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

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 21 July 2003
• Court: National Court
• Citation: (2003) N2469
• Year: 2003
• Judgement Number: N2469

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

N2469

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

OS 686 OF 2000

ALFRED KUMASI

(Applicant)

-V-

THE COMMISSIONER OF POLICE

(First Respondent)

AND

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

(Second Respondent)

MADANG : SAWONG J.

2002 : 5TH DECEMBER

&

2003 : 21ST JULY

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 –

Police Force Act 1998

Cases Cited - Kekedo v Burns Philp (PNG) Ltd [1988 – 89] PNGLR 122;

Kelly Yanip v Police Commissioner [1995] PNGLR 93;

Tiga Nalu v Police Commissioner N1927 (1999);

Philip Kamo v Police Commissioner N2084 (2001).

B. TABAI, for the Applicants

NO APPEARANCE, for the Respondents

21st July, 2003

D E C I S I O N

SAWONG J: The applicants are applying for Judicial Review under O.16 of the National Court Rules. Leave to apply for review was granted on 14th 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 1st December, 2000 which was an affidavit in support of the application for leave and in addition he swore another affidavit on the 8th July, 2002. Each of the other applicants’ affidavits was sworn also on the 8th 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 22nd and 23rd of 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 the 14th of 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 the 15th of August, 1997 to the 11th of 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 the 10th September, 1997 the members of the investigation team began interviewing the policemen implicated starting with Paul Vingu and Franics 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 the 11th September, 1997 at about 11:45a.m. 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 s.43 (g) of the Police Force Act (Ch. 65). 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 the 4th of 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 the 8th 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 notice on the 21st January, 2001 at Wau Police Station. Paul Vingu was served with his Notice of Penalty on the 10th of August, 2000. Dorothy Vingu was served with her Notice of Penalty in or about October, 2000. Titima Apola was served with his Notice of Dismissal together with others either in August or October of 2000. None of these applicants have attached or annexed to their affidavits the Notice of Dismissal. Each of the applicants say that the Commissioner did not give them an opportunity to be heard on penalty before they were dismissed or demoted.

The only applicant who has attached his Notice of Dismissal to his affidavit is Bernard Mingnaut. In that second page of that notice the then Commissioner stated that after considering the explanations received from him, he found him guilty on all counts. The Commissioner stated that the explanation made by him was taken into account, however it appeared that all other evidence contained in the file outweighed the evidence or reply submitted by the applicant in his defence. He stated in part and I quote:

“The charges are serious and this type of behaviour is unacceptable to the good order and discipline of the Constabulary.

Your conduct is a talk in the police community and undermine authorities in Madang, setting a bad precedent and bad for good order and discipline in the force generally.

Your conduct has developed this content and hatred between local police and internal investigation unit. It is a bad trend.”

In that document the Commissioner went further in relation to penalty by stating as follows:

“A submission on penalty was received at police headquarters. The submission was taken into account when making a decision as to penalty. Reasons for the imposition of this penalty are as follows:

The reason why I believe that this penalty should be imposed are as follows:

The nature and seriousness of the offence. The deterrent effect it would have on other members of the Constabulary. The members’ behaviour seriously breached Constabulary standards and the community expectations of the conduct of a member of the Police Force. If this type of behaviour is allowed to continue, the discipline of the Force will be severely impacted upon.

The serious disciplinary charge sustained and by way of penalty you are dismissed...