Ereman and the Constitution Section 42(5), Re [1993] PNGLR 120 (5 January 1993)

PNG Law Reports 1993

[1993] PNGLR 120 - Re Naune Ereman and Constitution S42(5) 

[1993] PNGLR 120

N1132

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF NAUNE EREMAN

AND

IN THE MATTER OF THE CONSTITUTION SECTION 42(5)

Rabaul

Doherty J

5 January 1993

CONSTITUTIONAL LAW - Failure to pay maintenance not automatic ground for imprisonment - A court must be satisfied a person had means to comply with an order for maintenance before ordering imprisonment in his absence - Section 4 Maintenance Orders Enforcement Act Ch 279 - Section 37(5) Constitution.

Facts

The applicant was ordered in his absence from the trial to be imprisoned for 12 months for failing to pay maintenance. There was no evidence of his means or ability to pay. The order of the Court for payment of arrears forthwith was contained in a warrant of commitment to imprisonment.

Held

1.       The provisions of ss 4 and 66 Maintenance Orders Enforcement Act Ch 279 must be read in conjunction with s 5 of the Act, and imprisonment cannot be ordered without proof of means and ability to pay.

2.       Obiter: an order of imprisonment in the absence of a defendant may offend against the right to be present at trial in s 37(5) Constitution.

Counsel

Applicant in person

DOHERTY J: Naune Ereman has applied to this Court for leave to appeal against the decision of the Madang District Court made on 2 June 1992.

He was committed to a term of 12 months in hard labour at Kerevat Corrective Institution for failing to comply with an order of the District Court in Madang to pay arrears of maintenance.

The warrant of commitment and the court records in Madang District Court show that there was a hearing on 2 June 1992 following an application to commit Mr Ereman to prison pursuant to s 4 of the Maintenance Orders Enforcement Act Ch 279 (hereafter the Act) because he had failed to comply with a maintenance order. A certificate of arrears showed that K3,938.00 was due under the maintenance order and that he had not made any payment since 19 July 1985.

The court records state that there was no appearance by the defendant before the court, but the court was satisfied that the application had been served upon him on 18 May 1992 at Rabaul. There is a handwritten notation "POS filed 20/5/92", which may mean "proof of service filed 20/5/92."

The court then went on to read the affidavit of the complainant, Anne Kiwar, who the appellant concedes is his former wife.

Her affidavit states that she is a mother of two children, that an order was made that Ereman pay maintenance of K22.00 per fortnight for the two children and herself commencing on 27/4/84, registered in Madang District Court, that he has not complied with that order since July 1985, and that arrears amounting to K3,938.00 were then due, representing 179 fortnights.

There is no affidavit of service on the court record other than the notation referred to above, and the appellant states before me that he did not receive the application from the Madang court until July. He was then resident in Rabaul and saw the Clerk of Court in Rabaul and asked him to convey this information to the Madang Court. This is unsworn evidence and unsupported by documentation.

The Madang Court sat on June 2 1992 and ordered that the appellant be committed to imprisonment for a period of 12 months unless the sum of maintenance arrears, K3,938.00, is paid forthwith and "thereafter to continue making payments in the sum ordered previously".

There was no order to this effect made out and served on him. Instead a warrant of commitment was made out dated June 2 1992 showing the action was held at Madang. It states that the defendant "failed to comply with the order of the District Court at Madang dated the 2 June 1992 to pay K3,938.00 forthwith and thereafter to continue maintenance payment ordered previously" and orders that the appellant be imprisoned "for a period of 12 months unless the order is complied with in full." Another date is shown on the warrant, 25 August 1992. The appellant said that he was arrested in August and has been in prison until a Visiting Justice visit in December 1992.

The powers of the District Court to imprison a person for failing to pay maintenance are provided in s 4 of the Act.

These provide that a complainant may make an application to the court that a male person has disobeyed or failed to comply with the maintenance order and, as a result, a sum of money is in arrears under the order. The court may order that the defendant be committed to prison for a period not exceeding 12 months. The section is subject to s 66 of the Act, which provides that, where a defendant does not appear and there is proof that he has been summonsed, the court may either issue a warrant for the arrest of the defendant or may proceed to hear and determine the complaint or application in his absence. It may not proceed if it is not satisfied that the summons was duly served or the defendant cannot be found after a diligent search.

Hence, on the face of it, a court can proceed in the absence of the defendant and make an order to commit him to prison for failing to pay arrears of maintenance. It may also issue a warrant of arrest.

However, ss 4 and 66 must be read subject to the provisions of s 5 of the Act. These provide that a court shall not commit the defendant to prison unless it is satisfied that the defendant had the means and ability to comply with the order, has had such means and abilities since the order was made, and could have, by reasonable effort, had that means and ability, or there is some other reason present why he should not be imprisoned. Further, a person should not be committed to prison if he has already been committed to prison for failure to comply with the maintenance order, unless the defendant's means and abilities to pay changed since he was committed to prison for non-payment.

So, while it may look on the face of it that a person can be committed to prison just for failing to pay his maintenance and conform with the maintenance order, the court must be satisfied that, in fact, he had the means to pay and, from his own volition, he made a decision not to pay.

In the case before me, the affidavit before the learned Magistrate (the contents of which I have recorded) does not say anything about the defendant's means to pay. It does not explain if he was working, had a business, or gave some other indication which would enable a court to assess a defendant's ability to pay or not.

For this reason, I consider that the learned Magistrate had erred in making the order he did in the absence of the defendant.

Further I have reservation whether s 4 of the Act, like s 195 of the District Courts Act, might contravene the provisions of s 37(5) of the Constitution. Both these sections provide for custodial penalties for non-compliance with civil orders made in District Courts and for such custodial sentences to be imposed in the absence of the defendant where there is proof of non-compliance and ability to comply.

Section 37(5) of the Constitution provides that a trial may not take place in the absence of a defendant except in certain stated circumstances. The provisions of the Maintenance Orders Enforcement Act and the District Courts Act for enforcing orders by imprisonment are sometimes referred to as "quasi-criminal". They were passed before the provisions of s 37(5) Constitution were introduced. The concept of protection of the law in s 37(5) involves a person's right to be heard at a trial, as does the concept of natural justice. An order for arrest would be more appropriate. Whether these provisions do comply with the Constitution is a matter solely within the jurisdiction of the Supreme Court to determine (s 18 Constitution).

I am satisfied on the evidence before me that there was no sufficient proof before the District Court in Madang to enable it to assess whether the defendant had means and ability to pay. Accordingly, I set aside that decision and remit the matter for rehearing in full. The defendant before me has said that he was informed that his former wife had remarried and the new husband had adopted the children, so he did not pay anymore. This may be grounds for seeking a variation on the maintenance of the wife. It is not grounds for ceasing to pay, nor does it alleviate him from the duty to provide for his children. He should comply with the maintenance order and, as he has consented that the amount of the order be deducted directly from his salary, I order by consent that the amount of K22.00 per fortnight be deducted from his salary by the Department of East New Britain and remitted to the Collector of Maintenance at Madang District Court. The defendant is to be given one-month notice of the hearing by the Clerk of Court in Madang.

Applicant in person.