The State v Foxy Kia Tala; Re Corney Winjan

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 21 February 1994
• Citation: [1995] PNGLR 303
• Court: National Court
• Year: 1995
• Judgement Number: N1192

National Court: Sevua J

Judgment Delivered: 21 February 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

FOXY KIA TALA;

RE CORNEY WINJAN

Lae

Sevua J

10 December 1993

13 December 1993

21 December 1993

31 December 1993

21 February 1994

CONTEMPT OF COURT — Police officer — Duties — Attendance in court as witness — Failure to attend — Interference with administration of justice — Suspended sentence — Good behaviour bond.

PRACTICE AND PROCEDURE — Order 14 National Court Rules — Whether contempt in the face or hearing of the National Court should be dealt with by another judge — Proceedings by way of summons distinguished from summary proceedings.

Facts

The accused, the investigating officer in a criminal case, failed to make available witnesses during a short criminal call over. He also failed to attend as a witness upon resumption of the trial later in the afternoon, instead leaving town the same day to attend to another case.

As the presence of the accused was material to the case, there being a voir dire where he was required to testify, the case was adjourned and was further adjourned due to the continued absence of the accused.

Held

1. The officer had interfered with the due administration of justice.

2. Undue interference with the administration of justice must be seriously addressed and eliminated so the authority of the courts is not flouted continously.

3. Being a police officer, the Court should be stern in its sentencing. The defendant was sentenced to six months imprisonment in hard labour, suspended on certain conditions.

Cases Cited

Papua New Guinea cases cited

Metta v The State [1992] PNGLR 176

Re Passingan Taru [1982] PNGLR 292.

Robinson v The State [1986] PNGLR 307.

SCR No 3 of 1984, ex parte Callick and Koroma [1985] PNGLR 67.

Other cases cited

AG v Leveller Magazine Ltd [1979] AC 440; [1979] 2 WLR 247; [1979] 1 All ER 745; (1979) 68 Cr App R 342.

Jennison v Baker [1972] 2 QB 52; [1972] 2 WLR; [1972] 1 All ER 997.

Counsel

S Kesno, for the State.

J Yamboli, for the contemnor.

21 February 1994

SEVUA J: On 31 December 1993, I found Corney Winjan guilty of contempt of court and reserved sentence until today.

The facts leading to the charge of contempt of the court are these: Constable Corney Winjan is a detective attached to the Serious Crimes Squad of the Criminal Investigation Division at Lae Police Station. He was the investigating officer in the case of The State v Foxy Kia Tala. On 18 August 1993, Hinchliffe J adjourned the case to 9.30 am 8 December 1993 for trial before me. On 30 November 1993, Mr S Kesno, a State prosecutor, notified Constable Winjan in writing of the trial date, as mentioned above. Again on 6 December 1993, Mr Kesno verbally reminded Constable Winjan of the trial date and instructed him to bring the State witnesses for the trial. Constable Winjan then advised Mr Kesno that he (Winjan) had checked out two of the witnesses who were employed by Cartrans Pty Ltd in Chinatown, Lae, and that they would be available for the trial.

On Wednesday morning 8 December 1993, whilst I was dealing with short criminal matters for mention, the contemnor attended court. When Mr Kesno asked if the witnesses were available, the contemnor said he was busy with other matters, then left. The two witnesses were, therefore, unavailable to give evidence. In mid-morning that day, when the case was called, the Court was informed of the above conversation between Mr Kesno and Constable Winjan. I adjourned the trial to 1.30 pm and ordered that Constable Winjan appear before me at that time. Upon resumption at 1.50 pm, the Court was informed that Constable Winjan had left that morning for Morobe South Coast to arrest a suspect in a wilful murder case. He was expected to return to Lae the next day, but no definite time could be given. Mr Kesno said he had informed Constable Winjan that morning that he (Winjan) was required as a witness, but he (Kesno) could not do much, as Constable Winjan had said he was going to Morobe.

In the meantime, one State witness became available and was able to give evidence that afternoon. The second witness was a truck driver, and the Court was informed that his truck had broken down somewhere in the Eastern Highlands; therefore, he was not available. Senior Constable Kale, who was the corroborator in the record of interview conducted by Constable Winjan and the fourth State witness, was available. However, he could not be called because the trial involved a voir dire and, thus, Constable Winjan was required to testify before Senior Constable Kale. Constable Winjan was not available that afternoon because he was in Morobe. The Court had to be adjourned to 9 December 1993 to enable Constable Winjan to attend. One afternoon of the Court's time was, therefore, wasted. In the meantime, I indicated that if Constable Winjan was not present by 9 December, I would order his arrest. I also asked Mr Kesno to relay what I have said above to the immediate supervisor of Constable Winjan, Sgt Chris Dakin, who i the Officer in Charge of Serious Crimes Squad. I also requested the attendance of Sgt Dakin and the Officer In Charge of CID, Chief Inspector Powis, on 9 December.

On the morning of Thursday 9 December 1993, both Sgt Dakin and Chief Inspector Powis attended. I expressed my concern over this matter to them as immediate superiors of Constable Winjan, and indicated that if Constable Winjan was not present at 1.30 pm, I would have him arrested. The Court was informed by both Mr Kesno and Sgt Dakin that Constable Winjan had not yet arrived from Morobe. In respect of the trial of Foxy Kia Tala, the State was not in a position to resume due to Constable Winjan's absence as a State witness. Sgt Dakin informed the court that he did not know that Constable Winjan was required for this trial until he received the court order of 8 December. He had communicated my order to a timber company in Morobe to relay it to Constable Winjan, however, he did not know if the court order had reached Constable Winjan. The trial was again adjourned to 1.30 pm that day. When the Court resumed at 1.50 pm, Mr Kesno informed the Court that Constable Winjan was still at Morobe but had been told of the rder before 12 midday that day, and arrangements were being made with a landowner company to provide transport to Constable Winjan, since the Police Department did not have funds for transport. The Court had to adjourn again to Friday 10 December. As far as the trial of Foxy Kia Tala was concerned, another sitting day of the Court was wasted.

On Friday 10 December 1993, when the Court resumed at 9.20 am, Mr Kesno advised the Court that Constable Winjan and the second State witness, Daniel Zure, were in attendance, and the State was ready to resume the trial.

Constable Winjan was then called on. He was informed that he had been cited for contempt in the face of the Court, and particulars of the contempt were read to him. A written statement of charge was later served on him. He was informed that he would be given adequate time to seek legal representation if he required. He was ordered to be remanded in custody. However, that order was later revoked, and he was released on his own recognizance to appear at 9.00 am on 13 December 1993. He did appear, and the contempt of court charge against him was further adjourned to 21 December to enable him to secure a lawyer.

On 21 December 1993, Constable Winjan appeared in obedience to his bail with his counsel, Mr John Yamboli. Counsel applied for this matter to be dealt with by another judge on the grounds that I would now be the complainant in these proceedings and, pursuant to O 14 r 44 of the National Court Rules, I would be required to provide affidavit evidence against the contemnor. Under O 14, there are two different procedures for dealing with a contemnor. Rules 38 — 40 deal with contempt in the face or hearing of the Court. This procedure is dealt with summarily. Rules 41 — 46 deal with contempt in connection with proceedings of the Court, and this procedure is commenced by notice of motion or originating summons. In the present case, I was dealing with this matter under rules 38 — 40, except that I had given the contemnor time to seek legal assistance to reply, if he so desired.

In my view, where a contempt in the face or hearing of the Court...