Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Rataba v Inguba [2008] PGNC 249; N4026 (27 June 2008)

N4026

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 963 OF 2005 (JR)

BETWEEN:

ROBERTSON RATABA
Plaintiff

AND:

SAM INGUBA AS POLICE COMMISSIONER
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Injia, DCJ
2007: 18th September
2008: 27th June

JUDICIAL REVIEW – review of first defendants decision to dismiss plaintiff from the Police Force – grounds of review based on s.19 of Police Act, first defendant acted ultra vires and erred in law – ss.19, 24, 25 Police Act, O.16, r.3 National Court Rules

JUDICIAL REVIEW – disciplinary procedures discussed – commissioner "may" appoint commissioned officers as disciplinary officers – commissioner given discretion by Act with the use of word "may" to appoint a disciplinary officer who is not a commissioned officer – appointment of disciplinary officer was in order as it was discretionary – grounds of review dismissed –s.19 (1) Police Act

Cases Cited:

Tindiwi & Ors v Nilkare & Ors [1984] PNGLR 191
Jimmy Simoi v Police Commissioner

Counsel:

R Uware, for the plaintiff
P Ifina, for the first defendant
A Chillion, for the second defendant

27th June, 2008

1. INJIA, DCJ: This is an application for judicial review made under O 16 of the National Court Rules. The plaintiff seeks a review of the first defendant’s decision made on 17th November 2004 to dismiss him from the Police Force for disciplinary reasons. The application is contested by both defendants.

2. The grounds of review set out in the Statement filed under O 16 r 3 are as follows:

1. A provision of s 19 was breached when Seargeant Kuiap became the disciplinary officer for purpose of investigating the actions of the plaintiff which led to laying of serious charges when the First Defendant only or commissioned officers had the authority to do so, hence Sergeant Kuiap acted without authority to do so.
   
2. There was no disciplinary report from disciplinary officer from which the First Defendant could consider the necessary penalty, hence the First Defendant acted ultra vires section 24 and 25 of the Police Force Act when he made a decision to terminate Plaintiff without the benefit of a disciplinary report.
   
3. Any report or documents furnished by Sergeant Kuiap that First Defendant considered in terminating Plaintiff cannot be regarded as a disciplinary report for purpose of section 25 of the Police Force Act and as such, taking into account these reports or documents by the First Defendant is an error of law, or alternatively..
   
4. is an act ultra vires to section 25 of the Police Force Act.
   

3. Sections 19(1), 23 (5), 24 and 25 (1) & (2) are relevant in this application. They provide as follows:

"19. Disciplinary officers

(1) The Commissioner may from time to time and at any time appoint commissioned officers to act as disciplinary officers for the purposes of this Part."

23. Dealing with serious offences.

"(5) Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4)(a) or within 28 days after posting in accordance with Subsection 4(b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24."

"24. Determination of charge

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be—

(a) a person other than the person who has charged the member; and

(b) of superior rank to the member charged.

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.

25. Imposition of penalty where charge sustained.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2) The Commissioner after considering the report referred to Subsection (1), may, where—

(a) the disciplinary officer is of opinion that the charge has been sustained; and

(b) the Commissioner concurs with that opinion,

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26."

4. The plaintiff relies on his three affidavits sworn on 7th October 2005, 8th November 2006 and 11th November 2005 respectively. He also relies on Mr Uware’s affidavit sworn on 16th October 2006. The defendant’s affidavit evidence consist of two affidavits of Sgt. Pare Kuiap sworn on 12th July 2006 and 13th July 2006 respectively.

5. The facts are that in 1998 the plaintiff joined the Police Force. Between 2003 – 2004, he served in Wau in the Morobe Province where it was alleged that he committed the disciplinary offences in question. He was charged with five (5) disciplinary offences. On 17th November 2004, he was served with a Notice of penalty of dismissal from the Police Force. In this application he takes issue with his dismissal on the grounds stated above.

6. The steps taken in the disciplinary process as I find on the evidence are as follows.

7. On 14th June 2003, a fight took place between members of the police force just outside of Wau Police Barracks. The appellant was alleged to have been involved in the fight. Internal Police investigations were carried out and people were interviewed, reports were made and charges were laid. The plaintiff gave three statements in the course of the investigations: see affidavit of Ins Kuiap sworn 13th July 2006, par 5. Based on this report, the plaintiff was charged with five counts as follows:

1. Killing three pigs belonging to Elizah Beliking and three other settlers.
   
2. Assaulting Bore Terra, Brian Terra and James Sano with a bush knife intending to cause grievous bodily harm.
   
3. Assaulting another member of the force namely Const. Jones Kimaso.
   
4. Assaulting another member of the force namely Constable Jerry Pinda.
   
5. Being in possession of a loaded firearm namely Mossberg, a pump action shotgun whilst under the influence of intoxicating liquor.
   

8. When the charges were served on him, he said he would make a written response: see proof of service details on each charge. There is no evidence that he submitted his written response.

9. Chief Inspector Mota was authorized to investigate the matter and to lay charges. Inspector Mota’s submitted his investigation report to Sgt Kuiap for appropriate action. Insp. Mota’s report is annexed to Sgt Kuiap’s affidavit sworn on 13th July 2006. The report contained copies of all reports and statements of police personnel involved in the fight including the plaintiff’s three statements. Sgt Kuiap says he is the "Disciplinary Officer who adjudicated the Plaintiff’s charges". Inspector Mota’s submitted his investigation report to Sgt Kuiap for appropriate action. Sergeant Kuiap compiled an adjudication report which he submitted to the Commissioner "through chain of command" for appropriate action. A copy of the adjudication report is annexed to his affidavit sworn 12th July 2006. The report recommended all the charges be sustained and a penalty of dismissal on each count be imposed. Relying on this report, the Commissioner found the plaintiff guilty on all five counts and imposed a penalty of dismissal on each count. He gave reasons for decision on both guilt and penalty: see annexure "F" of the plaintiff’s affidavit sworn on 13th July 2006. The Commissioner noted that a reply to the charge had not been received from the plaintiff but his statements made during the investigations were considered.

10. In the absence of any explanation to the charges from the plaintiff, the Commissioner correctly took his silence to amount to a denial of the charges and determined the question of guilt on each count: s 24 (5).

11. The first issue is whether Sgt Kuiap was a "commissioned officer" and therefore authorized to act as a "disciplinary officer" within the meaning of s 19(1). The plaintiff’s submission is that the Police Act does not define "commissioned officers", "but they can be senior Police Officers who normally occupy ranks from Senior Sergeant up to Inspector." Therefore Sgt Kuiap was not qualified to be appointed a disciplinary officer. The Commissioner erred in law in appointing him: see par 5(a) of Mr Uware’s written submissions.

12. It is submitted for the respondents that pursuant to s 4 of the Police Force Regulations (Ch 65), there is a distinction between commissioned officer ranks and non-commissioned office ranks in the force. Commissioned officer ranks are from Inspector (third class) up to Deputy Commissioner. Non- commissioned officers ranks are from Constable up to Chief Sgt. (Sergeant Major) which comes under Inspector third class). The rank of Sergeant is a non-commissioned officer rank. A person occupying the rank of Sergeant cannot be appointed a disciplinary officer under s 19 (1). However the Commissioner is given a discretion by s 19(1) by the use of the word "may": Tindiwi & Ors v Nilkare & Ors [1984] PNGLR 191. In this case he chose to appoint a non-commissioned officer to be the disciplinary officer and it is not shown that his decision was wrong. In practice the Commissioner delegates the functions of commissioned officers under s 19 to be performed by non-commissioned officers. In this case, the Commissioner delegated that function to Sgt. Kuiap who is a non-commissioned officer. It is not shown that his decision was wrong.

13. Counsel for the plaintiff submits there is no evidence the Commissioner delegated this function to Sgt. Kuiap. In the process, s 24 and 25 which prescribe the duties of a disciplinary officer are expressed in mandatory terms were breached.

14. The Act does not define the terms "officer", "commissioned officer", or " non-commissioned officer" of the Police Force. A "disciplinary officer" is defined in s 2 as the Commissioner of Police or a commissioned officer appointed under s 19. Section 156(a) provides for the Regulations to provide for the ranks, classes and grades of members of the Force. In 1998, the Police Act (Ch 65) was repealed and replaced by Police Act 1998. The Police Force Regulations (Ch 65) made under Police Act (Ch 65) continued to be in force by virtue of s 157(4) of Police Act 1998. Section 4 of the Regulations only provides for senior officer ranks commissioned officers. The "commissioned officer" ranks are Deputy Commissioner, Assistant Commissioner, Senior Superintendent, Superintendent, Inspector (First Class), Inspector (Second Class) and Inspector (Third Class). The Regulations do not provide for the officer ranks of non-commissioned officers. They could provide for in other Regulations or even administrative determinations which have not been brought to my attention by the respondents’ counsel, despite a number of adjournments granted for this purpose. In its absence, I accept the submissions made by the Director of Police Legal Services that the non-commissioned officer ranks are Chief Sergeant, Sergeant, and different ranks of constables. The rank of Chief Sergeant comes immediately under Inspector (Third Class).

15. In my view, Section 19(1) gives the Commissioner an independent discretion to appoint a commissioned officer as a disciplinary officer. Under this provision, its within the Commissioner’s discretionary power to appoint, by delegation or otherwise, an officer other than a commissioned officer, who is appropriately qualified and experienced, to perform the functions of a commissioned officer under Div. 3 (ss 23 – 25) of the Police Act. In the present case he chose to appoint a non- commissioned officer to investigate and report to him on a disciplinary matter involving members below his rank. The plaintiff and all the other policemen who were investigated were either constables or probationary constables and were below his rank. If a non-commissioned officer or a regular member of the Force of equal or lower rank to that of the plaintiff were appointed as a disciplinary officer to investigate the plaintiff, then valid questions would arise as to whether the discretion was properly exercised. The report Sgt Kuiap prepared for the Commissioner is a comprehensive and detailed one. It is evident from the formatting and contents of the report that it was prepared by someone who was knowledgeable and experienced in police disciplinary matters. It shows no signs of deficiency as one would expect of an unqualified and inexperienced officer. Although there is no evidence on any instrument of appointment appointing him as a disciplinary officer, I infer from the manner in which the process was followed including the Commissioner’s reliance upon the report that Sgt. Kuiap was duly appointed as a disciplinary officer.

16. In the case of Jimmy Simoi v Police Commissioner, which is a decision of mine relied upon by the Plaintiff, the issue of the discretion conferred by s 19 was not raised and determined because the proceedings therein were conducted ex parte. Now that the issue has been raised, my determination on this issue is determinative of the present application.

17. For these reasons I dismiss this ground of review.

18. Consequently, grounds 2, 3 and 4 which are premised on a favourable finding in ground 1, are also dismissed.

19. Having reached this view, it is unnecessary to consider other issues argued before me such as delay in bringing the application.

20. The formal order of this Court:

The application for judicial review is dismissed with costs to the respondents.

______________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Police Legal Services Division: Lawyer for the First Respondent
Solicitor-General: Lawyer for the Second Respondent