Thomas Eluh v Gary Baki

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 27 October 2017
• Citation: (2017) N6984
• Court: National Court
• Year: 2017
• Judgement Number: N6984

Full : OS (JR) No 634 of 2015; Thomas Eluh v Gary Baki Commissioner of Police and the Independent State of Papua New Guinea (2017) N6984

National Court: Makail, J

Judgment Delivered: 27 October 2017

N6984

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 634 OF 2015

BETWEEN

THOMAS ELUH

Plaintiff

AND

GARY BAKI

COMMISSIONER OF POLICE

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Makail, J

2016: 10th October

2017: 27th October

JUDICIAL REVIEW – Review sought against dismissal from Police Force – Grounds of – Error of law – Ultra vires – Discipline of member of Police Force – Appointment of disciplinary officer – Disciplinary officer must be of higher rank to the member charged – Decision to dismiss based on flawed process – Illegal – Reinstatement refused – Expiry of contract of employment – No extension of contract of employment – Relationship between parties turned obnoxious – Police Act, 1998 – Section 24 (2) (b)

Cases cited:

Geoffrey Vaki v. Gari Baki & Ors (2012) N4804

Simon Kauba v. NEC & The State: OS (JR) No 477 of 2014 (Unnumbered & Unreported Judgment of 13th November 2015)

Counsel:

Mr. M. Nale with Mr. T. Noki, for Plaintiff

No appearance, for Defendants

JUDGMENT

27th October, 2017

1. MAKAIL, J: The Plaintiff was the Assistant Commissioner of Police (Crimes). As Assistant Commissioner, he was a senior and commissioned officer in the hierarchy of the Royal Papua New Guinea Constabulary (“Police Force”) and was employed under a three year contract of employment which ran from 15th July 2013 to 13th July 2016.

2. He led a team of members of the Police Force including Chief Inspector Timothy Gitua to investigate an allegation of fraudulent payment of public funds by the Prime Minister to Paul Paraka Lawyers. On 16th June 2014 he accompanied the former Police Commissioner Sir Toami Kulunga and Mr. Gitua and served a warrant of arrest on the Prime Minister.

3. Following that, Sir Toami was replaced as Police Commissioner and Mr. Geoffrey Vaki was appointed by the Head of State acting with, and in accordance with, the advice of the National Executive Council (“NEC”) of which the Prime Minister was the Chairman.

4. On the direction of Mr. Vaki, on 20th June 2014 the Acting Deputy Commissioner of Police (Operations) Mr. Jim Andrews suspended the Plaintiff for insubordination. After Mr. Vaki was replaced by the First Defendant, on 7th May 2015, the First Defendant lifted the suspension and after a week, on 25th May 2015 directed the Plaintiff to take a transfer. The Plaintiff requested for more time due to short notice but was suspended by the First Defendant for insubordination.

5. On 31st July 2015, the Plaintiff was charged by the Acting Deputy Commissioner of Police (Administration) Mr. Raphael Huafolo with a serious disciplinary charge (“charge”). On 14th August he replied to the charge. The Assistant Commissioner of Police (Public Safety) Mr. Jim Wan was appointed as disciplinary officer to investigate and report to the First Defendant. Based on the report provided by Mr. Wan, on 23rd September 2015 the Plaintiff was dismissed from the Police Force by the First Defendant.

6. He seeks review of the dismissal. This application for judicial review proceeds from the grant of leave by the National Court on 30th October 2015. By the time it was heard on 10th October 2016, the three year term of the Plaintiff’s employment contract expired.

7. The grounds detailed in the Statement in Support pursuant to Order 16, rule 3 (2) (a) of the National Court Rules, are numerous and repetitious but come down to an allegation that an error of law has been committed by the First Defendant when he arrived at the decision to dismiss the Plaintiff.

8. Secondly, that the decision was irrational and unreasonable under the Wednesbury principle of unreasonableness when considered against a number of extenuating and mitigating factors some of them being, the lifting of the suspension by the First Defendant in May 2015 which extinguished or terminated any further suspension and investigation of the subject of suspension, the prolonged delay of the further suspension and decision and his 41 years of unblemished service record in the Police Force and contribution to the Police Force .

9. It was also claimed that the decision was made in bad faith or actuated by malice because the First Defendant was appointed by the NEC whose Chairman was and is the Prime Minister at a critical time where the Prime Minister was subject of an on-going legal battle in relation to his arrest over alleged fraudulent payment of public funds to Paul Paraka Lawyers and he (Plaintiff) as the Assistant Commissioner (Crimes) was at the forefront of the investigation.

10. Additionally, the dismissal was not isolated but deliberate because other members of the Police Force involved in the investigation against the Prime Minister such as Chief Inspector Mathew Damaru, Chief Inspector Timothy Gitua including lawyers, Gregory Egan, Terrance Lambert and McRonald Nale were subjected to vindictive actions of the servants and agents of the Prime Minister’s government, including the foreign lawyers been banned from entering the country, termination of Timothy Gitua and attempted arrest of Messrs Damaru, Gitua and Nale.

11. Finally, it was alleged that the decision was tainted with procedural breaches and impropriety, hence denial of natural justice where, amongst other things, decision was not made within a reasonable time due to a prolonged period of suspension of three years and three months and no reasons given for that.

12. By these grounds, the Court is urged to find that the decision was illegal and should be quashed and further, reinstatement be ordered.

13. While it is necessary to consider each of these grounds, the procedure which was adopted by the First Defendant to arrive at the subject decision comes to the forefront of the dispute and critical to the success or otherwise of the application for judicial review.

14. There is not much dispute in relation to the procedure for dealing with a serious disciplinary charge under Sections 23, 24, 25 and 26 of the Police Act. There is only one aspect which has been alleged by the Plaintiff as not being complied with or breached and which has the effect of rendering the process by which the First Defendant adopted to arrive at the subject decision as being flawed, hence illegal.

15. It is the allegation that the disciplinary officer appointed by the First Defendant to investigate and report to the First Defendant was of equal rank to him (the Plaintiff), namely Assistant Commissioner. It was argued that such appointment was either contrary to or in breach of the procedure for investigating, reporting and determining a serious disciplinary charge under Section 24 (2) (b) of the Police Act.

16. The Commissioner may appoint commissioned officers to act as disciplinary officers under Section 19 of the Act. Section 19 states:

“19. Disciplinary officers.

(1) The Commissioner may from time to time and at any time appoint commissioned officers to act as disciplinary officers for the purposes of this Part.

(2) Where the Commissioner acts as a disciplinary officer the provisions of this part shall apply with any necessary modifications.”

17. Apart from being a commissioned officer, the qualifications and functions of a disciplinary officer are set out in Section 24. Section 24 states:

“24. Determination of charge.

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be—

(a) a person other than the person who has charged the member; and

(b) of superior rank to the member charged.

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.” (Emphasis added).

18. By virtue of Section 24 (2) (b), a disciplinary officer appointed by the Commissioner to investigate a matter and report to him must be of a superior rank to the member charged.

19. I presumed that because of the command and control within the hierarchical structure of the Police Force, Section 24 (2) (b) is intended to reinforce and give effect to this notion.

20. Where it comes to matters of discipline or conduct of a member, it is intended that an investigation must be conducted by a member of a higher rank than the one subject of discipline or charge.

21. The undisputed evidence is that, the Assistant Commissioner of Police (Public Safety) Mr. Jim Wan was appointed as disciplinary officer to investigate and report to the First...