Gari Baki v Allan Kopi and The Independent State of Papua New Guinea (2008) N4023

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 15 July 2008
• Court: National Court
• Citation: (2008) N4023
• Docket Number: OS NO 01 OF 2007 (JR)
• Year: 2008
• Judgement Number: N4023

Full Title: OS NO 01 OF 2007 (JR); Gari Baki v Allan Kopi and The Independent State of Papua New Guinea (2008) N4023

National Court: Injia, DCJ

Judgment Delivered: 15 July 2008

N4023

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 01 OF 2007 (JR)

Between:

GARI BAKI

Plaintiff

And:

ALLAN KOPI

First Defendant

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Injia, DCJ

2008: 31st May 31st, 15th July

JUDICIAL REVIEW – plaintiff applied for review of defendants ruling to commit him to stand trial at the National Court for contravening s.136 (1) (a) of Police Act – issue is whether the Courts ruling that an offence under s.136 (1) (a) does not apply to enlisted member of Police Force such as the plaintiff – s.136 (1) (a) Police Force Act 1988, Order 16 Rule 1 National Court Rules

JUDICIAL REVIEW – practice and procedure -plaintiff committed to stand trial for offence under s 136 (1) of the Criminal Code Act (Ch 262) - reference is an error - correct reference in notice of committal should be s 136 (1) (a) of the Police Act 1988 - Difference in application of s20 (1) (aw) and s136 (1) of the Police Act distinguished - plaintiff’s actions complained of do not fall under the wording and purpose of s 136 (1) (a) or s 20 (1) (aw) - charge laid under s 136 (1) (a) not authorized by law - District Court erred in law in committing plaintiff to stand trial on the said charge - application for judicial review granted - order in the nature of certiorari granted quashing decision of District Court to commit plaintiff to stand trial – s20 (1) (aw), s136 (1)(a) Police Act, O16 NCR

Cases Cited:

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Public Employees Association of Papua New Guinea v Napoleon Liosi & Public Services Commission [1988-89] PNGLR 585

Pubic Employees Association v Public Services Commission [1983] PNGLR 206

Sudi Yaku v Commissioner of Police Ex parte The Independent State of Papua New Guinea [1980] PNGLR 27

Counsel:

M Murray, for the Plaintiff

F Barton- Keen, for the defendants

15th July, 2008

1. INJIA DCJ: This is an application for judicial review made under O 16 of the National Court Rules. The plaintiff challenges the decision of the District Court sitting at Waigani presided over by the first defendant (the Court), made on 14th February 2007, in which the Court committed the plaintiff to stand trial on one count of contravening s 136 (1)(a) of the Police Act 1998 (“the Act”). The main issue before me relates to the Court’s ruling that an offence under s136 (1)(a) does not apply to an enlisted member of the Police Force such as the plaintiff.

Facts:

2. The undisputed facts are that the plaintiff is an enlisted member of Force. He joined the Force in 1974. He was appointed Police Commissioner on 13 December 2006. On 8th December 2006, when he was the Deputy Police Commissioner, he was arrested and charged under s 136 (1)(a) of the Act. The charge emanated from an action he took in association with Assistant Commissioner of Police Raphael Huafolo, in refusing to implement a direction issued by the Acting Commissioner of Police to disband the National Crimes Squad which was responsible for investigating, and arresting the former Police Commissioner Mr Sam Inguba over certain allegations. The plaintiff’s action was alleged to have caused disaffection amongst members of the Force.

3. An information was laid under s 136 (1) (a) of the Act before the District Court at Waigani. The matter proceeded by way of committal proceedings before the first respondent. Arguments were received from counsel representing the parties. The plaintiff’s contention was that an offence under s 136 (1)(a) does not apply to enlisted members because as an enlisted member of the Force, he was to be dealt with for the same matter under s 20 (1)(aw) by way of a disciplinary offence. The Court dismissed the argument and committed him to stand trial in the National Court. The notice of committal shows the plaintiff was committed to stand trial for an offence under s 136 (1) of the Criminal Code Act (Ch 262) but this reference is an error. I accept counsel’s submission that the correct reference in the notice of committal should be s 136 (1) (a) of the Police Act 1988.

Statutory provisions and principles on scope of judicial review

4. There is no dispute on this Court’s jurisdiction to review a committal decision of the District Court. There is some dispute over how this Court should exercise its discretion in matters concerning process of criminal investigation and prosecution. In the case before me, a decision on the application depends on proper construction of provisions in question which involve little or no exercise of judicial discretion. If on a proper construction of those provisions, the charge was not permitted in law, then the committal decision on that charge cannot stand and it must be quashed as a matter of law.

5. It is necessary to construe ss 20 (1) (aw) and s136 (1)(a) of the Police Act. Section 20(1)(aw) states:

“20. Disciplinary offences.

(1) A member of the Force who—

(aw) does or attempts to do anything in contravention of Section 136;”

Is guilty of a disciplinary offence and is liable to be dealt with and punished under this Section.”

6. Section 136 states:

“136. Causing disaffection.

(1) Subject to Subsection (2), a person, who—

(a) causes or attempts to cause, or does an act calculated to cause, disaffection among members of the Force; or

(b) counsels or foments or attempts to counsel or foment a strike (whether or not such strike actually occurs), or who aids, abets or takes part in a strike that interferes with or prevents, or is intended or calculated to interfere with or prevent, the carrying on of any part of the duties or functions of the Force; or

(c ) induces or attempts to induce, or does an act calculated to induce, a member of the Force to withhold or limit his services or to commit a breach of discipline, is guilty of an offence.

Penalty: Imprisonment for a term not exceeding five years.

(2) Subsection (1) does not apply to or in relation to a person who, in good faith— (a) points out, or endeavours to point out, errors or defects in, or desirable alterations or improvements to laws, regulations or working conditions governing members of the Force; or

(b) induces members of the Force to attempt to procure by lawful means the alteration of any of the laws, regulations or working conditions governing members of the Force.

(3) For the purposes of this section the term "strike" means the act of any number of members of the Force—

(a) in discontinuing the performance of their duties whether wholly or partially, or in reducing the normal performance of their duties; or

(b) in breaking their conditions of employment; or

(c) in refusing or failing after such discontinuance to resume or return to their duties; or

(d) in refusing or failing to accept engagement in any work in which they are usually employed; or

(e) in reducing their normal output or their normal rate of work,

due to any combination, agreement, common understanding or concerted action, whether express or implied, made or entered into by any members of the Force, but does not include an industrial organization meeting allowed under any law or authorized by the Commissioner.

(4) This section and Section 20(aw) apply notwithstanding any provision of the Industrial Relations Act (Chapter 174) or any other law.” (my emphasis).

7. The principles on judicial review is settled. These principles were summarized in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 by Kapi DCJ (as he then was). The circumstances under which judicial review may be available include where the decision making authority exceeds its powers or commits an

error of law.

Plaintiff’s submissions

8. Counsel for the plaintiff submits the Magistrate committed an error of law when he ruled that s 136 (1)(a) applied to the plaintiff. The Magistrate failed to consider s 20 (1)(aw) in his ruling. It was within his jurisdiction to interpret these provisions and apply the correct interpretation to the case before him. This Court should perform that task. A proper construction of s 20 (1) (aw) is that the term “a member” of the Force in s 20 (1) (aw) means an enlisted member of the Force. Section (1) (aw) expressly makes an act which constitutes a criminal offence under s 136 (1) (a) a disciplinary offence. An enlisted member of the Force who commits an act which constitutes an offence under s136 (1)(a) can only be dealt with by way of disciplinary offence under s 20 (1) (aw). The term “a person” in s 136 (1) only refers to a person who is not covered by s 20 (1)(aw). Therefore s 136 (1) (a) only applies to civilian staff of the Force and members of the public.

9. Further, s 136 is not a no-strike or anti-strike provision as found in other statutes governing the public service: see s 54 of the Public Service (Management) Act 1995. This section applies to all persons including members of the public with the exception of enlisted members of the Force whose conduct is covered by s 20 (1)(aw).

10. Finally, it is submitted s136 (4) supports the plaintiff’s argument that there are two distinct processes under s 20 (1)(aw) and s 136 (1) (a).

11. It follows that the plaintiff should have been charged and dealt with for a...