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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 171 OF 2004
BETWEEN:
JOHN UNIDO
Plaintiff
AND:
SAM INGUBA
COMMISSIONER OF POLICE
First Defendant
AND
JOHN MARU
DIRECTOR INTERNAL AFFAIRS
Second Defendant
AND
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant
Lae: Gabi, J
2008: 19th May
ADMINISTRATIVE LAW – Sections 23 & 24 of Police Act – Mandatory – Member entitled to receive copies of statements or reports if requested – Common law principle of right to be heard on penalty is excluded by implication.
Cases Cited
Dicky Nanan v John Maru & Police Commissioner (1997) N1507
Iambakey Okuk v Falscheer [1980] PNGLR 274
John Magaidimo v Commissioner for Police and State (2004) N2752
Philip Kamo v The Commissioner of Police & Ors (2001) N2084
Toll v Kibi Kara and Others [1990] PNGLR 71
Pierson Joe Kamangip v Bernard Orim & Ors (1998) N1695
Counsel:
J. Unido, in person
K. Isari, for the defendants
DECISION
19 May, 2008
1. GABI, J: Introduction: This is an application for an order in the nature of certiorari by way of a judicial review pursuant to Order 16 of the National Court Rules. Leave for judicial review was granted on 21st June 2004. This matter has come before me for substantive hearing.
Facts
2. Briefly, the facts were that on 14th October 2002 John Unido was served with 3 disciplinary charges. The charges are:
1. "Between the 24th to the 30th of May, 2002, you did leave your place of duty at Lae without authorized leave for the purpose of attending to administrative matters, which are within the knowledge and control of the Director Legal Services.
Thereby contravened section 20(1)(i) of the Police Force Act, 1998."
2. "Between the 22nd May, 2002 and the 30th of May, 2002, in Lae and Port Moresby, you did act in a manner by conduct which is prejudicial to good order and discipline in the Force in that you filed a Writ of Summons relating to administrative matters in which decisions have yet to be considered or made therein, against the Commissioner of Police and served the same on the Commissioners Legal Officers without first exhausting the administrative avenues available.
Thereby contravened section 20(1)(az) of the Police Force Act, 1998. "
3. "Between the 24th of May, 2002, and the 6th of June, 2002 at Port Moresby and Lae did improperly use his appointment as a member and Lawyer of the Police Force for the advantage of Benny Isaac in that he did receive and gave instructions in a Civil Court proceedings relating to OS No. 148 of 2002 – In the matter of Benny & Others v Tony Abio & others to Poro Lawyers.
Thereby contravened section 20(1)(af) of the Police Force Act, 1998."
3. Twelve (12) documents, which formed the basis of the charges, were also served on John Unido at the same time. When accepting the charges and the accompanying documents, John Unido demanded the relevant witnesses’ statements. On the service document the following request is noted: "I want witnesses’ statements so that I can rebut precise allegations properly... I will make a reply to the charges when I get all relevant witnesses’ statements." (See affidavit of John Unido dated 6th April 2004, paragraph 20 and annexure "P"). On 27th October 2002, he responded to the charges.
4. The disciplinary officer was Chief Inspector Anthony Mota. On 5th November 2002, he deliberated on the charges based on the evidence before him. He considered some 24 documents that were placed before him. He found that the charges were sustained and recommended John Unido’s demotion and dismissal from the Police Force. He forwarded the recommendations to Chief Superintendent John Maru, who endorsed them and forwarded the same to the Police Commissioner. The Police Commissioner found John Unido guilty and imposed 4 weeks forfeiture of pay. On 25th May 2003, the notice of penalty was served on John Unido.
Grounds
5. John Unido has applied for orders seeking: (i) to quash the decision relating to the conviction; (ii) to quash the decision on penalty; and (iii) to receive his full salary and entitlements. He relies on some 14 grounds and I set them out in full:
"(a) The first defendant did not sign the Notice of Penalty, which constitute the subject decision, and thereby the said finding of guilt & penalty on the three charges is null and & void ab Initio.
(b) The second defendant signed the Notice of penalty of the said three disciplinary charges, which is contrary to section 25 of the Police Force Act, and thereby acted ultra vires his powers.
(c) The service of the said three disciplinary charges were done while the plaintiff was officially on recreation leave, which is wrong in procedure, and an abuse of power.
(d) The plaintiff was served with the said charges by a person not holding senior position to the plaintiff, which is contrary to section 23 (3) (a) of the Police Force Act.
(e) The serving of the said three charges to the plaintiff was unreasonable because the hearing of the Plaintiff’s application for Judicial Review seeking an order inter alia, promotion to legal officer rank was pending before the National Court, which if granted, would be higher than the rank of the person serving the said charges.
(f) The investigation and the decision to lay the said three disciplinary charges is tainted with bias, and activated by ill will and malice.
(g) The first disciplinary charge is not an offence as stipulated under section 20 (1) (i) of the Police Force Act.
(h) There is no evidence to support the said three disciplinary charges.
(i) The plaintiff’s request for witness statements which may constitute better and further particulars of the said three charges were not adhered to, which is a breach of section 23 (3) (b) of the Police Force Act, and thereby amounts to denial of natural justice.
(j) The plaintiff’s evidence presented was not considered before arriving at the decision made, which no reasonable Tribunal would have done in the circumstances.
(k) The penalty was imposed without giving the plaintiff any opportunity to be heard on penalty.
(l) The findings of guilt and penalty were unreasonable, harsh and unfair in the circumstances of this case and no tribunal doing justice would have made the decision the defendants made.
The finding of guilt and penalty was based on irrelevant factors and that the plaintiff was denied a fair hearing.
(n) In all the circumstances of the case, the plaintiff was denied natural justice." (Sic).
6. The grounds for the application fall under 7 broad categories: (i) he was denied natural justice in that his request for witnesses’ statements under s.23 (3) (b) of the Police Act were not complied with, that the charges were determined without considering his reply and that he was not heard on penalty; (ii) the charges were served on him by a junior officer, which is contrary to s.23 (3) (a) of the Police Act; (iii) the notice of penalty was defective in that it was not signed by the Police Commissioner; instead it was signed by the Director Internal Affairs who had no power to do so under s.25 of the Police Act;; (iv) the complaint in the first charge is not a disciplinary offence under s.20 (1) (i) of the Police Act; (v) the laying of the charges was actuated by ill will and malice; (vi) that in the deliberations on guilt and penalty the defendants took into account irrelevant considerations; and (vii) that the decision was unreasonable, unfair and unjust in the circumstances.
Natural Justice
7. The main issue before the court which needs to be addressed in some detail is whether there was breach of natural justice. John Unido alleges that his request for documents were not complied with, that the charges were determined prior to his reply and that he was not heard on penalty.
8. Sections 23 and 24 of the Police Act provide:
"23. Dealing with serious offences
(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.
(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.
(3) On a charge being laid against a member of the Force that member shall –
(4). A charge or other documentation is deemed to have been furnished to a member under this section –
(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." (Emphasis added)
The Charge Document
9. The endorsement on the document which contains the charge is as follows:
"ROYAL PAPUA NEW GUINEA CONSTABULARY
SERIOUS DISCIPLINARY OFFENCE REPORT
Police Station:
Date:
File No:
REG NO:............. RANK:................... NAME: ......................
I, ..., being a Commissioned Officer authorised by the Commissioner of Police to lay charges as per section 19 Part IV of the Police Force Act 1998 and having reason to believe that you have committed a disciplinary offence other than that which is or is intended to be dealt with as a minor offence as per section 22 of the said Act, do hereby charge you as follows:
[Charge]
If you so desire the charge will be explained to you by a senior officer of police and in addition you are also entitled to be furnished with copy of all reports that are to be considered in relation to the charge. If you wish to have the charge explained to you and/or to be supplied with copy of the said reports, you should contact your Police Station Commander or Officer-In-Charge immediately. If any further report subsequently becomes available, a copy of this report shall be served on you and you shall have the right of reply to this.
You are invited to provide a response to this charge within 14 days if the charge has been served personally on you, or within 28 days if the charge has been posted to you as per Subsection 4(b) of Section 23 of the Police Force Act. You should provide in this response any explanation you desire in regard to the charge and should also provide any submission you may wish to make in relation to penalty should the charge be sustained.
If a response is not provided by you within 14 days of your being served personally with a copy of this charge, or within 28 days of a copy of this charge being mailed to you as per Subsection 4(b) of Section 23 of the Police Force Act, you will be deemed to have denied the truth of this charge.
.........................................
Signature of Charging Officer."
Proof of Service
10. The endorsement on the back of the charge document which is required to be completed by the person serving the charge is in these terms:
"PROOF OF SERVICE
PATI JACK
states:
(full name of member serving charge)
at 9:30 am on the 14th day of October 2002 I interviewed the accused member at Lae prosecution Section (insert location)
I said "State your full name and rank and number".
He said "JOHN UNIDO – CONSTABLE
I then served a copy of the charge on the member, together with a copy of the evidence in support of the charge.
I said "Do you understand the charge?"
He said "Yes"
I said "Do you wish me to explain this charge to you?"
He said "Yes"
I then explained the charge to the member (delete if not applicable)
I said "Do you admit or deny the charge?"
He said "Deny the charge"
I said "Do you wish to give any explanation in relation to this charge?"
He said "I want witnesses’ statements so that I can rebut precise allegations property.
I said "If you so desire you may provide a written explanation to me within 14 days. This document should include any explanation that you may wish to give and should also include any submission you may wish to make to the Commissioner in relation to penalty in the event that the charge is sustained. Do you understand this?"
He said "Yes"
I said "Is there anything else you wish to say in relation to this charge?
He said "I will make a reply to the charge when I get all relevant witnesses statements".
Signature of Member Serving Charge:
................................
NAME OF SERVING MEMBER: PATI JACK
NUMBER: P4442
RANK: INSPECTOR
Signature of Accused Member: .............................."
11. Twelve (12) documents were provided to John Unido together with the 3 charges. When receiving the charges, John Unido requested the witnesses’ statements so as to enable him to respond adequately to the charges. Anthony Mota deposed that he based his decision on 24 documents that were before him. I note that 4 documents that were relevant to the charges were never made available to John Unido. They are: (i) an internal minute dated 2nd September 2002 to the Director Legal Branch from Richard Saronduo (annexure "J"); (ii) an internal minute dated 31st July 2002 to the Director Legal Services from Hodges Ette (annexure "U"); (iii) the statement of Hodges Ette dated 25th August 2002 (annexure "W"); and (iv) a letter dated 12th June 2002 to Metropolitan Superintendent from Mr. L. Lamei (annexure "X") (see affidavit of Anthony Mota sworn on 30th August 2004).
12. It is clear to me that these documents were relevant to the charges and were available before the determination of the charges. John Unido requested that he be furnished with all documents pertaining to the charges. The evidence is that only 12 documents were made available to him. The 24 documents, which were before Anthony Mota, ought to have been made available to him. I am of the view that sections 23(3) and 24 (4) of the Police Act are mandatory. The defendants breached section 23(3)(b) of the Police Act.
13. John Unido alleges that the Commissioner of Police deliberated on the charges prior to receiving his reply. The evidence before me shows that the charges were served on 14th October 2002. John Unido responded to the charges 14 days later and on 5th November 2002 Anthony Mota forwarded his findings and recommendations to John Maru. I am unable to find that John Unido’s reply was not considered before the decision was made.
14. It is not disputed that the penalty was imposed without giving John Unido the opportunity to be heard on penalty. The question is whether a person found guilty of a disciplinary offence is entitled to be heard on penalty. There is no provision in the Police Act which requires that a person affected must he heard on penalty. In the serious disciplinary offence report (i.e. the charge document), I note the following instructions:
"You are invited to provide a response to this charge within 14 days if the charge has been served personally on you, or within 28 days if the charge has been posted to you as per Subsection 4(b) of Section 23 of the Police Force Act. You should provide in this response any explanation you desire in regard to the charge and should also provide any submission you may wish to make in relation to penalty should the charge be sustained." (Emphasis added).
15. There is a common law rule that in disciplinary proceedings where the penalty is not automatic and the decision maker has discretion in fixing the appropriate penalty the person affected is entitled to be heard on penalty. In Toll v Kibi Kara and Others [1990] PNGLR 71, a lawyer was found guilty of improper conduct by the Lawyers Statutory Committee, which imposed a penalty without giving him an opportunity to address it on the question of penalty. On appeal, His Honour, Hinchliffe J. held that the lawyer was entitled to be heard on the question of penalty. He said at 75:
"I am quite satisfied on the evidence that the Committee did not give Mr Toll an opportunity to address it on penalty. To my mind, that is a denial of natural justice and therefore the Committee has not complied with s53(1) of the Lawyers Act 1986 which provides:
The Committee shall determined its own procedures when enquiring into complaints of improper conduct, but shall observe the rules of natural justice in carrying out an enquiry.
The Committee, after finding Mr Toll guilty of the charges against him, penalized him. It did it in his absence without inviting him to address it on penalty.
Hotop, Principles of Australian Administrative Law, 6th ed (1985), at 199-200, reads as follows:
‘In the case of a disciplinary proceeding, where, after a finding of guilt, the penalty is not automatic and the decision-maker has a discretion in the fixing of the appropriate penalty, the person affected is entitled to be given the opportunity to be heard separately on the question of penalty even in the case of a non-statutory domestic body: Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Calwin v Carr [1977] 2 NSWLR 308 at 337.’"
16. This was followed by Gavara –Nanu J. in John Magaidimo v Commissioner for Police and State (2004) N2752. His Honour made reference to Toll v Kibi Kara & Ors (supra) and concluded:
"The Police Force Act does not specially express the need to observe principles of natural justice, but it is clear that the principles of natural justice had to be accorded to the plaintiff, especially when the penalty imposed was the maximum and where the first defendant had the discretion in deciding on the appropriate penalty for the plaintiff."
17. In Philip Kamo v The Commissioner of Police & Ors (2001) N2084, Injia J. (as he then was) was of the view that conviction and penalty are 2 different processes and a person affected must be heard on both conviction and penalty. He said:
"In my view, it is only a natural extension of the principle of the audi alteram partem leg of the principle of natural justice adopted in Section 59 of the Constitution, and applied in such cases as Kelly Yawip and Pierson Joe Kamagip that the opportunity to address on penalty be given at the appropriate time; before the punishment is determined and pronounced. This opportunity follows a finding of guilt on the charge and it is separate from the first opportunity to reply to the charge given when the charge is first served on the member. The issues of liability and penalty are inseparable facets of the disciplinary process and it would seem quite absurd that whilst the member charged is given an opportunity to be heard on the issue of conviction, he is not heard on the issue of penalty. It is clear to me that the Police Commissioner has wide discretion to consider a range of penalties ranging from a reprimand to dismissal, and it is only fair and just that before exercising his discretion as to what punishment to impose, he should inform the member that he has been found guilty on the charge and invite the member to address him on penalty. Just as the opportunity to be heard on conviction is fundamental, so is the opportunity to be heard before penalty is imposed so fundamental to a fair hearing in a disciplinary hearing. Failure to observe this basic requirement of natural justice will inevitably invalidate the penalty imposed."
18. Kapi DCJ (as he then was) held a different view in Pierson Joe Kamangip v Bernard Orim & Ors (1998) N1695. His Honour discussed the decision in Toll v Kibi Kara & Others (supra) and concluded:
"The decision in Toll v Kibi Kara (supra) can be distinguished from the present case. That was a case involving different legislation and its provisions, and in particulars 53(1) expressly adopts the principles of natural justice. With respect I am unable to agree with the conclusion reached by Hinchliffe J. that the principle in Toll v Kibi Kara (supra) is applicable to disciplinary proceedings under the Police Force Act (see Barrnabas Isoro v Commissioner of Police & The State (supra) and Peter Wapuan v The Police Appeal Tribunal (supra). There is no equivalent of s53(1) of the Lawyers Act in the Police Force Act.
The proper approach in determining the issue in the present case is to consider whether as a matter of construction of the Police Force Act, the principle of natural justice may be implied before sentence is imposed. This is the same approach taken by Injia J. in Dicky Nanan v John Maru & Police Commissioner (supra) in relation to whether or not a member is entitled to receive copies of statements or reports which form the basis of the charge. I have already concluded (following Injia J.) that by necessary implication of Police Force Act (s46), a member charged with a disciplinary offence is not entitled to be served with the evidence, information and reports which form the basis of the charge. It follows from this that there can be no assumption that the principles of natural justice apply.
I have reached the conclusion in construing the whole of s46 that the legislature intended to regulate the procedure of disciplinary hearings by the provisions of the Act. The provision set out in detail what is to take place. Where the provision excludes what may be regarded as common law principles of natural justice either expressly or otherwise, they will not be implied by the Court. That is the rationale of the decision in Dicky Nanan v John Maru & Police Commissioner (supra) with which I agree. If the legislature intended that a member should be given an opportunity to make any comment before penalty is imposed, it would have provided that the member should be invited to make any comments before penalty is imposed in the same way he is given an opportunity to make a reply or give an explanation under s46(3)(b). The provision goes on in s46(5) to simply require that member be notified of the penalty that is imposed. There is no provision for the member to respond before penalty is imposed. I find that by necessary implication s46 excludes any such right in the member to make any comments before penalty is imposed."
19. A principle of common law may be modified, varied or excluded by a statute. Where a statute confers power upon a person to dismiss a person from a position, the rules of natural justice and standards of fairness recognised by common law will be applied unless there is legislative intent to exclude the rules of natural justice (see Iambakey Okuk v Falscheer [1980] PNGLR 274 and Dicky Nanan v John Maru & Police Commissioner (1997) N1507).
20. Section 23 (3) is quite clear. It provides that a person charged must be promptly served with the charge and the reports that are to be considered in relation to the charge and be invited to reply to the charge within a certain period. There is no provision in the Police Act which entitles the person affected to be heard on penalty. I am of the view that the common law rule that a person is entitled to be heard on penalty in disciplinary proceedings is by necessary implication excluded. It does not apply and I cannot imply that in the Act. Accordingly, I find that John Unido was not entitled to be heard on penalty.
21. In passing I wish to comment that the scheme of administration of disciplinary charges under the Police Act ensures that an affected person comments on penalty. A person charged with a disciplinary offence is asked to make submission on penalty at the time the reply to the charge is prepared. Although there is no requirement under the law the process affords the person charged with a disciplinary offence an opportunity to comment on penalty.
Service and explanation of charge
22. John Unido alleges that section 23 (3) (a) of the Police Act was breached in that the charge was served and explained to him by a junior officer. There are 2 requirements: (i) the charge must be served promptly; and (ii) the charge must be explained by a senior officer to the member if he so desires. To my mind, section 23 (3) (a) is mandatory.
23. The charges were served on John Unido by Inspector Jack Pati on 14th October 2002 at the Lae Police Station. The evidence before me is that John Unido agreed for the charges to be explained and was in fact explained to him by Inspector Jack Pati (see affidavit of John Unido dated 6th April 2002, paragraphs 18 and 20 and annexure "P"). The evidence is that John Unido was a Constable at the time the charges were laid. I am unable to find that Inspector Jack Pati was junior in rank to John Unido and that he breached section 23 (3) (a) of the Police Act.
First charge
24. John Unido claims that the first charge is not a disciplinary offence. I am unable to agree. It is clear to me that John Unido left Lae for Port Moresby without approval from his superiors. As such, it is a proper charge under the Police Act.
Notice of Penalty
25. John Unido alleges that John Maru had no power to sign the notice of penalty. I am satisfied after perusal of the Instrument of Delegation dated 30th November 1999 that John Maru had authority to sign the notice of penalty.
Malice
26. It was contended that the laying of the charges by the Police Commissioner was actuated by ill will and malice. There is no evidence to show that there was malice involved in the laying of the charges.
Unreasonableness
27. I am unable to agree with John Unido that the decision of the Police Commissioner was unreasonable, unfair and unjust in the circumstances.
Irrelevant considerations
28. I am unable to find that irrelevant factors were taken into account by the defendants in their deliberations on the charges.
Conclusion
29. I am of the view that there has been a breach of section 23 (3) (b) of the Police Act, which is mandatory. Failure to comply renders the decision on conviction and penalty invalid. Accordingly, I quash the conviction and penalty. I make the following orders:
1. The plaintiff is to be paid the salary and entitlements he lost;
2. Costs of the proceedings are awarded to the plaintiff;
3. Interest at 8% on the lost salary and entitlements from the date of filing of the Originating Summons to the date of payment.
____________________________________
Plaintiff in person
Police Legal Services: Lawyers for the Defendants
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