Richard Charles Sikani v The Independent State of Papua New Guinea and Peter Luga (2005) SC807

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Los J, Sevua J
• Judgment Date: 22 September 2005
• Court: Supreme Court
• Citation: (2005) SC807
• Docket Number: SCA 79 of 2002
• Year: 2005
• Judgement Number: SC807

Full Title: SCA 79 of 2002; Richard Charles Sikani v The Independent State of Papua New Guinea and Peter Luga (2005) SC807

Supreme Court: Amet CJ, Los J, Sevua J

Judgment Delivered: 22 September 2005

PAPUA NEW GUINEA

[Supreme Court of Justice]

SCA 79 of 2002

BETWEEN

RICHARD CHARLES SIKANI

First Appellant

AND

THE INDEPENDANT STATE

OF PAPUA NEW GUINEA

Second Appellant

AND

PETER LUGA

Respondent

Waigani : Amet, CJ

Los, J

Sevua, J

2003 : 22 April, 15 August

2005 : 22 September

CONTEMPT – Contempt of Court – Nature of contempt – Whether penalty for contempt a sanction or criminal penalty – Findings of non-compliance with order by first appellant – Whether such findings supported by evidence – Whether trial Judge erred in convicting first appellant of contempt.

Cases cited in judgment

Hillindon London Burrough Council (1968) 1 QB 124

Queen v The Justices Berkshire (1879) 4 QBD 469

Stancomb v. Trowbudge District Council (1910) Ch Div 190

Ome Forests Ltd v. Ray Cheong & Ors, OS 81 of 2001, unnumbered, 8th October 2002

Nombri Ambre v. The State [1995] PNGLR 453

Re. Bramblevale Ltd [1970] Ch 178

Knight v. Clifton [1971] Ch 700 at 707; [1971] 2 All ER 378 at 381

Dean v. Dean [1987] 1 FLR 517 at 521

Yap v. Tan [1987] PNGLR 227

Hadkinson v. Hadkinson [1952] P 285 at 288

Banbury Board of Health (1865) LR 1 Eq 42 at 48

Harding v. Tingey (1864) 12 WR 684

Howitt Transport v. Transport and General Workers Union [1973] ICR 1 at 10

Re Swan River – The Pas Transfer Ltd (1975) 51 DLR (3d) 292 at 308

Northwest Territories Public Service Association v. Commissioner of the Northwest Territories (1980) 97 DLR (3d) 202 at 233

C Makail for Appellants

A Baniyamai for Respondent

AMET, CJ & LOS, J: The First Appellant is the Commissioner of Correctional Institutions Services in Papua New Guinea. He was charged for contempt of Court on the 23rd of May 2002 for failing to comply with the court order of 1st May 2002.The order commanded him to restore the First Respondent, Peter Luga, to the Corrective Institution Services with full salaries and conditions. He was found guilty on two counts of contempt and sentenced to six months imprisonment in hard labour on 4th October 2002.

On the same date an appeal was lodged and he applied for bail, which was granted. The appeal contained eight grounds. They were -

a) The learned trial judge erred in law and in fact in finding the First Appellant guilty of contempt when there was insufficient evidence to suffice of finding of guilt.

b) The learned trial judge erred in law and in fact in returning a verdict of guilty against the First Appellant for contempt when the First Appellant within his administrative capabilities complied with the orders of the National Court dated 22nd April 2002 within the appeal period.

c) the trial judge erred in law in allowing evidence after closure of trial.

d) The trial judge erred in law and in fact in finding the First Appellant guilty of contempt when the evidence relied on by the court to convict the First Appellant was by a letter written by the First Respondent’s Lawyers demonstrative of willful neglect to obey orders when in fact such was not the case.

e) The trial judge erred in law and in fact in finding the First Respondent guilty of contempt in allowing evidence into court against the rule in Brown and Dunn.

f) The trial judge erred in law and in fact in finding the First Appellant guilty of contempt in totally disregarding the evidence through affidavits and oral testimony by the First Appellant and his witnesses when such evidence were credible and capable of suggesting an alternative finding

g) The trial judge erred in law and in fact in pronouncing a judgment that was calculated at critically describing and attacking the First Appellant, senior officers of the corrective institutional services, and the first Appellant’s Lawyer when such conduct is seen to be bias and one sided.

h) The penalty of six months imprisonment is harsh and oppressive under the circumstances and does not correspond to the offence the First Appellant was found guilty and convicted of.

Immediately the Respondent filed an objection to competency of the appeal on following grounds:

(a) Ground 3(h) of the Notice of Appeal is a ground against sentence which is not fixed by law and thus leave is required pursuant to section 22(d) of the Supreme Court Act. The Appellant had failed to seek leave under section 17 of the Supreme Court Act.

(b) The Respondent Peter Luga should not have been named and joined to these proceedings as the appellant has been convicted and is a state prisoner on bail. The Independent Sate of Papua New Guinea should have been named as the Respondent.

(c) The Independent State of Papua New Guinea should have not been named as an appellant because the contempt proceedings and the statement of charges were preferred against the first appellant alone.

Subsequently only the first ground of the objection was retained. That is ground number one of the objection. On this ground the Respondent argues that the appellant cannot appeal against the sentences on contempt unless leave has been applied for and granted under section 22(d) of the Supreme Court Act. This is because contempt of court is not a criminal offence defined by or falling within the ambit of sections 2 and 3 of the criminal code. That is no leave had been sought and that none was granted within the 40 days requirement after the date of conviction as required under section 29 of the Supreme Court Act. It was argued therefore the appeal was incompetent.

The appellant contends to the contrary on two basis. Firstly, leave is not required because conviction and sentence for contempt is exempted from the requirement of sections 22 of the Supreme Court Act. Secondly as the appeal against conviction is already before the court and it cannot be separated, the appeal court must deal with both issues as one.

We deal here with the first part of the issue. There is no issue on what section 29 says as to the period within which an appeal or leave to appeal may be lodged or sought. But the issue raised by the respondent is whether a leave is needed as condition precedent to an appeal from finding of guilt, conviction and sentence for contempt. The appellant argues on the other hand that leave requirement under section 22 does not apply to an appeal from finding against and imposition of a penalty. That is because a penalty imposed on a contemnor is a sanction and not a criminal punishment as such. We accept this argument. But for more reason that in this case the thrust and the base of the appeal is that whether the appellant committed any acts of contempt at all. That question has now dragged the whole issue of finding of ‘guilt’ and ‘punishment’ before the Supreme Court.

The appellant does not dispute the existence of the Court Order of 22nd April 2002. But he disputes non-compliance. His first argument is that his lawyer, solicitor General might have been served with the order earlier, but he himself had not been aware until he was served on 8th May 2002. That was two weeks after the decision.

The second point he raises is that as the contempt of court is against a person individually, in this case the appellant as the head of CIS, before he could be guilty it must be shown that the commissioner himself had known about the order and hat he personally had failed to comply with the court order. In this case therefore there was no evidence of any wilful disobedience.

In this case when the appellant did receive the court order of the 22nd April 2002, he immediately gave verbal directions to his subordinates as is normal practice in the government services i.e. Executive Officer to implement it. That is confirmed in the evidence of the assistant commissioner Personnel Management and Training, Mr. Baltahasa, and Mrs. Daton, officer in charge of Salaries. The latter said in evidence that she had come across a court order on 16th May 2002.

The respondent’s counsel stressed that the appellant had done very little or nothing at all to comply with the order. He referred to two English cases to support the argument. They were Hillindon London Burrough Council (1968) 1 QB 124 and the Queen v The Justices Berkshire(1879) 4 QBD 469. We consider on the other hand the more appropriate meaning in the circumstances of this case is within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished. The Commissioner was not running a family Store or a car yard. He was running a part of Public employment system in the country. The system has been designed to ensure that public finance is managed under the checks and balance system. Each part of the finance transaction mechanism relating to employment was entrusted to different officers. True the commissioner could get up, move through each step himself but the point is that he was found guilty not because he was slow and irritable but because he had deliberately not complied with the court order. Comparatively he did not act as it was done by the Police Commissioner, Wakon in Gari Baki's case where Baki was reinstated by the court in the...