Papua New Guinea Law Reports - 1992
[1992] PNGLR 176
SC432
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
PAUL METTA
V
THE STATE
Waigani
Kidu CJ Hinchliffe Konilio JJ
15 July 1992
CONTEMPT OF COURT - Failure to provide vehicle for judge on circuit not per se contempt - Failure not calculated to interfere with administration of justice.
CONTEMPT OF COURT - Nature of.
CONTEMPT OF COURT - Practice and procedure - Procedures in Rules of Court to be followed.
Facts
This appeal was against an order of committal for contempt made by a judge who was left stranded at the airport on arrival for circuit hearing in Kimbe. This was in circumstances which caused him grave embarrassment as well as exposure to the danger of possible payback attacks from criminal elements in the area. The judge found guilty all the officers responsible for the provision of transportation to meet him at the airport, and having heard their explanation, committed to 1 month imprisonment the assistant operation officer for his failure to properly advise the driver of the time of arrival of his flight.
Held
1.       Failure of the appropriate officials to provide a motor vehicle to meet the judge at the airport is not per se contempt of court.
2.       The Rules of Court contain a comprehensive statement of the procedure to be followed in cases involving contempt of court (O 14 r 38). These were not followed by the judge.
Cases Cited
Papua New Guinea cases cited
Robinson v The State [1986] PNGLR 307.
State v Taua, Re Awaita [1985] PNGLR 179.
Other cases cited
Attorney-General v Times Newspapers Ltd [1974] AC 273.
Helmore v Smith (1887) 35 LR Ch D 436.
Counsel
D Koeget, for the appellant.
S Soi, for the respondent.
15 July 1992
KIDU CJ HINCHLIFFE KONILIO JJ: The appellant was imprisoned for a month on 6 July 1992 for contempt of court by the National Court sitting at Kimbe.
On 8 July 1992, the Public Solicitor filed an appeal against conviction and sentence. The following day the Chief Justice, sitting as a Judge of the Supreme Court, released the appellant on bail pending hearing of his appeal.
The story of this matter is contained in the Reasons For Decision and Sentence of the trial Judge:
"REASONS FOR DECISION AND SENTENCE
The National Court was to commence its circuit to Kimbe, West New Britain Province, on 6 July 1992, in accordance with the National Court Calendar drawn up by the Chief Justice.
To ensure that the Court was not inconvenienced in any way, I instructed my secretary on or about the second week of June, 1992 to make the necessary arrangements. These included, among other things, the hiring of a VIP vehicle from the Transport Pool at Kimbe.
To enable me to commence the circuit on time, I instructed my secretary to make arrangements for me to depart Rabaul, where the seat of the National Court in the New Guinea Islands is, for Kimbe on Sunday 5th July. I was then booked to depart Rabaul on the Air Niugini flight at 7.00 am. My secretary, in the course of her arrangements, notified PTB Kimbe to that effect. She reconfirmed this on Friday, 3rd July.
As the plane was landing at Hoskins yesterday, I looked out through the window for the VIP vehicle but could not see any. I came out near the park after the aircraft had landed but there was no sign of a VIP vehicle from PTB, Kimbe. I waited, hoping that the vehicle might be running late. The aircraft then took off for Port Moresby but still there was no sign of the VIP vehicle.
As I waited, the number of vehicles at the car park started getting less and less. My anxiety increased, thus forcing me to consider hiring a PMV to Kimbe. I then asked a person who was going towards a PMV if he was travelling towards Kimbe but he indicated that he was not. Realising that I would only be embarrassing myself if people found out that I, a Judge, was travelling in a PMV vehicle on official business, I abandoned the idea of travelling in a PMV. My associate and I could not do anything else with about seven (7) items of luggage, three (3) of them being very heavy with books and files.
Realising that Air Niugini staff were still inside the terminal building and that their bus was still outside I sent my associate to ask the manager to see me as I wanted to find out if they could give us a lift to Kimbe. A man from Air Niugini came out and informed me that he would have no objection to helping us but since their bus had no seats at the back, he had contacted Palm Lodge Hoskins which had been taken over by Palm Lodge Kimbe and that a Palm Lodge vehicle would be arriving in a few minutes.
About 10 minutes later the vehicle from Palm Lodge arrived and I was taken to the Hotel at Hoskins. While I was having breakfast, arrangements were made for a vehicle from Palm Lodge Kimbe to pick me up. Up to this time there was still no sign of the VIP vehicle. This was one and a half hours later.
While I was standing outside the Hoskins Hotel after breakfast, I saw a yellow vehicle which appeared to be a PTB vehicle travelling at high speed towards Hoskins airport. The same vehicle then came to the Hoskins Hotel where I was standing. Sure enough it was a PTB vehicle and a Manus man whose name I cannot recall but someone I understand is amongst those who authorise the hire of vehicles or who has something to do with hire of vehicles, came out and tried to give me some explanation but I told him that I refused to travel in his yellow vehicle which appeared to be a Mazda 323 and that Palm Lodge would take me to Kimbe.
I might mention, in passing, that he had bloodshot eyes which seemed to suggest that he had been drinking and went to bed late or did not sleep for some unknown reason. As it appeared that he had not had his shower, it seemed to me that he got out of bed and raced to Hoskins when someone informed him of my predicament.
Yet, up to this time, which was about 9.45 am, there was still no sign of the VIP vehicle. The driver of the yellow PTB Mazda 323 did not leave but parked his car outside the Hotel and waited.
Then a red vehicle which appeared to be a Nissan Sunny Station Wagon owned by Palm Lodge Kimbe arrived and I was taken to Kimbe in it.
On the way to Kimbe, I think it was near Kwalakesi, we passed the VIP land cruiser HZ model which is similar to my own vehicle in Rabaul except for the colour. This was well past 10.00 am.
The person from PTB who went in the yellow mazda 323 informed me at Hoskins that the VIP vehicle was washed on Friday in preparation for my arrival on Sunday.
Whilst I am grateful to the staff of Air Niugini and the Manager of Palm Lodge for going out of their way to assist me, the actions of PTB Kimbe and its officers have not only brought me embarrassment in the eyes of the Palm Lodge staff and Air Niugini staff as well as others who may have heard of me, a Judge, not having transport on official business, but they have, by their actions, questioned my integrity as a Judge and brought my standing and the standing of the court into disrepute. They have not given me the respect that I deserve as a Judge of the National Court and Supreme Court of this country.
By their actions they have also placed my life at risk. I have made many decisions both favourable and unfavourable. Some of those decisions involved politicians and hard core criminals. All that criminal elements intent on taking revenge against me needed to know was that I was stuck at Hoskins Airport with no means of escape.
In the circumstances the Operations Manager, PTB Kimbe, the Transport Manager, the Transport Officer, the driver of the VIP vehicle who was supposed to have picked me up and any officer whose job it was to ensure that the vehicle picked me up on time, have failed in their duty to the court under s 225 of the Constitution and which failure I consider to be nothing more than one which has occurred in the face of the court, and so I find the Operations Manager, the Transport Manager, the Transport Officer, the driver and any other Officer who was to have ensured that I was picked up on time, guilty of contempt of court. Such failure has also resulted in the Court wasting its time in dealing with this matter when it should have gone straight into matters which involved the administration of Justice to the people of West New Britain particularly in the face of the growing law and order problems.
I order that the Provincial Manager, Kimbe, give me the names of those officer now if he is available in Court. If he is not available he shall appear before me within 30 minutes from now for such purpose. I will then go on to consider the appropriate penalty I should impose on such officers.
Court notes officers from PTB present in court and court asks them to explain why they should not be sent to gaol at Lakiemata. These officers are:
1.       Esley Enana, Provincial Manager
2.       Charles Marani, Provincial Transport Officer
3.       Potuan Poion, Senior Operation Manager
4.       Buake Wengu, Driver
5.       Paul Metta, Assistant Operation Officer
1.       Esley Enana - Explanation
According to the fax that was sent we knew of your arrival yesterday. We got everything ready and it was confirmed on Friday by telephone. Your arrival was on flight 203. But the responsibility is on the Plant and Transport Officer who informs the Senior Operation Officer of who has hired the vehicle. I did not turn up for duty on Thursday and Friday due to my wife being ill with malaria. Everything was left to the Plant and Transport Officer who was to ensure that whatever was required to do was done. When I went to the office yesterday (Sunday) at about 12.30 I was informed that the vehicle was gone to pick you up.
2.       Charles Marani - Explanation
On 17 June, we received your fax from Rabaul. I got a photocopy of the fax and gave it to Senior Operation Officer Mr Potuan to arrange the vehicle to pick you up on Sunday.
On Saturday morning we cleaned the vehicle and advised Operation Officer Potuan Poion, Peter Siwai and Paul Metta. It was arranged and put on the board that your arrival time was 7.40 am. I came down on Sunday it was 8.15 am. I checked and the vehicle had not left the pool. It was still there so I looked for my senior operation officer, Potuan, because the driver was given the key on Saturday morning to pick you up. After I saw Potuan he left for the airport.
After Potuan left I found the driver walking to church for service. I took him down to the pool to take the vehicle. The driver told me he was given wrong time. When we got to the pool we discovered that the tyre was flat. After we changed the tyre he took off for Hoskins.
[Potuon Poion - Explanation]
According to my immediate supervisor, the Plant and Transport Officer Mr Charles Marani, the fax which was sent on 17 June was received. He actioned the fax and sent it to me as Senior Operation Officer. I noted the fax and stapled it to my diary stating that the National Court sittings will be held in Kimbe on 6 July 1992. Also in the same fax it stated your arrival time at Hoskins airport from Rabaul at 7.40 am on 5 July, Sunday. Apart from that, the same fax was received two weeks earlier and was reconfirmed on Friday 3 July, 1992.
Before your arrival yesterday, your vehicle (the VIP station wagon) was washed and ready on Saturday 4th before your arrival on Sunday. So before the VIP vehicle was ready for your arrival on 5 July, I told my two duty officers, Paul Metta and Anton Nuli (a different driver) and instructed Paul Metta and also on the notice board and the operations officer.
I wrote on the board for your coming on Sunday. It was written clearly on the board stating that one only VIP vehicle for Judge Jalina arriving Hoskins from Rabaul 7.40 am.
Your Honour, apart from that arrangement on Saturday, I thought to myself that vehicle was ready for pickup on Sunday.
I discovered early on Sunday morning when Mr Marani dropped into my house and asked me if the vehicle had left to pick you up at the airport. I told him that I told my operation officer Mr Paul Metta that on Friday 3rd July in the afternoon before 4.00 pm to get a VIP driver and wash the vehicle on Saturday. So I told my immediate supervisor (Plant and Transport Officer) after he had spoken to me to find the VIP driver. After he left for the airport.
3.       Peter Siwai - Explanation
On Friday morning 3 July, we had a telephone call from your office in Rabaul to re-confirm the trip from Rabaul - Hoskins on Sunday referring to your flight, time and day. It was a confirmation of the fax that was sent in advance. Then I spoke to Potuan the Senior Operations Officer in regard to the fax and he have his okay for the vehicle to be provided for you on Sunday.
At about 3.30 pm Friday 3rd July I noticed on the notice board that the senior operations officer had written on the notice board what he said in his statement to you a while ago. That it was written clearly for anybody to see. That there should not have been any failure to pick you up at the airport.
I believe that the duty officers were working on Saturday morning. They were Paul Metta and Anton Nuli. Then on Sunday morning at about 6.30 am I took my little girl for a walk and as I live close to the pool, I look inside and I saw the vehicle was still there. I thought the driver was still walking down. Then at about 8.15 or 8.30 am I realised that the car was still there. Then I was trying to find out from the senior operation officer if the driver might use another car or if the driver was sick.
On the way from the pool up to the main road I met Charles Marani, the Plant and Transport Officer and then I asked him about why the vehicle did not go or the driver used another car and asked him about the time as the driver should have gone to pick up Judge at 7.40. I then went to the road and then proceeded to see Potuan.
When we had the telephone call from your Office on Friday 3rd July, we decided to call your current driver to brief him about your trip. This was about 3 o'clock on Friday. Before the driver came we had a client from Education Department with us. The driver came in, he dropped the key for a sewerage truck and he left. We had not briefed him but since the Senior Operations Officer had put the notice on the board, we believed that we had one more day, Saturday, so that when the driver comes in, the duty officer can mention it to him.
Duty Officers start work at about 7.30 am on Saturday and finish about 2.00 pm.
4.       Paul Metta - Explanation (in pidgin)
Potuan i bin givim fax bilong yu long mi na mi bin lukim. Long Friday afternoon Potuan toksave gen long mi long kar bilong yu long Sande. Mi laik toksave long draiva tasol draiva ino bin istap. 4 kilok pinis. Mi no save husait ibin tokim em tasol long Saturday morning em in bin kam long opis.
Em i kam long klinim VIP kar. Em kam kisim key na em i go klinim kar. Dispela draiva em Buake Wengu.
Taim em i klinim kar pinis em i parkim kar long carpark. Em i parkim kar pinis em i ino kam lukim mipela. Em i wakabaut tasol i go autsait long gate na mi singautim em. "Hey yu mas kam kisim kar long morning." Mi no givim em wanem taim em bai kam na kisim kar. Mi tokim em tasol em bai kam long morning.
Long Sande mi no bin wakabaut igo daun long wanem em i longwe long mi. Em tasol.
5.       Buake Wengu - Explanation (in pidgin)
Ol ino bin tok klia long mi long taim tasol yu kam olsem na mi kam wasim kar tasol na mi go. Mi ting olsem em long apinun. Aste mi go long airport taim bos bilong mi igo painim mi na tokim mi. em tasol.
Sentence
I have considered the explanation given by each officer concerned and am of the opinion that Esley Enana, Potuan Poion, Peter Siwai, Charles Marani and Buake Wengu have given me a satisfactory explanation as to the part they played respectively towards ensuring that the vehicle picked me up on time but I must warn them they should in future ensure that there is no confusion by any of their subordinates.
I find that the failure of the driver Buake Wengu to pick me up and the embarrassment I have been put through as well as the danger to my life were due to the failure of Paul Metta to remind the driver of the time he was supposed to pick me up at the airport. I consider that as a lesson to those who may wish to be lax in their duties and for them to exercise a sense of responsibility towards the execution of their duties, I sentence Paul Metta to one month imprisonment in hard labour. I must warn the Officers at PTB that if it happens again I will not hesitate to impose a custodial sentence on each of you as well."
There are three grounds of appeal:
(a)      The trial Judge erred in law in that he failed to apply the proper procedures for dealing with the offence of contempt of court.
(b)      The trial Judge erred in finding that the failure of the appellant to properly advise the driver who was to have picked up the judge at the airport amounted to contempt of court.
(c)      The sentence was, and is, in all the circumstances manifestly excessive.
As is obvious from the judgment appealed against, the appellant and others were found guilty of contempt of court before they were asked to explain themselves, and after their explanations were heard, the appellant was sentenced to one month imprisonment with hard labour. This was the first error made by the trial Judge.
As the alleged contempt was committed out of court (and before the court even commenced its Kimbe sittings), it should not have been dealt with in the way it was dealt with by the trial Judge. This is the second error made by the trial judge.
As was said by this Court in Robinson v The State [1986] PNGLR 307 at 309:
"The rules of the National Court contain a comprehensive statement of the procedure to be followed in cases involving contempt of court (O 14 r 38) and in other situations where the contempt complained of is in connection with proceedings in the court (O 14 r 42).
The correct procedure in a case such as this one would be by notice of motion or originating summons with supporting evidence by way of affidavit (O 14 r 44), and see The State v Mark Taua, Re Awaita - Contempt Proceedings [1985] PNGLR 179. The State Prosecutor would be a competent person to initiate such proceedings. If the correct procedure had been adopted, the matter would, in our view, need to be listed before another judge, due to the events which took place in the Judge's chambers."
The two errors made by the trial Judge would be sufficient basis for quashing the conviction and sentence. But there is a more serious reason for nullifying the conviction and sentence and that is that it is not per se contempt of court to fail to provide a motor vehicle to a judge. Contempt of court is an act or omission calculated to interfere with the due administration of justice: see Helmore v Smith (1887) 35 LR Ch D 436 at 455, per Bowen LJ. This definition includes contempt in the face of the court and outside court.
In this case, there was no evidence that the failure to provide the trial judge with a motor vehicle was calculated or intended to interfere with the due administration of justice. The evidence is clear that a motor vehicle was driven to the airport to pick up the Judge after he had left the airport in another vehicle and that this failure to pick him up occurred because the appellant had not told the driver the time of arrival of the aircraft the Judge was travelling in.
Judges ought to remember the purpose of their contempt powers. Lord Morris stated this purpose in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 302 as follows:
"In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted."
We allow the appeal, quash the conviction and sentence.
Lawyer for the appellant: D Koeget.
Lawyer for the respondent: S Soi.