Leto Darius v The Commissioner of Police and The State (2001) N2046

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 19 January 2001
• Court: National Court
• Citation: (2001) N2046
• Year: 2001
• Judgement Number: N2046

Full Title: Leto Darius v The Commissioner of Police and The State (2001) N2046

National Court: Kandakasi J

Judgment Delivered: 19 January 2001

N2046

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O. S. 38 of 2000

BETWEEN:

LETO DARIUS

Plaintiff

AND:

THE COMMISSIONER OF POLICE

First Defendant

AND:

THE STATE

Second Defendant

LAE: Kandakasi J

2001: 12 & 19 January 2001

Mr. Unido for the Plaintiff.

No appearance for the Defendants.

ADMINISTRATIVE LAW — Judicial review — Application for leave — Failure to take into account relevant factors before decision on penalty despite earlier court order — Factors for consideration on leave application considered — Arguable case shown — Leave granted

Cases cited:

Ombudsman Commission of Papua New Guinea v.Denis Donohoe [1985] PNGLR 348

NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70

The Application of Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276

An Ex Parte Application of Eric Gurupa For Leave To Apply For Review (1990) N856.

Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1

Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216

National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139

Air Niugini Ltd v. Beverley Doiwa (2000) N1972

Tiga Nalu v. Commissioner of Police and The State (1999) N1927.

Application of Christopher Haiveta (1998) N1783

Diro v. Ombudsman Commission of Papua New Guinea [1991] PNGLR 153

Application of Demas Gigimat [1992] PNGLR 322

Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935

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

Ombudsman Commission of Papua New Guinea v. Honourable Justice Sakora and 2 Others as the Leadership Tribunal (1996) N1720

In the Matter of Ex Parte Application of Poka Biki [1995] PNGLR 366

Lawrence Kalaiva and Others v. Simon Arua and Others (1999) N1922

19 January, 2001

KANDAKASI, J: This is an application for leave for judicial review of a decision of the First Defendant (hereinafter "the Commissioner"). The application is made pursuant to Order 16 Rule 3 of the National Court Rules 1983 ((Chp. 38) hereinafter simply referred to as "O" for Orders and "r" for a rule and "rr" for more than one rule).

The relevant originating summons was filed on the 1st of February 2000. That was together with an affidavit in support by the Plaintiff sworn on the 15th of December 1999. Subsequently, on the 16th of March 2000, a statement in support of the application together with an affidavit of the Plaintiff verifying the facts relied on were filed. At that time, a notice of motion seeking leave for judicial review and other orders was also filed.

There is an affidavit of service sworn by a Barry Kiway on the 20th of April 2000 and filed on the 1st of May 2000. That affidavit shows that the above documents were served on the Acting Solicitor General for the purposes of O.16 r.3(3). On the 29th of May 2000, the then Acting Solicitor General filed a Notice of Intention to Defendant on behalf of the Defendants.

Then by notice of motion filed on the 2nd of June 2000, the Plaintiff applied for and received and interim restraining order against the Defendants, preventing them from evicting the Plaintiff from the Bumbu Police Barracks, here in Lae. Prior to that, the original notice of motion filed on the 16th of March 2000, was the subject of continuous adjournments which continued until it came before me on the 12th January 2001. The last adjournment was from the 15th of December 2000 to the 12th of January 2001. With the exception of only two appearances by Mr. Saranduo and Ms Kiele Polume respectively on the 15th of May 2000 and 29th September 2000, there has been no appearance for the Defendants on each of the occasions the matter went before the Court and was adjourned. I was thus satisfied that the Defendants showed no interest in the matter despite being served and making two brief appearances on two separate occasions, evidenced by their consistent non appearances. Besides I reminded myself that O.16 r. 3 permits an applicant for leave for judicial review to proceed ex parte subject only to the requirements for service on the Secretary for Justice under O.16 r. 3(3), which requirement was met. I therefore granted leave to the Plaintiff to proceed ex parte.

Facts

On the 7th of May 1997, the Plaintiff was charge with a disciplinary offence of being drunk whilst on duty, failing to report for duty on time and failing to respond to radio calls. That followed his suspension from duties on 22 of April 1997. Eventually, he was found guilty and dismissed from the Police Force (hereinafter "the Force") by the then Commissioner of Police, Peter Aigilo LLB, QPM, with effect from the 24th of December 1997.

The Plaintiff then successfully applied for a judicial review of the Commissioner's decision. His Honour, Hinchliffe J. in a judgement delivered on the 4th of May 1999, made the following orders:

1. That the decisions of the first Defendant (that is the Commissioner of Police) dismissing the plaintiff from the Police Force effective from the 24th of December, 1997 are quashed.

2. That the decisions finding the plaintiff guilty of the serious offence are confirmed.

3. That the Police Commissioner is to hear the plaintiff on penalty before he makes a final decision. The hearing and the decision and the notification of the decision are to occur within sixty … days from today.

4. The State is to pay the costs. If not agreed then to be taxed.

By letter dated 3rd June 1999, the plaintiff submitted his address on penalty and was received by the Commissioner on the 21st of September 1999. On the same day of the receipt of the plaintiff's address on penalty, the Commissioner decided to re-affirm the earlier decision to dismiss.

On the 19th of October 1999, the plaintiff was served with a copy of the decision dismissing him, dated 21st September 1999. This led to the present proceedings being filed on the 1st of February 2000. That was well within the 4 months stipulated by O.16 r. 4, both from the date of the decision and from the date the decision was received by the plaintiff.

The plaintiff was employed by the Force since 8th June 1978, until the decision to dismiss him. The plaintiff has 13 prior disciplinary convictions. They appear at page 2 of annexure "B" to Mr. Unido's Affidavit sworn and filed on the 2nd of June 2000. All of these appear to be alcohol consumption related problems. According to a letter dated 18th May 1999, Pastor Allan Tagi of the Buimo SDA Church, (annexure "D" to Mr. Unido's Affidavit and original admitted into evidence has exhibit "1"), the plaintiff was attending that church and was schedule to baptised and hence become a member of that Church on the 5th of June 1999. In so doing, he has accepted and was following that Church's teaching of no consumption of alcoholic drinks.

The decision the subject of the application reads apart from the formalities:

Your address on penalty was received at Police Headquarters on the 21st of September 1999. This address was taken into account when arriving at the decision. The reasons for the decision are as follows:-

His Honour J. HINCHLIFF made a ruling on the principles of Natural Justice and made the following orders:

1. That the decisions for dismissing you from the Police Force, is quashed.

2. The decision of finding you guilty of the serious offence are confirmed.

3. That I am to hear you on penalty before I make a final decision.

The charges against you were:

1. That on the 19th of April, 1997, you were negligent in the discharge of your duties, in that you failed to respond on a two way radio to your OIC Traffic Inspector SIMONGI and zero Alpha who wanted to know your location.

Thereby contravening to section 43(c) of the Police Force Act, Chapter 65.

2. That on the 19th of April 1997, at Lae you committed a breach of the Police Force Act (Chapter 65) in that you used intoxicated liquor too excesses at Bumbu Barracks.

Thereby contravening to section 43 (a) of the Police Force Act, Chapter 65.

I have considered your submission on penalty, which was received at the Police Headquarters. This submission was taken into account when making a decision as to penalty. Reasons for the imposition of this penalty are as follows:

The practice of members not responding to transmitting calls from the main base control of the Police establishment are now prevalent and your action in one of the classic example.

Normally offending members giving different...