State v Tupundu [1996] PGNC 10; N1536 (30 May 1996)

Unreported National Court Decisions

N1536

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 292 OF 1996
THE STATE
v
RAYMOND TUPUNDU

Waigani

Batari AJ
15 April 1996
27 May 1996
30 May 1996

CONTEMPT - Contempt of Court - interference with course of justice - Lawyer failing to appear after adjournments - Delayed trials - Deliberate intenhinder Court - Plea -lea - Contempt proceedings - Practice and dure.

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LAWYERS - Contempt of Court - Plea - Sentencing for interference wourse of justice - Fine and default penalty.

Case>Cases Cited:

Daniel Gwaya Poka v The State [1988] PNGLR 218

The State v Mark Taua: Re Awaita [ 1985] PNGLR 178

Paul Metta v The State [1992] PNGLR 196

Re: Passingan [1982] PNGLR 292

Weston v Central Criminal Court Courts Administrator (1977) QB 32

Melbourne v Smith [1887] UKLawRpCh 70; (1886) 35 ChD 436

Counsel:

B Andrew for the Contemnor

30 May 1996

BATARI AJ: On 15 April, 1996 Raymond Tupundu was charged orally under Order 14, Rule 39 of the National Court Rules with Contempt of Court on the following facts:

“On 10 April, 1996 at about 3.00 pm in Court Room 6 an indictment was presented in the case of State v.Kapera Ivoro, David Momo and Nandel Masel on charges of robberyrape. You You appeared as Counoel for the Defendants and Mr Daniel Mark of the Public Prosecutor's Office appeared as Counsel for the State. Upon your applic to adjourdjourn the co 22 , the only reasoneason given was that you would be attendinending a course from 15 to 19 April. Yourication was refused aned an Court indicated that it would sit long hours if need be tobe to complete the case before 15 April. the accuseds were arrd, trd, their trial was adjourned to 9.30 am on 11 April, 1996 s996 so that the State would locate witnesses who had been advised earlier o attend the Court. You did notrm the Court thrt then then of your unavailability on the 11 April or thereafter and the reasons. When the case was called on 11 April, there was no appearance from you. Representation was tequestquested from the office of the Public Solicitor, in your absence. Matters listed for thatwery were:

State v Benjamin Garo (for decision on a dire on admissibility of confessional statements) and StateState v Kapera Ivoro, David Momo & Nandel Masel both of which cases yoe the Defending Counsel.

Principal Legal Officer Mr Frazer Pitpit appeared and advised the Court that you had not turned up in the office and being, your immediate Supervisor, you had not advised him also of the reason for your absence from the office and from appearance in Court. At 1:30 pm Mr Pitpit advihed the Court the situation was still the same as during that morning regarding your absence. The case of State v Benjamin Garo was in the meantime concluded with Mr Pitpit appearing as an alte counsel while the case ofse of State v Kapera Ivoro & 2 Ors was deferred to 12 April as neither Mr Pitpit nor any other lawyer had been briefed on the File. A further adjournment to Monday 15 April was again given on account of your failure to turn up and Mr Pitpit who appeared on 12 April advised the Court that he had not seen or heard from you. He further advised of nability and that of any otny other lawyer from the office of the Public Solicitor to take up the case as you had the File and had noefed anyone to appear.

This morning when the case was again called, you were again nain not in Court. There was also no rance byce by any lawyer from the Office of the Public Solicitor. By 15 April, the Court also had not been advised of youron for absence on 11 & 12 April, 1996. The Court became aware yo are attending aing a course which commenced this morning e Institute of Public Administration, Waigani.

The cThe case of State v Kapera Ivoro & 2 Ors was set for trial during courting day on 11 February, 19y, 1996. The dates of 8, 9, 10,11 & 12 April, 1996 were specifically set aside for that case.

Your failure to appear is required for the accuseds has resulted in the delay of their trial for 3 days. It is alleger acton 11, 121, 12 & 1mp; 15 April, were calculated, to interfere with or obstruct the fair administration of justice or are liko cause this happening. It is ad that you committemitted contempt in the face of the the Court.

You are required to make your defence to this charge. re given until 16 April, 1il, 1996 to make your defence. If you a lawyer, he may apay appear on your behalf.”

These facts were transcribed on the same day and subsequently served on the contemnor. In the ime, ase was adjourdjourned to allow the defendant time to e to prepare his response.

At the next adjournment on 27 May, you pd guilty. You also apologised t Cour Court. That supported youorse fore for your your contempt which I accept and take into account in deliberating your sentence.

Contempt of Court is undefined by statute in this jurisdiction. The common lawnitioacceptecepted and appl applied in Papua New Guinea is set out in Halsbury's Laws of England (4th Ed. Vol 9) para 7 as follows:“In general terms, words spoken or otherwise published, or acts done outside Court wurt which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempts of Court.”

That definition says there must be an intention to interfere with or obstruct the fair administration of justice; or second that the words or acts are likely to interfere with or obstruct the fair administration of justice. In Wev Central Criminal Coal Courts Administrator, (1977) QB 32 the accurate statement of the English Common Law appears to be contained in the judgment of Lord DennMR at p. 43 as observed by Mr Justice Bredmeyer in the Supr Supreme Court appeal of David Gwaya Poka v The State [1988] PNGLR 218 at pp. 219 and 220:

“But the question arises: was his breach of duty a contempt of court such as to be punishable summarily? I have no doubt thaa solicsolicitor 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 iering with thth the course of justice. But in this case the conofct of the Solicitor was not done with intent to hinder or delay the hearing. He took the view in fairneairness to tcusedcase could not beot be forced on for trial at such short notice before he was ready, and thnd that, as it was bound to be adjourned, d not propose to attend.”

The Supreme Court inrt in Poka's case adopted and followed Lord Dennings' statement of law in Weston's case when it held that, a lawyer who deliberately falls to attend court with intent to hnder or delay the Court and does so may be guilty of Contempt of Court. The application oh law appw appear consistent with other relevant authorities. I Passingan [1982] PNGLR, GLR, 292 Pratt J convicted a witness of contempt of court after finding that the witness (at p.298>

0;deliberately wely went to Port Moresby expecting if he did not get back, the Court would ould adjourn the matter to suit his convenience.” (emphasis mi/p>

In The The State v Mark Taua: Re: Awaita [1985] PNGLR 179 Woods J at p. 183 accepted the lawyer’s explanation and submission that he did not intend to interfere with the administration of justice but found that the lawyer’s carelessness in failing to attend in the circumstances amounted to contempt of court. The conviction could be cobe consistent with, the explanation that the lawyer deliberately chose not to come as opined by Bredmeyer, J in Poka’e. In the more recent case of Paul Metta v The State [1992] PNGLR 176 the Supreme Coue Court adopted the definition of contempt of court as “an act or omission calculated in interfere with the due administration of justice”, from the case, Helmore v Smith [1887] UKLawRpCh 70; (1886) 35 ChD 436 at 455, per Bowel, LJ.

In the matter before me, I am dealing with the behaviour of a lawyer before this Court, which behaviour has had the effect as set out in the facts outlined. I havepted and confirmed ymed your plea of guilty in the light of the cases referred. The only issue remains is s is the sentence, that would fit your offence.; You have explained through your lawyer that on 11 April, ril, 1996 you had a sudden attack of malaria which caused you severe headand high fever. You viou visited Pip on thon the same day and obtained from him a prescription for treatment of your condition. The prescription form tendered shows that 600mgr of Quinine was prescribed to be taken over five days. Your lawyer submitted i anas an error of judgment on your part not to have informed your office on 11, 12 & 15 April, 1996 of your ill-health and iity to attend duties. You also tted your failureilure to attend the Court was unintenintentional.

If you were well enough to consult a doctor on 11 April, you would no doubt have been physically well enough either to present yourself in the office or at least telephone your supervisors or even the Court, to explain your dilemma or instruct your personal contacts to do this for you. You also have a duty torm form the Court at the earliest opportunity in the circumstances of your absence. That simplmon sense approapproach is a matter of indulgence by a diligent lawyer when faced with such situation as yours.

On Mondaypril, 1996 you attended a Public Service Induction Course at the Institute of Public Adminidministration, somewhat oblivious to the fact that you had not explained your abscondment from Court proceedings to anyone. When you appeared before me on 15 April, I did not observe any indication of your bad health in the last four days. That itself is not csive tive that you were not sick. However, you looked strong as usual and fully alert when you appeared before me upon your arrest.

I do not find yxplanation in any way convincing. De your plea, lea, I am ofam of the view that you deliberately absented yourself from attending Court as required. In the final ais, you chos chose on Thursday 11 April to stay away from the Court when required to complete the trial of State v. Benjamin Garo and continue the trial of Kapera lvoro, David Momo and Nandel Masel. You chose to stay away uMoil Monday 15 April hoping that the two cases and other trials in Court Room 2 Waigani would be adjourned or re-assigned to anolawyer to suit your convenience. You chose to abandon the cases fixed for trials in C in Court Room 2 so that you would attend the Public Service Course uninterrupted. The basic aspect that emerges is that you had decided you should be the person who willate what the priorities in s in Waigani Court sittings and for that matter, of administration of justice are - not the Court, not the law but you alone. For yojust walk off in then the middle of court sittings in the belief that if you did not return, the Court would simply adjourn and re-list the cases epitomises arrogance.

What is distressing, is that at this early part of your professional career as a lawyer, you had not only committed contempt but you had acted unprofessionally towards the Court and to your clients. The sente am going to impo impose on you must also serve as a warning to other practitioners that when one chooses a professional career in law, the Court will expect from him, the highest standard of consideration and conduct. Lawypon admission, assume sume professional ethics and responsibility of the high standard which must transmit through his actions anduct towards the Court and his clients. The high obligation plon t on those of us inus involved in the administration of justice is succinctly put by Justice Woods in the case of The State v Mark Tour re: Awaita: Contempt proceedings, [1985] PNGLR 179 at81.

“We judgesudges, 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 thereoft when a man is charged we must ensure the matter is brought to a speedy fruition. At0; At all it is our dutr duty to ensure Justice is done and that a person is given all the rights accorded to him by the law. Contempt ort proceedings ings in this would be a sanction to promote the administration of justijustice in the public interest.”

The case of The State v Mark: Re - Awaita [1985] PNGLR 179 is relevant to your case.&#1e. W J in that case convictedicted a lawyer for contempt of court on the facts that: at the call-over held in Waigani before the Judge, the lawyer asked for two of his matters to be specifically gtrial dates at Popondetta.&tta. The Judge and the Prosecutor travelled to Popondetta in time to commence the two special fixtures which were expected to take one week. On the first day when ourtCourt commenced sittings, there was no appearance by thvate lawyer and the cases wses were not able to proceed. The Court could not sit and wasted two days judicial work as the other defenwyer did not arrange to trao travel early because of the special fixtures. His Honour, found thyerer’s carelessness in failing to attend the Court amounted to contempt of Court. Theer was fined K1,000.00 0.00 and barred from the precincts o National Court in Papua New Guinea until the fine is paid.paid.

Your conduct is of similar gravity:

(1) ҈& You d tled to atto atto attend the Court during the course of two ongoing trial matters, Besides, you were the lawyer assigned unselall legal aid cases in Court Room 2 in Waigani for the month of April, 1996 whichwhich mean meant the cases fixed for trials in that Court are affected by your failure to attend. You caused auption to the the smooth management of cases trials in Waigani with the result that three days of court work was lost; the trial of State v Kapera Ivoro & 2 Ors had to be re-listed, thereusing further delay to thei their trial and a snow- balling delay effect against other accused awaiting their trials.

(2) In Awaita's case, the contemnor made an attempt in the last minute to advise of his inability to attend Court. In your caou simply failedailed to turn up after the adjournment on the previous day and offered no explanation whatsoever until two days /p>

(3) &#1he accused in the secondecond case ie. (Kapai Ivoro, Dro, David Momo and Nandel Masel) appeared from custody on each day set for their trial and no doubt were anxious for their case to be heard quickly. Youed their rights to spee speedy trial to be placed in jeopardy. explained the reason why twhy their case could not proceed, they might well be justified to that their constitutional rights are breached.

Your>Your plea and expression of remorse however mitigate your case in substantial way against the seriousness of your conduct.

I also take into account your personal background and the fact that you are a relatively new practitioner on probation under Public Service Act. I consider that a fin a de a default penalty may be appropriate in the circumstances of your case. You are fined K50to be paie paid within 40 days and 60 days imprisonment witd labour in default.

Lawyer for the Accused: Attornetorney General