Robinson v The State [1986] PGLawRp 379; [1986] PNGLR 307 (25 November 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 307 - Alan Robinson v The State 

[1986] PNGLR 307

SC326

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ALAN ROBINSON

V

THE STATE

Waigani

Kapi DCJ Amet Wilson JJ

25 November 1986

CONTEMPT - Contempt of court - Practice and procedure - Procedures in Rules of Court to be followed - Need for proper evidence.

CONTEMPT - Contempt of court - Punishment - Fine - Lawyer as contemnor - Sanction precluding appearance until fine paid - Whether valid.

An alleged contempt in connection with proceedings in court should be prosecuted by the State Prosecutor on notice of motion or originating summons with supporting evidence by way of affidavit in accordance with the National Court Rules, 0 14, rr 42, 44.

Such proceedings should be listed before a Judge other than the one before whom the alleged contempt occurred.

Where a lawyer is fined for contempt of court quaere whether a sanction precluding the lawyer from appearing until the fine is paid is valid.

Cases Cited

State The, v Mark Taua, Re Awaita — Contempt Proceedings [1985] PNGLR 179.

Appeal

This was an appeal against a conviction for contempt of court arising from an incident which occurred in a court room immediately upon the Judge retiring from the bench.

Counsel

B Sakora and A Regan, for the appellant.

G Toop, amicus curiae.

Cur adv vult

25 November 1986

KAPI DCJ AMET WILSON JJ: At the conclusion of the hearing of this appeal the Court ruled that the appeal be upheld and indicated that reasons would follow at a later date.

This was an appeal against a conviction for contempt entered on 21 May 1986 in Rabaul.

Mr Robinson is a lawyer employed in the Public Solicitor’s Office in Rabaul and the events under review arose from an incident which occurred shortly after an application for the reduction of bail for an accused. The application was opposed by the State Prosecutor, Mr Damien, who not only opposed the application but indicated that the State might wish to have the amount of bail increased or apply for bail to be revoked.

At 5.30 pm on 20 May 1986 the trial judge adjourned to 9.30 am the following day. The events which followed are best set out in the form in which they appear from the transcript of the trial Judge’s notes:

5.40 pm: State Prosecutor and associate advise that immediately upon Judge retiring from bench, Mr Robinson, defence counsel said in a loud voice to Mr Damien, State Prosecutor, words to the effect, “You and the judge are bastards trying to put up the bail”.

Damien: “Why”?

Mr Robinson: “You and the judge, if you are going for variation, you would be the biggest bastards.”

At that time there were about 12 accused in the dock in relation to either bail applications or waiting to sign recognizances. There were also police; corrective institution officers and about 10 members of the public. A heated argument then ensued between counsel. Mr Damien then came to my chambers and complained of Mr Robinson’s conduct. About five minutes later Mr Robinson came to chambers. Mr Damien requested a personal apology and Mr Robinson apologised to Mr Damien.

21/5/86: The court to defence counsel, Mr Robinson: “Mr Robinson, the State Prosecutor, Mr Damien and my associate advised me yesterday afternoon, 20 May 1986, immediately after I retired from the bench, you stood up, walked towards the door and back towards Mr Damien and at a time when there were still about 12 accused in the dock and also police, corrective institution officers and about 10 members of the public in the court, you said in a loud voice to Mr Damien words to this effect, ‘You and the judge are bastards trying to put up the bail’. Mr Damien said ‘why’? You said ‘you and the judge, if you are going for variation, you would be the biggest bastards’.

You are charged with contempt of court. Do you wish to say anything in reply or explanation?

Mr Robinson: That is not true. I did not say that.

By the Court: Do you wish to say what you did say?

Mr Robinson: I do not wish to say what I said.

By the Court: Note: You are charged that you saids to that effect.

Mr Robinson: I have nothing to say.

Found guilty. fined K100 and you are not to appear before any court until fine is paid.”

Shortly after the conviction and sentence was recorded, Mr Robinson obtained an order staying the effect of the penalty imposed.

EVIDENCE

It is clear from the transcript that there was no evidence before the Court. The conversation which took place in the Judge’s chambers the previous evening was not evidence. Indeed the conversation was of such a nature that the trial Judge should have excluded himself from any further proceedings arising from the allegations raised by it.

PROCEDURE

The rules of the National Court contain a comprehensive statement of the procedure to be followed in cases involving contempt of court (0 14, r 38) and in other situations where the contempt complained of is in connection with proceedings in the court (0 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 (0 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.

PENALTY

As this appeal was determined principally on the issue of the evidence before the trial judge there was little need for argument on the question of penalty and order for enforcement.

However, we consider that we should make reference to the penalty imposed by the trial judge where he ordered that the lawyer be fined K100 and precluded him from appearing before any court until the fine was paid.

A similar sanction of enforcement was used in The State v Mark Taua, Re Awaita — Contempt Proceedings, where after imposing a fine of K1,000, the court ordered “that until that fine is paid, you are barred from the precincts of the National Court in Papua New Guinea”.

The continued application of the sanction whereby a lawyer is precluded from appearing until a fine is paid needs to be very cautiously considered as it appears to raise substantive issues as to the power of the court to so order, the relationship between the courts power and the provisions of the Lawyers Act, (Ch No 91) the issue of whether such a method of enforcement is legal and whether such a sanction amounts to double punishment and is harsh and oppressive.

Appeal allowed

Lawyer for appellant: Anthony Regan.