Robin Aegaiya v Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3693

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 27 July 2009
• Citation: (2009) N3693
• Docket Number: OS (JR) NO 748 of 2007
• Year: 2009

Full Title: OS (JR) NO 748 of 2007; Robin Aegaiya v Gari Baki, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3693

National Court: Cannings J

Judgment Delivered: 27 July 2009

JUDICIAL REVIEW—grounds of judicial review—disciplinary charges—whether laying a charge under a repealed law is an error of law.

JUDICIAL REVIEW—remedies—whether delay in applying for leave for judicial review is relevant when the court exercises discretion whether to grant relief in a substantive application for judicial review.

The plaintiff is a member of the Police Force charged in April 2000 with a disciplinary offence under the repealed Police Force Act (Chapter No 65 of the Revised Laws). The law in place at the time he was charged was the Police Act No 37 of 1998. He was found guilty of the offence and in 2001 demoted to the rank of Chief Sergeant. In December 2007 he applied for leave to seek judicial review of the penalty of demotion on the ground that he had been charged under a non-existent law. In February 2008 leave was granted. This is a trial of the substantive application for judicial review.

Held:

(1) It is part of the principles of natural justice—and part of the right to the full protection of the law under s37(1) of the Constitution—that if a person is charged with committing a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence.

(2) Here, the charge was drafted under a law that was no longer in existence. The charge was defective and therefore the decisions to find the plaintiff guilty of the charge and to impose a penalty were defective.

(3) However, the substantial and unsatisfactory delay between those decisions and the filing of the application for leave (six years, six months) and the further delay between the granting of leave and the hearing of the judicial review (one year, three months) make it detrimental to good administration to reinstate the plaintiff.

(4) The primary relief sought by the plaintiff (reinstatement and back-pay) was accordingly refused.

(5) However, declarations were made that the charge laid against the plaintiff, the decision to find him guilty and the decision to demote him were made unlawfully; and orders were made requiring the Commissioner of Police to amend the personnel file of the plaintiff to clearly record and reflect the Court’s findings.

Cases cited

The following cases are cited in the judgment:

Clement Kilepak v Ellison Kaivovo (2003) N2402; Lae Rental Homes Ltd v Viviso Seravo (2003) N2483; Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01; Michael Winmarang v David Ericho and The State (2006) N3040; Mision Asiki v Manasupe Zurenuoc (2005) SC797; Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00; The State v John Ritsi Kutetoa (2005) N2814; Tony Vagi Heni v Guba Idau Maima (1994) N1201

1. CANNINGS J: The plaintiff, Robin Aegaiya, has been a member of the Royal Papua New Guinea Constabulary (the Police Force) since 1974. He was promoted on several occasions, most recently in 1992 to the rank of Inspector. That was the rank he held in April 2000 when, while holding the position of OIC Prosecutions at Goroka, Eastern Highlands Province, he was charged with a disciplinary offence. The charge was being careless in the discharge of his duties in that he lost a court exhibit, a Winchester revolver, which was under his custody and safekeeping. He denied the charge but in June 2001 was found guilty and demoted to the rank of Chief Sergeant.

2. In December...