John Magaidimo v Commissioner for Police The Independent State of Papua New Guinea (2004) N2752

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2004) N2752
• Date: 20 September 2004
• Year: 2004

Full Title: John Magaidimo v Commissioner for Police The Independent State of Papua New Guinea (2004) N2752

National Court: Gavara–Nanu J

Judgment Delivered: 20 September 2004

1 Administrative Law—Judicial review—Dismissal from the Police Force—Police Force Act (Ch65), s43(c) and (f), s45(1)(a), (b), (d) and (e), s46(4), s57 and s61—Double punishment—Principles of natural justice—Right to be heard on penalty—Maximum penalty not fixed or automatic—Discretion to impose penalties other than the maximum penalty—Termination having no basis in law—Dismissal unlawful.

2 David Toll v Kibi Kara (No 1) [1990] PNGLR 71 referred to

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Gavara–Nanu J: At the time of writing this judgment, I have become aware that the Police Force Act (Ch65), under which the plaintiff was charged and dismissed was repealed prior to the plaintiff being charged. That being the case, it would seem that my application and exposition of the provisions of that Act, in this judgment may only be academic. However, the end result is the same viz, the plaintiff's dismissal was unlawful for the reasons given in the judgment and that he was charged under the repealed law. He is therefore entitled to be reinstated to his former position or a position equal to it in the Police Force with all his entitlements.

My observations on the principles of natural justice and the Court's broad discretionary powers in reviewing administrative actions as in this case nonetheless remain the views of this Court, as they are issues which have been determined independently of the repealed Police Force Act (Ch65).

The plaintiff was a Senior Sergeant in the Royal Papua New Guinea Constabulary and the Acting Regional Officer–In–Charge of the Criminal Investigation Division, (hereinafter referred to as 'CID'), of the Highlands Region based in Mt Hagen when he was dismissed from the Police Force through a Notice of Penalty.

The Notice of Penalty was undated. However, it was served on the plaintiff on 28 September 2000 and the dismissal took effect on the same day.

The background facts leading up to the dismissal are these. On 22 January 1999, the plaintiff was arrested and charged with misappropriating sum of K3,580.10t, which was for court exhibits allegedly under his control. This was a criminal offence under s383A of the Criminal Code.

The plaintiff eventually appeared before the Committal Court in Mt. Hagen and was committed to stand trial in the National Court. When the matter came before the National Court, the charge was amended from misappropriation to stealing.

While waiting for his trial in the National Court on the stealing charge, the plaintiff was served with four serious disciplinary charges for offences under...