Paul Saboko v Commissioner of Police and The Independent State of Papua New Guinea (2006) N2975

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 21 February 2006
• Citation: (2006) N2975
• Docket Number: OS No 94 of 1999
• Year: 2006

Full Title: OS No 94 of 1999; Paul Saboko v Commissioner of Police and The Independent State of Papua New Guinea (2006) N2975

National Court: Cannings J

Judgment Delivered: 21 February 2006

1 Judicial review—application for review—plaintiff a former officer of Police Force—dismissed for disciplinary reasons—alleged stealing of pay cheques—whether acquittal on criminal charges prevents laying of disciplinary charges—grounds of judicial review—Wednesbury unreasonableness.

2 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Clement Kilepak v Ellison Kaivovo (2003) N2402, Dicky Nanan v John Maru and Police Commissioner (1997) N1507, Geregl Mauglo v The Police Commissioner and The State (1998) N1728, Gideon Barereba v Margaret Elias (2002) N2197, John Magaidimo v Commissioner of Police (2004) N2752, Kita Sapu v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2426, Mision Asiki v Manasupe Zurenuoc (2005) SC797, Morobe Provincial Government v Minister for Village Services (1994) N1215, Ombudsman Commission v Peter Yama (2004) SC747, Paul Pora v Commissioner of Police (1997) N1569, Peter Bon v Mark Nakgai (2001) PNGLR 18, Peter Luga v Richard Sikani (2002) N2285, Pierson Joe Kamangip v Bernard Orim and The State [1998] PNGLR 95, Sudi Yaku v Commissioner of Police and The State [1980] PNGLR 27, Toll v Kibi Kara and Others [1990] PNGLR 71 referred to

A member of the Police Force was charged under the Criminal Code with stealing five pay cheques. He was tried and acquitted in the District Court. A delegate of the Commissioner of Police then charged him with disciplinary offences relating to the same missing pay cheques. He was found guilty of one out of five charges and dismissed from the Police Force. He sought and was granted leave to seek judicial review. This was the hearing of the substantive application for review. His primary ground of review was that both the decision to find him guilty and the decision to impose the penalty of dismissal were so unreasonable no reasonable decision making authority in the position of the Commissioner of Police could have made those decisions.

Held:

The criminal laws that apply to all persons in the country and the disciplinary code for members of the Police Force, which apply only to members of the Police Force, are independent, parallel sets of laws. Breach of one set of laws may or may not amount to breach of the other set of laws.

The Commissioner of Police was not automatically prevented or estopped from laying disciplinary charges due to the plaintiff's acquittal.

However, having regard to all the facts of the case and the circumstances in which the Commissioner laid disciplinary charges in the same terms as those of which the plaintiff had been acquitted, and the lack of evidence that the plaintiff had stolen the cheques, the decisions to lay the charges and find the plaintiff guilty were so unreasonable no reasonable decision–maker in the position of the Commissioner would have made those decisions.

The decision to dismiss the plaintiff was accordingly quashed and the court ordered his reinstatement and payment of back–pay to the date of the trial.

Abbreviations

The following abbreviations appear in the judgment:

AJ—Acting Justice

CJ—Chief Justice

Const—Constable

DCJ—Deputy Chief Justice

eg—for example

ie—that is; by which is meant

J—Justice

K—Kina

Ltd—Limited

N—National Court judgment

No—number

OS—originating summons

p—page

PNG—Papua New Guinea

PNGLR—Papua New Guinea Law Reports

pp—pages

Pty—Proprietary

SC—Supreme Court judgment

Sgt—Sergeant

Snr—Senior

Supt—Superintendent

v—versus

=—equals

%—per cent

JUDICIAL REVIEW

This was an action in which the plaintiff sought judicial review of his dismissal as a member of the Police Force.

Judgment

_______________________________

Cannings J:

INTRODUCTION

This is a judgment on an application for judicial review. The plaintiff is seeking review of his dismissal as a member of the Police Force.

BACKGROUND

On 25 September 1998 the Commissioner of Police dismissed the plaintiff from the Police Force. It is that decision which is the subject of the application for judicial review. At the time the plaintiff held the rank of Sergeant. He was paymaster at the Mt Hagen Police Barracks. The Commissioner had caused an investigation to be conducted, laid disciplinary charges against the plaintiff, found him guilty and imposed the penalty of dismissal.

On 22 February 1999 the plaintiff's lawyers, Kunai & Co of Mt Hagen, filed an originating summons and other documents under O16 of the National Court Rules. These documents sought leave for judicial review and set out the grounds on which the plaintiff proposed to rely.

On 10 March 2000 Hinchliffe J granted leave to seek judicial review.

More than four years passed before the application for judicial review was heard. The delay was not attributable to the conduct of either the plaintiff or the defendants.

THE PLAINTIFF'S EVIDENCE

Outline

Mr Kunai, for the plaintiff, tendered two documents by consent and called the plaintiff, Paul Saboko, to give oral evidence.

The exhibits

Column 1 of the table below gives the exhibit number, column 2 describes the nature of the document and column 3 summarises the contents.

TABLE 1: SUMMARY OF DOCUMENTS TENDERED BY THE PLAINTIFF

Exhibit Description Content

A Affidavit: States that he joined the Police Force in 1979 and served until he
Paul Saboko, was dismissed on 25.9.1998—was stationed at Mt Hagen in 1995
plaintiff, as paymaster—on 3.12.96 the Police charged him with stealing
10.2.1999 five pay cheques—on 4.9.1997 the District Court at Mt Hagen
(Mr R Appa) found him not guilty of all charges—on 5.4.1998 he
was served with five disciplinary charges—on 9.4.1998 he
responded in writing to the disciplinary charges. The first
defendant, the Commissioner of Police, later responded: found
him guilty of one of the charges, not guilty of four, and dismissed
him from the Police Force, with effect from 25.9.1998.

B Letter: The letter is captioned: NOTICE OF PENALTY—SERGEANT:
Commissioner of 7916. PAUL SABAKO [sic]. The letter informs the Commander
Police/ that the member facing serious disciplinary charges have been
Commander, dealt with and that he has been found guilty of the first count
Highlands while he has not been found guilty of the other four counts.
Command, Consequently the member is dismissed effective from 25.9.1998.
7.9.1998 Attached to this letter is a memo to the plaintiff headed "NOTICE
OF PENALTY FOR SERIOUS DISCIPLINARY OFFENCE".
This notice was served on the plaintiff on 18 September 1998.

Oral evidence

The plaintiff Paul Saboko adopted his affidavit in examination–in–chief. He stated that he was a police officer for 19 years prior to his dismissal. He was charged by the Police Commissioner with five counts of stealing cheques. He was the paymaster. He held the rank of Sergeant in the Police Force. Each count related to a cheque for K185.00.

He was subject to criminal proceedings in the District Court and disciplinary charges under the Police Force Act. In respect of the disciplinary charges, the Commissioner of Police found him guilty of the first charge and not guilty of the other four charges. He said that it was wrong for the Commissioner of Police to charge him under the repealed Police Force Act. Asked if he had received from the Commissioner of Police the notice of penalty, he replied, yes. Asked if he had responded to the charges, he said yes. Asked if he was allowed to make submissions on penalty, he replied no.

He was asked how many times he heard from the Commissioner of Police. He said he heard from him only once and that was by the notice of dismissal.

In cross–examination he stated that he provided responses to the charges. Mr Ovia referred him to the annexures to his affidavit of 10 February 1999 and asked him if those were his responses to the charges. The plaintiff answered yes. Asked if his response was mainly relating to the District Court proceedings, which found him not guilty of all five counts, he said yes.

Mr Ovia asked the plaintiff where in his responses he explained what happened to the missing cheques. He replied that this has been explained when he replied to the five charges. He admitted that his evidence was mostly on the findings of the District Court which ruled that there was insufficient evidence but he did not agree with the suggestion that he had not explained what happened to the missing cheques.

He agreed that in the trial in the District Court some of the State witnesses were not available.

Asked if he had requested the Commissioner to furnish him with any documents or statements to enable him to provide his response, he said no.

...