Kelly Yawip v Commissioner of Police and The Independent State of Papua New Guinea [1995] PNGLR 93

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Injia J
• Judgment Date: 14 September 1995
• Citation: [1995] PNGLR 93
• Judgment Number: N1370
• Year: 1995

Full Title: Kelly Yawip v Commissioner of Police and The Independent State of Papua New Guinea [1995] PNGLR 93

National Court: Injia J

Judgment Delivered: 14 September 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KELLY YAWIP

V

COMMISSIONER OF POLICE

AND

THE STATE

Mount Hagen

Injia J

4 September 1995

14 September 1995

JUDICIAL REVIEW — Police Force Act (Ch 65) as amended by Police Force (Amendment) Act 1993 — sections 43 (3) and 46 — Administrative law — Natural Justice — Duty to give reasons for finding of guilty and for penalty imposed in disciplinary proceedings.

Facts:

The applicant was found guilty of a serious disciplinary charge laid under section 43 (3) of the Police Force Act (Ch 65) as amended and demoted in rank from Chief Inspector to Inspector as a penalty. The notice of penalty provided for no reasons for the decision to demote and no reasons were provided for the finding of guilty whether during the disciplinary action or in the proceedings for judicial review. The Police Commissioner hearing a serious disciplinary charge under the Police Force Act must give reasons for a finding of guilt and for the penalty imposed.

Held:

1. There is nothing in s 46 of the Police Force Act which requires the Police Commissioner to give reasons for decision and he is required only to furnish an opinion as to guilt or otherwise and notify the officer concerned of the punishment imposed upon him.

2. The effect of the amendment to the Police Force Act is to give the Police Commissioner disciplinary powers which are not subject to review by an appellate body such as existed in the form of the Police Appeals Tibunal prior to the amendment to the Act.

3. Where the decision of the Police Commissioner affects substantial interests and the welfare of police officers and their families, the Commissioner must give reasons for his decisions which must be given at the time the decisions are made. The requirement is implied by the common law and also by the scheme of disciplinary procedures set out in section 46 of the Police Force Act and in particular by s 46 (5) which requires that the officer be notified of the punishment imposed upon him.

4. The failure to give reasons amounts to a denial of natural justice and where no reasons are given the Court is entitled to conclude that there were no good reasons for the decision.

Held:

(1) The Police Force (Amendment) Act 1993 which abolished the Police Appeals Tribunal has the effect of giving the Police Commissioner ultimate powers in determining disciplinary offences under the Police Force Act and such power must be exercised in a fair and reasonable manner.

(2) Where the Police Commissioner hears and determines a serious disciplinary offence under Section 46 of the Police Force Act, and the proceedings result in a finding of guilt and imposition of a penalty, he must give reasons and good reasons for the decision on both guilt and penalty and such reasons must be given at the time the officer is informed of the decision pursuant to S.46 (5) of the Act.

(3) Where no reasons for decision are provided at the time the officer is notified of the decision under S.46 (5) or at the time of the hearing of the review, the court is entitled to infer that there were no good reasons for the decision.

(4) The first respondent erred in law in failing to give reasons for finding the applicant guilty of a serious disciplinary charge under Section 43 (c) of the Police Force Act (negligent and careless performance of duty) and imposing a penalty of demotion in rank from Chief Inspector to Inspector.

(5) The first respondent erred in finding a charge under S.43 (c) when the evidence did not or was not sufficient to support the charge.

(6) The first respondent's decision on both guilt and penalty be quashed and the applicant re-instated to his former position of Chief Inspector forthwith, effective 17 March 1995.

Cases Cited:

Ridge v Baldwin [1963] WLR 935

Falsheer vIambakey Okuk [1980] PNGLR 101

Okuk v Falsheer [1980] PNGLR 274

Kekedo v Burns Phillip (PNG) Ltd [1988-89] PNGLR 122

Niggints v Tokam [1993] PNGLR 66

Kuringi Nepo v Police Appeals Tribunal N1256 [1994]

Counsel

M Tamutai for the applicant.

M Pokia for the respondents.

14 September 1994

INJIA J: This is an application for judicial review of the decision of the First Respondent made on 17 March 1995 in which the applicant was found guilty of a serious disciplinary charge laid under S.43 (c) of the Police Force Act Ch. 65 and demoted in rank from Chief Inspector to Inspector by way of punishment.

The facts are that on 20 October 1993, the applicant was the Police Station Commander of Mendi Police Station holding the rank of Chief Inspector. On that date, he and other policemen went to Bui Ebi CIS to participate in a social match. He was driven by Constable Mason in a police suzuki vehicle reg. number ZGQ 520 because at that time he was suspended from driving a police vehicle following complaints of misuse of police vehicle after working hours. Const. Mason was appointed by the applicant as his official driver as required by the Provincial Police Commander (PPC) Mr Joe Poma. After the end of the game, at about 5pm, light refreshments were served followed by a few beers which the applicant and others had. At about 7pm, the applicant decided to leave the CIS early because he had to drive the Deputy Administrator of Southern Highlands whose wife was sick and needed medical attention. Before he left, he told Const. Mason to follow him back to Mendi. Constable Mason drove back sometimes in the evening and mt an accident on the Okuk Highway road.

On 9/11/93, Const. Mason was charged with driving the vehicle without due care and attention on the Okuk Highway. On 9 November 1993, he pleaded guilty and was fined K200.00 in default 2 months imprisonment by the Mendi District Court. According to a statement he made to the Mendi District Court on allocatus, Const. Mason said he told the applicant if they could leave but he was told to wait because he (the applicant) was drinking with the Deputy Administrator. Later he realised that the applicant had left the gathering without informing him. So at around 9.30-10pm he drove back and as he was driving, the tyres contacted some loose gravel on the road which caused the vehicle to skid off and turn over. The vehicle sustained damages to the value of K4,519.93.

He told the court that if the applicant had listened to him and they both left early, the accident would not have occurred.

On 27 April 1994, the PPC charged the applicant with a serious disciplinary offence under S.43 (c) of the Police Force Act which read:

"On Wednesday 20th October at CIS BUI-YEBI, Mendi, SHP, you were guilty of negligent in the discharge of your duties in that you fail to properly safeguard and control the Police vehicle; suzuki reg.no. ZGQ 520 while the said vehicle was under your command, control and supervision but you left the vehicle with Const. SAM MASONat CIS Bui-Yebi with no command, control and supervision and as a result the said vehicle was involved in an accident resulting with excessive damages to it. Your negligent in the discharge of your duties amounts to the breach of the provisions of section 43 (c) of the Police Force Act, Chapter No. 65."

The charge paper was served on the applicant on 5/5/94 and he was required to give his explanation within 14 days and if a reply was not given in that period, the applicant would "be deemed to have denied the truth of the charge". On 6 May 1994, the applicant gave a detailed reply to the charge in which he maintained that he commanded Const. Mason to drive the vehicle back to town and that he (the applicant) was not negligent. Instead, Constable Mason allowed his uncle policeman Const. Patrick Mek to drive the vehicle and it was Const. Mek who may have been driving when the accident occurred. The applicant also complained about the delay of 7 months in charging him. He complained that he was being penalised for...