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Kendino v Clarkson [2025] PGNC 239; N11398 (24 July 2025)

N11398

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE ]
AT MADANG

OS (JR) No 265 OF 2023

MILLETH KENDINO
Plaintiff

V

JOANNE H CLARKSON – ACTING DEPUTY POLICE COMMISSIONER AND CHIEF OF ADMINISTRATION
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Madang: Narokobi J
2025: 17 July and 24 July

JUDICIAL REVIEW– Ultra Vires -Errors of law – Breach of Natural Justice – Whether grounds of judicial review have been met and application should be granted.

The Plaintiff, Milleth Kendino is a member of the Police Force. He was charged with serious disciplinary offences under the Police Act 1998 and dismissed from the Police Force. In this proceeding he challenges the dismissal by judicial review.

Held:

(1) The disciplinary process for serious disciplinary offences by a member of the Police Force under the Police Act 1998, s 19, and ss 23 to 26, provide three distinct processes, to be performed by three different officers of the Police Force:

• Commissioned officer: if there is reason for a serious disciplinary offence by a member of the Force, a Commissioned Officer charges the member of the Force.
• Disciplinary Officer: Decides whether the charge is sustained or not, and provides a report to the Commissioner with his or her recommendation(s).
• Police Commissioner: Considers the Disciplinary officer’s recommendation(s), then decides a penalty based on the recommendation(s).
  

(2) The objective of this process is to afford a member of the Police Force a fair hearing consistent with s 59, “Natural Justice,” of the Constitution.

(3) In the present case, on the facts the First Respondent performed all three roles, constituting an error of law, a breach of natural justice under s 59 of the Constitution in that the Plaintiff was not afforded a fair hearing and therefore the decision terminating him ought to be quashed.

Cases Cited
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Legislation Cited
Constitution
Police Act 1998

Counsel
Mr B Wak, for the Plaintiff
Mr P Bati, for the Respondents

24 July 2025

DECISION

1. Narokobi J: The Plaintiff, Millet Kendino is a member of the Police Force. He was charged and dismissed from the Police Force. In this proceeding he challenges the dismissal by judicial review.
   
2. There are two Respondents. The First Respondent is Joanne H. Clarkson as Acting Deputy Commissioner of Police and Chief of Administration and the Independent State of Papua New Guinea is the Second Respondent.
   
3. The Plaintiff was part of a cohort of members of the Police Force who were charged on allegation of committing serious disciplinary offences, Nathan Kerry, Brian Kapi, Greg Wii and Leroy Makel. The gist of the allegation was that when they apprehended a suspect, he was shot and because he was not brought to the hospital quickly, led to his death. Each one of them have filed separate judicial review proceedings. As the facts and circumstances are similar, my reasons and the final orders made for each one of them will be similar. My reference to “Plaintiff,” here refers to Millet Kendino. If in the event I were to refer to the other members in the related proceedings, I will make specific reference to their names.
   
4. The decision to terminate the Plaintiff was made on 20 September 2021. The decision to terminate was not served on the Plaintiff until 1 May 2023, or soon after that. The proceedings were filed on 26 September 2023.
   
5. The Plaintiff was charged for unlawful discharge of a firearm, bringing discredit to the Police by not bringing the deceased he shot to the hospital, use of offensive words and murdering a suspect, the late Balifun Mark. It is interesting that all five of them were charged for the same offences. Logically all five of them could not have discharged the firearm and shot the deceased. In the criminal sense, one of them would have discharged the firearm, and the other four would have aided and abetted him. The charge therefore appears to be defective, but this is not raised as a ground of review.
   
6. Leave for judicial review was granted on 27 October 2023 to review the decision of the First Respondent. Stay of the decision dismissing the Plaintiff from the Force was made soon after that.
   
7. There were five grounds advanced by the Plaintiff to challenge the decision of the First Respondent. In summary the grounds are as follows:
   
   • He was not charged administratively through a process prescribed by law.
   • He was not afforded an opportunity to be heard, contrary to the principles of natural justice under s 59 of the Constitution.
   • Serving the decision to terminate after 2 years and 4 months was unfair and unreasonable.
     
8. Notice of Motion following the grant of leave was filed on 31 October 2023, seeking the remedy of certiorari to remove the decision of the First Respondent to the National Court for that decision to be quashed.
   
9. Several affidavits were filed for the Plaintiff and for the Respondents. For the Plaintiff, he relies on the following affidavits:
   
   • Affidavit of Milleth Kendino, filed on 4 October 2023.
   • Affidavit of Milleth Kendino, filed on 23 October 2023.
   • Affidavit in support of Milleth Kendino filed on 1 December 2023.
   • Affidavit of Chief Superintendent Mazuc Rubiang, filed on 12 July 2024.
   • Affidavit of Constable Kumaaul Maba filed on 12 July 2024.
     
10. Essentially the Plaintiff says that after he was charged, he was directed by his superior, the Provincial Police Commander of Madang, Chief Superintendent Mazuc Rubiang not to respond, as he was responsible for charging him. He did not respond. He further states that for the allegation of murder he was charged, and detained. He was later granted bail, and the committal court dismissed the charges against him. He was therefore surprised to find two years later that he was dismissed from the Police Force.
    
11. The Defendants relied on the affidavit of the First Respondent filed on 11 April 2024. She says that the evidence against the Plaintiff was overwhelming. She had the delegated authority from the Police Commissioner under the Police Act 1998, and after the Plaintiff did not respond, dismissed him from the Police Force.
    
12. The grounds for obtaining judicial review are well stated in the case of Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122. Kapi DCJ (as he then was) at p 124 states:
    

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. And the purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion.

13. The Plaintiff was disciplinarily dealt with under s 23 of the Police Act 1998 for a serious disciplinary offence. I have considered the relevant provisions of the Police Act establishing the process dealing with serious disciplinary offences. I outline what I consider to be the steps to be complied with when disciplining a member of the Police Force under that legislation:
    
    • There must exist a reason to believe that a serious disciplinary offence has been committed by a member of the Police Force (s 23(1)).
    • The member is charged by the Commissioner or by a commissioned officer (s 23(2)).
    • If the member is charged by a commissioned officer, then that officer must be authorised by the Commissioner under s 19 of the Police Act (s 23(2) and s 19(1)).
    • The member of the Force must be served promptly with a copy of the charge (s 23(3).
    • The member of the Force must respond to the charge within 14 days as to the truth or otherwise of the charge (s 23(3)).
    • The Commissioner shall appoint a disciplinary officer and report to the Commissioner whether the charge should be sustained or not. That person must be separate from the charging officer (s 24(1)).
    • The disciplinary officer shall than advise the Commissioner whether in his or her opinion the charge has been sustained (s 25(1)).
    • Where the charge is sustained, an appropriate penalty is recommended (s 25(1)).
    • The Commissioner after considering the report from the disciplinary officer, and if he or she concurs with the report, imposes a penalty (s 25(2)(b)).
    • The Commissioner shall notify a member of a penalty imposed on that member (s 26(4)).
    • The member has seven (7) days to ask the Commissioner for a review (s 26(5).
      
14. Considering the scheme of the disciplinary process, there are three distinct processes involved, to be performed by three different officers of the Police. This would be:
    
    • Commissioned officer: if there is reason to believe that a member of the Police Force has committed a serious disciplinary offence, a commissioned officer charges the member of the Force.
    • Disciplinary Officer: Decides whether the charge is sustained and provides a report to the Commissioner with his or her recommendation(s), after considering any responses from the member of the Force.
    • Police Commissioner: Considers the Disciplinary officer’s recommendation(s), then decides a penalty if indeed a penalty is to be imposed.
      
15. The objective of this process is to afford a member of the Police Force the right to be heard and a fair hearing consistent with s 59, “Natural Justice,” of the Constitution.
    
16. I have considered the evidence before the court, and the submissions and the relevant legislation, and in my view an error of law was committed when the disciplinary officer, made the decision to terminate the Plaintiff. That decision should have been done by the Police Commissioner after receiving the report from the disciplinary officer with the recommendations. If the Police Commissioner was not going to decide penalty, then he should have delegated this power to an officer other than the disciplinary officer that role, under s 17 of the Police Act.
    
17. The failure to follow this process constituted an error of law, and a breach of the principles of natural justice under s 59 of the Constitution. The Plaintiff was not afforded a fair hearing before he was dismissed.
    
18. I accept the First Defendant’s statement in her affidavit that the administrative process was separate to the criminal process where the Plaintiff was being criminally dealt with. It was therefore necessary that the decision was made within a reasonable period of time, as it was an administrative process. There is no explanation why it took too long to make the decision. Two years taken to arrive at a decision to terminate was unreasonable. No tribunal or person in their position would have taken two years to arrive at a decision on penalty, and for that reason, too the decision should be quashed. No reasonable person would have taken this long to arrive at the decision.
    
19. For these reasons, the application for judicial review is granted.
    
20. In granting the judicial review, I declare that the decision made by the First Respondent on 21 September 2021 dismissing the Plaintiff from the Police Force was unlawful contrary to s 25(2)(b) of the Police Act.
    
21. Consequently, an order in the nature of certiorari is issued removing to the National Court the decision of the First Defendant dated 20 September 2021 dismissing the Plaintiff from the Police Force, and quashing it.
    
22. As a further consequence of the order quashing the decision of 20 September 2021, the Plaintiff is restored to the rank he occupied prior to his dismissal.
    
23. As the First Respondent was carrying out normal administrative process, in the exercise of my discretion, all other relief sought are refused, except for costs. There must be some measure of accountability on the members of the Police Force.
    
24. The Second Respondent shall pay the Plaintiffs costs, to be taxed, if not agreed.
    
25. The file is closed, and time is abridged.
    

Bradley & Co Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Respondents