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Gwasamun v Commissioner for Police [2010] PGNC 18; N3902 (22 February 2010)

N3902

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 267 OF 2003

BETWEEN

SAMUEL GWASAMUN
Applicant

AND

THE COMMISSIONER FOR POLICE
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Mount Hagen: Makail, J
2008: 18th June &
2010: 22nd February

JUDICIAL REVIEW - Application for judicial review - Dismissal of member of police force - Finding of guilt following serious disciplinary charge - Threatening behaviour towards fellow members of police force - Exercise of statutory powers - Finding of guilt - Imposition of penalty of dismissal - Unreasonableness - Procedural ultra vires or impropriety - Breach of natural justice - Actual bias - Severity or excessiveness of penalty - Police Act, 1998 - Sections 19, 20(1(q), 23, 24, 25 & 26.

PRACTICE & PROCEDURE - Pleadings - Grounds of review - Statement in support - Mandatory - Failure to plead - Effect of National Court Rules - Order 16, rule 6(1).

Cases cited in this judgment:

Papua New Guinean cases cited:
John Korul -v- Simon Kauba, Tony Wagambie & The State (2008) N3506
Rose Kekedo -v- Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122
Jerry Magira -v- National Forest Authority (2009) N3670
Simon Opa & Mount Hagen Park Secondary School -v- Hans Gima, Chairman of Western Highlands Provincial Education Board & Ors (2008) N3343

Overseas cases cited:
Associated Provincial Picture House -v- Wednesbury Corporation [1948]1KB 223

References:
Michael A Ntumy’s Administrative Law of Papua New Guinea, Cases, Materials and Text, CBS Publishers & Distributors, (2nd ed 2003)

Counsel:

Mr R Lains, for the Applicant
Mr G Odu, for the Respondents

JUDGMENT

22nd February, 2010

1. MAKAIL, J: This is an application for judicial review pursuant to Order 16 of the National Court Rules of the decision of the first respondent to find the applicant guilty of a serious disciplinary offence and dismissing him from the Police Force on 3rd January 2003. Leave to review the decision was granted by the Court on 21st July 2003 but the substantive application was not heard until 19th June 2008. After receiving all the affidavits from both parties, I directed the applicant’s lawyers to file and serve their written submission on the respondents by or before 27th June 2008 and the respondents’ lawyers to do likewise by or before 11th July 2008.

2. I have received a written submission from the applicant’s lawyers on 30th July 2008 and thank Mr Lains of counsel for his assistance. But I have not received any from the respondents’ lawyers. I have decided not to further delay my decision and this is my decision.

Evidence

3. In support of the application, the applicant relies on the following affidavits:

1. His supplementary affidavit in support sworn on 27th September 2004 and filed on 30th September 2004, (exhibit "P1");

2. Affidavit of Sampson Siguyaru sworn on 13th December 2004 and filed on 5th January 2005, (exhibit "P2"); and

3. Affidavit of Jimmy Onopia sworn on 19th October 2004 and filed on 5th January 2005, (exhibit "P3").

4. The respondents rely on the affidavit of Benjamin Tovili sworn on 7th April 2005 and filed on 12th April 2005, (exhibit "D1").

Background facts

5. From these affidavits, I deduce the undisputed facts as follows; the applicant is an adult male aged 40 years at trial and comes from Gabadik village in Boana of the Morobe Province. He joined the Police Force and was serving at Mt Hagen of the Western Highlands Province as a Senior Constable attached to the Task Force Section when he was dismissed on 03rd January 2003.

6. Prior to his dismissal, he was charged with a serious disciplinary offence. It was alleged that, on 19th June 2002 at Mt Hagen, he behaved in an oppressive manner towards another member of the Police Force, namely Chief Sergeant Charles Kami and other members when he pointed a loaded gun at them and shouted abusive words, thereby contravening section 20(1)(q) of the Police Act, 1998. The alleged serious disciplinary offence occurred during the 2002 National General Elections in Mt Hagen where members of the police were manning ballot boxes for candidates for elections at the Mt Hagen Police Station.

He was served with a serious disciplinary charge on 01st July 2002. At the same time, he was served witnesses’ statements of Reserve Sergeant John Kouse, Reserved Chief Sergeant Charles Kami and Senior Constable Pat Kunjil. He was also suspended from duty for 21 days. On 10th July 2002, he replied to the serious disciplinary charge by faxing his reply to PHQ at Konedobu and later, by posting the original. With the reply, he attached nine witnesses’ statements. These witnesses were Constable Charles Maliwolo, Constable Ronnie Mitau, Constable John Lun, Constable Fred Kaman, Constable Orim Piupiu, Constable Midave Midave, Constable Phil Undaba, Senior Inspector Billie Anton and Returning Officer Allan Alam.

8. He denied the charge. He said, he neither verbally abused Chief Sergeant Kami and other members on that date nor threaten them with a loaded firearm. On 24th September 2002, the adjudicator of the respondents, Chief Sergeant Benjamin Tovili adjudicated the serious disciplinary charge and made a recommendation to the first respondent.

9. Based on the recommendation, the first respondent was satisfied that the alleged serious disciplinary charge was made out and found him guilty as charged. As the first respondent considered the offence serious, he dismissed him effectively from the Police Force on 3rd January 2003. The Notice of Penalty reads:

"TAKE NOTICE

The Serious Discipline Charge leveled against you of:-

That on 19th day of June 2002 at Mt Hagen, Western Highlands Province, You did behave in a (sic) oppressive manner towards another member namely, Chief Sergeant C KAMI and others members in that you pointed your loaded police issued firearm at them and shouted abuses.

Thereby Contravening Section 20(1)(q) of the Police Act Force 1998,

The charge that was served to you on the 1st day of July 2002 hase (sic) been adjudicated and a finding of guilty has been made.

A written explanation from you was received at Police Headquarters.

This explanation was taken into account when arriving at the decision however, it would appear that other evidence in the file outweigh the submission made by you in your defence.

Reasons for the decision are as follows:

There is sufficient evidence contained in the attached statements and reports to justify finding that you are guilty as charged.

Far too many complaints of abuse of Police powers and unnecessary use of force on innocent persons by members of the Force throughout the country.

Your charge is of serious nature in that your behaviour was unprofessional and unethical which you choose (sic) to destroy the reputation and integrity of the Constabulary as reflected by your actions.

There was no reason to insult and use violence against your comrades in uniform guarding the containers of Ballot Boxes.

You must know that your behaviour undermined the integrity of the Police Force and lessened public trust and confidence.

Therefore, you must be punished severely to deter other members of the Force who chooses to pursue their personal needs in future National Elections.

For this reasons I find you guilty as charged and by way of penalty:

You are DISMISSED from the Constabulary effective from the date of service of the "NOTICE."

A submission on penalty was received from you at Police headquarters and had been taken into account when arriving at the decision as to the penalty.

Reasons for the imposition of this penalty are as follows:

- The nature and the seriousness of the offence.

- The deterrent effect it will have on other member of the Constabulary.

- That your conduct has breached the Constabulary standards.

- If this type of behaviour is allowed to continue, the discipline of the Force will severely impacted upon.

Sam E Inguba QPM

Commissioner of Police."

10. As to what actually occurred on 19th June 2002 at Mt Hagen Police Station, neither Superintendent Jimmy Onopia nor Inspector Sampson Siguyaru was able to verify as they were not present at that time or were eye witnesses. They merely recounted what others told them in the course of their own investigations in relation to what actually occurred on 19th June 2002, hence their evidence is hearsay to that extent and I reject them as they are inadmissible. On the other hand, there was evidence from eye witnesses in relation to the alleged serious disciplinary offence placed before the adjudicator in the form of witnesses’ statements when he adjudicated the charge and subsequently furnished a report to the first respondent for consideration and decision. I shall return to elaborate on the details of the evidence before the adjudicator and his report to the first respondent when I consider each ground of review below.

Grounds of review

11. In the amended statement in support of the application for judicial review filed on 1st October 2004, the applicant relies on the following grounds of review:

"3. The grounds of review upon which leave is sought are as follows:

(a) The Applicant was charged with behaving in an oppressive manner towards another member of the police force in that he used abusive language and pointed a gun at him contrary to Section 20(1)(q) of the Police Force Act.

(b) It was further alleged that he with other members of the Task Force went to the yard in Front of the police headquarters in Hagen whilst on duty during the National Election Counting of votes. They together with their commanding officer went to dispense (sic) a crowd that was disputing storage of ballot boxes.

(c) The dispute almost got out of hand when the Task Force was called in. They disperse the members of the public including candidates who were in the restricted areas. The applicant was one of the Task Force members.

(d) The evidence before the commissioner did not specify who held the gun nor specifically pointed at any members of the police force. It also did not specify as to who the abusive language was directed to at the specific time. The situation was tense and crowd from fighting amongst themselves or rushing the police escort to destroy the ballot boxes.

(e) It was in the circumstances that the applicant is alleged to have behaved in the manner as alluded to at paragraph 3(a).

(f) The applicant denies the allegation and says that the situation warranted the action taken by the task force members. He was the only person made to look like a scapegoat.

(g) The police hierarchy here in Hagen did not follow procedures for laying of such charges in that:-

(a) They did not interview the Applicant to explain his or her action.

(b) Did not seek authorization from the Director of internal affairs to lay a disciplinary charge.

(c) Did not give the member 14 days to reply to his charges as required by the policy guide lines of the police force.

(d) The whole charges were not forwarded through the usual channel to the Director of Internal Affairs at PHQ.

(h) The charge is so ambiguous that the applicant is at a loss as to which grounds the Commission relied upon to terminate him from the police force.

(i) The charge was arbitrarily laid without any proper prior investigations and thus was unfair.

(j) There was a real likelihood of Biasness in that the Deputy Commissioner, Mr Tom Kulunga had a personal interest in the Applicant’s case by intentionally bypassing the normal procedure of leaving the Applicant’s file with the Charging Officer to wait 14 days for a reply, but instead the personally took the Applicant’s file down to Police Headquarters for deliberation without proper consideration by the Charging Officer.

(k) The Commissioner of Police in making the decision to dismiss the Applicant made a decision which no reasonable tribunal could have made.

(l) In the alternative, the penalty imposed was in the circumstances excessive against the Applicant."

12. The Court’s jurisdiction to review actions and decisions of administrative, statutory and quasi judicial bodies is found in section 155(4) of the Constitution and Order 16 of the National Court Rules. Order 16, rule 1 of the National Court Rules states as follows:

"1. Cases appropriate for application for judicial review.

(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, an on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to -

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and

(b) the nature of the persons an bodies against whom relief may be granted by way of such an order; and

(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on the application for judicial review."

13. In John Korul -v- Simon Kauba, Tony Wagambie & The State (2008) N3506 at p 11, I referred to the most often quoted case on application for judicial review, Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122 and said:

"In the often quoted case on application for judicial review, Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122, it is said that judicial review is available where the decision making authority exceeds it powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abused its powers. It is very important to understand that "the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process." See p 124 of Rose Kekedo’s case (supra). That is, judicial review is concern about the procedures in the decision making process. In other words, judicial review is not an appeal where the merits or otherwise of the decision of the body is determined."

14. The above grounds of review fall under four broad categories; (1) unreasonableness, (2) procedural ultra vires or impropriety, (3) breach of natural justice - bias, and (4) severity or excessiveness of penalty. I turn to each of them below.

Unreasonableness

15. Grounds 3(a)-3(f) & 3(k) raise the reasonableness of the decision by the first respondent to find the applicant guilty of the serious disciplinary charge. It should be noted here that these grounds on unreasonableness do not challenge the decision of dismissal of the applicant from the Police Force, hence the Court’s consideration will be confined to the finding of guilt under this ground. In Jerry Magira -v- National Forest Authority (2009) N3670, I made reference to the famous case of Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1KB 223 and said at pp10&11:

"The principle of reasonableness of the decision was developed in the English case of Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1KB 223. It is said that, "The exercise of a discretion must be real, matters which ought to be considered must be; conversely irrelevant collateral matters must be disregarded. Where the discretion is exercised within the ambit of considering what is relevant the court cannot intervene, except where the conclusion nevertheless reached is so unreasonable, "... in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether": see Lord Greene MR in Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230". Per McDermott AJ (as he then was), in Joseph Lemuel Raz -v- Paulus Matane & Ors [1986] PNGLR 38 at 53."

16. It is noted that Mr Lains did not make any submissions in respect of this ground in his written submissions although much of the submissions at pp 13&14 were devoted to the issue of authority of the disciplinary officer who laid the serious disciplinary charge on the applicant. Mr Lains relies on sections 19 and 23(2) of the Police Act, 1998 to argue that because the disciplinary officer, in this case, Chief Superintendent Allan Kundi was not appointed by the first respondent to lay the serious disciplinary charge on the applicant, the entire disciplinary process was flawed and the finding of guilt and dismissal null and void.

18. I wish to raise a very important procedural matter relating to this argument. This argument does not arise for consideration in this application for judicial review because it is not one of the grounds of review in the amended statement in support of the application for judicial review. As it is not a ground of review, the applicant is not entitled to raise it here. For, to do so would be seen as raising a new ground of review for which leave is required. It will prejudice the respondents in their defence of the application. Order 16, rule 6(1) of the National Court Rules, prohibits an applicant for judicial review from raising arguments based on grounds that are not pleaded in the statement in support of the application for judicial review.

19. There is ample authority for this proposition and I reaffirmed that position in Jerry Magira’s case (supra). I also reaffirmed that position in Simon Opa & Mount Hagen Park Secondary School -v- Hans Gima, Chairman of Western Highlands Provincial Education Board & Ors (2008) N3343, although that was in the context of pleading of appropriate relief in the originating summons for applications for judicial review. For this reason, I reject this argument. Having rejected the argument in relation to the challenge on the authority of Mr Kundi as the disciplinary officer to lay the serious disciplinary charge on the applicant, this means that Mr Kundi is presumed to be the duly appointed disciplinary officer in this case and was authorized to lay the serious disciplinary charge on the applicant.

20. Returning to those grounds that have been pleaded, it is apparent from them, that the decision of the first respondent to find the applicant guilty and dismiss him from the Police Force is said to be unreasonable because the first respondent relied on irrelevant documents and matters to arrive at the finding of guilt. For example, the first respondent relied upon vague and ambiguous statements of witnesses to find the applicant guilty of the serious disciplinary charge of pointing a firearm at other members of the Police Force and verbally abusing them.

21. Based on this ground, can it be said that the finding of the applicant’s guilt is so unreasonable that no reasonable tribunal in the first respondent’s position would have arrived at or reached? The respondents’ case is that, from the witnesses’ statements, Mr Tovili as the adjudicating officer found that there was overwhelming evidence establishing the serious disciplinary charge of pointing a firearm at Chief Sergeant Charles Kami and other members of the Police Force and verbally abusing them against the applicant. All the evidence for and against the applicant were considered and summarized in the report and forwarded to the first respondent for his consideration and decision. The report may be found at annexure "M" to Mr Tovili’s affidavit (exhibit "D1").

22. A perusal of the witnesses’ statements of Sergeant John Kouse, Chief Sergeant Charles Kami and Senior Constable Pat Kunjil in support of the serious disciplinary charge show that the applicant and one Constable Charles Maliwolo pointed a firearm at Chief Sergeant Charles Kami and other members and used abusive words towards them like, "Who the fuck is Korohan, tell him to come and see me" and "Put those bloody boxes in the other container and do not touch them, otherwise, someone will answer for it."

23. Against these witnesses’ statements was the applicant who out rightly denied the allegations. His side of the story was corroborated by witnesses Constable Charles Maliwolo, Constable Ronnie Mitau, Constable John Lun, Constable Fred Kaman, Constable Orim Piupiu, Constable Midave Midave, Constable Phil Undaba, Senior Inspector Billie Anton and Returning Officer Allan Alam who said that the applicant and Constable Charles Maliwolo neither pointed a firearm at Chief Sergeant Charles Kami and other members nor verbally abused them. However, they all acknowledged that the applicant and Constable Charles Maliwolo were present at the scene at that time.

24. Further, it was alleged that the threatening of Chief Sergeant Charles Kami and his members with a firearm and verbal abuse by the applicant arose from a dispute over four ballot boxes for the Anglimb-South Waghi open electorate. Chief Sergeant Charles Kami and his members were directed by their superiors to store them in a big container earmarked for undisputed ballot boxes while the applicant and the Task Force members were directed by the returning officer for that open electorate to put them in the disputed ballot boxes’ container. And it is noted that according to Chief Sergeant Charles Kami and Sergeant John Kouse, the four disputed ballot boxes were already been locked away in the undisputed ballot boxes’ container for that electorate and could not be removed as per the instructions of their superiors.

25. Given the two different versions of the events that day (night), I consider that it was entirely within the discretion of the first respondent to accept one of the versions. This is dependent on a number of factors. One of them is the details in the statements for or against the applicant and the other, the prevailing circumstances at that time. First, I find that Chief Sergeant Charles Kami and his witnesses gave clear and unequivocal statements in relation to the incident and I can find no irrelevant documents and matters upon which the first respondent relied upon to arrive at the finding of guilt. As noted above, the applicant and his witnesses acknowledged that he was present at the scene at that time and this puts him at the place where the alleged threats and verbal abuse occurred. Hence, it was only a matter for the first respondent to decide whether the applicant threatened Chief Sergeant Charles Kami and his members with a firearm and verbally abused them.

26. Secondly, I can see that the adjudicating officer Mr Tovili did take all these matters into account in his report to the first respondent. And it must not be forgotten that it was election time and policemen were allocated different tasks at different locations to ensure that the election process is conducted without disruption and violence. Chief Sergeant Charles Kami and his members were tasked to man the ballot boxes including registration and storing them away in the containers for each electorate. The applicant and his Task Force members had no right to interfere with that, even if the situation on the ground was tense, as alleged. The confrontation between the two groups of policemen was uncalled for and a disgrace as it was witnessed by members of the public.

27. It is no wonder, Mr Tovili referred to it at p 2 of his report as one of the considerations for the first respondent to take into account when he recommended a finding of guilt and a penalty of demotion after setting out the various penalties available to the first respondent to impose on the applicant at p 3. The first respondent in the exercise of his statutory powers under sections 24, 25 and 26(g) of the Police Act, 1998 found the applicant guilty of the serious disciplinary charge and he dismissed him. In the circumstances, I am unable to find that the finding of guilt of the applicant by the first respondent was unreasonable. This ground of review is therefore, dismissed.

Procedural ultra vires or impropriety

28. Grounds 3(g)-3(h) raise procedural ultra vires or impropriety on the part of the first respondent when he found the applicant guilty of serious disciplinary charge. It is alleged that the first respondent did not follow the procedures when he found the applicant guilty of the serious disciplinary charge. At pp 13-15 of his written submission, Mr Lains submits that the first respondent did not follow the procedures under the Police Act, 1998 when it came to the laying of the serious disciplinary charge on the applicant and its adjudication. The procedures that the first respondent breached and which constituted procedural ultra vires or impropriety were that the police hierarchy in Mt Hagen:

(a) Did not interview the applicant to get him to explain his actions.

(b) Did not seek authorization from the Director of Internal Affairs to lay a disciplinary charge.

(c) Did not give the member 14 days to reply to his charges as required by the policy guide lines of the police force.

(d) The whole charges were not forwarded through the usual channel to the Director of Internal Affairs at PHQ.

29. It is said that procedural ultra vires as a ground for reviewing of administrative actions deals with the procedural propriety or impropriety of the action. An act or decision, or an order or other instrument which is otherwise authorized by law may still be invalid if it is tainted by procedural impropriety. The impropriety may consist of either the failure to exercise a discretionary power at all, or failure to exercise the power in a manner prescribed by statute or some other instrument having the force of law, or failure to observe the conditions precedent to the exercise of power, or it may arise out of the breach of natural justice: see Michael A Ntumy’s "Administrative Law of Papua New Guinea, Cases, Materials and Text", CBS Publishers & Distributors, (2nd ed 2003) at p 472.

30. In the present case, the first matter to consider is the procedures for conducting disciplinary proceedings in the Police Force when a member of the Police Force is alleged to have committed a disciplinary offence, either minor or serious. Part IV of the Police Act, 1998 provides inter-alia, the different types of disciplinary offence and the procedures for conducting disciplinary proceedings. Section 23 is relevant for the purposes of this case since the applicant was charged with a serious disciplinary offence, found guilty and dismissed. It states:

"23. DEALING WITH SERIOUS DISCIPLINARY 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 -

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge; and

(c) be invited -

(i) to reply within 14 days, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it.

(4) A charge or other documentation is deemed to have to have been furnished to a member under this Section -

(a) where it has been personally served on the member; or

(b) where, it being unreasonable because of the distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.

(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."

31. The procedures in section 23 above may be summarized as follows:

Step 1. The Commissioner or a commissioned officer authorized by the Commissioner lays the serious disciplinary charge on the member.

Step 2. The serious disciplinary charge must be served promptly on the member.

Step 3. If the member so desires, a senior officer must explain the nature and details of the serious disciplinary charge to him.

Step 4. If the member so requests, copies of all reports that are to be considered in relation to the serious disciplinary charge must be furnished to him.

Step 5. The member is invited to reply to the serious disciplinary charge within 14 days stating whether he admits or denies the serious disciplinary charge and also provide any explanation if he so desires in relation to the serious disciplinary charge.

32. The second matter to note is that, there must be a legal basis either in the statute or delegated instrument like the Constabulary Standing Orders in this instance, to give force of law. Where the procedures are breached, it may render the actions or decisions of the decision making authority void for procedural ultra vires or impropriety. And so, returning to Mr Lain’s submissions in relation to breaches of procedures, I ask; where in section 23 of the Police Act, 1998 is the requirement for the first respondent or the police hierarchy in Mt Hagen for that matter to interview the applicant before laying the serious disciplinary charge against him?

33. Further, where in section 23 of the Police Act, 1998 is the requirement for the first respondent or the police hierarchy in Mt Hagen for that matter to obtain approval from the Director-Internal Affairs Directorate before laying the serious disciplinary charge against the applicant? In other words, where is the legal basis for these procedures? I find none and to my mind, the applicant’s assertions at paragraph 47 of his affidavit (exhibit "P1") that these are mandatory requirements and the first respondent must comply with them have no legal foundation. This in turn means, there cannot be any breaches of these procedures if these procedures are not procedural requirements in the disciplinary proceedings in the Police Force.

34. On the other hand, the evidence established that the first respondent complied with steps 1 to 5 of the disciplinary proceedings by first, serving promptly the serious disciplinary charges on the applicant, a fact which the applicant does not dispute, secondly, providing additional reports in the form of witnesses’ statements of Reserve Sergeant John Kouse, Reserve Chief Sergeant Charles Kami and Senior Constable Pat Kunjil to the applicant even though he did not request them, and finally, allowing him 14 days to reply to the serious disciplinary charge (he was served the serious disciplinary charge on 1st July 2002 and provided his reply on 10th July 2002, four days before the 14 days expired) and a decision was made by the first respondent on 3rd January 2003, some 6 months after he provided his reply: see section 23(2),(3)(a),(b)&(c)(i)&(ii) of the Police Act, 1998.

35. In the end, I find that the first respondent did not breach the disciplinary proceeding’s procedures when he charged the applicant, deliberated on, found him guilty and dismissed him from the Police Force in relation to the serious disciplinary charge of behaving in a threatening manner towards other members of the Police Force. This ground of review is dismissed.

Breach of natural justice - bias

36. Grounds 3(i)-3(j) raise the issue of bias on the part of the first respondent when he found the applicant guilty of the serious disciplinary charge. At p 12 of his written submission, Mr Lains submits that there is undisputed evidence that Mr Tom Kulunga, the Deputy Commissioner - Operations personally delivered the applicant’s personal file to the Director of Internal Affairs at PHQ. He did that because he had a personal interest in the matter. When he took the applicant’s personal file with him to PHQ, he bypassed the Charging Officer who was the authorized officer to deal with the applicant’s case. For these reasons, he strongly submits that Mr Kulunga’s involvement greatly influenced the first respondent and that led to him dismissing the applicant guilty of the serious disciplinary offence.

37. It appears from the evidence and submissions of Mr Lains that the applicant is raising the actual bias test in relation to the decision of the first respondent’s decision to find him guilty because of the alleged involvement of Mr Kulunga in the disciplinary process. It is said that actual bias usually flows from pecuniary or propriety interest. Hence, actual bias is present in a case whenever a judge has a direct pecuniary or propriety interest however small, in a case or before her. A finding of actual bias leads to an irrebuttable presumption of bias and, without more may result in the disqualification of the judge, may be a basis for challenging the decision in court: see Michael A Ntumy’s Administrative Law of Papua New Guinea, Cases, Materials and Text at p 542 (supra).

38. With that in mind and returning to Mr Lain’s submissions, I am unable to agree with him that the first respondent’s decision to find the applicant guilty of the serious disciplinary charge is tainted with bias because of Mr Kulunga’s involvement for three reasons. First, how does the applicant know that Mr Kulunga had a personal interest in his disciplinary case and personally took his personal file with him to Port Moresby? Where is the evidence to establish these assertions of the applicant? Simply put, there is no evidence to establish these assertions and this Court exercising its supervisory powers over subordinate administrative, statutory and quasi judicial bodies will not interfere with their reasoning process if it cannot be established on the balance of probabilities that their decisions or actions were bias or tainted with bias.

39. Secondly, even if there is evidence, the evidence is contradictory and inconsistent that it is so unreliable to find that Mr Kulunga has a personal interest in the applicant’s disciplinary case and that he personally took the applicant’s personal file with him to Port Moresby. The applicant said that he was charged with the serious disciplinary charge for pointing a firearm at Chief Sergeant Kami and other members of the Police Force and verbally abused them at Mt Hagen Police Station. These allegations against him arose because there was a difference between him and other members of the Task Force Section and Chief Sergeant Kami and his members over disputed ballot boxes for Anglimp-South Wahgi electorate. That is, where to put these boxes.

40. One of the scrutinizers of a candidate for that seat by the name of Jonathan Kumba was present with Chief Sergeant Kami and that did not go down well with the applicant and other Task Force members as supporters and scrutinizers of candidates were not permitted to enter the police station where the ballot boxes were kept. The applicant said that Mr Kulunga had a personal interest in his disciplinary case because Mr Kulunga supported Mr William Duma for the Mt Hagen Central Open electorate. Hence, Mr Kulunga wanted supporters of Mr Duma to be allowed into the police station and when he (the applicant) and the Task Force members intervened, this frustrated Mr Kulunga. Hence, it was Mr Kulunga who was behind his dismissal and he made sure that he (the applicant) was found guilty of the serious disciplinary charge of aiming a firearm at Chief Sergeant Kami and his members and verbally abusing them.

41. But where is the evidence that Jonathan Kumba is a supporter of Mr Duma and that Mr Kulunga directed Chief Sergeant Kami to allow Jonathan Kumba into the police station while supporters of other candidates were refused entry? The evidence before the Court suggests that Mr Kumba is a supporter and scrutineer of a candidate for the Anglimb-South Wahgi open electorate while Mr Duma was a candidate for Mt Hagen Central open electorate. To my mind, this is contradictory and confusing. Further, where is the evidence that supporters of Mr Duma were refused entry? These are pure speculations and again this Court exercising its supervisory powers over subordinate administrative, statutory and quasi judicial bodies will not interfere with their reasoning process if it cannot be established on the balance of probabilities that their decisions or actions were bias or tainted with bias. This is one such case where this Court will not interfere.

42. Alternatively, even if there is evidence of Mr Kulunga’s involvement, I am not satisfied that just because Mr Kulunga took the personal file of the applicant with him to Port Moresby to deliver to PHQ is sufficient to infer that he had a personal interest in the applicant’s disciplinary case and wanted to make sure that the applicant is found guilty of the serious disciplinary charge and dismissed from the Police Force. There must be more evidence than that since allegations of bias against a decision maker is a serious matter as it challenges the impartiality of the decision maker and also questions integrity and reputation of the decision maker. To my mind, it is not a trivial matter for anyone to raise bias. There must be evidence to support it before the Court may exercise its inherent and judicial review powers in favour of an applicant. In this case, I am not satisfied that the evidence is sufficient.

43. If anything, Mr Kulunga is the Deputy Commissioner of Police, in charge of operations. He is the number two "boss" of the applicant. I consider as the Deputy Commissioner, he has every interest in disciplinary matters affecting his members and in this case, the applicant. Why would he ignore or consider disciplinary matters of his members insignificant? And in this case, why would he be accused of having a personal interest in the applicant’s disciplinary charge when he is the Deputy Commissioner of Police, and especially when the allegations of serious breaches of discipline arose during the election time, when there was a need to ensure his members carried out their duties without fear of favour in order to maintain law and order?

44. And further, I do not believe that the by-passing of the Director of Discipline Directorate by Mr Kulunga (which I do not find to be the case here) would impute bias on the first respondent and so I do not see any logic and basis for the contention that Mr Kulunga had a personal interest in the applicant’s case, hence influenced the first respondent to find him guilty and dismissed him from the Police Force. For the foregoing reasons, I am not satisfied that the applicant has established this ground of review and I dismiss it.

Severity or excessiveness of penalty

45. Ground 3(l) raises the issue of excessiveness of the penalty of dismissal. At p16 of his written submission, Mr Lains submits that the penalty of dismissal was severe or excessive in the circumstances given that there are other penalties that the first respondent could have imposed against the applicant under section 26 of the Police Act, 1998 and dismissal being the maximum penalty for a serious disciplinary offence should have been reserved for the worst case of serious disciplinary offence. He further submits that when the entire circumstances of the case or how the serious disciplinary offence occurred is considered, the penalty of dismissal is severe or excessive and that is where the first respondent fell into error. For these reasons, the penalty of dismissal ought to be quashed.

46. Mr Lains also submits at pp 7-11 and p 16 of his written submission that the first respondent did not give the applicant an opportunity to be heard in relation to penalty before he imposed the decision of dismissal. I am not going to consider this contention because it is not one of the grounds of review in the amended statement in support of the application for judicial review: see Jerry Magira’s case (supra) and Simon Opa’s case (supra) and Order 16, rule 6(1) of the National Court Rules.

47. Returning to the ground on whether the penalty of dismissal is severe or excessive, it is instructive to note the first respondent’s reasons for imposing that penalty. They were: first, because of the nature and the seriousness of the offence, secondly, the deterrent effect it will have on other members of the Constabulary, thirdly, the conduct has breached the Constabulary standards, and finally, if this type of behaviour is allowed to continue, the discipline of the Police Force will severely be impacted upon.

48. In my view, these reasons justify the decision of the first respondent to dismiss the applicant from the Police Force. I agree and accept that, first the offence upon which he was found guilty of is very serious. He was found guilty of pointing a firearm at other members of the Police Force and verbally abusing them. It is also serious when it is committed by a junior member in rank against a senior member and here, a Senior Constable threatening and abusing a senior non-commissioned officer, a Chief Sergeant. Is this how the Police Force operates, I ask? Junior officers giving orders to senior officers! To my mind, his conduct is disgraceful and portrays a very bad image of the Police Force. It also amounts to insubordination and he should be grateful that he was not charged for insubordination as well. Policemen like him have no place in the Police Force.

49. Secondly, the first respondent is correct in saying that the decision to dismiss him from the Police Force would have a deterrent effect on other members of the Constabulary because unless the first respondent take very drastic measures in disciplining members who commit serious disciplinary offences, there will be so many undisciplined members running around in the Police Force. His dismissal should send a clear and strong warning to other members of the Police Force to refrain from such conduct. Thirdly, it is also true that the applicant’s conduct has breached the Constabulary standards and very importantly, section 20(l)(q) of the Police Act, 1998. Finally, if this type of behaviour is allowed to continue, the discipline of the Police Force will severely be impacted upon.

50. Hence, whilst it is accepted that the first respondent had discretion in imposing a lesser penalty on the applicant pursuant to section 26 of the Police Act, 1998, which lists a wide range of penalties, I do not believe that the penalty of dismissal is severe or excessive for the above stated reasons. In my view, the penalty was proportionate to the serious disciplinary offence. This ground of review is not made out and therefore, dismissed.

Orders

In the end, I am not satisfied that the application for judicial review has been made out and I dismiss it with costs. Time shall be abridged.

Judgment accordingly.

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Tamutai Lawyers: Lawyers for the Applicant
Acting Solicitor General: Lawyers for the Respondents