Simon Ottogoma v The Independent State of Papua New Guinea (2001) N2154

• Jurisdiction: Papua New Guinea
• Citation: (2001) N2154
• Date: 26 November 2001
• Court: National Court
• Year: 2001

Full Title: Simon Ottogoma v The Independent State of Papua New Guinea (2001) N2154

National Court: Injia J

Judgment Delivered: 26 November 2001

1 Judicial review—Decision of Disciplinary authority—Dismissal of policeman by Police Commissioner for disciplinary reasons—Grounds—Breach of principles of natural justice—Whether Police Commissioner required to serve copies of internal police investigation reports on member charged with disciplinary offence—Whether opportunity given to member to address on penalty before he was found guilty and punished—Police Force Act 1998, s23–s24.

2 Dicky Nanan v John Maru and Police Commissioner (1997) N1507, Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Kelly Yawip v Commissioner of Police [1995] PNGLR 93, Michael Kapa Wena v Henry Tokam (1997) N1570, Tiga Nalu v Commissioner of Police (1999) N1927 and Philip Kamo v The Commissioner of Police (2001) N2084 referred to

___________________________

Injia J: The applicant is applying for judicial review under O16 of the National Court Rules. Leave to apply for review was granted on 21 March 2001. The application is contested by the respondent.

The applicant is seeking a review of the Police Commissioner's ("the Commissioner") decision of 20 September 2000 dismissing him from the Police Force for disciplinary reasons. The applicant has filed 3 affidavits sworn on 3 November 2000, 11 December 2000 and 8 August 2001 respectively. He also relies on the other affidavits of Constables Dean Sawan sworn on 3 November 2000; Constable Maika Nosare sworn on 3 November 2000, Sgt Razi Take sworn on 3 November 2000; Police Officer Tony Wagambie sworn on 8 November 2000 and Senior Inspector Peter Guiness sworn on 15 November 2000.

The respondent's case is set out in the affidavit of Senior Inspector John Waira sworn on 30 February 2001.

The background circumstances are that on the night of 4 March 1999, members of the Police Task Force based at Lae including the applicant, were on duty in the West Taraka area. They drove to West Taraka to apprehend a suspect for questioning. The applicant was the driver of the police vehicle and he was armed with a A–R 15 rifle. When they approached the area where the suspect was supposed to be, the suspect fled and the other task force members pursued him on foot whilst the applicant drove up to where a Yellow utility was. The applicant thought this was a stolen vehicle and signalled to the Toyota driver to slow down but it kept on going. So he took out his A/R 15 rifle and fired a warning shot. Then he saw a man inside taking out a .38 pistol and fired into the air. The applicant responded by firing 2 shots at the vehicle. When the vehicle came to stop, he realised that he had shot Constable Maipo Mazuk, a CID policeman from Kundiawa who was at the scene, to investigate a crime. Const. Mazuk received serious gunshot wounds to his left buttock and hip, which penetrated into his abdomen and intestine. He was admitted to the Angau Memorial Hospital where surgery was done on the affected parts. He recovered well and was subsequently discharged.

On 24 November 1999, Police Superintendent Awan Sete laid a serious disciplinary charge against the applicant under s21(1)(ay) of the Police Force Act 1998 read:

It is necessary to set out in full the charge document together with details completed by the charging authority, the applicant and the police officer who served the charge on the applicant. I do this because there is information contained on this charge document which significantly differ from information contained in previous charge documents which I have sighted in cases I have already dealt with. The parts filled in by the various persons referred to above are in bold print. The charge document reads:

"ROYAL PAPUA NEW CONSTABULARY

"SERIOUS DISCIPLINARY OFFENCE REPORT.

Police Station: LAE CENTRAL

Date: 24 November 1999

File No.:

"NAME: SIMON OTTOGOMA

RANK: CONSTABLE

REG. NO.: 10197

STATION: LAE

"I SUPERINTENDENT AWAN SETE being a Commissioned Officer authorised by the Commissioner of Police to lay charges as per s19 Part IV of the Police Force Act and having reason to believe that you have committed a disciplinary offence other than that which is or is intended to be dealt with as a minor offence as per s21 of the said Act, do hereby charge you as follows:

(insert here a full wording of the charge under s20 of the Police Force Act)

"On 4 March 1999 at West Taraka you did commit an act Namely, in that, you wounded on MAIPE MAZULEC whereby you fired 3 shots at him injuring his stomach without justification which may be a Criminal offence.

"Thereby contravening s20(1)(ay) of the Police Force Act (insert subsection)

"If you so desire the charge will be explained to you by a senior officer of police and in addition you are also entitled to be furnished with a copy of all reports that are to be considered in relation to the charge. If you wish to have the charge explained to you and/or to be supplied with a copy of the said reports, you should contact your Police Station Commander or Officer in Charge immediately. If any further report subsequently becomes available, a copy of this report shall be served on you and you shall have a right of reply to this."

"You are invited to provide a response to this charge within 14 days if the charge has been served personally on you, or within 28 days if the charge has been posted to you as per...