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Makel v Barbuda [2025] PGNC 246; N11395 (24 July 2025)

N11395

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE ]

OS (JR) No 273 OF 2023

LEROY MAKEL
Plaintiff

v

INSPECTOR GREGORY BARBUDA-ACTING OFFICER IN CHARGE OF DISCIPLINE SECTION, POLICE HEADQUARTERS, KONEDOBU
First Respondent

JOANNE H CLARKSON – ACTING DEPUTY POLICE COMMISSIONER
Second Respondent

DAVID MANNING – COMMISSIONER OF POLICE
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth 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, Leroy Makel 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 Second 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 A Daugl, for the Plaintiff

Mr P Bati, for the Respondents

DECISION

24 July 2025

1. NAROKOBI J: The Plaintiff, Leroy Makel 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 Four Respondents. Inspector Gregory Barbuda-Acting Officer in Charge of Discipline Section, Police Headquarters, Konedobu (First Respondent), Joanne H. Clarkson as Acting Deputy Commissioner of Police (Second Respondent), David Manning – Commissioner of Police (Third Respondent) and Independent State of Papua New Guinea (Fourth 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, Milleth Kendino, Greg Wii and Kiwi Brian Kapi. 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 Leroy Makel. 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, after two years. The proceedings were filed on 29 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.
   
6. I also note from the charge that all five were charged for unlawful discharge of firearm. It would be logical that only one of them should be charged for discharging the firearm and the other four would be aiding and abetting in the criminal sense. The charges therefore appear defective. But that is not being challenged.
   
7. Leave for judicial review was granted on 10 November 2023 to review the decision of the Second Respondent. Stay of the decision dismissing the Plaintiff from office was made soon after that.
   
8. There were three grounds advanced by the Plaintiff with a number of sub-grounds under each main category to challenge the decision of the First Respondent. In summary the grounds are as follows:
   
   • The Second Respondent acted ultra vires as contrary to s 26(4) of the Police Act 1998 as only the Police Commissioner had the power to terminate.
   • Failure to serve the notice of disciplinary charge before termination, and therefore not affording the Plaintiff an opportunity to be heard, contrary to the principles of natural justice under s 59 of the Constitution.
   • The disciplinary process under ss 19 and 20 to 26 of the Police Act 1998 were not complied with and this was unreasonable.
     
9. Notice of Motion following the grant of leave was filed on 10 November 2023, seeking the remedy of certiorari to remove the decision of the Second Respondent to the National Court and for the National Court to quash the decision.
   
10. Several affidavits were filed by the Plaintiff and for the State. I have read those affidavits and their submissions and also heard oral submissions.
    
11. 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. In compliance with the directions, he did not respond. He further states that for the allegation of murder, he was charged, detained, granted bail, and later 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.
    
12. The Respondents relied on the affidavit of the Second Respondent filed on 12 March 2024. She says that the evidence against the Plaintiff was overwhelming. She had the delegated authority from the Police Commissioner under the Police Act, and after the Plaintiff did not respond, dismissed him from the Police Force.
    
13. 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.

14. The Plaintiff was disciplinarily dealt with under s 23 of the Police Act for a serious disciplinary charge. I have considered the relevant provisions under the Police Act establishing the process dealing with serious disciplinary charges. I outline what I consider to be the steps to be complied with when disciplining a member of the Police Force under this 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, concurs with the recommendations of 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)).
      
15. 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 for a serious disciplinary offence committed by the member of the Force, the commissioned officer charges the member of the Force.
    • Disciplinary Officer: Decides whether the charge is sustained or not, based on the reply (if any) of the member charged, 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 if the charges are sustained.
      
16. 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.
    
17. I have considered the evidence before the court, and the submissions 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 been delegated to an officer other than the Disciplinary Officer pursuant to the Commissioner’s powers to delegate in s 17 of the Police Act.
    
18. 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 an opportunity to be heard and a fair hearing before he was dismissed. Essentially the decision maker was the “judge, jury and executioner.” The allegations against the Plaintiff were serious, and the proper process under the Police Act was to have been complied with.
    
19. I accept the Second Respondent’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 done in full compliance with the administrative process in the Police Act.
    
20. For the reasons stated above, the application for judicial review is granted.
    
21. In granting the judicial review, I declare that the decision made by the Second Respondent on 21 September 2021 dismissing the Plaintiff from the Police Force was unlawful contrary to s 25(2)(b) of the Police Act.
    
22. Consequently, an order in the nature of certiorari is issued removing to the National Court, the decision of the Second Respondent dated 20 September 2021 dismissing the Plaintiff from the Police Force, and quashing it.
    
23. 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.
    
24. In my view the Second Respondent was carrying out normal administrative process, and in the exercise of my discretion, all other relief sought are refused, as there must be some measure of accountability in the Police Force, except for costs.
    
25. The Fourth Respondent shall pay the Plaintiffs costs, to be taxed, if not agreed.
    
26. The file is closed, and time is abridged.
    

Darnold Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Respondents