SC1014

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 11 0F 2008

ROBERTSON RATABA
Appellant

V

GARI BAKI, COMMISSIONER OF POLICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J, Gabi J, Yagi J

2009: 26 October,
2010: 26 February

STATE SERVICES – Police Force – disciplinary proceedings under Police Act, Part IV – appointment of "disciplinary officers" – whether Commissioner can appoint a non-commissioned officer as a disciplinary officer – method and proof of appointment of disciplinary officers 

The appellant was a member of the Police Force and faced disciplinary charges. The charges were laid by a Chief Inspector and the matters were investigated by a Sergeant. The appellant was found guilty and dismissed from the Police Force. He applied for judicial review in the National Court on the ground, amongst others, that the Sergeant who investigated the matters was a non-commissioned officer who had not been appointed by the Commissioner, contrary to the Police Act which requires that a disciplinary officer be a commissioned officer appointed by the Commissioner. Judicial review was refused, the trial Judge holding that the Commissioner has a discretion whether he appoints a commissioned or non-commissioned officer as a disciplinary officer and it was not necessary for an instrument of appointment to be in evidence before the court. The appellant appealed against the refusal of judicial review. 

Held:

(1)	Only officers who are commissioned officers, as defined by Section 4 of the Police Regulation 1998, can be appointed as disciplinary officers.

(2)	A commissioned officer must be appointed by the Commissioner and proof of the appointment must be available if an appointment is challenged.

(3)	A Sergeant is not a commissioned officer and the Commissioner lacked power to appoint a Sergeant as a disciplinary officer.

(4)	Further, there was no evidence that the Sergeant who conducted the investigation had been appointed as a disciplinary officer.

(5)	The National Court erred in law by deciding that the Commissioner had a discretion to appoint a non-commissioned officer as a disciplinary officer and by inferring, in the absence of evidence, that the Sergeant had been appointed by the Commissioner. 

(6)	The appeal was upheld and orders made for reinstatement of the appellant and payment of back-pay to the date of trial.

Cases cited

The following case is cited in the judgment:

The State v Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448

APPEAL 

This was an appeal against refusal by the National Court of an application for judicial review. 

Counsel

R Uware, for the appellant
H Ette, for the respondents

26 February, 2010

1. BY THE COURT: Robertson Rataba, the appellant, was in 2004 found guilty of disciplinary charges and dismissed as a member of the Police Force. He applied for judicial review in the National Court of the decision to dismiss him. The National Court, constituted by Injia DCJ, as he then was, refused judicial review and Mr Rataba has appealed to this court against that refusal. He argues that the National Court erred in law by concluding that the Commissioner of Police had discretion to allow a non-commissioned officer, a Sergeant, to investigate the disciplinary charges against him and that it was not necessary for there to be evidence that the Sergeant had been appointed as a disciplinary officer by the Commissioner. 

2. The Commissioner argues that the National Court decision was correct: he does have the power to appoint a non-commissioned officer as a disciplinary officer and it was proper for the National Court to infer, in the absence of direct evidence, that the Commissioner had appointed the Sergeant as a disciplinary officer.

3. At the start of the appeal hearing the Commissioner raised preliminary points that also need to be addressed.

4. There are four issues we have to determine:

1.	Is the appeal properly before the Court?

2.	Does the Commissioner of Police have the power to appoint non-commissioned officers as disciplinary officers?

3.	Must there be direct evidence of appointment of a disciplinary officer?

4.	What orders should the Supreme Court make to resolve the appeal?

1	IS THE APPEAL PROPERLY BEFORE THE COURT?

5. Mr Ette, for the Commissioner, submitted that the appeal is defective and should be dismissed for two reasons. First, the notice of motion by which the appeal was instituted does not properly identify the National Court proceedings from which the appeal arises. Secondly, the notice of motion names the first respondent as Gari Baki, Commissioner of Police when the name that should have been used was Sam Inguba, he being the Commissioner at the time of the decision to dismiss the appellant from the Police Force.

6. Neither of these points is meritorious. First, the notice of motion sufficiently identifies the decision being appealed against. Secondly, it was open to the appellant to name as respondent the person who occupied the position of Commissioner of Police at the time the appeal was filed. Furthermore, both points should have been the subject of a notice of objection to competency under Order 7, Rule 14 of the Supreme Court Rules. Such notices must be filed and served within 14 days after service of the notice of motion. Failure to comply with this requirement means that the objecting party has no right to have their objection entertained (The State v Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448). 

The appeal is properly before the Court.

2	DOES THE COMMISSIONER OF POLICE HAVE POWER TO APPOINT NON-COMMISSIONED OFFICERS AS DISCIPLINARY OFFICERS?

7. The appellant faced five disciplinary charges, which were laid by Chief Inspector Anthony Mota, who was a commissioned officer.

8. Section 4 of the Police Regulation 1998 states that commissioned officers are those holding the rank of Inspector and above, namely:

Commissioner
Deputy Commissioner
Assistant Commissioner
Chief Superintendent
Superintendent
Chief Inspector
Senior Inspector
Inspector.

9. The remaining ranks of the Regular Constabulary Branch are non-commissioned ranks, namely:

Cadet Officer
Sergeant Major
Senior Sergeant
Sergeant
Senior Constable
First Constable
Constable
Probationary Constable. 

10. Chief Inspector Mota prepared an investigation report and submitted it to Sergeant Pare Kuiap – a non-commissioned officer – who prepared an adjudication report for the Commissioner. The Commissioner sustained four of the five charges and imposed the penalty of dismissal from the Police Force. 

11. In the National Court the appellant argued that the involvement of Sergeant Kuiap in the disciplinary process was unlawful as he was not a commissioned officer. Only commissioned officers can be appointed by the Commissioner as disciplinary officers. That argument was rejected by the trial judge who held that the question of who to appoint to investigate or adjudicate on a disciplinary matter was a matter of discretion for the Commissioner. He could appoint a non-commissioned officer who was appropriately qualified and experienced. His Honour held that it was evident from the formatting and contents of the report prepared by Sergeant Kuiap that he was knowledgeable and experienced in police disciplinary matters. It was also relevant that the appellant was a Constable, so the Sergeant was investigating and reporting to the Commissioner on a member who was below his rank. 

12. With respect, we do not agree that the Commissioner has the power to appoint non-commissioned officers as disciplinary officers. Section 19(1) (disciplinary officers) of the Police Act 1998 states:

The Commissioner may from time to time and at any time appoint commissioned officers to act as disciplinary officers for the purposes of this Part.

13. The powers and functions of disciplinary officers regarding serious disciplinary offences are prescribed by Division IV.3 (discipline) of the Police Act. Section 23(2) (dealing with serious disciplinary offences) states that a member "may be charged by the Commissioner or by a commissioned officer authorised by the Commissioner to lay charges under Section 19". 

14. Sections 24 (determination of charge) and 25 (imposition of penalty where charge sustained) deal with the next steps of the disciplinary process, ie after the laying of the charge. In summary:

•	the Commissioner appoints a disciplinary officer (who must be a person other than the person who charged the member and of superior rank to the member charged) to investigate the matter and report to him (Sections 24(1) and (2));

•	the disciplinary officer must consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and consider any further reports that the disciplinary officer thinks fit (Sections 24(3) and (4));

•	after conducting an investigation under Section 24 the disciplinary officer must furnish a report to the Commissioner advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended (Section 25(1));

•	the Commissioner considers the report and decides whether to sustain the charge and impose a penalty or to dismiss the charge (Sections 25(2) to (7) and 26); 

•	the Commissioner's decision on the finding of guilt and on penalty for serious disciplinary charges is final (Section 27). 

15. It is clear that the only person who can charge a member with a serious disciplinary offence and investigate a matter and report to the Commissioner is a disciplinary officer appointed under Section 19(1). Who can be appointed a disciplinary officer? The learned trial judge held that this was a matter of discretion for the Commissioner. His Honour stated:

However, the Commissioner is given a discretion by Section 19(1) by the use of the word "may": Tindiwi & Ors v Nilkare [1984] PNGLR 191. …

In my view, Section 19(1) gives the Commissioner an independent discretion to appoint a commissioned officer as a disciplinary officer. Under this provision it is within the Commissioner's discretionary power to appoint, by delegation or otherwise, an officer other than a commissioned officer, who is appropriately qualified and experienced, to perform the functions of a commissioned officer under Division IV.3 (Sections 23-25) of the Police Act. 

16. We do not consider that that is a correct construction of Section 19(1). The effect of the word "may" is to confer power on the Commissioner and to give him a discretion to appoint disciplinary officers. But that power is qualified: he may only appoint commissioned officers. Non-commissioned officers are not eligible for appointment. The Commissioner had no power to appoint a non-commissioned officer, such as Sergeant Kuiap, as a disciplinary officer. We find that the learned trial Judge erred in law in reaching the opposite conclusion. 

3	MUST THERE BE DIRECT EVIDENCE OF APPOINTMENT OF A DISCIPLINARY OFFICER?

17. In the National Court there was no direct evidence that Sergeant Kuiap had actually been appointed as a disciplinary officer. The trial Judge dealt with this issue by concluding:

Although there is no evidence of any instrument of appointment appointing him as a disciplinary officer, I infer from the manner in which the process was followed, including the Commissioner's reliance upon the report, that Sergeant Kuiap was duly appointed as a disciplinary officer.

18. With respect, we do not agree that it is sufficient to draw an inference that someone has been duly appointed in the absence of direct evidence. If a person's appointment is challenged – as it was in this case – it is incumbent on the Commissioner, as the appointing authority, to prove that an appointment has been made in accordance with the Act. The best way of doing that would be to present an instrument of appointment, not because the Act requires that an appointment be by instrument in writing – it doesn't – but because appointing people that way avoids doubt as to the status of an officer who lays or investigates charges. If there is no instrument of appointment the Commissioner would need to prove by presenting admissible evidence that in fact he appointed the person whose status has been challenged, eg by proving that he orally appointed the person. 

19. No such evidence was presented to the National Court and we consider, with respect, that his Honour erred by concluding that Sergeant Kuiap had been duly appointed. 

4	WHAT ORDERS SHOULD BE MADE?

20. We are satisfied that the National Court erred in law by deciding that the Commissioner had a discretion to appoint a non-commissioned officer as a disciplinary officer and by inferring, in the absence of evidence, that Sergeant Kuiap had been appointed by the Commissioner as a disciplinary officer. We will uphold the appeal. As to the relief that should be granted to the appellant, 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 judgment; or

(c)	give such judgment 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. 

21. The most viable options are under Sections 16(c), (d) and (e): we could give a substitute judgment or remit the case for further hearing or order a new trial. We have decided to take the first option because the issues raised by the grounds of judicial review have been resolved by our judgment. It would serve little purpose to remit the case or order a new trial. We will order that the decision of the Commissioner finding the appellant guilty be quashed and that appellant be reinstated. 

22. As to payment of lost salary and emoluments, which Mr Uware 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 17 November 2004. That was more than two years before the matter went to trial, on 18 September 2007. We consider that that date is the most appropriate to fix on for the purposes of calculation of back-pay. Our orders will be drafted accordingly. 

ORDER 

23. The Supreme Court will order that:

1	the appeal is upheld; 

2	the order of the National Court of 27 June 2008 in OS (JR) No 963 of 2005, dismissing the application for judicial review and ordering costs to the respondents, is quashed;

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 in the Police Force, or if his former or equivalent rank is unavailable he must be reinstated in a way that makes him an unattached member 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;

5	reinstatement of the appellant must be effected within 30 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 he held or an equivalent rank or position, in the period from 18 September 2007 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 30 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.
_____________________

Public Solicitor: Lawyer for the Appellant
Police Legal Services: Lawyers for the Respondents