Robin Aegaiya v Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3693

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 July 2009
• Court: National Court
• Citation: (2009) N3693
• Docket Number: OS (JR) NO 748 of 2007
• Year: 2009
• Judgement Number: N3693

Full Title: OS (JR) NO 748 of 2007; Robin Aegaiya v Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3693

National Court: Cannings J

Judgment Delivered: 27 July 2009

N3693

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 748 OF 2007

ROBIN AEGAIYA

Plaintiff

V

GARI BAKI, COMMISSIONER OF POLICE

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2009: 3, 4 June, 27 July

JUDICIAL REVIEW – grounds of judicial review – disciplinary charges – whether laying a charge under a repealed law is an error of law.

JUDICIAL REVIEW – remedies – whether delay in applying for leave for judicial review is relevant when the court exercises discretion whether to grant relief in a substantive application for judicial review.

The plaintiff is a member of the Police Force charged in April 2000 with a disciplinary offence under the repealed Police Force Act (Chapter No 65 of the Revised Laws). The law in place at the time he was charged was the Police Act No 37 of 1998. He was found guilty of the offence and in 2001 demoted to the rank of Chief Sergeant. In December 2007 he applied for leave to seek judicial review of the penalty of demotion on the ground that he had been charged under a non-existent law. In February 2008 leave was granted. This is a trial of the substantive application for judicial review.

Held:

(1) It is part of the principles of natural justice – and part of the right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence.

(2) Here, the charge was drafted under a law that was no longer in existence. The charge was defective and therefore the decisions to find the plaintiff guilty of the charge and to impose a penalty were defective.

(3) However, the substantial and unsatisfactory delay between those decisions and the filing of the application for leave (six years, six months) and the further delay between the granting of leave and the hearing of the judicial review (one year, three months) make it detrimental to good administration to reinstate the plaintiff.

(4) The primary relief sought by the plaintiff (reinstatement and back-pay) was accordingly refused.

(5) However, declarations were made that the charge laid against the plaintiff, the decision to find him guilty and the decision to demote him were made unlawfully; and orders were made requiring the Commissioner of Police to amend the personnel file of the plaintiff to clearly record and reflect the Court’s findings.

Cases cited

The following cases are cited in the judgment:

Clement Kilepak v Ellison Kaivovo (2003) N2402

Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01

Michael Winmarang v David Ericho and The State (2006) N3040

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00

The State v John Ritsi Kutetoa (2005) N2814

Tony Vagi Heni v Guba Idau Maima (1994) N1201

Counsel

R Uware, for the plaintiff

C Havak, for the defendants

1. CANNINGS J: The plaintiff, Robin Aegaiya, has been a member of the Royal Papua New Guinea Constabulary (the Police Force) since 1974. He was promoted on several occasions, most recently in 1992 to the rank of Inspector. That was the rank he held in April 2000 when, while holding the position of OIC Prosecutions at Goroka, Eastern Highlands Province, he was charged with a disciplinary offence. The charge was being careless in the discharge of his duties in that he lost a court exhibit, a Winchester revolver, which was under his custody and safekeeping. He denied the charge but in June 2001 was found guilty and demoted to the rank of Chief Sergeant.

2. In December 2007 he applied for leave to seek judicial review of the penalty of demotion. In February 2008 leave was granted. This is a trial of the substantive application for judicial review.

THE GROUND OF REVIEW AND THE RELIEF SOUGHT

3. The primary ground of judicial review is that the charge laid against the plaintiff was defective as it was based on a non-existent law, the repealed Police Force Act (Chapter No 65 of the Revised Laws). The law in place at the time he was charged was the Police Act No 37 of 1998. He argues that the decision to find him guilty and the decision to demote him were made without any legal basis and he should be reinstated to the rank of Inspector and paid back-pay to the date of his demotion.

4. The first defendant, the Commissioner of Police, disagrees. His position is that the charge was validly laid in accordance with the repeal and savings provisions of the Police Act. No errors of law were committed but even if there were the matter has been too long delayed to warrant reinstatement.

ISSUES

5. There are four issues before the Court:

1. Was the charge defective?

2. If the charge was defective, what are the consequences?

3. Has the matter been too long delayed to warrant reinstatement?

4. What declarations or orders should the Court make?

1 WAS THE CHARGE DEFECTIVE?

6. The charge was laid under Section 43(c) of the Police Force Act, which made it a disciplinary offence for a member of the Force to be careless in the discharge of his duties. At the time the charge was laid – April 2000 – the Police Force Act had been repealed. It was repealed and replaced by the Police Act 1998, which commenced operation on 1 February 1999.

7. Mr Havak, for the defendants, submitted that this was not a problem because of Section 157 (repeals and savings) of the Police Act, which states:

(1) The Police Force Act (Chapter No 65) is repealed.

(2) The repeal of the Police Force Act does not affect the validity of anything done under that Act and all Orders, Commands, Decisions and other things given made or done under that Act which were in force immediately before the commencement of this Act continue in force as if given made or done under this Act.

(3) Proceedings commenced under the Police Force Act continue as if that Act had not been repealed.

(4) The Police Force Regulation is continued as if made under this Act.

(5) Where in any other enactment there is a reference to the Police Force Act (Chapter 65), such reference shall be read as if it were a reference to this Act and a reference to a portion of the Police Force Act shall be read as if it were a reference to the corresponding portion of this Act.

8. Mr Havak submits that Section 157(2) applies to the present case as it protects orders, commands, decisions and other things under the Police Force Act that were in force immediately before the commencement of the Police Act.

9. However, Section 157(2) simply ensures that things done under the repealed Act continue in force – they do not lose their force or effect – even though there is a new Act in operation. For this provision to apply in the present case, the charge against the plaintiff would have had to be laid before the date of commencement of the new Act: 1 February 1999. But the charge was not laid until April 2000, more than twelve months after the commencement of the new law.

10. Although the offence was alleged to have been committed during the period from 21 December 1998 to 11 April 1999 (during part of which period the old law still applied), the disciplinary offence provisions of the Police Act were more in the nature of an amendment than a repeal of the disciplinary offence provisions of the Police Force Act. Therefore the charge should have been laid under the new law. Similar principles of statutory interpretation apply to criminal cases. It sometimes happens that a person will be charged with committing an offence but the law has changed between the time that they are alleged to have committed the offence and the time that they are charged. The general rule is that if the new law has, in substance rather than form, amended (rather than repealed) the old law, the person should be charged under the new law. Only if the new law is a completely new law that amounts to a repeal, in substance rather than form, of the old law, should the charge be laid under the old law (The State v John Ritsi Kutetoa (2005) N2814).

11. I reject the defendants’ argument. This is a case where the charge, laid more than 12 months after commencement of the new law, the Police Act 1998, should have been laid under that law. As it was laid under the repealed law, the charge was defective.

2 IF THE CHARGE WAS DEFECTIVE, WHAT ARE THE CONSEQUENCES?

12. It is part of the principles of natural justice – and part of the right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy the person charged will not know the case that he or she has to answer. The person laying the charge and the person determining the charge will not have a clear mind on the real issues to be decided.

13. If the charge is defective it follows that any decision to find the charged...