Dicky Nanan v John Maru and Police Commissioner

• Jurisdiction: Papua New Guinea
• Citation: (1997) N1507
• Date: 10 February 1997
• Court: National Court
• Year: 1997

National Court: Injia J

Judgment Delivered: 10 February 1997

1 Judicial Review—Disciplinary proceedings—dismissal of policeman by Police Commissioner for committing serious disciplinary offence—grounds for judicial review—policeman not served with internal police investigation report—whether Commissioner required by Police Force Act (Ch65) to serve report on policeman at any stage of the disciplinary process—whether Commissioner required by principles of natural justice to serve report—Police Force Act (Ch65), s46

2 Kanda v Government of Malaysia [1962] 2 AC 322, Iambakey Okuk and The State v Gerald Sidney Fallscheer [1980] PNGLR 274 and Kelly Yawip v Commissioner of Police [1995] PNGLR 93 referred to

Held:

(1) By necessary implication, s46(3) and s46(4) of the Police Force Act (Ch65) precludes the Commissioner from serving internal police investigation report on the matter on the policeman concerned at any stage of the disciplinary process

(2) Where a statute, the Police Force Act (Ch65) clearly, by necessary implication precluded the Police Commissioner from serving the internal police investigation report on the matter on the policeman affected, the common law principles of natural justice cannot supply such requirement by implication

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Injia J. This is an application for judicial review by the plaintiff, a former policeman, of a decision by the second defendant to dismiss him from the Police Force for disciplinary reasons. The first defendant was the Police Officer immediately responsible for disciplinary matters in the Police Force at the time of the plaintiff's dismissal. The plaintiff was dismissed on 29th September, 1995. Leave to Review the said decision was granted on 12th April, 1996.

The statement of facts in support of the application for leave should exhaustively set out the orders sought and the grounds for judicial review: O16 r6(1), National Court Rules. The principal orders sought are:

(a) An order in the nature of certiorari to remove into the National Court and quash the findings made by the First Defendant in his reported dated 19th November 1993 of amongst others Plaintiff's alleged improper conduct in the conduct of his official capacity and the recommendations of the Plaintiff's dismissal from the Force contained in the said First Defendant's Report.

(b) Further or in the alternative, a declaration that the said First Defendant's findings of the Plaintiff's alleged improper conduct in the conduct of his official capacity was made in breach of the rules of natural justice and as a consequence is void and of no effect.

(c) Further or in the further alternative, the plaintiff's dismissal from the Force by Notice of Penalty for Serious Disciplinary Offence served on the Plaintiff on 9 October 1995 dismissing the Plaintiff from the Force effective 29 September 1995 be declared void and of no effect as the Second Defendant's decision to dismiss the Plaintiff from the Force was solely on his findings of the First Defendant which findings themselves were made in breach of the rules of natural justice and or under suspicious circumstances.

(d) A declaration that the decision of the Second Defendant to dismiss the Plaintiff from the Police Force is harsh and oppressive and/or is not warranted by or is disproportionate to the requirements and circumstances of the particular case and by virtue of s41(1) of the National Constitution is an unlawful act.

(e) A declaration that the Plaintiff is and remains a member of the Police Force and holds the rank of Senior Constable; and

(f) An order that the Plaintiff be paid all his entitlements from the date of this...