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

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

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

N3300

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 330 OF 2002

JEFFREY AFOZAH

Plaintiff

V

THE POLICE COMMISSIONER

First Defendant

THE DEPARTMENT OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2008: 11 January &

7 April

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, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123

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.

Counsel

R Uware, for the plaintiff

P Ifina, for the defendants

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 both the decision to find him guilty and the decision to impose the penalty of dismissal. He says that the Commissioner made errors of law in reaching both decisions.

5 As to the decision that he was guilty, he argues that the Commissioner erred in law by:

· denying him natural justice by not considering his written reply to the charge; and

· taking irrelevant considerations into account, in particular by concluding that he was absent from duty for six months, when the charge alleged that he was absent for only three months and ten days.

6 As to the decision to dismiss him, the plaintiff argues that the Commissioner erred in similar ways to the decision to find him guilty, by:

· denying him natural justice and not giving him the opportunity to be heard on the question of penalty; and

· taking irrelevant considerations into account, in particular, recommendations for dismissal from two senior officers (the Highlands Divisional Commander and the Chimbu PPC) under whose command the plaintiff had never served, the finding that he was absent for six months and a finding that the plaintiff was a “repeat offender” when there was no evidence of that.

PRELIMINARY POINT

7 Before dealing with the grounds of review I need to address a preliminary point raised by the defendants’ counsel, Mr Ifina. He submitted that the first two defendants, the Commissioner of Police and the Department of Police, have been improperly named as neither of them have a legal personality. The office of Commissioner is just an office, and cannot sue or be sued. Only the holder of the office has legal personality and in this case that person was at the relevant time, Mr John Wakon. As for the Department, it is an administrative creation and also cannot sue or be sued. Mr Ifina cited the National Court decision of Brown J in United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185 and the Supreme Court’s decision in Mudge v Secretary for Lands and Others [1985] PNGLR 387 in support of this proposition.

8 This might be a valid procedural point but I would not put it any higher than that. It is not something that affects the jurisdiction of the court or something that prevents the court from determining the application for judicial review. It is something that should have been addressed and corrected if necessary a long time ago.

9 This case has a long history. The application for judicial review was originally heard, and refused, by Bidar AJ in the National Court at Kimbe in February 2004 (Jeffrey Afozah v Commissioner of Police, Police Department and The State, OS No 330 of 2002, 26.02.04). Mr Afozah appealed to the Supreme Court. His appeal was heard by Injia DCJ, Jalina J and Gavara-Nanu J in November 2005 and upheld in September 2006 (Jeffrey Afozah v Commissioner of Police, Police Department and The State, SCM No 2 of 2004, 01.09.06). The matter came before me for directions in Kimbe in 2007 and I transferred the case to Waigani to make it convenient for the parties’ counsel. The matter was set for hearing in Waigani on 18 December 2007 and on that day I granted an application for adjournment and gave further directions to expedite the hearing.

10 In all that time no issue was taken about the legal personality of the defendants. No motion has been filed regarding this issue. It is something that has arisen at the last minute at the trial. It would be most unjust, in these circumstances, to decide the case against the plaintiff on this rather technical and procedural ground. Besides that, I query whether, in judicial review applications, it prejudices anybody to have the defendant named as an office rather than the person who actually made the decision under review. In fact it might even be preferable. It strikes me as being much ado about nothing. I dismiss the preliminary point and will proceed to determine the grounds of review.

THE DECISION TO FIND THE PLAINTIFF GUILTY

Was there a denial of natural justice?

11 Mr Uware, for the plaintiff, submitted that the Commissioner made his decision without considering the plaintiff’s response to the charge, which was put in writing and posted to...