Pierson Joe Kamangip v Bernard Orim and The Independent State of Papua New Guinea [1998] PNGLR 95

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 26 March 1998
• Court: National Court
• Citation: [1998] PNGLR 95
• Year: 1998
• Judgement Number: N1695

Full Title: Pierson Joe Kamangip v Bernard Orim and The Independent State of Papua New Guinea [1998] PNGLR 95

National Court: Kapi DCJ

Judgment Delivered: 26 March 1998

N1695

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. N0. 462 OF 1996

BETWEEN: PIERSON JOE KAMANGIP

PLAINTIFF

AND: BERNARD ORIM

FIRST DEFENDANT

AND: COMMISSIONER OF POLICE

SECOND DEFENDANT

AND: THE STATE

THIRD DEFENDANT

Waigani

Kapi DCJ

12 March 1998

26 March 1998

JUDICIAL REVIEW — Disciplinary proceedings — Whether Commissioner is required by Police Force Act (Cap 65) to serve statements and reports on policeman. — Whether Commissioner is required by Police Force Act (Cap 65) to invite policeman to make comments before penalty is imposed. — Duty of Commissioner to provide reasons for decision implied by common law.

Counsel

S. Varimo for the Plaintiff

A. Iwais for the Defendants

26 March 1998

KAPI DCJ: This is an application for an order in the nature of certiorari by way of a judicial review pursuant to O 16 of the National Court Rules. Leave for judicial review was granted on 20th November 1996. This matter has come before me for substantive hearing.

The plaintiff was a constable in the Royal Papua New Guinea Constabulary. On 6th June 1994, he was charged with a criminal offence of rape. It was alleged that he raped a female while she was held in custody. He was subsequently committed to stand trial in the National Court.

While the criminal charge was still pending, he was charged with a disciplinary offence of improper conduct for raping the female whilst in custody pursuant to s 43 (g) of the Police Force Act (Cap 65). The plaintiff responded in writing and denied the charges. He was found guilty of the disciplinary offence and dismissed from the Police Force effective as from 3rd June 1995.

He has applied for orders seeking (1) to quash the decision in relation to the conviction of the disciplinary offence (2) to quash the decision on penalty and (3) to reinstate him to his position as a constable. He relies on the following grounds:

(1) That the First Defendant was in breach of the principles of natural justice, the rule, audi alteram partem in that the Plaintiff was not given a fair opportunity to answer the case against his own case in that he was not allowed the opportunity to:

(a) respond to the prejudicial materials against him, and

(b) the adverse inference, views and reports made against him.

(if any) used or relied on by the First Defendant in making a decision in dismissing the Plaintiff from the police Force.

(2) That the First Defendant erred in law in finding the Plaintiff guilty of the charge of improper conduct upon no evidence or insufficient evidence in support of the Charge.

(3) That the First Defendant erred in law in not allowing the Plaintiff to comment on the penalty before making a decision.

(4) That the First Defendant erred in law in the exercise of his discretion in imposing a penalty of dismissal which is excessively severe in the circumstances in that less or no consideration was given to the matters in the Plaintiff's favour.

(5) That the First Defendant erred in law in not giving his reasons for the decision on both guilty and penalty.

Counsel for the plaintiff has abandoned grounds (2) and (4) on the basis that they are not valid grounds for judicial review. He has confined his case to grounds (1), (3) and (5).

The first ground is based on the complaint that

"..the plaintiff was not given an opportunity to answer the case against him and put his case in that he was not allowed to:

(1) respond to the prejudicial materials against him, and

(2) the adverse inferences, views and reports made against him"

The complaint is that the plaintiff was not served with statements of witnesses and reports that were used by the Defendants to reach a decision, thereby denying him the opportunity to respond to them.

Counsel for the plaintiff submitted that common law principles require that the plaintiff is entitled to be served with statements of witnesses and any report in order to be able to either deny or admit any allegation of fact. He submitted that the plaintiff was not served these documents prior to the decision to convict him and thereby breaching the principles of natural justice. He relied on Selly Farapo v The Commissioner of Police (Unreported judgement of the National Court dated 20th May 1996, N1431) and Dixon v Commonwealth of Australia 61 ALR 173.

Counsel for the defendants submitted that the law governing the question of whether or not the plaintiff is entitled to be served with the documents in issue is governed by s 46 of the Police Force Act (Cap 65) and by implication this provision excludes the application of the principles of common law. He relied on Dicky Nanan v John Maru and Police Commissioner (Unreported judgement of the National Court dated 10th February 1997, N1507) and Michael Kapa Wena v Henry Tokam (Unreported judgement of the National Court dated 9th May 1997, N1570).

In Selly Farapo v The Commissioner of Police (supra) the issue that has now arisen before me did not arise. In that case Akuram J. was considering the sufficiency of the evidence to support the charges. In dealing with this issue he considered the proper grounds for judicial review. In giving meaning to the principle "Judicial review is concerned not with the decision but with the decision making process" enunciated by the Supreme Court in Rose Kekedo v Burns Philip [1988-89] PNGLR 122, he went on to discuss the nature of the decision making process and general principles relating to the observance of principles of natural justice. It is not necessary to refer to all the requirements for the purposes of the present case. He stated the following as one of the requirements:

" (d) Giving to the member charged copies of any evidence from witnesses which have been sent to the Police Commissioner but not the member. The reasons being that he would not know what evidence is given against him and as it is all written, copies be given him so he may reply to them with a view to deny or admit them."

His Honour decided the case on the basis that the charges could not be supported by the evidence. Therefore, I find that his conclusion that statements of witnesses and reports are required to be served on the member is obiter dicta.

Dixon v Commonwealth (supra) supports the proposition, amongst others, that where a statute confers power upon a person to dismiss a person from a position, the rules of natural justice and standards of fairness...