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Sausau v Police Commissioner and The State [1981] PNGLR 327 (14 August 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 327 - Lawrence Allen Sausau v Police Commissioner and The State 

[1981] PNGLR 327

SC206

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

LAWRENCE ALLEN SAUSAU

V

THE POLICE COMMISSIONER AND THE STATE

Waigani

Greville Smith J Kapi J Bredmeyer J

31 July 1981

14 August 1981

QUASI JUDICIAL TRIBUNALS - Administrative and disciplinary tribunals - Police appeal tribunal - Not required to give reasons for decision - To observe constitutional requirements of natural justice - Police Force (Interim Arrangements) Act 1973.

POLICE - Misconduct and discipline - Appeals - Police appeal tribunal - Not required to give reasons for decision - To observe constitutional requirements of natural justice - Police Force (Interim Arrangements) Act 1973.

A Police Appeal Tribunal hearing appeals under the Police Force (Interim Arrangements) Act 1973:

(a)      must observe the principles of natural justice as stated in s. 59 of the Constitution;

(b)      is not required under the Act to give reasons for its decision; and

(c)      is not required under the adopted common law principles of natural justice to give reasons for decisions.

Appeal.

This was an appeal against the refusal of Kearney Dep. C.J. to make absolute an order nisi for certiorari to quash a decision of the Police Appeal Tribunal for failure to give reasons for its decision.

Counsel:

P. Sam, for the appellant.

A. Mullumby, for the first and second respondents.

R. Mellor, for the Police Appeal Tribunal.

Cur. adv. vult.

14 August 1981

GREVILLE SMITH J:  In this matter I have had the advantage of reading the judgment of my brother Bredmeyer J. I agree with what his Honour has to say, and I have nothing to add. I would dismiss the appeal with costs and affirm the order appealed against.

KAPI J:  I also have had the advantage of reading the judgment in this appeal of my brother Bredmeyer J. I likewise agree with what his Honour has to say and I have nothing to add. I would dismiss the appeal with costs and affirm the order appealed against.

BREDMEYER J:  This is an appeal against a decision of Kearney Dep. C.J. given on 7th April, 1981, when he discharged an order nisi for certiorari made on 19th May, 1980, by Miles J. The appellant Lawrence Allen Sausau was Assistant Commissioner of Police and was charged with five serious disciplinary charges under the Police Force (Interim Arrangements) Act 1973. The Commissioner of Police found that each charge had been sustained and pursuant to s. 83(4)(g) of the Act recommended to the Minister in respect of each offence, that Mr. Sausau be dismissed from the force. Mr. Sausau appealed to the Police Appeal Tribunal against the Commissioner’s decision. The appeal came on for hearing before the Tribunal constituted by Senior Magistrate Mr. Kwalimu Lofena. Mr. Sausau and the Commissioner were both represented by counsel before the Tribunal. Mr. Lofena upheld the appeal in respect of one charge but dismissed the appeal in respect of the other four charges.

Mr. Sausau brought a certiorari application against the Tribunal’s decision. The appellant’s main argument on this appeal is that the Tribunal failed to give reasons for its decision, that there was thus a breach of the rules of natural justice, and that therefore certiorari should lie to quash the Tribunal’s decision.

I agree with Kearney Dep. C.J., and it was not otherwise contended before us, that the Tribunal must observe the principles of natural justice as stated in s. 59 of the Constitution and even if this were not so I consider the common law adopted into Papua New Guinea would require it. There is nothing in the Police Force (Interim Arrangements) Act 1973 which would exclude those principles: on the contrary the procedure expressly laid down for the hearing of appeals by the Police Appeal Tribunal incorporates many of those principles.

There is nothing in the Act which requires the Tribunal to give reasons. Mr. Sam, counsel for the appellant, argued that it is a common law requirement that a tribunal such as this one should give reasons. The only English authority cited by Mr. Sam on this point was the leading one of Padfield v. Minister for Agriculture[dlxviii]¹. That case was on an application for mandamus. The appellants were members of the south-east regional Committee of the Milk Marketing Board who referred a complaint to the Minister under s. 19(3)(b) of the Agricultural Marketing Act 1958 asking that it be referred to a committee appointed under that act for investigation and report. The Minister declined to refer it and although not required by the Act to give reasons he gave reasons in two letters for his decision. The appellants sought mandamus to compel the Minister to refer their complaint to the committee. Dealing with the question of reasons Lord Reid said at p. 701:

“It was argued that the Minister is not bound to give any reason for refusing to refer a complaint to the committee, that if he gives no reasons his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position. I do not agree, however, that a decision cannot be questioned if no reasons are given. If it is the Minister’s duty not to act so as to frustrate the policy and objects of the Act of 1958, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister’s refusal, then it appears to me that the court must be entitled to act.”

Lord Hodson dealt with the same point at p. 712 and Lord Upjohn at p. 719. The case is authority for the following points. The Minister was not required to give reasons. Mandamus will lie against him, whether he gave reasons or not, if it appears that his decision was designed to frustrate the policy and objects of the Act. If he does not give any reasons why he rejects what appears to be a genuine complaint, the court may infer that he had no good reason for his decision and order mandamus against him.

The other case cited by Mr. Sam was Giris Pty. Ltd. v. Commissioner of Taxation (Cth.)[dlxix]². It is an Australian case and therefore forms no part of the common law of this country unless it can be regarded as exemplifying the English common law. The High Court there considered s. 99 and s. 99a of the Income Tax Assessment Act 1936 (Cth.) both dealing with the assessment of tax on income from a trust estate. The legislative scheme was that s. 99a applied unless the Commissioner formed the opinion that it was unreasonable to apply it having regard to certain stated matters, in which case s. 99 applied. Barwick C.J. at p. 373 and Windeyer J. at p. 384 both considered that if asked by the taxpayer the Commissioner would be required to give the grounds of his opinion.

I now refer to some authorities that support the proposition that reasons do not have to be given, for example, R. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida[dlxx]³ which held that the Gaming Board of Great Britain did not have to give reasons for its decision in refusing a gaming licence to two Frenchmen. The Court of Appeal held that the applicants had been given a fair hearing and that the Board was not required to give its reasons.

In Taylor v. Public Service Board[dlxxi]⁴ the appellant, a prison warder, was charged with disciplinary offences under the Public Service Act 1902 (N.S.W.). The charges were heard by a delegate especially appointed to hear them by the Public Service Board. The Board found the charges proved and dismissed Taylor. No reasons were given. Taylor sought a declaration that the Board’s decision was a nullity. Samuels J.A. at p. 291, with whom the other judges agreed, said that the Board was not required to give reasons, that Barwick C.J. and Windeyer J. in Giris’s case were concerned with a quite different statutory provision to that under consideration in the present case, that it was necessary for the taxpayer to know the grounds of the Commissioner’s opinion so that he might know the basis of the assessment and seek the court’s intervention. He said those considerations do not apply here. He said no other authority was cited in support of the submission, and R. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida[dlxxii]⁵ was against it, so the submission failed.

From a reading of the above cases I consider that it is not part of the English common law that administrative tribunals in general, or that disciplinary tribunals in particular, should give reasons. Whether it is part of natural justice that administrative tribunals should give reasons is a new area of law. For example, de Smith’s authoritative textbook Judicial Review of Administrative Action deals at length with the content of natural justice. In the second edition published in 1968 there is no mention of the need to give reasons for decisions. In the fourth edition published in 1980 there is a discussion of the topic at pp. 148-151. The common law may not develop further in this area because of statutory intervention. In England s. 12 of the Tribunal and Inquiries Act 1958 (U.K.) required certain tribunals (and Ministers) to give reasons for their decisions and that provision is now contained in s. 12 of the Tribunals and Inquiries Act 1971. The latter section requires the tribunal or Minister to furnish a statement, either written or oral, of the reasons for decision, if requested, on or before the giving or notification of the decision, to state the reasons, (emphasis mine). I agree with the learned Deputy Chief Justice that the common law principles of natural justice adopted into this country do not require reasons to be given by a tribunal such as the Police Appeal Tribunal.

I have considered whether this Court should formulate a new rule of law under Sch. 2.3 of the Constitution, or by normal judicial development of the adopted principles of common law relating to natural justice, that the Police Appeal Tribunal should give reasons for its decision if requested to do so by one of the parties before it. I have come to the view that the court should not. The constitution, powers and procedures of the Police Appeal Tribunal are dealt with at some length in s. 84 and s. 89 of the Act but there is no requirement on the Tribunal to give reasons. I can only conclude that the legislature did not intend to give the appellant the benefit of reasons. If this is not a desirable situation then that is a matter for the legislature. The fact that reasons are not required by the Act does not prevent an aggrieved person from exercising his constitutional right to apply to the National Court for review.

Were reasons asked for by the appellant? Before Kearney Dep. C.J. Mr. Sam appears from the record to have said his client had asked for reasons from Mr. Lofena and was refused. Kearney Dep. C.J. at p. 4 of his decision says “Mr. Sam says, and it does not appear to be in dispute, that the applicant did ask the Tribunal for Reasons”. I have come to the opposite view on the material before me that Mr. Lofena was not asked for his reasons. When Mr. Sam was before us he said he was not the counsel before Mr. Lofena and did not know if reasons were requested or not. He was not able to refer us to any part of the record or any affidavit evidence indicating that reasons were requested. Mr. Mullumby, counsel for the respondents does not concede (as evidently another counsel conceded before Kearney Dep. C.J.) that reasons were requested and said that a reading of the affidavits put before Kearney Dep. C.J. does not show that reasons were requested by Mr. Sausau or his representative. Those affidavits were not before us. The appellant bears the onus of persuading us; in the absence of any proof to the contrary I conclude that reasons were not requested. This factual matter has a bearing in this appeal because even if I were of the view that this Court should formulate a new rule of common law under Sch. 2.3 of the Constitution it would be that reasons should be given if requested. As they were not requested and no mandamus was sought to obtain them, I would in any event dismiss the appeal.

There were two other grounds of appeal raised which can be disposed of briefly. One was that Mr. Lofena was not a properly appointed Police Appeal Tribunal. Section 84(2) of the Act provides:

A Police Appeal Tribunal shall consist of a Judge or Stipendiary Magistrate appointed by the Administrator by notice in the Police Gazette.

By virtue of s. 14 of the Magisterial Services Act 1975 the reference to “Stipendiary Magistrate” in s. 84(2) quoted should now read Magistrate Grade IV. Mr. Lofena was appointed an Acting Grade IV Magistrate in Papua New Guinea Government Gazette G39 of 13th May, 1976, and was appointed a Police Appeal Tribunal in the Police Gazette No. 3 of 25th April, 1979. Section 33(1) of the Interpretation (Interim Provisions) Act 1975 provides as follows:

“33.    POWER OR DUTY CONFERRED ON OFFICE HOLDER

(1)      Where a provision confers a power or function on the holder of an office as such, the power may be exercised, or the function shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.”

In my opinion Mr. Lofena validly acted as the Police Appeal Tribunal. There is no substance in this appeal ground.

The other minor ground of appeal was that Mr. Lofena’s decision was wrong in law in that “he recommended that the decision of the Commissioner of Police be confirmed” in respect of four of the charges. I think there is no substance in this point. Mr. Lofena’s decision on the four key charges is found in the last paragraph of his letter to the Commissioner dated 1st April, 1980. Although he has used the word ‘recommend’ inadvisedly, I have no doubt that he understood his powers and that his decision is intra vires s. 85(2) of the Act. It is clear to me that his decision: (1) dismissed the appeals against charges (ii), (iii), (iv) and (v) which appeals were against sentence and conviction and (2) confirmed the Commissioner’s decision in respect of each of those charges. The Commissioner’s decision was that each charge was sustained and he recommended dismissal from the force on each charge.

I would dismiss the appeal with costs and affirm the order appealed against. The Commissioner’s decision and recommendation therefore stand.

Appeal dismissed

Solicitor for the appellant: P. Sam.

Solicitor for the first and second respondents: B. O. Emos, State Solicitor.

Solicitor for the Police Appeal Tribunal: R. Mellor.