Taru and Contempt Proceedings, Re [1982] PNGLR 292 (16 July 1982)

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CONTEMPT - Interfering with course of justice - Police officer - Failure to attend as witness.

POLICE - Duties of police officers - Attendance at court as witness - Failure to attend - Contempt of court.

A police officer who fails to attend court when he knows he is required to do so to give evidence in criminal proceedings is guilty of contempt of court.

This was the hearing of contempt proceedings against a police officer who failed to attend to give evidence on a criminal trial.

PRATT J: This is the matter of Passingan Taru, an inspector of police whom I have called before me to explain why he should not be dealt with for contempt of court. The matter arises out of a failure by him to appear during the trial in The State v. George Apissing. The inspector was a prosecution witness called in the lower court proceedings, and appearing on the face of the indictment as witness number 4.

Before I deal with the facts of the case, I wish to make some brief reference to what I appreciate is the law applicable in such cases. As often happens, the reasons for the obvious are sometimes difficult to locate. In my own personal experience of some 25 years of practice in the profession, I have never struck a case where a police officer has failed to turn up at a trial unless it has been for some reason beyond his control, such as illness or something of a similar nature.

The duties of a police officer are set out in s. 139 of the Police Force Act, Ch. 65. The section states that “members of the force have the some powers, duties, rights and liabilities as constables under the underlying law, except so far as they are modified by or under an Act”. The office of constable of course is one of the most ancient under the common law and goes back for centuries. Indeed Halsbury’s Laws of England (3rd ed.) Vol. 30, par. 79 points out that “the history of the police is the history of the office of constable and, notwithstanding that the present day police forces are the creation of statute and that the police have numerous statutory powers and duties, in essence, a police force is neither more nor less than a number of individual constables, whose status derives from the common law, organized together in the interests of efficiency”. A little later on the learned author says:

“By the beginning of the seventeenth century it could be said that the parish constable was responsible first, by virtue of his office, for the preservation of the peace within his bailiwick ... and, secondly,” (and I emphasize this point), “for the execution of the orders and warrants of the justices of the peace.”

“The primary function of the constable remains as in the seventeenth century, the preservation of the Queen’s peace.” (And one may interpolate here “the preservation of the people’s peace given through the Constitution”.) “From this general function stem a number of particular duties additional to those conferred by statute and including those mentioned hereafter.

The first duty of a constable is always to prevent the commission of a crime....

It is his general duty to protect life and property, and the general function of controlling traffic on the roads is derived from this duty. Although it is the duty of the police to obtain all possible information regarding crimes and offences which have been committed, they have in general no power to compel any person to disclose facts within his knowledge or to answer the questions put to him.

It is the duty of a constable to execute a warrant issued by a justice of the peace and directed to him.”

“A constable has the same powers of arrest as a private person, together with certain additional statutory powers. The only additional power of arrest enjoyed by a constable which derives from the common law is that to arrest on reasonable suspicion of treason or felony, whether or not that offence has actually been committed.”

So far as Papua New Guinea is concerned, the question of arrest is now covered by the Arrest Act but the pertinence of the reference to common law will emerge in a moment. Obviously if there is a power of arrest there is likewise a duty to bring the arrested person before a court. Though no specific mention is made of the necessity to give evidence in court in the outline I have taken from Halsbury, it is to my mind so obviously concomitant with a duty to keep the Queen’s peace and with the powers of arrest, that I believe such duty to be an inherent part of a policeman’s ancient functions. The prevention of crime implies bringing the alleged wrong-doers before a court to be dealt with according to law and of assisting other police and the community to achieve such purpose. It is utterly pointless for the position to be otherwise. In many cases the policeman will be the only person who has investigated the crime, examined the scene and spoken to the suspect. I believe that the learned author of Halsbury impliedly includes such function under the two headings: “a duty to protect life and property” and, “to obtain all possible information regarding crimes and offences”. For obvious administrative reasons it is necessary to allocate various tasks to different constables. But even where for example, policeman A is put in charge of a case, it cannot be that constable X is thereby divested of his responsibilities simply because he only became originally involved in the case as a spectator on the way home from some private pleasure and the incident had nothing to do with his daily duties as chief telephone operator in his own police station. He is still first and foremost a policeman even where the victim is a member of his own family.

In the present case Inspector Passingan was not the officer immediately in charge of the case. He was however a witness whom the State prosecutor wished to call. Having now asked for the statement contained in the depositions (which of course was not available to me during the trial), I can well understand why. His evidence was most relevant to the prosecution. But I emphasize that he was not the officer-in-charge for this reason: it would normally be expected that the duty to get people to court would vest in the officer-in-charge of the actual case. In this matter there is an additional factor that the main State witness was a brother of the inspector and this led to a certain amount of confusion because the instigating constable had part of the attendance arrangements taken out of his hands. Furthermore, in the present case the officer I have called before me is in charge of the Criminal Investigation Division and is therefore the ultimate officer in control of all members of the C.I.B. stationed at Lae. Not only must his orders be obeyed, but his own conduct and attitude serve as a guide to others.

If I am wrong in my assessment of what the common law implies in respect of police responsibilities and duties, there is of course the further obligation on the courts of this country to develop the underlying law. If the argument were indeed correct that the duty which I believe exists in a police officer does not exist because it was never necessary to spell it out in previous centuries, then it seems to me that we are heading in a direction which requires such a law to be spelt out as part of our underlying law—both for the good of the Force and for the benefit of the country—and this I now do. I believe the same argument applies to the next area to which I now turn, namely what constitutes a contempt of court.

If I go to the Halsbury’s Laws of England (4th ed.) Vol. 9, we find the matter set out quite succinctly in par. 7:

“In general terms, words spoken or otherwise published or acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice, are punishable as contempts of court.”

The learned author then goes on to give several examples, to two of which I now draw attention. In relation to witnesses, it is said at par. 29 that “any interference with a witness to a pending or imminent suit, the purpose or effect of which is to deter the witness from giving evidence or to influence the nature of the evidence given, is a serious interference with the administration of justice and a contempt of court”. The inference seems clear to me that not only is it an interference for one person to deter others, but for a person to designedly place himself in a position where he is not able to give the evidence by deliberately absenting himself from the court hearing is just as much an interference.

A further reference that has some analogy to the present matter appears in par. 70:

“Failure to attend under a subpoena ad testificandum and a subpoena duces tecum is punishable in the absence of a reasonable excuse by committal, which should be applied for at the earliest opportunity. In criminal proceedings any person who without just excuse fails to obey a witness order or a witness summons requiring him to attend before any court, is guilty of contempt of that court and may be punished summarily by that court if his contempt has been committed in the face of the court.” (Criminal Procedure (Attendance of Witnesses) Act 1965[lii]¹.)

It might be said here that no subpoena duces tecum or ad testificandum has been issued. But it is inherent to my exposition of the law that there is a duty on a police officer to assist the court by giving such evidence as is relevant to a case in which they are involved and that makes it unnecessary for any such subpoena to issue in the circumstances, provided it can be shown aliunde that he has been advised of the hearing date. I might also add that under the Police Force Regulations there is a specific provision which covers the giving of evidence by police officers in court. By reg. 27, “a member summoned as a witness before a court shall immediately advise his superior.” Secondly, “a member required as a witness on behalf of the State (and note that the word is not ‘summoned’ there but ‘required’), is not entitled to receive any witness’s fees and shall be granted leave with pay for the period during which he is necessarily absent from duty.” This regulation seems to me to imply that it is not expected, and has never been expected, that a police officer would attend a prosecution case only upon receipt of a subpoena, issued in the name of the Public Prosecutor.

Finally there is the question of delay. It has long been a tradition that adjournments are not granted except in exceptional circumstances in criminal trials. I merely make reference here to the replacement edition, vol. 14(1), of the English and Empire Digest at pp. 400-401 where the ancient rule is set out in two of the State trial cases going back to the 18th century. In Hardy’s case (1794) 24 State Tr. 199, 414 it was said:

“It is undoubtedly a general rule that there should be no adjournment and no separation for the jury after the evidence is entered upon, until the jury have given their verdict. This is a rule which I should never willingly depart from ... but in a case of extreme necessity.”

So said Lord Eyre C.J. as long ago as 1794. He again repeats that principle in the same year in another State trial: R. v. Horne Tooke (1794) 25 State Tr. 1, 127, as follows:

“It undoubtedly is so far established that there never ought to be an adjournment or separation in any degree of the jury if it can be avoided; but there may arise a necessity so urgent that all those principles of justice which originally demanded that there should be no adjournment would loudly call for an adjournment; because the true principle upon which it is required that there should be no adjournment is for the furtherance of justice that it may be quite sure that justice will be done both to the Crown and to the prisoner; that there should be no opportunity of having intercourse with the jury. The Court is bound to take upon itself the responsibility that does belong to directing an adjournment in a case so circumstanced.”

Now admittedly the rule is particularly strong in England and other common law jurisdictions because of the existence of a jury system. The jury system does not operate in Papua New Guinea. Thus we have an indicator that a circumstance underlying the basic principle is not applicable here. Nevertheless the other reasons for avoiding adjournment of a criminal trial are equally cogent to our country—unfair tactics, delayed justice, inconvenience, priority of criminal cases and so forth. The absence of a jury merely has the effect of allowing the courts in Papua New Guinea to be more elastic in their approach as to what constitutes an exceptional circumstance. But I am firmly of the view that there must still be exceptional circumstances before any adjournment is granted in a criminal trial.

The basic aspect which has emerged here is that the Inspector had decided he should be the person who will dictate what the priorities are—not the court, not the law, but he alone. He has given a long explanation as to the events which took place. The facts in the ultimate are of short compass and they are in my view as follows: Inspector Taru was advised on Friday last that the State case against Apissing was set down for hearing Monday morning, over Mr. Henao’s protests. Indeed both Mr. Henao and Inspector Taru eventually came to an agreement that the prosecution would indicate what the order of cases should be. (Mr. Henao was concerned that he could not list an order of cases without being assured the witnesses were available.) There was of course very good reason for the Inspector to remember that he was a witness in the Apissing case, because it was his own brother who had been the victim of the alleged theft and he himself, although he was not ultimately the officer-in-charge of the case, had interviewed the suspect. He did make some efforts to obtain the attendance of another witness. I do not think it is necessary for me to go into an examination of the facts surrounding that area. It is clear the police were having problems, but in my view nowhere near sufficient effort was made to ensure the attendance of that particular witness on Monday morning at court. However this aspect is not relevant to the matter presently before me. It is not relevant because I am not concerned with any failure by the Inspector to arrange the attendance of other witnesses. What I am solely concerned about is a failure on his own part to turn up at court. When it comes down to the final analysis, the reason why he did not attend at court was that he chose on Monday afternoon (after the case had started, and either after he knew the case had started or after he had deliberately refrained from making enquiry), to leave for Port Moresby as courier for certain plants to be analysed at the University of Papua New Guinea on the following day. He said he hoped, or anticipated, that he would get back by Tuesday afternoon. Why he should assume that he would not be required before Tuesday afternoon, I just cannot imagine. Why he left on Monday afternoon knowing or negligently failing to enquire that the case was already under way, again I just cannot understand. [Why he should covet the role of simple courier when for years the courts have been lamenting the policy whereby commissioned officers hide behind their “administrative” role and assign the most junior and inexperienced constables to the most serious investigations instead of getting into court themselves, intrigues the mind. (This aspect was not mentioned in delivering judgment.)] It may be that the officer misconceived the procedural and evidentiary rules concerning continuity in delivering exhibits for scientific examination and perhaps I should give him the benefit of the doubt on that aspect. But after all, the case could not in anyone’s contemplation have lasted more than two days. So that if it started on Monday morning, as was anticipated, then it must surely finish by Tuesday afternoon, with perhaps judgment reserved for Wednesday. As I say, I do not find the explanation given by the Inspector in any way convincing. I am of the view that he deliberately went to Port Moresby expecting that if he did not get back the court would adjourn the matter to suit his convenience. What is even more distressing about this case however, is the fact that I am not dealing with some junior police constable, but a senior officer, an inspector of police, and the man in charge of the Criminal Investigation Division in Lae. To me it seems the epitome of arrogance to go off in the belief that if he did not get back the court would have to adjourn the case until he did. We are here to administer justice. The police are the servants of the law and of the people just as much as the judges. When a case starts, it is the duty of the court to bring it to its final fruition in a speedy manner. If there is any misapprehension about adjournments in the minds of the police, I would remind them that there is an obligation on all of us where a man is charged, to bring the matter to a speedy fruition. Reference need only be made to the Constitution itself at s. 37(3) where it says:

“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”

This is especially so where the accused is held in custody. A “reasonable time” of course does not mean reasonable according to the personal convenience of the investigating police officer or other police officer involved as a witness.

It is clear from what I have said therefore that in my view a contempt of court has been committed and accordingly I bring in a verdict of guilty.

It remains now, Inspector, for me to decide what punishment I should impose upon you in respect of this contempt of court. If there is anything you wish to say about the matter of punishment, you should do so now and I will listen to it and make a note of what you say.

Following the statement on the allocutus the court then imposed a fine of K50.00 with seven days to pay and five days imprisonment with hard labour in default.

[lii]Refer also (3rd ed.) Vol. 8, par. 220. The 1965 Act in the U.K. replaces an earlier Act of 1805, but reference to some of the older cases, e.g. Littler v. Thomson [1839] EngR 579; 2 Beav. 129 and the cases cited therein, and Lechmere Charlton’s case [1837] EngR 524; 2 My. & Cr. 316 seem to indicate that the basic rule stems from the common law, before statutory “codification”.

Papua New Guinea Law Reports

Taru and Contempt Proceedings, Re [1982] PNGLR 292 (16 July 1982)

Papua New Guinea Law Reports - 1982