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Augerea v Maino [2018] PGNC 551; N7687 (24 August 2018)

N7687

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS. NO. 502 OF 2017


IAN AUGEREA
as Registrar of the National Court


V


MAINO MAINO, MANU MOMBI, BARNSLEY KEN


Kimbe: Batari, J
2018: 9th March, 24th August


CONTEMPT OF COURT – Court officers drinking at National Court premises and within hearing of the Court proceeding – whether contemptuous conduct deserving punishment.


Cases Cited
Papua New Guinea Cases


Andrew Kwimberi v The State (1998) SC 545
Metta v The State [1992] PNGLR 176
Re Contempt of Court; Re Assistant Registrar, Philip Kaumba [2004] PGNC21; N2763 (2004)


Overseas Cases


Morris v. The Crown Office [1970] 1 All ER 1079
Re Johnson [1887] UKLawRpKQB 172; (1887) 20 QBD 68


Text Book Referred


Injia on Contempt of Court in Papua New Guinea and the Pacific
Civil Procedure in the National Court.


Counsel


P. Ifina, for the Registrar
D. Kari, for the Contemnors


24 August, 2018


  1. BATARI J: The three contemnors allegedly committed contempt of court by consuming alcohol at Kimbe Court premises while the National Court sittings was in session. Each contemnor has all along, denied the charge.
  2. Maino Maino is employed with the National Judicial Staff Services (NJSS) as Security Supervisor attached to Kimbe National Court. He is under suspension pending the outcome of this Contempt of Court case against him. He allegedly joined two warders in consuming alcohol at the reception area or foyer of the Court House Holding Cell Block (the CB foyer).
  3. Manu Mombi and Barnsley Ken are both employed with the Correctional Services as warders, attached to Lakiamata Gaol. Manu Mombi was responsible for the transfer and security of detainees to and back from Kimbe Court House Holding Cells on the date in question. Contemnor Barnsley Ken was off duty and visiting.
  4. By virtue of their respective duties and responsibilities in connection with the National Court, the three contemnors are deemed officers of the Court.

Charge: Contempt of Court


  1. The charge against the three court officers is, that on Tuesday 16 May, 2017 the National Court presided over by Miviri AJ was in session in Court Room One while the three men drank alcohol at the adjoining Cell Block. By consuming alcohol within the Court premises, while the Court proceeding was in progress and in full view of the public, the contemnors are said to have engaged in conduct that was calculated by design or inference to interfere with, embarrassed, demean and lower the authority of the Courts. Consequently, the contemnors showed extreme disrespect to the Court and judges such that their contemptuous behaviour offends against and is likely to reduce public trust and confidence in the Court.
  2. The contemnors concede presence within the Court precincts at different times. They also concede consuming soft drinks and deny indulging in alcohol drinking.
  3. Issues
    1. Whether the contemnors were together at the CB foyer at all material times.
    2. Whether the drinks the alleged contemnors consumed were in fact alcohol.
    1. If proven, whether the conduct complaint of, is contempt of court.

Evidence – Uncontested


  1. There are common facts not in dispute from affidavits and oral evidence relied on from both sides. These include court records of the National Court proceedings as follows:
  2. From the National Court recording of the proceedings of 16 May 2017;
  3. Conflicting versions of facts in the main, relate to timing and type/nature of drinks consumed. The contemnors said they had pulpy and coke drinks at the CB foyer together but, at different times. The version each contemnor vehemently denies is, consuming alcohol from midday to late afternoon while the National Court was in session. Only one version is reliable and acceptable as they both cannot be true.

Evidence – Contested time of incident


  1. The common time given by the contemnors of being together and sharing soft drinks was from about 3.30pm. They spoke consistently of the only time contemnors Manu Mombi and Barnsley Ken were present together at the CB foyer was from 3.45pm. Some five minutes earlier, around 3.40pm, prisoner Paul Karl arrived at the CB foyer and gave contemnor Manu Mombi and CS Warder, Nelson Mou, pulpy drinks. At 3.45pm, contemnor Barnsley Ken joined them and they shared pulpy drinks with him. Another five minutes later, about 3.50pm, Maino Maino joined them and Nelson Mou gave him some coke. Before Maino Maino came to the CB foyer, Nelson Mou and Barnsley Ken had gone to Walmart Trading opposite the Court House to buy three 500ml bottles of coke. They then crossed to the town market to buy betel-nuts before returning to the CB foyer. Scholastica Wakal then asked them for some drinks. They however lied to her, they were having mixed drinks to keep her away because she has a habit of joking and soliciting food, drinks and cash from them.
  2. I find the contemnors’ evidence of timing well drilled and told with incredible precision. That was the unravelling of their defence. The evidence was clearly calculated and rehearsed. It unfortunately resulted in timing slipups which defied common sense. For instance, within the five-minute time space before Maino Maino came to the CB foyer, three events had purportedly happened; (i) Nelson Mou and Barnsley Ken went to the shops; (ii) they proceeded to the market; (iii) while having their drinks back at the CB Foyer, they spared the time to dissuade Scholastica Wakal from coming near them.
  3. Applying common sense, it is highly unlikely, those events lasted under five minutes. In all probability, Maino Maino would have joined them some 30 minutes after Nelson Mou and Barnsley Ken went to the stores and market. The timings were clearly made up with strong traits of deception.
  4. Furthermore, the contemnors’ evidence that Maino Maino joined them at 3.50pm, after doing his routine checking of the Court building, Court rooms, offices, and locking the doors, switching off fans, lights and air conditions for the day, is wishful. It is clearly a make-up story. The Court records indicate, the Court adjourned around 3.45pm. Thereafter, Court staff would usually tidy up before vacating the Court room. They would also lock up. Besides, responsible staff members whose duties and responsibilities it is to lock up, would normally attend to those chores attributed Maino Maino. Completing those tasks single-handedly would easily clock at least 20 minutes and not 4 minutes as the contemnors want the Court to believe.
  5. The evidence of other timings of events is similarly fallacious and hence, unreliable. Nelson Mou said the Court proceedings ended at 12.30pm. That is untrue. He contradicted the timings given by the contemnors. Furthermore, the recordings showed the Court adjourned precisely at 3.46:26 pm. Earlier on, the Court adjourned at 11.46am (11.45:56am) for the lunch break. Manu Mombi and Nelson Mou also said the detainees and prisoners were returned to Lakiamata between 2.00pm and 2.30pm. That evidence clashes with the other defence evidence that the contemnors were still at the CB foyer at 3.50pm. The Court recordings also showed, the bail application matters were called at 3.43:40pm and adjourned to Thursday, 18/5/2017. One would expect then that the detainees would not leave until the Court had called their cases.
  6. I accept the evidence of Scholastica Wakal. She noticed Manu Mombi and Barnsley Ken at the CB foyer before lunch hour, drinking. She approached them and then reported to her supervisor, Maino Maino what she suspected the warders were consuming. Maino Maino then joined the two warders and remained with them until the Court adjourned around 4.00pm.
  7. The story of her conversation with the warders is supported by the contemnors’ witnesses, Nelson Mou and Barnsley Ken. Her story of timing is supported by Court interpreters, Steven Dube and Rebecca Tege. The interpreters had two occasions to be free from Court room duties that day. The first was the lunch break. The next was the adjournment at the end the proceedings. Mr Dube and Ms Tege had the opportunity to see the warders together with Maino Maino during lunch hour. That is consistent with the evidence of Scholastica Wakal that Maino Maino joined Manu Mombi and Barnsley Ken after she reported to him. Rebecca Tege also testified, she saw the three men together again at the same place after the Court adjourned for the day. Her story is supported by Scholastica Wakal.
  8. I accept the evidence of witnesses Scholastica Wakal, Steven Dube and Rebecca Tege as collectively cohesive, cogent and hence, highly probable. I find that the three contemnors were present together at the CB foyer from before the lunch hour break to when the court adjourned for the day shortly before 4.00pm.

Evidence: Contested issue of alcohol consumption


  1. The contemnors deny drinking alcohol. However, they conceded sharing pulpy and coke drinks at the CB foyer. The contemnors’ own evidence supports the complainant’s evidence of presence and consumption of drinks at the CB foyer. Having accepted the Registrar’s witnesses on the issue of time, I also find that the three contemnors were together drinking the whole of the afternoon the Court was in session.
  2. The three contemnors were most likely preoccupied with something that kept them engaged and static at the same place (CB foyer), from lunch hour to when the Court adjourned for the day. Was it binge alcohol drinking or did they just happened to while the time away with soft drinks for no apparent reason?
  3. There is damming evidence, alcohol had been freely consumed at the CB foyer in the recent past. I accept the evidence of Correctional Services Officer Leo Hura and Correctional Services Officer Eve Tugen, that some three weeks earlier on 24 April, 2017 contemnor Manu Mombi escorted two detainees to Kimbe Court House. Mr Hura who was then on duty received a phone call that Manu Mombi was drinking with one of the detainees at the CB foyer. Upon arrival, Mr Hura noticed the detainee was heavily inebriated so, he ordered his detention. Ms Tugen who was on escort duty to the Court House that day, confirmed the detainee looked drunk when boarding the vehicle to return to Lakiamata jail.
  4. Contemnor Manu Mombi testified, that relatives of the remandee gave him food and drinks. He did not know what the detainee ate or drank. Impliedly, if the relatives had made the detainee drunk, he was unaware of it and was not to be blamed.
  5. That is a very serious statement of dereliction of duty. It is the business of CS officers to know what relatives and friends give prisoners and detainees in their lawful custody. Such careless and evasive response bespeaks of apparent lack of vigilance against breaches of Correctional Services laws and security protocols. The warden officer was clearly unconcerned about his constitutional duty and responsibility to uphold the integrity of the Correctional Services; security of the court premises; security of other detainees and those attending the court, and the public at large. There is strong evidence that the detainee was not kept in the Court holding cell as required by law but, was given unhindered freedom to roam freely and indulge in alcohol drinking at the court premises.
  6. Having accepted the evidence of Correctional Services officers Leo Hura and Eve Tugen, it is highly probable that Manu Mombi knew and allowed the detainee to drink within the Court precincts. Inferentially he aided and abetted the detainee to get drunk whilst in lawful custody at the Court premises and in breach of the law. The contemnor was highly likely to be drinking alcohol with the detainee on that earlier occasion as spoken of by Mr Leo Hura.
  7. That being the case, it is highly probable, that on 16 May 2017 Manu Mombi had again openly and illegally consumed alcohol with his co-contemnors, at the Court premises. He and his accomplices were undeterred by the authority of the Court and the supremacy of the laws; prevailing security protocols, professional ethics; and oblivious to Court proceedings next door and the presence of members of the public on the footpath a few metres away.
  8. I accept Scholastica Wakal as a witness of truth. She gave evidence against her own supervisor and two warders. She had no reason to tell lies against them under oath. Ms Wakal spoke of seeing Manu Mombi and Barnsley Ken sharing what appeared from her own personal experience, to be mixed alcoholic drinks. She noticed the colour in the coke bottle to be less dark, resembling tea. She cautioned the two warders not to drink at the Court house and immediately reported to her supervisor. Maino Maino instead joined Manu Mombi and Barnsley Ken. The three men remained at the CB foyer drinking until the Court rose for the day. Her story is supported by the two contemnors who conceded her presence and their conversation with her.
  9. The evidence of Steven Dube is also crucial. He confirmed the evidence of Ms Wakal and gave detailed account of his encounter with Barnsley Ken at the CB foyer. When the Court adjourned for lunch, Mr Dube walked from Court Room One, along the holding cells’ corridor to the CB foyer. He noticed presence of several detainees in the cell blocks. I think they included those detainees awaiting their bail applications to be called.
  10. When Steven Dube entered the CB foyer, he observed Maino Maino trying to hide an Orchy drink container with his left hand. The container had dark or coke-like liquid in it. The container was possibly the same the contemnors say, prisoner Paul Karl gave them pulpy drinks in. Manu Mombi was also present with Barnsley Ken. When Mr Dube greeted and handed back to Barnsley Ken his bank card, he responded, “sun hot ya na mipla giaman wasim nek nambaut”. Barnsley Ken conceded a pidgin version, that “san i hot na mipla holim wanwan coca cola stap”. I am satisfied, Steven Dube spoke truthfully. The liquid he saw inside the Orchy container confirms what Ms Wakal saw. I also believe his story that he did not see them drinking but he smelled alcohol from Barnsley Ken’s breath. He stood about a metre away from him when they spoke.
  11. At the time of the incident, Steven Dube was a recent recruit as court interpreter. What he saw possibly shocked him because he immediately told his senior colleague Rebecca Tege about it. He had no reason or motive to tell lies against three Court officers who had been associated with the Court for much longer time than him. His story is consistent with the evidence of Ms Wakal and Ms Tege. It is also strengthened by the contemnors false stories.
  12. I find the stories by the three contemnors on the issues of timing and the type of drinks that had pre-occupied them the whole of the afternoon the Court was in session, evasive and fabricated. The so-called coke and pulpy drinks they mentioned were in fact coke mixed with alcoholic drinks. I am satisfied that the three men were engaging in a drinking binge whilst the National Court was in session a few metres away.

Whether conduct in drinking at Court House amounted to contempt of Court


  1. The next and final issue is whether what the alleged contemnors did amount to Contempt of Court. A contempt may be committed in the face of the Court or out of Court. As to what amounts to contempt, the Supreme Court in, Metta v The State [1992] PNGLR 176 (Kidu, CJ, Hinchliffe J, Konilio J) stated at 184;

“A contempt of Court is an act or omission, committed in the face of the Court or outside Court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice.”


  1. Whether it is a case of contempt committed in the face of the Court or outside Court, the contemptuous behaviour need not be directly connected with currency of or a pending Court proceeding. The Queensland Court in Re Johnson [1887] UKLawRpKQB 172; (1887) 20 QBD 68, which represented the common law position held, that contempt is not necessarily confined to something said or done:
  2. Without attempting to extrapolate the difference, I am inclined to hold, the facts of this case if it is contempt of Court, is ‘Contempt in the face of the Court’ for the reasons that follow.
  3. I start with what Lord Denning MR said in, Morris v. The Crown Office [1970] 1 All ER 1079 at p. 1081;

“The phrase, ‘contempt in the face of the Court’ has a quaint old-fashioned ring about it: but the importance of it is this: of all places where law and order must be maintained, it is here in these courts.”


  1. In this jurisdiction, the Courts have held, the term, ‘Contempt in the face of the Court’ really means: Contempt in the cognizance of the Court: See, Andrew Kwimberi v The State (1998) SC 545; [1998] PGSC 9 and Re Contempt of Court; Re Assistant Registrar, Philip Kaumba [2004] PGNC21; N2763 (2004).
  2. From the text, Injia on Contempt of Court in Papua New Guinea and the Pacific, the learned author in regard to, ‘Contempt in the face of the Court’ stated at page 50;

“Actual physical disruption of the hearing is not an essential element in establishing contempt in the face of the Court. The essential element is that the conduct in question tends to cause an interference with the authority of the Courts in the sense that there may be:

See, Ex Parte Tuckerman; re Nash (1970) NSWR 23 at 28.


In determining whether a contempt of court has been committed a Court should not consider the state of mind of the alleged contemnor, but the inherent nature of the act itself. See, Attorney-General v Butterworth and Others [1963] 1 QB 696, per Donovan LJ at 725.


However, where the dominant motive is directly to interfere with the administration of justice, contempt is more easily made out and more serious; whereas where the dominant motive is not so direct, there is a greater need for close examination of whether the possibility of interference was;

See, Registrar of the Court, Equity Division v McPherson and others (1980) 1 NSWLR 688 at 700”


  1. As to what constitutes contemptuous behaviour, the Supreme Court in Andrew Kwimberi v The State (1998) SC 545; [1998] PGSC 9 (Woods J, Hinchliffe J, Injia J) said, it is not possible to particularise the acts which can or cannot constitute contempt ‘in the face of the Court’. That case involved failure of a lawyer to appear in a criminal trial on a date which has been fixed with his consent. The Court held that the lawyer’s gross carelessness in the circumstances amounted to Contempt of Court.
  2. In Re Contempt of Court; Re Assistant Registrar, Philip Kaumba [2004] PGNC21; N2763 (2004) Batari J held, the categories of contempt in the face of the Court are not closed. It depends on the circumstances of each case. One of those categories is conducting oneself disrespectfully to the Court during the sitting of the Court. The Court held that an officer of the Court who acts contemptuously in the face of the Court is guilty of contempt of Court.
  3. The circumstance of the case before this court in my view falls within the ambit of contempt in the face of the court. The dominant motive is possibly not to directly interfere with the administration of justice. But the inherent nature of the act itself in my view, undermines and is highly likely to impair the public perception, respect, confidence and trust in the authority of the Court. As held in, Re Johnson [1887] UKLawRpKQB 172; (1887) 20 QBD 68, the gravamen of the offence lies not in protecting the personal dignity of the presiding judge, but of protecting the public from the mischief that will occur if the authority of the Courts is undermined or impaired.
  4. The contemnors’ case is that they did not consume alcohol at the Court premises. If they did, it was not intended to cause disrespect and bring disrepute to the Court.
  5. They cannot have both ways. It is nevertheless the classic statement of their attitude and conduct all along in denying the charge. They contest their innocence and ended up making contradicting statements on timings and movements; telling pack of lies amidst strong evidence of their indulgence in alcohol outside Court Room One where a Court sitting was in progress.
  6. The contemnors are Court officers responsible for security matters and concerns as are convenient for asserting the authority of the Court. Their duties and responsibilities bind them to strict compliances with the legal processes to ensure safe and orderly conduct of Court proceedings whether ongoing or pending and respect for the authority of the Court. The ongoing proceedings of the Court next door makes it no less demanding on them to ensure the Court proceeding is not inconvenienced and that the highest level of respect and decorum is aptly accorded to the authority of the Court and the supremacy of the laws.
  7. The conduct the three contemnors were left wanting in what was expected of them as Court officers. In my view, their conduct was clearly intended to undermine the authority of the Court and the Court proceedings that day. Their gross carelessness in drinking outside whilst proceedings in criminal matters were in progress inside the Court room and their conduct exposed to the general public and detainees, was a direct and wilful challenge to the authority of the Court and the supremacy of the law itself. By their conduct, they deliberately disrespected, belittled and caused detraction from the authority of the Court. The possibility of such interference with the authority of the Court by exposing the Court to public disrespect and ridicule is a matter of practical reality which the Court ought to guard against.
  8. I find each contemnor guilty of contempt of court and convict each as charged.

Sentence: 20 November, 2018


  1. You three have been convicted of contempt of court by your conduct in drinking at the Court cell and in full view of the public while the Court was in session next door. In appealing for leniency, your lawyer, Mr Kari has submitted, this is not a common case of contempt of Court requiring severe penalty. This may be true. But then, the category of Contempt of Court situations is not closed. There is numerous conduct that may amount to Contempt of Court. Some of those are highlight in the text, Injia on Contempt of Court in Papua New Guinea and the Pacific, at pp 51, 52, 53.
  2. In your case, you were all aware of the Court proceedings next door. For your own personal reasons, you did not consider that important. You abdicated your constitutional duties to break the law, disrespecting the authority of the Court and the National Court proceedings next door. Also just next door, detainees under your watch were no doubt aware of your deliberate carelessness and disrespect for the authority of the Court. And just in front, several metres away from where you were, members of the public passed by on a busy footpath to access the town market and the shops next to the Court house. You did not care that your behaviour was a very serious matter against reverence for the authority of the Court. You did not care about the adverse public perception your conduct was having against the integrity, trust, confidence and respect for the authority of the Court and the administration of justice.
  3. Your conduct calls for a heavy penalty. The options are;
  4. I have taken into account all that Mr Kari has submitted on your behalf. You have not been remorseful. That is consistent with your denials and false testimonies in court.
  5. The only thing that is in your favour is the patience and anxiety you have to endure from the Court delay in deciding your sentence. But for that factor alone, I have determined that you all should serve jail terms to teach you personally and to warn others to be respectful to the authority of the Court and the administration of justice.
  6. Court Orders
    1. You are each fined K3,000.00 in default 12 months imprisonment in HL.
    2. The fines are to be paid within three months or by 20th February 2019.
    3. The matter will return to Court on 4th March 2019 for review of compliance with the Court Orders.
    4. You are each to serve 12-months good behaviour bond subject to any administrative action that may be taken against you by your administrative heads.
    5. In the case of Maino Maino, I recommend that the Secretary for NJSS take immediate steps to consider disciplinary charges that might be appropriate in the circumstances of your Contempt of Court conviction and penalty.
    6. In the case of Manu Mombi and Barnsley Ken, I recommend that the Commissioner for Correctional Services consider disciplinary charges that might be appropriate in the circumstances of your Contempt of Court conviction and penalty.

_________________________________________________________________
NJSS In-House Lawyers: Lawyers for the Registrar
Public Solicitor: Lawyers for the Contemnors


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