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Guiness v Huafolo [2021] PGNC 131; N8864 (21 April 2021)

N8864

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS(JR) NO. 776 OF 2019


BETWEEN:
JORDON GUINESS
Plaintiff/Applicant


AND:
RAPHAEL HUAFOLO in his capacity as Deputy Police Commissioner Royal Papua New Guinea Police Constabulary
First Defendant/Respondent


AND:
FRANCIS TOKURA in his capacity as Acting Police Commissioner, Royal Papua New Guinea Police Constabulary
Second Defendant/Respondent


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Respondent


Lae: Dowa J
2020: 21st October
2021: 29th April


JUDICIAL REVIEW – application for judicial review of the respondents’ decision to terminate plaintiff from employment after plaintiff was charged and convicted for the offence of dangerous driving causing death – plaintiff argued that the respondents failed to elect the process allowed by the police Act s19 to 26 to conduct disciplinary actions against him - whether the First Respondent made a procedural error in dismissing the Plaintiff under section 33(2) of the Police Act without following disciplinary process under sections 19 to 26 of the Police Act – respondents had the choice to dismiss plaintiff by applying s33(2) Police Act – there was no procedural irregularity – plaintiff’s judicial review application is dismissed


Cases Cited:


Anthonia Dawa v Sam Inguba; Commissioner for Police and State, (2005) N2899,
Joshua Kuringin v Gari Baki, Commissioner for Police and The State (2017) N6619.


Counsel:


P. Sawanga, for the Plaintiff
B. Tomake, for the Defendants


RULING

29th April, 2021


1. DOWA J: The Plaintiff applies by Notice of Motion seeking judicial review of a decision by the First Respondent, dismissing him from employment.


BACKGROUND FACTS


2. The Plaintiff is a former policeman, employed by Papua New Guinea Royal Constabulary in the rank of Probationary Constable based in Lae at the material time.


3. On 11th January 2019, the Plaintiff was dismissed from the Police force, by the First Respondent. The Plaintiff appealed the decision to the Police Commissioner, the Second Respondent. On 24th July 2019, the Police Commissioner rejected the appeal and affirmed the decision of the First Respondent.


4. The Plaintiff applied for leave to apply for judicial review. Leave was granted on 19th March 2020. The Plaintiff filed his Notice of Motion for judicial review on 6th August 2020.


5. The application was heard, on 21st October 2020 and I reserved my decision which I now deliver.


APPLICATION


6. The Plaintiff relies on the following documents:


Notice of Motion filed 6th August 2020.

Affidavit of Jordan Guinness filed 6th December 2019

Statement of Facts under Order 16 Rule 7 (2) filed 9th December 2019


7. In response, the Defendants rely on the Affidavit of Joanne Clarkson, filed 10th September 2020.


FACTS


8. The evidence shows, prior to his dismissal the Plaintiff was employed as Probationary Constable based in Lae. On 9th November 2017, whilst driving a motor vehicle, a Toyota Land Cruiser Reg. No. LBM 519, along the Highlands Highway, near three (3) Mile, Lae caused a fatal road accident. During the accident, a passenger in the motor vehicle, namely Lemeck Tiba, died instantly.
9. The Plaintiff was charged with Dangerous Driving Causing Death pursuant to Section 382(2) of the Criminal Code Act. The Plaintiff was found guilty and was convicted by the District Court in Lae on 11th June 2018. He was then sentenced to three (3) years imprisonment. The entire prison term was suspended, and he was placed on probation, on good behaviour bond for five (5 years). He was also ordered by the Court to pay K10, 000 compensation, which he paid as part of the sentence.


10. On 2nd August 2018, the Plaintiff was charged by way of Serious Disciplinary charge, for Dangerous Driving Causing Death under section 20(1) (az) of the Police Act 1998. The Plaintiff responded to the charge and explained the circumstances surrounding the road accident.

11. The Plaintiff says, instead of continuing with the due process under section 22 of the Police Act, he was summarily dismissed from the Police Force under section 33(2) of the Police Act 1998.

12. The Plaintiff appealed the decision to the Commissioner for Police, alleging that, he was prematurely dismissed and that the disciplinary charge and process under sections 19 and 20 was not completed, even though the initial steps were taken.

13. The Plaintiff argues that it was procedurally wrong for the First Respondent to use the provisions under section 33(2) to terminate him, when steps were taken to follow the process under sections 19 & 20 of the Police Act.

14. In response, Joane Clarkson, Acting Deputy Commissioner, says, the First Respondent has delegated authority under Sections 17, 19 and 25 of the Police Act to impose disciplinary penalties. She says although the Plaintiff was initially charged with a disciplinary charge under section 20(1) of the Police Act, it was not investigated further and adjudicated on. Instead, the First Respondent, dismissed the Plaintiff, using his powers under section 33(2) of the Police Act. The First Respondent opted to use the summary procedure because the Plaintiff was convicted by the District court in Lae, which imposed a three (3) years imprisonment term, even though it was suspended.
15. In brief, Ms Clarkson says, where Section 33(2) is invoked, the disciplinary process under Section 20(1) does not apply.


ISSUES FOR CONSIDERATION


16. The issue for consideration is, whether, the First Respondent made a procedural error in dismissing the Plaintiff under section 33(2) of the Police Act without following disciplinary process under sections 19 to 26 of the Police Act.


LAW (Judicial Review)


17. The relevant rule is Order 16 Rule 1(1) of the National Court Rules, which provides:


“(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.”


18. The law on application for Judicial Review is settled. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:


“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”.


19. The Supreme Court in that case further stated that:


“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.”


POLICE ACT


20. The Applicant alleges that the Respondents did not follow the disciplinary procedure under sections 19 through to 26 of the Police Act. The Applicant alleges further that section 33 of the Police Act was mis applied. The relevant sections of the Police Act under consideration are sections 19, 20(1), 23(3) and Section 33. Section 20 sets out or provides a list of Disciplinary Offences which a member of the Police Force may be dealt with.


21. Section 23 provides for the procedure involved in dealing with serious offences. Section 23 reads and I quote:


“DEALING WITH SERIOUS OFFENCES.

(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(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.

(3) On a charge being laid against a member of the Force that member shall–

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge; and

(c) be invited–

(i) to reply within 14 days, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it.”

22. The other relevant provision is section 33 of the Police Act which reads:
“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.”

SUBMISSIONS OF COUNSEL


23. Ms Sawanga, Counsel for the Plaintiff, submits the Respondents initiated a disciplinary process under Section 20 of the Police Act. It was submitted that the Respondents failed to follow the due process and procedure under sections 20 through to sections 26, in particular:


  1. The Respondents failed to give copies of any reports obtained during their investigation to the Plaintiff.
  2. That the disciplinary officer, Superintendent Fred Kaiwa, was the same person who charged the Plaintiff, contrary to section 24(2).
  1. The First Respondent did not have the power to issue penalty notice under Section 26(4) of the Police Act.
  1. Invoking the penalty provision under section 33(2) without completing the process under sections 20 to 26.
  2. Misapplying the penalty provision under section 33(2), of the Police Act. The Plaintiff submitted that the Plaintiff was convicted but was not imprisoned. His prison term of 3 years was suspended, and he was placed on good behaviour bond for five (5) years. Ms Sawanga submitted that the Plaintiff was not serving a prison term and thus, the First Respondent misapplied the law.

24. Mr Tomake, Counsel for the Respondents, in response, submitted as follows:


  1. The serious disciplinary offence report was served on the Plaintiff on 2nd August 2018 which constituted the charge document, thus complying with the requirements of section 23(3) of the Police Act.
  2. The Plaintiff was initially charged for a Serious Offence under section 20(1) (az) of the Police Act but was not pursued further by the Disciplinary Officer. Instead, the Respondents opted to invoke its powers under section 33 of the Police Act to dismiss the Plaintiff, on the strength of the evidence of conviction of the criminal offence.
  1. The Plaintiff was convicted for a criminal Offence, carrying an imprisonment term of three (3) years, a circumstance which gave rise to the First Respondent the discretion to either follow the internal administrative disciplinary process or to dismiss the member forthwith by invoking the powers under section 33(2) of the Police Act.
  1. That there was no breach of the disciplinary procedure and process under Part iv (sections 19-26 of the Police Act, as the Respondents proceeded to dismiss the Plaintiff by invoking its powers under section 33(2) of the Police Act when presented with evidence of conviction.
  2. That the First Respondent, as Deputy Police Commissioner had powers to dismiss and to issue a penalty notice. He had authority and powers delegated to him under sections 17 and 19 of the Police Act.
  3. That there is no review under section 26(5) of the Police Act, where a member, is dismissed based on a conviction under section 33(2) of the Police Act.

REASONS FOR DECISION


25. I have studied the pleadings, the evidence and heard submissions of counsel. The facts are not disputed. The Plaintiff aged about 24 years was a Probationary Officer. On 19th November 2017 he was driving a motor vehicle, a Toyota Land Cruiser Reg. No. LBM 519. At 3 Mile along the Highlands Highway, just outside Lae city, the Plaintiff had a fatal accident where one of the passengers got killed.


26. The Plaintiff was then charged with a criminal offence of dangerous driving causing death. The Plaintiff was found guilty of the offence by the Lae District Court. He was convicted, given a three (3) years Imprisonment term which was wholly suspended and placed on good behaviour bond for five (5) years.


27. After the criminal proceeding, the Respondents commenced disciplinary action by laying a Serious Disciplinary charge. The charge was contained in a document entitled Serious Disciplinary Offence Report. The investigation and the disciplinary charge appear to have been prepared by the Disciplinary Officer, one Superintendent Fred Kaiwa.


28. The evidence shows, the disciplinary process under section 20 through the section 26 of the Police Act was not completed. Instead, the First Respondent, summarily dismissed the Plaintiff by invoking his powers under section 33 of the Police Act.


29. The Plaintiff argued that it was not open for the First Respondent to invoke section 33 when the disciplinary process under section 20 was still in progress.


30. In my view, it was open for the First Respondent, to invoke the powers under section 33(2) to dismiss the Plaintiff. The evidence shows, the Plaintiff was convicted of a serious criminal offence of Dangerous Driving Causing death under section 328(2) of the Criminal Code Act. He was sentenced to a prison term of three (3) years by the District Court. The Court then suspended the entire prison term and placed the Plaintiff on probation, with a good behaviour bond for a period of five (5) years.


31. The Plaintiff submitted that section 33(2) does not apply because he was given a suspended sentence and not serving a prison term. I find this argument misconceived. The Certificate of Conviction and the Probation orders issued by the District Court clearly show that, the Plaintiff was found guilty of Dangerous Driving Causing Death and was convicted. He was given a prison term of three (3) years. The Learned Magistrate deferred sentencing the Plaintiff for a prison term of three (3) years and released him on probation with conditions.


32. Clearly, the sentence imposed is three (3) years imprisonment term, which was suspended, and the Plaintiff was released on probation.


33. The evidence shows when the evidence of conviction and sentence was brought to the attention of the First Respondent, he elected to invoke the provisions of section 33(2) to dismiss the Plaintiff without allowing the disciplinary process under sections 20 to 26 of the Police Act. In my view, the First Respondent had a discretion to invoke the powers under section 33(2) of the Police Act. It was not necessary for the First Respondent to follow the disciplinary procedure under PART IV (DISCIPLINE).


34. My view is consistent with judicial opinion expressed in similar cases: Anthonia Dawa v Sam Inguba; Commissioner for Police and State, (2005) N2899, and Joshua Kuringin v Gari Baki, Commissioner for Police and The State (2017) N6619.


35. In Anthonia Dawa, the Plaintiff, a Policeman was convicted for unlawful assault by the District Court and was sentenced to 12 months imprisonment. The whole sentence was suspended, and the Plaintiff placed on good behaviour bond for 12 months. The Plaintiff was subsequently charged with two disciplinary offences arising from the criminal conviction. The Plaintiff was then dismissed from the Police Force, and one of the reasons cited by the Commissioner was the operation of section 33(2) of the Police Act for instant dismissal. The Plaintiff applied for Judicial Review of the decision of the Commissioner. One of the grounds of the application for review was that the Police Commissioner wrongly applied section 33(2) of the Police Act to dismiss the Plaintiff from the Police Force when the statutory intention and meaning of the provision was for convicted persons who were serving their sentences in the prison and not for those whose sentence was suspended and pardoned or placed on good behaviour bond. His Honour Injia, DCJ (as he then was) in rejecting the Plaintiff’s argument said this at page 6 of his judgment:

“I think s.33(2) allows the Commissioner to dismiss the member forthwith, without giving the member an opportunity to be heard if it comes to his knowledge and there is material or evidence to support a criminal conviction and/or a sentence of imprisonment. I also think a member who is convicted and/or sentenced to imprisonment stands dismissed, by operation of law, effective from the date of conviction. And so even if I accept Mr. Endeken’s submission, the Commissioner would easily dismiss her with retrospective effect from the date of conviction.”
36. In Joshua Kuringin, the Plaintiff was charged with unlawful assault. He was convicted and sentenced to an imprisonment term of three (3) months which was wholly suspended and placed on good behaviour bond. After the conviction and sentence by the District Court, the Plaintiff was charged by the Serious Disciplinary charges under the Police Act. The Plaintiff applied for judicial review. One of the issues raised was the application of section 33(2) of the Police Act.


37. His Honour, Makail J, in affirming the decision in Anthonia Dawa said this at paragraphs 21 – 26 of his Judgment:

“......even if the review was successful, she was bound to be dismissed forthwith by simply issuing an instrument of notice of dismissal under Section 33(2), which will take effect forthwith by law. Further, that it was open to the Commissioner to follow the disciplinary process to effect the dismissal which will be to the Plaintiff’s advantage as she will be given an opportunity to be heard before she is dismissed.”.


Furthermore, Section 33(2) allows the Commissioner to dismiss a member forthwith, without giving the member an opportunity to be heard if it came to his knowledge and there is material or evidence to support a criminal conviction and/or a sentence of imprisonment. Finally, that a member who is convicted and/or sentenced to imprisonment stands dismissed, by operation of law, effective from the date of conviction.”


38. As I have found the First Respondent had the discretion to invoke section 33(2) to dismiss the Plaintiff, it was not necessary for the disciplinary process under sections 20 to 26 of the Police Act to be followed. The fact that the process, which was commenced, but abandoned does not and ought not to give rise to any procedural flaw. It is of no consequence.


39. I note the Plaintiff has been punished for his criminal offence. The Learned Magistrate accepted his reasons and explanation for suspending the imprisonment term. The punishment imposed by the Respondents is additional and apparently burdensome. The role of this Court is, however, not to examine the reasoning or soundness of the decision of the Respondents with a view to substituting its own opinion. The Court is only concerned with the decision-making process. In my view the Plaintiff has not shown any circumstances which show the Respondents exceeded their powers, or committed an error of law, or committed a breach of natural justice or made a decision that is unreasonable.


40. The Plaintiff was convicted for a very serious criminal offence. He was given a prison term of three (3) years, which was deferred (suspended). The course of disciplinary procedure adopted, and action taken by the Respondents is allowed by law. The decision and penalty imposed are not unreasonable or ultra vires the powers of the First and Second Respondents. There is no good reason for this court to disturb the decision of the Respondents.


41. For the foregoing reasons, I refuse the application for judicial review and dismiss the proceedings.


COSTS


42. The final issue in concluding this matter is costs. Generally, cost would follow the event, that is, the successful party would be entitled to costs. However, it is still a discretionary matter. The Plaintiff has lost both his liberty and his job. I believe he has also been affected by the loss of a life. His application for review has just been refused. Given these circumstances, I will exercise my discretion not to make any award of costs against the Plaintiff/Applicant.


ORDERS


  1. The Plaintiff’s application for Judicial Review is dismissed.
  2. Each party pay its own costs.
  1. Time be abridged.

Gamoga Lawyers: Lawyers for the Plaintiff

Solicitor General Lawyers: Lawyers for the Defendants

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