Papua New Guinea Police Appeals Tribunal

Police Appeals Tribunal

[1997] PNGDC 11 - EX CONSTABLE 10424 JEGEMBE V COMMISSIONER OF POLICE

[1997] PNGDC 11

PAPUA NEW GUINEA

[POLICE APPEAL TRIBUNAL]

EX CONSTABLE 10424 JEGEMBE

V

COMMISSIONER OF POLICE

Lae

Karapo SPM

30 July 1996

POLICE APPEAL TRIBUNAL - Dismissal following conviction and sentence by District Court - Whether dismissal was severe - Whether dismissal was double punishments - Appeal dismissed.

Cases Cited

Tapopwa Thomas v. The State (1979) PNGLR 139

Counsel

Mr Karmi for the Police Commissioner

Ex Constable 10434 Jegembe for himself

JUDGMENT

30 July 1996

KARAPO SPM:  This is an appeal under Section 48 of the Police Force Act Ch. No. 65.  The Police Appeal Tribunal is constituted under Section 47(2) of the said Act .  I noted that Section 47 has since been repealed.  However, since this appeal matter was outstanding from 1992, I consider that pursuant to the repealed Section 47 and with approval of Mr Karmi for the Police Commissioner and the Appellant and upon having been appraised of the issues involved, it was proper that I, sitting as a Police Appeal Tribunal Constituted under Section 47 (2) of the Police Force Act, should determine the matter.

The facts as I now set them out are not in dispute.

Ex-constable 10434 Jegeme was convicted on the 30th day of July, 1991 by the Local Court sitting at Madang upon two charges of Unlawful Assault.  The two charges were laid under Section 6 (3) of the Summary Offences Act.  He was fined K100.00 and K50.00 respectively and indefault he was sentenced to be imprisoned for a period of three months on each charges.  There were also two additional traffic charges laid under Sections 17 (2) and 21 (1) of the Motor Traffic Act Ch. No. 243.  He was convicted on both counts and was fined K100.00 for driving without due care and attention, and indefault to be imprisoned for the period of six weeks, and for driving without being licensed, he was fined K50.00 and indefault of payment of such sum, to be imprisoned for the period of two weeks.

He was subsequently charged under Section 43 (g) of the Police Force Act with serious disciplinary charges, namely that:

(a)      On the 29th day of July 1991, at Madang you were guilty of disgraceful conduct in your official capacity in that you did unlawful assault Cresensia Alphonse;

(b)      On the 30th day of July, 1991, at Madang you were guilty of disgraceful conduct in your official capacity in that you did unlawfully assault Caroline Lotu;

(c)      On the 31st day of July, 1991, at Madang you were guilty of disgraceful conduct in your official capacity in that you did drive the motor vehicle without due care and attention;

(d)      On the 31st day of July, 1991, at Madang you were guilty of disgraceful conduct, in your official capacity in that you did drive without being licence for that purpose.

He was found guilty on all of these charges and was dismissed from the Police Force by the Commissioner of Police after considering recommendation from the Court.

He appealed against this decision to the Police Appeal Tribunal on the 20th of July 1992 on the following grounds:

(a)      excessive severity of punishment;

(b)      the dismissal by the Police Commissioner under Section 43 (g) of the Police Force Act constitutes a double penalty and is prohibited by Section 16 of the Criminal Code Ch. No. 262.

The Police Force Act  is concerned with the regulation of the Papua new Guinea Police Force. Subdivision C of the Act contains provisions relating to the discipline of all members of the force.  By Section 46 it is provided that any member who, commits any breach of the Act and is guilty of any disgraceful or improper conduct either in his official capacity or otherwise, is guilty of a disciplinary offence under subdivision C which penalties include, a fine not exceeding K40.00, reduction in rank and salary, transfer to other duties and dismissal from the force.

Subdivision C of the Act, relating to disciplinary offences is part of the Law regulating the relationship between the Police Force and it’s members and in creating offences and providing for their punishment does no more than define what is misconduct on the part of a member of the Police Force warranting disciplinary action on behalf of the Force and the disciplinary penalties that may be imposed are recommended for such misconduct; it does not create offences punishable as crimes.  The Police Commissioner is performing the duties imposed by subdivision C; he does not sit as Courts of Law exercising judicial power; he sits as an administrative tribunal maintaining the discipline of the Police Force in the manner prescribed by law.  It follows therefore that the hearing and determination of a charge laid against a member of the Police Force laid under subdivision C, of Police Force Act, is neither a criminal prosecution nor a civil action.

I therefore view that a criminal conviction does not in the absence of any statutory provisions, bar subsequent disciplinary action.  Any other result would be absurd.  How could it be said that a magistrate found guilty of stealing monies from the office registry could not then be dismissed?  It is clear law today that a professional body has the right to suspend or expel a member following a conviction in a criminal court.

Therefore, from what I have discussed, when ex-Constable 10434 Jegembe was found guilty of the charges under subdivision C of the Police Force Act  the penalties imposed on him were not for a criminal offence.

It is necessary, however, to look at the effect of Section 16 of the Criminal Code.  The Section reads:

“16.    Person not to be twice punished for the same offence

A person cannot be punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing that death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.”

The Section heading refers to being twice punished for the “same offence” but it forbids double punishment for “the same act or omission” and the body of the Section makes no such reference to the same offence.  See Tapopwa Thomas V the State (1979) PNGLR 139.

Section 3 of the Criminal Code also indicates the three categories of the offences to which the Code relates, viz crime, misdemeanours and simple offences.  There, I think, the act or omission referred to in the section must be an offence coming within one of the categories of offences established by S. 3 of the Code and this may be either a summary offence or indictable one.

The Section therefore acknowledges that the rule against double punishment applies to al acts or omission whether summary or indictable that are regarded by the various statutes of the State as of a criminal nature or as involving a liability to penalties or punishment as quasi - criminal kind (eg the Motor Traffic Act) but not to disciplinary offences.

In the present case there is no doubt Constable 10434 Jegembe convictions and sentences by the Local Court at Madang meant that there was a previous lawful punishment imposed consequent upon a lawful conviction for an offence.  However, the subsequent disciplinary proceeding and punishment of dismissal from the police force by the Police Commissioner was neither a Criminal prosecution nor a civil action.  He was merely punished by an administrative tribunal maintaining the discipline of the police force for disciplinary charges and that proceeding was neither criminal no quasi - criminal in it’s nature.

The point is that the charges of unlawful assaults were offences under the Summary Offence Act.  The disciplinary charges were disgraceful conduct which were ultimately found to warrant disciplinary action.  There were no offence to punish as a crime.  It, therefore, follows that Constable 10434 Jegembe was not punished twice for the one offence or for the same act or omission.  This ground of this appeal must fail.

On the ground that the punishment was excessive, is not for me to consider since, the Commissioner of Police was acting on the recommendation made to him by a Court of Law under Section 57 (3) of the Police Force Act.  I consider as a tribunal I should not interfere with the recommendation.  In fact I saw there is no error on the part of the Commissioner of Police.  This ground must also fail.

The appellant also raised as his additional grounds of appeal, that he was not served with a ‘notice of his dismissal’.  I consider that Section 57(3) answers this ground of appeal.  The Section says that:

“Where a recommendation is made under subsection (2) that a punishment be imposed on a member of the Regular Constabulary Branch, the recommended punishment, or any lesser punishment referred to in that subsection, summarily and without regard to the procedure prescribed by this Act for dealing with the disciplinary offences.”

The provision is saying that the Commissioner of Police may impose recommendations by a Court of Law without regards to the procedure prescribed by this Act when dealing with disciplinary offences.  I see therefore that there was no error on the part of the Respondent.  I therefore dismissed this ground.

On all of these reasonings, I confirmed the decision by the Commissioner of the Police.

Orders accordingly.

Mr Karmi for the Police Commissioner.

Ex Constable 10434 Jegembe.