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Billie v National Executive Council [2023] PGNC 454; N10601 (4 December 2023)

N10601

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 6 OF 2023(IECMS)


MR. ANTON BILLIE
Plaintiff


V
NATIONAL EXECUTIVE COUNCIL
First Defendant


And
DR. PHILIP MITNA IN HIS CAPACITY AS THE DEPUTY COMMISSIONER FOR POLICE OPERATIONS
Second Defendant


And
DAVID MANNING IN HIS CAPACITY AS COMMISSIONER FOR POLICE
Third Defendant


And
HON. PETER TSIAMALILI JNR IN HIS CAPACITY AS THE MINISTER FOR INTERNAL SECURITY
Fourth Defendant


And
HON. PILA NININGI IN HIS CAPACITY AS THE ATTORNEY GENERAL OF PAPUA NEW GUINEA
Fifth Defendant


And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant


Waigani: Miviri J
2023: 27th October, 27th November, 4th December


PRACTICE & PROCEDURE – Judicial Review & Appeals – Substantive Notice of Motion – Appointment Of Second Defendant in Place of Plaintiff – Decision of NEC – Termination of Employment of Plaintiff Deputy Police Commissioner Operation – National Gazette G997 of 2022 dated 21 Dec 2022 – Revocation Contract of Employment Plaintiff – Continued Contract of Employment Plaintiff Not in Best Interests of State – Recommendation of Third Defendant for First Defendant in Place of Plaintiff – Criminal Convictions of Plaintiff – Compulsory Retirement Age – Ultra Vires – Breach of Constitution – Breach of Contract & Statute – Breach of Natural Justice – Apprehended Bias – Non Compliance of Due Process – Procedures Complied No Error Demonstrated – Balance Not Discharged – Motion Denied & Dismissed – Cost follow event.


Cases Cited:
Aigilo v Morauta, Prime Minister (No 2) [2001] PGNC 115; N2103
In re Powers, functions, duties, and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Vakinap v Kambanei [2004] PGNC 264; N3094
Nining v Mann [2013] PGNC 153; N5338
Eu v Rosso & Ors [2023] PGSC 63; SC2401


Counsel:
J. Kihanges, for Plaintiff
G. Dusava, for Defendants

DECISION


04th December 2023

  1. MIVIRI, J: This is the ruling on the Plaintiff’s substantive notice of motion of the 07th March 2023 pursuant to Order 16 Rule 5 (1) seeking:
  2. The plaintiff relies on his own affidavits that he has filed of the 19th January 2023, 2nd February 2023, 28th February 2023, 03rd March 2023, and 07th June 2023. He has also filed a review book at page 31 is the affidavit sworn of the 18th January 2023 filed of the 19th January 2023. There he swears that he is a senior Police Officer of the Royal Papua New Guinea Constabulary for 42 years service. And he is 57 years old rising as a recruit Constable in 1980 to 2021 to 2022 as Deputy Commissioner of Police Operations. Which position he attained on the 06th September 2021 by the decision of the National Executive Council No. 244/2021 which he secured after advertisement was issued and he applied securing. And the instrument annexure “A” dated 07th September 2021 securing. Annexure “B” is the contract that followed signed of the 1st September 2022. And he was in that position for a year culminating on the 16th November 2022 of being informed by annexure “C” that he was Acting Commissioner whilst the incumbent was away on leave from 11th December 2022 to 11th January 2023. But that was short lived with the appointment, annexure “D” also of Acting Commissioner for the Christmas and New Year Period of 2022 when Deputy Commissioner Administration Joanne Clarkson also appointed from 21st December 2022 to 5th January 2023.
  3. On the 11th January 2023 plaintiff was told to remain behind with Deputy Police Commissioner Administration Joanne Clarkson, Assistant Commissioner of Police Policy and Planning Dr. Philip Mitna, Chief of Staff Mr. Steven Francis after a media conference at Police Headquarters conference room Konedobu. There the Commissioner of Police David Manning read out the particulars of the National Executive Council instrument of the 22nd December 2022, and its decision No. 103/2022 in the instrument of the 19th December 2022. Effectively it was my revocation and termination of my contract of employment with the Police. I requested a copy but was advised by chief of Staff Steven Francis would make a copy and give it to me. No one came with the Documents but 30 minutes later they were brought into my staff officer who informed that they, annexure “E” was left with the Secretary. I was never told what it meant as to the best interests of the state upon which my contract was terminated. The commissioner never informed me.
  4. Nor was I accorded any notice of the revocation and termination. For that matter the termination process and procedure under my contract were not accorded compliance. There was no 3 calendar months’ notice before revocation and termination. I am aware that a submission was made to the Central Agencies Coordination Committee for my termination and removal, but I was not informed nor given a copy of that by the Police Commissioner or the Department of Public Service Management. I do not know the reasons for my termination and removal up to now. I was not accorded the right to be heard before that decision was made. There was no advertisement of the position. I was terminated and removed and with the same hand Dr. Philip Mitna was appointed in my place. There was haste and urgency to remove me from that position. I was a career policeman having risen to where I was.
  5. And because of these facts the plaintiff pleads that there was breach of section 193(1)(a) and (3) of the Constitution. The Police Force is a State Service by the operation of Section 188 of the Constitution. Reading the two together the responsibility of the appointment of the plaintiff lay directly responsible to the National Executive Council or to a Minister, here Minister for Police. His revocation of his appointment would naturally follow that process. So, the responsibility of the Commissioner would be to make a recommendation only as is the case here. The authority weather to accept or reject that recommendation would be to the National Executive Council who will either reject that or accept and recommend to the head of State who will if it is termination effect it, including revocation of the Contract and the like.
  6. In summary the plaintiff says that the defendants failed to comply with clauses 14.2 of his contract of employment, Grounds for termination shall at all times be determined in the interest of the Police Force, and the validity of grounds for termination in this regard, shall comply with the following rules:
  7. 16.1 is headed Termination Procedures and is worded, “Employment under the Contract, shall be terminated by a decision of the Commissioner in the following manner: -
  8. What were the grounds of the termination of the Contract of the Deputy Commissioner here?
  9. It is explicit by the words of the Contract set out above, that termination obviously must be in the interests of the Police force and must be based on the Legal Grounds set out in the Contract that is entered into with the Plaintiff on one side and be not breaching any laws in so doing. So that the State is not exposed to unnecessary financial and legal liability. If the Contract entered has been fulfilled with benefits to the Police Force, that would not be in the interests of the Police Force to terminate the plaintiff. The consequences are spelt out above which must be avoided. It is therefore important to view the evidence on the basis of which the Commissioner acted as he did here. And here it is evident he recommended so he did not act erroneously, or in defiance of the law.
  10. This is set out in the affidavit dated 31st May 2023 of the Commissioner of Police David Manning sworn of the 15th May 2023, where he deposes that “on the 14th December 2022, I recommended to the National Executive Council (NEC) that the continuation of the services of former Deputy Commissioner of Police, Mr Anthon Billie as a Deputy Commissioner was proving to be not in the “best interest of the State.”
  11. I made the recommendations to the National Executive Council (NEC) because of two (2) factors that had not come to light earlier on and became known after the appointment of Mr Billie as a Deputy Commissioner.
  12. Firstly, the plaintiff had a criminal conviction against his name on 11th April 2017 in the District Court in Kokopo and dated 12th April 2017. Mr Billie was found guilty in contravening section 7 (b) of the Summary Offences Act. The conviction related to using insulting words to three women at the Redstar Pokies Shop in Kokopo Town whereby a breach of the peace had taken place. Therefore, the continuation of the plaintiff serving as a Deputy Commissioner will contravene section 33 (2) “Member charged with Criminal Offence” of the Police Act 1998. Annexed hereto and marked annexure “DM1” is a copy of the Certificate of Conviction dated 12th April 2017.
  13. Secondly the plaintiff has passed the compulsory age of retirement pursuant to section 91 of the Police Act 1998 which places the age of retirement at sixty (60) years of age. In addition, our official records held with our Human Resources Division show that the Plaintiff’s date of birth is 1st July 1961. Therefore, in computing and or determining whether or not a member has reached his or her compulsory age of retirement it would be calculated from a member’s date of birth, Hence, the plaintiff has reached the age of sixty (60) years 2021. Marked “DM2” and annexed hereto is a copy of the RPNGC Compulsory Retirement Age (CRA) List-2nd Batch 2021.
  14. These are the two factors that came to light after the appointment of the Plaintiff as a Deputy Commissioner in which I took into account and recommended to the National Executive Council (NEC) that the Plaintiff was not a fit and proper candidate to be still occupying a Deputy Commissioner position and ultimately not “in the best interests of the State.” Which has been defined in Aigilo v Morauta, Prime Minister (No 2) [2001] PGNC 115; N2103 (9 August 2001) as “Means for the benefit of Papua New Guinea”.
  15. Given the facts set out above, is it beneficial to Papua New Guinea that the Plaintiff a convicted prisoner who has breached orders of the Kokopo District Court, remains, and is retained in that seat of Deputy Commissioner of Police Operations? In asking this question I bear in mind section 49 (5) (a) of the Police Act 1998. The Deputy Commissioner can be removed from that seat by the fact of his conviction which carries, an imprisonment term now suspended particulars I set out hereunder. This is undisputed conviction borne out by the certificate of conviction. Currently breached by his non-payment of the Compensation ordered. He does not dispute the facts set out by the affidavit of the Commissioner set out above. It is plain that the Plaintiff a convicted prisoner of the State continued to occupy that chair is not beneficial to Papua New Guinea. He has attained 60 years compulsory retirement age as of 2021 his birthday official as of 1st July 1961 from Human Resources records of the Police.
  16. That was the recommendation that was made to the NEC by the Commissioner of Police. Who has complied with the law in making that recommendation. He is merely recommending he did not terminate the services of the plaintiff. He merely played his role as Commissioner of police recommending to the NEC. Should he have ignored both these grounds until the contract had been lived out? Was it proper and lawful to allow both these grounds stipulated by the Police Act 1998. Section 33 states, “Person Convicted of Criminal Offence.

(1) Subject to Section 34, no person who has been convicted in any court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or reappointed to the Force.
(2) A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.”


  1. “DM1” is a copy of the Certificate of Conviction dated 12th April 2017, is relevantly in the following, “On the count of assault he was convicted and sentenced to six (6) months imprisonment. Sentence was wholly suspended, and he was placed on two (2) years Good Behaviour Bond without surety. He was also ordered to pay compensation of K 500.00 to the victim before the 25/4/17, in default he be sentenced to three (3) months in Hard Labour.
  2. On the Count of Insulting words whereby breach of the peace was likely to take place, he was convicted and fined K 300.00 and in default he be imprisoned for a period of three (3) months with Hard Labour. He was further ordered to pay K 200.00 to each victim within two (2) weeks of the order being 25/04/17 and in default he be imprisoned for three (3) months in hard Labour.
  3. The defendant has paid the Court fine of K 300.00 on the same day after the Court adjourned. He is yet to pay the compensation on each of the Counts. Attached is the certificate of conviction issued under the hand of Mrs Melat William certifying from the office she holds at the District Court Kokopo dated 12th April 2017 duly signed. The Sentences were ordered to be served concurrently.
  4. In my view this is very strong evidence that shows continued breach of the Court order made of the 12th April 2017, because there is no evidence in that Court of the discharge of that order by the payment of the Compensation of K200 each to the three victims made satisfying by the Plaintiff. He is for all intent and purposes occupying the office of the Deputy Commissioner of Police in defiance of a Court Order since that date up to the present of this hearing now for almost six (6) years without settlement of that compensation order. He is therefore, rightly, should be breached and in jail now serving the suspended term of three (3) months imprisonment in hard labour. Given that fact it is not right to keep a man serving in that office convicted not fulfilling the orders of Court as Deputy Commissioner of Police. It is not wrong for the Commissioner to take the steps he took to ensure compliance of the orders of the Court and the law. The Police are and will be the first to observe the rule of law as officers of the law enshrined by the Constitution section 197. How can he preserve peace and good order when he is breaching that and has a conviction sustained and sentence conditions that he has not discharged? Should such a person continue to hold that office? In my view the answer is a straight bold No. And the recommendation by the Commissioner did not breach any rule of law submitting as he did to the NEC for their consideration and recommendation to the head of State.
  5. That is not breach of law it is compliance of law known by that fact to the Plaintiff. He is for intent and purposes susceptible to be arrested taken before the Court for that breach to be dealt with according to law. He must serve that sentence now. And Police must take charge of that order now and execute it before the District Court Kokopo forthwith. How will such a person continue to justify and hold that office. He is a fugitive from the law, not fit to hold that office of Deputy Commissioner of Police. And his rights as a convicted prisoner of the State have been accorded by that certificate of conviction, he was a party to in those proceedings. Where would the right to a hearing lie when he was heard and convicted, and he knows that fact. There is no breach of audi alteram partum here given. In giving effect to the superintendence efficient organisation and control of the police by virtue of section 198 of the Constitution he is not breaching that call of the Constitution: In re Powers, functions, duties and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014). He would be seriously breaching a court order if he allows the Plaintiff to continue to serve in the light of the breaches set out above. It is not in the interest of the State to continue to employ the Plaintiff given. When the recognizance taken at Kokopo this 11th day of April 2017 reads:

“Condition of Recognizance.


(1) Defendant is sentenced to 6 months imprisonment however sentence is wholly suspended and is placed on 2 years Good Behaviour Bond without surety.
(2) He shall compensate victim with K500.00 before 25/04/17 i/d 3 months imprisonment.
(3) If the defendant breaches any of the Conditions of GBB he shall be imprisoned for 6 months.
(4) Orders made accordingly.”
  1. It is explicit that the Plaintiff has gravely breached the conditions of his suspended sentence because since the 25th April 2017 there is no payment of compensation made to all the victims as ordered by the Court, set out above. The police are by that fact discretion to arrest him now take him before the Court at Kokopo to be dealt with according to law. It is an order of the Court and must be affected now as he sits in this Court. He must be taken into custody to be processed to serve the suspended sentence of six months IHL imposed suspended now.
  2. It is apparent overt explicit that the third defendant and the defendants have not breached the law and the rule of law in the way that the recommendations have been made to the NEC for its endorsement and or rejection to the head of State to make the decision leading to the revocation and termination of the Contract of employment of the Plaintiff. Process of law has been followed in the same way that his appointment was sourced, similarly is the reverse to see him out here. This ground does not advance the plea of the motion by the Plaintiff. There is no error discharged by the plaintiff in the decision made at first instance of the Commissioner. This is further compounded in my view with the application of section 49 (5) (a) of the Police Act 1998. It is not illegal to give effect and the recommendation is within law and will stand. This evidence do not satisfy what was observed.
  3. Certiorari does not lie within this Courts observations in District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. There is no error in law to warrant bringing up the decision of the Commissioner recommending the plaintiff’s contract of employment revocation, and termination from the Police as of the 1st September 2022 confirmed by the NEC to the head of State accordingly. This decision is sound in law for the reasons set out above. Simply put a convicted prisoner of the State who continues to breach orders of the Court of Competent Jurisdiction, the Kokopo District Court has no place in the Royal Papua New Guinea Constabulary as Deputy Commissioner of Police Operations. In itself that is a matter not in the interests of the State to retain and maintain in that office. Mandamus will not lie pursuant given because there is no continued breach of duty to law to discharge. As public officials, the Commissioner, the NEC, and the Head of State have not failed in their duties in making that decision against the plaintiff: Vakinap v Kambanei [2004] PGNC 264; N3094 (29 November 2004.
  4. This is not a situation that will entail as in Nining v Mann [2013] PGNC 153; N5338 (30 August 2013). Or made ultra vires Eu v Rosso & Ors [2023] PGSC 63; SC2401 (2 June 2023). The balance has not been satisfied on the required balance of probabilities, so as to entail the pleadings set out above in favour of the plaintiff. Consequently, the substantive notice of Motion is without merit and is dismissed with costs forthwith.
  5. The formal orders of the Court are:

Orders Accordingly.
__________________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff/Applicant
Office of the Solicitor General: Lawyers for First Defendant

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