State v Taua [1985] PGLawRp 472; [1985] PNGLR 179 (27 June 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 179 - The State v Mark Taua 

[1985] PNGLR 179

N508

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

RE AWAITA; CONTEMPT PROCEEDINGS

Waigani

Woods J

17 June 1985

24 June 1985

27 June 1985

CONTEMPT - Contempt of court - Interference with course of justice - What constitutes - Failure of lawyer to appear - Special fixture of criminal trial - Court left unoccupied on circuit - Carelessness amounting to contempt.

CONTEMPT - Contempt proceedings - Practice and procedure - National Court - Summons - Jurisdiction - Hearing by court itself.

CONTEMPT - Contempt of court - Sentencing for - Lawyer in contempt - Interference with course of justice - Fine - Barred from precincts of court till fine paid.

The lawyer for an accused in a long outstanding criminal matter sought and obtained a fixed hearing date for the trial of his client at Popondetta and the court set aside one week for hearing. At 9.00 am on the day appointed the lawyer first advised the court that he would not be in attendance; the accused did not appear and the court was unable to proceed with other cases until two days later which was the earliest they could be organised, during which time the court was seen to be doing nothing.

The trial judge caused the Registrar to issue a summons for contempt to show cause why the lawyer should not be dealt with for contempt of court. On the return of the summons before the trial judge:

Held

N1>(1)      The National Court has jurisdiction to deal summarily or of its own motion with contempts relating to proceedings in the National Court.

N1>(2)      The Court itself may deal with a contempt relating to proceedings before it whether in the face of the court or otherwise.

SCR No 3 of 1984; Re Callick and Koroma [1985] PNGLR 67, followed.

N1>(3)      An act or omission calculated to interfere with the due administration of justice is a contempt of court.

Helmore v Smith [1887] UKLawRpCh 70; (1886) 35 Ch D 436 at 445, followed.

N1>(4)      Any conduct which presents an effective challenge to the authority of the court, to the supremacy of the law or to the due and impartial administration of justice may constitute a contempt of court.

N1>(5)      In the circumstances, the careless behaviour of the lawyer was such as to, interfere with or affect the course of justice and amounted to contempt of court.

N1>(6)      The lawyer should be fined K1,000 and barred from the p recincts of the National Court until the fine be paid.

Cases Cited

Helmore v Smith [1887] UKLawRpCh 70; (1887) 35 Ch D 436.

Izuora v The Queen [1953] AC 327.

SCR No 3 of 1984; Re Callick and Koroma [1985] PNGLR 67.

Weston v CCC Administrator [1977] 1 QB 32.

Summons for Contempt

These were proceedings for contempt of the National Court commenced by summons issued by the Registrar at the direction of Woods J.

Counsel

C Diacos, for the contemnor.

Cur adv vult

27 June 1985

WOODS J: On 11 June 1985 the Registrar at the behest of myself issued a summons to David Stewart Awaita to show cause why he should not be dealt with for contempt of court. The particulars of the contempt are as follows:

At a call-over held in Waigani in May for the June National Court circuit for Papua Regions you attended and advised you acted for two defendants from the list for Popondetta and they were long outstanding matters and you were anxious that one or both of these matters be dealt with by the court.

The court and all lawyers agreed that at least one of these matters at Popondetta would be dealt with first and you advised it could take at least a week.

It was in due course agreed that the matter of The State v Mark Taua would commence first and would take the whole of the first week of June if not longer.

On 28 May you were given a written notice confirming the travel arrangements for the court and stating the court would be ready to commence in Popondetta on the morning of Tuesday 4 June.

At no time prior to 4 June did you advise the court that you would be unable to attend and be ready with the case of The State v Mark Taua as arranged.

It was only at about 9.00 am on 4 June as the court was about to commence the sittings did you telephone the court and advise you would not be attending.

As a result of the failure of you and your client to attend the court on 4 June or to advise the court otherwise, the court and thereby the State incurred unnecessary expense and was unable to do any work for two days and was seen by the people to be doing nothing.

Further as a result of the failure of you and your client to attend, the court issued a warrant to arrest your client for breach of his condition of bail to attend the court.

You have not only put the court and the State to unnecessary expense but you have ensured further unnecessary delay in the administration of justice and have put the liberty of your client in jeopardy.

There can be no question that the National Court has jurisdiction to deal summarily or of its own motion with contempts relating to its proceedings.

As a preliminary matter, it was submitted that as the alleged contempt happened before me, I should not hear the matter and should refer it to another judge of the National Court. I refer to the case of SCR No 3 of 1984; Re Callick and Koroma [1985] PNGLR 67 when his Honour McDermott J was faced with a similar submission. In that case he said that there is nothing contained in the rules of court or developed practice to preclude the court itself from dealing with the contempt whether in the face of the court or otherwise. In that case he found that the matter giving rise to the contempt was not directed at the member of the court but was a matter going to public confidence in the judicial system.

In the case before me this is the type of matter which is often dealt with summarily by the court at the time it happens, it is not a personal affront to the judge, but rather a matter of the general administration of justice.

I have ensured that you have had a full and fair hearing, I have allowed time to come to this Court to answer this charge, I have adjourned sufficiently to ensure that no decision was made in the heat of the moment and finally there is always an avenue of appeal available.

I am of the view that the high standard of justice referred to by McDermott J in Callick and Koroma will be met and I therefore refused an application to have the matter referred to another judge.

The common law definition of “contempt of court” is an act or omission calculated to interfere with the due administration of justice and I refer here to Bowen LJ in Helmore v Smith [1887] UKLawRpCh 70; (1887) 35 Ch D 436 at 445. This covers criminal contempts, that is, acts which so threaten the administration of justice that they require punishment, and civil contempts being disobedience to an order made in a civil cause.

In this matter before me we are dealing with the behaviour of a lawyer before this Court which behaviour has had the effect as set out in the particulars in the summons.

We, judges, courts, lawyers and other staff are here to administer justice. We are all servants of the people and there is an obligation on all of us quite aside from the requirements of the Constitution, particularly in s 37 thereof, that when a man is charged we must ensure the matter is brought to a speedy fruition. At all times it is our duty to ensure justice is done and that a person is given all the rights accorded to him by the law. Contempt of court proceedings in this area would be a sanction to promote the administration of justice in the public interest.

It is reasonable to suppose that the categories of behaviour which amount to contempt are never closed since the broad statement of contempt would indicate that any conduct may be classified as contempt which presents an effective challenge to the authority of the court, to the supremacy of the law, or to the due and impartial administration of justice. What we are looking at is the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of its responsibilities.

There are cases of defiance or abuse of a judge or of the court’s authority, contemptuous behaviour in the court, interference with evidence, refusal to obey orders of court. It could probably be an exceptional situation where lateness in attendance in court would be regarded as contempt. However, even carelessness alone without an intention to interfere with the course of justice could amount to contempt in certain circumstances. The question would always be one of fact and circumstances.

In the case before me the circumstances are the situation of a court when it goes on circuit away from its main centre. Such a circuit requires advance preparation and planning and in this particular case you specifically asked for certain cases to be dealt with as they had been long outstanding. Therefore, because of the need to have advance warning for such a case and the need for the State to gather its witnesses at a certain time, this request for a special date for this case was given to you and it was agreed that the court would hear the particular case of The State v Mark Taua on 4 June 1985 at Popondetta.

In the circumstances the court had not insisted that any other defence lawyer attend specifically on the 4th as obviously their attendance might not be necessary although they might have to turn up at some later stage to mention, if not deal with, any other matters that needed to be dealt with by the court. The court was therefore left on 4 June with the prosecution ready with witnesses for a case expected to last a number of days and no defendant and no defence counsel.

Lawyers in Papua New Guinea know that it is quite easy to approach the court when there may be difficulty with circuits and, so long as adequate warnings are given, the court can usually adjust its arrangements. In this case the court was out of Port Moresby in Popondetta ready for this case and for no other case. The result was, we sat around for two days so another defence lawyer could fly in to handle other matters. People in the area saw the Court there, saw it sitting there doing nothing, knew parties were supposed to be appearing before the Court and one can only surmise at what must have gone through the people’s minds when they saw the Court being ineffective and justice being not done or delayed.

Further such a delay has a snow-balling effect and means other people have to wait longer in custody awaiting trial, including now your own client. People in custody awaiting trial, supports the saying: “justice delayed is justice denied.”

You have put certain matters before me as to how you did not attend or did not contact me till about 9.00 am on the morning of 4 June. Whilst you apparently made a kind of contact with the State Prosecutor that I find was too vague to really put anyone on notice that the case would not go on and anyway the State is entitled to proceed on the basis that a criminal matter specially fixed will proceed unless the court otherwise orders. In a criminal matter, the accused is bound to turn up.

You also suggest you were let down by your client in that you thought he would do what was necessary to ensure you were able to appear. But that is something you should have ensured was in order before you attended the call-over. When you say at a call-over that you are ready the court should not have to think or even worry that you may not have been briefed properly. That was a very casual and careless approach by you, a carelessness which I now say created a situation of a contempt.

I realise that the court should be very careful in dealing with contempts by officers of the court.

The court is in a privileged position, not every act of discourtesy to a court by an advocate amounts to contempt but in this particular case this was more than discourtesy. This was leaving the Court sitting in a provincial town with nothing to do and being in a position where it could be seen as being ineffective, especially whilst people are kept in custody awaiting trial. This is more than discourtesy. This is a serious breach of duty by a person officially connected with the court, a breach of their responsibilities to the court and to their client and to the administration of justice generally which has the snow-balling effect I have already stated. In fact, the liberty of your client has been put in jeopardy because of this situation.

Whilst that is really your client’s own problem and you cannot be blamed for the default of your client, you are not here because of the default of your client. You yourself asked that the matter be set down without, as it now turns out, being finally briefed or instructed by your client and you thereupon set the court’s system in motion with the effects specified in the particulars.

I have been referred to two cases where the default or failure of the lawyer to turn up was held not to amount to contempt.

I distinguish the case of Izuora v The Queen [1953] AC 327 where a lawyer failed to turn up for judgment as that quite clearly did not affect the overall administration of justice or cause any delay, it was merely an act of discourtesy.

I was also referred to the case of Weston v CCC Administrator [1977] 1 QB 32 where the solicitor not only failed to turn up but refused to turn up over what he apparently felt was some administrative high-handedness over forcing his case on earlier than he had expected.

I distinguish that case on the basis that in the situation before me now you had yourself set the case down for hearing and, as I have already said, set the court process in motion and thereby caused the effects I have already detailed, whereas in Weston’s case the judge found himself in the middle of what was in effect a rather discourteous battle between the lawyer and the court administrator. As Lord Denning emphasised in that case at 43: “It did not interfere with the course of justice in the court.” I have already stated how the behaviour in the case now before me has affected the course of justice.

It has further been submitted to me that whilst it might be conceded that you were careless and even foolish in not advising the court of your difficulties with your client, there was no intent to thwart the administration of justice or to cause the effects stated and contempt proceedings should be limited to where there is clear intent.

I am prepared to accept the fact that there was no intent to interfere with or thwart the administration of justice however the court is entitled to insist on and accept a high standard of consideration and behaviour from lawyers. In the administration of justice we cannot accept such carelessness as you have displayed in your appearance before the court to arrange for the hearing of the substantive criminal matter here.

I have considered all matters and the submissions made before me and I find you guilty of contempt of court.

ON PENALTY

Whilst there is no way that any penalty I impose can compensate for the loss of face the Court had to suffer in Popondetta and for the inconvenience caused by having the Court sit around for two days and having the prosecution witnesses sitting around ready for a difficult case and for the overall snow-balling effects of such a delay on the administration of justice, nothing can compensate for that.

On the other hand it is not a matter of ordering damages against you. In this case it is a matter of a fine as a punishment. However, I will, in considering the amount of the fine give consideration to some of the costs that have been incurred by the court in having highly paid court officials and the prosecutor sit around doing nothing for two days and incurring expenses.

A fine of K1,000 may be an appropriate amount bearing in mind the mere monetary costs caused by the contempt. I fine you K1,000 and I further order that until that fine is paid you are barred from the precincts of the National Court in Papua New Guinea.

I make no default penalty of imprisonment for non-payment of the fine as I feel that the barring from the Court would be sufficient and a fine can be recovered in due course by the Registrar under normal execution proceedings.

Orders accordingly

Lawyer for the contemnor: Kirkes.