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National Court of Papua New Guinea |
[IN THE NATIONAL COURT OF JUSTICE]
OS 503 of 2001
PETER LUGA
Plaintiff
RICHARD SIKANI
COMMISSIONER, CORRECTIONAL SERVICES
First Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani : Sakora J
2002 : 11, 13, 18 & 25 June
01 October
CONTEMPT – Contempt of Court – Disobedience of court order – What constitutes – Order directing restoration of officer to the payroll and payment of lost wages and entitlements – Order preventing demotion and transfer of officer – Obligation to obey orders and directions until discharged or set aside – Contempt established.
CONTEMPT – Contempt power – Source and purpose of – Procedural safeguards – Onus and standard of proof – Punishment for contempt – Power and scope of – Constitution, ss 37(2) & (4), 160 (2), 163 (2), 225, Sch. 2.2., National Court Rules, O 14, rr 37 – 40, 41, 42, 43, 45, 49 – 50; O 16, r 3.
Cases Cited:
The following cases are cited in the judgment:
Re Passingan Taru [1982] PNGLR 292.
Re Awaita [1985] PNGLR 179.
Robinson v. The State [1986] PNGLR 307
Yap v. Tan [1987] PNGLR 227.
Poka v. The State [1988] PNGLR 218
Ross Bishop & Ors v. Bishop Bros. Engineering Pty Ltd & Ors [1988-89] PNGLR 533
Paul Metta v. The State [1992] PNGLR 176
Marko Iatinata v. Denison Toiwat & Pennington Valaun [1994] PNGLR 568.
The State v. Foxy Kia Tala [1995] PNGLR 303.
The State v. Lucas Sasoruo (Unreported, N1192 of 1996)
The State v. Raymond Tupundu (Unreported, N1536 of 1996).
Leto Pup v. Yangao Mara (Unreported, unnumbered of 3 April 1996)
Attorney-General & Ors v. Dr Pirouz Hamidian-Rad (Unreported, SC 618 of October,1999)
Chuck v. Cremer [1846] EngR 924; (1946) 47 ER 820.
Ex Parte Robinson [1873] USSC 57; 86 US. 505,510 (1873).
Helmore v. Smith [1887] UKLawRpCh 70; (1886) 35 Ch D 436.
Ambard v. A-G for Trinidad & Tobago [1936] AC 3222.
Hadkinson v. Hadkinson [1952] All ER 567.
A-G v. Times Newspapers [1974] AC 273
Putnin (as Liquidator of Maff Investments P/L (in Liquidation) v. Fuller (1991) 3 WAR 546.
Texts:
The following texts are referred to in the judgment:
The Law Reform Commission (Australia) Report (No. 35)
On Contempt (AGPS, Canberra, 1987)
Halsbury’s Laws of England (4th ed., Vol. 9, 1974).
Constitution of the Independent State of Papua New Guinea.
National Court Rules.
Oxford Dictionary of Law (4th ed., 1997)
Osborn’s Concise Law Dictionary (6th ed)
Counsel:
A. Baniyamai for the Plaintiff.
M. Kua for the Defendants.
01 October, 2002
SAKORA J: On 11 and 13 June 2002, I heard an application by the plaintiff seeking orders for contempt of court and punishment for such against the defendant. The application was moved pursuant to a Notice of Motion filed 23 May 2002, and pursuant also to Order 14 (Division 6) of the National Court Rules (NCR). And, as required, a Statement of Charges was duly filed and served personally on the defendant together with the Notice of Motion.
It is necessary that the Statement of Charges be set out in full, and this is done so as follows:
Statement of Charges.
In support of the Statement of Charges and the Motion, the plaintiff swore to and filed an affidavit on 22 and 23 May 2002 respectively. In addition the plaintiff referred to and relied on the supporting affidavit of his counsel sworn and filed 31 May 2002 together with his own subsequent affidavit sworn and filed on 7 June 2002. Further support for the plaintiff’s case was sought from or by the subpoenas that had been duly served on the following officers of the Correctional Services: Messrs Phillip Eka, Martin Balthasar and Charles Farari, and Mrs Sibona Daton.
It is noted that after close of evidence for both parties and before I heard submissions from counsel, the plaintiff was served with a Special Payment Advice (SPA) on Sunday 16 June 2002, which action effectively, according to his counsel, ceased or removed him from the Correctional Services payroll. The SPA was dated 14 June 2002.
Upon the Court resuming on 18 June 2002 learned counsel for the plaintiff drew the attention of the court to the above-stated latest developments, this new turn of events in this matter, and, under the circumstances, applied to have the case re-opened to enable evidence of these to be adduced. Whilst not disputing what had happened to the plaintiff as briefly outlined by his counsel (supra), learned counsel for the defendant objected to the application to re-open and adduce evidence, contending that the "latest developments" were not relevant to the contempt proceedings.
I overruled the defendant’s objection on the basis that the recent events as adverted to by counsel was indeed relevant to the allegations the subject of the proceedings. The parties were then directed to file and serve on each other any affidavits that they may need to rely on. On 25 June 2002 the case was re-opened and tried, and the decision has been reserved till now.
Background to the Contempt Charges
This contempt proceedings arises directly from the decision of the National Court in an application for judicial review pursuant to Order 16 NCR. The application for leave to apply for judicial review was initiated by the filing of an Originating Summons and the accompanying Notice of Motion on 15 August 2001. An amended Notice of Motion was filed the very next day 16 August 2001, seeking the necessary leave under Order 16 r 3 NCR.
It is noted that before the hearing of the leave application Consent Orders were granted on 17 August 2001 restraining the defendants and their agents "from taking any disciplinary action against the plaintiff and from evicting the plaintiff and his family from the plaintiff’s current residence at Corrective Institution in Bomana pending the substantive hearing".
Leave was granted on 10 September 2001 and duly entered on 25 September 2001. The interim injunctive orders of 17 August 2001 (supra) were extended by the orders granting leave till the substantive review hearing. On 5 April 2002, the Court heard the substantive application for judicial review which sought the following main orders for relief:
The learned trial judge decided in favour of the plaintiff and granted the application on 22 April 2002 with the following orders:
Service and notice of the court orders
The orders were duly entered on 1 May 2002. The very next day 2 May 2002 the orders were duly served on the defendants’ lawyer, the Solicitor-General (affidavit of service of John Apini sworn 14 June 2002). The first defendant was served personally with the subject court orders on 8 May 2002 at the Correctional Services Headquarters (affidavits of Richard Charles Sikani sworn 28 and filed 29 May 2002, sworn and filed 24 June 2002; affidavit of Mrs Sibona Daton sworn 7 and filed 18 June 2002; and affidavit of Allan Baniyamai sworn and filed 31 May 2002, annexure "C"). On 15 May 2002 the plaintiff’s lawyers wrote to the Solicitor-General upon being instructed that the defendants had not complied with the terms of the 22 April 2002 court orders, at the same time enclosing a copy of the orders. The letter and the orders were also copied to the OIC Salaries for the Correctional Services (affidavit of the plaintiff sworn 22 and filed 23 May 2002, annexure "B").
The Law
Respectfully borrowing from The Law Reform Commission (Australia) Report (No. 35) on CONTEMPT (AGPS, Canberra, 1987), Contempt of Court is a doctrine of English common law which has become part of our laws, the underlying law (pursuant to Sch. 2.2. Adoption of a common law, Constitution), according to which our courts are "empowered to inflict summary punishment on those who interfere with the administration of justice". The Report summarises the law on the subject from Halsbury’s Laws of England (4th ed., Vol. 9, 1974).
The Report lists the principal types of conduct which may constitute contempt as follows:
Statutory provisions prohibit similar types of interference with the proceedings of tribunals and commissions. Counsel would no doubt be aware of some unsuccessful attempts in this jurisdiction to exercise contempt powers for matters covered by s 225 Constitution: provision of facilities, etc. for Constitutional offices and officeholders.
The Constitution vests contempt powers on the two superior courts (the Supreme and National Courts of Justice) to punish offences against themselves under ss 160(2) and 163(2) respectively. Similar language is employed in these provisions to describe the power:
(2) The ... Court is a superior court of record and accordingly subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.
This is of course inherent power translated into statutory form under the Constitution (and ordinary legislation creating and vesting powers on tribunals and commissions). The courts, therefore, have undoubted powers to compel observance of their processes and obedience of and compliance with their orders and directions. These powers are inherent (supra) in the sense that they "are necessary attributes to render the judicial function effective in the administration of justice". Expressed in another way, the power to punish for contempt is inherent in the judiciary. The contempt power enables the courts to perform their functions without interference, to control courtroom behaviour and to enforce orders and compel obedience. The doctrine as applicable in the United States demonstrating the inextricable relationship between Courts and their contempt power was notably stated in Ex Parte Robinson, [1873] USSC 57; 86 US. 505,510 (1873):
The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the administration of justice. The moment the courts of the U.S. were called into existence and invested with jurisdiction over any subject, they became possessed of this power.
Although persons found guilty of contempt are generally punished by the courts in much the same way as criminal offenders, the law on contempt has a number of special features which distinguish it from the ordinary criminal law. These can be conveniently summarised hereunder as follows:
In this case the Court is concerned with the fourth category of contempt (supra): the failure (or refusal) to obey or comply with an order of the court. This is the "disobedience contempt". Thus, invoking the court’s inherent powers in respect of this involves seeking the imposition of sanctions for the purpose of enforcing orders made by, and undertakings given to, courts, and for the punishment of disobedience to such orders.
It should be mentioned that proceedings for "disobedience contempt" most commonly arise out of a failure to comply with an order (or orders) which is (or are) of such a nature that it (or they) can only be obeyed (or, indeed, disobeyed) by the person(s) to whom it is (or they are) directed.
Further to what has been said (supra) about mens rea for liability, it can be emphasised here that the mental element necessary for this category of contempt is simply that the disobeying (or refusing) party intended the conduct constituting the disobedience. There is, therefore, no need or obligation for the applicant/plaintiff to demonstrate that the disobeying party intended to disobey or to have made no reasonable attempt to obey. An act or omission may be intentional, reckless, careless or quite accidental and totally unavoidable. It has to be acknowledged that an intentional act may be done with or without an intention to disobey the order, and with or without an intention to defy the court.
What constitutes contempt (4th category).
The Supreme Court case of The Attorney General & Ors v. Dr Pirouz Hamidian-Rad (Unreported SC 618 of September/October 1999) defined, inter alia, what constitutes contempt in circumstances of acts done or comments made or published in relation to particular proceedings in a court of law. The court referred to and relied on the classic definition provided by Lord Diplock in the oft-cited decision in A-G v. Times Newspapers [1974] AC 273, which I respectfully reproduce hereunder (at pages 307 and 308) and adopt here:
Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.
To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately - the particular interest of the parties to the case.
Further assistance and reliance was obtained (by the Supreme Court) from the Privy Council case of Ambard v. A-G for Trinidad & Tobago [1936] AC 322 where (at pages 334 – 335) their Lordships said this:
It will be sufficient to apply the law as laid down in Reg v Gray [1900] 2QB 36 by Lord Russell of Killowen CJ: ‘Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke characterized as ‘scandalizing a Court or a judge’.
Those decisions of course reflect the classic common law definition of contempt of court as "an act or omission calculated to interfere with the due administration of justice": see for example, Bowen LJ in Helmore v Smith [1887] UKLawRpCh 70; (1886) 35 Ch D 436 at 455.
It should be mentioned here that the common law on the subject was somewhat enhanced by codification under the Contempt of Court Act 1981 (UK), making it a statutory contempt to publish to the public, by any means, any communication that creates a substantial risk that the course of justice in particular legal proceedings will be seriously impeded or prejudiced, if the proceedings are active: Oxford Dictionary of Law (4th ed., 1997). This definition also states that such publications constitute strict liability contempt, in which the intention to interfere with the course of justice is not required . . .
Osborn’s Concise Law Dictionary (6th ed. by John Burke) defines contempt of court as: (1) Failure to comply with an Order of a superior court, or an act of resistance or insult to the court, or the judges. (2) Conduct likely to prejudice the fair trial of an accused person; punishable by fine or committal to prison.
The case before me involves circumstances envisaged by the fourth category of contempt (supra), disobedience of orders of court. In relation to what constitutes contempt in this sense, I refer to the West Australian case of Putnin (as Liquidator of Maff Investments P/L (In Liquidation) v. Fuller (1991) 3 WAR 546, and respectfully adopt the principles that were enunciated there. The respondent sought an order to commit the applicant to prison for contempt of Court for failing to comply with an order for discovery within the time period ordered. The applicant swore an affidavit giving the reasons why there was a failure to comply with the order. It was held there that "casual, accidental or unintentional disobedience to an order will not justify an order for committal, for which wilful disobedience must be shown" (headnotes). (underlining mine).
It will be appreciated that most cases of contempt of court so far in this jurisdiction involve judges faced with behaviour by lawyers in connection with proceedings in court. These have included a lawyer not turning up (absent) on a set date to represent a party at a trial: Re Awaita [1985] PNGLR 179; Poka v. The State [1988] PNGLR 218; The State v. Raymond Tupundu (Unreported, N1536 of 1996); and The State v. Lucas Sasoruo (Unreported, N1192 of 1996). The case of Robinson v. The State [1986] PNGLR 307 involved the using of critical language about a Judge in the vicinity of the Court but not in the presence or within the hearing of the Judge.
Contempt proceedings have also involved failure of witnesses to be present in court to give evidence: The State v. Foxy Kia Tala [1995] PNGLR 303; and Re Passingan Taru [1982] PNGLR 292.
There have not been many cases involving "Disobedience contempt" in this jurisdiction. In the case of Yap v. Tan [1987] PNGLR 227, Hinchliffe J had to consider failure to deliver up certain property of a company to an appointed receiver and manager pursuant to directions in the Court order. After canvassing the pertinent case law, the learned judge held that (headnotes):
Where an order is made by a court of competent jurisdiction it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the order believes it to be irregular or even void.
His Honour was of course adopting and applying the law as enunciated in the English cases of Hadkinson v. Hadkinson [1952] All ER 567 and Chuck v. Cremer [1846] EngR 924; (1846) 47 ER 820, as I respectfully do likewise in this case. It is, therefore, worth (and instructive) repeating here what Romer LJ said in the former case (at 569):
It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.
His Lordship then proceeded to cite with approval (ibid) what Lord Cottenham LC said in the latter case:
A party, who knows of an order, whether null or void, regular or irregular, cannot be permitted to disobey it.. . . It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.
The learned Lord Chancellor’s cited pronouncement is, with respect, most pertinent to the factual circumstances before me now. And I find great comfort and re-assurance in adopting and applying these to the facts of this case.
The Supreme Court in Ross Bishop and Ors. v. Bishop Bros Engineering Pty Ltd and Ors. [1988-89] PNGLR 533 pronounced the law of Papua New Guinea (PNG) on proceedings for contempt of court arising from disobedience of court orders. And this is reproduced hereunder (from the headnotes) as follows:
In another "disobedience contempt" case Akuram AJ (as he then was) referred to these cases and applied the principles enunciated there: Pius Mark v. Korali Iki (Unreported N 1364 of 8 September 1995). That case involved disobedience of a District Court order to vacate premises and to remove or destroy any improvements made on the land. His Honour found contempt proven after declaring that the National Court had unlimited jurisdiction and inherent power to watch over the proceedings of inferior courts and to prevent persons from interfering with the course of justice in such courts.
Finally three other cases should be mentioned, if only to complete the picture, as it were, on the various aspects of the law here. The first of these in the case of Paul Metta v. The State [1992] PNGLR 176 which involved the imprisonment of a Government transport officer in a province after the circuiting judge found him guilty of contempt for failing to provide a motor vehicle (as required and requested) at the airport for the judge’s use. The Supreme Court granted the officer’s appeal, ruling that such failure is not per se contempt of court.
There is the case of Marko Iatinata v. Denison Toiwat & Penington Valaun [1994] PNGLR 568, which involved imprisonment by the District Court of a judgment debtor who had made various attempts to part-pay the debt. The last case is that of Leto Pup v. Yangao Mara (Unreported National Court decision of 3 April 1996), which concerned the failure of a clerk of the District Court not entering the Notice of Appeal, the Recognizance on Appeal and giving copies of these to the Registrar of the National Court and the parties concerned. It was held that this failure may constitute a civil contempt of the fair administration of justice and may be punished as a criminal contempt.
Onus and standard of proof
In relation to establishing the allegation(s) of contempt of court by disobedience of (or refusal to comply with) an order or direction of a Court, the rules of evidence and procedure applicable to criminal trials ought to be used. Because of the open-handed power to punish (or sanction) pursuant to s 37(2) Constitution (supra), the evidentiary burden of proof lies with the applicant, the accuser: Yap v. Tan (supra). And the standard of proof required to discharge this onus is, as established in the case law, the very onerous one of proof beyond reasonable doubt: Ross Bishop v. Bishop Bros. Engineering (supra). Needless to say, if at the end of the contempt proceedings the Court is left with any lingering doubt as to the liability or guilt of the contemnor, then the Court must extend and accord to the contemnor the benefit of that doubt as required by law.
Procedural safeguards
In view again of the summary nature of contempt proceedings with the accompanying open-handed power to punish, the same procedural safeguards as applicable to accused in criminal trials must apply. The starting point here is of course the protection accorded by s. 37 Constitution where, under sub-s (1):
Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
And these succeeding provisions operate, alongside (and subject to, in particular relation to conviction and punishment) s. 37(2) Constitution (supra). Of immediate pertinence are sub-ss (3) and (4), the former being expressed as:
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
The latter provision reads as follows (the applicable parts):
(4) A person charged with an offence –
- (a) shall be presumed innocent until proven guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
- (b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
- (c) shall be given adequate time and facilities for the preparations of his defence; and
- (d) . . .
- (e) . . .
- (f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
- (5) – (22)
To the preceding Constitutional safeguards must be added those safeguards largely regulated by the NCR under Order 14. The rules pertinent to the allegations of contempt under consideration here begin at r 42 and end at r 50. Rule 42 provides for the procedure generally insisting, inter alia, that an application for punishment for contempt must be made by motion on notice . ., as this proceedings have been. Rule 43 provides for the filing of a statement of charge, which must be personally served on the contemnor together with the notice of motion and the affidavits (r 44): r 45.
Rules 49 (punishment) and 50 (Discharge) provide for procedures upon finding of guilt.
The Evidence
It is to be stated at the outset here that the major events or incidents in the circumstances surrounding this contempt proceedings (following the 22 April 2002 Court orders) are not in dispute. That is to say, evidence of what did or did not take place, and when, are not in contention between the parties. But what is (or are) in contention relate to the explanations that have been offered by the defendants, more particularly the first, for what did or did not take place, and when.
A sealed copy of the 22 April 2002 orders was duly served on the first defendant, the Commissioner for Correctional Services, the legal and administrative authority who was intended and directed by the Court to give effect to these, on 8 May 2002. The orders had been entered on 1 May 2002, and the very next day 2 May 2002 these were duly served on the lawyers for the defendants.
As learned counsel for the defendants acknowledges in his submissions, those orders "were clear and unambiguous". Mr Kua also acknowledges that the plaintiff’s lawyers wrote several letters to the Commissioner requesting him to give effect to the terms of the orders. What counsel omits to mention is the fact also that on 15 May 2002 the plaintiff’s lawyers wrote to the defendants’ lawyer, the Solicitor-General (with Mr Kua being the directly responsible counsel) after being instructed of non-compliance with the terms of the orders. It is a fact also that on 24 April 2002, the plaintiff’s lawyers wrote to the Solicitor-General, once again requesting that the defendants comply with the orders of the Court. Another noticeable and convenient omission in the defendants’ evidence and counsel’s submissions is what action(s), if any, was taken by Mr Kua to advise the first defendant of the legal obligation to comply with those Court orders.
The evidence on behalf of the plaintiff in proof of the allegations(s) consisted of affidavits filed and served on the defendants (supra). Needless to say, this mode of evidence is in direct compliance with Order 14, r 44 NCR. It is noted that these evidence were admitted by consent, and the first defendant saw no reason (nor exercised his right) to cross-examine on the contents of the affidavit. Thus, by law, the depositions in the affidavits filed on behalf of the plaintiff must stand and be accepted by the court as unchallenged and incontrovertible evidence. And these evidence (as adverted to already) demonstrate the factual circumstances surrounding the grant of the 22 April 2002 orders, and what did or did not take place following the entry of those orders on 1 May 2002.
In support of the allegations(s) of contempt of court, the affidavit of learned counsel for the plaintiff (supra) deposes to how the Commissioner, first defendant, responded to the Court orders. The first indication of this (demonstrative of his reaction and attitude) is the 24 May 2002 letter he wrote to the plaintiff’s lawyers (Annexure "C" to affidavit of Allan Boleh Baniyamai, supra). In that letter, after advising that he became aware of the Court orders "which eventually passed on to the Correctional Service on 8th May 2002" he deposed that he had "read . . . and decided that we have immense evidence to make an application for "stay of this Court Order" against the Court Order O.S. No. 503 of 2001".
The first point to note, as demonstrative of the Commissioner’s general attitude to the entire matter, is his deliberate omission to acknowledge due personal service of the court orders on him (as required by law), as the authority responsible for the obedience of and compliance with the orders (he only admits personal service in his 28 May 2002 affidavit, paragraph 2). The second point to make in this respect is the absence of any reference to giving effect to the orders of the Court. The pre-occupation with ways and means to evade and avoid the due practical enforcement or implementation of the orders (that are directed at him) is well demonstrated in the letter.
The Court orders are "clear and unambiguous", his counsel concedes, and he himself admits "I have read through the Court Order . . ."; but the Commissioner’s immediate concern seems to be not with obeying and giving effect. The attitude is also one suggestive or indicative of delay and procrastination, if not complete indifference to the seriousness of his obligation. And there is no better way of demonstrating these than reproducing hereunder, in full, the remainder of the Commissioner’s letter:
As the Commissioner and Departmental Head was away for a week on official duty travel with the Honourable Minister for Correctional Service on New Guinea Island Gaols tour and just return (sic) to the office in Port Moresby (writing about himself in the third person).
I have read through the Court Order and decided that we have immense evidence to make an application for "Stay of this Court Order" and further go back to the National Court for substantial hearing.
This letter is just to give you Notice that I have provided detail (sic) evidence to the Solicitor General Office to file a "Stay Order" against the Court Order O.S. No. 503 of 2001.
Your law firm will be served when the State lawyers file the "Stay Order" in the National Court on your clients (sic) Court Order when finalised.
Just wait patiently as you will hear from the Correctional Service and the State lawyers shortly.
Do not rush into any immediate decisions on this matter because we have to properly argue in the National Court in this matter.
I ask that you hold your horses back as this is not the final race in the National Court as more are coming for you and your client.
The Court is entitled to ask, as indeed any reasonable member of the public conversant with the circumstances of this case is and may, is there any need to add anything more to these regarding the attitude of the first defendant vis-à-vis his legal obligations under the Court Orders? If anything, the requisite mental element is well demonstrated by the contents of this letter.
And what of the concluding part of the last paragraph? What is that all about? Is that not some threat (of whatever), if there ever was one? Because that does not seem to me to contain any hint of a beneficial promise!
It will be noted that the 22 April 2002 orders were not interim or interlocutory. They were final orders, and there was, therefore, nothing to go back to the National Court for. The only option left, if the defendants were aggrieved by the National Court decision and orders, was to go to the Supreme Court by availing of the mandatory legal and procedural requirements. And these do not take away or diminish the legal obligation of the Commissioner to give practical effect to the National Court orders, as the law clearly demands (supra, case law discussed). In any case, there had not been any initiatives towards formal challenge to the decision and orders by way of appeal. And Mr Kua, apart from noting that certain things happened (or were done) within the statutory 40 days time limit for instituting appeals to the Supreme Court, does not suggest that there had been any legal grounds for challenging the National Court decision and orders, nor, indeed, any instructions had been received in this respect.
The first defendant then responds to the initiation of the contempt proceedings by asserting that once he gave directions to the subordinate officers of the Service (who, incidentally, turned out to be very senior members of the Headquarters management team) after the service of the sealed copy of the Court order, that was the end of his responsibility or obligation. Therefore, according to him, he had complied with the orders of the Court. And this assertion is intended to be given support by his further assertion that he was away from the National Capital District (NCD) between 12 and 18 May 2002 on duty travel to the New Guinea Islands with the Minister. This is contradicted by the evidence of Mrs Sibona Daton (OIC, Salaries of the Correctional Services) who said she consulted the Commissioner about the Court orders on 16 May 2002, after being advised by Assistant Commissioner Martin Balthasar to "wait for the Commissioner’s approval". It is noted that subsequently Mrs Daton attempts to recant this sworn evidence by swearing and filing yet another affidavit that may have laid her open to possible prosecution for perjury (sworn 7 and filed 18 June 2002).
There is no other evidence to substantiate the period of absence from the office and the NCD. Even if there were, such absence would not, and does not, in any case, discharge or diminish the Commissioner’s direct legal obligation. The provision of correspondence and itinerary for travel (affidavit of Richard Sikani sworn 28 May filed 18 June 2002, Annexures "A" to "F" inclusive) is no substitute for real evidence of the travel, which would have been better demonstrated by documentation such as used airlines tickets and hotel receipts.
The Commissioner’s Executive Officer, Mr Phillip Eka, gave oral evidence upon subpoena. He is a Superintendent by rank, and he described his functions/duties as "basically ensuring that the Commissioner’s Office is properly managed and run administratively, basically". And when put to him by Mr Kua whether one of those involved the case of the Warder Peter Luga, he responded as: "Your Honour, yes. The matter is registered, brought to the Commissioner and he refers to me for further action".
An immediate query arises as to this aspect of the evidence: if the sealed copy of the orders were personally served on the Commissioner as required by law (and as confirmed by the Commissioner himself), then why does the orders need to be "registered" (whatever that means), before being referred to him (the Executive Officer). In any case, Mr Eka says the Commissioner "Instantly . . . directed me to direct Assistant Commissioner Personnel Management and Training to effectively carry out the Court Order", after making a footnote on the Order and signing it (Defence Exhibit "A"). He added that he also made a copy of the order "to ensure I make a follow up of the matters that are referred to various Assistant Commissioners".
Mr Eka acknowledged in his evidence that he read the content (sic) of the order, and that was "straight forward and we knew not to waste time. We went ahead".
This evidence of directing the responsible Assistant Commissioner, Mr Balthasar, is in direct conflict with what Mr Balthasar himself says. It is his sworn evidence that he became aware of the orders on 21 May 2002 and proceeded to instruct the OIC Pay Unit to give effect to the orders by raising (?) a note to her (Mrs Daton) on the same day. To put this in perspective, it seems, according to this evidence, that the actioning Assistant Commissioner and officer (Mr Balthasar and Mrs Daton respectively) only became aware of the order and direction to implement one month after the orders were made, 21 days after they were entered, some two weeks after personal service on the first defendant, and the same two weeks after Mr Eka supposedly advised Mr Balthasar (with a copy of the subject orders) of the Commissioner’s instructions or directions that the orders be given effect.
When asked in cross-examination when he (Mr Eka) "delivered the document to Mr Balthasar?", the response was: "Your Honour, it was on 8 May, the same day within half an hour. Same day which was served on us on 8 May, half an hour later issued the direction". Asked as to how he received the directions from the Commissioner, Mr Eka replied: "Your Honour, Commissioner gave me a verbal direction". And the witness continued as follows: And your Honour we sit very open, there is no closed doors. He handed over the order to me and directed me that this order has to be executed accordingly.
It will be noted that Mrs Daton said in her evidence that she was made aware of the Court orders on 16 May 2002, five days before what Mr Balthasar contends, and 8 days after what Mr Eka says.
Mr Eka’s evidence confirmed that Mr Balthasar’s office is in the same building, same office block, as those of the Commissioner and himself. There is other evidence before me that Mr Balthasar’s office is 15 metres away from the Commissioner’s and Mr Eka’s office (Mr Balthasar’s sworn evidence in cross-examination). It would appear that these are not offices, but rather desks or "work stations" (no doors, no cubicles) in designated areas of an open-plan office floor. Thus, it would appear from what has been described that all persons working in such an area would be within eye-sight (if not easy ear-shot) of each other.
Despite this work environment of an open-plan office space with all personnel in close proximity to each other, Mr Eka attempted to, in his sworn oral evidence, paint an administrative process that was circuitous at best, and cumbersome at worst. He described an administrative regime or culture that surely must be inimical to good, productive and responsive public administration. Does such a regime or culture exist at Correctional Services Headquarters or was Mr Eka’s evidence on this only an attempt at explaining away what is obvious to me already (as either a deliberate modus operandi set in motion or chronic procrastination (from causes within the persons of these State officers) to delay or evade and avoid giving effect to the terms of the Court orders?
In relation particularly to the relaying of the directions in respect of the Court orders, in view of the geography of the Correctional Services Headquarters office space at Mutual Rumana as described already, the evidence of the defendant and his Executive Officer contradict in all material respects the evidence of both Mr Balthasar and Mrs Daton.
The circuitous and cumbersome administrative culture at the Headquarters of the Correctional Services that Mr Eka, and indeed Mr Balthasar, would have this Court and the rest of the world believe was compounded by Mrs Daton’s evidence that she herself (on the same floor, building and office space) became aware of the Court orders on 16 May 2002, some 8 days after the Commissioner had been personally served. It is her evidence that she then sought assistance from her immediate superior, Mr Balthasar, who directed her to "wait for the Commissioner’s approval". So we have a situation where the Commissioner to whom the Court orders were directed for implementation of the terms of those orders has to give his approval. The National Court, a court of competent jurisdiction under the country’s supreme law, the Constitution, is subject to the approval of the Commissioner in relation to its orders and directions? Where does this come from? Where is the legal and Constitutional basis for this?
Mrs Daton confirmed that her "office" is about 15 metres from the Commissioner’s and that of Mr Eka’s and Mr Balthasar’s. Her evidence was also that, after Mr Balthasar’s direction to "wait . . .", she took the orders to the Commissioner himself on 16 May 2002, and enquired as to whether she should comply with its terms. She said that (in cross-examination) the Commissioner told her to "wait", thus directly instructing her to hold onto the orders (without actioning them) until he issued further instructions. This evidence of course contradicts the evidence of both the Commissioner and his Executive Officer about giving immediate effect to the orders.
Finally, it was her evidence that in the discharge of her direct responsibilities vis-à-vis salaries and entitlements of personnel such as Warder Peter Luga, she could do nothing about these without the Commissioner’s direction. In the end she raised the necessary documents (SPA and PVA) on 24 May 2002, and the plaintiff was paid on 30 May 2002.
It is of course a matter of record that the plaintiff had filed on his behalf Contempt Proceedings on 23 May 2002. It is evidence before me that the defendant wrote to the plaintiff’s lawyers the very next day, 24 May 2002 (affidavit of counsel for the plaintiff, supra), talking about "immense evidence" (whatever that may mean) and "stay orders" and "holding your horses back" etc.
The final witness for the defendants was Mr Charlie Farari, the Commanding Officer (Correctional Services Headquarters). He gave evidence that his office is located on the same floor in the same building as the other officers who gave evidence (including the Commissioner). He had also sworn and filed an affidavit (24 June 2002) deposing to the circumstances surrounding the suspension of the plaintiff by a Minute dated 29 May 2002 entitled Suspension without Pay. This Minute was under the hand of Mr Farari, as was the Notice of Suspension, without pay, and undated.
There is no evidence of any formal disciplinary charges ever having been preferred against the plaintiff and duly served.
First point to make in relation to this evidence, which was made necessary by the Court’s granting of the plaintiff’s application to re-open the case, is that Mr Farari lied on oath in Court on matters he deposed to, also under oath, in his 24 June 2002 affidavit. The documents annexed clearly demonstrate that the plaintiff had been suspended without pay, and without formal charges. The fact that certain complaints or allegations of a disciplinary and/or criminal nature have been made (or received) are recited or mentioned in a notice of suspension is no substitute for the formal preferring of the charge(s) and its service on the officer affected.
Whilst the facts demonstrate that Mr Farari works in the same Headquarters premises already described, he would have the Court believe that he was not aware of the plaintiff’s case. A Commanding Officer of the Correctional Services Headquarters who was not aware of a case involving one of his subordinate officers? To compound this attempt at what I might describe as insulting the intelligence of this Court, there is evidence that Annexure "C" to the affidavit of Allan Baniyamai (supra) was copied to Mr Farari in his official capacity, as indeed other senior Headquarters officers were.
Finally it is his evidence that the suspension of the plaintiff without pay (although he swore it was with pay) on 29 May 2002 was at the behest of the Deputy Commissioner (Operations), Mr Kelly Karella. On re-examination he, Mr Farari, conceded that he had no power to suspend anyone, though it was he who had signed the Notice of Suspension. Annexed to Mr Farari’s 24 June 2002 affidavit are photocopies of two pages of the National, a daily newspaper, the Wednesday 29 May 2002 edition, containing reports of news item titled: Court orders arrest of jail service chief. The news report covered the circumstances surrounding the issuance of Contempt proceedings against the Commissioner.
Suspension of the plaintiff was with immediate effect (29 May 2002), the notice having being served on him on 5 June 2002 (affidavit of Peter Luga sworn and filed 7 June 2002).
Conclusion
The law as cited and discussed is clear. And the factors that need to be demonstrated by evidence in order for an act or omission to constitute disobedience contempt have been succinctly declared in the Supreme Court case of Ross Bishop & Ors v. Bishop Bros Engineering (supra). Applying these factors, or principles, to the facts of this case, the findings of the Court are as follows:
In relation to the findings under paragraphs (1) and (2), the Court sees no need to discuss these any further, evidence that are undisputed (in fact readily acknowledged by and on behalf of the first defendant) establishing them beyond reasonable doubt.
In relation to the finding under pararaph (3), the discussion of the evidence amply demonstrate that, despite the Court orders having been personally served on him on 8 May 2002, no positive action was taken to give effect to the terms of those orders. There is evidence, discussed already, that the Commissioner only responded to the orders in the limited way he did after the plaintiff’s lawyers had instituted in this Court the Contempt proceedings. Before that, as discussed already also, the first defendant was concerned with avoiding, evading and challenging the validity of those Court orders. In this respect his evidence and the evidence of Messrs Eka and Balthasar cannot be believed. In their respective haste and over-anxiety they contradict each other!
The collective evidence of these three senior officers of the Correctional Services was a demonstration of a concerted exercise in evasion, explaining away, and denial of direct responsibility, which last behaviour or attitude is often aptly and colloquially described by the phrase passing the buck. Mr Eka’s evidence gave the impression that things were made up as he went along.
Mr Balthasar attempted to distance himself from the initial inaction by suggesting that the orders were not conveyed to him as expeditiously at the time the Commissioner and his Executive Officer had told the Court. In the process they contradicted each other, rendering their collective evidence as not worthy of credence. Basically, the purpose of their evidence, in my estimation, can properly be characterised as a weak attempt at damage control.
The Commissioner was directly responsible for giving due compliance and effect to all the terms of the 22 April 2002 orders. This responsibility, this legal obligation, did not cease with giving instructions to his subordinate officers. In a pyramidal administrative structure, applying good administrative concepts (or paradigms) such as delegation of powers and responsibilities, the ultimate responsibility and obligation, and indeed the primary duty, still remain with the person at the apex of that pyramid. No amount of excuses and denials of direct day-to-day oversight (of orders such as these in question) will discharge and/or dislodge that prime responsibility.
Envisaged in this administrative process is the operation of enabling or enhancing concepts or principles such as supervision and control. In the end the man (or woman) at the top is and must be held to be accountable. The Commissioner, the first defendant, was legally and administratively responsible and accountable! With power comes responsibility.
The first defendant woefully defaulted in the discharge of his responsibility under those orders. And this default was not innocent, it was not unknowing. It was deliberate, it was wilful. From the very outset of the service on him of the orders, there was displayed an attitude of arrogance, indifference and disrespect, concluding with suggestions of threats and intimidation. And his senior officers, more particularly Messrs Eka and Balthasar, were parties to these, with the principal aim, I am satisfied, of not giving practical effect to the orders of the Court.
In an attempt to explain away the first defendant’s blatant manoeuvres to question and avoid the terms of the orders, an embarrassingly cumbersome and circuitous administrative culture was put before the Court. So much so that the Court was left with the unavoidable impression that it was decidedly easy (a same day affair) to charge, suspend and take off the payroll an officer, but difficult and time-consuming, not to mention cumbersome, to comply with a Court order. Penalising people is executed with swift despatch, but to accord people their due rights and entitlements, it takes time and inclination!
It has to be noted that the Commissioner in his evidence made no denials, even a consistent series of denials, that he had acted improperly. This of course is yet another demonstration of an arrogant and indifferent attitude. This was well complemented, I would suggest, by his evasive and supercilious demeanour. His deliberate and wilful failure to give effect to the Court orders was no inadvertent mistake at all. The proceedings saw senior Headquarters officers, intent upon putting a favourable complexion on their Commissioner’s actions or omissions, were prepared to lie under oath to the Court.
The institution’s (the Correctional Services) legal and administrative responsibilities are directly and intimately concerned with enforcement of the law, with giving effect to the orders and directions of the Courts exercising competent jurisdiction over all who live or come here. If the Commissioner and his officers display disrespect and contempt for the Courts, and the orders and directions of the Courts, then what hope have we of having a safe and civil society that has respect for our laws that are intended to protect people and their properties?
Finally, the actions or inactions of the Commissioner as documented in the evidence before me (and canvassed here) satisfy me that these were motivated by personal factors rather than any concern for maintenance of order, discipline and good administration of the Service. There is evidence which I accept that the circumstances giving rise to the plaintiff’s application for judicial review had their genesis in the legal proceedings initiated by the State against Mr Balthasar. The State prosecuted the Assistant Commissioner, and the plaintiff, Mr Peter Luga, was the prime State witness against him.
And I accept that this personal vendetta extended to the events of or immediately prior to 29 May 2002, the more recent suspension of the plaintiff. These events have been sanctioned by the first defendant to take place following the initiation of this Contempt proceedings, and whilst these proceedings have been in progress before me. Apart from further demonstration of using threatening and intimidatory tactics against the plaintiff, and his lawyers also, they of course clearly suggest disrespect to and contempt for the Court proceedings, and the subject matter of the proceedings, the orders of 22 April 2002.
In the end result, it is the considered opinion and judgment of this Court that the first defendant, the Commissioner for Correctional Services, is guilty of the offence of Contempt of Court as charged, and is consequently convicted of this offence.
And as a further consequence, the Court makes the following orders:
_________________________________________________________________________
Lawyers for the Applicant : Stevens Lawyers
Lawyers for the Respondents : Solicitor-General
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