Kita Sapu v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2426

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 09 July 2003
• Court: National Court
• Citation: (2003) N2426
• Year: 2003
• Judgement Number: N2426

Full Title: Kita Sapu v The Commissioner of Police and The Independent State of Papua New Guinea (2003) N2426

National Court: Kirriwom J

N2426

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

OS. 285 OF 2000

BETWEEN:

KITA SAPU

–Plaintiff-

AND:

THE COMMISSIONER OF POLICE

– First Defendant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

– Second Defendant-

LAE: Kirriwom, J

2002: 16 October

2003: 9 July

ADMINISTRATIVE LAW – Judicial review – Grounds for – Errors of law and Bias – Powers of prerogative writs – Certiorari – Mandamus – Inherent jurisdiction of the Court – s.155(4), Constitution

Judicial review – Application for – writs of certiorari and mandamus – examination of records of disciplinary proceedings before Commissioner - Order 16 National Court Rules

Judicial review – Disciplinary action – Serious Disciplinary offence - Disgraceful conduct – Finding of guilty - Dismissal of policeman from the Force

Judicia review – Right to be heard – Failure to be heard before penalty - Whether failure constitute denial of natural justice in Ridge v Baldwin principle of audi alteram patterm

Practice and Procedure – Right to address on sentence – Statutory right – Adjudication of guilt by administrative body is neither criminal nor civil – Need to exercise caution and avoid adopting criminal procedure into administrative disciplinary process that is likely to protract and prolong the adjudicatory process - No separate hearing on penalty warranted or required.

Cases cited:

1. Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

2. Kekedo v Burns Philp (PNG) Limited & Ors [1988-89] PNGLR 122.

3. Kathy Dob v The Commissioner for Police and the State [1998] Unreported National Court – O.S 522 of 1996

4. Sudi Yaku v Commissioner of Police ex parte The State [1980] PNGLR 27 at 31-32

5. Sebastian Vema V Henry Tokam, Commissioner of Police and the State (1995) PNGLR 368

6. Pearson Joe Kamangip v Bernard Orim, Commissioner of Police and the State (1998) N1695

7. Tiga Nalu v The Commissioner of Police and the State [1999] National Court Judgement N1927

8. Alconbury (2001) 2 All ER 929

9. Dicky Nanan v John Maru & Police commissioner [1996] National Court N1507

10. Kelly Yawip v Police commissioner & State [1995] PNGLR 93

11. Pierson Joe Kamangip v Bernard Orim & Police Commissioner & The State [1998] National Court N1695

12. Sgt Kim Ananis v Commissioner for Police & The State [1999] National Court N1845

13. Geregl Mauglo v Police Commissioner & The State [1998] National Court N1728

14. Toll v Kibi Kara & Ors [1990] PNGLR 71.

Legislations and Texts referred to:

15. Redfern Legal Centre’s Lawyers Practice Manual (NSW) by Rees Ronalds and West, Law Book Co publication (1983)

16. Administrative Law of Papua New Guinea, Cases Materials and Text, Michael A. Ntumy, Pacific Law Press, Hobart 1992.

17. Police Act 1998, No.37 of 1998

Counsel:

Paul Ousi for the Plaintiff

9th July, 2003

Kirriwom, J. The Plaintiff applies for judicial review of the decision of the Commissioner for Police. On 2 March 2000 the Commissioner found him guilty on a disciplinary charge brought under s.43(g) of the Police Force Act Ch. 65 of “disgraceful conduct in his official capacity in that he unlawfully assaulted another person namely Werenu Lavari a national female by having sexual intercourse on her” and dismissed him from the Police Force.

Background

The plaintiff, whilst in the company of two other male companions, one of whom was also a policeman on duty together with the Plaintiff on the night of 20 July 1998 at Ialibu, gave lift to three village girls in the police vehicle that Constable Koni Nagicana was driving, drove the girls to an old airstrip and there had sexual intercourse with the girls instead of driving them to their village. Both he and Const Koni Nangicana were charged criminally and also under internal Police disciplinary procedure under the Police Force Act.

The assault case against the plaintiff was struck out in the District Court at Ialibu when the police offered no evidence. However Const Nangicana was convicted on his own admission to “having consensual sexual intercourse” with Lily Nolai and ordered to pay compensation of K800 to the victim.

It is not known what happened to the disciplinary action against Const Nangicana although record shows that OIC Discipline did also recommend for his dismissal from the Force. But he is not before me and what happened to him is not relevant here. However the plaintiff was dealt with under the disciplinary provisions where he was adjudged guilty and dismissed from the Force. That is how the matter is now before me by way of judicial review pursuant to the procedure under Order 16.

Chronology

It is important to bear in mind the key events of this case in their orderly sequence:

· Incident was alleged to have occurred on the night of 20 July 1998.

· Complaint officially recorded on 27 July 1998 by Sgt Jack Bungtabu. Complaint lodged by Cornelius Nolai Nanda, father of Lilly Nolai, one of the alleged victims of sexual assault. Matter referred to PWC Clare Rambu to carry out investigation.

· On 29 September 1998 Kita Sapu was charged for assault under s.6(2) of the Summary Offence Act.

· On 30th September 1998 Kita Sapu was also charged with a serious disciplinary offence under s.43(g) of Police Force Act Ch. 65 which was not served on him until after the completion of the criminal case.

· On 10 November 1998 the criminal case of assault was struck out when police offered no evidence.

· On 30 November 1998 Kita Sapu forwarded his reply to the disciplinary charge to Director Internal Affairs.

· On 2 March 2000 plaintiff was dismissed from the Police Force.

· On 22 May 2000 plaintiff commenced proceedings seeking leave to apply for judicial review.

· It is not known when the leave application was heard but leave was granted on 8 June 2001.

· It is not known if the matter was given any earlier hearing date but the substantive hearing was completed before me on 16 October 2002.

Facts and Circumstances

The Plaintiff was originally based in Lae. He had been a policeman of some 8 years prior to his dismissal. At the time of this alleged incident he was based at Ialibu Police Station, Southern Highlands where he originally is from. He is a young married man without children and at the time aged 29 from Popupu Village, Ialibu District.

On the night of 20th July 1998 the Plaintiff and Constable Koni Nangicana were on duty. Three young girls from the nearby villages were at the police station and waiting to be dropped off in their village upon prior arrangement with the plaintiff. This is clear from the girls’ story and also from the Plaintiff himself. I use the term ‘girls’ advisedly because they were teenagers as they were between 15 and 17 years and not reached maturity to be called ladies or women.

On instruction from their senior NCO Albert Tipilyan, the two constables took the three girls in the Police vehicle to drive them to their village. A civilian by the name of James Nema who was at the police station at the time also jumped in with them. Instead of driving the girls to their village the two constables and the civilian drove to an old isolated airstrip where the three men had sexual intercourse with the girls. They then returned with the girls to Ialibu where further acts of sexual intercourse took place throughout the night in a private residence till next morning. The incident became a public issue in the small township of Ialibu where the father of one of the girls reported the matter to the police after she failed to return home that night.

All three females gave separate statements in which they alleged were each separately ‘raped’ first at the secluded airstrip and later that night at a private residence till dawn the next day. The Plaintiff is alleged to have had sex with Weremu Levari, a girl aged 17, Constable Koni Nangicana had sex with Lily Nolai, aged 16 years and the civilian James Noma with Wiame Naria, aged only 15 years old.

On 17 November 1998, the Ialibu District Court convicted Koni Nangicana and ordered him to pay K800.00 compensation to the victim. The learned magistrate made these brief notes:

“17 November 1998 Finding – Guilty

Reasons - a) Freely admitted having sexual intercourse.

- There is evidence proving certain degree of consent.

- There is also evidence proving used certain amount of Force (tearing of under trousers).

Allocatus: Caution me.

COURT ORDER: No conviction entered, defendant discharged. To compensate with K800.00 within two weeks. Any disciplinary action to be taken for use of official car to conduct sexual intercourse, this court would leave it with Public Service Commission and Police Department.”

The assault charges under the Summary Offences Act on separate complaints of sexual nature seem rather strange or unusual to say the least but perhaps the uncertainty of proving the...