Koroka v Kapal [2011] PGNC 112; N4384 (19 September 2011)

N4384

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 834 OF 2006

BETWEEN

ROY KOROKA
Plaintiff

AND

MICHAEL KAPAL
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail, J
2008: 28th March, 29th April
2011: 19th September

CIVIL CONTEMPT OF COURT - Application for contempt of court - Court order - Directing release of motor vehicle - Breach of - Disobedience of - Evidence of - Circumstantial evidence - Guilt must be the only rational inference drawn - Release of motor vehicle to plaintiff - Allegations of conspiracy to breach court order - Existence of two conflicting court orders - Conflicting legal obligations - Whether act of contempt established beyond reasonable doubt - National Court Rules - Order 14, rule 42.

Cases cited:

Peter Luga -v- Richard Sikani as Commissioner of CIS & The State (2002) N2285
The State -v- Tom Morris [1981] PNGLR 493
Paulus Pawa -v- The State [1981] PNGLR 498

Counsel:

Mr Marcus Nandape, for the Plaintiff
Mr Paulus Kunai, for the Defendants

JUDGMENT ON VERDICT

19th September, 2011

1. MAKAIL, J: This case involves a motor vehicle described as a Toyota land-cruiser, green in colour and bearing registration no EAD 458, engine no, IHZ-9260308. The plaintiff is the owner of the motor vehicle. The Minj police impounded it after it was allegedly involved in a fatal road accident in March 2006 along the Highlands Highway near Minj. As a result of the accident, it is alleged, one of the passengers died.

Brief Facts

2. The first defendant was the Police Station Commander of Banz police station at the time of the commission of the alleged contempt of Court. Presently, he is the Police Station Commander of Minj police station and comes from Minj in the Western Highlands Province.

3. It is alleged there is a District Court order of the Minj District Court of 20th March 2007 ordering the motor vehicle to be impounded pending the hearing of criminal charge(s) laid against the driver of the motor vehicle before that Court. Acting on the District Court order, the first defendant impounded the motor vehicle and when the plaintiff requested him to release it, he refused.

4. It is further alleged, the plaintiff was not aware of the District Court order and applied and obtained a Court order at Mt Hagen National Court on 05th December 2007 directing the first defendant to release the motor vehicle to him. Notwithstanding the National Court order, the first defendant failed or refused to release it to the plaintiff.

5. This prompted the plaintiff to file the application for contempt of Court on 28th January 2008 of the National Court order pursuant to Order 14, rule 42 of the National Court Rules. As the contempt of Court arose from that order, it is pertinent that it be set out in full and I set it out below:

"1. Leave is granted for the Plaintiff to proceed ex parte.

2. Until further Order the First Defendant is ordered to deliver up possession of the motor vehicle described as a Toyota Landcruiser, green in colour and bearing, Registration No EAD 458, Engine No IHZ- 0260308, Chassis No 0016828 to the Plaintiff forthwith,

3. Costs of this application be costs in the cause.

4. The Plaintiff is to serve all documents filed on the Defendant at least three (3) days before the return date.

5. The Order is returnable for mention on the 19th of February 2008". (Underlining mine).

6. The relevant part of the order is paragraph no. 2.

Amended Statement of Charge

7. The allegations set out in the amended statement of charge filed 05th March 2008 against the first defendant reads:

"(a) You have refused to release the Plaintiff's motor vehicle described as a Toyota Lancruiser, green in colour and bearing Registration No EAD 458, Engine No IHZ- 0260308, Chassis No 0016828 as ordered by the Court on 05th December 2007 after service of the Order on you.

(b) You have also ignored a reminder letter sent by the Plaintiff's Lawyers on 18th December 2007 to comply with the Order of the National Court made on 05th December 2007.

(c) You have conspired and or encouraged other people to interfere in the enforcement of the Order of 05th December 2007 by seizing the vehicle from the Plaintiff's driver after you released the vehicle to the Plaintiff on 1st March 2008."

Arraignment of First Defendant

8. On 28th March 2008, the first defendant was arraigned and he denied all the charges and the matter proceeded to trial. At the start of the trial, the plaintiff withdrew charges (a) and (b) of the amended statement of charge on the grounds that the first defendant had complied with the Court order when he released the motor vehicle to the plaintiff. The trial proceeded on charge (c).

Plaintiff's Evidence

9. The plaintiff relied on the affidavit of Pepsi Koroka sworn and filed on 05th March 2008 (exhibit "D1"). Pepsi Koroka also gave oral evidence and was cross-examined by counsel for the defendants. He was the only witness for the plaintiff. It is his evidence that on 01st March 2008, he went to Banz police station and the first defendant released the motor vehicle to him. The first defendant left and with the assistance of another policeman, he tried to start the motor vehicle but it did not start. After a while, it started and he drove it to Mt Hagen.

On the way, he was held up between Banz and Kujip Tea Plantation by a group of people whom he said were relatives of the deceased who had initially laid the complaint for the detention of the motor vehicle. He was also assaulted and the motor vehicle was removed from him.

10. He believed the first defendant had tipped off the relatives of the deceased to put up the road block and remove the motor vehicle from him because somebody called him on his mobile phone in the evening about the motor vehicle. He said the only person who knew his mobile phone number was the first defendant. No-one else from the area knew his mobile phone number and the arrangement to pick up the motor vehicle from Banz police station that day.

Defendants' Evidence

11. The defendants relied on the affidavit of the first defendant sworn on 20th March 2008 and filed on 26th March 2008 (exhibit "D1"). The first defendant also gave oral evidence and was cross-examined by counsel for the plaintiff. It is his evidence that on 28th February 2008, he was summonsed before the Mt Hagen National Court to answer a charge of contempt of Court and was directed by the Court to release the motor vehicle to the plaintiff. Following that, he received a telephone call on his Digicel mobile phone from Pepsi Koroka to arrange for pick up of the motor vehicle and he told him that he could pick it up at Banz police station.

12. They went to Banz police station together and reported to the duty officers First Constable William Mond and First Constable David Du'u. They told them that they were to pick up the motor vehicle as directed by the National Court. The two police officers released it to Pepsi Koroka and he towed it away. An entry was made in the daily occurrence book to confirm that it was released to the owner.

13. He then proceeded to Minj police station to attend to a fatal road accident at Wara A1 Bridge along the Highlands Highway. About an hour later, Pepsi Koroka called him on his mobile phone and reported that he was held up at Kudjip by some people and needed his assistance. He told him that he was engaged in a complaint and had no spare police vehicle to assist him right away but would do so when he finished and a police vehicle was available.

14. Following that conversation, he did not hear from him until 26th March 2008 when he was served with a summons to appear before the National Court in relation to the charge of contempt of Court. He denied giving Pepsi Koroka's mobile phone number to the relatives of the deceased. This is because he did not know Pepsi Koroka's Digicel mobile phone number and did not have it in his mobile phone, although he did receive two telephone calls from him regarding the release of the motor vehicle. He has no interest in the matter and simply detained it based on the District Court order of 20th March 2007. He produced a copy of the District Court order of 20th March 2007 which was marked as exhibit "D2".

Assessment of the Law and Evidence

15. The facts of this case establish that this is a contempt of Court by disobedience of (or refusal to comply with) an order of a Court. Therefore, the rules of evidence and procedure applicable to criminal trials ought to be used. The onus of proof is on the plaintiff, as the party preferring the charge of contempt of Court, to establish it against the first defendant, and the burden of proof is beyond reasonable doubt: see Peter Luga -v- Richard Sikani as Commissioner of CIS & The State (2002) N2285.

16. Has the plaintiff established the charge beyond reasonable doubt? The plaintiff's case is that, the first defendant conspired with the relatives of the deceased to hijack the motor vehicle from the plaintiff following its release from Banz police station. Therefore, he must establish beyond reasonable doubt that the first defendant conspired with the relatives of the deceased to hijack the motor vehicle from the plaintiff following its release from Banz police station. If proven, it will establish that the first defendant interfered with the enforcement of the Court order.

17. There is no direct evidence to establish the allegation of conspiracy and it has been conceded by plaintiff's counsel in submissions that the evidence is circumstantial. It is circumstantial because no-one saw and heard the first defendant talking to the relatives of the deceased and planning the hold-up of the motor vehicle.

18. Nonetheless, the plaintiff's counsel submitted the evidence of Pepsi Koroka is sufficient for the Court to rely on to find that the first defendant conspired with the relatives of the deceased to hold-up the motor vehicle, in that, the first defendant was one of the police officers who released the motor vehicle to Pepsi Koroka that day and he knew that Pepsi Koroka would be driving past Kudjip to Mt Hagen. That is why he informed the relatives of the deceased to put up a road block and hijack the motor vehicle that day.

19. He further submitted the conspiracy theory is credible and can be inferred from the circumstances of the case because no-one from the area knew Pepsi Koroka's mobile phone number except the first defendant and it is interesting that prior to the hold-up, Pepsi Koroka received a telephone call on his mobile phone from someone who threatened him not to remove the motor vehicle from the police station. However, I am not satisfied that the evidence is sufficient to find that the first defendant had conspired with the relatives of the deceased to hijack the motor vehicle from Pepsi Koroka.

20. The law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the Court is whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw: see The State -v- Tom Morris [1981] PNGLR 493 and Paulus Pawa -v- The State [1981] PNGLR 498.

21. I adopt this principle in this case and after considering all the circumstances of the case, I am not satisfied that the guilt of the first defendant is the only rational inference to be drawn here because there are at least two possible reasons for the hold-up of the motor vehicle, which in my view, have not been sufficiently disproved by the plaintiff. First, Pepsi Koroka said the first defendant was the only person who knew his mobile phone number but he did not say how and when the first defendant came to know his mobile phone number. He did not say he gave his mobile phone number to the first defendant. So how did he know that it was the first defendant who knew his mobile phone number and gave it to the relatives of the deceased and told them of the release of the motor vehicle?

22. In my view, it is not sufficient to say that because Pepsi Koroka spoke to the first defendant on his mobile phone prior to the hold-up, it is sufficient for the Court to infer that the first defendant knew Pepsi Koroka's mobile phone number and gave it to the relatives of the deceased.

23. This aspect of the evidence is crucial to the plaintiff's case because it is not disputed that on that day, there were two other police officers present at the police station when the motor vehicle was released to Pepsi Koroka. So there is a possibility that it could have been one of them or both of them who had informed the relatives of the deceased of the release of the motor vehicle. As for the first defendant, he said, as soon as the motor vehicle was released to Pepsi Koroka, he left to attend to a fatal road accident along the Highlands Highway and knew nothing about the hold-up until he received the call from Pepsi Koroka who informed him of the hold-up.

24. Secondly, it could have been one of those hold-ups along the highway that day and plaintiff's motor vehicle happened to be passing by at that time and got entangled in it. This is a possibility because Pepsi Koroka did not identify the persons involved in the hold-up as being relatives of the deceased. He assumed they were because the time and location of the hold-up was in close proximity to the time and location of the release of the motor vehicle. Be that as it may, I cannot rule out the possibility that it was one of those highway hold-ups and had nothing to do with the first defendant.

25. The plaintiff's counsel also submitted that the first defendant did nothing in terms of complying with the Court order when it was served on him, in so far as the release of the motor vehicle to the plaintiff was concern. He submitted the fact that there was another Court order from the District Court ordering the impounding of the motor vehicle did not absolve the first defendant from complying with the National Court order. He should have complied with the National Court order as it was issued by a higher Court and released the motor vehicle. As he did not, and impounded it until its release on 01st March 2008, it demonstrated that he deliberately disobeyed the National Court order.

26. I note the District Court order was issued on 20th March 2007 and the National Court order was issued on 05th December 2007, some 9 months apart and it is obvious the two Court orders were conflicting; the District Court ordered the impounding of the motor vehicle and the National Court ordered its release. Of course, it may be argued that the first defendant had the opportunity to bring the two conflicting Court orders to either of the Courts and possibly ask for one of them to be set aside in order to release him from two conflicting legal obligations.

27. However, leaving that aside, he was caught in between so to speak and decided to comply with the District Court order. As a result, he held onto the motor vehicle. In my view, his explanation is reasonable and it goes to support his defence that he has no interest in the motor vehicle such that it would give him a reason to conspire with the relatives of the deceased to hijack it upon its release from the police station. For this reason, I am not satisfied the first defendant's actions were a deliberate act of disobedience of the National Court order.

Conclusion

28. Given that there are two possibilities open to the Court in relation to the hijacking of the motor vehicle and the existence of two conflicting Court orders, I am not satisfied the plaintiff has established that the first defendant deliberately and wilfully interfered with the enforcement of the Court order.

Order

29. I find that the charge of contempt of Court against the first defendant has not been proven beyond reasonable doubt. I return a verdict of not guilty and accordingly acquit him.

Verdict: Not guilty.
____________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the Defendants