Dicky Nanan v John Maru and Police Commissioner

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 10 February 1997
• Citation: (1997) N1507
• Court: National Court
• Year: 1997
• Judgement Number: N1507

National Court: Injia J

Judgment Delivered: 10 February 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 541 OF 1995

BETWEEN:

DICKY NANAN — APPLICANT

AND

JOHN MARU — FIRST RESPONDENT

AND

POLICE COMMISSIONER — SECOND RESPONDENT

Mount Hagen

Injia J

21 June 1996

5 July 1996

12 September 1996

10 February 1997

JUDICIAL REVIEW — Disciplinary proceedings — dismissal of Policeman by Police Commissioner for committing serious disciplinary offence — grounds for judicial review — policeman not served with internal police investigation report — whether Commissioner required by Police Force Act (Ch No 65) to serve report on policeman at any stage of the disciplinary process — whether Commissioner required by principles of natural justice to serve report — Police Force Act, (Ch No 65), S. 46.

Held

1. By necessary implication, S. 46 (3) & (4) of the Police Force Act (Ch No 65) precludes the Commissioner from serving internal police investigation report on the matter on the policeman concerned at any stage of the disciplinary process.

2. Where a statute, the Police Force Act (Ch No 65), clearly, by necessary implication, precluded the Police Commissioner from serving the internal police investigation report on the matter on the policeman affected, the common law principles of natural justice cannot supply such requirement by implication.

Cases Cited

Kanda v Government of Malaysia [1962] 2 AC 322

Iambakey Okuk v Falsheer [1980] PNGLR 274

Kelly Yawip v Police Commissioner N1370 [1995]

Counsel

P Peraki for plaintiff

M Pokia for defendants

10 February 1997

INJIA J: This is an application for judicial review by the plaintiff, a former policeman, of a decision by the second defendant to dismiss him from the Police Force for disciplinary reasons. The first defendant was the Police Officer immediately responsible for disciplinary matters in the Police Force at the time of the plaintiff's dismissal. The plaintiff was dismissed on 29th September, 1995. Leave to Review the said decision was granted on 12th April, 1996.

The statement of facts in support of the application for leave should exhaustively set out the orders sought and the grounds for judicial review: Order 16 Rule 6 (1), National Court Rules. The principal orders sought are:

(a) An order in the nature of certiorari to remove into the National Court and quash the findings made by the First Defendant in his reported dated 19th November 1993 of amongst others Plaintiff's alleged improper conduct in the conduct of his official capacity and the recommendations of the Plaintiff's dismissal from the Force contained in the said First Defendant's Report.

(b) Further or in the alternative, a declaration that the said First Defendant's findings of the Plaintiff's alleged improper conduct in the conduct of his official capacity was made in breach of the rules of natural justice and as a consequence is void and of no effect.

(c) Further or in the further alternative, the plaintiff's dismissal from the Force by Notice of Penalty for Serious Disciplinary Offence served on the Plaintiff on 09th October, 1995 dismissing the Plaintiff from the Force effective 29th September, 1995 be declared void and of no effect as the Second Defendant's decision to dismiss the Plaintiff from the Force was solely on his findings of the First Defendant which findings themselves were made in breach of the rules of natural justice and or under suspicious circumstances.

(d) A declaration that the decision of the Second Defendant to dismiss the Plaintiff from the Police Force is harsh and oppressive and/or is not warranted by or is disproportionate to the requirements and circumstances of the particular case and by virtue of Section 41 (I) of the National Constitution is an unlawful act.

(e) A declaration that the Plaintiff is and remains a member of the Police Force and holds the rank of Senior Constable.

(f) An order that the Plaintiff be paid all his entitlements from the date of this dismissal.

There are four (4) grounds relied upon by the plaintiff which are:

(a) The said findings of alleged improper conduct in the conduct of his official capacity and the recommendations of the Plaintiffs dismissal from the Force contained in the said First Defendant's Report was made in breach of the rules of natural justice in that the Plaintiff was given no opportunity to fully present his case by himself before the Investigation Committee headed by the First Defendant.

(b) In the alternative, even if it was found that the Plaintiff was given an opportunity and that the Plaintiff responded to the charges, the First Defendant did not give the Plaintiff an opportunity to respond to the allegations prior to publishing his Report.

(c) The findings of the First Defendant is void and of no effect on the basis that the First Defendant failed to give due weight and or consideration to the reply by the Plaintiff in respect of the charges laid against him.

(d) The Second Defendant failed to properly exercise his discretion in considering that appropriate penalty for the alleged offences under Section 46 (4) of the Police Force Act was a dismissal when the weight of the evidence did not support the making of such a decision.

At the hearing, oral and documentary evidence was provided by both parties. The plaintiff called evidence both on the disciplinary procedure employed by the defendants to discipline the plaintiff as well as the severity of the penalty. The First Defendant was called to counter allegations of procedural impropriety and severity of sentence.

In my view, the nature of the orders sought by the plaintiff and the grounds relied upon by the plaintiff do not call for a detailed examination of the evidence adduced before the Court. Many of these orders and grounds can be disposed of summarily without a detailed examination of the evidence.

The order sought in paragraph "A" of the OS is a general order and it remains. The order sought in paragraph "B" of the OS provides the basis for the Order sought in paragraph "A" of OS and they can be dealt with together.

The order sought in paragraph "C" of the OS is founded on ground (a) of the statement in support. This ground appears to be the main ground in contention by the parties at the hearing. The uncontested evidence is that, the plaintiff was a Senior Constable based at Mulitaka Police Station. On 29th July 1993, a Police party from Wabag including the plaintiff and other policemen visited Payam village at Pogera and a raid took place. The raid was carried out as a result of a policeman who was allegedly shot dead by warring clansmen the previous...