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Kamangip v Orim [1998] PNGLR 95 (26 March 1998)

[1998] PNGLR 95

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PIERSON JOE KAMANGIP

V

BERNARD ORIM;
COMMISSIONER OF POLICE; AND
THE STATE

WAIGANI: KAPI DCJ
12 and 26 March 1998

Facts

The plaintiff was a constable in the Police Force. He was charged and committed to stand trial in the National Court on the allegation that he had raped a female detainee when she was in police custody. While the criminal charge was still pending, the plaintiff was charged with a disciplinary offence of improper conduct under s 43(g) of the Police Force Act (Ch. No. 65) (as amended). The plaintiff responded to the charges in writing. He was subsequently found guilty of the disciplinary offence and dismissed from the Police Force.

The plaintiff seeks judicial review, on the basis that, inter alia, that he was not given a fair opportunity to be heard so as to specifically respond to all prejudicial material brought against him when those material where not made available to him; and that the respondents erred in law when they did not give reasons for their decisions.

Held

1. Section 46 of the Police Act (Ch. No. 65) does not imply that the principles of natural justice may be implied before sentence is imposed. A member of the Police Force charged with a disciplinary offence is not entitled to be served with the evidence, information and reports which form the basis of the charge: Dicky Nanan v John Marru & Police Commissioner (1997) Unreported National Court Decision) N1567 per Injia J, followed. Kelly Yawip v Commissioner of Police & The State [1995] PNGLR 93 and Toll v Kibi Kara & Others [1990] PNGLR 71 distinguished.
   
2. Although reasons were not given at the time when the decisions were taken, all documents relating to the charge and the reasons for the decisions were produced in court. Hence, although reasons and related documents were not made available to the plaintiff, they were in existence and always available at the time of notice of penalty. If the plaintiff had requested for them, he would have very well been supplied and now knows the reasons for the decision. That ground therefore cannot succeed: Michael Kapa Wena v Henry Tokam (1997 Unreported National Court decision N1570) per Injia J, followed.
   

Papua New Guinea cases cited

Dicky Nanan v John Maru & Police Commissioner (1997) Unreported N1507.

Iambakey Okuk v Falscheer [1980] PNGLR 274

Kelly Yawip v Commissioner of Police & The State [1995] PNGLR 93.

Michael Kapa Wena v Henry Tokam (1997) Unreported N1570.

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

Selly Farapo v Commissioner of Police [1996] PNGLR 17.
Steven Levi v Commissioner of Police & the State (OS 246 of 1996) (Unnumbered judgment of the National Court dated 15th November 1996).
Isoro v Commissioner of Police & The State (OS N0. 341 of 1995) (Unnumbered judgement dated 12th April 1996.
Peter Wapuan v The Police Appeal Tribunal (OS 51 (L) of 1993) (Unnumbered judgement dated 13th May 1996.

Toll v Kibi Kara & Others [1990] PNGLR 71.

Other case cited

Dixon v Commonwealth of Australia (1988) 61 ALR 173.

Counsels

S Varimo, for the plaintiff.
A Iwais, for the defendants.

26 March 1998

KAPI DCJ. This is an application for an order in the nature of certiorari by way of a judicial review pursuant to O 16 of the National Court Rules. Leave for judicial review was granted on 20th November 1996. This matter has come before me for substantive hearing.

The plaintiff was a constable in the Royal Papua New Guinea Constabulary. On 6th June 1994, he was charged with a criminal offence of rape. It was alleged that he raped a female while she was held in custody. He was subsequently committed to stand trial in the National Court.

While the criminal charge was still pending, he was charged with a disciplinary offence of improper conduct for raping the female whilst in custody pursuant to s 43 (g) of the Police Force Act (Ch. No. 65). The plaintiff responded in writing and denied the charges. He was found guilty of the disciplinary offence and dismissed from the Police Force effective as from 3rd June 1995.

He has applied for orders seeking (1) to quash the decision in relation to the conviction of the disciplinary offence (2) to quash the decision on penalty and (3) to reinstate him to his position as a constable. He relies on the following grounds:

1. That the first defendant was in breach of the principles of natural justice, the rule, audi alteram partem in that the plaintiff was not given a fair opportunity to answer the case against his own case in that he was not allowed the opportunity to:
   

(a) respond to the prejudicial materials against him, and

(b) the adverse inference, views and reports made against him.(if any) used or relied on by the first defendant in making a decision in dismissing the plaintiff from the police Force.

2. That the first defendant erred in law in finding the plaintiff guilty of the charge of improper conduct upon no evidence or insufficient evidence in support of the charge.
   
3. That the first defendant erred in law in not allowing the plaintiff to comment on the penalty before making a decision.
   
4. That the first defendant erred in law in the exercise of his discretion in imposing a penalty of dismissal which is excessively severe in the circumstances in that less or no consideration was given to the matters in the plaintiff’s favour.
   
5. That the first defendant erred in law in not giving his reasons for the decision on both guilty and penalty.
   

Counsel for the plaintiff has abandoned grounds (2) and (4) on the basis that they are not valid grounds for judicial review. He has confined his case to grounds (1), (3) and (5).

The first ground is based on the complaint that "...the plaintiff was not given an opportunity to answer the case against him and put his case in that he was not allowed to respond to the prejudicial materials against him and the adverse inferences, views and reports made against him."

The complaint is that the plaintiff was not served with statements of witnesses and reports that were used by the defendants to reach a decision, thereby denying him the opportunity to respond to them.

Counsel for the plaintiff submitted that common law principles require that the plaintiff is entitled to be served with statements of witnesses and any report in order to be able to either deny or admit any allegation of fact. He submitted that the plaintiff was not served these documents prior to the decision to convict him and thereby breaching the principles of natural justice. He relied on Selly Farapo v The Commissioner of Police [1996] PNGLR 17 and Dixon v Commonwealth of Australia (1988) 61 ALR 173.

Counsel for the defendants submitted that the law governing the question of whether or not the plaintiff is entitled to be served with the documents in issue is governed by s 46 of the Police Force Act (Ch. No. 65) and by implication this provision excludes the application of the principles of common law. He relied on Dicky Nanan v John Maru and Police Commissioner (Unreported judgement of the National Court dated 10th February 1997, N1507) and Michael Kapa Wena v Henry Tokam (Unreported judgement of the National Court dated 9th May 1997, N1570).

In Selly Farapo v The Commissioner of Police (supra) the issue that has now arisen before me did not arise. In that case Akuram J. was considering the sufficiency of the evidence to support the charges. In dealing with this issue he considered the proper grounds for judicial review. In giving meaning to the principle "Judicial review is concerned not with the decision but with the decision making process" enunciated by the Supreme Court in Rose Kekedo v Burns Philip [1988-89] PNGLR 122, he went on to discuss the nature of the decision making process and general principles relating to the observance of principles of natural justice. It is not necessary to refer to all the requirements for the purposes of the present case. He stated the following as one of the requirements:

"(d) Giving to the member charged copies of any evidence from witnesses which have been sent to the Police Commissioner but not the member. The reasons being that he would not know what evidence is given against him and as it is all written, copies be given him so he may reply to them with a view to deny or admit them."

His Honour decided the case on the basis that the charges could not be supported by the evidence. Therefore, I find that his conclusion that statements of witnesses and reports are required to be served on the member is obiter dicta.

Dixon v Commonwealth (supra) supports the proposition, amongst others, that where a statute confers power upon a person to dismiss a person from a position, the rules of natural justice and standards of fairness recognised by common law will be applied unless there is a legislative intent to exclude the rules of natural justice. This is a matter of construction of the relevant legislation in question. The Supreme Court has held this to be the law in this jurisdiction in Iambakey Okuk v Falscheer [1980] PNGLR 274.

The question in the present case is whether the provisions of Police Force Act exclude the common law rules of natural justice. This very issue was considered by Injia J. in Dicky Nanan v John Maru and Police Commissioner (supra). His Honour fully set out Section 46 in his judgement and concluded:

"It is clear from Section 46 (3) that the Commissioner is only required to serve a copy of the charge and not any report, internal or otherwise, on the member concerned. It is also clear from Section 46 (4) that the Commissioner is given wide discretion to consider any existing report, internal or otherwise, relating to the offence when he is considering whether to charge the member, when considering the reply given by the member and even to call for and consider ‘any further report’ that he thinks is necessary to make an informed decision. In the present case, the Commissioner was not required to serve it’s existing internal report of the First Defendant or any other relevant report on the plaintiff at any time in the disciplinary process."

His Honour made reference to Iambakey Okuk v Falscheer (supra) and continued:

"I would further expand the scope of this principle to say that where words in a statute do not by necessary implication exclude certain principles of natural justice, the common law can supply those principles by implication to the statute. In the present case, any common law rule of natural justice, which might require an internal investigation report, or any other internal document to be served on the member is neither expressly stated nor excluded. But by necessary implication in Section 46 (3) and (4), such a requirement is excluded. This is imperative from reading these provisions together. Therefore, there is no room for the common law to supply any such principles of common law into the statute.

These principles accords with the purpose of the Police Force Act and in particular, the disciplinary provisions in Section 46. 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. Internal secrecy and confidentiality should be part of its discipline mechanism. Internal investigative mechanisms and reports should be confidentially treated except where it’s publication to a member of the Police Force or the public at larger is required by law. These underlying values are reflected in Section 46 (3) and (4) when it excludes the availability of any internal report to the member concerned. What the statute has by necessary implication excluded, the Courts cannot supply it by implication under the common law."

His Honour followed his decision in a subsequent case of Michael Kapa Wena v Henry Tokam (Unreported judgement of the National Court dated 9th May 1997, N1570).

In Kelly Yawip v Commissioner of Police & The State [1995] PNGLR 93, his Honour Injia J. considered the same point and impliedly concluded that if a member who is charged requests for the evidence or information which forms the basis of the charge, he would be entitled to those documents. This was followed by Doherty J. in Steven Levi v Commissioner of Police & the State (OS 246 of 1996) (Unnumbered judgement of the National Court dated 15th November 1996). It is not necessary for me to consider this point as in this case there is no evidence that the plaintiff made any request for the evidence or reports which formed the basis of the charge.

I have considered the decision of Injia J. in Dicky Nanan v John Maru & Police Commissioner (supra) and I am in complete agreement with his honour’s conclusions with regard to the construction of s 46 of the Police Force Act. I find that there is no requirement on the Commissioner to serve copies of statements and reports on the member concerned. I would dismiss this ground.

The next ground relied upon is that the first defendant erred in law in not allowing the plaintiff to comment on the penalty before making a decision. For the purposes of this ground, it is not disputed that the plaintiff was not invited to make any comments on penalty before the penalty was imposed.

Counsel for the plaintiff submitted that the plaintiff is entitled to be invited to make any comments relating to the question of penalty before the penalty is imposed. He relied on two decisions of Hinchliffe J., Barnabas Isoro v Commissioner of Police & The State (OS N0. 341 of 1995) (Unnumbered judgement dated 12th April 1996 handed down in Lae) and Peter Wapuan v The Police Appeal Tribunal (OS 51 (L) of 1993) (Unnumbered judgement dated 13th May 1996 handed down in Goroka). In these two decisions Hinchliffe J. relied on his earlier decision of Toll v Kibi Kara & Others [1990] PNGLR 71. In latter case Hinchliffe J. was concerned with an appeal to the National Court from a decision of Lawyers Statutory Committee pursuant to s 58 of the Lawyers Act 1996 (as amended). On the question of penalty His Honour concluded:

"I am quite satisfied on the evidence that the Committee did not give Mr Toll an opportunity to address it on penalty. To my mind, that is a denial of natural justice and therefore the Committee has not complied with s 53 (1) of the Lawyers Act 1986 which provides:

‘(1) The Committee shall determine its sown procedure when enquiring into complaints of improper conduct, but shall observe the rules of natural justice in carrying out an enquiry.’

The Committee, after finding Mr Toll guilty of the charges against him, penalised him. It did in his absence without inviting him to address it on penalty."

The decision in Toll v Kibi Kara (supra) can be distinguished from the present case. That was a case involving different legislation and its provisions, and in particular s 53 (1) expressly adopts the principles of natural justice. With respect I am unable to agree with the conclusion reached by Hinchliffe J. that the principle in Toll v Kibi Kara (supra) is applicable to disciplinary proceedings under the Police Force Act (see Barnabas Isoro v Commissioner of Police & The State (supra) and Peter Wapuan v The Police Appeal Tribunal (supra)). There is no equivalent of s 53 (1) of the Lawyers Act in the Police Force Act.

The proper approach in determining the issue in the present case is to consider whether as a matter of construction of the Police Force Act, the principles of natural justice may be implied before sentence is imposed. This is the same approach taken by Injia J. in Dicky Nanan v John Maru & Police Commissioner (supra) in relation to whether or not a member is entitled to receive copies of statements or reports which form the basis of the charge. I have already concluded (following Injia J.) that by necessary implication of Police Force Act (s 46), a member charged with a disciplinary offence is not entitled to be served with the evidence, information and reports, which form the basis of the charge. It follows from this that there can be no assumption that the principles of natural justice apply.

I have reached the conclusion in construing the whole of s 46 that the legislature intended to regulate the procedure of disciplinary hearings by the provision s of the Act. The provision set out in detail what is to take place. Where the provision excludes what may be regarded as common law principles of natural justice either expressly or otherwise, they will not be implied by the Court. That is the rationale of the decision in Dicky Nanan v John Maru & Police Commissioner (supra) with which I agree. If the legislature intended that a member should be given an opportunity to make any comment before penalty is imposed, it would have provided that the member should be invited to make any comments before penalty is imposed in the same way he is given an opportunity to make a reply or give an explanation under s 46 (3) (b). The provision goes on in s 46 (5) to simply require that member be notified of the penalty that is imposed. There is no provision for the member to respond before penalty is imposed. I find that by necessary implication s 46 excludes any such right in the member to make any comments before penalty is imposed.

I appreciate that a response by the member before penalty is imposed would be useful when considering the appropriate penalty but I find that the legislature did not intend this right to be afforded to the member. I would dismiss this ground.

The last ground relied upon is that no reasons for decision for the conviction and penalty were given. It is not disputed that when the plaintiff was served with notice of penalty pursuant to s 46 (5) of the Police Force Act, no reasons for conviction or penalty were given.

Reliance is placed upon the case of Kelly Yawip v Commissioner of Police & The State [1995] PNGLR 93 to support this ground. In that case, notice of penalty was given without any reasons for decision and no such reasons were provided up to the time of the hearing of application for judicial review. The Court held that s 46 was silent on the issue of giving reasons for decision and concluded that the Commissioner has a duty under common law to give reasons for decision on the aspect of both guilt and penalty. In addition the Court found that such a requirement is implied by the terms of s 46 (5) of the Police Force Act.

In a subsequent case, Michael Kapa Wena v Henry Tokam (supra) Injia J. considered the same issue. He was referred to his earlier decision in Kelly Yawip v Commissioner of Police (supra). He distinguished his earlier decision in the following terms:

"...the Applicant relies on my decision in Kelly Yawip v Commissioner of Police [1995] PNGLR 93. As I said in that case, the duty to give reasons for decision is not a requirement of the disciplinary procedure prescribed in s 46 of the Police Force Act but it is a requirement of the common law and equity principles of natural justice, which is implied into the statute. In Kelly Yawip’s case, it was a case where the Respondent failed to give any reasons for his decision to dismiss the Applicant at all, even up to the time of the hearing of the judicial review application. In the present case however, the Respondent has provided to this Court and the Appellant all the necessary internal reports, recommendations, and reasons for the decision. Although these reasons were not provided to the Applicant at the time the decision to dismiss him was conveyed to him, the fact is that they were available at the time the decision was made. Had the Applicant requested for the reasons, he would no doubt have been supplied with the reasons. He has now been made aware of those reasons."

In the present case all the documents relating to the charge and the reasons for decision have been produced in Court through the affidavit of Nelson Karmi sworn on the 6th March 1998. These documents were in existence at the time of notice of penalty. If the plaintiff had requested for them, he would have been supplied with the relevant documents. They have now been supplied and he now knows the reasons for decision. This ground cannot succeed and I would dismiss it.

In addition to the reasons I have given above, there is another reason why I would not exercise my discretion to grant the relief sought in this case. The notice of penalty was served on the plaintiff on 9th June 1995. It took some sixteen months before the application for leave for judicial review was filed. Since the dismissal the administration of the Police Force has moved on. Even if I find a valid ground for review, I would not exercise my discretion in favour of granting it (O 16 r 4 of the National Court Rules).

I dismiss the application with costs to the defendants.

Lawyer for the plaintiff: Z S Varimo.
Lawyer for the defendants: Solicitor-General.