OS (JR) 608 OF 2010; Geoffrey R.E Vaki, MBE, QPM, DPS v Gari L Baki, OBE, DPS, CSt.J in capacity as the Commissioner of Police and National Executive Council and The Independent State of Papua New Guinea (2014) N5612

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 13 June 2014
• Court: National Court
• Citation: (2014) N5612
• Year: 2014
• Judgement Number: N5612

Full Title: OS (JR) 608 OF 2010; Geoffrey R.E Vaki, MBE, QPM, DPS v Gari L Baki, OBE, DPS, CSt.J in capacity as the Commissioner of Police and National Executive Council and The Independent State of Papua New Guinea (2014) N5612

National Court: Salika, DCJ

Judgment Delivered: 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) 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 behavior and performs the 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...