State v Waine [2002] PGLawRp 47; [2002] PNGLR 469 (29 August 2002)

NATIONAL COURT OF JUSTICE

THE STATE

v

JOSEPH WAINE;
JACK B'SOUR; and
MATILDA KUPUL

Mt. Hagen: Jalina J
13 and 29 August 2002

Contempt – Contempt of Court – Lawyers failing to appear on time for cases listed in advance for trial – Lawyers living out of town and traveling to work by public transport - No effort by lawyers to advise the court of possibility of appearing in court late – Whether it seriously interfered with or obstructed the fair administration of criminal justice.

Facts

The contemnors were three lawyers based in Mt. Hagen. They were charged by the trial judge in a criminal proceeding for failure to turn up on time in Court. Evidence was produced to show to the trial judge that Joseph Waine and Jack B'Sour relied on public transport to get to their office and to the Court House. Evidence was also deduced to show to the Court that there were problems associated with an election process which contributed to delays in the public transport system. Matilda Kupul happened to be passing by the Court when she was told that her colleagues had not appeared as scheduled and decided to stand in for them when charged by the trial judge.

Held

1. A lawyer who deliberately fails to attend court with intent to hinder or delay the court and does so may be guilty of contempt of Court but failure to appear on a particular day and time due to inadequate travel arrangements did not amount to contempt: Poka v The State [1988] PNGLR 218; Western v Central Criminal Court Court's Administrator [1977] QB 32 per Lord Denning MR at p.43 applied.

2. A contemnor is guilty of contempt of Court in circumstances amounting to gross carelessness: Re Passingan Taru [1982] PNGLR 292; The State v Mark Taua; Re Awaita [1985] PNGLR 197. The State v Raymond Tupundu Unreported Judgement No. N1536 (30 May 1996); Kwimberi v The State Unreported Supreme Court judgement No. SC545 (17 March 1998) discussed.

Papua New Guinea cases cited

Kwimberi v The State (1998) unreported SC545.

Poka v The State [1988] PNGLR 218.

Re Passingan Taru [1982] PNGLR 292.

The State v Mark Taua: Re Awaita [1985] PNGLR 197.

The State v Raymond Tupundu, National Court (1996) unreported N1536.

Other cases cited

Weston v Central Criminal Court Court's Administrator [1977] QB 32.

Counsel

B Aipe, for the Contemnors.

29 August 2002

Jalina J : The three (3) contemnors are lawyers who are based in Mt. Hagen. The first two, namely Joseph Waine and Jack B'Sour, are employed by the Office of the Public Prosecutor while Matilda Kupul is employed by the Office of the Public Solicitor.

Sometime last month (July), Hinchliffe J, the Resident Judge in Mt. Hagen, listed both civil and criminal cases for trial before Batari J. as he was to be the only judge on circuit to Mt. Hagen in August.

Upon approval, by the Chief Justice I arrived in Mt. Hagen on 5th August to be the second circuit judge to Mt. Hagen. Hinchliffe J, who was partly relieved from court sittings to write outstanding judgments then arranged through his associate for the lawyers in the Public Solicitor's and Public Prosecutor's Offices to prepare criminal cases to be tried before me. So, the case of The State v Baltasar Koi Las CR 860/99 was listed for trial on 12th August at 9.30 am and the case of The State v John Yandapu CR 1581/2001 was listed for trial on 13 August at 9.30 a.m.

Due to Batari J being stranded in West New Britain as a result of the Mt. Pago volcanic eruption near Hoskin airport, I took over civil cases which were to be tried before him. His Honour arrived the following week, but due to the urgency of a case involving the South Waghi Local Level Government Election, I could not start the criminal case listed for trial on Monday 12 August, so it was adjourned to Tuesday 13 August.

On 13 August, I went into court at about 9.45 a.m. but there was no lawyer from either the Office of the Public Solicitor or the Office of the Public Prosecutor present in court. I then adjourned. When I returned to court at about 10 a.m, I found the three (3) contemnors in court and charged them with contempt in the face of the court in that they failed to appear on time in criminal matters that were listed in advance for trial. They were then remanded in custody to appear the next day but were released on bail in the afternoon by Batari J upon application by Mr. Aipe from the Office of the Public Solicitor in Mt. Hagen.

They appeared before me on 13 August and pleaded not guilty and gave their explanation.

Mr. Waine said that being from another province and accommodation being difficult to find in the city of Mt. Hagen, he lived at Panga Coffee, which was off the main road and behind the airport. He had been living there for two years and travel into the city by public transport usually took 45 minutes. He usually made an effort to arrive at work early, but recently election related violence had made transportation difficult as people were blocking the roads.

He went on to say that on the day in question he arrived at his office at about 9.30 a.m. and got himself ready to attend Court, but as he was about to leave his office the investigating officer in the listed matter of The State v Yandapu walked in and advised him that he was having problems with collecting the witnesses from Porgera, Wabag and Baiyer River and so was trying to give him instructions. So he spent about 10 minutes with the investigator. He was conscious of the fact that he had to appear in Court at 9.30 a.m, so he rushed to Court with his colleague, Mr. B'Sour. It took them about 5-6 minutes, possibly 8-9 minutes. When they arrived, they were informed that the judge had gone into court and left. The court resumed about 10 minutes later and charged them with contempt of Court.

The explanation by Mr. Jack B'Sour was that he had been living at Newtown in Mt. Hagen, but due to continuous break-ins as well the concern for his own security and the security of his family members in view of the nature of his job as a State Prosecutor, he moved to his wife's village near Minj. Travel to Mt. Hagen from Minj usually took one and a half hours by road in view of the bad condition of the road. If the road was good, then travel into Mt. Hagen would take between 45 minutes and 1 hour,depending on the kind of vehicle and the manner the driver drove. Despite these difficulties he usually arrived at his office on time. With regard to his failure to attend on time, he said that he was prevented from attending by certain factors. They were that he had a new house in town and his wife packed everything that day and she left earlier for the new house in town. He had to stay back and protect the rest of their belongings in their house at Minj. His wife had their car so he had to travel on different buses to get to Mt. Hagen. There were also problems related to the election of President in the South Waghi Local Level Government area so he ended up arriving at his office at about 9.30 a.m. After he arrived, Mr. Waine asked him to accompany him to court for fear related to the case of The State v John Yandupu.

He also acknowledged that timing was important and that they should bring witnesses and proceed on time.

Ms. Matilda Kupul explained that she went to her office at 7.30 a.m. While in the office, she called the court house to find out if the accused in the plea matter of The State v Kerowa Kana (2002) N2376 had been brought to the court from Baisu Corrective Institution, as she wanted to obtain instructions. That was because she was not appearing in any of the listed matters. Her other colleagues, namely Messrs Aipe and Kumo, were appearing in those matters.

Upon entering the Court, she was informed by the Court Reporter that I had gone into court and adjourned as there were no lawyers present. So she decided to stand in for her two male colleagues. That was when I returned to Court and charged her, with the other two lawyers, with contempt of court. Before she could explain herself she was remanded in custody.

Contempt of Court is not defined by any statute in this jurisdiction. In fact, Contempt of Court is the only offence that a person can be charged with even though it is not defined by law. Otherwise, a person cannot be charged with an offence that is not defined or prescribed by law. (see Constitution s 37(2).

The Common Law definition which is set out in Halburys Laws of England (4th ed. Vol. 9 para 7) has been accepted in Papua New Guinea in Poka v The State [1988] PNGLR 218 at 219 as follows:

"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 criminal contempt."

It appears from the above definition that there must firstly be an intention to interfere with or obstruct the fair administration of justice or secondly that the words or acts are likely to interfere with or obstruct the fair administration of justice.

The correct statement on the law of Contempt under the English Common Law appears in Weston v Central Criminal Court Court's Administrator [1977] QB 32, where Lord Denning MR. (with whom Lord Justice Stephen and Bridge LJJ agreed) said at 43:

"But the question arises: Was his breach of duty a contempt of court such as to be punishable summarily? I have no doubt that if a solicitor deliberately fails to attend – with intent to hinder or delay the hearing, and doing so – he would be guilty of contempt of court. He would be interfering with the course of justice. But in this case the conduct of the solicitor was not done with intent to hinder or delay the hearing. He took the view that in fairness to the accused the case could not be forced on for trial at such short notice before he was ready: and that, as it was bound to be adjourned, he did not propose to attend."

The Supreme Court in Poka's case (supra) adopted and applied Lord Denning's statement (above) in Weston's case and held that a lawyer who deliberately fails to attend court with intent to hinder or delay the court and does so may be guilty of Contempt of Court, but failure to appear on the particular day and time due to carelessness and inadequate travel arrangements did not amount to contempt.

But earlier in Re Passingan Taru [1982] PNGLR 292, Pratt J convicted a police officer who was a witness for contempt of court when he failed to attend the court. The relevant facts of that case were that the police officer, who was based in Rabaul,was told to appear as a witness in Rabaul on the Monday. The case started in Rabaul on the Monday, but in the afternoon of that day, he chose to travel to Port Moresby with a sample of cannabis for scientific examination. He hoped to return on the Tuesday but did not. Pratt J (at 298) said:

"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."

About 3 years later, in The State v Mark Taua: Re Awaita [1985] PNGLR 197 Woods J convicted a lawyer for contempt of court and fined him K1,000.00. The facts of that case were that during a call-over before the judge in Waigani, the lawyer asked the judge for two of his matters to be specifically listed in Popondetta on a certain date, which the judge did. The judge and the prosecutor then travelled to Popendetta to be ready to commence those two "cases" which were expected to take one week. When the judge opened the sittings in Popondetta there was no appearance by the private lawyer. And because of the special fixture, the Public Solicitor did not attend for that week so the judge was left with, no cases to do for 2 days. Woods J (at 183) accepted the lawyers argument that he did not intend to interfere with the administration of justice, but found that his carelessness in not attending in the circumstances amounted to contempt of court.

In The State v Raymond Tupundu, National Court, Unreported Judgment No. N1536 and dated 30th May 1996 Batari AJ (as he then was) found the accused, who was a lawyer in the Public Solicitor's Office, guilty of contempt of court and fined him K500.00 to be paid within 40 days and, in default, 60 days imprisonment in hard labour when the lawyer failed to appear for accused persons in criminal cases he was defending and which were fixed for trial on a certain day. Instead, the lawyer opted to attend a course at the Institute of Public Administration without informing the court or even the Public Solicitor, as to the fact of the cases having been listed and his intended absence during those dates at the Institution of Public Administration.

In a more recent case of Kwimberi v The State, Unreported Supreme Court Judgement No. SC545 and dated 27th March 1998, the Supreme Court, in dismissing an appeal against conviction for contempt of court where the appellant, who was a lawyer based in Mt. Hagen, failed to appear in court on the day the case was listed for trial, held that failure of a lawyer to appear in a criminal trial, the date for which was fixed with his consent, in circumstances amounting to gross carelessness, was guilty of contempt of court.

Applying the principles of law as set out in the cases I have cited to the facts and circumstances and the explanation by each lawyer in this case, I accept the explanation by Ms. Matilda Kupul that she was not involved in any of the listed matters and only appeared in Court upon realising that her two male colleagues, who were representing the accused in one or both of the listed matters, were absent. I accordingly find her not guilty. I commend her for her diligence as well as the courtesy and respect she has shown to the court.

I am, however, concerned about the behaviour of her senior colleagues in the Office of the Public Solicitor in Mt. Hagen, namely Mr. Bosip Aipe and Mr. Peter Kumo. Mr. Aipe, was and still, is the Officer in Charge of the Office of the Public Solicitor in Mt. Hagen and Mr. Kumo is his deputy. Mr. Aipe has been representing the three lawyers in this case and Mr. Kumo was present in Court when I heard the explanations from them. Not one of them, particularly Mr. Aipe, who was appearing as Counsel, had the courtesy to indicate which of them was appearing in the matters listed for trial. In fact, as it later turned out, Mr. Aipe appeared for the accused in the listed matter of The State v John Yandapu and Mr. Waine for the State. Mr. Aipe has not admitted that he was the lawyer who should have appeared or given reasons for his failure and then apologized to this court. Such arrogant and discourteous behaviour, to my mind, is tantamount to contempt of court.

With regard to Mr. Joseph Waine and Jack B'Sour, I accept their respective explanations. The fact that they lived out of town and had to travel to work by public transport no doubt prevented them from arriving at their office early, organise themselves and proceed to court before 9.30 a.m. I also accept that unruly and disrespectful conduct by supporters of different candidates, particularly losing candidate; was still being reported to be taking place between Mt. Hagen and Kundiawa, which were affecting the smooth flow of traffic along the highway. I am, however, concerned that having arrived at their office at about 9.30 a.m, which was the time they were required to appear in Court, that neither of them had the courtesy either personally or through someone in their office, to telephone my associate or someone at the National Court and advise that they would be slightly late. There was no indication in their respective statement about any attempt to telephone the National Court to advise of the possibility of their late arrival. Such failure demonstrates arrogance and disrespect to the court and may well be construed to be contemptuous in future.

However, taking into account the fact that they lived out of town and had to travel by public transport during a time, when there were election related disturbances, which affected smooth flow of traffic which were matters beyond their control, I do not think that their conduct were intended to interfere with or likely to obstruct the fair administration of justice. Furthermore, from the fact that the investigating officer was having difficulty locating the witnesses which is understandable and acceptable in view of those matters having only been listed for trial during the week commencing Monday 5 August, the cases would not have proceeded on 13 August. Their conduct therefore cannot be construed in the circumstances of this particular case as one intended to seriously interfere with or obstruct the fair administration of justice.

On basis of the foregoing, and this being a case of criminal contempt, I am prepared to give them the benefit of the doubt. I accordingly find Joseph Waine and Jack B'Sour not guilty of Contempt of Court.

Lawyer for the Contemnors: Public Solicitor.