Alfred Kumasi v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2469

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2003) N2469
• Date: 21 July 2003
• Year: 2003

Full Title: Alfred Kumasi v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2469

National Court: Sawong J

Judgment Delivered: 21 July 2003

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 require to serve copies of internal police investigation reports or statements on member charged with disciplinary offence—whether opportunity given to member to address on penalty before penalty was imposed

2 Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Dicky Nanan v John Maru and Police Commissioner (1997) N1507, Tiga Nalu v The Commissioner of Police and The Independent State of Papua New Guinea (1999) N1927, Pierson Joe Kamangip v Bernard Orim [1998] PNGLR 95, Michael Kapa Wena v Henry Tokam (1997) N1570, Simon Ottogoma v The Independent State of Papua New Guinea (2001) N2154, Barnabas Isoro v Commissioner of Police and The State (OS No 341 of 1995) (Unnumbered judgment dated 12 April 1996 handed down in Lae), David Toll v Kibi Kara (No 1) [1990] PNGLR 71, Peter Wapuan v The Police Appeal Tribunal (OS 51(L) of 1993) (Unnumbered judgment dated 13 May 1996 handed down in Goroka) and Kathy Dobb v The Commissioner of Police and The Independent State of Papua New Guinea (OS 522 of 1996) (Unnumbered and Unreported judgment of 31 July 1998) referred to

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Sawong J: The applicants are applying for Judicial Review under O16 of the National Court Rules. Leave to apply for review was granted on 14 March 2001. The application was not contested by the respondents even though they were advised of the date of hearing of the substantive application.

The applicants are seeking a review of the Police Commissioner's ("the Commissioner") decision in finding each of them guilty and the decision of the Commissioner to dismiss six of them as policeman from the Police Force and to demote one of them to a lower rank for disciplinary reasons. The six applicants who were dismissed from the force are Chief Sergeant Alfred Kumasi, Sergeant Bernard Mingnaut, Sergeant Apola Titima, Constable Paul Vingu, policewoman Constable Dorothy Vingu and Constable Francis Warwakai. The policeman who was demoted in rank was Inspector Jacob Bando.

Each of the applicants has filed one affidavit each except for Alfred Kumasi who is the lead plaintiff who has filed two affidavits. Alfred Kumasi's affidavit is sworn on 1 December 2000 which was an affidavit in support of the application for leave and in addition he swore another affidavit on 8 July 2002. Each of the other applicants' affidavits was sworn also on 8 July 2002.

The respondents have not filed any answering affidavits nor did they call any evidence at the trial. Each of the applicants also gave oral evidence.

From all the affidavit materials and the oral evidence the undisputed circumstances or facts are as follows. Between the 22 and 23 July 1997 policeman based in Madang conducted raids and were alleged to have been involved in burning down of houses at the Bukbuk, Finch Road and Sisiak settlements. As a result on or about 14 August 1997 a team of policemen from Lae were sent to Madang to investigate this incident. The team comprised of Superintendent Awan Sete, Inspector Rudolf Ribma and Detective Sergeant Butu Mesi. The team was led by Superintendent Sete.

The team conducted inquiries amongst the policemen in Madang between 15 August 1997 to 11 September 1997. As a result of the investigations certain policemen were identified to have been involved either directly or indirectly in the burning down of the houses at the settlements referred to earlier. The applicants were some of those policemen identified as alleged to have been involved in the burning down of the houses in the settlements. On 10 September 1997 the members of the investigation team began interviewing the policemen implicated starting with Paul Vingu and Francis Warwakai. Both plaintiffs were interviewed separately each by a member of the investigating team. The interviews were not completed on that day and the interviews were suspended and were to continue the next day. However, on 11 September 1997 at about 11.45am a commotion took place at the Jomba Police Station where the members of the investigating team were allegedly threatened with assault in respect of the investigations. It was claimed that the members of the Madang police were not happy with the investigations being carried out and as such they were demanding that the investigations be stopped immediately and that members of the team return to Lae. The applicants were alleged to have been involved in the whole incident and threatened to assault the members of the investigating team.

Consequently, each of the applicants was charged with three counts of disgraceful conduct and threatening behaviour. They were charged under s43(g) of the Police Force Act (Ch65). The charges were served on each of them. Each of the applicants responded to the charges denying the allegations. However, after considering their responses the Commissioner found each of them guilty on all three counts each and decided to dismiss the six of them and demote the other.

The applicant, Titima Apola says that he was only served with the charge in relation to Mr Sete and that he was not served with the charges relating to Mr Mesi and Mr Ribma. I do not accept this assertion because the charges were all contained in one document. In other words all three charges were set out in the one document and were served on all the other applicants. The evidence is that the charges were similarly worded.

Subsequently, each of the applicants was informed indirectly and in some instances directly of their dismissal. For instance, Alfred Kumasi in his affidavit says that he was never served with the notice of penalty. He found out indirectly on 4 August 2000 when he rang the Police Savings and Loans Society to apply for a loan when he was informed of his dismissal. Thereupon, on the same day he made various inquiries with his commanding officers and others. Subsequently, he heard that he was to be served with the Notice of Penalty on 8 August 2000 but he and others avoided being served with that notice as they were of the view that the Commissioner had been unfair in not informing each of them of the progress of the charges.

Francis Warwakai was served with his dismissal...