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Kakas v Wakon [2007] PGSC 53; SC1319 (29 June 2007)

SC1319

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 17 0F 2005

GEORGE KAKAS
Appellant

V

JOHN WAKON, COMMISSIONER OF POLICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hinchliffe J, Cannings J, David J
2006: 30 August,
2007: 29 June

JUDICIAL REVIEW – disciplinary proceedings – disciplinary charges – reasons given for guilty finding not corresponding to charge laid – whether an officer was found guilty of something with which he was not charged – whether a denial of natural justice.

NATURAL JUSTICE – duty to give sufficient reasons.

DISCIPLINED FORCES – disciplinary offences – need for decision-maker to focus on the actual charge laid against officer.

APPEALS – options available to Supreme Court where order of National Court be set aside – Supreme Court Act, Section 16.

This was an appeal against a judgment of the National Court, refusing an application for judicial review of the decisions of the Commissioner of Police to find a police officer guilty of a disciplinary offence and dismiss him from the Police Force. The main issue was whether the National Court erred by failing to find that the officer was found guilty of an offence with which he was not charged.

Held:

(1) When the head of a disciplined force directs his or her mind to whether an officer of the force has committed a disciplinary offence, the focus must be on the actual charge laid against the officer.

(2) If the reasons for finding an officer guilty show that the decision-makers' mind has been focussed on matters other than those made the subject of the charge, the decision to find the officer guilty will be made in error, in that it will constitute a denial of natural justice.

(3) In the present case, the Commissioner of Police made such an error, which was advanced as a ground of judicial review before the National Court.

(4) The National Court erred in law by not upholding the application for judicial review in light of the Commissioner's error.

(5) The order of the National Court was quashed and the Supreme Court made orders to quash the Commissioner's decision to dismiss the officer, reinstate the officer and pay back-pay.

Cases cited

The following cases are cited in the judgment:

Ombudsman Commission v Peter Yama (2004) SC747
Mision Asiki v Manasupe Zurenuoc (2004) SC747).

APPEAL

This was an appeal from an order of the National Court refusing an application for judicial review.

Counsel

H Nii, for the appellant

29th June, 2007

1. BY THE COURT: This is our decision on an appeal against a judgment of the National Court (Injia DCJ), refusing an application for judicial review of the decision of the Commissioner of Police to find a police officer guilty of a disciplinary offence and dismiss him from the Police Force.

2. The appellant, George Kakas, held the rank of Chief Sergeant and was based at Wabag, Enga Province, when he was dismissed. The Commissioner found him guilty of acting in a manner prejudicial to good order and discipline in the Force by failing to take proper care of a firearm and allowing it to be stolen. The firearm was a pistol that had been seized in a criminal investigation and was intended to be an exhibit in court proceedings. It was stolen from the appellant when he was in Mt Hagen. Mr Kakas applied to the National Court for judicial review of the decision of the Commissioner to find him guilty and dismiss him. His main ground of review was that the Commissioner found him guilty of things he was not charged with and did not give him the opportunity to comment on those things. That is, the Commissioner breached the principles of natural justice and made an unreasonable decision. The National Court dismissed that ground of review.

3. The same sort of issue arises in this appeal. In fact, it is the only issue as Mr Kakas has not appealed against the National Court's findings on the question of punishment.

DID THE NATIONAL COURT ERR IN LAW BY DISMISSING THE GROUND OF REVIEW ABOUT MR KAKAS BEING FOUND GUILTY OF SOMETHING HE WAS NOT CHARGED WITH?

4. The Commissioner laid the following disciplinary charge against Mr Kakas:

That on the 10th day of February 1999, at Mt Hagen, you did act in a manner by conduct/omission which is prejudicial to good order and discipline in the Force in that you did failed to take properly security of a exhibit pistol a SIG Sauer automatic pistol and as a result it was stolen from you while it was under your custody. Thereby contravening to Section 20(1)(az) of the Police Force Act Chapter 65. [sic]

5. The charge was not well drafted and referred to the wrong law. The Police Force Act Chapter No 65 was repealed by the Police Act No 37 of 1998. However, no issue was taken with such matters in the National Court or in this court. Section 20(1)(az) of the Police Act 1998 states:

A member of the Force who ... acts in any manner, whether by word, conduct or omission which is prejudicial to good order and discipline in the Force, or which reflects discredit on the Force, is guilty of a disciplinary offence and is liable to be dealt with and punished under this Division.

6. Mr Kakas responded to the charge in writing. He denied failing to take proper care of the pistol. He said he was in Mt Hagen on duty travel with other officers. He was in uniform but was attacked by a gang of criminals and seriously wounded. In the course of the attack the criminals stole the pistol.

7. The Commissioner found Mr Kakas guilty as charged for the following reasons:

The firearm concerned was not a Police issued firearm and being in possession at the time you were unlicensed under the Firearms Act. Your explanation would have been considered if the weapon stolen from you in the first place was a police weapon. This is not the case because the firearm was an exhibit and you should not have taken it out at the first place. What you have done is outside of the police procedures. The decision to use this exhibit was your own and not mandated by the Constabulary Management.

The loss of the firearm is unacceptable and you will be held liable for the missing pistol. The charge is serious and this type of behaviour is unacceptable to the good order and discipline of the Constabulary.

8. The Commissioner dismissed Mr Kakas from the Constabulary in view of the nature and seriousness of the offence.

9. In the National Court Mr Kakas's principal ground of review was that the Commissioner acted unfairly, without evidence and unreasonably. His argument was that the Commissioner found him guilty on the ground that he had unlawful possession of the firearm (as it was not Police-issued and he was unlicensed) but the allegation in the charge was that he failed to take proper security of it. Thus he was found guilty of something he was not charged with. The learned trial judge dealt with this issue as follows:

I am satisfied that the Commissioner's view was formed on the basis of evidence in the form of various statements of witnesses and reports before him, and the plaintiff's own admission that this was a confiscated firearm kept by the CID for investigations as a court exhibit; that the plaintiff's conduct in taking with him a confiscated firearm was not authorised, and could not and should not have been authorised by any CID officer. Even if the release of the exhibit firearm was permitted by the CID officer concerned, such authorisation was improperly given as the plaintiff ought to have known this and not pressed for the firearm to be released to him. In the circumstances, it was open on the material before him for the Commissioner to find that "his being in possession at the time you were unlicensed under the Firearms Act". I am satisfied that the alleged facts giving rise to the offence charged were sufficient to support the charge and the finding is consistent with the evidence and the charge. Failing to take proper security of the exhibit firearm and the unauthorised taking of the firearm are part and parcel of the series of actions associated with security of the exhibit firearm which came into his unauthorised possession. [emphasis added.]

10. His Honour concluded that the charge was properly framed, the appellant exercised his right to be heard and the Commissioner, acting on the evidence before him, made a reasonable decision within the scope of his discretion. As to the issue that has become the key issue in this appeal – whether Mr Kakas was found guilty of something he was not charged with – his Honour held that Mr Kakas's unauthorised possession of the firearm was an integral part of his failure to take proper security of it. It is that aspect of his Honour's reasoning that Mr Nii, for Mr Kakas, submits reveals an error of law.

11. To deal with Mr Nii's submission we need to set out the argument that was put before the National Court, and again before us. Putting aside the grammatical and typographical errors in the charge, the meat of the allegation against Mr Kakas was that he:

• failed to take proper security of a pistol, which was an exhibit, and consequently it was stolen from him.
  

12. In the course of finding that allegation proven, the Commissioner made the following adverse findings against Mr Kakas:

(1) he was unlawfully in possession of the firearm as he was not licensed under the Firearms Act to carry it;

(2) he should not have taken the firearm in the first place;

(3) nobody authorised him to have the firearm;

(4) he acted contrary to police procedures;

(5) the loss of the firearm was unacceptable.

13. The argument is that the findings numbered (1) to (4) did not form part of the allegation, which was limited to not taking proper security of the firearm. Therefore he was found guilty of allegations that he was not charged with and on which he was not given the opportunity to be heard. As to (5), it is simply a statement of opinion, not a reason for concluding that he failed to take proper security of the firearm.

14. On the face of it, this argument looks convincing. So convincing, in fact, that we have cause to wonder whether Mr Nii, who also appeared for Mr Kakas in the National Court, articulated the argument before the learned trial judge as clearly as he has before us. The transcript of the National Court proceedings suggests that he did not. We respectfully suggest that his Honour was not put in a position to appreciate the strength of the argument, being mixed as it was with a number of other less cogent ones.

15. It is clear to us, having carefully considered the argument, that it is very sound. In the course of deliberating on the charge, the Commissioner made a number of adverse and serious findings against Mr Kakas that were not part of the charge. The charge did not allege that Mr Kakas was unlawfully in possession of the firearm, should not have taken the firearm in the first place, was not authorised to take it or acted contrary to police procedures. The sole allegation was that he did not take proper security of the firearm. However, the Commissioner's reasons for decision did not address that issue, other than to say that the loss of the firearm was unacceptable. The Commissioner did not consider the explanation given by Mr Kakas – that he was attacked and wounded by a gang of criminals who in the course of their attack stole the firearm – other than to mention that it had been taken into account. We agree with Mr Nii's submission that, in effect, Mr Kakas was found guilty of a disciplinary offence with which he had not been charged.

16. When the head of a disciplined force directs his or her mind to whether an officer of the force has committed a disciplinary offence, the focus must be on the actual charge laid against the officer. Further, the explanation that the officer has given must be carefully considered and the reasons the decision-maker gives for finding the officer guilty must demonstrate that that has happened.

17. If the reasons for finding an officer guilty show that the decision-maker has focussed on matters other than those made the subject of the charge and/or has failed to consider the officer's explanation, the decision to find the officer guilty will be made in error, in that it will constitute a denial of natural justice. Failure to give sufficient reasons for a decision that a person is guilty of a disciplinary offence also constitutes a denial of natural justice (Ombudsman Commission v Peter Yama (2004) SC747, Mision Asiki v Manasupe Zurenuoc (2004) SC747).

18. In the present case, the Commissioner of Police made such errors in that he:

• focussed on matters other than those made the subject of the charge;
• failed to consider the officer's explanation; and
• failed to give sufficient reasons for his decision.
  

19. Those errors were made the subject of the grounds of judicial review advanced before the National Court. The application for judicial review should, we consider, have been upheld.

20. We conclude that the National Court erred in law by dismissing the ground of review about Mr Kakas being found guilty of something that he was not charged with. We will therefore uphold the appeal and quash the order of the National Court.

WHAT HAPPENS NEXT?

21. There are several options available under Section 16 of the Supreme Court Act, which states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgement; or

(c) give such judgement as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.

22. The most viable options are under Sections 16(c) and (e): we should give a substitute judgment or order a new trial. We have decided to take the first option because the issue is – now that it has been properly articulated by the appellant's counsel – clear-cut; and this will avoid a multiplicity of proceedings.

23. We will order that the decision of the Commissioner finding Mr Kakas guilty be quashed and that Mr Kakas be reinstated. As to payment of lost salary and emoluments, which Mr Nii submitted should, in the event of a successful appeal, be backdated to the date of dismissal, we consider that going back that far would result in an unwarranted windfall gain to the appellant. He was dismissed on 22 January 2001. It was more than four years before the matter went to trial, on 1 August 2005. We consider that that date is the most appropriate to fix on for the purposes of calculation of back-pay. Our formal orders will be drafted accordingly.

ORDER

(1) The appeal is upheld.

(2) The order of the National Court of 31 August 2005 in OS No 333 of 2001, dismissing the application for judicial review and ordering costs to the respondents, is set aside.

(3) The decision of the Commissioner of Police, dismissing the appellant from the Police Force, is quashed.

(4) The Commissioner of Police must reinstate the appellant, to his former or an equivalent rank or position in the Police Force, or if his former or equivalent rank or position is unavailable he must be reinstated in a way that makes him an unattached officer and in either case he must from the date of reinstatement be paid salary and other emoluments at a level equivalent to those paid in respect of his former rank or position.

(5) Reinstatement of the appellant must be effected within 60 days after the date of entry of this judgment.

(6) The Commissioner of Police and the State must pay to the appellant a sum of money equal to the salary and emoluments, less tax, payable in respect of the rank or position he held or an equivalent rank or position, in the period from 1 August 2005 to the date of his reinstatement.

(7) For purposes of assessment of that sum this matter shall be remitted to the National Court at Waigani and the Registrar of the National Court shall set the matter down for hearing for those purposes within 60 days after the date of entry of this judgment.

(8) Costs of these proceedings are to be paid by the Commissioner of Police and the State to the appellant on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

___________________________________________________________

Harvey Nii Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the Respondents