Peter Tupa v Commissioner of Police

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 February 2007
• Citation: (2007) N5481
• Court: National Court
• Year: 2007
• Judgement Number: N5481

Full : OS NO 448 of 2006; Peter Tupa v Commissioner of Police and The Independent State of Papua New Guinea (2007) N5481

National Court: Cannings J

Judgment Delivered: 23 February 2007

N5481

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 448 OF 2006

PETER TUPA

Plaintiff

V

COMMISSIONER OF POLICE

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Madang: Cannings J

2006: 14, 20 November

2007: 23 February

JUDICIAL REVIEW – application for review – plaintiff a former member of Police Force – dismissed for disciplinary reasons – allegedly obtaining money by false pretences – whether procedures under Police Act, Division IV.3 (serious offences) complied with – whether the officer who investigated the matter was appointed by the Commissioner under Section 24 (determination of the charge) – whether a lawful investigation was conducted under Section 24 – whether the report furnished to the Commissioner advising an opinion that charges were sustained and recommending dismissal evidenced a proper investigation – whether a copy of the report furnished to the Commissioner must first be given to the member, to reply to.

POLICE – disciplinary offences – relationship to criminal offences – whether acquittal of criminal charges prevents disciplinary charges being laid or continued in relation to same subject matter.

The plaintiff was a member of the Police Force. He was charged under the Criminal Code with committing criminal offences and charged, in relation to the same acts, under the Police Act with serious disciplinary offences. The National Court acquitted him of the criminal charges. He continued to face the disciplinary charges and was found guilty and dismissed from the Police Force. He sought and was granted leave for judicial review of his dismissal on various grounds relating mainly to alleged breaches of the procedural requirements of the Police Act.

Held:

(1) The officer who conducts an investigation into serious disciplinary offences must be duly appointed by the Commissioner under Section 24(1) of the Police Act.

(2) To comply with Section 24 of the Police Act, an investigation must be a genuine investigation involving collection, assessment and weighing of evidence – not just a rehash of another investigation – and the report must, standing alone, demonstrate that a proper investigation has taken place.

(3) The report to the Commissioner under Section 25(1) must be prepared by the disciplinary officer.

(4) It is not necessary for the report under Section 25(1) to be furnished to the member charged.

(5) The disciplinary officer must consider the explanations offered by the member charged.

(6) Investigation and reporting of disciplinary offences and decisions by the Commissioner do not necessarily have to be put on hold if criminal proceedings relating to the same subject matter are pending.

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

Jim Kas v The Honourable Mr Justice Mark Sevua, Their Worships Mr Sition Passingan and Mr Mark Pupaka and The Independent State of Papua New Guinea (2000) N2010

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

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 Tupa, in person, & R Uware, for the plaintiff

P Ifina, for the defendants

23rd February, 2007

1. CANNINGS J: 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. The case raises issues about what standards are to be met when an internal investigation is conducted into allegations against a police officer and what procedures are to be followed to give the officer the right to be heard.

2. The plaintiff relied on two affidavits by himself. He deposed to the nature of the allegations against him, the criminal charges he faced and the course of events that led to him being dismissed from the Force.

3. For the defendants, one affidavit was relied on. It was by Chief Sergeant Alphonse Maipe who is attached to the Discipline Section of the Internal Affairs Directorate at Police Headquarters. He states that he oversighted the adjudication process for the plaintiff’s disciplinary charges, prepared an adjudication report and recommended to the Director of Internal Affairs that the plaintiff be dismissed due to the serious nature of the offences and the strong evidence available. He annexed a copy of his report and various documents relating to the allegations against the plaintiff.

4. No oral evidence was called. The only disputed fact that is significant is whether the plaintiff responded to the disciplinary charge. I make a finding on that issue below.

BACKGROUND

5. The plaintiff joined the Police Force on 5 February 1980 and served continuously until the date of his dismissal, 3 March 2004. He then held the rank of Sergeant and was stationed at Ambunti, East Sepik Province.

6. On 12 June 2002 he was charged under the Criminal Code with stealing and false pretences in connexion with his alleged fraudulent receipt of bail and other money from individuals facing criminal charges. The offences were allegedly committed at Ambunti in March 2001. He was committed for trial in the National Court.

7. On 20 August 2002 he was suspended from duty because of the criminal charges against him. The suspension was uplifted and he resumed duty on 18 September 2002 by virtue of a direction from the East Sepik PPC Chief Supt Leo Kabilo.

8. In the meantime, however, on 2 September 2002 Chief Supt Kabilo issued nine disciplinary charges against the plaintiff regarding the same matters over which he had been criminally charged and suspended. The charges were served on him on 26 September 2002 at Ambunti Police Station. The charges were in nine separate documents each headed “Serious Disciplinary Offence Report”. All the documents used the same format and wording except for the meat of the charge that appeared beneath the number of each charge.

9. For example, the first document, containing the first charge, stated:

I, Leo KABILO, Chief Superintendent, being a Commissioned Officer authorised by the Commissioner of Police to lay charges as per Section 19 Part IV of the Police Force Act and having reason to believe that you have committed a disciplinary offence other than that which is or is intended to be dealt with as a minor offence as per Section 22 of the said Act, do hereby charge you as follows:

(Insert here a full wording of the charge under Section 20 of the Police Force Act)

First Charge:

On the 30th day of March, 2001 at Ambunti/Wewak, East Sepik Province, did by false pretence and with intent to defraud obtained from one Sam Nidum K1,000.00 in cash as bail money and with intent thereby than to defraud the said Samson Nidum.

Thereby contravening Section 20 (ay) of the Police Force Act (Insert sub section)

You so desire the charge will be explained to you by a senior officer of police and in addition you are also entitled to be furnished with a copy of all reports that are to be considered in relation to the charge. If you wish to have the charge explained to you and/or be supplied with a copy of the said report, you should contact your Police Station Commander or Officer in Charge immediately. If any further report subsequently becomes available, a copy of this report shall be served on you and you shall have a right of reply to this.

You are invited to provide a response to this charge within 14 days if the charge has been served personally on you, within 28 days if the charge has been posted to you as per Subsection 4(b) of Section 23 of the Police Force Act. You should provide in this response any explanation you desire in regard to the charge and should also provide any submission...