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Vaki v Baki [2014] PGNC 21; N5612 (13 June 2014)

N5612

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) 608 OF 2010

BETWEEN:

GEOFFREY R.E VAKI, MBE, QPM, DPS
Plaintiff

AND:

GARI L BAKI, OBE, DPS, CSt.J in capacity as the Commissioner of Police
First Defendant

AND:

NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Salika, DCJ
2014: 23 April, 15 May, 13 June

CONTEMPT – Contempt of Court – Non compliance with court orders – Power of the Court to punish – imprisonment appropriate for serious contempt

Cases cited:

The State v John Rumet Kaputin [1979] PNGLR 544
Yap v Tan [1987] PNGLR 227
Bishop Brothers v Ross Bishop (1989) N690
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Peter Luga v Richard Sikani (2002) N2286
Re Valentine Kambori (No 3) (2003) N2490
Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931
Attorney General v Times Newspaper (1974) Ac 273
Public Prosecutor v Nahau Rooney (No 2) (1979) PNGLR 448

Counsel:

Mr S Bonner, for the Applicant
Mr L Okil, for Mr Kulunga
Ms S Vate, for the Second & Third Defendants

13th June, 2014

1. SALIKA DCJ: Introduction: On 15th May 2014, this Court found Toami Kulunga, the Commissioner of Police, guilty to 3 counts of contempt of Court in that he had failed to comply with the orders of the National Court given on 1 October 2012. The orders given on 1 October 2012 were:

"4. The plaintiff be reinstated to the substantive position he occupied or held which is equivalent to an Assistant Commissioner (unattached) prior to his promotion and elevation to Deputy Commissioner Police Operations for purpose of salary and other perks and privileges that go with the position until the disciplinary charges referred to herein have been adjudicated and determined and the outcome has been conveyed to him.

5. The incumbent Commissioner, Mr Toami Kulunga, shall take immediate step to adjudicate on the disciplinary matter involving the plaintiff that has been pending determination and the outcome of which must be relayed to the plaintiff and the Minister for Police for tabling in the Cabinet within 14 days of this order.
   
6. The incumbent Commissioner, Mr Toami Kulunga, shall cause to be advertised the position of Deputy Commissioner Police Operations for fresh applications from qualified senior officers of the Force to apply including the Plaintiff if he wishes to.
   
7. The incumbent Commissioner, Mr Toami Kulunga, shall thereafter submit his recommendation to the Minister and National Executive Council forthwith and the outcome or decision of the National Executive Council be relayed to all the applicants in writing before any publication thereof in the National Gazette of the successful applicant."

.
2. Having found him guilty of the 3 contempt charges the courts duty now is to impose the appropriate penalty. The question then is what is the appropriate penalty for contempt cases such as this. There are already a string of precedents on contempt cases where varying penalties have been imposed in the past.

3. Each contempt case is different in that the facts and circumstances are not always the same. Moreover, contempt can be "in the face of the court" direct or it can be indirect. Direct contempt usually occurs in court in the presence of the judge. For example a person who swears or shouts at a judge would be direct contempt for reasons that the judge's ability to perform his or her duty is impeded and the courts ability to function brings disrepute to the courts.

4. Indirect contempt usually occurs outside the presence of the court. It includes improperly communicating with judges outside the court.

5. There are also two types of contempt of court, criminal contempt and civil contempt. In criminal contempt cases charges are usually laid against the alleged contemnor and they serve to deter future acts of contempt by punishing the offender, no matter what happens to the substantive proceedings. In civil contempt the courts will ensure that it's orders are complied with. Civil contempt aim is to restore the rights of the party which was wronged by the failure to satisfy the court order. Civil contempt should end when the party in contempt complies with the court order or when the substantive matter is resolved. In this case the substantive matter has been resolved but the orders resolving the substantive matter are yet to be complied with.

6. Both the civil and criminal contempt are not clearly and easily identifiable thus the distinction between the two is still not really clear, it is often blurry as they overlap each other. In this case as the contempt charges arose out of a civil proceedings and that Toami Kulunga failed to comply with orders of the Court from which Geoffrey Vaki suffers injury, I will treat this contempt as a civil contempt.

7. Order 14 r. 49(1) provides:

"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) ـ Where the cone contemnor is a corporation the Court may punish contempt by sequestration or fine or both.

(3) The Court may makerdn ofoir foishme terms, includinguding a suspension of punishment or a susp suspension of punishment where the contemnor gives security in such manne in sum asCourtapprove for good behavior andr and perf performs orms the tthe terms of the security."

This provision gives the court a discretion to punish for contempt of court by imprisonment or a fine or both.

8. I set out here the contemnors statement on allocatus.

"I wish to begin by sincerely apologizing to this court, I understand that contempt is an offence against the court and I am very sorry that my conduct was found to have been in contempt of court orders. Personally and as the Commissioner of the Police, I have no intention to be responsible for any conduct that undermines the authority of this court.

This is my first time to be convicted for contempt of court. Apart from this case, I have an unblemished record as a citizen and a police officer. I have served the Police Force for over 40 years with dedication and professionalism. In that time, I have never before been charged or convicted of any offences whether criminal or disciplinary.

I humbly ask the court to accept that my conduct was not deliberately done to frustrate the court orders. I tried as much as possible to abide by the terms of the court orders. The decision I made and my conduct in this matter were all done professionally and in good faith. However, I also appreciate and accept the courts decision. The court's decision has assisted me to see where I erred and sincerely regret that my actions were improper to the extent explained by the court. I was not aware of the error affecting my decisions when I made them. I genuinely believed at the time I dealt with this matter that my actions were proper. I can assure the court that I would have done what was necessary to avoid such errors the court has highlighted if I had been aware of them.

I also apologies for putting the court through the expense of dealing with the contempt proceedings. My decision in respect of Mr Vaki was done in good faith in the overall interests of the Police Force. I firmly believe in maintaining a high standard of integrity and professionalism in the Police Force. I had to consider the message I would portray if I were to accept Mr Vaki and reinstate him given the circumstances surrounding his disciplinary charges. Given my genuine belief that I had complied with the Court order, I maintained my stance when served with the contempt charges.

I have given my life to the Police Force and I wish to make full use of the opportunity I now have as its Commissioner to do as much as possible to make a positive difference in the Police Force. I am presently implementing and coordinating a lot of changes to transform and improve the Police Force to raise its standard and address the serious law and order situation in this nation. I am specifically concentrating on improving the standard of the Police Force by taking a very strict approach against issues such as police brutality, domestic violence by members of the Police Force and other issues that undermine the image of the Police force. I therefore ask the Court to take into account my desire to continue unhindered with my programs in the Police force when considering my penalty.

I wish to end by sincerely apologizing to the Court for my actions. I ask the Court to accept that I am genuinely sorry and remorseful about my conviction. I humbly ask the Court to impose a fine as the appropriate sentence in my case. Further, I am willing to implement any orders this Court feels is appropriate in relation to Mr Vaki's case.

9. I take into account what he says on his allocatus. He says he was not aware of the error affecting his decision. But that is why he has an in house legal team to seek their advice before making his decision. It is not a good excuse to come to this court and inform this court that he was not aware of the error. In other words ignorance of the police disciplinary process and procedure is and should not be an excuse for the Commissioner of Police of Papua New Guinea.

10. His statement that he had to consider what type of message he would portray if he was to reinstate him given the circumstances of his charges was not a matter of choice for him. The court made the decision to reinstate him pending the adjudication of the disciplinary charges. He had no choice but to reinstate him.

11. I however acknowledge his immense contribution to the Royal Papua New Guinea Constabulary and to the country as a whole. He has risen through the rank and file over the 40 years to become the Commissioner of police, the highest post in the PNG Police Force.

12. His lawyer on submission in mitigation also submitted that the disobedience of the court orders were not deliberate on the part of the contemnor.

13. Perhaps the in-house lawyers for the Commissioner ought to have filed an affidavit to say whether or not legal advice was sought before and when the letter reinstating and then terminating Geoffrey Vaki was drafted and served on 3 October 2012.

14. In his affidavit filed on 22 April 2014 Mr Kulunga on paragraph 6 of that affidavit says the five serious disciplinary charges were laid against the plaintiff and that he as a Deputy Commissioner of Police in Administration at the time served the charges on him. He was therefore aware of the process and was involved from that stage.

15. Mr Kulunga then deposes that Superintendent Duwang was appointed to adjudicate on the charges. However, Mr Kulunga ought to have known that the rank of Superintendent is lower than that of Deputy Commissioner, Assistant Commissioner or Chief Superintendent and that Superintendent Duwang could not legally adjudicate on the charges as provided under s.24 of the Police Act. His excuse that he did not know that legal requirement is not an excuse for the reason that ignorance of the law is not an excuse and secondly for the reason that at the time his mind was closed off to checking things out first to ensure the road ahead was all clear.

16. I also note that the illegally prepared adjudication report had been completed but may not have been before Kirriwom, J when he dealt with the matter.

17. Mr Kulunga's lawyer submitted that the point about compliance with s.24(2) of the Police Act was not realized until the matter was raised by the Court in the course of submissions. Again it is displayed by the contemnor's lawyers with no regard for compliance with the laws. Ignorance of the law is no excuse and the lawyers should take some of the blame for allowing this matter to come this far. The lawyers all appeared to ignore s.24 of the Police Act.

18. The lawyers took it for granted that everything was properly done. On 23 April 2014, before proceeding to trial, I asked the parties to relook at their respective cases and to resolve the matter there and then without going to trial. The plaintiff's lawyers indicated that they would withdraw the charges if the Commissioner reinstated their client to Assistant Commissioner of Police as ordered by the court. The contemnor and his lawyers did not agree to the proposal and were hell bent on proceeding with the matter.

19. An opportunity to have a relook at his case was given with no results. The court raised the issue of non compliance with the disciplinary procedure. Such non compliance would render the entire disciplinary actions then taken to be illegal and therefore null and void. In other words to date there is no disciplinary report on the 5 serious disciplinary charges.

20. When the submissions on sentence were presented the court was informed that Mr Vaki's reinstatement was being processed and if that is true then by now he should be on the payroll and given back his rank as Assistant Commissioner. That augers well for the contemnor in the mitigation of his sentence.

21. Against the contemnor remain the fact that while he complied with the court order to reinstate the plaintiff to his substantive rank of Assistant Commissioner of Police he sacked him at the same time without checking if the disciplinary process had been complied with. That to me is willful disregard of the court orders. It is also an insult to the court orders and a mockery to treat the court orders in that way.

22. The contemnor's lawyers in their submissions on sentence have furnished a useful table showing the sentencing trend by the National Court in contempt cases. I reproduce that table:

23. From the above table it can be noted that the sentencing pattern for contempt cases is that a term of imprisonment is ordered but suspended wholly on payment of a fine.

24. It is important that Papua New Guineans properly and fully understand why they must obey court orders. The court is an authority established by the Constitution. Section 99 of the Constitution provides for the structure of the National Government. The National Government consists of the three principal arms of government namely:

1. The National Parliament – which is an elective legislature with, subject to the Constitution, unlimited law making powers.
   
2. The National Executive and
   
3. The National Judicial System, consisting of the Supreme Court, and the National Court of unlimited jurisdiction; and other courts.
   

25. Section 158(1) of the Constitution vests the judicial authority of the people of PNG on the National Judicial System which includes the Supreme Courts and the National Courts and the other courts like the District Courts. It provides:

158. EXERCISE OF THE JUDICIAL POWER.

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

The judicial power that the courts wield and exercise is the judicial power of the people of Papua New Guinea.

This means that when the courts make decisions they are exercising the judicial powers of the people. The courts have the authority to make those decisions as empowered by the Constitution. Therefore parties in a court proceeding are bound by the decision of the court. There are procedures for appeals and reviews but unless those court decisions are stayed or overturned by the Supreme Court they must stand. In this case Mr Kulunga did not appeal the decision of Kirriwom, J so he is bound by the orders of Kirriwom, J made on 1 October 2012. He must obey the orders and do what the court ordered him to do so. Failure to obey the court orders amounts to contempt of court.

26. Lord Morris in Attorney General v Times Newspaper (1974) Ac 273 at p.302 said:

"In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interest of the community it is imperative that the authority of the courts should not be imperiled and that recourse to them should not be subject to unjustified interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibility of administering justice are concerned with their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted and their authority wanes and is supplanted."

I respectfully adopt this statement. PNG is going to have to find its place as an organized global community. PNG has chosen for itself a democratic system of government and as such the rule of law is fundamental to its existence and sustenance.

27. Decisions of the Court, in that regard must be adhered to in a democratic and ordered community like ours in PNG. In this case the Police Commissioner is bound by the decision of the court. He has no option to refuse to obey the orders of the court for if he does he will be in contempt of the court.

28. The statement of the law lord was re-enforced by Saldanha J in Public Prosecutor v Nahau Rooney (No 2) (1979) PNGLR 448 at p.488 where he said:

"I have shown earlier how necessary it is for an ordered society to observe the rule of law and maintain the authority of the courts and judges. The stand taken by judges against the contemptuous remarks and statements is not out of a tender regard for their own feeling as and not because they have false idea of their own dignity. The rule of laws is central to a democratic way of life."

29. Public policy and administration of justice are also relevant in a democratic system of government. Commenting on those matters Lord Diplock in Attorney General v Times Newspaper (1974) AC 273 said:

"There s an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any Court of Law could be disregarded with impunity no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement....criminal contempt of court resembles many ordinary criminal offences, such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large (307-308)."

30. Halsbury's Laws of England Vol 9, 1974 para 2 says:

"Although civil contempt is essentially a wrong done to the person who is entitled to the benefit of the order or judgment concerned it also involves an obstruction of the fair administration of justice and may be punished in the same manner as a criminal contempt."

31. As alluded to earlier the constitutional framework of the structure of the National Government need to be enhanced rather than being sabotaged, obstructed and flouted. The Courts must take a strong stand to protect that structure of the government because if it does not it will (borrowing the words from Sakora, J in Peter Luga v Richard Sikani:

"be interpreted as the Court giving credence to the misguided and self serving perceptions and attitude common and popular in certain sections of the national leadership these days that they are above the law, beyond the reach of the Law and Courts of Law. The famous public health advisory: prevention is better than cure, is so pertinent here. Cure or treatment in relation to maladministration, abuse (or excess) of State owes, disobedience and defiance of the Law is only ex post facto. Rectification and remedies become available long after the direct or long term effects of the abuse or disobedience have been left, or become obvious. Long after the damage is done, or the hurt has been caused."

32. If this senior State Office holder is not appropriately punished, other senior state office holders similarly inclined will not be deterred. The result will be that ordinary members of the public may not understand nor appreciate the obligation to respect and obey the laws of the country. An undesirable consequence will (again borrowing the words of Sakora J in Luga v Sikani (supra)) be that:

"the law will lose its authority, respect for it will diminish or disappear; the authority and the integrity of the judicial system will also diminish. The society will degenerate into one devoid of Law and Order; the weak and unrepresented members of our society will become easy prey and victims of the unscrupulous and the powerful."

33. I have thought long and hard over the actions of Toami Kulunga in trying to comply with the court orders of 1 October 2012. In his letter to Geoffrey Vaki on 3rd October 2012, he wrote:

"NON RENEWAL OF YOUR CONTRACT OF EMPLOYMENT.

In compliance with National Court Order No.4 dated 1st October 2012 made by Justice Kirriwom, I reinstate you to the substantive rank of Assistant Commissioner that you previously held prior to your promotion to Deputy Commissioner (Operations).

As defined in clause 1.4 of your fixed period of employment at the rank of Assistant Commissioner, I wish to inform you that the contract expired on 11th December, 2007.

As such, this letter serves to advise you that your contract of employment at the rank of Assistant Commissioner of Police will not be renewed on the following grounds:-

(a) On 10th June 2009 you were served with five Serious Disciplinary Charges for misconduct.

(b) On 18th June 2009 you responded and pleaded not guilty to all five charges.

(c) The evidence against you was supported by 20 witness statements.

(d) On 29th July 2009 all five charges against you were determined and you were found guilty on four of the charges and not guilty on the fifth.

Your services with the Constabulary are therefore no longer required and will cease as of close of business Thursday 4th October 2012."

34. The first paragraph of the letter complies with the court order to reinstate Mr Vaki to his substantive rank of Assistant Commissioner, the position he previously held prior to his promotion to Deputy Commissioner of Police (Operations).

35. The second paragraph of the letter was not necessary because the court order did not reinstate him to his previous contract position. The court ordered his reinstatement to Assistant Commissioner. The reinstatement is not subject to or tied to a contract. In that regard the contemnor failed to comply with the court order to reinstate the plaintiff but took into account irrelevant considerations.

36. The third paragraph of the letter seeks to comply with court order No 5 which says:

"5. The incumbent Commissioner, Mr Toami Kulunga, shall take immediate step to adjudicate on the disciplinary matter involving the plaintiff that has been pending determination and the outcome of which must be relayed to the plaintiff and the Minister for Police for tabling in the Cabinet within 14 days of this order."
This order is directing him to adjudicate on the disciplinary charges involving the plaintiff. Did the contemnor adjudicate on the disciplinary charges? It is my view that he did not because he instead sets out what the disciplinary officer Superintendent Duwang did and found. There is nothing in this letter to say that he reviewed or considered the report of Superintendent Duwang pursuant to s.25(2)(b) of the Police Act and that he concurred with his recommendations.
37. In paragraph 8 of his affidavit filed on 22 April 2014, the contemnor deposes that:

"after the court's decision on 1st October 2012, I verified that the only matter outstanding regarding the disciplinary charges against the plaintiff was the imposition of penalty by the Commissioner. I perused the Report by Superintendent Duwang and concurred with his conclusion on the five charges that were preferred against the plaintiff."

38. Unfortunately while he says it now in his affidavit of 22 April 2014 the critical letter of 3rd October 2012, the document first in time and which speaks for itself, does not state it. In that letter there is no mention of what the contemnor did in terms of complying with s.25(2)(b) of the Police Act. The contents of paragraph 8 of his affidavit are therefore an afterthought. The letter is self serving and nothing should be added to it or taken out of it.

39. In any case the report by Superintendent Duwang was in contravention of s.24(2) of the Police Act and therefore null and void and ought not to have been relied on by the contemnor of which I have already stated that ignorance of s.24(2) of the Police Act is of no excuse which is the general legal maxim.

40. Therefore in all reality the contemnor never did comply with the court orders. He simply wrote the letter in the mistaken and erroneous belief that it would take Geoffrey Vaki away from the scene. He never did anything on his own to comply with the court orders. He relied on someone else's work to dismiss the plaintiff meaning that he never conducted an independent adjudication as ordered by the court. Accordingly, I reject paragraph 8 of his affidavit filed on 22 April 2014.

41. Those of us in positions of leadership and authority are vested with statutory powers to be exercised when situations arise for such powers to be applied. Those powers should be exercised with due care and diligence especially so when we deal with the lives of people. Such powers should not be used by those of us in positions of leadership and authority to suppress, oppress, intimidate and victimize persons who we deal with. We must be careful to ensure that due process and principles of natural justice are observed and not abused and manipulated.

42. What happened to Geoffrey Vaki was that due process was not observed. An incompetent and an invalid investigation report was before Mr Kulunga who readily and speedily acted on it without checking its legality. This led him in turn to disobey the court order. Members of the Royal Papua New Guinea Constabulary should be the first to obey court orders. The courts rely on them to carry out their orders, but this disobedience should not be tolerated.

43. In relation to denying the plaintiff the opportunity to be considered for the position of Deputy Commissioner of Police (Operations), the contemnor was compounding and repeating the acts of non compliance with the court orders.

44. I consider this non-compliance of the court orders in this case to be a serious dereliction of duty at the highest level, a serious insult and disrespect to the authority of the court orders, thereby bringing the administration of justice into disrepute. It has the tendency to diminish respect and authority of the entire National Judicial System and is detrimental to the courts ability to administer justice. If the top police officer of the country does not respect and obey court orders and the laws and is allowed to go unpunished, how can we then expect the people of the land to respect and obey the laws of the land.

45. Accordingly this court is sending out a clear message that its orders must be respected and obeyed. In that regard Toami Kulunga is sentenced to:

First count: 7 months imprisonment with hard labour.

Second count: 7 months imprisonment with hard labour.

Third count: 7 months imprisonment with hard labour.

_________________________________________________________________
Sam Bonner Lawyers: Lawyer for the Plaintiff
Parua Lawyers: Lawyer for the Contemnor