John Magaidimo v Commissioner for Police The Independent State of Papua New Guinea (2004) N2752

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 20 September 2004
• Court: National Court
• Citation: (2004) N2752
• Year: 2004
• Judgement Number: N2752

Full Title: John Magaidimo v Commissioner for Police The Independent State of Papua New Guinea (2004) N2752

National Court: Gavara–Nanu J

Judgment Delivered: 20 September 2004

N2752

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 613 OF 2002

BETWEEN:

JOHN MAGAIDIMO

Plaintiff

AND:

COMMISSIONER FOR POLICE

First Defendant

AND:

THE STATE

Second Defendant

Mt. Hagen: Gavara-Nanu J

2004: 7th & 20th September

ADMINISTRATIVE LAW – Judicial review - Dismissal from the Police Force – Police Force Act, Chapter No. 65, ss. 43(c) and (f), 45 (1) (a) (b) (d) and (e), 46 (4), 57 and 61 - Double punishment– Principles of natural justice – Right to be heard on penalty – Maximum penalty not fixed or automatic – Discretion to impose penalties other than the maximum penalty – Termination having no basis in law – Dismissal unlawful.

Cases cited.

Toll -v- Kibi Kara & Others [1990] PNGLR 71.

Counsel.

P. Kunai for the plaintiff.

R. Koimo for the defendants.

Gavara-Nanu J: At the time of writing this judgment, I have become aware that the Police Force Act, Chapter No. 65, under which the plaintiff

was charged and dismissed was repealed prior to the plaintiff being charged. That being the case, it would seem that my application and

exposition of the provisions of that Act, in this judgment may only be academic. However, the end result is the same viz, the plaintiff’s dismissal was unlawful for the reasons given in the judgment and that he was charged under the repealed law. He is therefore entitled to be reinstated to his former position or a position equal to it in the Police Force with all his entitlements.

My observations on the principles of natural justice and the Court’s broad discretionary powers in reviewing administrative actions as in this case nonetheless remain the views of this Court, as they are issues which have been determined independently of the repealed Police Force Act.

The plaintiff was a Senior Sergeant in the Royal Papua New Guinea Constabulary and the Acting Regional Officer In-Charge of the Criminal Investigation Division, (hereinafter referred to as ’CID’), of the Highlands Region based in Mt. Hagen when he was dismissed from the Police Force through a Notice of Penalty.

The Notice of Penalty was undated. However, it was served on the plaintiff on 28th September, 2000 and the dismissal took effect on the same day.

The background facts leading up to the dismissal are these. On 22nd January, 1999, the plaintiff was arrested and charged with misappropriating sum of K3, 580.10t, which was for court exhibits allegedly under his control. This was a criminal offence under s 383 A of the Criminal Code Act.

The plaintiff eventually appeared before the Committal Court in Mt. Hagen and was committed to stand trial in the National Court. When the

matter came before the National Court, the charge was amended from misappropriation to stealing.

While waiting for his trial in the National Court on the stealing charge, the plaintiff was served with four serious disciplinary charges for offences under the Police Force Act, Chapter No. 65, on 6th July, 1999. All the charges were reduced to writing and were all dated 2nd June, 1999.

Prior to being charged with misappropriation on 22nd January, 1999, he was suspended from duties without pay from 6th November, 1998 to 15th February, 1999, which was a period of three months one week, and that translates to about six fortnights. After that, the suspension was lifted but he was transferred from CID to General Duties Section. He continued working in the General Duties Section until his dismissal on 28th September, 2000.

At the time of his dismissal, he had served in the Police Force for about 25 years.

The first three disciplinary charges were laid under s.43 (c) of the Police Force Act, for negligence or for being careless in the discharge of his duties.

The fourth disciplinary charge was laid under s.43 (f) of that Act, for accepting fees, in connection with his duties.

The first of the three disciplinary charges alleged that between 6th December, 1996 and 6th November, 1998, in Mt. Hagen, the plaintiff was

negligent in the discharge of his duties whilst acting as the Regional Officer In-Charge of CID for the highlands region who was charged with the duty of the safe custody of K1,140.10, which was a court exhibit in a

stealing case, and that he had failed to adequately account for the disappearance of that money.

The second disciplinary charge alleged that between 12th February, 1997 and 6 November, 1998, in Mt. Hagen, the plaintiff was negligent in the discharge of his duties, whilst being charged with the duty of the safe custody of K500.00, which was a court exhibit in a bribery case, and that he had failed to adequately account for the disappearance of that money.

In the third disciplinary charge, it was alleged that between 4th August, 1997 and 6th November, 1998, in Mt. Hagen, the plaintiff was negligent in the discharge of his duties, whilst having custody of K1,140.00, which was a court exhibit in a robbery case, and that he had failed to adequately account for the disappearance of that money.

In respect of the fourth charge, it was alleged that between 12th February, 1997 and 6th November, 1998, in Mt. Hagen, the plaintiff accepted a fee in the sum of K500.00, for the release of a wreck vehicle from Mt. Hagen Police Station and that he had failed to adequately account for the disappearance of the K500.00 he received.

The four charges were dealt with as serious disciplinary charges under s.46 of the Act.

On 8th July, 1999, the plaintiff replied to the charges where he denied all four charges.

On 20th May, 2002, the stealing charge before the National Court was nollied by the State, so the plaintiff who was an accused then, was discharged by the National Court, from the stealing charge.

So the plaintiff who was dismissed from the Police Force on 28th September, 2000, on four disciplinary charges was discharged by the National Court on the stealing charge on 20th May, 2002, which was about one year eight months after he was dismissed.

The plaintiff is here seeking declarations that the first defendant was wrong in dismissing him, and that his dismissal from the Police Force be quashed and that he be reinstated to his previous position with all his entitlements.

The plaintiff also says that the penalty was excessive in the circumstances of the case.

Mr. Kunai submitted for the plaintiff that there was breach of natural justice by the first defendant because the plaintiff was not given the opportunity to address or be heard on penalty.

The penalties which could be imposed on the plaintiff are those enumerated under s.46 (4) of the Act.

Those penalties are:-

(i) fine not exceeding K40.00, or

(ii) reducing the plaintiff’s salary, or

(iii) lowering the plaintiff to a lower rank and being paid a salary at that lower rank, or

(iv) in addition to or instead of imposing the penalty mentioned in (iii) above, transfer the plaintiff to other duties or to some other locality, or

(v) impose penalties enumerated under s.45(1) (a),(b),(d) or (e), which are minor offences penalties, or

(vi) dismissal.

I make two observations regarding the possible penalties that could have been imposed on the plaintiff under s.46 (4). Firstly, as it can be seen above, the first defendant had very wide discretion in deciding on the penalty for the plaintiff. Such penalty included any of the penalties for minor disciplinary offences prescribed under s.45 (1) (a) (b) (d) or (e).

Secondly, from the penalties that could be imposed on the plaintiff, the first defendant decided to impose the maximum penalty of dismissal.

It is to be noted that the maximum penalty was not automatic nor was it fixed. This is also made clear by s.61 which deals with dismissal. It provides:-

S.61...