N3300

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 330 OF 2002

JEFFREY AFOZAH
Plaintiff

V

THE POLICE COMMISSIONER
First Defendant

THE DEPARTMENT OF POLICE
Second Defendant

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2008: 11 January &
7 April

JUDICIAL REVIEW – disciplinary proceedings – review of decision of Commissioner of Police to find police officer guilty of disciplinary offence – natural justice – taking into account irrelevant considerations – reasons for decision not corresponding with charge laid.

The Commissioner of Police charged the plaintiff, a police officer, with a serious disciplinary offence: being absent from duty without authorised leave for a period of three months and ten days. He found him guilty and dismissed him from the Police Force. The plaintiff sought judicial review on the grounds that (1) as to the guilty finding, the Commissioner (a) denied him natural justice by not considering his written reply to the charge and (b) took into account irrelevant considerations; and (2) as to the decision to dismiss him, the Commissioner (a) denied him natural justice by not giving him the opportunity to be heard on the question of penalty and (b) took irrelevant considerations into account.

Held:

(1)	As to the decision to find the plaintiff guilty:

(a)	there was no denial of natural justice as, although the Commissioner did not consider the plaintiff’s reply to the charge, the plaintiff could not prove that he served it on the Commissioner;

(b)	the Commissioner erred in law by taking into account an irrelevant consideration, viz that the plaintiff was absent from duty for six months, when the charge alleged that he was absent for three months and ten days.

(2)	As to the decision to find the plaintiff guilty:

(a)	there was no denial of natural justice as the Commissioner is not obliged, having found an officer guilty of a disciplinary offence, to grant a separate hearing on penalty;

(b)	the Commissioner erred in law by taking into account irrelevant considerations, viz recommendations for dismissal from two senior officers under whose command the plaintiff had never served, the six month absence finding and a finding that the plaintiff was a "repeat offender" when there was no evidence of that.

(3)	The error of law made in the decision to find the plaintiff guilty was a significant one, warranting the quashing of that decision.

(4)	The error of law made in the decision to dismiss the plaintiff was also significant and warranted quashing the penalty of dismissal.

(5)	The court quashed the decision that the plaintiff was guilty of a disciplinary offence and the decision that he be dismissed, and ordered that he be reinstated as a member of the Police Force and paid back-pay.

Cases cited:

Clement Kilepak v Ellison Kaivovo (2003) N2402
George Kakas v Commissioner of Police, SCM No 17 of 2005, 29.07.07
Gideon Barereba v Margaret Elias (2002) N2197
Jeffrey Afozah v Commissioner of Police, Police Department and The State, OS No 330 of 2002, 26.02.04
Jeffrey Afozah v Commissioner of Police, Police Department and The State, SCM No 2 of 2004, 01.09.06
John Magaidimo v Commissioner of Police (2004) N2752
Kita Sapu v Commissioner of Police (2003) N2426
Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797
Morobe Provincial Government v Minister for Village Services (1994) N1215
Mudge v Secretary for Lands and Others [1985] PNGLR 387 
Paul Pora v Commissioner of Police (1997) N1569
Paul Saboko v Commissioner of Police (2006) N2975
Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123
Peter Luga v Richard Sikani (2002) N2285
United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185

JUDICIAL REVIEW

This was an application for judicial review of the decisions of the Commissioner of Police to find the plaintiff guilty of a disciplinary offence and to dismiss him from the Police Force.

Counsel

R Uware, for the plaintiff
P Ifina, for the defendants

7 April, 2008

1	CANNINGS J: This is a ruling on an application for judicial review of the decisions of the Commissioner of Police to find the plaintiff, Jeffrey Afozah, guilty of a disciplinary offence and to dismiss him from the Police Force.

2	Mr Afozah passed out of Bomana Police College and became a member of the Royal Papua New Guinea Constabulary (the Police Force) in 1986. He was posted to Kimbe police station, West New Britain. He was promoted to Senior Constable in 1992. He was stationed at Kimbe until his dismissal from the Force. On 18 July 1998 he was charged with a disciplinary offence: being AWAL (absent from duty without authorised leave) for a period of three months and ten days, from 27 March to 6 July 1998.

3	The Commissioner of Police found him guilty and imposed the penalty of dismissal. Those decisions were conveyed to the plaintiff by an undated ‘notice of penalty of serious disciplinary offence’ served on him on 28 February 2001. He had been taken off the payroll on 26 September 2000.

GROUNDS OF REVIEW

4	Mr Afozah is challenging both the decision to find him guilty and the decision to impose the penalty of dismissal. He says that the Commissioner made errors of law in reaching both decisions.

5	As to the decision that he was guilty, he argues that the Commissioner erred in law by:

•	denying him natural justice by not considering his written reply to the charge; and

•	taking irrelevant considerations into account, in particular by concluding that he was absent from duty for six months, when the charge alleged that he was absent for only three months and ten days.

6	As to the decision to dismiss him, the plaintiff argues that the Commissioner erred in similar ways to the decision to find him guilty, by:

•	denying him natural justice and not giving him the opportunity to be heard on the question of penalty; and

•	taking irrelevant considerations into account, in particular, recommendations for dismissal from two senior officers (the Highlands Divisional Commander and the Chimbu PPC) under whose command the plaintiff had never served, the finding that he was absent for six months and a finding that the plaintiff was a "repeat offender" when there was no evidence of that.

PRELIMINARY POINT

7	Before dealing with the grounds of review I need to address a preliminary point raised by the defendants’ counsel, Mr Ifina. He submitted that the first two defendants, the Commissioner of Police and the Department of Police, have been improperly named as neither of them have a legal personality. The office of Commissioner is just an office, and cannot sue or be sued. Only the holder of the office has legal personality and in this case that person was at the relevant time, Mr John Wakon. As for the Department, it is an administrative creation and also cannot sue or be sued. Mr Ifina cited the National Court decision of Brown J in United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185 and the Supreme Court’s decision in Mudge v Secretary for Lands and Others [1985] PNGLR 387 in support of this proposition.

8	This might be a valid procedural point but I would not put it any higher than that. It is not something that affects the jurisdiction of the court or something that prevents the court from determining the application for judicial review. It is something that should have been addressed and corrected if necessary a long time ago.

9	This case has a long history. The application for judicial review was originally heard, and refused, by Bidar AJ in the National Court at Kimbe in February 2004 (Jeffrey Afozah v Commissioner of Police, Police Department and The State, OS No 330 of 2002, 26.02.04). Mr Afozah appealed to the Supreme Court. His appeal was heard by Injia DCJ, Jalina J and Gavara-Nanu J in November 2005 and upheld in September 2006 (Jeffrey Afozah v Commissioner of Police, Police Department and The State, SCM No 2 of 2004, 01.09.06). The matter came before me for directions in Kimbe in 2007 and I transferred the case to Waigani to make it convenient for the parties’ counsel. The matter was set for hearing in Waigani on 18 December 2007 and on that day I granted an application for adjournment and gave further directions to expedite the hearing.

10	In all that time no issue was taken about the legal personality of the defendants. No motion has been filed regarding this issue. It is something that has arisen at the last minute at the trial. It would be most unjust, in these circumstances, to decide the case against the plaintiff on this rather technical and procedural ground. Besides that, I query whether, in judicial review applications, it prejudices anybody to have the defendant named as an office rather than the person who actually made the decision under review. In fact it might even be preferable. It strikes me as being much ado about nothing. I dismiss the preliminary point and will proceed to determine the grounds of review.

THE DECISION TO FIND THE PLAINTIFF GUILTY

Was there a denial of natural justice?

11	Mr Uware, for the plaintiff, submitted that the Commissioner made his decision without considering the plaintiff’s response to the charge, which was put in writing and posted to Police headquarters; and the failure to consider the response amounted to a denial of natural justice.

12	Mr Afozah says that he responded in a letter dated 18 July 1998 claiming that the charge – that he was AWAL from 27 March to 6 July 1998 – was factually flawed. He says that he was:

•	on duty from 27 March to 3 April;
•	under suspension without pay from 3 April to 14 May;
•	on duty from 14 May to 26 June;
•	on leave to sort out a personal problem from 26 June to 3 July;
•	locked in the police cell on 4 and 5 July, under a District Court order regarding a compensation claim;
•	in custody at Lakiemata Jail from 6 to 13 July under the same District Court order;
•	reported for duty on 14 July, when he was served with the charge.

13	If it was clear that the response was given to the Commissioner it would be easy to establish a denial of natural justice. The trouble is, as pointed out by the Supreme Court in Mr Afozah’s appeal against the judgment of Bidar AJ, it is not clear that the Commissioner received the response. All that is before the court is an affidavit by Mr Afozah that on 19 July 1998 he posted the letter at Kimbe post office by registered mail. But he does not have a mail receipt or any other document to back up his claim. That is not good enough. I find that there is insufficient evidence that the plaintiff gave his response to the Commissioner. Therefore there has been no denial of natural justice.

Were irrelevant considerations taken into account?

14	Mr Uware pointed out that in the ‘notice of penalty for serious disciplinary offence’ the Commissioner remarked that "the period you absented yourself is six months and you were getting paid for doing nothing".

15	I agree that this is an error as the charge was only that he was AWAL for three months and ten days. In George Kakas v Commissioner of Police, SCM No 17 of 2005, 29.07.07, Hinchliffe J, Cannings J, David J, the Supreme Court emphasised the importance of focussing on the actual charge that is laid against a member of a disciplined force. The Court said:

If the reasons for finding an officer guilty show that the decision-maker has focussed on matters other than those made the subject of the charge and/or has failed to consider the officer’s explanation, the decision to find the officer guilty will be made in error, in that it will constitute a denial of natural justice.

16	In that case, a police officer was charged with failing to take proper security of a pistol, which was a court exhibit, which resulted in it being stolen from him. In the course of deliberating on the charge, the Commissioner made a number of adverse findings against the officer that were not part of the charge: that he was unlawfully in possession of the firearm, should not have taken the firearm in the first place, was not authorised to take it and acted contrary to police procedures. The Supreme Court held that the officer had not been given the opportunity of replying to those serious allegations so there had been a denial of natural justice. The decision to find him guilty and the decision to dismiss him were quashed.

17	Applying that principle to this case, Mr Afozah was not given the opportunity of responding to the allegation that he was AWAL for six months. The Commissioner has not focussed on the charge, he has gone beyond it. There has been a denial of natural justice. Also, to put it in the terms of the plaintiff’s grounds of review, the Commissioner took into account an irrelevant consideration. Either way the plaintiff has proven that the Commissioner made an error of law.

THE DECISION TO DISMISS THE PLAINTIFF

Was there a denial of natural justice?

18	The argument is that if the Commissioner finds a member guilty of a disciplinary offence, he must notify the member of the finding and give him a right to be heard on the question of penalty.

19	This is what happens in a criminal court. If an accused person is found guilty a separate sentencing hearing is conducted. The convicted person has the opportunity through the allocutus of addressing the court and the lawyers make submissions on the sentence. It is a fair procedure but it is not necessary to adopt it when dealing with penalties for a disciplinary offence (as distinct from a criminal offence) in a disciplined force. In Kita Sapu v Commissioner of Police (2003) N2426, Kirriwom J surveyed the authorities on this issue and reached that conclusion and I did likewise in Paul Saboko v Commissioner of Police (2006) N2975.

20	Police officers found guilty of a disciplinary offence do not have a right to a separate hearing on the question of penalty. So there was no denial of natural justice.

Were irrelevant considerations taken into account?

21	Mr Uware submitted that the Commissioner took a number of irrelevant considerations into account when deciding to impose the penalty of dismissal, which are apparent from considering the reasons he gave for imposing that penalty. After pointing out that absenteeism is a serious problem in the Constabulary and that Mr Afozah’s actions had set a bad example, as a senior non-commissioned officer, to up and coming members of the Constabulary, the Commissioner continued:

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 the imposition of this penalty are as follows:

Divisional Commander Highlands recommended dismissal as penalty.

Provincial Police Commander Chimbu recommended the penalty of dismissal from the Constabulary.

The period you absented yourself is six months and you were getting paid for doing nothing. This reflects you have no interest in serving any more. Getting paid for doing nothing is like stealing from the taxpayers and from the State. Therefore dismissal was recommended as penalty.

You are a repeated AWAL offender and your disciplinary records revealed you cannot be reformed. Therefore you are a liability to the Constabulary and not an asset. Therefore I concur with the penalty of dismissal.

The penalty of dismissal is appropriate and consistent with past penalties imposed for similar matters. 

22	Mr Uware submitted that the above passage provides evidence of three irrelevant considerations:

•	recommendations from senior officers under whose command Mr Afozah had never served;

•	the finding that he had absented himself for six months;

•	the comment that he was a repeat offender.

23	On the basis of the evidence before the court, I uphold the submission that they were irrelevant considerations.

24	There was no evidence that Mr Afozah had served under the Highlands Divisional Commander or the Chimbu PPC and those officers were not named. Mr Afozah had always been stationed at Kimbe.

25	As to the finding that he had absented himself for six months, I have already found that it was an irrelevant (and probably false) consideration that was taken into account in deciding to find Mr Afozah guilty; and it was also improperly taken into account when deciding on the penalty.

26	As for the repeat offender comment, this was a gratuitous and vague finding, made without any factual basis and therefore an irrelevant consideration.

27	The plaintiff has proven an error of law.

SUMMARY OF DETERMINATION OF GROUNDS OF REVIEW

28	To sum up:

(1) 	As to the decision to find the plaintiff guilty:

(a)	there was no denial of natural justice; but

(b)	the Commissioner erred in law by taking into account an irrelevant consideration, viz that the plaintiff was absent from duty for six months, when the charge alleged that he was absent for three months and ten days.

(2) 	As to the decision to impose the penalty of dismissal:

(a)	there was no denial of natural justice; but

(b)	the Commissioner erred in law by taking into account irrelevant considerations, viz recommendations for dismissal from two senior officers under whose command the plaintiff had never served, the six months absence finding and a finding that the plaintiff was a "repeat offender" when there was no evidence of that.

29	Both the decision to find the plaintiff guilty and the decision to dismiss him were infected by errors and are therefore ripe for judicial review.

WHAT RELIEF, IF ANY, SHOULD BE GRANTED?

30	The next question is: what remedies should the court grant? This sort of issue was explained by the Supreme Court (Jalina J, Cannings J, Manuhu J) in Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797 in these terms:

It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

… in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the … proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.

31	The starting point is to look at the decision and the nature of the errors of law that the court has identified.

32	The error of law made in the decision to find the plaintiff guilty was a significant one, warranting the quashing of that decision. It follows that the decision to dismiss the plaintiff from the Police Force, which was based on the guilty finding cannot stand and will also be quashed.

33	The error of law made in the decision to dismiss the plaintiff is also significant and, by itself, warrants quashing the penalty of dismissal. I would have reached that conclusion, even if the finding of guilty had not been quashed.

34	The next issue is whether I should remit the matter to the first defendant, the Commissioner of Police, and direct that he re-make his decision whether to find the plaintiff guilty in accordance with law (ie an order in the nature of the prerogative writ of mandamus). Or whether I should simply order that the plaintiff be reinstated. As the Supreme Court indicated in Asiki the former remedy is a more classical style of order for judicial review and faithful to the common law pedigree of this area of administrative law, which suggests that the courts should refrain from entering the arena of the executive arm of government. There is, however, a considerable body of case law showing that the courts in Papua New Guinea have not been reluctant to take the latter approach, particularly in regard to public servants who have been dismissed from office as a result of a decision-making process found to have been unlawful. For example in Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123 the court ordered the reinstatement of a hospital pharmacist who had been unlawfully dismissed even though he had not asked to be reinstated.

35	I consider that the interests of justice require that the plaintiff be reinstated to his former position or to an equivalent position and I will make an order accordingly.

36	The final issue is back-pay. Should the plaintiff be compensated for the loss of salary and other entitlements he incurred from the date of his dismissal to the date of his reinstatement? By the time that he is reinstated this will be a period of seven and a half years.

37	As the Supreme Court emphasised in Asiki all remedies in judicial review proceedings are discretionary. If a person succeeds in establishing that he has been unlawfully dismissed from public employment and that he should be reinstated it does not necessarily follow that the court will order back-pay, ie payment of salary and other emoluments lost in the period since dismissal. Different approaches have been taken in the past.

38	On the one hand the courts have stressed that dismissed public officials who succeed in judicial review should not necessarily receive a windfall gain, ie ‘get paid for doing nothing’, if they are reinstated by order of the court. Cases in this category include: Paul Pora v Commissioner of Police (1997) N1569, National Court, Injia J; and Gideon Barereba v Margaret Elias (2002) N2197, National Court, Sevua J.

39	On the other hand there is a group of cases where the courts have ordered that the public official be both reinstated and paid salary and other emoluments lost by being unlawfully dismissed. Cases in this category include: Morobe Provincial Government v Minister for Village Services (1994) N1215, National Court, Salika J; Peter Luga v Richard Sikani (2002) N2285, National Court, Sakora J; Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; and John Magaidimo v Commissioner of Police (2004) N2752, National Court, Gavara-Nanu J. Asiki’s case ultimately fell into this category.

40	In the circumstances of this case I will take a centreline approach that balances the conflicting interests at play. On the one hand, the court can show some compassion to someone like the plaintiff who has been fighting his case for many years and ultimately won a judicial review after being unlawfully dismissed. On the other hand, I do not feel comfortable in ordering that a considerable sum of public money be paid to someone who has not been gainfully employed by the State for seven and a half years.

41	I will exercise my discretion by ordering that the plaintiff be paid a sum of money equivalent to the salary and emoluments payable in respect of the position he held or its equivalent, in the period from the beginning of the year in which his first application for judicial review was heard – 1 January 2004 – to the date of his reinstatement. I consider that that is a just outcome. I will make the order subject to further assessment by the National Court.

JUDGMENT

42	I grant the application for judicial review and direct entry of judgment in the following terms:

(1)	the decision of the first defendant, the Commissioner of Police, conveyed by the undated "Notice of penalty for serious disciplinary offence", served on the plaintiff, Jeffrey Afozah, in February 2001, finding the plaintiff guilty of a serious disciplinary offence, is quashed;

(2)	the decision of the first defendant, the Commissioner of Police, conveyed by the undated "Notice of penalty for serious disciplinary offence", served on the plaintiff, Jeffrey Afozah, in February 2001, dismissing the plaintiff from the Police Force, is quashed;

(3)	the first defendant, the Commissioner of Police, must reinstate the plaintiff to his former or an equivalent rank or position in the Police Force, or if his former or equivalent rank or position is unavailable he must be reinstated in a way that makes him an unattached officer and in either case he must from the date of reinstatement be paid salary and other emoluments at a level equivalent to those paid in respect of his former rank or position;

(4)	reinstatement of the plaintiff must be effected within 60 days after the date of entry of this judgment;

(5)	the Commissioner of Police and the State must pay to the plaintiff a sum of money equal to the salary and emoluments, less tax, payable in respect of the rank or position he held or an equivalent rank or position, in the period from 1 January 2004 to the date of his reinstatement; 

(6)	for purposes of assessment of that sum this matter shall be remitted to the National Court at Kimbe and the Registrar of the National Court or his delegate shall set the matter down for hearing for those purposes within 60 days after the date of entry of this judgment;

(7)	costs of these proceedings are to be paid by the Commissioner of Police and the State to the plaintiff on a party-party basis, to be taxed if not agreed. 

Judgment accordingly.
_________________________

Public Solicitor: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendants