Selly Farapo v The Commissioner of Police

• Jurisdiction: Papua New Guinea
• Judge: Akuram AJ
• Judgment Date: 20 May 1996
• Citation: [1996] PNGLR 17
• Court: National Court
• Year: 1996
• Judgement Number: N1431

National Court: Akuram AJ

Judgment Delivered: 20 May 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SELLY FARAPO

V

THE COMMISSIONER OF POLICE

Mount Hagen

Akuram AJ

30 April 1996

3 May 1996

20 May 1996

ADMINISTRATIVE LAW — Judicial review — Police Force disciplinary charges under s 43 (g) Police Force Act Ch 65 — Whether principles of natural justice complied with.

CONSTITUTIONAL LAW — Judicial review — Dismissal from employment — Whether the Police Commissioner complied with the principles of natural justice — Section 59 Constitution.

WORDS AND PHRASES — "in the official capacity".

Facts

The applicant policeman was charged with two counts of disciplinary offences under s 43 (g) of the Police Force Act Ch 65 for wilful damage to property and a further two counts of being drunk and failing to turn up for duty as rostered. He was found guilty and dismissed from the Police Force. He applied by way of judicial review to have the decision to dismiss him reviewed on the basis of impropriety in the decision making process whereby he was inter alia not accorded the principles of natural justice.

Held

1. Judicial review is not concerned with the decision or the reasons as to why the decision is made but with the decision making process: Kekedo v Burns Philps [1988-89] PNGLR 122 adopted. Tandali v The State [1990] PNGLR 170 referred to.

2. With reference to s 45 of the Police Force Act Ch 65 and in accordance with the constitutional requirement of a fair hearing under s 37 (4) of the Constitution and the principles of natural justice both under s 59 of the Constitution and at common law, the decision making process in the circumstances of this case should involve the following sequence of events.

(a) Serving of charge onto the member;

(b) obtaining a reply from member charged;

(c) obtaining evidence from parties affected and from independent witnesses;

(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 replay to them with a view to deny or admit them;

(e) Copies of statement from member charged should also be served onto the parties affected or complaining from which the charge arose for their response;

(f) After obtaining all these, the Commissioner is then in a better position to assess them and see whether there is a case against the member charged or whether member is to be found guilty.

In the circumstances of this case, this process was not followed in all instances and therefore the applicant was not given a fair hearing in that he was not accorded the natural justice principle of the right to be heard.

3. The words "in the official capacity" refers to a member committing a disciplinary offence whilst on duty and not off-duty.

5. Judicial review granted, orders of Police Commissioner quashed, applicants re-instated to the Force.

Cases Cited

Papua New Guinea cases cited

Constitutional Reference No. 3 of 1978 Re intergroup Fighting Act 1977 [1977] PNGLR 421.

Kekedo v Burns Philps [1988-89] PNGLR 122.

Tandali v The State [1990] PNGLR 170.

Other cases cited

Malloch v Aberdeen Corporation [1971] 2 All ER 1278.

Ridge v Baldwin [1964] AC 40.

Counsel

Mr O'Connor, for applicant.

Mr Pokia, for respondent.

20 May 1996

AKURAM AJ: The applicant was first served with two serious disciplinary charges which read "on the 5th of November 1994 at Mt. Hagen you were guilty of disgraceful conduct otherwise than in your official capacity in that you did without reasonable excuse damaged property namely seven (7) louvre blades of Room 19, Barracks No. 3 at Kiminiga Police Barracks, the property of the Police Department. Thereby contravening [to] s 43 (g) of the Police Force Act, Ch 65".

He was served the said charge at 10.15 am on 2nd December 1994. He admitted the charge but explained later in writing to the Commissioner saying it was because he was locked up and beaten up and pushed against the louvres hence causing them to break. So it was not intentional and a direct act of breaking the louvres. The two policemen who beat him up in a locked room were Constable Paulias Wesley and Constable Moses Koagi. He says they should also be charged.

The second charge was for the same incident but this time for the breaking of covers of the cassette player. He denied this charge giving two reasons. First the said cassette radio was not in the said Room 19 and secondly he had no arguments with the owner Darius Morkum. The charge basically was worded the same.

The evidence before the Commissioner came from:

1. Applicant's written reply to the Police Director Internal Affairs dated 7/11/94;

2. Paulias Wesley; and

3. Darius Morkum.

The purpose of Judicial review is stated in Kekeko v Burns Philips [1988-89] PNGLR 122 where Supreme Court said that: "the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision making process". (emphasis added).

The Supreme Court in that case did not define two things.

First it did not define "what is the reasoning of the subordinate authority" or put in another way — "what constitutes" the reasoning of the subordinate authority. Secondly, the Supreme Court did not define what is "the decision making process" or "what constitutes the decision making process". Some help in defining the above two queries raised can be obtained by looking at His Honour Sheehen J's decision in Tandali v The State [1990] PNGLR 170 where the respondent's Counsel quoted on page 4 of his written submission, that:

"This Court's power of judicial review are only available to consider the validity of a decision of a tribunal and to interference with that decision only if it can be shown that it was made unlawfully, unfairly or contrary to the...