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Kilik v Boidarua [1979] PNGLR 583 (9 November 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 583 - Songul Kilik v Mathew Boidarua 

[1979] PNGLR 583

N206

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SONGUL KILIK

V

MATHEW BOIDARUA

Waigani

Raine DCJ

26 October 1979

9 November 1979

DEFENCE - Offences - Punishment by members of force - Reduction in rank - Who may impose - Summary trial by junior disciplinary officer - No power under Act to reduce N.C.O. in rank - Not remedied by Defence Council Orders.

The appellant was a corporal in the Defence Force who was charged with disobeying a lawful command pursuant to Sch. C4(2)(9) of the Defence Act 1974. The major who heard the charge and purported to reduce the rank of the appellant to private, was a junior disciplinary officer only, and not declared to be or appointed as a senior disciplinary officer. Under Sch. C8(3)(b) of the Defence Act 1974, a junior disciplinary officer has no power to reduce rank, and under Sch. C1, disciplinary officers must be either declared to be such by the regulations or by the Defence Council Orders, or appointed by the commander. A Defence Council Order of 6th March, 1975, provided by orders 10 and 11 as follows:

“10.    In all regulations made and Defence Council Orders passed under the Defence Act 1974 except where the contrary intention appears, mention of a person by designation of his office includes every person who at any time lawfully performs the function of or acts in the office (whether by virtue of permanent, temporary or acting appointment) or by the assumption of the functions of the office in pursuance of these orders or Defence Council Orders or of any order, or of the custom of the service.

11.     Any power or jurisdiction given to, and any act or thing to be done by, to or before any person holding any service office for the purposes of these orders, may be exercised by or done by to or before any person for the time being authorized in that behalf according to the custom of the service.” On appeal against the punishment inflicted,

Held

(1)      In a summary trial of a charge under the Defence Act 1974 there is no power deriving from the act which permits a junior disciplinary officer to reduce a non-commissioned officer in rank.

(2)      The use of the words “in pursuance of the custom of the service”, and “according to the custom of the service”, in orders 10 and 11 of the Defence Council Orders of 6th March, 1975, could not be interpreted as conferring powers or rank beyond those conferred by the Defence Act 1974.

(3)      Accordingly, there was no jurisdiction in the officer hearing the charge to order reduction in rank as punishment, and the punishment should not stand.

Appeal

This was an appeal to a judge of the National Court sitting as a Defence Force judge, against punishment imposed on a charge of disobeying a lawful command pursuant to Sch. C4(2)(g) of the Defence Act 1974. The ground of appeal was that the major hearing the charge did not have power to impose a punishment of reduction in rank.

Counsel

C. G. Marlow, for the appellant.

M. P. Thompson, for the respondent.

Cur. adv. vult.

9 November 1979

RAINE DCJ:  The appellant was a corporal in the Defence Force, and was purportedly reduced to the rank of private by a major on a charge of disobeying a lawful command pursuant to Sch. C4(2)(g) of the Defence Act 1974.

By agreement I have not gone into the merits at this stage, for one ground of appeal is that the major who heard the charge was not a senior disciplinary officer appointed pursuant to Sch. C8(2). A minute on the file signed by Brigadier-General E. R. Diro, the commander of the force, indicates that the major was a junior disciplinary officer. Military offences are dealt with in a summary way in the force by the commander, or a senior or junior disciplinary officer, there are no court martial type proceedings as in the British systems of military law. The disciplinary officers, under Sch. C1, must be either declared to be such by the regulations or by Defence Council Orders, or appointed by the commander. In fact the officer who convicted the appellant was not declared to be or appointed as a senior disciplinary officer. This is conceded.

Schedule C7(1) sets out “in descending order of severity,” various punishments that may be awarded. As would be expected in a disciplined force C7(1)(c) provides for “... reduction in rank, with or without detention.” However, C8(3)(b) puts limitations on punishments by a junior disciplinary officer, and he has no power to reduce in rank.

Counsel for the respondent conceded, and rightly so, that if the matter stopped here then there was no jurisdiction in the major to award the punishment that he did. However, counsel referred me to a Defence Council Order of 6th March, 1975, and submitted orders 10 and 11 cured the problem that was created. They read:

“10.    In all regulations made and Defence Council Orders passed under the Defence Act 1974 except where the contrary intention appears, mention of a person by designation of his office includes every person who at any time lawfully performs the function of or acts in the office (whether by virtue of permanent, temporary or acting appointment) or by the assumption of the functions of the office in pursuance of these orders or Defence Council Orders or of any order, or of the custom of the service.

11.     Any power or jurisdiction given to, and any act or thing to be done by, to or before any person holding any service office for the purposes of these orders, may be exercised by or done by to or before any person for the time being authorized in that behalf according to the custom of the service.”

The Defence Council is created by s. 12 of the Defence Act 1974. Its functions are defined as follows:

“13.    FUNCTIONS OF THE DEFENCE COUNCIL

(1)      Subject to this Act and to any other Act, and to any directions of the High Commissioner in Council, the Defence Council has the following functions:

(a)      through the Commander of the Defence Force, to have control of the Defence Force; and

(b)      to supervise the administration of the Defence Force and the Department; and

(c)      after consultation with the Public Service Board, to determine the terms and conditions of service (including pay and allowances) of members of the Defence Force; and

(d)      such other functions as are provided for by the Regulations.

(2)      Subject to this Act and the Regulations, the Defence Council may make and issue Defence Council Orders as to any matter that may be provided for by the Regulations, and the Orders are binding, in accordance with their tenor, on members of the Defence Force, other persons subject to the Code of Military Discipline and officers and employees of the Public Service in the Department.

(3)      The Minister may, by notice in writing, authorize the Secretary and the Commander of the Defence Force to exercise and perform jointly, in the name of the Defence Council, any of the powers and functions of the Council, but nothing in this subsection prevents the exercise of a power or the performance of a function by the Council.

(4)      A document purporting to be a Defence Council Order or a copy of a Defence Council Order bearing the signature or a facsimile of the signature of the Secretary for Defence is prima facie evidence that it is such an Order or a copy of such an Order.”

Orders 10 and 11 are found amongst orders which commence with the heading: “RANKS — POWERS OF COMMAND, SENIORITY — UNDER SECTION 21 OF THE DEFENCE ACT 1974.”

I am afraid it is necessary to set out orders 1 to 9 and 12 to 15, in order to see orders 10 and 11 in their proper context. They are:

“1.      The ranks prescribed in S21(3) depending upon the conditions under which they are held shall be:

1.1     probationary;

1.2     substantive; and

1.3     provisional as provided for by Defence Council Orders.

2.       Seniority in rank shall, subject to these orders, be as prescribed by Defence Council Orders — (Manual of Personnel Administration). Command

3.       Unless the Commander of the Defence Force otherwise directs:

3.1     the Commanding Officer of an area shall exercise command over all units of the area;

3.2     the Commanding Officer of a unit or ship or Captain of an aircraft shall exercise command over all officers, non commissioned officers and other ranks at the unit or ship or aircraft; and

3.3     where a Commanding Officer ceases for any reason to exercise command he is to be succeeded by the next member in the chain of command, unless or until otherwise ordered.

4.       Where more than one unit or element or other formation is serving together command of the combined force shall be exercised by such officer as may be named by the Commander of the Defence Force.

5.       Where units or detachments of different elements are employed together on any duty each unit or detachment, subject to the orders of the officer commanding the whole body will act under the immediate authority of its own commander in matters relating purely to the character of the element involved.

6.       Where, in a combined force referred to in 4. above no officer has been named to exercise command, or where named is absent from the combined force command shall be assumed unless otherwise directed by the Commander of the Defence Force by the senior officer in the combined force.

7.       No officer or other person who is a chaplain shall exercise command over any other officer or other member of the force.

8.       No officer, non-commissioned officer or other rank who is taking passage in a ship or aircraft has power of command in relation to the operation or safety of the ship or aircraft or to any other matter concerning the routine or management of the ship or aircraft.

9.       The officer Commanding Papua New Guinea Defence Force Police Unit, or an officer of that unit may authorise members of the Force Police to give such orders to non-commissioned members as that officer shall consider necessary for the maintenance of discipline and good order. Non-commissioned members notwithstanding that they are of superior rank, shall obey order so given by the Force Police. Officers of whatever rank shall comply with the directions of an officer of the Force Police.”

“12.    Subject to these orders members of the Defence Force shall rank and take precedence and seniority in accordance with the ranks prescribed by S21(1) of the Defence Act 1974, the first named rank being the most senior rank.

13.     For the purposes of these orders, and the Code of Military Discipline:

13.1    subordinate in rank, in relation to a member means another member who:

13.1.1 holds a lower rank; or

13.1.2 holds the same rank but has a lesser relative seniority, than that member; and

13.2    superior in rank, in relation to a member means another member who:

13.2.1 holds a higher rank; or

13.2.2 holds the same rank but has a greater relative seniority, than that member.

14.     Subject to 15., an officer, non-commissioned officer or other rank shall take seniority within his rank from the date of appointment to that rank in accordance with the Defence Council Orders which may prescribe the manner and conditions under which seniority may be adjusted on:

14.1    reduction or reversion;

14.2    promotion;

14.3    transfer from the Reserve Force to the Regular Force;

14.4    transfer from the Regular Force to the Reserve Force; and

14.5    sentence of a service tribunal or order of a disciplinary officer.

15.     Members appointed provisionally to a rank shall take seniority within that rank after all members appointed substantively to the same rank, and shall within themselves take seniority from the date of their appointment.”

It seems clear to me that order 11 was never intended to create a situation where, let us say, in a battle, a sole lieutenant survived, that he could constitute himself as the commander, or a senior disciplinary officer. He is governed by the Act, so far as discipline is concerned. The words “according to the custom of the service”, so heavily relied upon by the respondent, most certainly bear heavily on other aspects. The surviving officer would become the acting C.O. or O.C., the custom of the service would expect him to step into the shoes of the dead, and to be given the same obedience and deference as they would have expected had they lived. But whilst the junior officer survives, so does the Act, and he does not, and cannot, deem himself commander. See s. 11(1) of the Act. Nor can he deem himself to be a senior or junior disciplinary officer. He might command, in an “in extremis” situation, but he is not the commander within the meaning of the Act. According to the custom of the service he could give orders and directions, and disobedience of them could lead to the offender being ultimately punished. But that is not to say that the survivor assumes the mantle that has never been put around his shoulders.

The appellant must therefore succeed. There was no jurisdiction in the officer hearing the charge to award the punishment that he did. I say nothing as to the merits of the case, no doubt, the whole file being before me, this might concern non-legal members of a disciplined force, for the appellant’s prior record is not good. But this is not the point. If jurisdiction is lacking, then that is that.

The penalty of reduction of rank was confirmed by the commander. Therefore I have jurisdiction. See Sch. C10(6)(c).

The sentence cannot stand. However the officer hearing the charge had jurisdiction to hear it, he was not disqualified by C8(3)(a). Counsel will therefore need to consider what course they desire to follow.

Orders accordingly.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the respondent: M. L. Thompson, Defence Force Legal Officer.