Agaria Bani v Commissioner of Police and The Independent State of Papua New Guinea (1999) N1853

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 20 April 1999
• Court: National Court
• Citation: (1999) N1853
• Year: 1999
• Judgement Number: N1853

National Court: Sevua J

Judgment Delivered: 20 April 1999

N1853

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 210 of 1998

BETWEEN: AGARIA BANI

Plaintiff

AND: COMMISSIONER OF POLICE

First Defendant

AND: THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Second Defendant

Waigani: Sevua, J

1998: 15th July

1999: 20th April

Administrative Law – Judicial Review – Police Disciplinary proceedings – Natural Justice – Whether Police Commissioner required to serve statements and reports on plaintiff – Whether failure to serve amounts to breach of audi alteram partem rule of natural justice – Whether failure to give plaintiff opportunity to address on penalty constitutes an error of law - Whether Police Commissioner entitled to accept evidence against plaintiff and reject plaintiff’s evidence – Police Force Act, Ch 65, Section 46.

Z. Varimo for Plaintiff

R. Tuva for Defendants

20th April, 1999

SEVUA, J: The plaintiff seeks a judicial review in respect of his demotion from Sergeant to Constable.

The plaintiff was a Sergeant of Police and the NCO in charge of security personnel assigned to the Leader of the Opposition, Honourable Bernard Narokobi. He was charged with four serious disciplinary offences under s.46 of the Police Force Act, found guilty and demoted to the rank of Senior Constable.

It is not intended to set out the four charges, suffice it to say, the first two relate to the plaintiff’s failure to carry out his duty to meet the Opposition Leader at Jacksons Airport, pick him up and drop him at his residence. The last two charges relate to consumption of alcohol.

In seeking the remedy of certoriorari to quash the decision of the first defendant, the plaintiff relied on the following grounds.

That the first defendant erred in law in that he:-

1. Sustained the four disciplinary charges against the plaintiff upon no evidence or insufficient evidence.

2. Was in breach of the principle of natural justice, the rule audi alteram partem, in that the plaintiff was not given a fair opportunity to answer the case against him and put his own case in that he was not allowed the opportunity to:

(i) respond to the prejudiced materials against him; and

(ii) the adverse inferences, views and reports made against him.

3. Did not give an opportunity to the plaintiff or invite him to address on penalty before making his decision which resulted in the plaintiff’s demotion.

The defendants have filed an affidavit sworn on 13th July, 1998; by Inspector John Waira, 2IC, Disciplinary Section, Police Internal Affairs Directorate.

In my view, the evidence in that affidavit adequately addressed the grounds for review which the plaintiff relies on, however, I will refer to the relevant parts of the affidavit when discussing the plaintiff’s submissions.

In his written submissions, the plaintiff has abandoned grounds 2 and 3 of his ground for review. In spite of that, I intend to make some remarks on those grounds for the benefit of counsel.

In short, the plaintiff submits that there is no evidence for the first defendant to convict him of the first two charges, ie, failure to pick up the Opposition Leader at Jacksons Airport on 16th August, 1997; and failure to respond to his immediate superior, Chief Inspector Joe Gawi’s demand for a written explanation of his failure on 16th August, 1997.

The plaintiff’s explanation in his submission was that there had been a change of itinerary for the Opposition Leader’s travel from Goroka to Port Moresby which was not communicated to him. He referred to a conversation with a Mrs Miriam Limo, whom he said, knew of that itinerary and had passed it on to a policeman (unnamed) however that policeman did not notify the plaintiff of the change in itinerary.

Let me, at this juncture, and say that the plaintiff has submitted that the first defendant’s evidence, especially from Chief Inspector Joe Gawi, was hearsay therefore the Commissioner should not have relied on it to convict him (plaintiff). If I were to accept that submission, I should also find that the plaintiff’s evidence, particularly, his reference to the...