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Kure v Commissioner of Police [1998] PGLawRp 741; [1998] PNGLR 44 (18 June 1998)

[1998] PNGLR 44

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SEDE KURE

V

COMMISSIONER OF POLICE and
THE STATE

WAIGANI: SEVUA J
4 May and 18 June 1998

Facts

The plaintiff was a policeman when he together with seven other civilian persons attacked a police patrol van, beat up a uniform duty policeman and forcefully removed a high-powered firearm, AR 15. Subsequently, criminal charges were laid against the plaintiff in the District Court and he was convicted and placed on good behaviour bond with K50 cash surety. It was on the bases of their District Court conviction that the Police Commissioner, the first defendant laid disciplinary charges pursuant to s 46 of the Police Force Act Ch. 65 (as amended) and proceeded to have plaintiff dismissed from the Police Force. The plaintiff contends in his judicial review application that the first defendant’s action in not serving on him the depositions of the District Court dealing with his conviction and all the prejudicial material but only serving the notice of charge, amounted to a breach of the audi alteram parten rule of natural justice.

Held

1. The Commissioner of Police is not required by law to serve a member charged with a disciplinary offence under s.46 of the Police Force Act, Ch 65, copies of statements, reports, court depositions or other documents other than the charge.
   
2. The Commissioner’s failure to serve such documents does not violate the audi alteram partem rule of natural justice, as service of these documents is not required as a matter of law.
   

Papua New Guinea cases cited

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

Iambakey Okuk v Fallscheer [1980] PNGLR 274.
Pierson Joe Kamangip v Bernard Orim & Commissioner of Police & The State [1998] PNGLR 95.

Other cases cited

Board of Education v Rice & Ors [1911] UKLawRpAC 18; [1911] AC 179.

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

Counsels

Z Varimo, for the plaintiff.
L Keria, for the defendants.

18 June, 1998

SEVUA J: This is an application for judicial review pursuant to Order 16 of the National Court Rules (the rules). Leave was granted on 10th July 1997.

The plaintiff was a constable in the Police Force. On 21st February 1994, he was charged with the offence of assaulting a policeman acting in the execution of his duty, contrary to s 61(1) of the Summary Offences Act, Ch 264. He was convicted by the Boroko District Court following a trial and, on 14th June 1994, he was placed on good behaviour bond for 8 months with K50.00 cash surety.

On 12th July 1994, the plaintiff was charged under s.46(g) of the Police Force Act, Ch 65, with improper conduct. He was served with the charge on 25th July 1994, and, in endorsing the proof of service, said he denied the charge and would reply later.

It is not certain if the plaintiff did reply to the charge. However, on 11th October 1995, the plaintiff was served with a notice of penalty. He was dismissed from the force effective 11th August 1995. It seems the reason for the penalty was not endorsed on the notice of penalty.

The plaintiff subsequently sought and was granted leave for judicial review of that decision. On 25th July 1996, the National Court quashed the decision of the Commissioner of 11th August 1995 on the ground that, he did not give the plaintiff, any reason for dismissal. The matter was remitted to the Commissioner to deal with and give his reasons.

On 12th February 1997, the plaintiff was served with a notice of penalty for serious disciplinary offence. In that notice, the Commissioner referred to the charge served on the plaintiff on 25th July 1994, and said the matter had been adjudicated and a finding of guilty entered. A written explanation by the plaintiff was taken into account in arriving at the decision. The reason for decision was as follows:-

"There is evidence that you were seen with seven (7) civilians attacking a Police Patrol van and a duty policeman was badly beaten up and a police high powered firearm (AR 15) was forcefully removed from the member."

"The fact here is you were found guilty by the Boroko District Court for unlawfully assaulting a member of the Force acting in the execution of his duties who was in full police uniform at the time and his firearm was unlawfully and forcefully removed and later recovered."

"By way of penalty, you are dismissed from the force forthwith."

The plaintiff has sought judicial review again on the grounds that:-

1. The first defendant failed to further deal with the plaintiff as directed by the National Court therefore, is in -
   

(1) breach of the procedures laid down in dealing with serious offences under Section 46 of the Police Force Act, Ch 65.

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 him and put his own case in that he was not allowed the opportunity to (a) respond to the prejudicial materials against him; and, (b) the adverse inferences, views, and or reports against him.

(2) used or relied on by the first defendant in making a decision in dismissing the plaintiff from the Police Force.

2. Sustained the charge of improper conduct against the plaintiff upon no evidence or insufficient evidence.
   

The plaintiff has applied for certiorari to quash the Commissioner’s decision in sustaining the charge of improper conduct communicated to the plaintiff on 12th February 1997. He also sought certiorari to quash the decision of the first defendant in dismissing the plaintiff. He further sought orders for reinstatement and restoration of all entitlements. Finally, he sought an order that a lesser penalty than dismissal he imposed.

The first ground of review is that the first defendant had failed to comply with the National Court order that the Commissioner "further deal with the matter and give his reasons."

The plaintiff’s first submission is that, the first defendant did not comply with the National Court order in not laying a fresh charge, serving it on the plaintiff, and not allowing the plaintiff to respond to the new charge. Counsel for the plaintiff submitted that the order meant that the first defendant was required to charge the plaintiff again, and if he was to impose a penalty against the plaintiff, the first defendant must give his reasons.

I do not accept this submission. The National Court decision on 25th July 1996 specifically refers to the first defendant’s decision of 11th August 1995, which in fact, was the decision to dismiss the plaintiff. It was not in respect of the first defendant’s finding of guilt. In my view, the plaintiff’s criminal conviction in the Boroko District Court was a matter that the plaintiff could not dispute. Whilst he has tried to plead his innocence in his affidavit, which is irrelevant in this judicial review, he did not appeal against that conviction. In my view, the first defendant was correct in his finding of guilt. Why then should he lay another charge and make a finding of guilt the second time? There is no basis for the plaintiff’s submission.

The plaintiff complained that there was a breach of procedure of s 46 of the Police Force Act, that he was not given the opportunity to answer to the charge, he was not served with the District Court depositions in relation to the criminal conviction, and he was not served with any other reports, or prejudicial materials against him. Therefore he had been denied the opportunity to respond to these matters. The failure to provide these materials amount to a breach of the audi alteram partem rule of natural justice.

Counsel for the plaintiff submitted that although the principle of natural justice is not contained in the Police Force Act, it should be implied. He referred to Board of Education v Rice & Ors [1911] UKLawRpAC 18; [1911] AC 179 and Dixon v Commonwealth of Australia (1981) 61 ALR 173.

Yet, for reasons known only to counsel, he did not mention the most recent decision of Kapi, DCJ, which deals with the same issue he has now raised in this case, and he was the plaintiff’s counsel in that case before Kapi, DCJ.

In my view, counsel tried to hide the fact that a recent decision which went against his client, in respect of the same issue, and which he appeared as counsel, should not be revealed in this case because it did not favour his client. I consider counsel’s conduct as unethical and unprofessional. Counsel has a duty to this Court, apart from his duty to his client; therefore he is obliged to assist the Court.

Whilst I appreciate the submissions in respect of the principle of natural justice, especially the complaints raised by the plaintiff in this case, I consider it does not apply in this case. This issue has already been settled.

Dixon v Commonwealth of Australia (supra) provides a number of propositions, one of which is that, where a statute confers power upon a person to dismiss a person from a position, the rules of natural justice and standard of fairness recognised by common law will be applied unless there is a legislative intent to exclude the rules of natural justice. The Supreme Court in Iambakey Okuk v Fallscheer [1980] PNGLR 274 has held this to be the law in our jurisdiction.

Counsel for the plaintiff submitted that although the principles of natural justice are not provided for in s.46 of the Police Force Act, the Court should imply that the Act does provide for it. This submission is misconceived. The question of whether or not the provisions of the Police Force Act exclude the common law principles of natural justice has already been discussed in this jurisdiction. That issue was considered by Injia, J in Dicky Nanan v John Maru & Police Commissioner, unreported, N1507 of 10th February 1997. His Honour, sets out his conclusions on pages 10-12 of his reasons:

"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 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, Injia, J also referred to Iambakey Okuk v Fallscheer (supra) and continued:

"I would 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 its publication to a member of the Police Force or the public at large 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."

Recently, Kapi, DCJ in, Pierson Joe Kamangip v Bernard Orim & Commissioner of Police & The State [1998] PNGLR 95, considered and agreed with the conclusions of Injia, J in Dicky Nanan’s case. The Deputy Chief Justice said at pp 6 & 7:

"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 there is no requirement on the Commissioner to serve copies of statements and reports on the member concerned."

Having had the benefit of reading both decisions, I am of the view that their Honour’s conclusions accord with my own. The rule of natural justice is excluded in s 46 of the Police Force Act. It is erroneous, in my view, for the court to import the rule of natural justice into s.46 when the Act does not specifically include it. It is not the function of the court to imply into a legislation, what is not expressly provided therein. This court cannot read into s.46 of the Police Force Act what is not in it. In my view, that would be tantamount to usurping the legislative function of the Parliament.

I have considered the decisions of Injia, J in Dicky Nanan v John Maru & Police Commissioner (supra) and Kapi, DCJ in, Pierson Joe Kamangip v Commissioner of Police & The State (supra) and I agree with their Honours, particularly, in respect of the construction of s.46 of the Police Force Act, Ch 65. The Commissioner is required, as a matter of law, to serve the charge on the member being charged; invite the member to admit or deny the charge and invite the member to offer an explanation if he so desires. That requirement is mandatory. However, the Commissioner is not required by law to serve the member with copies of any other report or statement or court deposition. I am of the view that the Commissioner’s failure to serve such documents on the member does not violate the audi alteram partem rule of natural justice, simply because service of such documents is not a statutory requirement under the Police Force Act.

I would therefore dismiss the first ground.

In relation to ground two, I consider that it is mischievous and unmeritorious.

The reason for decision specifically alludes to the plaintiff’s conviction at the Boroko District Court. Assaulting a uniformed police officer in the execution of his constitutional and legal duties is a very serious matter indeed, in my view. The plaintiff was convicted of that. And as a policeman himself, he ought to have known better. There could be no lawful justification for the plaintiff’s action at all.

Surely, the evidence of that conviction was before the Commissioner. Annexure "B" which is the actual notice of penalty, is consistent with annexures "A44" and "A47" which are the District Court records relating to the finding of guilt and sentence. What other evidence did the Commissioner need? I am satisfied that the Commissioner had sufficient evidence before him and his decision to dismiss the plaintiff was based on that evidence. I would dismiss the second ground as well.

For these reasons, the application is dismissed with costs.

Lawyer for plaintiff: S. Varimo.
Lawyer for defendants: Acting Solicitor General.