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Mauglo v Police Commissioner [1998] PNGLR 39 (26 May 1998)

[1998] PNGLR 39

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GEREGL MAUGLO

V

THE POLICE COMMISSIONER
AND THE STATE

WAIGANI: SEVUA J
26 March and 26 May 1998

Facts

The plaintiff contended that his dismissal from the Police Force was in breach of natural justice in that neither has he been charged nor given an opportunity to be heard. He only learnt of his dismissal after he made enquiries following the cessation of his salary. Alternatively, that the punishment was harsh and oppressive under the circumstances. The defendant’s evidence however established that the plaintiff has been charged under s 46 (g) of the Police Force Act (Ch. No. 65) for the offence of disgraceful conduct on 6th February 1989; on 3rd April 1989 he was then served with the charges in person as confirmed by the proof of service; that he had responded to the charges on 5th April, 1998 he was dismissed on 3rd November, 1989 and 8th November 1989, he was then served with notice of penalty in person.

Held

1. The defendant’s evidence is accepted. The disciplinary procedures required under s 46 of the Police Force Act (Ch 65) have been properly complied with. As far as the law is concerned, the first defendant had exercised the power of dismissal under s 46 (6) of the Act as he was entitled to under the circumstances. The plaintiff had been given natural justice.
   
2. "There is a misconception by lawyers and their policemen clients, in relation to police dismissal cases, that they can come to the National Court to seek judicial review on the question of severity of penalty. This is wrong. Judicial review is not convened with the decision, but with the process of decision-making, i.e., the procedures in the decision making process. See Rose Kekedo v Burns Philp [1988-89] PNGLR 122": per Sevua J.
   

Papua New Guinea cases cited

Dicky Nanan v John Maru & Police Commissioner (1997) Unreported N1507.
Pierson Joe Kamangip v Bernard Orim & Commissioner for Police & State [1998] PNGLR 95.

Rose Kekedo v Burns Philp [1988-89] PNGLR 122.

Counsel

F Alua, for the plaintiff.
L Keria, for the defendant.

26 May 1998

SEVUA J. This is an application for judicial review, leave having been granted on 21st April, 1997.

The plaintiff was a constable in the Royal Papua New Guinea Constabulary in Lae. He was transferred to Sialum then back to Lae. In December 1989, he was dismissed from the Police Force.

The plaintiff says that whilst he was based at Sialum, his salary ceased on 22nd September 1989 without any reasons. On 28th September 1989, he was recalled to Lae, following inquiries about cessation of his salary. In Lae, he worked for five fortnights without pay. On 6th November 1989, the Provincial Police Commander sent a telex to Police Headquarters at Konedobu requesting that the plaintiff’s salary be reinstated. No response was received until early December 1989, when the Provincial Police Commander verbally advised him (plaintiff) of his dismissal from the force.

The plaintiff’s complaint is that he was not served with any charge; he was not given an opportunity to be heard; he was punished twice before dismissal, and finally, his dismissal was harsh and oppressive. Therefore, a substantial miscarriage of justice has occurred.

On the outset, let me say that the plaintiff’s evidence is quite contrary to the defendants’ evidence. The affidavit of Inspector Isaac Karmi, the Officer In-Charge of Discipline Section at Police Headquarters, sworn on 18th March 1998, completely contradicted all that the plaintiff has alleged. From this affidavit, the court is in a much better position to ascertain the facts prior to the dismissal of the plaintiff.

On 6th February, 1989, the plaintiff was charged under s 46(g) of the Police Force Act Ch 65, with the offence of disgraceful conduct for threatening a member of the public, namely, Gabriel Dang, whilst under the influence of liquor. On 3rd April 1989, the plaintiff was served with the charge by Inspector M. Tek at Lae Police Station. In annexure "J", which is the charge and proof of service, the plaintiff said he understood the charge, but denied it. He said he would make a statement later, which he did, on 5th April 1989.

On 3rd November 1989, the first defendant dismissed the plaintiff from the Force. On 8th November 1989, the notice of penalty was served on the plaintiff at Lae Police Station, at 11.30 am, by Chief Inspector Giosi Labi. The plaintiff, in endorsing the proof of service of the notice of penalty, stated he would appeal against the decision.

In considering this matter, I accept the evidence of Inspector Isaac Karmi.

I will not hesitate to say that as far as the first defendant was concerned, the procedures under s 46 of the Police Force Act were correctly followed. The plaintiff was served with a disciplinary charge. He was given an opportunity to defend himself. He responded to the charge. Following consideration of the evidence including the plaintiff’s statement, the first defendant decided to dismiss the plaintiff. As far as the law is concerned, the Commissioner had the power of dismissal under s 46(g) of the Act. It was within his power to dismiss the plaintiff, and I can see no procedural error in this case.

The natural justice argument that the plaintiff was not given the opportunity to defend himself, does not apply here. The plaintiff was given that opportunity, and he did prepare and respond to the disciplinary charge laid against him.

In relation to the argument on penalty, let me say at this juncture that, there is no evidence that the plaintiff was punished twice prior to dismissal. The only credible evidence is that the plaintiff was dismissed on 3rd November 1989. There is no record of any other penalty under s 46 of the Act.

I think the plaintiff’s argument under s 41 of the Constitution that the penalty was harsh and oppressive stemmed from a misconceived view that the first defendant should have imposed a penalty other than dismissal. This argument is without any legal or constitutional basis. In my view, you cannot say dismissal is harsh and oppressive, when a law prescribes dismissal as a penalty amongst other penalties.

In any event, the plaintiff has been disciplined twice and his priors are stated in a report compiled by Senior Sergeant T. Aaron. He was charged with wilful disobedience of a lawful order, a minor disciplinary offence, and confined for 7 days on 10th June 1985. On 28th September 1989, he was fined K40.00 for negligence, a serious disciplinary offence. The plaintiff therefore does not have a good discipline record, and in my view, the first defendant was justified in his decision for dismissal. The plaintiff is a member of a disciplined force and is required to conduct himself in a disciplined manner as expected of any disciplined force member. I agree and adopt what His Honour, Injia, J said in Dicky Nanan v John Maru and Police Commissioner, N1507, 10th February 1997, p12 "The Police Force is a disciplined force. It is entrusted with the duty of enforcing the law and maintaining peace and order in the community. Therefore its members are expected to conduct themselves in accordance with strict code of conduct".

The plaintiff was drunk and disorderly. He threatened to smash the windscreen of Dang’s vehicle. This is the type of conduct, which the community did not expect from the plaintiff. It is this type of conduct that the community at large does not expect from members of the Police Force.

Surely the Commissioner of Police Force does not need undisciplined policemen, like the plaintiff in the Force. The community would not want to see policemen who get drunk and threaten members of the community. That conduct is unbecoming of policemen or members of the disciplined force. The Commissioner had the power to dismiss the plaintiff and he exercised that power on the basis of the facts before him. Therefore, I cannot find any error of fact or law in the Commissioner’s exercise of discretion.

There is a misconception by lawyers and their policemen clients, in relation to police dismissal cases, that they can come to the National Court to seek review on the question of severity of penalty. This is wrong. Judicial review is not concerned with the decision, but with the process of decision-making, i.e, the procedures in the decision making process. See Kekedo v Burns Philp [1988-89] PNGLR 122.

The National Court has, in the past, readily granted leave for judicial review in police dismissal cases, even though some cases have no merits at all. The present case is one, which has no merits, and leave should not have been granted in the first place. For myself, I have come to a stage where, I will be strict in leave application. If the substantive judicial review application has no merits, it should be dismissed at the leave application stage. The Court must protect its process from abuse.

It is helpful, and I suggest that lawyers involved in police dismissal cases familiarise themselves with the decisions in Dicky Nanan v Maru & Police Commissioner, N1507, 10th February, 1997 and Kamangip v Orim and Commissioner of Police and The State, [1998] PNGLR 95.

Finally, the plaintiff was dismissed on 3rd November 1989. Proceedings for judicial review commenced in the National Court on 24th March, 1997, more than seven years and six months after dismissal. As alluded to, I cannot see how and why he was granted leave in the first place. In any case, even if there were a valid ground for review under Order 16 Rule 4 of the National Court Rules, I would refuse to exercise my discretion in favour of the plaintiff.

For these reasons, the plaintiff’s application for judicial review is dismissed. I order that he pays the defendants’ costs of these proceedings, to be taxed, if not agreed upon.

Lawyer for the plaintiff: Narokobi Lawyers.
Lawyer for the defendant: Acting Solicitor General.