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Openefa v Wagera [1980] PNGLR 188 (6 August 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 188 - Benas Openefa v Willie Karai Wagera 

[1980] PNGLR 188

N242

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE] SITTING AS DEFENCE FORCE COURT

BENAS OPENEFA

V

WILLIE KARAI WAGERA

Waigani

Andrew J (Sitting as Defence Force Judge)

30 May 1980

6 August 1980

DEFENCE - Offences - Disciplinary proceedings - Punishment - Validly - Imposed by superior officer not conducting disciplinary proceedings - One overall punishment for more than one charge proper - Record of proceedings - Defence Act 1974, Sch. C. 9(6), C. 9(7), C. 9(7).

DEFENCE - Offences - Disciplinary proceedings - Absent without leave - Disobeying a lawful order - Offences discussed.

DEFENCE - Offences - Disciplinary proceedings - Appeals - National Court sitting as Defence Force Judge - Powers on appeal - Miscarriage of justice required.

Held

(1)      On an appeal from disciplinary proceedings conducted by a senior disciplinary officer, to a judge of the National Court, (sitting as a defence court judge) under Sch. C.10 of the Defence Act 1974, the National Court is required to make such orders as are necessary to do justice in a particular case and should accordingly allow an appeal if there has been a substantial miscarriage of justice.

(2)      A disciplinary officer conducting disciplinary proceedings has power to refer the question of punishment to a superior officer, and a punishment imposed by such an officer when he has not otherwise conducted the disciplinary proceedings is validly imposed.

(3)      Where disciplinary proceedings are conducted in respect of more than one charge it is acceptable procedure consistent with the terms and aims of the Defence Act 1974, its schedule and the Code of Military Discipline, to impose one overall punishment.

Offences of disobeying lawful order and being absent without leave discussed.

Appeal

This was an appeal against findings of guilt and punishment imposed by a disciplinary officer in the defence force, in respect of three charges namely; being absent without leave, disobeying a lawful order and behaving in a subordinate manner.

Counsel

D. W. Lightfoot, for the appellant.

M. T. Litau, for the respondent.

Cur. adv. vult.

6 August 1980

ANDREW J: The appellant was a lieutenant in the defence force and was found guilty, on 25th January, 1980, of three charges namely; being absent without leave, disobeying a lawful order and behaving in an insubordinate manner pursuant to Sch. C. 4(2)(j), C. 4(2)(g) and C. 4(2)(e) of the Code of Military Discipline under the Defence Act 1974. As a result of the three convictions he was reduced in rank to second-lieutenant by the Commander of the Defence Force, Brigadier-General E. R. Diro.

He now appeals against the three convictions and the punishment by virtue of the procedure for appeal established by Sch. C. 10(4) of the Defence Act.

The appeal raises important questions concerning the jurisdiction and procedures of disciplinary proceedings and for that reason I set out the grounds of appeal as they appear in the notice of appeal and deal with them in that order.

Ground 1, “(a) that the hearing was not conducted in accordance with the provisions of the Defence Act 1974 in that:

(i)       Major I. J. Glanville who heard the charges did not comply with the requirements of Schedule C9(6) of the Code;

(ii)      Commander Brigadier-General E. R. Diro who awarded the punishment did not properly hear the charges in accordance with the requirements of Schedule C9 of the Code.”

Briefly stated the evidence before me discloses that the appellant appeared before Major Glanville who had been appointed a senior disciplinary officer. The exact charges were:

1.       “To absent himself without leave, in that he at Igam Barracks, Lae, Morobe Province, P.N.G., absented himself without leave from 0001 hrs 4 Dec 79 to 1700 hrs 18 Dec 79.

2.       Disobeying a lawful order, in that he at Moem Barracks, Wewak, P.N.G., on 20 Dec 79, when ordered by 871834 Lt. Nalau, Investigating Officer appointed by ADJT 2 PIR to submit a written statement for an Investigation Report, did not do so.

3.       Behaving in an insubordinate manner, in that he at Moem Barracks, Wewak, P.N.G., on 20 Dec 79 did say ‘BUDDY THERE IS NO POINT IN INVESTIGATING. I WENT AWOL ON MY ACCORD SO YOU CAN TELL THEM TO HANG ME AND IF I AM GIVEN A CHANCE TO SAY MY FINAL PRAYERS I’LL DO SO IN THE EYES OF THE C.O. NO STATEMENT FROM ME’, or words to that effect.”

The appellant pleaded guilty to charges one and two and not guilty to the third. He was convicted of all three. The hearing was conducted on 3rd January, 1980. Following conviction the senior disciplinary officer referred the matter to the Commander of the Defence Force for sentence and on 25th January, 1980 the Commander imposed the punishment of reduction of rank to second-lieutenant.

The first ground of appeal goes largely to procedural matters. Schedule C. 9(6) of the Defence Act provides:

“(6)    A disciplinary officer conducting any disciplinary proceedings shall keep in the prescribed manner a record of:

(a)      the charge; and

(b)      the defence or explanation (if any) of the person charged; and

(c)      the decision; and

(d)      the reasons for the decision,

and a note of the evidence given, and such other records as are prescribed.”

The appellant submits that this is a mandatory provision to keep a prescribed record and that there is no such record in this case.

I should interpolate at this point that a defence council is created by s. 12 of the Defence Act. Its functions are defined by s. 13 particularly s. 13(2). The 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. Defence council order of 27th November, 1975 prescribes the manner in which disciplinary proceedings in the defence force shall be conducted.

The record of proceedings shows that a preliminary investigation was conducted (which is in accordance with defence council order). There is then a charge sheet in a prescribed form (known as a PD38) setting out, inter alia, the date of the offence, details of the charge, the plea recorded, the finding, the witnesses called and the punishment awarded.

The Defence Act gives no general guidance to the National Court constituted by a defence force judge as to the principles upon which an appeal should be allowed or dismissed. However by Sch. C. 10(7) the National Court is deemed to have the same jurisdiction as the Commander of the Defence Force has under Sch. C. 8 and the Commander has a general power to make such order as he considers necessary to do justice in a particular case. Order 48 of the defence council order of 27th November, 1975 provides that on an appeal to the National Court the procedure and forms to be adopted are to be similar in form to those provided by the Local Courts Act 1963. That Act provides that on an appeal to the National Court from the Local Court the appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice. Because the defence council order adopts the rules of the local court I draw some assistance from this. I conclude that the National Court sitting by way of review and appeal under Sch. C. 10 of the Defence Act 1974 is required to make such orders as are necessary to do justice in a particular case and that it would allow an appeal if there had been a substantial miscarriage of justice. In this context it must be guided by the Defence Act which is an Act to provide for the control, maintenance and discipline of the defence force and by the Constitution which recognizes the special nature of disciplined forces: Constitution ss. 203, 208.

In relation to the first two charges in this case I find that there is sufficient compliance with Sch. C. 9(6). The appellant pleaded guilty to both charges. The details of the charges, appellant’s plea of guilty, the decision and the punishment are all recorded in the prescribed manner and in these circumstances I am unable to see that there has been any miscarriage of justice.

However I am of the view that the situation is different in relation to the third charge of behaving in an insubordinate manner. The appellant pleaded not guilty. There is material before me to show that three witnesses were called but nowhere is there any record of that evidence and nowhere are there any reasons for the decision. In these circumstances I find that there has not been sufficient compliance with Sch. C. 9(6), and I do not think this is overcome by Sch. C. 9(3) that the disciplinary officer is not bound by any technical rules of law or evidence. The fact is that there is insufficient material before this Court upon which the conviction can be tested.

Under ground 1(a)(i) I would dismiss the appeal against the first two charges but allow the appeal against the conviction on the third charge of behaving in an insubordinate manner.

Under ground 1(a)(ii) counsel for the appellant submits that only the senior disciplinary officer hearing the charges had power to impose any punishment and there was no power to refer the question of sentence to the Commander. However orders 37, 38 and 39 of the defence council order of 27th November, 1975 provide for referral to another disciplinary officer. Order 37 provides that even where a disciplinary officer has commenced a hearing he may transmit his record of hearing to another disciplinary officer who may proceed with the hearing having regard to the stage previously reached. Order 39 commences: “Where there is no miscarriage of justice apparent on the face of the record when a matter has been referred for sentence only ...” Clearly these orders give widespread powers of referral upon a hearing and there clearly emerges an intention that the question of sentence may also be referred. Furthermore I am satisfied that Sch. C. 9(7) gives such a power:

“(7)    If the disciplinary officer, at any stage of any disciplinary proceedings before he has imposed a punishment considers that:

(a)      the breach of service discipline warrants or may warrant a punishment more severe than he has power to impose; ...

he may:

(e)      in any other case—refer the matter, as prescribed, for hearing to another disciplinary officer having jurisdiction.”

Counsel for the appellant submitted that the concluding words of the section indicated that a proceeding could only be referred for a continuation of a “hearing” and not of a matter for sentence only. But the question of sentence is also a matter for “hearing” and I am satisfied that the concluding words of the section do not limit the opening words that the matter may be referred “at any stage of any disciplinary proceedings before he has imposed a punishment”.

I would dismiss this ground of appeal.

The second ground of appeal was as follows:

Ground 2, “That the second and third charges on which the Appellant was convicted were bad in law as being vague, uncertain and ambiguous and did not disclose an offence.”

I have already upheld the appeal against the third charge so that it is unnecessary to consider this ground in relation to it. The second charge was for disobeying a lawful order. Whilst undoubtedly in the drawing of charges it is essential that the particulars in support of the statement of the offence support such an offence, I am satisfied that in this case there is no vagueness, ambiguity or uncertainty in the second charge. The nature of the order, the date and place where it was given and the allegation of non-compliance are all spelt out. There is a further statement and particulars of the offence set out in the brief summary of facts. The appellant pleaded guilty to the charge. I cannot see that he could have been in any doubt as to what was alleged against him.

I would dismiss this ground of appeal.

The third ground of appeal was as follows:

Ground 3       “That the evidence before the disciplinary officer did not disclose that the Appellant:

(i)       was absent without leave contrary to Schedule C.4(2)(j) or

(ii)      disobeyed a lawful order contrary to Schedule C.4(2)(g) or

(iii)     behaving in an insubordinate manner contrary to Schedule C.4(2)(e) of the Code.”

Again, it is unnecessary to consider this ground in relation to the third charge.

At the hearing of this appeal, counsel for the appellant made application to call fresh evidence. The application was overruled on the basis that the proposed evidence was not evidence which could not with reasonable diligence have been obtained for use at the trial.

Furthermore, the appellant had pleaded guilty to the first two charges and it could not be said that he was taken by surprise. As an officer of the defence force it can be assumed that he is an intelligent and resourceful person.

The main argument advanced under this ground was that the appellant had not disobeyed the command of a superior officer. The second charge concerned the order of Lieutenant Nalau to the appellant to submit a written statement as to the alleged period of absence without leave. Lieutenant Nalau and the appellant held the same rank. Schedule C. 4(2)(g) of the Code creates the offence of “disobeying a lawful order”. It does not refer to the lawful order of a superior officer. Under the defence. council order of 27th November, 1975, disciplinary proceedings may be commenced and charges brought in certain circumstances by a member of a higher or equal rank to that of the offender. Lieutenant Nalau was himself carrying out orders when he required the appellant to submit a written statement as to his alleged absence without leave. The question then is whether or not Lieutenant Nalau’s order was lawful. In my view it was. It was an order between officers of equal rank in consequence of a lawful order from an officer of higher rank.

I can see no miscarriage of justice under this ground of appeal and I dismiss it.

The final ground of appeal is that in all the circumstances the punishment imposed was excessive.

I think the first point to note is that only one punishment was imposed overall for each of the three charges. In my opinion this is an acceptable procedure and consistent with the terms and aims of the Defence Act and its schedule, the Code of Military Discipline.

I accept the submission of counsel for the respondent that the first two charges were more serious than the third charge of insubordinate manner.

There is before me a report on the punishment imposed, prepared by the Commander of the Defence Force. Such reports are both desirable and in accordance with O. 48 of the defence council order of 27th November, 1975. I set out the report in full:

“1.      Lt Openefa was appointed an officer in the Defence Force on 20 Dec 74. He is therefore one of the more senior Lieutenants serving in the Force. My decision to reduce him to the rank of 2Lt was not made lightly and was brought about by the following considerations:

1.1     Duration of AWOL. The officer had absented himself without leave for approx 14 days which is totally unacceptable from an officer of his rank and service. AWOL is becoming a prevalent offence in the Force, therefore a stern action against the offenders is unavoidable if PNGDF is to remain a viable and disciplined Defence Force. Lt Openefa’s sentence was also intended as an example to others.

1.2     The seriousness of disobeying a lawful order needs no detailed amplification by me. It is a very serious matter indeed as it challenges the very foundations of the military profession, namely, automatic obedience to orders. The officer showed qualities which are unprofessional and totally disgraceful to the officer corps and which warranted severe punishment.

1.3     in awarding the punishment that I did, I intended to maintain consistency throughout the Force—anyone who commits a very serious military offence such as disobeying a lawful order must be severely punished irrespective of rank.”

I agree entirely with this assessment and it makes it clear that the conviction on the third charge of behaving in an insubordinate manner had little or no influence in the overall punishment. In my view the punishment was justified and in no way could it be said to be excessive. In particular the importance of the requirement to obey lawful orders is recognized by s. 208 of the Constitution.

I dismiss the appeal against the punishment.

The appeal is allowed in part only in that the conviction on the third charge of behaving in an insubordinate manner is quashed. The convictions on the first and second charges of being absent without leave and of disobeying a lawful order are confirmed.

The punishment of reduction in rank to second-lieutenant is confirmed.

Orders accordingly.

Solicitor for the appellant: D. J. McDermott, Acting Public Solicitor.

Solicitor for the respondent: M. T. Litau, Defence Force Legal Officer.