Jacob Tuma v The Commissioner of Police

• Jurisdiction: Papua New Guinea
• Judge: Akuram AJ
• Judgment Date: 03 May 1996
• Citation: [1996] PNGLR 430
• Court: National Court
• Year: 1996
• Judgement Number: N1436

National Court: Akuram AJ

Judgment Delivered: 3 May 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JACOB TUMA

V

THE COMMISSIONER OF POLICE

Mount Hagen

Akuram AJ

29 April 1996

3 May 1996

ADMINISTRATIVE LAW — Judicial Review — Purported dismissal with no formal notice of dismissal — Whether sufficient notice if notice is given on date of its effectiveness.

Facts

Applicant is seeking judicial review of his dismissal as a member of the Royal Papua New Guinea Constabulary upon being charged for stealing bail money and released upon appeal. There was no recommendation for his dismissal pursuant to s 57 (2), Police Force Act, Ch 65.

Held

1. The decision of the Police Commissioner to dismiss the applicant from his employment with the Royal Papua New Guinea Constabulary without due notice is breach of law

2. Where notice is not received until day of its effectiveness it is not due notice and is contrary to s 46 (5) of Police Force Act Ch 65.

Cases Cited

Papua New Guinea cases cited

Yaku v Commissioner of Police [1980] PNGLR 27.

Okuk v Fallscheer [1980] PNGLR 274.

Other cases cited

Malloch v Aberdeen Corporation [1971] 2 All ER 1278.

R. v Gaming Board of Great Britain [1970] 2 QB 417.

Counsel

D O'conor, for the applicant.

J Yamboli, for the respondent.

3 May 1996

AKURAM AJ: This is an application for Judicial Review of a decision of the Police Commissioner dismissing the applicant upon a recommendation by the District Court Mendi after convicting and sentencing the applicant to 8 months. Upon appeal, the said sentence was quashed and replaced with a 12 months good behaviour bond by National Court. There being no recommendations made for his dismissal made under s 57 (2) (a) of the Police Force Act, Ch 65.

The brief facts are that the applicant was charged by police on the 13th May 1994 for stealing Court Bail money in the sum of K530 which came into his possession by virtue of his employment as a policemen. He was convicted by the District Court, Mendi and sentenced to 8 months and recommended for dismissal on 24th June 1994 pursuant to s 57 (2) (a) of Police Force Act, Ch 65. He filed his notice of appeal on the same date of 24 June 1994 and released on bail on 15 July 1994. On 18 July 1994, three days after being released on bail, he was served with a disciplinary charge which read:

"At Mendi between Thursday 14th October 1993 and the 15th November 1993, you were guilty of improper conduct in your official capacity in that you did steal Police bail monies sum of Five hundred and thirty kina (K530) which had came into your possession by virtue of your employment (Police Dept.) and as Shift Supervisor". Contrary to s 43 (g) of the Police Force Act, Ch 65."

He was served the above charge on the 15th August 1994 at 9.20 pm on Monday. He admitted the charge and said he will provide his explanations in writing. His explanation is that he got the money to pay for school fees for his four children, two in Grades 8 and 10 and two in Community School. As he was charged after his successful appeal on 24 July 1994, he also pleaded to the Police Commissioner that the sentence was too excessive as a first offender and that Court did not consider his good character in the force. In fact this was his first offence.

Furthermore, he explained that he in fact repaid the full K530.00 but was told by Provincial Police Commander that he will be criminally charged which resulted in his conviction, sentence and subsequent appeal to the National Court which quashed the sentence in favour of 12 months good behaviour bond. The National Court did not consider a recommendation under s 57 (2) (a) of the Police Force Act, after upholding the appeal.

His Counsel in support of his application submitted that the Commissioner did not take into account the fact that the National Court did not make any recommendation for dismissal. He also submitted that there are no reasons given in coming to that decision.

There was no notice of dismissal to the applicant, even at the time of hearing this application which is confirmed by the Counsel for the respondent.

The applicant's Counsel had written to the Commissioner requesting for copies of the notices of dismissal on the 9th, 15th and 22nd of June 1995 but to no avail. I quote the above three referred letters.

"9th June 1995

The Commissioner for Police

Police Headquarters

PO Box 85

KONEDOBU

Dear Sir

RE: SGT. 5356 Jacob Tuma of Mendi Police Station

I enclose herewith a copy of your letter of the 22nd May 1995 address to Sgt. Tuma for your easy reference.

I am instructed to act on behalf of the above named who instructs me he believes that he is dismissed from the Police Force subsequent to proceedings in the District Court and the National Court and a charge brought against him by the Commissioner.

I note that although Sgt. Tuma received a copy of special payment advice dated 12 May 1995 endorsed with a note "dismissed from the Police Force with effect from the 12th of April 1995" he has receive no formal notice of dismissal todate.

However, I assume that there must be some formal dismissal after your letter of 22nd of May 1995.

If Sgt. Tuma is formally dismissed, would you please forward me a copy of the dismissal notice to be included with the documentation for consideration by the Court by way of Judicial Review. I would be most grateful if you would fax the notice to my above fax number at your earliest convenience.

Yours faithfully,

D L O'connor

15th June 1995

RE: Sgt. 5356 Jacob Tuma Of Mendi Police Station

Please find herewith a copy of the letter regarding this matter dated the 9th of June 1995. Would you please fax me a copy of the dismissal notice at your earliest convenience.

Yours faithfully,

D L O'Connor

22nd June 1995

RE: Sergeant 5356 — Jacob Tuma Of The Mendi Police Station

I enclose herewith copies of my letters of the 9th of June 1995 and 15th of June 1995 each of which was faxed to your office and the original posted by ordinary mail.

I note that I...