Pierson Joe Kamangip v Bernard Orim and The Independent State of Papua New Guinea [1998] PNGLR 95

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1998] PNGLR 95
• Date: 26 March 1998
• Year: 1998

Full Title: Pierson Joe Kamangip v Bernard Orim and The Independent State of Papua New Guinea [1998] PNGLR 95

National Court: Kapi DCJ

Judgment Delivered: 26 March 1998

1 Disciplinary proceedings—Whether Commissioner is required by Police Force Act (Ch65) to serve statements and reports on policemen—Whether Commissioner is required by Police Force Act (Ch65) to invite policemen to make comments before penalty is imposed—Duty of Commissioner to provide reasons for decision implied by common law

2 Application: This is an application for an order in the nature of certiorari by way of a judicial review pursuant to O16 of the National Court Rules

Facts: The plaintiff was a constable in the Royal Papua New Guinea. He was charged with a criminal offence of rape. It was alleged that he raped a female while she was held in custody. He was subsequently committed to stand trial in the National Court. While the criminal charge was still pending, he was charged with a disciplinary offence of improper conduct for raping the female whilst in custody pursuant to s43(g) of the Police Force Act (Ch65). The plaintiff responded in writing and denied the charges. He was found guilty of the disciplinary offence and dismissed from the Police Force effective as from 3 June 1995. He applied for orders seeking to quash the decision and conviction.

Held:

(1) That his conclusion that statements of witnesses and reports are required to be served on the member is obiter dicta.

(2) The rules of natural justice and standards of fairness recognised by common law will be applied unless there is a legislative intent to exclude the rules of natural justice.

(3) There is no requirement on the Commissioner to serve copies of statements and reports on the member concerned.

(4) Application dismiss with costs to the defendants.

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Kapi DCJ: This is an application for an order in the nature of certiorari by way of a judicial review pursuant to O16 of the National Court Rules. Leave for judicial review was granted on 20 November 1996. This matter has come before me for substantive hearing.

The plaintiff was a constable in the Royal Papua New Guinea Constabulary. On 6 June 1994, he was charged with a criminal offence of rape. It was alleged that he raped a female while she was held in custody. He was subsequently committed to stand trial in the National Court.

While the criminal charge was still pending, he was charged with a disciplinary offence of improper conduct for raping the female whilst in custody pursuant to s43(g) of the Police Force Act (Ch65). The plaintiff responded in writing and denied the charges. He was found guilty of the disciplinary offence and dismissed from the Police Force effective as from 3 June 1995.

He has applied for orders seeking (1) to quash the decision in relation to the conviction of the disciplinary offence (2) to quash the decision on penalty and (3) to reinstate him to his position as a constable. He relies on the following grounds:

(1) That the First Defendant was in breach of the principles of natural justice, the rule, audi alteram partem in that the Plaintiff was not given a fair opportunity to answer the case against his own case in that he was not allowed the opportunity to:

(b) respond to the prejudicial materials against him, and

(d) the adverse inference, views and reports made against him,

(if any) used or relied on by the First Defendant in making a decision in dismissing the Plaintiff from the police Force.

(2) That the First Defendant erred in law in finding the Plaintiff guilty of the charge of improper conduct upon no evidence or insufficient evidence in support of the Charge.

(4) That the First Defendant erred in law in not allowing the Plaintiff to comment on the penalty before making a decision.

(6) That the First Defendant erred in law in the exercise of his discretion in imposing a penalty of dismissal which is excessively severe in the circumstances in that less or no consideration was given to the matters in the Plaintiff's favour.

(8) That the First Defendant erred in law in not giving his reasons for the decision on both guilty and penalty.

Counsel for the plaintiff has abandoned grounds (2) and (4) on the basis that they are not valid grounds for judicial review. He has confined his case to grounds (1), (3) and (5).

The first ground is based on the complaint that

". . . the plaintiff was not given an opportunity to answer the case against him and put his case in that he was not allowed to:

(1) respond to the prejudicial materials against him, and

(3) the adverse inferences, views and reports made against him".

The complaint is that the plaintiff was not served with statements of witnesses and reports that were used by the Defendants to reach a decision, thereby denying him the opportunity to respond to them.

Counsel for the plaintiff submitted that common law principles...