N1192

PAPUA NEW GUINEA
[In The National Court of Justice]

CR 97(L) OF 1993

THE STATE

V

FOXY KIA TALA

RE CORNEY WINJAN

LAE: Sevua, J.

10, 13, 21 & 31 December 1993
21 February 1994

Contempt of Court - Police Officer - Failure to attend as witness - Duties of police officers - Attendance in Court as witness - Failure to attend - Interference with administration of Justice.

Contempt proceedings - Practice and Procedures - Order 14 National Court Rules - Whether Contempt in the face or hearing of the National Court be dealt with by another Judge - Proceedings by way of Summons distinguished from Summary Proceedings.

Contempt - Sentence - Police Officer as witness - contempt - Interference with justice - suspended Sentence - Good behaviour bond.

CASE CITED:
The following cases are cited in the Judgement:
SCR No. 3 of 1984, Ex parte
Callick and Koroma [1985] PNGLR 67
Robinson v The State [1986] PNGLR 307
Paul Metta v The State [1992] PNGLR 176
Re Passingan Taru [1982] PNGLR 292
Jennison v Baker [1972] 2 QB 52
AG. v Leveller Magazine Ltd [1979] AC 440
 
S Kesno for the State
J Yamboli for Contemnor

21 February, 1994.

SEVUA, J: On 31 December, 1993, I found Corney Winjan guilty of Contempt of Court and reserved sentence until today.

The facts leading to the charge of contempt of the court are these: Constable Corney Winjan is a detective attached to the Serious Crime Squad of the Criminal Investigation Division at Lae Police Station. He was the investigating officer in the case of The State -v- Foxy Kia Tala. On 18th August, 1993 Hinchliffe, J. adjourned the case to 9.30a.m. 8th December, 1993 for trial before me. On 30th November, 1993 Mr S. Kesno, a State Prosecutor, notified Constable Winjan in writing of the trial date as mentioned above. Again on 6th December, 1993 Mr Kesno verbally reminded Constable Winjan again of the trial date and instructed him to bring the State witnesses for the trial. Constable Winjan then advised Mr Kesno that he (Winjan) had checked out two of the witnesses who were employed by Cartrans Pty Ltd in Chinatown, Lae, and that they would be available for trial. 

On Wednesday morning 8 December, 1993, whilst I was dealing with short criminal matters for mention, the contemnor attended court and when Mr Kesno asked if the witnesses were available, the contemnor said he was busy with other matters then left. The two witnesses were therefore unavailable to give evidence. In mid-morning that day when the case was called, the Court was informed of the above conversation between Mr Kesno and Constable Winjan. I then adjourned the trial to 1.30p.m. and ordered that Constable Winjan appear before me at 1.30p.m. that afternoon. Upon resumption at 1.50p.m. the Court was informed that Constable Winjan had left that morning for Morobe South Coast to arrest a suspect in a wilful murder case and was expected to return to Lae the next day, but no definite time could be given. Mr Kesno said he had informed Constable Winjan that morning that he (Winjan) was required as a witness, but he (Kesno) could not do much as Constable Winjan had said he was going to Morobe.

In the meantime, one State witness became available and was able to give evidence that afternoon. The second witness was a truck driver and the Court was informed that his truck had broken down somewhere in the Eastern Highlands therefore he was not available. Senior Constable Kale who was the corroborator in the record of interview conducted by Constable Winjan and the fourth State witness was available however, he could not be called because the trial involved a voir dire and thus Constable Winjan was required to testify before Senior Constable Kale. Constable Winjan was not available that afternoon because he was in Morobe. The Court had to be adjourned to 9th December, 1993 to enable Constable Winjan to attend. One afternoon of the Court time was therefore wasted. In the meantime, I indicated that if Constable Winjan was not present by 9th December, I would order his arrest. I also asked Mr Kesno to relay what I have said above to the immediate supervisor of Constable Winjan, Sgt. Dakin who is the OIC of Serious Crime Squad. I also requested the attendance of Sgt. Dakin and the Officer In Charge of CID, Chief Inspector Powis on 9th December.

On the morning of Thursday 9th December, 1993 both Sgt. Dakin and Chief Inspector Powis attended. I expressed my concern over this matter to them as immediate superiors of Constable Winjan and indicated that if Constable Winjan was not present at 1.30p.m. I would have him arrested. The Court was informed by both Mr Kesno and Sgt Dakin that Constable Winjan had not yet arrived from Morobe. In respect of the trial of Foxy Kia Tala, the State was not in a position to resume due to Constable Winjan's absence as a State witness. Sgt. Dakin did inform the court that he did not know that Constable Winjan was required for this trial until he received the Court Order of 8th December. He had communicated my order to a timber company in Morobe to relay it to Constable Winjan however, he did not know if the Court Order had reached Constable Winjan. The trial was again adjourned to 1.30p.m. that day. When the Court resumed at 1.50p.m. Mr Kesno informed the Court that Constable Winjan was still at Morobe but has been told of the Order before 12 midday that day and arrangements were being made with a landowner company to provide transport to Constable Winjan since Police Department did not have funds for transport. The Court had to adjourn again to Friday 10th December, so, as far as the trial of Foxy Kia Tala was concerned, one sitting day of the Court was further wasted.

On Friday 10th December, 1993, when the Court resumed at 9.20a.m., Mr Kesno advised the Court that Constable Winjan and the second State witness Daniel Zure were in attendance and the State was ready to resume the trial.

Constable Winjan was then called upon. He was informed that he had been cited for contempt in the face of the Court and particulars of the contempt were read to him. A written statement of charge was later served on him. He was informed that he would be given adequate time to seek legal representation if he required. He as ordered to be remanded in custody, however, that order was later revoked and he was released on his own recognizance to appear at 9.00a.m. on 13th December, 1993. He did appear and the contempt of court charge against him was further adjourned to 21 December to enable him to secure a lawyer.

On 21st December, 1993, Constable Winjan appeared in obedience to his bail with his Counsel, Mr John Yamboli. Counsel then applied for this matter to be dealt with by another Judge on the grounds that I would now be the complainant in these proceedings and pursuant to Order 14 Rule 44 National Court Rules I would be required to provide affidavit evidence against the contemnor. Under Order 14 there are two different procedures for dealing with a contemnor. Rules 38 - 40 deal with contempt in the face or hearing of the Court. This procedure is dealt with summarily. Rules 41 - 46 deal with contempt in connection with proceedings of the Court and this procedure is commenced by notice of motion or originating summons. In the present case, I was dealing with this matter under Rules 28 - 40 except that I had given the contemnor time to seek legal assistance to reply if he so desire. 

In my view where a contempt in the face or hearing of the Court is committed, the Judge who constitutes that Court should deal with the contemnor in accordance with Rules 38 - 40 of the National Court Rules, that is, by summary procedures, subject to the contemnor being given adequate opportunity and time to prepare his case. Where a contempt is committed in connection with court proceedings, the contemnor should then be dealt with in accordances with Rules 41-46 In SCR No. 3 of 1984; Ex parte Callick and Koroma [1985] PNGLR 67 at 70; McDermott, J sitting as a Supreme Court said,

"There is nothing contained in the Rules or developed practice to preclude the Court itself from dealing with the contempt whether in the face of the court or otherwise ..... The Court itself is apprised of the matter, the gravity of the contemptuous action can be properly gauged against the issues before it ......"

It was said in Robinson v The State [1986] PNGLR 307 at 309 and repeated in Paul Metta v The State [1992] PNGLR 176 at 183;

"The rules of the National Court contain a comprehensive statement of the procedure to be followed in cases involving contempt of Court (O14 r38) and in other situations where the contempt complained of is in connection with proceedings in the Court (O14 r42)."

In the present case, the contempt was committed in the face of my court. As the presiding Judge I consider that I was better apprised of the contemptuous act. It is therefore appropriate in my opinion that I deal with the contempt summarily. I therefore refused the application as being mischievous.

Mr Yamboli then applied for an adjournment which was granted to 31st December, 1993. On 31st December, 1993, the contemnor appeared with his lawyer. Particulars of the contempt were put to him and he said he understood and would allow his lawyer to put forth his defence or explanation. Mr Yamboli then addressed the Court as follows:

"Your Honour, there's not much submission to be made. I ask your Honour to take into account the reasons stated in the affidavits. I submit that there was a confusion over the order of the Provincial Police Commander to go to Morobe or to attend Court. He took a while to make up his mind to go to Morobe. Between these two matters he decided to take the order of the Provincial Police Commander fearing loss of job if he was disciplined if he didn't go to Morobe Patrol Post. He thought he would be back in time the next day however, the transport he was using was not government's but arranged through a timber company operating in Morobe District. In his affidavit, he said, whilst he was there, the company employees went on strike over pay therefore that caused him to come late. I refer to the last paragraph of his affidavit, he realised that he caused interruption and he apologised to the Court. The reason for contempt is contained in the affidavits and I ask Court to consider it. He apologised to the Court for the disruptions caused to the Court's proceedings. He ask that your Honour impose a non-custodial penalty. That's our submission."

The Court then adjourned to consider the explanation and affidavits filed by the contemnor. Upon considering these, I found the contemnor guilty of contempt. There was in fact no defence except that the contemnor together with Chief Inspector Paul Monama (PPC), Sgt Chris Dakin and Senior Constable Sirah Kale had gone to great pains in attempting to explain the reason the contemnor had gone absent. Whilst I appreciate the reason he has advanced, the plain fact is that he deliberately absented himself. He was told and he know on 8 December, 1993 that he was required as a witness. Nonetheless, he decided to proceed to Morobe, perhaps thinking that if he was not here, the Court would adjourn and wait for him. The Court did indeed adjourn and wait for him and moreso, his own lack of respect for this Court has now landed him in Court for contempt. I will revert to this point later.

At this juncture, let me briefly summarise the reason given by these four deponents including the contemnor. On 29th November, 1993, a woman was chopped to death at Ainze Village, Morobe Patrol Post. On 21st December, 1993, the contemnor with two other CID personnel attended there, exhumed the deceased's body and took some photographs then returned to Lae. The suspect killer had not been identified. On 6th December, 1993 Sgt. Dakin saw the PPC to arrange for transport for the contemnor and members of the Task Force to travel to Morobe Patrol Post to arrest the suspect since the suspect had been located in the village. The PPC then instructed Sgt Dakin to arrange with Yewa Timber Company for the contemnor and others to travel to Morobe Patrol Post. Chief Inspector Monama said in his affidavit that "Constable Winjan could not attend to his case at Lae National Court on time was caused by transport problem", (his own emphasis). This is just a pathetic and poor excuse by Chief Inspector Monama. I accept that the contemnors trip to Morobe was in line with his duty as a police officer, however, plainly, he knew because he was told that he would be required as a witness, why then didn't he defer his trip to the 9th or 10th December, 1993? As far as I can see, there is no evidence at all that the suspect has been terrorising or threatening the villagers so that the lives of the villagers were in imminent danger.

In his allocutus, the contemnor said that this is his first offence and will not repeat it again. Other matters said are irrelevant to mitigation. Mr Yamboli then address the Court. He said:

"I ask your Honour to exercise your discretion under Order 14 Rule 39(d)." He submitted that the Court considers a non-custodial sentence because the contemnor has apologised to the Court, in paragraph 20 of his affidavit and has said in his allocutus he would not repeat this again."

Counsel repeated again that:

"there was a confusion over the order of the PPC and the contemnor preferred the order of the PPC to go to Morobe to arrest the suspect. If he had not been committed to other duties and had failed to appear before your Honour then, we would assume that he intentionally disrupted the proceedings of the Court."

Counsel further stressed that a non custodial sentence be imposed. 

It is plain to me that the contemnor had preferred the "order" of Chief Inspector Monama. I am at a loss to understand how he could discipline the contemnor if the contemnor did not go to Morobe but attend Court instead. To my mind, Chief Inspector Monama should be cited for contempt of court as well. He could be seen as directly interfering with the administration of justice by ordering the contemnor to go to Morobe instead of appearing as a witness. Let me warn Chief Inspector Monama and any senior police officer for that matter, that if a policeman is required as a witness, that policeman should be released to attend as a witness because if he is ordered or instructed to go elsewhere when he should be attending as witness, those responsible could be dealt with severely.

I have set out almost in full and cited what Counsel's submissions were because I consider his submissions clearly put the contemnor's real position into perspective, that is, he preferred to obey the PPC rather than appear before this Court when he was informed he would appear as a witness on 8th December, 1993. It is obvious from what I have cited that the contemnor just couldn't care less. He had decided to heed the order or direction of his superior then this Court and that his absence was therefore deliberate. I do not accept the excuse from Chief Inspector Monama that the delay was caused by transport problems. The truth of the whole matter is that Constable Winjan knew he would be called as a witness therefore he should have informed both Sgt Dakin and Chief Inspector Monama. Whilst I have no doubt at all that he was attending to his lawful duties, he also had a duty to this Court as both a witness and the investigating officer in that case. There can be no doubt in anyone's mind of his duty to his Court as a police officer. See Pratt, J's lengthy discussion in Re Passingan Taru [1982] PNGLR 292.

I do not find his explanations nor his reasons convincing and as I said, I have found him guilty of contempt and it remains now for me to consider the punishment I see as appropriate in his case.

In respect of penalty, it has been urged upon me that a non custodial sentence should be considered. I take into account that the otherwise unblemished record of this young man has now been tarnished. I have nothing before me of how long he has been in the force, how old he is and whether or not he has a family. These are matters which a defence counsel normally puts forth on behalf of his client. However, I accept that he is a first offender, has apologised and was on lawful duty when required as a witness.

Nevertheless I do not consider that I can downplay this type of contemptuous behaviour. I stress again that Constable Winjan knew he would be required as a witness. He, in my view, challenged the authority of this Court, the law and the impartial administration of justice. His conduct had directly affected the duration of the trial which took more than the three days it should have taken. In fact the trial had to be continued on 31 December, 1993. As a result of his conduct, the Court had wasted one and a half sitting days. I consider that the contemnor's conduct or behaviour clearly demonstrated the level of respect he has for this Court and if this is the kind of respect we expect from members of our police force then I believe Courts should be more serious in punishing contemnors who are police officers.

I have proceeded with this matter cautiously and have accorded to the contemnor all the opportunities to seek legal assistance and further I have ensured that no decision was made in bad temperament or in the heat of the moment.

Having said that I consider that a punitive and custodial sentence should be imposed on the contemnor as a personal deterrence and also to deter other police officers, officers of the Court or other persons who may be required as witnesses. Penalties imposed for contempt in previous cases ranged between K50 to K1,000 fine. In one case, the contemnor was sentenced to one month imprisonment which sentence together with the conviction were later quashed on appeal by the Supreme Court.

It is noted that these penalties were imposed in the 1980's except the last case referred to. In my view, punishment for contempt, especially contempt in the face or hearing of the Court should be severe to deter police officers who are witnesses or any other witness for that matter, so that they cannot dictate the calendar of the Court or that they would expect the Court to adjourn to suit their conveniences. Police Officers who are witnesses or any witness for that matter should be warned in no uncertain terms that they cannot flout the authority of the Court nor can they display gross disrespect or cause undue delay and inconvenience to the Court. In saying this I believe that the significant consideration here is not contempt of the Judge or the Court who administers justice. It is justice itself that is flouted by the contempt. To illustrate this, I refer to two quotations Salmon, L.J. (as he then was) said in Jennison v Baker [1972] 2 QB 52 at 61:

"Contempt of Court is an unfortunate and misleading phrase. It suggests that it exists to protect the dignity of the Judges. Nothing could be further from the truth. The power exists to ensure that justice shall be done. And solely to this end, it prohibits acts and words tending to obstruct the administration of justice." 

Later on in A.G. v Leveller Magazine Ltd [1979] AC 440, Lord Diplock said,

" ..... My Lords, although criminal contempt of court may take a variety of forms they all share a common characteristic. They involved an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by the contempt of court, not the individual court or Judge who is attempting to administer it" (my emphasis).

In this case, I am of the view that the contemnor had interfered with the due administration of justice. As it were, the trial was delayed and the Court's time was wasted. Almost every day contempt of court is committed by CIS Officers not bringing accused persons in time for trials, lawyers failing to appear on time, witnesses delay in attending to give evidence or their disappearance in criminal trials etc. etc. In my view, if the Court deserves or demands the respect it is owed then it is time that all forms of undue interferences with the administration of justice be seriously addressed and eliminated so that its authority and the due administration of justice are not flouted continuously.

Looking at the sentences imposed in the cases I have referred to above, I am of the view that sentences should be increased although I appreciate that each case of contempt is to be treated on its own merits. Where the contempt involves a police officer or a lawyer, the Court should be very stern in its sentencing policy.

I therefore consider that the contemnor in this case Constable Corney Winjan should be given a custodial sentence. Accordingly, I sentence him to 6 months imprisonment in hard labour, but order that the sentence be suspended on the following conditions.

1.	That he enters into a recognizance in the sum of K300.00 cash surety to keep the peace and be of good behaviour for 12 months.	
2.	That he finds two guarantors who must pay the sum of K200.00 each as surety to comply with the conditions.	
3.	That he be committed to prison until the sureties are paid.	
4.	That he shall not consume alcohol during the period of bond.	
5.	That he shall not patronise any licensed premises including police clubs during the period of bond.	

Lawyer for State: Public Prosecutor
Lawyer for Contemnor: John Yamboli