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Duwang v Manning [2021] PGNC 298; N8992 (23 July 2021)

N8992

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 71 OF 2020 (IECMS)


BETWEEN:
TONY DUWANG
Plaintiff


AND:
DAVID MANNING COMMISSIONER OF POLICE
First Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Miviri J
2021: 14th & 23rd July


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Judicial Review – Error of Law – Police Act Sections 17, 19, 23, 24, 25, 26, Division 4 Part IV – Breach of Contract employment of – Investigations whether carried out – Effect of – Right of Reply – Whether exercised – Effect on outcome termination of – Material relied sufficient – Balance discharged – Leave granted – cost in the cause.


Cases Cited:


Rataba v Commissioner of Police [2010] PGSC 51; SC1014

Kalaut v Manning [2021] PGNC 49; N8744

Wauwia v Inguba [2013] PGNC 61; N5232
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949


Counsel:


R. Diweni, for Plaintiff
K. Kipongi, for Defendant
RULING

23rd July, 2021

  1. MIVIRI, J: This is the Ruling on the plaintiff’s notice of motion for Judicial review of the decision of the first defendant dated 16th October 2020 where he was terminated from his employment Contract as an Assistant Commissioner of Police Logistics. It was served on him on the 10th November 2020. He had served the Royal Papua New Guinea Constabulary for 27 years since when he was first recruited on 23rd February 1993 as an officer cadet and commissioned to the rank of Inspector on the 20th October 1995.
  2. Hence, in the preliminary what was termination was indeed warranted of a police officer who had climbed the ranks in succession 27 years in the making, to be terminated just a rank away after Deputy Commissioner to the Commissioners rank. There was no other solution to the matter and it was utterly justified that termination was the ultimate and was warranted by the law and the facts given. This is the hurdle in the hands of the plaintiff to discharge against. And this is the backdrop against the defendants for the actions that they took.
  3. He was suspended from official duties on the 24th September 2020. And this was in relation to the allegations that from 2015 up till the 24th September 2020, he had in his official capacity as Assistant Commissioner Logistics managed to engage his wife Maureen Duwang’s Company Nature Boys Club Limited to supply flowers and hire car business with the RPNGC. This amounted to gross conflict of interest and official corruption. It was not set out in the notice of suspension as to what date the offence or allegation is set to have ended. But it was clear that it was over the approved provision of flowers and a vehicle hire in the realm of Commissioner Gari L Baki in 2015. The suspension was for 48 days until service of his purported termination for breach of his contract of employment, Clauses 2 (a) (b) (e) (f) 12, and 13 invoking clause 4 (1) (d) and (i) for the termination. He denied all in his response letter dated 21st September 2020 to a show cause Notice of the 09th September 2020 sent to him by Acting Deputy Commissioner of Police Administration Assistant Commissioner of Police Joanne Clarkson. That is annexure “TD1” of his affidavit. “TD2” is the response letter. The service of the suspension was by Acting Deputy Commissioner of Police Operations Assistant Commissioner Donald Yamasombi on 24th September 2020. It is annexure “TD3” of the affidavit.
  4. This suspension was pursuant to section 32 Division 4 Part IV of the Police Act. That the plaintiff had been charged with a criminal offence, a charge other than a disciplinary offence within the Act. To this end there is no evidence of an information laying out the criminal charges against the Plaintiff depicting the basis of invoking section 32 of the Act. And as to the status of that information and what provision of the Criminal Code if any against the Plaintiff. Importantly also the Status of that proceeding up to today’s date. Because that will speak out section 32 in real play. As it is the basis of the suspension of the plaintiff from that provision but does not give time and date and place of the commission of the offence.
  5. What is gathered is that this suspension emanates from an allegation that arose in 2015 before then Commissioner Gari L. Baki. And the basis is presumably that it is still carrying on up to the present. But there is no evidence tendered to firm this out. And for our purposes here there is no evidence placed by the defendants that the suspension was by the Commissioner of Police. The suspension notice of 24th September 2020 is by Acting Deputy Commissioner of Police who is in substance Assistant Commissioner of Police. She is of the same rank as the plaintiff. And it is over a criminal allegation that goes back to 08th July 2015, when the Commissioner of Police then Gari L Baki acknowledges receipt of the letter under hand of Mrs Maureen Bakaia Duwang, Florist, P. O. Box 1167, Vision City Waigani, NCD, Expression of Interest to Decorate Police Headquarters with Pot Plants & cut Flowers. “I’ am considering the engagement of your services to provide pot plants and cut flowers arrangements for Police Headquarters. Please contact Director Media, CSP D. Kakas on telephone 3226241 or 7026081, email [email protected] to discuss your expression of interest further. Yours sincerely Gari L Baki Commissioner of Police.”
  6. There is no evidence per se that this was a criminal conspiracy to defraud, or official corruption as it were by the use of one’s office to gain here warranting the action taken. Even if it were not legal, it has taken since 2015 to suspend the Plaintiff. The suspension is dated 24th September 2020. It has taken five years since to lay out a suspension notice upon the Plaintiff who was in that office since carrying out being part of an illegal activity without suspension and action since. Particularly sinister when aligned that the internal affairs manual defines that, “The suspension shall be for a period of no more than 21 days and must be reviewed at the end of that period. If the member is to continue on suspension, another notification should be served. If not, the suspension should be lifted.” Here “TD3” was stated as being “”Indefinite for criminal investigation & Charges.” Section 32 (1) of the Police Act reads, “Where a member of the Force is charged with having committed an offence (other than a disciplinary offence) against this Act, or any other enactment, he may be suspended by the Commissioner.”
  7. It is clear the suspension here is not by the Commissioner of Police. Furthermore, the actions complained was discretion appropriate by then Commissioner of Police Gari L. Baki. If it became criminal after that, there is no indication when it became, so that there is clear demarcation as to when it became an offence. As it is what the Plaintiff has been set upon as a basis for suspension was approved by the Commissioner then of Police and acted upon in the provision of service and payment made on each occasion. And it has continued no doubt with that understanding. There is also no evidence as to any instruction from the incumbent Commissioner, as to the ceasing of that contract and engagement so much so that, when the Plaintiff continued in defiance, he was breaching the Commissioner’s discretion on the same. Should therefore the plaintiff be answerable for that conduct?
  8. This is not just a case of a disciplinary offence but is criminal which proceedings do not have the district Court reference number before this Court to show that indeed emanating from the proceedings is the present taken out by the defendants against the Plaintiff. Because such in a criminal charge will be removed after an acquittal. That is why the importance to monitor the criminal proceedings giving rise. Here it appears there is no criminal charges formally before the court or any court except this matter. Hence the use of suspension in particular by section 32 lacks any basis. It is not immediate there over a matter there and then, but a matter that had a life span allegedly of five (5) years in the making. It is taken out by Acting Deputy Commissioner of Administration Assistant Commissioner than of Police Joanna Clarkson.
  9. There is no evidence that this criminal offence is continuing immediately leading up to what date than, whether or not notice of this fact if it was continuing given to the plaintiff to desist from the engagement. No material has been filed to evidence, because as it is the engagement is sanctioned by then Commissioner of Police Gari L Baki 2015. It did not reflect that the Plaintiff was using the position that he held as Assistant Commissioner Logistics to lure and continue to hire the Company and have the Commissioner stamp his approval. There is no evidence that this was the case and has been the case now before me in the determination.
  10. Further material fact is that if the basis of the allegation was sanctioned by the office of the Commissioner of Police, then, Gari L. Baki, where would the illegality be or the criminality be against the Plaintiff. He is not the Commissioner of Police Gari L. Baki sanctioning that Mrs Maureen Duwang be engaged with her company.
  11. There is no authority in writing filed pursuant to section 17 of the Police Act that indeed Acting Deputy Commissioner of Police Assistant Commissioner Police Joanna Clarkson has been delegated the power by the Commissioner of Police to suspend Assistant Commissioner of Police Tony Duwang or any others similar. The section is specific, “Section 17. DELEGATION. Subject to the provisions of this Act in relation to any specific power or function, the Commissioner may delegate in writing all or any of the Commissioner’s powers and functions under this Act (except this power of delegation).” That power must be set out by evidence in writing here and at that time so that what was exerted executed 17th September 2020 Notice of suspension “TD3” was indeed by that authority.
  12. There is no authority in law for the suspension by Acting Deputy Commissioner of Police Administration Assistant Commissioner of Police Joanna Clarkson of the Plaintiff there. And if she was appointed as a Disciplinary officer pursuant to section 19 of the Police Act there is no evidence of this fact before me pertaining. It means in law she is not authorized to take disciplinary action which includes the suspension of the Plaintiff. There must be authority in writing designating that she is indeed a disciplinary officer appointed by the Commissioner and acts stemming. That is not on record in evidence to sustain and maintain legality here.
  13. Section 23 (2) of the Police Act designates that, “(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.” So, it is again called that whoever is charging the Plaintiff is indeed authorized Commissioned officer designated by the Commissioner of this duties. There is no evidence that this is the case. And relevantly the substantive position here is Assistant Commissioners against and unless it is of a higher rank can it sustain what has been set out by the suspension notice. Because even in the case as Acting Deputy Commissioner Administration there is no specific authority given stemming and so is questionable and undermining the outcome here.
  14. It becomes serious when section 24 determination of Charge of the Act is considered. It speaks of the appointment of a disciplinary officer who will investigate and report to the Commissioner. There is no mention of such a person in the letter dated 16th October 2020 under hand of the incumbent Commissioner David Manning that this was the case. That the letter was the final page in that process. Because the letter reads, “You are hereby given notice that your contract of Employment with the Royal Papua New Guinea Constabulary is hereby terminated for cause effective immediately by 15th October 2020.
  15. Your termination has been decided on the grounds that you have breached the following obligations regarding your employment with the Constabulary under your contract of Employment clause 2 (a) (b) (e) (f), 12 and 13 thereby invoking Schedule C4 (1) (d) and (i) of your Contract of Employment Termination Provisions.
  16. Your response after a show cause Notice was issue to you was taken into account and considered to be not relevant to the allegations, you had an obligation to disclose your personal interest with your wife’s company who was conducting business with the Constabulary directly under your financial influence and authority.
  17. Your termination has been deemed necessary as I have determined that you have engaged in the acts of official corruption and abuse of office amounting to gross misconduct, which is a serious violation of the Constabulary’s Code of Conduct, thus I as Commissioner have lost confidence in you. Consistent with Clause 17 of your contract of Employment and in accordance with section 133 of the Police Act, I regret to inform you that your contract of employment is terminated.............David Manning Commissioner of Police.”
  18. This letter does not acknowledge nor does it refer to an officer appointed under section 23 (2) of the Act who has charged the plaintiff. Or for the same a disciplinary officer appointed and designated. And here by the contract review committee established by the Standing orders as to the guilt of the Plaintiff. And of the Commissioner having considered that recommendation which is an accrual of the Contract review committee and the officer’s response, the Plaintiff’s in this case verified by the Legal advice to determine whether or not to renew or terminate the Contract. This is an integral part of the contract entered into with the Plaintiff by the Constabulary and there is no reference to it in the letter terminating the Plaintiff. Fundamentally due process has led to no other road other than the termination of the contract of the plaintiff. That is not the evidence of the letter of the Commissioner set out above.
  19. It seems he merely suspended and took all into one, he was the disciplinary officer; he was the charging officer but the charge referred to in the suspension is not before me. And that is clear from the Statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules of the 16th November 2020. He pleads, “The First Respondent’s action also in suspending the applicant for longer period than necessary and terminating the applicant without formal charges whether administrative or criminal thus denying the applicant’s guaranteed rights to natural justice is so unreasonable and unfair under the Wednesbury principles of unreasonableness, so as to justify the remedial intervention of the Court.” This is clear breach of Section 23 of the Police Act 1998 because without a charge there is a breach of section 24 also of that Act. There is no disciplinary officer appointed and there is no determination of the charge so that section 26 Penalties comes into play.
  20. Here there is no application of section 23, 24, and 26 leading to the termination of the Plaintiff. He has simply been the subject of a suspension followed by a letter of the 16th October 2020 under hand of the Commissioner David Manning terminating him. Effectively without a charge in the first place leading to an appointment of a disciplinary officer, determination of that charge and then the penalty therefrom. Very clear and blatant breaches of the Police Act which the Supreme Court has voiced erroneous not holding against in law, Rataba v Commissioner of Police [2010] PGSC 51; SC1014 (26 February 2010).
  21. Even if it was glossed with reference to the contract, it was made under section 133 of the Police Act 1998 that incorporated the provisions within the Police Act 1988. So, the relevant provisions dealing with serious offences sections 23, 24, and 25 Imposition of penalty where the charge was sustained. And in serious cases section 26 penalties for serious offences, were all not considered by the Commissioner. And then of section 153 Standing Orders issued by the commissioner and comprised orders instructions not inconsistent with the Act. There is no evidence consistent that termination has been accorded following this process. Clearly this is a case where there are serious breaches of the law and must fall as in Kalaut v Manning [2021] PGNC 49; N8744 (2 February 2021). Which is a re affirmation of Rataba (supra) because failure in adherence to the Police Act to disciplinary process is erroneous to the law, Wauwia v Inguba [2013] PGNC 61; N5232 (12 June 2013). And Judicial review is confined to the process rather than the substance, Innovest td v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
  22. The summary of the case is that when the law is applied to the facts, there is clear unreasonableness demonstrated beyond the balance of preponderance within the Wednesbury principles. Included also is the unlawfulness and noncompliance of the Police Act, unscrupulous and inconsiderate of all set out above. It begs whether the Royal Papua New Guinea Constabulary would itself be the leader in leading compliance with the law, then defying it in its own backyard, whilst with the same hand trying to apply it to the wider community, country, and the State. Judicial Review sustains as applied and is granted forthwith as pleaded by the Plaintiff.
  23. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Diwenis Lawyers: Lawyer for the Plaintiff /Applicant

Office of the Solicitor General: Lawyer for the Defendants

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