Mathew Totori v Bob Nenta, Police Commissioner and Department of Police (2003) N2373

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 28 February 2003
• Court: National Court
• Citation: (2003) N2373
• Year: 2003
• Judgement Number: N2373

Full Title: Mathew Totori v Bob Nenta, Police Commissioner and Department of Police (2003) N2373

National Court: Lenalia J

Judgment Delivered: 28 February 2003

1 ADMINISTRATIVE LAW—Judicial Review—Judicial review of administrative action—Dismissal from Police Force—Disciplinary charges—Disciplinary proceedings against a member of Police Force—Determination resulting in guilty findings—Police Force Act (Ch65).

2 JUDICIAL REVIEW—Serious disciplinary offences—Procedure taken in laying, serving charges and documents in support of charge or charges laid—Charges served—Police.

3 JUDICIAL REVIEW—Principles of natural justice—What is the duty to act fairly—Whether or not there is requirement to cross–examine witness or witnesses—Doctrine of ultra vires—Orders made ultra vires are out of jurisdiction and void.

4 JUDICIAL REVIEW—Administrative law—Quasi judicial functions—Administrative powers ought to be exercised only within their true limits—Governance of public functions.

5 Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Tandali v The Independent State of Papua New Guinea [1990] PNGLR 170, Simili Kara v The State [1984] PNGLR 254, R v Rymes (1953) 175 ER 573, The State v Tanedo [1975] PNGLR 395, Selly Farapo v The Commissioner of Police [1996] PNGLR 17, Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182, Gerald Sidney Fallscheer v Iambakey Okuk [1980] PNGLR 101, Iambakey Okuk and The Independent State of Papua New Guinea v Gerald Sidney Fallscheer [1980] PNGLR 274, Sudi Yaku v Commissioner of Police; Ex Parte The State [1980] PNGLR 27 and Godfrey Niggints v Henry Tokam [1993] PNGLR 66 referred to

The Court in these proceedings is asked to remove to it and quash several decisions made by the then Commissioner of Police on which the First Defendant after having found the Plaintiff guilty, demoted him to a lower rank on the first charge and on the second charge, the Plaintiff was dismissed from the Police Force. Both charges were serious charges and both decisions were made to be effective from 20 May 1996.

___________________________

N2373

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO: 135 OF 2000

BETWEEN: MATHEW TOTORI

- Plaintiff

AND: BOB NENTA, POLICE

COMMISIONER

- First Defendant

AND: DEPARTMENT OF POLICE

- Second Defendant

KOKOPO: Lenalia, J.

2002: 13 Sept. and 28 Feb. 2003

ADMINISTRATIVE LAW – Judicial Review – Judicial review of

administrative action – Dismissal from Police Force – Disciplinary charges – Disciplinary proceedings against a member of Police Force – Determination resulting in guilty findings – Police Force Act, Ch. No. 65.

JUDICIAL REVIEW – Serious disciplinary offences – Procedure taken in

laying, serving charges and documents in support of charge or charges

laid – Charges served – Police.

JUDICIAL REVIEW – Principles of natural justice – What is the duty to act

fairly – Whether or not there is requirement to cross-examine witness or witnesses – Doctrine of ultra vires – Orders made ultra vires are out of jurisdiction and void –

JUDICIAL REVIEW – Administrative law – Quasi judicial functions –

Administrative powers ought to be exercised only within their true limits – Governance of public functions –

The Court in these proceedings is asked to remove to it and quash several decisions made by the then Commissioner of Police on which the First Defendant after having found the Plaintiff guilty, demoted him to a lower rank on the first charge and on the second charge, the Plaintiff was dismissed from the Police Force. Both charges were serious charges and both decisions were made to be effective from 20th May 1996.

CASES CITED

The following cases are cited.

Kekedo -v- Burns Philip (Png) Ltd & Others [1988-89] PNGLR

Tandali -v- The State [1990] PNGLR. 170

Yaku -v- The State [1984] PNGLR, 254

R -v- Rymes (1953) 175 E.R. 573

The State -v- Tanedo [1975] PNGLR. 395

Selly Farapo -v- The Commissioner of Police [1996] PNGLR. 17

Thomas Kavali -v- Thomas Hoihoi (1984) N.472 (M)

Falsher -v- Iambaki Okuk [1980] PNGLR. 101

Ningints -v- Tokam [1993] PNGLR. 66

W. Donald, for the Plaintiffs

No for or by the Defendants

28 February 2003

LENALIA, J. The Plaintiff being a former Policeman in the rank of an Inspector was granted leave pursuant to Order 16 r3 of the National Court Rules on 12th February, 2001. Leave being granted the Plaintiff seeks the following orders.

1. An order for certiorari to remove into His Honourable Court and quash two decisions of the First Defendant both dated 20th May 1996 on two serious disciplinary charges wherein the Plaintiff was demoted from the rank of Inspector to Constable in relation to the First Charge and terminated from the Royal Papua New Guinea Constabulary on the Second Charge.

2. An order that the First Defendants decision dated 20th May 1996 to terminate the Plaintiff from Royal Papua New Guinea constabulary in relation to the first disciplinary charge and to demote him from the rank of Inspector to Constable on the second charge were without substance and not supported by any material evidence and could not have been supported by any material evidence in any proper tribunal and therefore void and of no legal effect.

3. A order that the decisions of the First Defendant to demote the Plaintiff from the rank of Inspector to the rank of constable and to also terminate him from the Royal Papua New Guinea Constabulary at the same time were biased and therefore void and of no legal effect.

4. An order that the entire proceedings on the two serious disciplinary charges against the Plaintiff wherein the same charges were served on the Plaintiff on three different occasions which proceedings led to both the demotion on the first charge and termination on the second charge in simultaneous sequence and which decisions were without any explanation were against the principles of natural justice and therefore void and of no legal effect.

5. An order that the Plaintiff be re-instated to his former rank of Inspector without any loss of entitlements backdated to the time of his termination as at 20th May 1996.

6. An order that the Plaintiff is entitled to claim damages.

7. Costs of these proceedings.

The Plaintiff to the date of his dismissal had been a policeman for almost 28 years. He had worked his way up to the rank he was dismissed from being an Inspector. The Plaintiff says, in his whole career with the Papua New Guinea Constabulary, he had never been charged and he had maintained an unblemished and distinguished record and career.

Being dismissed from the Papua New Guinea Constabulary, the Plaintiff now seeks orders for certiorari to remove into this Court and for this Court to quash the two decisions made against him by the First Defendant in May 20th 1996 from which decisions the Plaintiff was first demoted from the rank of Inspector to six levels below his rank to that of a Constable. That was the penalty for the first charge. The penalty for the second charge was dismissal from the Police Force.

The two serious disciplinary charges laid against the Plaintiff were brought pursuant to s. 43 (g) of the Police Force Act, Ch. No. 65. A disciplinary offence is defined by s. 43 (a) to (h) in the following words:

“43. Disciplinary offences.

A member of the Regular Constabulary Branch who –

(a) commits a breach of this Act; or

(b) wilfully disobeys or disregards a lawful order made or given by a

person having authority to make or give it, or

(a) is negligent or careless in the discharge of his duties; or

(b) is inefficient or incompetent from causes within his own control;

or

(a) uses intoxicating liquors or drugs to excess, or

(b) solicits or accepts a fee, reward, gratuity or gift in connexion with

the discharge of his official duties (other than his official remuneration); or

(a) having made or subscribed an oath or affirmation in the form in

Schedule 1, does or says anything in violation of that oath or affirmation,

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

Both charges were serious disciplinary offences and the first of which related to allegations that the...