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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO. 61 & 64 OF 2018
BETWEEN:
MAINO MAINO and MANU MOMBI
Appellants
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent
Kimbe: Mogish J, David J & Kangwia J
2022: 28th March & 1st April
CONTEMPT OF COURT – appeal against conviction and sentence.
Cases Cited:
John Beng v The State [1977] PNGLR 115
Bernard Touramasong & Others v The State [1978] PNGLR 337
Norris v The State [1979] PNGLR 605
Re Contempt of Court; Re Assistant Registrar, Philip Kaumba (2004) N2763
Steven Loke Ume v the State (2006) SC836
Denden Tom & Anor v The State (2008) SC967
David Manning v Robert Romongi (2022) SC2197
Counsel:
Leslie B. Mamu, Public Solicitor, for the Appellants
Raphael Luman, for the Respondent
JUDGMENT
1st April, 2022
1. BY THE COURT: INTRODUCTION: This is a decision on a contested appeal against a judgment of the National Court sitting in Kimbe, West New Britain Province in proceedings OS No.502 of 2017, Ian Augerea as Registrar of the Supreme and National Courts v Maino Maino, Manu Mombi and Barnsley Ken brought under Order 14 of the National Court Rules. The appellants, Maino Maino (Maino) and Manu Mombi (Manu) and their co-accused, Barnsley Ken (Barnsley) were jointly charged with one count of contempt of court and all were convicted after a contested trial. They were convicted on 24 August 2018 and sentenced on 20 November 2018. They were each sentenced to pay a fine of K3,000.00 to be paid within three months or by 20 February 2019 and in default twelve months imprisonment in hard labour.
2. On 21 November 2018, Maino filed his Notice of Appeal and Application for Leave to Appeal Against a Decision of the National Court (Maino’s Notice of Appeal). On 5 December 2018, Manu filed his Notice of Appeal and Application for Leave to Appeal Against a Decision of the National Court (Manu’s Notice of Appeal). The appellants appeal against both conviction and sentence.
BRIEF BACKGROUND
3. The facts upon which the appellants were convicted are these. At the material time; Maino was an employee of the National Judicial
Staff Service (NJSS) employed as Security Supervisor with the National Court here in Kimbe; and Manu and Barnsley were Correctional
Officers attached to the Lakiemata Correctional Institution, West New Britain Province. They were officers of the court given the
nature of their respective jobs. On 16 May 2017, the appellants and Barnsley were at the Kimbe Law Courts cell block foyer. They
conducted themselves in a manner intended by design or by inference to demean and lower the integrity of the courts, the system of
administration of justice and the judicial system and consequently interfered with the due administration of justice by consuming
liquor or alcohol within the court premises in full view of the public and while the National Court sitting was in progress. By
their conduct, the appellants and Barnsley each and severally showed extreme disrespect to the Court and judges and their contemptuous
behaviour undermined public confidence in the judicial system.
GROUNDS OF APPEAL
4. In Maino’s Notice of Appeal, he relies on the following grounds:
1. the Judge Administrator removed him from the payroll;
2. the Judge Administrator had him charged for contempt of court;
4. the Judge Administrator was not impartial and was biased after administratively removing him from the payroll before conviction;
5. Key witness, Scholar Wakal’s evidence was discredited and therefore there was reasonable doubt on her evidence, but the trial judge disregarded that; and
6. The fine of K3,000.00 was excessive in the circumstances of the case.
5. At the hearing, Maino, did not pursue Grounds 1 to 4. We therefore consider that those grounds have been abandoned and dismiss them.
6. In Manu’s Notice of Appeal, he states that he was dissatisfied with his conviction and subsequent sentence because no material evidence was produced before the trial judge to sustain the contempt of court charge.
7. The grounds of appeal in both appeals are therefore crystalised as follows:
CONVICTION
Parties’ submissions
8. Mr. Mamu, Public Solicitor, for the appellants, submits that there was a reasonable doubt as to the safeness or satisfactoriness of the verdict in essence because; there was no evidence of alcohol being consumed by the appellants and Barnsley on the court premises; they were only drinking coke and pulpy juice; the witnesses for the Registrar assumed that they were consuming alcohol; no one tasted what was contained in the coke bottles; there was no rowdy, disorderly or misbehaving conduct by the appellants and Barnsley to suggest that they were consuming alcohol. As to the smell of alcohol, it was submitted that Steven Dube was unsure if Barnsley had consumed alcohol outside and walked into the court premises. The appellants therefore contend that the Court should exercise its powers under s.23(1)(a) of the Supreme Court Act and set aside the conviction on the ground that under all the circumstances of the case, the verdict was unsafe or unsatisfactory.
9. Mr. Luman for the respondent contended that the appeals against conviction should be dismissed as the trial judge correctly assessed the contested evidence on the consumption of alcohol by the appellants and Barnsley on the court premises in favour of the Registrar. Therefore, he said there was no reasonable doubt as to the safeness and satisfactoriness of the verdict.
Consideration
10. Section 22(a) and (b) of the Supreme Court Act provides that a person convicted by the National Court may appeal to the Court against his conviction on any ground that involves a question of law alone or on a question of mixed fact and law. Section 22(c) of the Supreme Court Act provides that a person may with leave of the Court appeal against his conviction on any ground of appeal that involves a question of fact alone or that appears to the Court to be a sufficient ground of appeal. There is no issue about the competency of the appeals on conviction.
11. Section 23(1)(a) of the Supreme Court Act provides that an appeal against conviction will be allowed where the Court considers that under all the circumstances of the case, the verdict is unsafe or unsatisfactory.
12. In other words, the court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed: John Beng v The State [1977] PNGLR 115, Bernard Touramasong & Others v The State [1978] PNGLR 337. In John Beng v The State, the following observation was made by the Supreme Court:
“On appeal against conviction....the Supreme Court must be satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed.”
13. In Denden Tom & Anor v The State (2008) SC967 at [27], the Supreme Court made this clarification:
“....... unless this Court is satisfied that, there is reasonable doubt as to the safeness and satisfactoriness of the verdict, the decision of the National Court cannot be easily upset. The issue of whether or not the conviction is safe and satisfactory can be determined by reference to the evidence that was before the Court, the treatment given to them by the trial judge and what use he made of them in terms of choosing what evidence to accept and what to reject with the reasons for doing so, his findings of fact with his reasons of his findings and the eventual decision on the appellants’ verdict.”
14. In support of the Registrar’s case, he relied on sworn oral testimonies and documentary evidence admitted into evidence without objection. The witnesses called were Steven Dube, Rebecca Tege, Scholastica Waka, Leo Hura and Eve Tugen. Except for Eve Tugen, all other witnesses were subjected to cross-examination. Documentary evidence was constituted by the:
15. We note from the transcript (pp 35-39 AB) that an affidavit of Rebecca Tege, the second witness called, was tendered and admitted into evidence, but no exhibit number was given by the trial judge. It may be due to inadvertence as there is no affidavit marked as Exhibit P2. The details of that affidavit as to the date it was sworn and filed are not captured in the transcript as well. The affidavit also does not form part of the exhibits collated in the respective appeal books. However, it would appear from the verdict that the trial judge considered the evidence contained in that affidavit. No issue has been raised about this at the hearing.
16. In contesting the charge, the appellants and Barnsley relied on sworn oral testimonies and documentary evidence. The witnesses called were Maino, Manu, Barnsley and Nelson Mou and they were all subjected to cross-examination.
17. Documentary evidence was constituted by the:
18. The trial judge found (p.77 AB) that the principal undisputed facts were:
19. The trial judge found (p.78 AB) that the main disputed facts were:
1. The time of the incident.
2. The type or nature of the drinks consumed by the appellants and Barnsley at the CB Foyer.
20. As to the time of the incident, the trial judge accepted the evidence of Steven Dube, Rebecca Tege and Scholastica Waka as highly probable and found that the appellants and Barnsley were at the CB Foyer from before lunch hour break to when the court adjourned for the day around 04:00 pm (p.78 AB).
21. In rejecting the evidence of the appellants and Barnsley, the trial judge (p.78 AB from lines 9 to 28 and from lines 37 to 39) said:
“Look at the next, the evidence and assessment of contested time of the incident. The contemnors spoke consistently of the only time Manu Mombi and Barnsley Ken being present together at the CB Foyer was from 3:45 pm. A short time earlier, around 3:30 pm or 3:40 pm, prisoner Paul Karl arrived at the CB Foyer. He offered Manu Mombi and Correctional Services warder Nelson Mou pulpy drinks. When Barnsley arrived five minutes or so later at 3:45 pm, the two warders offered him pulpy drinks. Another five minutes later about 3:45 pm, Maino Maino arrived at the CB Foyer and Nelson Mou gave him some coke. Before Maino Maino arrived at the foyer, Nelson Mou and Barnsley Ken had gone across to Walmart Trading opposite the court house where they bought three 500 ml bottles of coke. They then went across to the town market to buy betel nut. While having their drinks, security personnel Scholastica Waka asked them for some and they jokingly told her that they were having mixed drinks. They did this to dissuade her from approaching because she has a habit of joking with them and asking for food and drinks and cash.
I find the evidence of timing well drilled and told with incredible precision. The consistency of timing is the unravelling of their case, as the evidence was clearly calculated and rehearsed. This unfortunately resulted in miscalculations of time space and showed indifference to common sense...
Furthermore, the evidence of other timings of events is equally fallacious and unreliable.”
22. We have considered the evidence and find no error in the trial judge’s finding.
23. As to the type or nature of the drinks consumed by the appellants and Barnsley at the CB Foyer, the trial judge (p.79 AB from lines 30 to 40 and p.80 AB lines 1-8) said:
“The contemnors have denied drinking alcohol however they conceded that they had pulpy drinks given to them by prisoner Paul Karl and shortly after they said three 500 ml bottles of coke at the CB Foyer. Having accepted the Registrar’s witnesses’ evidence on the issue of time, I also find that the incident in question started before lunch hour and ended when the court adjourned for the day. The contemnors’ evidence that Maino Maino joined them at 3.50 pm after doing his routine check of the court building, court rooms and court officers, after closing doors, switching off fans, lights and air conditioners for the day is at best tantalising and wishful. It is clearly a make up story.
The records of the proceedings showed that the court adjourned shortly before 4 pm. Thereafter, court staff would normally tidy up before vacating the room. They are also responsible for locking up at the end of court sittings. In any case, responsible staff members would normally attend to those chores. Maino Maino said he did. Having accepted that Maino Maino joined Manu Mombi and Barnsley Ken around lunch time, they were most likely preoccupied with something that kept then at the same place until the court adjourned shortly after 4 pm.”
24. Scholastica Waka’s evidence that she could tell that the appellants and Barnsley were drinking or were drunk and she saw them mix hard stuff with coke in a 500 ml coke bottle (p.44 AB lines 13 to 39 and p.45 AB lines 1 to 15) was corroborated by Steven Dube’s evidence (pp.31 to 35 AB). Steven Dube stood next to or very close to Barnsley whose breath smelt of alcohol. Maino and Manu also smelt of alcohol (paras 4 and 5, Exhibit P1). Barnsley spoke to him in Tok Pisin and said (p.33 AB, lines 38-39, para 6, Exhibit P1): “San i hot na mipela giaman wasim nek nambaut.” (Sun is hot so we are pretending to quench our thirst). He also stood about two metres from Maino and saw him trying to hide an Orchy container from him (p.31 AB, lines 36–42 and p.32 AB, lines 1-30, para 5 Exhibit P1).
25. We have considered the evidence and find no error in the trial judge’s finding.
26. Given this, we find that the appellants have failed to persuade the Court that there is a reasonable doubt as to the safeness or satisfactoriness of the verdict. The appeals against conviction by both appellants must fail and are dismissed.
SENTENCE
Parties’ submissions
27. Mr. Mamu for the appellants submitted that the punishment imposed on each of the appellants and Barnsley by virtue of Order 14 Rule 49 of the National Court Rules was excessive because:
28. Mr. Luman for the respondent contended that there is no prescribed penalty for the offence of contempt of court, but each case must be decided on its own merit and the punishment must reflect the gravity of the offence. Counsel said the circumstances of the present case warranted the kind of punishment imposed by the trial judge so the appeals on sentence should be dismissed.
29. Mr. Luman also argued that the penalty of imprisonment for twelve months in default of payment of the primary penalty of K3,000.00 fine was only consequential or ancillary to the primary penalty which the trial judge rightly ordered in the exercise of his discretion and did not amount to a further or additional penalty.
Consideration
30. In order to succeed on an appeal against sentence, the onus is on an appellant to demonstrate to the Court that the National Court made some identifiable error in law or fact in the course of exercising the sentencing discretion or that the sentence is manifestly excessive: Norris v The State [1979] PNGLR 605.
31. Generally, any sentence that is imposed by the National Court must be appropriate, just and fair and one that befits the crime taking into account all relevant aggravating and mitigating factors including any extenuating circumstance: Steven Loke Ume v the State (2006) SC836.
32. Order 14 Rule 49 of the National Court Rules regulates the types of punishment to be imposed following conviction of a contemnor for the offence of contempt of court and it states:
“49. Punishment. (55/13)
(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to prison or fine or both.
(2) Where the contemnor is a corporation the Court may punish contempt by sequestration or fine or both.
(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.”
33. We concur with Mr. Luman’s contention that there is no prescribed penalty for the offence of contempt of court and that each case must be decided on its own merit and the punishment must reflect the gravity of the offence.
34. The appellants assert that the punishment of twelve months imprisonment in hard labour in the event of one defaulting to pay the fine within the period ordered is an additional punishment for an offence which is contrary to law and the case of David Manning v Robert Romongi (2022) SC2197 was cited in their argument. This argument is not grounded on any specific ground of appeal and must be rejected.
35. Nonetheless, we consider that the appellants’ argument on default penalty relying on David Manning v Robert Romongi (2022) SC2197 is misconceived. In that case, the respondent, Robert Romongi (Robert) was a Sergeant in the Royal Papua New Guinea Constabulary (Police Force). Robert was the Officer in Charge of the armoury at the Kundiawa Police Station. Robert was convicted by the Kundiawa District Court on a plea of guilty for driving a motor vehicle while under the influence of intoxicating liquor contrary to s.18(a) of the Motor Traffic Act. He was fined K100.00 and in default, sentenced to be imprisoned at the Barawagi Correctional Institution for two weeks in hard labour. Robert was later dismissed from the Police Force by the first appellant, David Manning, Police Commissioner pursuant to s.33(2) of the Police Act which states:
“A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.”
36. Robert successfully sought judicial review of the Police Commissioner’s decision to dismiss him from the Police Force in
the Kundiawa National Court and reinstated him to his former rank. On a successful appeal against that decision, this Court held
that s.33(2) of the Police Act did not confer any discretion on the Police Commissioner and the National Court fell into error to the extent that he found otherwise.
This Court also held that s.33(2) does not refer to penalty, rather it refers to imprisonment and in order for that provision to
be enlivened, the penalty for an offence should be imprisonment and a member of the Police Force is dismissed by operation of law.
37. In our respectful view, Order 14 Rules 49(1) and (3) of the National Court Rules grant a wide discretion to the National Court on what punishment to impose on a contemnor either by committal to prison or fine or
both and on terms it considers appropriate.
38. In this case, the trial judge noted that the appellants and Barnsley expressed no remorse (p.102 AB lines 41-42). He also took into account and appropriate weight was accorded to other aggravating features including that the appellants and Barnsley were officers of the court by virtue of their employment statuses. After comparing this case with Re Contempt of Court; Re Assistant Registrar, Philip Kaumba (2004) N2763, a case the trial judge presided over in Goroka, (p.102 AB lines 3-42 and p.103 AB lines 1-10) he said:
“[I]n this case, it was to the whole system, that in the face of the whole system, in the face of these buildings and premises being the place where the court holds its sittings, you guys were treating it as your own house boy, your own rest houses and you were drinking for your personal reasons.
You were aware of the court sittings being conducted in this, in courtroom 1 where we are now, and yet for your own personal reasons you conveniently put aside your important constitutional duties to the court, to the people, to members of the public, to indulge in alcohol drinking, oblivious to the fact that just next door, you were sitting where the pawpaw trees were and just here and drinking facing the Police Station. And just here the court was in session and just behind you in the cells there were detainees in court, in the cells. And you came to court and told lies about not drinking, and told lies about the court adjourning early when -because of the recordings that we have, it all proved you all wrong.
You were trying to make up excuses for what you were doing. So it boils down to your careless and dereliction of duty you did not care – you did not care that your drinking in front of the court cells was being disrespectful to the court and the overall interests of justice.
You did not care about the adverse public perception you were creating for – against the integrity and respect to the court by members of the public. And in particular, when the court sittings were on and people will be walking around and wondering why the three of you, court officers who were supposed to be the first to give the court respect, were in fact doing something against public decency apart from the illegality of drinking in public place. And then the three of you were doing what has been suspected, and that has been proven in court that warders and prisoners and detainees were in fact drinking here..
That is really putting the court very, very low and causing a lot of disrespect to the court. If people, even if people are not called, the perspective is there. Perception is that the court house is for drinking. There will be no more respect for the court sittings. Your conduct calls for heavy penalties and the options are imprisonment. (1) I can send all the three of you to jail; (2) I can fine – impose a fine; I can impose both imprisonment and fine.
.... You have not been remorseful, that is, you do not seem to be sorry about what you did.
It is simply because you challenged the system, you challenged the charges and then you came to court, you told a lot of lies under oath. And for that alone, you know, the court should not be lenient. The only thing that is possibly in your favour is the delay. What is in your favour is the delay, and your patience and any grievances you may have had to endure in waiting for the outcome of your case. But for that factor alone. I have determined that you all should be sent to jail for a term that will teach you personally and others to be respectful in the premises of the court sittings, in the face of the court sittings, and obey court orders if it goes to that extent.”(sic)
39. We have cited the pertinent excerpts from the judgment on sentence to demonstrate the approach taken by the trial judge in the exercise of his discretion to reflect the gravity of the offence.
40. We find no error in the exercise of the trial judge’s sentencing discretion that has the effect of vitiating the sentence. Rather, the punishment was appropriate, just and fair and one that befits the crime. In the result, the punishment was not excessive in the circumstances of this case. We dismiss the appeals on sentence.
ORDERS
41. The formal orders of the Court are:
1. The appeals against both conviction and sentence are dismissed.
_____________________________________________________________
Public Solicitor: Lawyer for the Appellants
Public Prosecutor: Lawyer for the Respondent
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