Sinclair Nawe v Michael Mondia

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 03 May 2016
• Citation: (2016) N6269
• Court: National Court
• Year: 2016
• Judgement Number: N6269

Full : OS (JR) NOS. 868 & 869 OF 2014; Sinclair Nawe & Wesley Naks v Michael Mondia, Chairman Beon Disciplinary Board and Commissioner of the Correctional Service (2016) N6269

National Court: Cannings J

Judgment Delivered: 3 May 2016

N6269

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NOS. 868 & 869 OF 2014

SINCLAIR NAWE & WESLEY NAKS

Plaintiffs

V

MICHAEL MONDIA, CHAIRMAN BEON DISCIPLINARY BOARD

First Defendant

COMMISSIONER OF THE CORRECTIONAL SERVICE

Second Defendant

Madang: Cannings J

2015:18 June, 11 August,

2016: 3rd May

JUDICIAL REVIEW – disciplinary proceedings – review of decision to find members of disciplinary force guilty of disciplinary offence and impose penalty of dismissal – whether statutory procedures followed – whether plaintiffs given a fair hearing – whether penalty excessive.

Two members of the Correctional Service were charged with disciplinary offences in relation to the escape of detainees at the correctional institution at which they were stationed. They were suspended, charged, found guilty and dismissed from the Correctional Service. They applied for judicial review of the decisions to suspend them, to find them guilty and to impose the penalty of dismissal, on four grounds: that (1) they were suspended for an excessive period without being charged, contrary to the Correctional Service Act; (2) they were given insufficient notice of the hearing and nature of the charges, contrary to the Correctional Service Act; (3) they were denied natural justice; and (4) the penalty of dismissal was excessive and failed to take account of relevant considerations.

Held:

(1) Section 52(3) (a) of the Correctional Service Act provides that suspension of a member expires upon failure to lay a charge within two weeks after the date of suspension. That requirement was not adhered to and therefore an error of law was committed.

(2) Section 40(5) of the Correctional Service Act provides that if a member is charged with a serious disciplinary offence he shall be given at least seven days’ notice of the hearing of the charge and informed clearly that he is being so charged. Those requirements were not adhered to and therefore errors of law were committed.

(3) A Disciplinary Board that hears a charge against a member of the Correctional Service must, perforce of the Constitution and the underlying law, conduct the hearing fairly and in a way that it is seen to act fairly. It must also comply with the procedural requirements of Section 31 of the Correctional Service Regulation. Those procedures were not followed and therefore errors of law were committed and there was a denial of natural justice.

(4) The penalty imposed for commission of a serious disciplinary offence must be one of those prescribed by Section 44 of the Correctional Service Act and in the case of dismissal from the Service can only be imposed by the Commissioner after taking into account the considerations prescribed by Section 44(5). Here, there is no evidence that those considerations were taken into account and therefore errors of law were committed.

(5) As the errors of law were serious, the decisions to suspend the plaintiffs, to find them guilty of disciplinary offences and to dismiss them were quashed. The Court ordered that they be reinstated to their original positions and paid back-pay.

Cases cited:

The following cases are cited in the judgment:

Gerry Harou v John Solok (2009) N3929

Henry Wavik v Martin Balthasar (2013) N5272

Manuel Gramgari v Steve Crawford (2012) N4950

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

JUDICIAL REVIEW

These are applications for judicial review of decisions to find two members of the Correctional Service guilty of disciplinary offences and to impose on them the penalty of dismissal from the Correctional Service.

Counsel:

A Meten, for the Plaintiffs

S Maliaki, for the Defendants

3rd May, 2016

1. CANNINGS J: Two former members of the Correctional Service, Sinclair Nawe and Wesley Naks, apply for judicial review of decisions of the defendants, the Chairman of a Disciplinary Board and the Commissioner of the Correctional Service, which resulted in their dismissal from the Correctional Service. They were found guilty of disciplinary offences in relation to the escape of detainees at Beon Correctional Institution, Madang Province, at which they were stationed.

2. Each application for judicial review is based on four grounds: (1) they were suspended for an excessive period without being charged, contrary to the Correctional Service Act; (2) they were given insufficient notice of the hearing and nature of the charges, contrary to the Correctional Service Act; (3) they were denied natural justice; and (4) the penalty of dismissal was excessive and failed to take account of relevant considerations.

FACTS

3. The events at the centre of this case occurred in 2013. On 21 March, 49 detainees escaped from Beon Correctional Institution at some time, which remains unknown, between 0900 and 1600 hours. Both plaintiffs, who held the rank of Warder, were rostered on duty that day, as a rear tower guard. Sinclair Nawe was to work the 0600 to 1400 shift. Wesley Naks was to work the 1400 to 2200 shift. Neither turned up for work, both claiming to be sick on that day.

Ø On 23 March the Commanding Officer of Beon Correctional Institution, Tita Wada, suspended both of them, amongst other members, from duty, on full pay.

Ø On 25 March an investigation team arrived from Correctional Service headquarters to conduct an investigation into the escape.

Ø On 22 May the terms of the plaintiffs’ suspension were amended in that they were paid at the rate of 50% of their salary.

Ø On 24 June the plaintiffs’ suspension was uplifted and they were each given notice by a Discipline Officer, Chief Inspector Raymond Gideon, that they were the subject of a complaint and investigation regarding the mass escape of 21 March.

Ø On 28 June the Discipline Officer notified them that he had completed his investigation and decided that they each had a case to answer. He charged them each with an offence under Section 39(b) of the Correctional Service Act, which states:

A member who … absents himself from duty other than as is provided under this Act … is guilty of a disciplinary offence and is liable to be dealt with and punished under this Act.

4. The Discipline Officer gave the following summary of events leading to the charge:

On the 21st of March 2013 you did not obtain proper authority from the authorities at Beon Correctional Institution to stay away from work. You were rostered to perform duty from [0600 to 1400, in the case of Nawe, and 1400 to 2200 in the case of Naks] at the Rear Tower however you did not turn up for duty without any reasonable excuse.

During your absence 49 prisoners escaped from lawful custody between the hours of 0900 and 1630 by cutting a hole in the main compound perimeter fence underneath the Rear Tower to make their getaway.

5. The Discipline Officer, also on 28 June, gave the plaintiffs notice that the charges would be heard by the Beon Disciplinary Board in the Commanding Officer’s office at 9.00 am on 4 July.

Ø On 4 July each plaintiff attended his disciplinary hearing before the Disciplinary Board, chaired by the first defendant.

Ø On 5 July the Disciplinary Board found the charges proven against each plaintiff and recommended to the Commissioner that they be dismissed from the Correctional Service.

Ø On 30 October the Commissioner signed a notice of dismissal in respect of each plaintiff, which was expressed to take effect immediately.

Ø On 26 November the Commissioner’s decision was conveyed orally by the Commanding Officer to the plaintiffs and soon afterwards they were removed from the payroll.

GROUND OF REVIEW (1): EXCESSIVE SUSPENSION PERIOD

6. The plaintiffs argue that their suspension from duty, which extended from 23 March to 21 May 2013 on full pay, and from 22 May 2013 to 24 June 2013 on half pay, was unlawful as it contravened Sections 52 and 53 of the Correctional Service Act.

Section 52 (suspension) states:

(1) Where a member is suspected of having committed a serious offence, or an offence under circumstances which are such that the Commissioner believes that the member concerned should not continue the performance of his duty, the member may be suspended by the Commanding Officer.

(2) Suspension may be effected before, at the time of or after the laying of the charge, and may be lifted by the Commanding Officer.

(3) An order suspending a member shall expire immediately upon—

(a) failure to lay a charge within two weeks; or

(b) the dismissal of the charge; or

(c) the imposition of a penalty, except a penalty under Section 44(1)(b) or (d).

(4) Where a penalty is imposed on a member pursuant to Section 44(1) (b) or (d), and that member appeals, the order suspending the member will remain in force until the appeal is determined.

7. Section 53 (pay during suspension) states:

(1) Subject to...