Jeffrey Afozah v The Police Commissioner, The Department of Police and The Independent State of Papua New Guinea (2008) N3300

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 07 April 2008
• Citation: (2008) N3300
• Docket Number: OS NO 330 OF 2002
• Year: 2008

Full Title: OS NO 330 OF 2002; Jeffrey Afozah v The Police Commissioner, The Department of Police and The Independent State of Papua New Guinea (2008) N3300

National Court: Cannings J

Judgment Delivered: 7 April 2008

JUDICIAL REVIEW—disciplinary proceedings—review of decision of Commissioner of Police to find police officer guilty of disciplinary offence—natural justice—taking into account irrelevant considerations—reasons for decision not corresponding with charge laid.

The Commissioner of Police charged the plaintiff, a police officer, with a serious disciplinary offence: being absent from duty without authorised leave for a period of three months and ten days. He found him guilty and dismissed him from the Police Force. The plaintiff sought judicial review on the grounds that (1) as to the guilty finding, the Commissioner (a) denied him natural justice by not considering his written reply to the charge and (b) took into account irrelevant considerations; and (2) as to the decision to dismiss him, the Commissioner (a) denied him natural justice by not giving him the opportunity to be heard on the question of penalty and (b) took irrelevant considerations into account.

Held:

(1) As to the decision to find the plaintiff guilty:

(a) there was no denial of natural justice as, although the Commissioner did not consider the plaintiff’s reply to the charge, the plaintiff could not prove that he served it on the Commissioner;

(b) the Commissioner erred in law by taking into account an irrelevant consideration, viz that the plaintiff was absent from duty for six months, when the charge alleged that he was absent for three months and ten days.

(2) As to the decision to find the plaintiff guilty:

(a) there was no denial of natural justice as the Commissioner is not obliged, having found an officer guilty of a disciplinary offence, to grant a separate hearing on penalty;

(b) the Commissioner erred in law by taking into account irrelevant considerations, viz recommendations for dismissal from two senior officers under whose command the plaintiff had never served, the six month absence finding and a finding that the plaintiff was a “repeat offender” when there was no evidence of that.

(3) The error of law made in the decision to find the plaintiff guilty was a significant one, warranting the quashing of that decision.

(4) The error of law made in the decision to dismiss the plaintiff was also significant and warranted quashing the penalty of dismissal.

(5) The court quashed the decision that the plaintiff was guilty of a disciplinary offence and the decision that he be dismissed, and ordered that he be reinstated as a member of the Police Force and paid back-pay.

Cases cited:

Clement Kilepak v Ellison Kaivovo (2003) N2402; George Kakas v Commissioner of Police, SCM No 17 of 2005, 29.07.07; Gideon Barereba v Margaret Elias (2002) N2197; Jeffrey Afozah v Commissioner of Police, Police Department and The State, OS No 330 of 2002, 26.02.04; Jeffrey Afozah v Commissioner of Police, Police Department and The State, SCM No 2 of 2004, 01.09.06; John Magaidimo v Commissioner of Police (2004) N2752; Kita Sapu v Commissioner of Police (2003) N2426; Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797; Morobe Provincial Government v Minister for Village Services (1994) N1215; Mudge v Secretary for Lands and Others [1985] PNGLR 387; Paul Pora v Commissioner of Police (1997) N1569; Paul Saboko v Commissioner of Police (2006) N2975; Peter Bon v Mark Nakgai (2001) PNGLR 18; Peter Luga v Richard Sikani (2002) N2285; United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185

JUDICIAL REVIEW

This was an application for judicial review of the decisions of the Commissioner of Police to find the plaintiff guilty of a disciplinary offence and to dismiss him from the Police Force.

7 April, 2008

1 CANNINGS J: This is a ruling on an application for judicial review of the decisions of the Commissioner of Police to find the plaintiff, Jeffrey Afozah, guilty of a disciplinary offence and to dismiss him from the Police Force.

2 Mr Afozah passed out of Bomana Police College and became a member of the Royal Papua New Guinea Constabulary (the Police Force) in 1986. He was posted to Kimbe police station, West New Britain. He was promoted to Senior Constable in 1992. He was stationed at Kimbe until his dismissal from the Force. On 18 July 1998 he was charged with a disciplinary offence: being AWAL (absent from duty without authorised leave) for a period of three months and ten days, from 27 March to 6 July 1998.

3 The Commissioner of Police found him guilty and imposed the penalty of dismissal. Those decisions were conveyed to the plaintiff by an undated ‘notice of penalty of serious disciplinary offence’ served on him on 28 February 2001. He had been taken off the payroll on 26 September 2000.

GROUNDS OF REVIEW

4 Mr Afozah is challenging...