Paul Saboko v Commissioner of Police and The Independent State of Papua New Guinea (2006) N2975

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 February 2006
• Court: National Court
• Citation: (2006) N2975
• Docket Number: OS No 94 of 1999
• Year: 2006
• Judgement Number: N2975

Full Title: OS No 94 of 1999; Paul Saboko v Commissioner of Police and The Independent State of Papua New Guinea (2006) N2975

National Court: Cannings J

Judgment Delivered: 21 February 2006

N2975

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 94 OF 1999

PAUL SABOKO

Plaintiff

V

COMMISSIONER OF POLICE

1st Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

2nd Defendant

MT HAGEN : CANNINGS J

4 NOVEMBER 2004; 21 FEBRUARY 2006

JUDGMENT

Judicial review – application for review – plaintiff a former officer of Police Force – dismissed for disciplinary reasons – alleged stealing of pay cheques – whether acquittal on criminal charges prevents laying of disciplinary charges – grounds of judicial review – Wednesbury unreasonableness.

A member of the Police Force was charged under the Criminal Code with stealing five pay cheques. He was tried and acquitted in the District Court. A delegate of the Commissioner of Police then charged him with disciplinary offences relating to the same missing pay cheques. He was found guilty of one out of five charges and dismissed from the Police Force. He sought and was granted leave to seek judicial review. This was the hearing of the substantive application for review. His primary ground of review was that both the decision to find him guilty and the decision to impose the penalty of dismissal were so unreasonable no reasonable decision making authority in the position of the Commissioner of Police could have made those decisions.

Held:

(1) The criminal laws that apply to all persons in the country and the disciplinary code for members of the Police Force, which apply only to members of the Police Force, are independent, parallel sets of laws. Breach of one set of laws may or may not amount to breach of the other set of laws.

(2) The Commissioner of Police was not automatically prevented or estopped from laying disciplinary charges due to the plaintiff’s acquittal.

(3) However, having regard to all the facts of the case and the circumstances in which the Commissioner laid disciplinary charges in the same terms as those of which the plaintiff had been acquitted, and the lack of evidence that the plaintiff had stolen the cheques, the decisions to lay the charges and find the plaintiff guilty were so unreasonable no reasonable decision-maker in the position of the Commissioner would have made those decisions.

(4) The decision to dismiss the plaintiff was accordingly quashed and the court ordered his reinstatement and payment of back-pay to the date of the trial.

Cases cited

The following cases are cited in the judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Clement Kilepak v Ellison Kaivovo (2003) N2402

Dicky Nanan v John Maru and Police Commissioner (1997) N1507

Geregl Mauglo v The Police Commissioner and The State (1998) N1728

Gideon Barereba v Margaret Elias (2002) N2197

John Magaidimo v Commissioner of Police (2004) N2752

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

Ombudsman Commission v Peter Yama (2004) SC747

Paul Pora v Commissioner of Police (1997) N1569

Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123

Peter Luga v Richard Sikani (2002) N2285

Pierson Joe Kamangip v Bernard Orim and The State [1998] PNGLR 95

Sudi Yaku v Commissioner of Police and The State [1980] PNGLR 27

Toll v Kibi Kara and Others [1990] PNGLR 71

Abbreviations

The following abbreviations appear in the judgment:

AJ – Acting Justice

CJ – Chief Justice

Const – Constable

DCJ – Deputy Chief Justice

eg – for example

ie – that is; by which is meant

J – Justice

K – Kina

Ltd – Limited

N – National Court judgment

No – number

OS – originating summons

p – page

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

pp – pages

Pty – Proprietary

SC – Supreme Court judgment

Sgt – Sergeant

Snr – Senior

Supt – Superintendent

v – versus

= – equals

% – per cent

JUDICIAL REVIEW

This was an action in which the plaintiff sought judicial review of his dismissal as a member of the Police Force.

Counsel

P Kunai for the plaintiff

B Ovia for the defendants

CANNINGS J:

INTRODUCTION

This is a judgment on an application for judicial review. The plaintiff is seeking review of his dismissal as a member of the Police Force.

BACKGROUND

On 25 September 1998 the Commissioner of Police dismissed the plaintiff from the Police Force. It is that decision which is the subject of the application for judicial review. At the time the plaintiff held the rank of Sergeant. He was paymaster at the Mt Hagen Police Barracks. The Commissioner had caused an investigation to be conducted, laid disciplinary charges against the plaintiff, found him guilty and imposed the penalty of dismissal.

On 22 February 1999 the plaintiff’s lawyers, Kunai & Co of Mt Hagen, filed an originating summons and other documents under Order 16 of the National Court Rules. These documents sought leave for judicial review and set out the grounds on which the plaintiff proposed to rely.

On 10 March 2000 Hinchliffe J granted leave to seek judicial review.

More than four years passed before the application for judicial review was heard. The delay was not attributable to the conduct of either the plaintiff or the defendants.

THE PLAINTIFF’S EVIDENCE

Outline

Mr Kunai, for the plaintiff, tendered two documents by consent and called the plaintiff, Paul Saboko, to give oral evidence.

The exhibits

Column 1 of the table below gives the exhibit number, column 2 describes the nature of the document and column 3 summarises the contents.

TABLE 1: SUMMARY OF DOCUMENTS TENDERED BY THE PLAINTIFF

Exhibit Description Content

A Affidavit: States that he joined the Police Force in 1979 and served until he
Paul Saboko, was dismissed on 25.09.98 – was stationed at Mt Hagen in 1995
plaintiff, as paymaster – on 03.12.96 the Police charged him with stealing
10.02.99 five pay cheques – on 04.09.97 the District Court at Mt Hagen
(Mr R Appa) found him not guilty of all charges – on 05.04.98 he
was served with five disciplinary charges – on 09.04.98 he
responded in writing to the disciplinary charges. The first
defendant, the Commissioner of Police, later responded: found
him guilty of one of the charges, not guilty of four, and dismissed
him from the Police Force, with effect from 25.09.98.

B Letter: The letter is captioned: NOTICE OF PENALTY – SERGEANT :
7916. PAUL SABAKO [sic]. The letter informs the Commander
Commissioner of that the member facing serious disciplinary charges have been
Police/ dealt with and that he has been found guilty of the first count
Commander, while he has not been found guilty of the other four counts.
Highlands Consequently the member is dismissed effective from 25.09.98.
Command, Attached to this letter is a memo to the plaintiff headed “NOTICE
07.09.98 OF PENALTY FOR SERIOUS DISCIPLINARY OFFENCE”.
This notice was served on the plaintiff on 18 September 1998.

Oral evidence

The plaintiff Paul Saboko adopted his affidavit in examination-in-chief. He stated that he was a police officer for 19 years prior to his dismissal. He was charged by the Police Commissioner with five counts of stealing cheques. He was the paymaster. He held the rank of Sergeant in the Police Force. Each count related to a cheque for K185.00.

He was subject to criminal proceedings in the District Court and disciplinary charges under the Police Force Act. In respect of the disciplinary charges, the Commissioner of Police found him guilty of the first charge and not guilty of the other four charges. He said that it was wrong for the Commissioner of Police to charge him under the repealed Police Force Act. Asked if he had received from the Commissioner of Police the notice of penalty, he replied, yes. Asked if he had responded to the charges, he said yes. Asked if he was allowed to make submissions on penalty, he replied no.

He was asked how many times he heard from the Commissioner of Police. He said he heard from him only once and that was by the notice of dismissal.

In cross-examination he stated that he provided responses to the charges. Mr Ovia referred him to the annexures to his affidavit of 10 February 1999 and asked him if those were his responses to the charges. The plaintiff answered yes. Asked if his response was mainly relating to the District Court proceedings, which found him not guilty of all five counts, he said yes.

Mr Ovia asked the plaintiff where in his responses he explained what happened to the missing cheques. He replied that this has been explained when he replied to the five charges. He admitted that his evidence was mostly on the findings of the District Court which ruled that there was insufficient evidence but he did not agree with the suggestion that he had not explained what happened to the missing cheques.

He agreed that in the trial in the District Court some of the State witnesses were not available.

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