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Damaru v Vaki [2015] PGNC 309; N6859 (3 July 2015)

N6859

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.484 of 2014

IN THE MATTER OF CONTEMPT OF COURT
UNDER ORDER 14 RULES 37 TO 50 OF THE NATIONAL COURT
RULES

BETWEEN:
MATTHEW DAMARU, Detective Chief Superintendant of Police and the
Director of National Fraud and Anti-Corruption Directorate
First Plaintiff/Applicant

AND:
TIMOTHY GITUA, Detective Chief Inspector of Police and Deputy
Director of National Fraud and Anti-Corruption Directorate
Second Plaintiff/Applicant

AND:
GEOFFREY VAKI, the Commissioner of Police
Defendant/Respondent

Waigani: Injia CJ
2015: 3^rd July

CONTEMPT OF COURT – Criminal Contempt – Punishment –Commissioner of Police –Warrant of Arrest issued by District Court to arrest the Prime Minister- Punishment for Contempt – Serious contempt- Punitive and deterrent sentence appropriate- Three (3)years imprisonment.

Facts:

The Defendant, Commissioner of Police, was convicted on two counts of contempt of Court for failing to execute a Warrant for Arrest of Prime Minister Peter O’Neill issued by the District Court, in the period that was not covered by an interim stay order issued by the National Court. The defendant took a number of steps to delay the arrest including making public statements that he would not arrest the Prime Minister anytime soon until he was satisfied that the case against the Prime Minister was watertight.

Held:

(1) Punishment must fit the crime. A punitive and deterrent sentence is appropriate in the circumstances of the case.

(2) Defendant is sentenced to 3years imprisonment on each count to be served concurrently
Cases cited:

Pius Mark v Korali Iki [1995] PNGLR 116.
Tardew v The State Public Prosecutor [1986] PNGLR 91

Counsel

Egan SC with Mr Nale, for the Plaintiffs
Griffin QC with Mr Purvey, for the Defendant

3^rd July, 2015

1. INJIA CJ: On 17^th June 2015, I found the defendant guilty and convicted him on two counts of contempt as follows:
   

First Count:

Since taking office as Commissioner of Police on 16^th June 2014, though you assumed full control of the police force, you have deliberately and willfully –taken no action, or alternatively you have prevented or provided no support or instruction to the First and Second Plaintiffs/ Applicants for the execution of the warrant of arrest against Prime Minister, contrary to the Warrant of Arrest issued by order of the District Court on 12^th June 2014.

Second Count:

On 2^nd July 2014, you intentionally and willfully, despite there being no legal impediments to the implementation or execution of warrant of arrest ,made public statements in the media to the effect that you would not implement the order of the District Court made on 12^th June 2014 for the arrest of PM O’Neill, such order being valid court order for the issue of a warrant of arrest, in circumstances, where such statements constituted evidence of your intention to prevent and frustrate the implementation or execution of the said court order. In particular, the ABC News Website (www.abc.net.au) quoted you saying, “he won’t be arresting Prime Minister O’Neil anytime soon, even though a court order has ruled the arrest of warrant should stand.” Further it quotes you saying, “...any moves to arrest Mr O’Neill on corruption charges are long way down the road.”

2. Following pronouncement of verdict on the two counts, the allocatus was administered to him. The defendant gave an unsworn statement. He tendered two affidavits containing character evidence from Retired Brigadier General Tony Huai and Robert Mellor. I received submissions on sentence from the plaintiffs and the defendant. My consideration of those matters are embodied in my reasons on punishment which I now deliver.
   
3. The offence known as contempt of court is a criminal offence. Sentencing offenders for criminal offences involves a balancing act that takes into account relevant factors that stand in favour of the offender and those that do not favour the offender and then arriving at a punishment that fits the crime. In this case there exist mitigating factors and extenuating circumstances of the offence which favour the defendant and those aggravating factors that do not favour the defendant. Those factors have been fully covered by the parties in their statements and submissions and I have given thought to them.
   
4. With regard to mitigating factors, I take into account in his favour, all the mitigating factors that have been put to me by the defendant himself, by his character witnesses and those submitted by his lawyer. The defendant is a long time service member of the Police force having first joined the Force as a young recruit in 1970. Through his dedication and hard work, he rose through the ranks to become the Commissioner of Police. Prior to these offences, his professionalism and commitment to the Police force and the Government has not been questioned in the Courts. He has no prior convictions. He is a Christian, a man of prior good character and his family of 7 children, the youngest of whom is 14 years and attending school.
   
5. With regard to the extenuating circumstances of the offence, I accept his submissions that he committed the offences under circumstances that placed him under “tremendous pressure”. Amongst other sources of pressure, the plaintiffs put him under pressure when they denied him his right to access the CID investigation file on the matter following his appointment as Police Commissioner. This caused him to commence Court proceedings on his own or in association with others to assert his Constitutional Authority. He challenged the validity of the Warrant in the Courts and one of those proceedings are pending before the National Court. The execution of the Warrant was once stayed, then discharged and stayed again by the National Court. The contemptuous acts were committed in a brief period when the Warrant was not stayed. The period in which activities occurred was brief and with so many things happening in quick or close succession by different players, and having no prior experience as Police Commissioner. Any Police Commissioner or any police officer in his position in such circumstances would find the going getting tough and unmanageable. The situation was compounded by the fact that everyone involved, including the defendant, misunderstood the true purpose of the Warrant out of ignorance of the law.
   
6. With regard to the aggravating factors, the plaintiffs submit the defendant knew and understood the command contained in the Warrant which was clear and unambiguous. This is a serious case and a clear case of the most senior officer in the Police Force refusing to obey the command to arrest the most senior political leader of the country. It has serious implications for law enforcement in this country. It sends the wrong message to hundreds of policemen and policemen under his command that it is up to the policemen and policewomen to accord such interpretation as they wish to a Court order and execute it according to their own discretion or whim. The defendant pleaded not guilty which caused a trial which soaked up time, inconvenience, and costs. Even when the defendant was convicted, the defendant had not expressed remorse or apology. He has not indicated if he is going to purge his contempt. He was resolute not to obey the court order from the start. As a result, “the disobedience constituted an affront to the administration of justice, interfered in the administration of justice, brought public respect for the justice system into question and disrepute and undermined the rule of law.” The authority of the court needs to be vindicated. By reason of the defendant’s position and authority, the defendant needs to be made an example to regain public trust in their paramount duty as a law enforcement agency and in the office of the Commissioner of Police. As I found, the defendant had full knowledge of the terms of the Warrant, that he knew that as the Commissioner for Police and a member of the Police Force, he was directed to effect the arrest of the PM, that he disobeyed the Court order and the disobedience was intentional. A deterrent and punitive sentence in the form of custodial sentence in the vicinity of 5 years is appropriate.
   
7. The defendant submits the circumstances of this case warrants a non-custodial sentence or a wholly suspended custodial sentence. The plaintiffs’ failure to effect the arrest on the morning of 16^th June 2014 there and then is the cause of all these events that unfolded some of which the Courts are now dealing with. Had it not been for the plaintiffs' failure to effect the arrest, the defendant would not be in Court facing these contempt proceedings. The disobedience was not contumacious and direct. This Court did not find any ulterior motive for the disobedience. The disobedience was over a brief period when the Warrant was not stayed by the Court. The Warrant was issued under circumstances where the law governing issue of such Warrant was unclear. Now that the law has been clarified, he should not be punished severely by a custodial sentence. The defendant cited several decided cases in which the Courts have imposed a fine or a wholly suspended custodial sentence even in cases where the disobedience has been found to be contumacious. The defendant submits the sentence proposed by the plaintiffs is not proportionate to the circumstances of the offence, excessive and an act of vengeance.
   
8. In my view there is no question that the disobedience was contumacious. This is not a case of an intermittent refusal by the defendant to effect an arrest spurred on by unforeseen events that he had little time to calculate his course of action. The disobedience was calculated and deliberate. Though I accept the purpose of the arrest under the Warrant was misunderstood, the command contained in the warrant was clear and was capable of being understood. As I found, the defendant exhibited no mistakes or misapprehensions about the terms of the Warrant and what was required of him to do in obedience to its terms from the start when he was first appointed and engaged as Police Commissioner on the very day of the attempted arrest of the PM. He knew from the circumstances of his appointment immediately after the attempted arrest earlier in the day on 16^th June 2014 that there was in existence an order for the arrest of the PM that day and immediately after he took command, he decided not to arrest the PM, a position he consistently maintained through to 2^nd July 2014, when he publicly stated that he intended not to execute the warrant anytime soon. As I found, the defendant questioned the Warrant and commenced his own judicial proceedings challenging the Warrant. Whilst those proceedings were on foot during the period in question, there was no legal impediment that prevented the defendant from enforcing the Warrant. He was under a duty to enforce the Warrant. By his own conduct, he placed himself in a difficult situation where he compromised his professional independence and judgment. As I found, the disobedience constituted an affront to the administration of justice, interfered in the administration of justice, brought public respect for the justice system into question and disrepute and undermined the rule of law.
   
9. The fact that the plaintiffs did not effect the arrest on 16^th June 2014, I accept, brought on the chain of events and consequences for law enforcement and the judicial process that could have been avoided. However that offers no justification for the defendants own disobedience.
   
10. It is true that this court did not make any findings of any ulterior motive for the disobedience. The defendant had a reason for the decision he made not to effect the arrest, that is he wanted to study the CID police investigation file. The defendant also had other reasons such as his position that the Warrant was not validly issued. There could be other reasons too. These reasons in my view are good excuses for not obeying the Court order. The defendant cannot claim any special concession from these or other reasons he might have had for refusing to disobey the Court order. It is these sorts of excuses that the Courts have been speaking against and registering their disapproval.
    
11. As I found, the Policemen’s job is to effect the arrest as directed by the Warrant there and then. The member of the Police Force should not act as a judge and question the Warrant and stop its enforcement. He is intentionally, deliberately, willfully disobeying the order to arrest, if he, for whatever reason, buys time and delays, procrastinates and or completely refuses to execute the Warrant. The policeman’s obedience to the Court order lies in the compulsion of the order and the law that entrusts him with the responsibility to enforce that Court order.
    
12. As I found, an officer to whom the Warrant was directed, a police officer may hold some misgivings about the Warrant that he has obtained or that he has been directed to enforce a Warrant obtained by another officer. The police officer may contemplate commencing Court proceedings to challenge the Warrant. This is the very situation that principles developed by the Courts are designed to discourage or prevent. Having obtained the Warrant, it is not for the police officer to question the Warrant. It is for the person the subject of the Warrant to take issue with the Warrant. The police Officer’s duty is to obey the order. Until he is served with an order of a Court of competent jurisdiction staying, varying or discharging the Warrant order, it is his duty to obey the terms of the Warrant.
    
13. The defendant is entitled to his day in Court and I wish not to take his not guilty plea and his lack of remorse pressed upon by the plaintiffs, against him. His work record and personal and family background are relevant to be considered and I do take them into account in his favour. However defendant’s defiant action in refusing to effect the arrest that brought serious implications for law enforcement and judicial process that he is duty-bound to uphold weighs heavily against him.
    
14. The punishment imposed by this high court for disobedience of a lower Court’s order is a new area that needs development. I take the defendant’s point that the punishment should reflect the hierarchy of the Courts. Whilst accepting that the sentences imposed for criminal offences by District Courts are generally lower than those imposed by the National Court, contempt of court orders issued by either Court is a serious matter for any Court. It is also within this Court’s responsibility to “watch over the proceedings of the inferior courts....to prevent persons from interfering with the course of justice in such courts: Halsbury Laws of England, Vol 9, para 2 & 47; also see this Pius Mark v Korali Iki [1995] PNGLR 116.
    
15. Most of the cases that have been cited to me by the defendant impose punishment for disobedience of orders issued in a civil case amounting to civil contempt. Criminal contempt such as the case at hand is more serious than civil contempt. The sentences for civil contempt and some criminal contempt cases of lesser gravity than the case at hand range from a fine to 18 months imprisonment and in some instances a wholly or partly suspended sentence.
    
16. In the circumstances of the case before me, nothing could be more serious than an open flouting or open defiance by the most senior policeman in the country refusing to effect arrest on the most senior political leader of the country. Serious implications for the rule of law flowed from the defiance. If police officers are allowed to get away with such behavior, with soft sentences, maintenance of the rule of law and public respect for Courts which underpin the rule of law will erode and eventually diminish. This has serious implications for the administration of criminal justice by the Courts. The Courts depend entirely on the Police Force to produce in Court defendants charged with criminal offences and if the Police Force fail or refuse to do so, the Courts cannot process those criminal cases. In the case before me, a dangerous trend was set by the defendant’s disobedient conduct and it needs to be arrested before such conduct gets a foothold in this country. When it occurs, it should be reproved by the Courts in the strongest terms and this should be reflected in the punishment the court imposes. This is the paramount consideration that has convinced me that a strong punitive and custodial sentence is appropriate.
    
17. With regard to whether a part or the whole of the sentences should be suspended on conditions, the Supreme Court in Tardew v The State Public Prosecutor [1986] PNGLR 91 identified three main categories where suspension may be appropriate as follows::
    

“We consider that suspension under s 19(6) of the Criminal Code is, or may be, appropriate in three broad categories. There may be other categories but these are the main ones:

(a) Where suspension will promote the personal deterrence, reformation and/or rehabilitation of the offender. The suspension or part of the sentence on the condition that the offender keep the peace and be of good behavior for a specific period may deter him from committing further crimes in that period. If he has committed a number of offences beforehand, the suspension may reform his lifestyle .His early release from prison because of the suspension may assist his rehabilitation back into the community. It would enable him, for example, to get a job and support himself and his family earlier than would otherwise be the case.
(b) Where suspension will promote the repayment or restitution of stolen money or goods. Suspension is a useful device to secure this end.
(c) Where imprisonment would cause an excessive degree of suffering to the particular offender for example because of his bad physical or mental health. Some general discussion of additional hardships which a particular offender may face in prison as a mitigation factor – not particularly in relation to suspension of part of a sentence – is found in D A Thomas, Principles of Sentencing (2^nd ed 1979), at 215-216.”

18. The first category applies to young offenders where there is prospect for rehabilitation of the offender: also see Gimble v The State [1988-89] PNGLR 271. The defendant here is not a young offender. The first category may also apply to adult offenders. There may exist special circumstances that may warrant suspension such as the adult offender has good antecedents and the offence is one of opportunity. In an act of leniency towards the offender, suspension may be warranted in order to give the adult defendant a second chance. The weight to be attached to such antecedents is reduced if the very offence, such as the offence in this case, involves disobedience to the commands and duties of the office the defendants holds that entails those antecedents.
    
19. The second and third categories are not applicable to this case.
    
20. Had it not been for all the mitigating factors and extenuating circumstances that I have alluded to, I would have imposed a higher sentence in the range of 4-6 years imprisonment.
    
21. I am satisfied that in all the circumstances, a sentence of 3 years imprisonment in hard labour on each count is appropriate and I impose the same. Given the two counts overlap in terms of the events of 2^nd July 2014, the sentences are made concurrent. A Warrant of Commitment attached to this judgment is issued forthwith.
    

Nale Lawyers: Lawyer or the Plaintiffs
Young & Williams: Lawyer for the Defendant

Criminal Parctise Rules 1987 FORM 5

Papua New Guinea

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 484 of 2014 Between MATHEW DAMARU, Detective Chief

Superintendent of Police and the Director of National Fraud and Anti-Corruption

Directorate (First Plaintiff/Applicant) & TIMOTHY GITUA, Detective Chief Inspector of

Police and Deputy Director of National Fraud and Anti-Corruption Directorate (Second Plaintiff/Applicant)

and GEOFFREY VAKI, the Commissioner of Police (Defendant/Respondent)

WARRANT OF COMMITMENT

TO: the Commissioner of the Correctional Service and to all Members of the Police Force and to the Officer in charge of the Correctional Institution at Bomana, National Capital District

At this sitting of the National Court of Justice at Waigani on 17^th day of June 2015 GEOFFREY VAKI (the offender) was found guilty of two counts of Contempt Of Court for failing or refusing to effect the arrest of Prime Minister Peter O’Neill pursuant to Warrant of Arrest issued by the District Court at Port Moresby on 12^th June 2015.

AND SENTENCED to be imprisoned for three years imprisonment in hard labour on each count to be served concurrently, as follows –

(a) Length of sentence: 3years imprisonment IHL
(b) Length of period deducted: NIL
(c) Length of sentence to be served 3 years imprisonment IHL

YOU ARE COMMANDED TO CONVEY the offender to this Correctional Institution and deliver him/her together with this Warrant to the Officer in Charge thereof.
YOU ARE FURTHER COMMANDED TO RECEIVE the offender into your custody and imprison him/her in this Correctional Institution in hard/light labour for the term of 3 years imprisonment calculated from the date of this Warrant.

DATED this 3^rd day of July 2015

BY THE COURT

...(signed)......

INJIA CJ

Judge