Selly Farapo v The Commissioner of Police

• Jurisdiction: Papua New Guinea
• Citation: [1996] PNGLR 17
• Date: 20 May 1996
• Court: National Court
• Year: 1996

National Court: Akuram AJ

Judgment Delivered: 20 May 1996

1 Administrative Law—Judicial review of Administrative decision

2 Police Force disciplinary charges—dismissal—development of natural justice principles

On application for judicial review:

1 Judicial review is not concerned with the decision or the reasons as to why the decision is made but with the decision making process

2 The "decision making process" would involve what is set out in s45 of Police Force Act (Ch65), compliance with Constitutional provisions of a fair hearing (s37(4)) and of natural justice principles (s59) and the common law principles of natural justice of the right to be heard (Ridge v Baldwin)

That is:

(a) serving of charge onto the member;

(b) obtaining a reply from member charged;

(c) obtaining evidence from parties affected and from independent witnesses;

(d) giving to the member charged copies of any evidence from witnesses which have been sent to the Police Commissioner but not the member. The reasons being that he would not know what evidence is given against him and as it is all written, copies be given him so he may replay to them with a view to deny or admit them;

(e) copies of statement from member charged should also be served onto the parties affected or complaining from which the charge arose for their response;

(f) after obtaining all these, the Commissioner is then in a better position to assess them and see whether there is a case against the member charged or whether member is to be found guilty

3 The words "in the official capacity' refers to a member committing a disciplinary offence whilst on duty and not off–duty in the charge

4 The words "guilty" in the charge is contrary to the Constitution

5 Judicial review granted, orders of Police Commissioner quashed, applicants re–instated to the Force

3 Rose Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Tandali v The Independent State of Papua New Guinea [1990] PNGLR 170, Ridge v Baldwin [1964] AC 40, Malloch v Aberdeen Corporation [1971] 2 All ER 1278 and Constitutional Reference No 3 of 1978; Re Intergroup Fighting Act 1977 [1977] PNGLR 421 referred to

4 Constitution s37(4), s59 and s60

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Akuram AJ: The Applicant was first served two serious disciplinary charges in that "on 5 November 1994 at Mt Hagen you were guilty of disgraceful conduct otherwise than in your official capacity in that you did without reasonable excuse damaged property namely seven (7) louvre blades of Room 19, Barracks No 3 at Kiminiga Police Barracks, the property of the Police Department. Thereby Contravening to s43(g) of the Police Force Act (Ch65)".

He was served the said charge at 10.15am on 2 December 1994. He admitted the charge but explained later in writing to the Commissioner saying it was because he was locked up and beaten up and push against the louvres causing them to break. So it was not intentional and a direct act of breaking the louvres. The two policemen who beat him up in a locked room were Constable...