Simon Ottogoma v The Independent State of Papua New Guinea (2001) N2154

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 26 November 2001
• Citation: (2001) N2154
• Court: National Court
• Year: 2001
• Judgement Number: N2154

Full Title: Simon Ottogoma v The Independent State of Papua New Guinea (2001) N2154

National Court: Injia J

Judgment Delivered: 26 November 2001

N2154

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 664 OF 2000

BETWEEN:

SIMON OTTOGOMA

- Applicant-

AND:

THE STATE

-Respondent-

LAE : INJIA, J.

2001 : NOVEMBER 26

Judicial review — Decision of Disciplinary authority — Dismissal of policeman by Police
Commissioner for disciplinary reasons — Grounds — Breach of principles of natural
justice — Whether Police Commissioneer requried to serve copies of internal police
investigation reports on member charged with disciplinary offence — Whether
opportunity given to member to address on penalty before he was found guilty and
punished — Police Force Act 1998, Ss.23 — 24.

Cases Cited in the judgment

Dicky Nanan v. Police Commissioner N1507 (1997).

Kekedo v Burns Philp (PNG) Ltd [1988 — 89] PNGLR 122.

Kelly Yanip v. Police Commissioner [1995] PNGLR 93.

Michael Kapa Wena v. Police Commissioner N1370(1997).

Tiga Nalu v. Police Commissioner N1927 (1999).

Philip Kamo v. Police Commissioner N2084 (2001).

P. Ousi for the defendants

R. Saranduo for the respondent

26 November, 2001

INJIA, J.: The applicant is applying for judicial review under Order 16 of the National Court Rules. Leave to apply for review was granted on 21 March 2001. The application is contested by the respondent.

The applicant is seeking a review of the Police Commissioner's ("the Commissioner") decision of 20/9/00 dismissing him from the Police Force for disciplinary reasons. The applicant has filed 3 affidavits sworn on 3/11/00, 11/12/00 and 8/8/01 respectively. He also relies on the other affidavits of Constables Dean Sawan sworn on 3/11/00; Constable Maika Nosare sworn on 3/11/00, Sgt. Razi Take sworn on 3/11/00; Police Officer Tony Wagambie sworn on 8/11/00 and Senior Inspector Peter Guiness sworn on 15/11/00.

The respondent's case is set out in the affidavit of Senior Inspector John Waira sworn on 30/2/01.

The background circumstances are that on the night of 4/3/99, members of the Police Task Force based at Lae including the applicant, were on duty in the West Taraka area. They drove to West Taraka to apprehend a suspect for questioning. The applicant was the driver of the police vehicle and he was armed with a A-R 15 rifle. When they approached the area where the suspect was supposed to be, the suspect fled and the other task force members pursued him on foot whilst the applicant drove up to where a Yellow utility was. The applicant thought this was a stolen vehicle and signaled to the Toyota driver to slow down but it kept on going. So he took out his A/R 15 rifle and fired a warning shot. Then he saw a man inside taking out a .38 pistol and fired into the air. The applicant responded by firing 2 shots at the vehicle. When the vehicle came to stop, he realised that he had shot Const. Maipo Mazuk, a CID policeman from Kundiawa who was at the scene, to investigate a crime. Const. Mazuk received serious gunshot wounds to his left buttock and hip, which penetrated into his abdomen and intestine. He was admitted to the Angau Memorial Hospital where surgery was done on the affected parts. He recovered well and was subsequently discharged.

On 24/11/99, Police Superintendent Awan Sete laid a serious disciplinary charge against the applicant under S.21(1)(ay) of the Police Force Act 1998 read:

It is necessary to set out in full the charge document together with details completed by the charging authority, the applicant and the police officer who served the charge on the applicant. I do this because there is information contained on this charge document which significantly differ from information contained in previous charge documents which I have sighted in cases I have already dealt with. The parts filled in by the various persons referred to above are in bold print. The charge document reads:

"ROYAL PAPUA NEW CONSTABULARY

"SERIOUS DISCIPLIANRY OFFENCE REPORT.

Police Station: LAE CENTRAL

Date: 24/11/99

File No.:

"NAME: SIMON OTTOGOMA

RANK: CONSTABLE

REG. NO.: 10197

STATION: LAE

"I SUPERINTENDENT AWAN SETE 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 21 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)

"On the 4th March, 1999 at West Taraka you did commit an act Namely, in that, you wounded on MAIPE MAZULEC whereby you fired 3 shots at him injuring his stomach without justification which may be a Criminal offence.

"Thereby contravening Section 20(1)(ay) of the Police Force Act (insert sub section)

"If 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 to be supplied with a copy of the said reports, 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, or 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 you may wish to make in relation to penalty should the charge be sustained.

"If a response is not provided by you within 14 days of you being served personally with a copy of this charge, or within 28 days of a copy of this charge being mailed to you as per Subsection 4(b) of Section 23 of the Police Force Act, you will be deemed to have denied the truth of this charge.

"PROOF OF SERVICE

"DAVID SIENE states:

(full name of Officer serving charge)

at 11.05a.m hours on the 23rd day of February, 2000.

I interviewed the accused member

at Lae Police Station (insert location)

I said "State your full name rank and number:

He said, "Const. 10197 S. OTOGOMA

"I then served a copy of the charge/s on the member, together with a copy of the evidence in support of the charge.

I said, "Do you understand this charge?"

He said, "Yes"

I said, "Do you wish me to explain this charge to you?"

He said "No"

"I then explained the charge to the member (delete if not applicable)

I said, "Do you admit or deny the charge?"

He said, "DENNY"

I said, "Do you wish to give any explanation in relation to this charge?"

He said, "YES, HE WISH TO MAKE HIS EXPLANATION IN WRITING ON LATER DATE."

I said, "If you so desire you may provide a written explanation to me within 14 days. This document should include any explanation that you may wish to give and should also include any submission you may wish to make to the Commissioner in relation to penalty in the event that the charge is sustained. Do you understand this?

He said, "YES"

I said, "Is there anything else you wish to say in relation to this charge?"

He said, "Yes, 1. I wasn't charged criminally on this matter.

2. I did submitted my statement to OIC CID Lae at

the time.

"Signature of Officer Serving Charge: (Signed)

NAME OF SERVING OFFICER: DAVID SIENE

NUMBER: P3630

RANK: CHIEF INSPECTOR

Signature of Accused Member: (Signed)"

The modified charge form purports to comply with changes in the disciplinary procedure in relation to dealing with serious disciplinary offences prescribed in the new Police Force Act 1998. This Act repealed the Police Force Act Ch. No. 65 (as Amended by Police Force (Amendment) Act 1993. The disciplinary procedure set out in S.46, of the repealed Act is now replaced by ss.23 — 27 of the new Act. The new Act makes significant changes to the disciplinary procedure. I will mention two charges, which are relevant for purposes of this review. The first one is S.23(3)(b) which requires the Commissioner or his delegate to provide, upon request, copies of "reports that are to be considered in relation to the charge" at the time the charge is served on the member, to enable him to make an informed reply to the charge. Section 24(4) also requires the Commissioner to furnish to a member a copy of any report, which was not made available to the member previously. Under the...