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Ilagi v Commissioner of Police [1998] PGNC 61; N1740 (16 July 1998)

Unreported National Court Decisions

N1740

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 529 OF 1997
WARIVETALI ILAGI - PLAINTIFF
V
COMMISSIONER OF POLICE - FIRST DEFENDANT
THE STATE - SECOND DEFENDANT

Waigani

Woods J
9 July 1998
16 July 1998

JUDICIAL REVIEW - Disciplinary proceedings - dismissal from force - criminal conviction involving firearms - all the circumstances of the case.

Counsel

Z Varimo for the Plaintiff

Ms P Kiele for the Defendants

16 July 1998

WOODS J: This is an application for an Order in the nature of certiorari by way of judicial review pursuant to Order 16 of the National Court Rules.

The Plaintiff was a Sergeant attached to Kupiano Police Station. In February 1997 he was convicted by the District Court at Boroko on a charge of stealing and was sentenced to two years imprisonment with hard labour. The sentence was suspended upon condition he enter into a Good Behaviour Bond for 6 months. The Magistrate also recommended that he be demoted from Sergeant to Senior Constable.

Apparently the demotion was effected within the police force. Then in about April the plaintiff advises that he was called into the Police Station at Kupiano by the Police Station Commander who told him he was subject to a disciplinary charge apparently in relation to that conviction. The plaintiff told the commander that he had nothing to say as he had told his say to the Court at the time. The Plaintiff states that he was never actually served with the disciplinary charge. Then in July the plaintiff was served with notice of his dimissal from the Force.

The grounds for the review are:

1. ҈& T60; The plae plaintiff was not furnished with a copy of the charge and this is a breach of the procedures laid down in Section 46 of the Police Force Act.

2. ҈&&#160 plaintiai wiff wiff was not given a chance to answer the cthe charge.

3. & H60;as wsmisiedr havlreavlready been demoted therefore he was punished twice for the one offence.

4

4.&#16. The ssidnilereve r ifoing ding of guilt andt and pena penalty.

Thip>This application for judicial review is made under Order 16 of the Natioourt . Ord Rule) An catio a declareclarationation or a or an injn injunctiunction maon may be made by way of an application for judicial review and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to:

(a) & the nate nature of the matters in respect of which relief may be granted by way of the order of mandamus, proion or certiorari; and

(b) ;&#16e nature ofre of the pthe persons sons and bodies against whom relief may be granted by way of such an order; and

(c) &##160;; all thel the circucircumstances of the case, it would be just and convenient for the declaration or injunction or injunction to be granted on an application for judicial review.

The authorities are quite clear that in judicial review the Court is not concerned with the merits of the decision being reviewed but the legality of the procedures followed and the final decision. The authorities have made it clear that review is not an appeal procedure and subject to complying with the law the discretion of a body to whom the discretion is entrusted is absolute. And the body must act as any reasonable person would act and must not be so absurd in its actions that no reasonable person would act in that way - this is the principle from the case Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 AER 680 and these principles have been restated here in the case Kekedo v Burns Philp & Os [1988-89] PNGLR 122. And the Court is under Order 16 to have regard to all the circumstances of the case.

In the case before me we have a senior police officer convicted of a serious criminal offence involving the theft of two shotguns. A sentence of two years imprisonment was suspended. As a result of the charge the Commissioner of Police laid a disciplinary charge against the officer which we must accept he was bound to do under the rules of a State Disciplined Force. Whilst the charge may not have been served personally on the officer it was presented to him orally and he answered to his commanding officer at the time. The over-riding factor here must be that we are dealing with a Disciplined Service. The Commissioner is bound under the Constitution to act firmly to uphold the standing and reputation and operational capability of the Police Force on which the whole community relies for its security and welfare. He must therefore be entitled and expected to take appropriate action against members of the Force who break the law and bring the reputation of the Force into disrepute, see 57 of the Act. This is not just an internal disciplinary matter within the Force, we are looking here at a serious criminal charge involving shotguns at a time when the country is concerned at the use of guns in crimes of violence and further when there are instances of firearms being stolen or obtained from Disciplined Forces.

In determining a matter under Order 16 the court is bound under rule 1 (2) (c) to have regard to all the circumstances of the case. So I am bound to consider the fact of the serious criminal charge involving firearms. And I am unable to find that the Commissioner has improperly exercised his discretion nor that he has acted otherwise than as any reasonable person would expect him to do faced with a police officer convicted of such a serious criminal charge involving firearms. I am unable to find that the decision making process has miscarried such that this court should interfere. In view of all the circumstances of the case I find that there has been no miscarriage of justice.

I dismiss the application.