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Kolokolo v Commissioner for Police [2018] PGNC 338; N7475 (21 September 2018)

N7475

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 44 of 2000

BETWEEN:
JOHN KOLOKOLO
Plaintiff

AND
COMMISSIONER FOR POLICE
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Thompson J
2018 : 21 September

JUDICIAL REVIEW - Application for Judicial Review – s 46 of Police Force Act Chapter 65 – finding of guilt and penalty of dismissal – whether a right to be heard can be implied into a statutory process.

Counsel:

Mr D P Aigilo with R Pariwa, for the Plaintiff
Mr D Joel, for the First Defendant

21. September, 2018
    
1. THOMPSON J: This is the hearing of the Plaintiff’s substantive application for Judicial Review.
   

Facts

2. The Plaintiff is applying for Judicial Review of the decision of the Police Commissioner to find him guilty of serious disciplinary offences and to dismiss him from the Police Force.
   
3. The conduct which formed the basis of the charges occurred in September 1996, the charges were laid in January 1997, the charges were subsequently heard, and the dismissal was to take effect from March 1998.
   
4. The Plaintiff issued these proceedings in February 2000. After leave to proceed by way of judicial review was refused in 2000, the Plaintiff filed an appeal. This was heard in 2014 when the appeal was upheld and remitted back for hearing. This hearing finally proceeded in September 2018.
   
5. The grounds for the Judicial Review are essentially that the Defendant erred in applying the procedures under the Police Force Act Chapter 65, the Plaintiff was denied natural justice and the decision was unreasonable because it was not based on evidence. It was common ground between the parties that the disciplinary procedures were those provided by s 46 of the Police Force Act, which was subsequently replaced by the Police Act. This is because s 157 of the Police Act provides that proceedings commenced under the former Act continue as if the Act had not been repealed.
   
6. The first ground is that the Defendant was wrong in law in finding the Plaintiff guilty of the charges when there was no evidence. The Plaintiff says that there was no evidence because he was not provided with any by the Commissioner. The Plaintiff has cited several authorities including Philip Kamo v Commissioner for Police and Ors N2084 and Paul Saboko v Commissioner for Police and Ors N2975 which have held that a finding of guilt based on no evidence is a fundamental error of law, which makes the decision ultra vires.
   
7. However, in those cases, there was evidence before the Court, of the evidence which was before the original Tribunal, and so the Court was able to make a finding that the evidence was inadequate to sustain the charge. For instance, in Philip Kamo’s case, there was evidence that the police had advised the Commissioner that there was no evidence to support the charges. Those cases are therefore different from this case.
   
8. In the present case, there is no evidence before the Court, of the evidence which was before the Commissioner in support of the charges. This court therefore cannot find that the evidence was inadequate. The Commissioner stated in his decision that there was “sufficient evidence to substantiate both charges”. The Plaintiff was not given copies of that evidence and so does not know what it was. However, that is not the same as there being no evidence. In the absence of evidence now that there was no or not sufficient evidence before the Commissioner, the Plaintiff is unable to make out this ground.
   
9. The second ground is that the Plaintiff was denied natural justice because he was not given the opportunity to respond to the material relied on by the Commissioner. However, the procedure prescribed by s 46 does not give the Plaintiff that right. Under S 46 (3), the Plaintiff has the right to be given copies of the charges, which can be explained to him and he has the right to be able to reply to the charges within 14 days. These matters were complied with and the Plaintiff submitted his reply within time.
   
10. The Courts have considered this issue arising out of the wording of the old Act, in several other cases. In Dicky Nanan v John Maru and the Police Commissioner N1507, a 1997 decision of Injia J, and Kamangip v Orim [1998] PGNC17, a 1998 decision of Kapi DCJ, the courts considered the wording of s46. They concluded that the legislature intended to regulate the procedures of disciplinary hearings by the provisions of the Act, as set out in s 46. The provision sets out in detail what is to occur. They concluded that where the provision excludes what may be regarded as some of the common law principles of natural justice, they will not be implied into the Act by the Court. A member charged with a disciplinary offence was not entitled to be served with the evidence which formed the basis of the charge, and it therefore followed from this that there could be no assumption that the principles of natural justice would apply.
    
11. As s 46 gives no right for the Plaintiff to be given the material relied on by the Commissioner, as part of the detailed process for disciplinary hearings, this Court will not imply that right into the wording of the Act and there is no room for the application of the principle of the right to be further heard.
    
12. As the Plaintiff was not entitled to be provided with the material, the Plaintiff has not shown any failure by the Commissioner to comply with the procedures provided by s 46.
    
13. The third ground is that the Commissioner erred in not taking into account unspecified mitigating factors, and did not give the Plaintiff the right to be heard separately on penalty.
    
14. However, s 46 of the Act does not give such a right to the Plaintiff. It gives the Commissioner the power to impose a penalty including dismissal and then notify the Plaintiff of the penalty. In Dicky Nanan’s case and in Kamangip’s case, the courts specifically considered this issue and concluded that if the legislature had intended that a member should be given an opportunity to be heard before a penalty was imposed, it would have provided that in the Act. As it does not do that, by necessary implication s 46 excludes any such right.
    
15. As the Plaintiff had no right to be heard separately on penalty and the Commissioner was entitled to impose a penalty without hearing separately from the Plaintiff, the Plaintiff has not shown any failure to comply with the procedures prescribed by s 46.
    
16. That is sufficient to dismiss the Grounds of review. However, I will refer to two other issues.
    
17. First, it has been established that the Plaintiff had an alternative remedy available to him under S 46(5) of the Police Force Act whereby he was entitled to appeal to the Police Appeals Tribunal. He did not do this. He therefore had not exhausted the alternative remedies available to him before seeking judicial review, which is a ground for refusal of review.
    
18. Secondly, there has been considerable delay in prosecuting the proceedings. After leave was refused in 2000, the Plaintiff took 14 years to bring the Appeal to hearing. After the Appeal was upheld, he took 4 years to bring it to trial. His reasons for delay are apparently that it took him time to find lawyers and so on, but in fact he had no contact with his lawyers for 7 years from 2001 – 2008 and did not contact new lawyers until 2011. He did not act diligently in attending to the proceedings.
    
19. Any application for judicial review which is heard 18 years after the proceedings were filed and 22 years after the conduct which formed the basis of the original decision, is almost bound to be detrimental to good administration. Under O 16 R 4 (1), even if the Plaintiff had shown that there had been a failure to comply with the provisions of s 46 of the Act, the granting of the relief sought would be detrimental to good administration.
    

20. The Plaintiff’s application for judicial review is refused.

Costs

21. Each party is to pay its own costs.
________________________________________________________________
Office of the Public Solicitor: Lawyer for the Plaintiff
Police Department Legal Division: Lawyer for the First Defendant