation as she was having her monthly period (as the plaintiff wants it to be believed), the point is that she was in his company all night with two other girls and two other men in the police vehicle and in a private residence and he was the ‘author’ of this group sex that night and what is of utmost importance here is the public perception of his conduct and behaviour. That is what the Force must guard against and that is primarily the Commissioner’s duty to safeguard and uphold. In any event there was overwhelming evidence of the three girls including the victim, senior constable Albert Kipilyan, the Plaintiff’s own various statements which he had not retracted or disowned and they clearly implicate him to such a degree of culpability close to that of the criminal standard.

This is a case which on the face of it no doubt called for an instant dismissal. And precedents have already been set as in Sebastian Vema v Henry Tokam, Commissioner of Police and the State [1995] PNGLR 368 and Pearson Joe Kamangip v Bernard Orim, Commissioner of Police and the State (1998) N1695. The Court held that dismissal was appropriate in each case. These are serious cases involving gross disgraceful conduct by disciplined men while on duty and breach of trust. In Pearson Joe Kamangip v Bernard Orim and Ors it was a rape of a female detainee held captive in the police lock-up awaiting trial. And in Sebastian Vema V Henry Tokam and Anor the applicant and two other policemen picked up three ladies in Port Moresby and drove them in the Police vehicle to 7 mile where the members each had sexual intercourse with the girls. There are many sparkling similarities in the factual circumstances in both cases and the legal issues that arise on the facts proven. With respect, what Brown J expressed in Sebastian Vema v Henry Tokam and Anor (supra) most aptly describes what I myself could do no better in this case by quoting the relevant passages from his judgement that are quite pertinent as far as this case in concerned. He states at p.369:

"The applicant comes by way of judicial review to seek orders quashing the decision of the Police Commissioner terminating his appointment as a Constable of the Royal Papua New Guinea Constabulary, for disgraceful conduct. He had been charged with a serious disciplinary breach on 15 December 1993 arising out of an incident on 24 September 1993 when the applicant with two other members of the Police Force, all then on duty in uniform had "picked up three ladies from Port Moresby and taken them to 7 Mile in a police vehicle where the members each had sexual intercourse with the girls.

The others also, I am told, have been dismissed and seek reinstatement by way of judicial review. The girl with whom this man had intercourse was named in the disciplinary proceedings and in fact he was also charged with her rape, but those proceedings were discontinued and the applicant here, discharged on the indictment, (or charge). A discharge in those circumstances is not an acquittal.

The girls it appeared, had changed their minds and decided not to proceed with the case. A nolle prosequi was entered, a procedure available to the State Prosecutor, to stop pending prosecutions. Why the girls changed their minds is a matter for conjecture, but it is certainly not because they have been compensated for the act of intercourse, which was stated by the applicant. Anecdotal evidence suggests that the girls may have been coerced into withdrawing their complaint, or had been frightened into doing so, but I need not make any findings in that regard, except to point out that other jurisdictions, (recognising the possibility of coercion), have legislation in place which effectively circumvents the sudden refusal of a victim in these circumstances, to give evidence in Court, so that the State’s obligation to uphold the law and prosecute criminal acts, such as rape, is not frustrated by the girls understandable wish to avoid public humiliation and possible ridicule in the public Court. In such jurisdictions, the effect of the legislation is to protect the victim to a large extent, and effectively takes away from the victim the power or obligation to choose whether or not the charge will go to trial (by declining to give evidence against the perpetrator), placing the power with the prosecutor, the responsible authority, where it should be."

He continued at p.370:

"It must be remembered that police disciplinary proceedings are not court proceedings for their procedures are altogether different. Mr Kuman continually resorted to arguments about a failure to be heard which shows that he misapprehended the nature of the disciplinary proceedings. The charge requires an explanation in the discretion of the person charged, and the charge form clearly provides that "if a reply is not given within 14 days after your receipt of the charge, you may be deemed to have denied the truth of the charge". No complaint can now be entertained if the applicant now says that he did not avail himself of the chance to give an explanation. In fact he did so, and that explanation has clearly been considered on the face of the documents, for Inspector Kami, had noted, in mitigation, that the member pleads the act was consensual. Nevertheless, the Inspector was of the view the fact of sex, by members of the force, on duty was very disgraceful. The recommendation for dismissal was carried out by the Commissioner who so ordered on 24 September 1994."

And at p. 371 His Honour continued further:

"He was charged with disgraceful conduct, a serious disciplinary offence which calls for an objective assessment of the members behaviour. Consensual intercourse is not necessarily wrong, but on an objective assessment, taking into account the requirements of the Forces discipline, (and the public interest to prevent, if possible the chance of being picked up by members of the police force for consensual intercourse), intercourse whilst on duty in company with other members was considered by Inspector Karmi, the disciplinary officer, to be disgraceful. That is a finding of his peers and as I say from an objective point of view it is a finding which is available to the Inspector. The applicant does argue that, from his point of view, (a subjective one) he did nothing wrong for the girl acquiesced. Nevertheless moral precepts have a place in our law, so that group intercourse by policemen in uniform whilst on duty in a police vehicle would call for some admonition, and the Inspector’s finding of disgraceful conduct by a policeman in these circumstances does not go beyond society’s expectations. There is no power in the Court to interfere, then, when the Commissioner has not been shown to have acted beyond power.

The applicant goes onto say that, even were I to find the Commissioner had power to dismiss, his act is harsh and oppressive as understood by s 41 of the Constitution. I had occasion to consider the test in Currans’ case where I differed from my erstwhile brother Judge McDemott’s test which tended "reasonableness" in a Wednesbury sense.

There is nothing in this case, in my view, to support the constable’s assertion that the act of the Commissioner to terminate him, is harsh or oppressive. He has, in the opinion of his peers, acted disgracefully. His conduct risks bringing the force into disrepute once it becomes known that girls walking about town are at risk of being imposed upon for sexual favours by uniformed men. He has not considered compensating the girls for the hurt and ridicule that they have suffered (accepting the consensual nature of the act) or the suffering (if non consensual) from a customary point of view, so that to urge the Court as he does, that he has been harshly or oppressively dealt with, takes no account of the public interest in stopping persons imbued with authority by the uniform, from having their own way with women free of recrimination. Women’s expectations of fairness under the Constitution would again be frustrated were I to find the policeman harshly treated when the woman has been put upon and I dare to say, abused without recompense. On balance, I am not satisfied he has been harshly or oppressively treated.

The applicant says that he has a legitimate expectation to remain in the Force because he was returned to work upon his discharge from the criminal charges. The disciplinary proceedings were stayed, in accordance with proper practise, while the more serious were completed, the disciplinary proceedings fell to be determined. The fact that his suspension was lifted then and he was paid for a period following his discharge from the indictment, cannot be seen to be condonation of his behaviour where the disciplinary tribunal is still deliberating. The deliberations were completed upon the Commissioner’s determination of the 24 September 1994 and nowhere has it been shown that any person in authority has led this man to believe that notwithstanding the deliberations of the Tribunal he would be excused from the consequences of this act. Pending determination he was entitled to his salary for his criminal charge had been discontinued releasing him from that impediment to work. No policeman facing a rape charge could in my view properly be rostered for duty."

I fully endorse the sentiments and remarks made by His honour in that case and respectfully adopt the same in respect to this case. Be that as it may, there is no question about sufficiency or otherwise of the evidence and the weight to be attached to it. It was all credible and reliable evidence.

A further corroborative evidence is the ultimate conviction of the Plaintiff’s comrade and accomplice Koni Nangicana upon his own admission of having sexual intercourse with the girl Lilly Nolai on a charge of assault. This conviction corroborates the evidence of Lilly Nolai about the events of the night that surrounds this orgy of immoral conduct of the Plaintiff and his accomplices. This is circumstantial evidence that is reliable and credible.

Denial of Natural Justice – Bias and Extraneous or Irrelevant Considerations

The Plaintiff contends that the Commissioner’s decision was influenced by extraneous considerations in that he allowed his own imagination based on reports or complaints he was hearing or receiving from the members of the public generally in Ialibu about this particular incident to dictate the way and manner in which he dealt with his case. This contention is baseless and is untrue. There is overwhelming evidence of a complaint being lodged with the Police by the father of one of the girls. Following this complaint statements were obtained from the witnesses including the three girls concerned. An official investigation was mounted and the Plaintiff and Constable Koni were criminally charged. Plaintiff was also charged with a serious disciplinary offence as stated because he was believed to be the instigator. Const. Koni admitted in the District Court and was ordered to pay compensation although no conviction was recorded. The presiding magistrate was empowered to make that order. The Plaintiff’s case was struck out for want of evidence.

The Plaintiff was served with his serious disciplinary charge. He denied the charge and furnished signed statements he prepared in reply to the charge and generally regarding the complaint. He even attached statement from witness James Nema who was also implicated in this incident but not charged by the police. His story was so different to that of the plaintiff and other witnesses. He was an accomplice. Plaintiff also relied on the statement of senior constable Albert Kipilyan which is the same statement relied on by the Commissioner. That statement clearly implicated the plaintiff as being "up to no good" by inference and therefore did nothing at all to advance the plaintiff’s case. He himself gave various statements. He discusses meeting the girls in town during the day where conversation took place between him and the victim Werenu Lavari and thereafter the girls were at the police station hiding from their relatives until dark and they were told to drop them off. They drove out but the girls refused to go home so they returned to town and they left them in a private residence where he returned after work and spent the night with the complainant but no sex took place.

The Charge and the Reply were deliberated on and Decision was duly reached. The Decision was that he was guilty of disgraceful conduct and that he be dismissed from the Police Force. Careful and thoughtful consideration was given at various levels of the hierarchy that deliberated on his case before decision was reached and this is very obvious from the style and the tone of the Commissioner’s advice to the Plaintiff when stating his reasons for decision. For the benefit of the Plaintiff I have set out below the Commissioner’s reasons for his decision which read in part:-

"A written explanation from you was received at the Police Headquarters. This explanation was taken into account when arriving at the decision. Reasons for decision are as follows:

Incidences of improper conduct leading to disciplinary actions are now prevalent in the constabulary and your actions are one of the many cases.

Too many serving members holding position of trust have tendencies to misuse their positions during official hours for personal gain, and fail to adhere to ethics and professionalism. Your actions are one of the many instances.

Disgraceful conduct is a serious problem in the Constabulary and for a member to neglect his responsibilities and acted irresponsibly is bad for discipline in general and sets a very bad example to members of the public.

Your actions are unacceptable and reflect an ill-disciplined personality and show no pride or self-respect as being a policeman.

Your actions are viewed as total misuse and joyride, frequently members pretended and misused police vehicles under the cover of performing official police duties instead they used it for personal gain and satisfaction and this is one of the many cases.

There is evidence that the trips you took were for transporting both females to the old airstrip and to Mr. Stephen’s place in order to have sex with the victims. Your actions are regarded as corrupt and dishonest dealing.

They were done during official hours. You took advantage of these females due to their ignorance of police functions.

To make it worse still you were on duty and had the trust of the local community. You are a local policeman and what you did is a talk in at Ialibu community and has tarnished the image of the Constabulary.

You ignored the fact that the fundamental duty of a policeman is to protect life and property. Your actions were opposites.

The practice is now prevalent in the Constabulary, of members not adhering to the code of conduct, moral standard and resorting to unethical behaviour in order to fulfil your pleasure during official hours of duty and off duty.

Your actions have created an impression in the minds of the local community that policeman cannot be trusted in their day to day duties when dealing with females, be it a complainant or a prisoner.

Your actions have painted a wrong image of the Constabulary. And this in turn will make it extremely difficult to gain community support and confidence especially in combating crime in Ialibu and the local villages.

The Constabulary cannot and will not condone such irresponsible actions by a member whose behaviour and actions defeat the very purpose of the Constabulary’s existence.

You submitted your explanations, but failed to provide concrete and supportive evidence to back your side of the story.

The evidence is intact and conclusive to substantiate the charges and secure disciplinary conviction.

The serious disciplinary charge is sustained and by way of penalty you are dismissed from the Constabulary effective from the date of service of the Notice of Penalty.

A submission on penalty was not received at Police Headquarters, and could not be taken into account when making a decision as to penalty. Reasons for imposition of this penalty are as follows:-

• Assistant Commissioner Highlands Command recommended dismissal as penalty. Provincial Police Commander has recommended dismissal as penalty. The Director Internal Affairs elaborated that the case is of serious misconduct and warrant the Commissioner of Police to exercise the maximum penalty and recommended dismissal as penalty.
  
• To restore the image and good reputation of the Constabulary the penalty of dismissal from the Constabulary is appropriate in this case to be consistent with past penalties imposed on similar matters. Therefore the penalty of dismissal is awarded.’
  

Signed

J. Wakon

Commissioner of Police"

(Emphasis is mine)

There is no doubt in the light of the overwhelming evidence before this Court that the Plaintiff was properly served with the charge, he responded and based on his response and all the evidence collected and put together this decision was made. The Plaintiff was accorded hearing and he utilised the opportunity to the fullest and his views have been taken into account. I see no error committed by the Commissioner in affording the Plaintiff his rights under the Constitution to be heard in his defence.

The Plaintiff has maintained that this charge was fabricated and accused PWC Rambu of being responsible for it. This accusation has not been substantiated in any detail and I pay no regard to it at all. It is a fervent or gallant effort by a desperate man clutching at the last straw at the eleventh hour attempt to swing the blame away from himself and the truth onto someone else. I am content to accept what the overwhelming evidence shows and I can find no fault in the decision reached by the Commissioner.

Denial of Natural Justice – Right to be heard on Penalty

Plaintiff contends that having found him guilty of disgraceful conduct, the Commissioner proceeded to dismiss him without giving him an opportunity to be heard on penalty. Indeed in stating his reasons for arriving at that conclusion for the dismissal of the member, the Commissioner quite specifically acknowledged and made mention of that fact and gave his reasons as stated: Firstly, from the Disciplinary Officer to the Provincial Police Commander and to the Assistant Police Commissioner Highlands Division, all unanimously favoured dismissal of the Plaintiff.

It is clear from reading this reasoning process of the Commissioner that he did not arrive at this ultimate conclusion in isolation. There was a wide consultative process and it is quite apparent that his superior officers and his own peers, for the good of the Constabulary, no doubt rejected the member. Could it have made any difference to allow the Plaintiff to make his final plea for leniency after he was adjudged guilty for his disgraceful conduct? This is not a case that required a penalty less than the maximum as members of the Force have been dismissed in the past for much lesser wrongs under the disciplinary process such as drunk and disorderly for instance or insubordination. The factual circumstances are far more serious than Tiga Nalu v The Commissioner of Police and the State [1999] National Court Judgement N1927 where Injia J quashed the Commissioner’s decision to dismiss the applicant and ordered that he be reinstated but demoted to a lower rank. This decision reinforces the point I was making in Kathy Dob v Commissioner for Police and Anor (supra) that judicial review is not just about procedural fairness but it does under section 155(4) of the Constitution empower the Court to make orders that are necessary to do justice in a particular case. Had this not being the case, the most appropriate thing for the Court to do would be to recommend to the Commissioner to reinstate the Plaintiff and reduce him in rank. But that will be going around in this vicious cycle that Amet, J (as he then was) described as totally misconceived and mischievous when discussing the principle of exhausting all other remedies below before seeking judicial review in the courts in Kekedo v Burns Philp (supra) at pp126-127. It must not be forgotten that ‘principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament’- per Lord Hoffman in Alconbury [2001] UKHL 23; (2001) 2 All ER 929.

The question as to whether or not there has to be a separate opportunity given to the applicant to respond on the aspect of penalty after the Commissioner has found the member guilty and gave his reasons for his decision has been subject of divided opinion in the decisions so far handed down by this court. See Dicky Nanan v John Maru & Police commissioner [1996] National Court N1507, Kelly Yawip v Police commissioner & State [1995] PNGLR 93, Pierson Joe Kamangip v Bernard Orim & Police Commissioner & The State [1998] National Court N1695, Sgt Kim Ananis v Commissioner for Police & The State [1999] National Court N1845, Geregl Mauglo v Police Commissioner & The State [1998] National Court N1728 and for the benefit of appreciating where the division has crept in, Toll v Kibi Kara & Ors [1990] PNGLR 71. Majority view seems to favour dispensing with the requirement for separate submission on penalty after finding of guilt for disciplinary offence. I think that the audi alteram partem principle in common law must not be confused with the procedure that was developed through the Parliament in the criminal courts where the accused has two opportunities to speak, first, in his answer to the charge when he is arraigned, and the second is, when he is convicted and asked to explain as to why he should not be punished for his crime. This is based on strict adversarial system of dispensing justice and for good historical reason too. A judge or magistrate who sits in judgement of a person he had just convicted after considering the evidence before him or on his on plea of guilty does not even know the person before him and that is the first time, in most cases, he has seen that person. He needs to know more about him, about his family, his job history, his personal antecedents and even to hear him for the last time express his remorse or offer restitution before he passes the sentence. A disciplinary hearing is conducted in an inquisitional manner that all relevant materials are bundled together and placed before the tribunal to adjudicate on the matter. In most cases these materials include personal staff file maintained by the employer of the employee and are adequate to assist the tribunal to not only arrive at a conclusion of guilt alone, but often times, there is adequate information there for penalty to be likewise determined without requiring another hearing from the officer charged. The procedure is almost informal and flexible that additional information is obtainable either way at any and every stage of the proceedings until the final decision is reached which includes the penalty. That is the way the practice has developed and it ought to remain that way. It is quicker, plain and not repetitive of the process.

I think one has to be very careful in adopting a criminal procedure available to a convicted person in a court of law in accordance with a statutory regime and the constitutionally guaranteed protections. The two-staged criminal procedure in my view need not necessarily apply in an administrative tribunal on disciplinary cases, which only tend to protract or prolong a case and which in reality is unnecessary. The practical reality of this view is that it would not make one iota of a difference what is said on penalty because the evidence and the overwhelming nature of the case already before the decision-maker would be such that dismissal is inevitable and it must be imposed and no amount of persuasion by the officer affected is going to change that.

In this case before me, all relevant material was before the Commissioner. Unlike a judicial officer who has before him an accused person for the very first time in his life to be sentenced, the Commissioner is not placed in the same disadvantage as the judge or magistrate. He probably knows the member, if not personally or by face, then by the records that are placed before him that the Department has kept of him since his recruitment. Those records speak much louder of the person to the Commissioner than what the evidence in a trial or in court depositions inform the judge about the prisoner before him in court. He already knows enough about the officer to decide what he should do with him and he does not need to ask the member concerned to assist him in arriving at a just and fair decision on penalty. Safeguarding and upholding the integrity and good rapport of the Force in the community would far outweigh any notion of fairness and justice to an errant constable who brings disrepute and bad name to the Force by his most disgraceful conduct and whose presence in the Force naturally is no longer required. Need the Commissioner hear anything more from the officer concerned if he had not expressed himself when he was already given the opportunity to do so? This is repetitive time consuming and unwarranted.

I therefore go along with the majority view that there was no requirement in law for the Commissioner to hear the Plaintiff separately on penalty. There was sufficient material before the Commissioner to decide on appropriate penalty and there were clear precedents already set in this kind of cases involving members of the Constabulary. I dismiss this argument.

I wish to state for the record that neither of the Defendants were represented before me nor have they caused any submissions to be filed in response to the Plaintiff’s written submission. I acknowledge the Defendants intention to defend this action as the Notice of Intention to Defend clearly indicates and the affidavit of Senior Inspector John Waria OIC Discipline of Police Internal Affairs that I referred to herein shows this.

Delay

The Plaintiff was advised or received notice of dismissal on 2nd March 2000 and commenced proceeding by filing an originating summons seeking leave to apply for judicial review on 22 May 2000, after a lapse of some two months. The matter then remained in abeyance for a little over a year when leave was granted on 8th June 2001. It is unclear when the application itself was heard. This is apparently a long delay from the date of filing to the date of grant of leave and as the matter was not then before me I do not delve into it further. But what is of equal concern to me now is that despite leave being given a further sixteen months of hibernation when the matter ultimately came before on 16 October 2002 when I heard this substantive application for judicial review.

Order 16 r.4 provides that where the Court considers that there has been delay in making the application for judicial review the Court may refuse to grant any relief sought in the application if the Court is of the opinion that granting the relief sought by the applicant would likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to the good administration.

Apart from the delay factor which is plain in my view, I find no error on the part of the Commissioner of Police in his deliberation of the matter, and I dismiss this application. Additionally, after such a long delay since the dismissal of the Plaintiff and in the light of the rejection of the Plaintiff by his own peers and superiors it is not in the best interest or good administration of the Police Force to disturb the Commissioner’s findings and decision.

Application for judicial review is therefore dismissed. Plaintiff pays the costs of this proceeding.

Lawyer for the Plaintiff: Warner Shand lawyers
Lawyer for the Defendants: Solicitor General