Michael Kapa Wena v Henry Tokam, Police Commissioner (1997) N1570

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Injia J
• Judgment Date: 09 May 1997
• Citation: (1997) N1570
• Judgment Number: N1570
• Year: 1997

National Court: Injia J

Judgment Delivered: 9 May 1997

N1570

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 106 OF 1996

BETWEEN

MICHAEL KAPA WENA — Applicant

And

HENRY TOKAM, POLICE COMMISSIONER — Respondent

Mount Hagen

Injia J

21 October 1996

9 May 1997

ADMINISTRATIVE LAW — Judicial Review of Disciplinary authority's decision to dismiss policeman — Grounds for review — Reasons for decision not provided to Applicant at time of decision — Reasons available at the time of decision but not communicated to Applicant — Applicant did not request for reasons for decision — Reasons provided to Applicant and Court at time of review — Whether breach of principles of natural justice occurred — Police Force Act (Ch. 65), S. 46, National Court Rules, Order 16.

Cases Cited:

Kelly Yawip v Police Commissioner N 1370 (1996)

Dicky Nanan v Police Commissioner N 1507 (1997)

Counsel:

D Kwimberi for the Applicant

J Kumura for the Respondent

9 May 1997

INJIA J: The Applicant is seeking judicial review of the Respondent's decision to dismiss him on disciplinary grounds under s. 46 of the Police Force Act (Ch. No. 65). The decision was made on or about 22 December 1993. Leave to apply for judicial review was granted on 12 April 1996.

Pursuant to the Statement in support of application for leave filed on 12th February 1996 and amended pursuant to order of the Court on 19 September 1996, the grounds of review set out in para. 4 and 5 are as follows:

"4. Reasons:

(a) There was insufficient evidence to sustain the charge of serious Disciplinary charge under Section 43 (b) and (c) of the Police Force Act, Chapter 65.

(b) Proper disciplinary procedures of laying charge, were not followed.

(c) Penalty was too excessive, unreasonable, harsh and oppressive in the circumstance. The alleged offence was Plaintiff's first disciplinary offence.

(d) Plaintiff was not advised of his dismissal and was allowed to perform duties without pay until February 1994.

The First Respondent failed to provide reason or good reasons for the Plaintiff's dismissal, upon consideration (of) all reports under Section 46 (4) of the Police Force Act.

5. The grounds on which the relief is sought are as follows:

(a) That the dismissal was wrong in law;

(b) That the order was contrary to Principles of Natural Justice."

Pursuant to Order 16 rule 6 of the National Court Rules under which these proceedings are brought, the Applicant is restricted to the grounds raised in the statement unless leave is sought and granted at the hearing to amend the grounds. Apart from the amendment sought and order made on 19 September 1996, further leave was not sought at the hearing.

A chronology of events regarding disciplinary procedures resulting in the Applicant's dismissal is as follows.

The Applicant was a Senior Constable based at Porgera Police Station, Enga Province. On 7 July 1993, the Applicant was charged with 3 serious disciplinary offences.

On 13 July 1993, he was served with the three charges by his Supervisor, Inspector J. Yansuan. At the time of service, he was asked by Insp. Yansuan whether he denied or admitted the charge and what explanation, if any, he had to the charges. The three charges and his explanation on the three charges are set out below:

First Charge:

Between the 18th of July 1991 and October, 1992 at Porgera, you were negligent in the discharge of your duties in that you had in your possession an Unlicensed High Powered Firearm, namely, a SMITH and WESTON PISTOL, Serial Number 25092 which came into your possession and had failed to inform or handover the Pistol to your PSC Inspector TENDE, instead you gave it back to the Unlicensed owner.

Thereby Contravening to Section 43 (c) of the Police Force Act (Ch. 65).

Explanation:

The pistol was in my possession. However the owner of the pistol came to my house and asked me to give it back to him. He told me that the PSC Inspector TENDE had sent him to get the pistol from him. With this I believed him and gave it back to him.

Second Charge:

That on the 3rd day of March, 1992 at Porgera you did wilfully Disobey a Lawful Order given by a person having authority to give it, to wit Inspector TENDE the PSC in that you did not hand over to him the pistol, namely a SMITH and WESTON PISTOL, Serial No: 25092 which was in your possession for which you were minuted to do so.

Thereby Contravening to Section 43 (b) of the Police Force Act (Ch. 65).

Explanation:

The minute was received after the pistol was given back to the owner. Therefore I did not handover the pistol to him. It was on his instruction that I gave the pistol back to the owner and when I received his minute, I was annoyed and did not come and explain to him.

Third Charge:

That on the 22nd day of January 1993 at Porgera you did wilfully Disobey a lawful order given by a person having authority to give it, to wit, PSC, Inspector TENDE in that you failed to handover the unlicensed Pistol, Serial Number, 25092 when you were minuted for the second time to do so.

Thereby Contravening to Section 43 (b) of the Police Force Act (Chapter 65).

Explanation:

Yes. The reason why I did not respond to the minute by PSC was that the pistol had already been given to the owner upon PSC Inspector TENDE's instructions. I therefore did not approach the PSC.

On 15 July 1993, the Applicant gave a full reply to the 3 charges in writing. His reply is as follows:

"SUBJECT: EXPLANATION TO THREE SDORS UNDER SECTION 43 (B) (C) POLICE FORCE ACT, S/CONST. 5996 WENA KAPIA

Dear Sir,

I wish to give my explanations in regards to three (3) SDORS substained on me under Section 43 (b) (c) of the Police Force Act Ch. 65 on the 13th July 1993. During 1990 and 1991 I was acting as a PSC in Porgera and my policemen confiscated three (3) High powered pistols and that pistols handed over one (1) Mr B Irume who was a PPC at that time and when the incoming PSC for Porgera Mr DW Tende to takeover from me I handed over one (1) to him and he exchange with Mr George Wauglo who he was taking over from PSC Wabag. The last one was with me until June the 1st 1991, 6th June 1991 I was not in my house and the owner of the pistol approached the PSC Mr Tende and asked to get the pistol back so Mr Tende send S/Const. Solomon Wemen with the owner of the pistol to my house and asked my wife that where is S/Const. Wena and my wife told them that he is not around so they went back. The other day they came to my house again and I asked them saying what do you want and in replied they told me that the PSC send us tocome and see you to give the pistol back to the owner so I thought that my boss's order so I handed over pistol back to the owner. Later the PSC informed me again that I want the pistol back but I thought that in the first place your order saying that I must give the pistol back so I handed over back to the owner, and how you want the pistol back so that means you change your mind again and trying to charge me so I didn't say anything to him, the PSC. I did not know anything between the PSC and the owner what their decisions made bribery or other things but I honestly and truly handed over the pistol back to the owner because of the order from my PSC. I did not denied the first charge of SDOR because of the order that I have followed from the PSC. I had now SDORs in the past years since I have joined the force in 1974 till now 1993. That is all about my first explanations of SDOR.

My second and third charges is the same explanations that the PSC for Porgera told me that he want the pistol back and also he write a minute to me saying that he want the pistol back to his possession but I did not say anything to him because at the first place he himself send a policemen with the owner of the pistol to my house and I already give the pistol back to the owner and yet he want the pistol back to his possession and that means he just pulling me around and trying to charge me so now the PPC charge me for that same pistol so that is not my fault because I follow the directions from the PSC to give the pistol back to the owner. During 1992 some policemen went to the owner of the pistol's house and bring back the pistol back so I did not know where the pistol...