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Application by William Kandau [1992] PGNC 71; [1992] PNGLR 300; N1080 (26 June 1992)

N1080

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPLICATION OF WILLLAM KANDAU

Mount Hagen
Woods J

12 June 1992
26 June 1992

JUDICIAL REVIEW - Leave - State disciplined forces - Disciplinary offence - Procedure on hearing - Demotion.

Facts

The applicant was a sergeant in the Correctional Institution Services (CIS) at Baisu. On the night in question, he was in charge of a shift during which period a number of prisoners broke out of their cells and some escaped. He was charged pursuant to s 68(d) of the Corrective Institutions Regulation of being incompetent from causes within his own control. A senior officer heard the charge and made a recommendation to the Commissioner, who demoted the applicant to a lance corporal. The applicant filed an appeal to the CIS Appeal Board. That board varied the punishment slightly in his favour. He sought leave to review the decision, including the punishment, as being harsh and oppressive.

Held

1. The established principles in seeking judicial review emphasise that an applicant must show that he has an arguable case.

2. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but rather the decision-making process itself.

3. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which it has been subjected. But it is not the purpose of review to substitute the opinion of the judiciary or the individual judge for that of the authority constituted by law to decide the matter in question.

4. Rejecting the application, a reviewing court is not a court of appeal.

Cases Cited

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

Counsel

M Gene, for the applicant.

26 June 1992

WOODS J: This is an application for leave for judicial review of the decision of the Commissioner of the Correctional Services to demote the applicant following a conviction under s 68(d) of the Corrective Institutions Regulation. The application is that the demotion is harsh and oppressive or is disproportionate to the circumstances of the particular case.

The grounds of the application are that:

1. The officer in charge erred in law in that he failed to record a plea of not guilty and hear evidence when the applicant did not really plead guilty to the charge.

2. There was a substantial miscarriage of justice in that the verdict of the officer in charge was against the weight of evidence that was properly before him.

3. The officer in charge erred in law in that he failed to allow the applicant to address him on the penalty aspect.

4. The penalty imposed is manifestly excessive.

The established principles in seeking judicial review emphasise that an applicant must show that he has an arguable case. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but rather the decision-making process itself. It is important to remember that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he or she has been subjected. But it is not the purpose of review to substitute the opinion of the judiciary or the individual judge for that of the authority constituted by law to decide the matter in question. A reviewing court is not a court of appeal.

The principles are adequately summarised by Kapi DCJ in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124:

"The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers."

The applicant is a sergeant in the CIS at Baisu and on the night of 15 June 1990 was in charge of a shift rostered from 2400 to 0800 hours. At about 0130 (1:30 am), a number of prisoners broke out of their cells and some escaped.

Following that breakout, the applicant was charged pursuant to s 68(d) of the Corrective Institutions Regulation of being incompetent from cause within his own control. He was paraded before a senior officer and charged and then questioned about the charge and the incident. The disciplinary offence report clearly shows that the applicant had an opportunity to put his explanation of the incident. The officer then made a recommendation to the Commissioner, who demoted the applicant to a lance corporal. The applicant then filed an appeal to the CIS Appeal Board. His appeal was filed on 29 February 1991 but not heard until 11 November 1991. The Appeal Board upheld the appeal and varied the demotion.

The applicant has now come to this court for judicial review, although I cannot help feeling from the wording of the statement in support of the application that the applicant is, in effect, attempting to come to this court by way of appeal on the severity of the punishment.

It is submitted that the officers and the Commissioner and then, of course, the Appeal Board have not acted in accordance with the principles of natural justice, namely have not acted fairly. However, it is quite clear that the applicant had a chance to put his case as to how the incident happened. Then the report went to the Commissioner, who made his own decision on the scope of the punishment or demotion. Then the Appeal Board also considered the matter and varied the result slightly in the applicant's favour. Whilst this is only an application for leave for review, it is quite clear to me on the bare history of the matter that the applicant has been dealt with in accordance with the regulations that apply to the Correctional Service. I cannot overlook the fact that I am dealing with an application for review within a disciplined service. The practicality of the situation is that officers of a correctional institution bear an onerous responsibility in guarding prisoners and, inter alia, in protecting the public. A sergeant in the service has a very serious responsibility and must exercise proper control and discipline over those serving under him. It is not the court's role to interfere too readily in the disciplinary procedures in a disciplined force, especially where, as in this case, the record clearly shows that the punishment was carefully considered at each step of the disciplinary procedure, with the Commissioner and the Appeal Board each making their own decision on the punishment recommended.

I find that the appropriate procedures were followed and this application seems to be more in the vein of an appeal against a harsh and oppressive punishment. I must be satisfied that there was a miscarriage of justice in the internal operation of the Correctional Institutions Service before I can grant leave for review. It is not the role of the court to interfere too readily with the disciplinary punishments given in a disciplined force.

I refuse leave for judicial review.

___________________________

Lawyer for the applicant: The Public Solicitor.