Re Contempt of Court, Re Assistant Registrar Philip Kaumba [2004] PGNC 21; N2763 (13 December 2004)

N2763

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP 492 OF 2004

RE: CONTEMPT OF COURT
RE: ASSISTANT REGISTRAR, PHILIP KAUMBA

Goroka: Batari J
2004: November, 22, 25
December, 13

CONTEMPT - Contempt in the face of Court - Court Registrar acting indignantly to court directions and failing to appear upon return of Court directions – Deliberate intent to cause embarrassment, disrespect, disrepute to the Court - Conduct intended to inconvenience and interference with administration of justice .

PRACTICE & PROCEDURE - Contempt proceedings – Contemnor orally charged and served charges in writing – Summary Proceedings – Right to be heard - National Court Rules O.14, rr.38 – 40.

CONTEMPT - Sentence - Court Registrar in contempt of court - Fine and default penalty.

Cases Cited:
David Gwaya Poka v The State [1988] PNGLR 218
The State v Mark Taua: Re Awaita [1985] PNGLR 178
Raymond Tupundu (Unreported National Court Judgment) No. N1536
The State v. Lucas Sasoruo [1997] PNGLR 676.
Andrew Kwimberi v. The State (Unreported Supreme Court Judgment 1998) SC545.
Re: Passingan [1982] PNGLR 292
Metta v The State [1992] PNGLR 176
The State -v- Foxy Kia Kala; Corney Wiyam N1192 (1994).

Counsel:
Contemnor In-person
C. Sambua as, amicus curiae

13 December, 2004

BATARI J: On 22 November, at 3.00pm the Court charged you orally in open Court following your arrest, on two counts of Contempt of Court. The charges were subsequently served on you in writing and are reproduced in full for completeness as follows:

22nd November, 2004

BATARI, J: You are hereby charged with Contempt in the face of the Court on the background and alleged facts as set out below:

You are the Assistant Registrar responsible for staff matters, hence you are responsible to ensure that NJSS resources are utilized in the most effective way so that the Court is not inconvenienced by non attendance of attendant while the Court is in session.

On 9th November, 2004 Silas Gordon who regularly acts as Court attendant gave notice of his intending absence from Court to concentrate on his other alleged duty as Sheriff Officer for Goroka. You are aware of his intentions because your office was copied his letter. Following that letter, Mr Gordon’s attendance became irregular and that seriously affected the Court sittings. Consequently, his attendance had to be requested through your office on a couple of occasions when an attendant was needed to call out cases or usher parties and witness in and out of the Court Room. On some occasions he was not around, the last time being on Motions day on Friday, 19th November, 2004.

In the meantime, he had written to the Registrar, copied to you on 16th November, 2004 protesting his engagement as Court attendant and asserting his position as Sheriff Officer.

It became obvious to you or should have been from 9th November, 2004 and from his letter of 16th November, 2004 that the Court would be inconvenienced by Mr Gordon’s absence due to his expressed intentions. You did nothing about it because this morning the Court yet again sat without an attendant and that was serious because it caused delay in the number of matters listed to be dealt with.

The Court again had to request for an attendant whereupon Mr Gordon appeared and I directed that you also personally attend to explain why the Court is being inconvenienced by this administrative setback. You failed to appear so after some five minutes I sent State Prosecutor, Mr Sambua for the second time to inform you to attend.

You eventually came into Court, shabbily dressed in light white trousers with an apparent air of contempt on your face. You were quite clearly perturbed and angry at being summoned by the Court and whilst in that mood, I gave you the following direction copied from the transcript:

HIS HONOUR: I have for the last couple of weeks been hampered particularly during the Court sittings with the unavailability of Court Attendants and I think there has been some correspondence about who should be the Court Attendant and there have been some questions.

Now, this is inconvenience in my Court and that is why you are here. I am not charging you with anything as yet. But the direction is this and because of what has happened in the last couple of weeks to sit without the Court Attendant, I am directing that the Registrar of the National and Supreme Court in written form inform me today within an hour or so as to who is the Court Attendant here in Goroka. The direction to you is to make sure that, the message is conveyed to the Registrar, Deputy Registrar in Waigani, Deputy Secretary Personnel and for yourself to inform me within the next two hours as to who is the Court Attendant in Goroka. In the meantime, you are to make one available now from your staff. There are two at the back, Ms Namane is there and there is the other officer. All right, next two hours is twelve. I must get that statement in writing from the Court Registrar. Otherwise, warn him, I am going to issue charges of Contempt from here against him and whoever else might be implicated and I think for yourself, if the message does not get through and by 1.30, I do not get that statement; you will also answer for that.

Thank you for your attendance. You may now go and attend to it. That is the direction to the principals in Waigani.

You returned a few moments later with a newspaper untidily tucked at the back of your trousers and unceremoniously interrupted the proceedings in another matter that the Court was dealing with. You handed Mr Sambua a piece of document and walked out without the slightest courtesy to the Court. When I enquired about your intrusion, you took the paper from Mr Sambua and threw it at the Court mumbling something under your breath to this effect, as recorded by the recorder:

HIS HONOUR: Sorry, Registrar, just come in. You will have to do this properly. This is the Court of ---

ASSISTANT REGISTRAR: Those are administrative matters. We can deal with it in Chambers but you have been directing me to come to Court so I have to ....inaudible....

HIS HONOUR: And that is how the Assistant Registrar treats the Court. Let me have a look at it.

I made those remarks after you had stomped out of the Court Room causing an air of surprise, confusion and serious concern to those in the packed Court Room including lawyers, warders, policemen and detainees. I think the lawyers warders were particularly shocked and concerned with your conduct.

The latter episode is tantamount to contempt in the face of the Court by a Court Officer. That is, you deliberately by your conduct intended to bring disrespect and disrepute to the Court. You also by your conduct intended to interfere with the general administration of justice by your failure to provide assistance and cooperation under your duty to the Court.

You are further charge with contempt in the face of the Court on the following facts. You were to appear at 1.30 pm as directed this morning for review of the directions I had issued. You were again reminded personally by my Associate in your office shortly before 1.30 pm of your attendance. The Court sat at 1.30 pm but you were not here and appear to have deliberately absented yourself from attending Court. A Warrant of Arrest was then issued for your arrest and you were detained and brought to Court about 3.00 pm. In deliberately staying away from the Court when you were directed to do so, you further intended by your conduct to bring disrespect, disrepute and ridicule to the Court.

You are given the opportunity to explain why you should not be charged and punished for contempt on those two charges.

I would have proceeded to deal with you summarily now. However, I will give you the opportunity to defend yourself. For that purpose, you will be given in writing, the charges and facts you have now heard in open Court. These proceedings are adjourned to Wednesday 24th November, 2004 at 9.30 am."

After the adjournment, you send me a memo explaining your position concerning the issue of court attendant. And the next day, 23rd November, I received from you a one line apology memo that read:

"I am sorry for what happened this morning in relation to the above and I hope you forgive me."

That memo was purportedly written on 22 November 2004. You did not repeat your apology, nor did you mention the memo when I orally charged you for contempt after you were brought into Court following your arrest on the afternoon of 22 November. Two other aspects of the memo cast doubt on its genuineness: first, it had a handwritten "without prejudice" notation on it and second I received the memo the next day at 9.30am which suggested the memo was written after you had been charged.

At the next adjournment on 25th November, you did not immediately respond to the charges, but made unsustainable objections before launching into lengthy and unwieldy response at the end of which you tentatively apologized to the Court. I did not accept your explanation hence you were convicted of two counts of contempt in the face of the court. My written findings are reproduced as follows:

25 November, 2004

BATARI, J: This morning, you responded to two charges of contempt in the face of the Court which charges you were orally informed on Monday, 22nd November in open Court. The statements on those charges were subsequently served on you in writing and adjourned to yesterday and then to this morning.

I would have summarily dealt with your case of contempt there and then at the time it occurred, and that would have been acceptable under Or.14 r.38, 39 and 40 of the National Court Rules. But I decided to give you the opportunity to prepare and be heard on why you should not be cited and punished for contempt of court. The service on you of the Statement of the Charges and supporting facts in writing was not necessary but that course was taken to avoid any misapprehension that you were being unfairly dealt with.

This morning, I refused your application for adjournment to prepare your case because in my view, you have had ample time and being a lawyer yourself, you should be prepared to respond within the time already given. What you did as stated in the facts supporting the charges transpired within the hearing of the Court while it was in session and in the presence of members of the public including lawyers. So, you should be able to respond quickly to that charge and too, for your failure to attend Court when required.

I also refused your application for a another Judge to deal with your case on the basis that I did not consider your conduct as a personal affront to me or the Court but rather, an interference with the overall administration of justice. It had nothing to do with any personal differences between you and me. It is an issue that affects public interest, trust, confidence and respect which you as the most officer of the Court must be the first to give to the Court. I have a constitutional duty to ensure that, public trust and confidence in the effective and general administration of justice is not interfered with and I am dealing with your case on that basis. Your conduct amounted to interference with the administration of justice and I am fortified in the course I have taken by your apology.

You had responded in a very lengthy statement at the end of which you apologized. You also called evidence from your Secretary, Ms Roselyn Mamano. I have some difficulty accepting that you wrote the apology memo on 22 November because if you did, I would have received it at the same time I received your other memo bearing the same date regarding the Court attendant issue. Further, if you were genuine in your apology, for the earlier incident in the morning, the time for you to express that remorse was at 1.30 pm but you did not take that opportunity because in my view, you did not care what the Court says, since you and own personal conveniences are more important.

A few of the remarks you made is directly related to your conduct. A substantial part is on peripherals which had little or no direct bearing on the Contempt of Court charges.

In brief, you stated that you acted in the manner you did due to "provocation". That is, you were "provoked" when you were summoned to appear in Court without good course on an administrative matter. You passed the bark to Silas Gordon, stating if anyone is to be disciplined; it is him the Court must deal with and not you. You also stated with some antipathy that I have the support staff including security personnel that I should assign as Court attendants without having to bother you. In addition, you stated that, the there is no position for a Court attendant under the new staff structure; inferentially and thereby, you have no responsibility to provide or ensure the Court has a Court attendant.

I have considered all that in the light of the facts which formed the basis of the direction. You are responsible for making sure that the Court is not interrupted, inconvenienced or interfered with in its administration of justice. The buck stops with you here in Goroka.
You were "provoked" by your own inability and failure to see that the Court was being inconvenienced in its management of cases and trials and you did nothing about it. Then you had the audacity to tell the Court not to summon you but should resolve its own problems. Impliedly you were telling the Court that you are above the Court and the law.

In the upshot, I do not find your explanation in the least reasonable. I also conclude from your dithering apology and demeanour that you deliberately intended to demean and cause the Court disrespect, disrepute and embarrassment and in that way, your conduct amounted to gross interference with the general administration of justice.

The offence of contempt is not defined in the Constitution or the Criminal Code or in the National Court Rule which deal with procedures to follow in contempt proceedings. But any attempt to define that offence has been left open as has been stated in some of the cases here and in common law: Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (Unreported Supreme Court Judgment dated 27/03/98) SC 545.

In my conclusion, your conduct in unceremoniously entering the Court room; in responding rudely to the bench; in stomping out of the Court room mumbling inaudibly under your breath, and in all the circumstances leading up to and surrounding that conduct, amounted to contempt in the face of the Court.

You are found guilty and convicted on that count.

On the second count, you said you did not know that you were to attend court at 1.30pm and that no-one had informed you to attend. My Associate had filed an Affidavit that he had informed you to attended Court shortly before 1.30pm. I am not satisfied with your devious and pretentious explanation. You were plainly told in Court in the morning the directions to you were returnable at 1.30pm and it is apparent that your indifference to the Court had carried over from the morning to the afternoon. As an officer of the Court, you are obliged by your duty statement to attend Court at the time the direction given was returnable at 1.30 pm. You need not be told to do that because you must know in your position as a Senior Court Officer. It is also your paramount duty to do that out of due courtesy whether or not you are told. You wrote to the Registrar and you received his response before lunch. That response was returnable at 1.30 pm and that was when you were to attend Court without having to be told. Instead, you considered that inconsequential and despite being reminded by my Associate, you absented yourself in what I believe was a deliberate and calculated move to defy the authority of the Court. Consequently, you intended to interfere with the general administration of justice.

I do not accept the explanation for your absence from Court as reasonable. In fact, I considered that you deliberately stayed away from Court and you told lies about not being aware of your requirement to attend court at the time the directions were returnable at 1.30pm. You are also found guilty and convicted on that charge".

You now appear again to be heard and be punished for your contempt in the face of and within the hearing of the Court. Any further adjournment is unnecessary. You should in fact be grateful that the court had given you unprecedented latitude in not promptly dealing summarily with you under O. 14, rr. 38, 39, 40 of the National Court Rules, ("the NCR"). The effect of these rules is summed up in the Supreme Court case of, Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (27/03/98) SC 545 as follows:

"Where it appears to the Court ‘on its own view, that a person is guilty of contempt of Court, committed in the face of the Court or in the hearing of the Court, the Court may’ issue oral orders directing the contemnor to be brought before the Court or issue a warrant for his arrest. (r. 38). When the contemnor is brought before the Court, the Court informs the contemnor of the charge orally, requires him to make his statement in defence, hears him and determines the matter of the charge and make such order as to punishment. (r. 39). The Court may direct the contemnor to be kept in custody pending the Court's determination of the charge. (r. 40)".

It is therefore plainly intended that a contemnor may be summarily charged, convicted and punished all at the same hearing, "without following the usual criminal procedure prescribed by written law," despite the contempt being a criminal offence in nature. In this case, you have had more than ample opportunity to prepare and answer the charges. The course I have adopted was principally to avoid any misapprehension that you are being unfairly dealt with and it is more to you advantage. Though that course may not be procedurally correct under O. 14 rr. 38 – 40 of the NCR, the proceeding was not necessarily invalid as it followed closely, the constitution right to be heard on your defence: Kwimberi v. The State (supra).

I am fortified in my findings on your guilt of Contempt of Court, by the Supreme Court case of, Kwimberi v. The State (supra) which provides detail analysis of the common law position including some of the cases here, on the definition of contempt committed "in the face of the Court" (or "within the hearing of the Court"). I adopt the following relevant and helpful excerpts from that judgment:

"A useful definition is given by Lord Denning MR in Balog -v- Crown Court at St. Albans [1974] 3 ALL ER 283 at 287 where the learned Master says:

‘..... what is meant by 'committed in the face of the Court'.......has never been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempts of which a judge of his own motion could punish a man on the spot. So 'contempt in the face of the Court' is the same thing as 'contempt which the Court can punish of its own motion'. It really means 'contempt in the cognisance of the Court’.

"Also in the past cases which have been decided in this country, there is no clear statement as to what kind of contempt may be summarily dealt with. Again in Balog -v- Crown Court at St. Albans, Lord Denning says (at 287-288):

‘Gathering the experience of the past — then whatever expression is used, a judge ..... could always punish summarily of his own motion for contempt of Court whenever there was gross interference with the Court of justice in a case that was being tried, or about to be tried, or just over —no matter whether the judge saw it with his own eyes or was reported to him by officers of the Court, or by others — whenever it was urgent and imperative to act at once ...... In all other cases, he should not take it on himself to move. He should leave it to the Attorney-General or to the party aggrieved to make a motion in accordance with the rules in RSC Ord. 52. The reason is so that he should not appear to be both prosecutor and judge; for that is a role which does not become him well.

‘..... This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately — so as to maintain the authority of the Court — to prevent disorder — to enable witnesses to be free from fear and jurors from being improperly influenced and the like. It is of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt: See R -v- Gray by Lord Russel of Killowon CJ. But properly exercised, it is a power of the utmost value and importance which should not be curtailed.’

"Lord Denning then goes on to set out three specific instances of "contempt in the face of the Court" under the categories of "In the sight of the Court", "within the courtroom but not seen by the judge" and "At some distances from the Court". Lawton CJ in the above case expounds on the above principle and gives specific illustrations of the kinds of contempt which may be dealt with summarily. At p. 295, His Honour says:

‘In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified and without disturbance and with a fair chance of a just verdict or judgment. Contempts which are not likely to disturb the trial or affect the verdict or judgment can be dealt with my motion to commit under RSC Ord. 52, or even by indictment.

‘The exercise of judicial discretion in this way can be illustrated by reference to the kinds of contempt which are most frequently witnessed by or reported to judges: witnesses and jurors duly summoned to attend who refuse to attend Court; witnesses duly sworn who refuse to answer proper questions; persons in court who interrupt the proceedings by insulting the judge, shouting or otherwise making a disturbance, persons in Court who assault or attempt to assault or threaten the judge or any officers of the Court whose presence is necessary; persons in or out of Court who threaten those about to give evidence or who have given evidence; persons in or out of Court who threaten or bribe or attempt to bribe jurors or interference with their coming to Court, persons out of Court who publish comments about a trial going on by revealing a Defendant's criminal record when the rules of evidence exclude it. Contempt of these kinds may well justify the use of the summary jurisdiction, but everything will depend on the circumstances.’ (my emphasis).

"It is to be noted from the above passage that the categories of such contempt "in the face of the Court" are never closed. It all depends on the circumstances of each case. As it was proven in the subsequent case of Weston -v- Central Criminal Court's Administrator [1977] QB 32, Lord Denning MR (at 43), expanded these instances to include a lawyer who fails to attend Court in relation to a criminal case which had been set down for trial. Lord Denning said (at p. 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.’

"The common law definition as accepted and 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 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 Weston v Central Criminal Courts Administrator, (1977) QB 32 the accurate statement of the English Common Law appears to be contained in the judgment of Lord Denning, MR at p. 43 as observed by Mr Justice Bredmeyer in the 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 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.’"

Two basic aspects which emerge from these stated principles and the case of Kwimberi v. The State (supra) on the offence of Contempt of Court are that: first, Contempt "in the face of the Court" (or "within the hearing of the Court"), is not defined by the Constitution or any Act of Parliament or By-Laws and any attempt to define it has been left open, depending on the circumstances of each case. Second, Contempt in the face or within the hearing of the Court is punishable summarily whenever it was urgent and imperative to act at once to maintain the dignity and authority of the judge or the Court "to prevent disorder — to enable witnesses to be free from fear and jurors from being improperly influenced and the like".

In this jurisdiction, it has been held to be contempt of Court where a lawyer deliberately fails to attend court with intent to hinder or delay the Court or where the lawyer deliberately chose not to attend Court: Poka v The State [1988] PNGLR 218; Raymond Tupundu (Unreported National Court Judgment, 1996) No. N1536. Where the conduct of the lawyer was not intended to interfere with the administration of justice but the court found that the lawyer’s carelessness in failing to attend court amounted to contempt of court, see; The State v Mark Taua: Re: Awaita [1985] PNGLR 179. It has also been held to be contempt of court where a witness deliberately absents himself from a court hearing: Re: Passingan [1982] PNGLR, 292. In Metta v The State [1992] PNGLR 176 the Supreme Court adopted a broader definition of contempt of court from the case, Helmore v Smith [1887] UKLawRpCh 70; (1886) 35 Ch. D 436 at 455, per Bowel, LJ. as, "an act or omission calculated to interfere with the due administration of justice."

In the matter before me, I am dealing with the behaviour of a Senior Court Official of this Court. You are the Assistant Registrar responsible to the Court for the efficient and effective administration of justice in this province and generally. I have found you guilty of contempt in the face of and within the hearing of the Court for disruptive, disgraceful and careless behaviour. Your failure to support the Court in allocating an attendant is an act of carelessness deliberately intended in my view to cause delay in the fair trial and management of cases. Your deliberate failure to attend when required by the Court, your unacceptable appearance and indignation in addressing the Court, meant you did not intend to cooperate with the Court in a matter of administration of justice. Your conduct was also tantamount to personal affront against the dignity and authority of the Court. Your conduct in both instances was intended to interfere in a substantial way, with the administration of justice. Hence, it was urgent and imperative that the Court acted immediately to restore its dignity and authority. On that premise and on the authorities I have cited, I dealt with your case summarily. The only issue that remains is the sentence that fits your offence.

I do not find your explanations in any way convincing. You raised the issue of ‘provocation’ which I dismissed as being nothing more then a veiled and deceptive attempt to hide your own administrative incompetence and inefficiency in handling issues connected with staff and general Court administrative matters. You well knew and it was within your own comprehension that the smooth administration of court cases was being seriously placed in jeopardy due to constant absenteeism of a Court attendant. Hence, you were summoned to appear in Court but, your intention not to cooperate was made plain from the start. You refused to attend initially and when you were sent for the second time, you entered the Court room sloppily attired and exasperated. I disregarded your tardiness and behaviour then and proceeded to explain the reason you were required in court before giving you certain directions to convey to the Registrar, indicating at the same time, the directions were returnable at 1.30pm.

You returned a short time later, disrupting the Court session and handed the State Prosecutor, Mr. Sambua, a piece of paper. When I enquired about your intrusion, you retrieved the paper from Mr. Sambua and threw it at the court before stomping out mumbling. You conducted yourself in that disgraceful and undignified manner, unmindful of those present, including lawyers in the packed Court room. Your intention to deny the Court your cooperation carried over to the afternoon when you left your office to attend to your personal convenience at the time that you were required in Court.

In the final analysis, it was plain that you intended to ignore and shun your duty and responsibility to the Court as a high ranking court staff in Goroka and in so doing you intended that, the general administration of justice would be interfered with and the fair trial of cases is put in jeopardy. You did this for your own convenience and when it suited you. The basic aspect that emerges is that, you had decided you should be the person who will dictate what the priorities in Goroka Court sittings and for that matter, of due administration of justice are - not the Court, not the law but you alone.

Your behaviour clearly epitomized arrogance and self-righteousness as are also evident in your commonly used phrase; "for reasons only known to yourself," in office memos, sometimes addressed without the slightest tact and courtesy directly to me - a judge of the National and Supreme Court. Such disposition I believe has been the cause of for your ill-conduct which has led to your Contempt of Court charges.

This is in fact the second time you have appeared before me to explain your conduct which affected Court management of cases. I had to deal with you in mid 2003 and found then that your negligence in the discharge of your duty had led to undue delay in cases coming before the Court. On that occasion, the Court issued directions to serve notices on the parties in eight (8) civil matters. You failed to carry out that direction and as a result, those cases could not proceed on the returnable date. Hence, there was further delay in the fair and prompt disposition of those cases. Instead of punishing you for contempt then, I had only caution and discharged you as follows:

"I do not accept the reasons put forward by Mr. Kaumba. I have now to decide whether or not to cite him for contempt. His explanation simply reflects his own attitude to work. At the highest, his failure to carry out the (Court) Orders tantamount to negligence other than a deliberate attempt or intention on his part to ignore a Court direction. Negligence in the performance of one’s duty in this case is a matter best dealt with administratively, unless it is also shown that elements of deliberate attempt to disrupt, hamper, or inconvenience the Court and Court administration (of justice) existed.

Mr. Kaumba is released with a caution."

It is also most unfortunate that, you had assaulted my Personnel Secretary while the contempt charges were still pending against you. You might well be guilty of further contempt of Court but I am not inclined to dwell on that as the criminal charge and any administrative action which might be instituted against you from that incident would rather take their courses.

But it is relevant to note the unacceptable and irresponsible use of violence in your position to settle personal conflicts with subordinates. Such humiliating conduct only undermines your own integrity as a senior manager and demonstrates administrative incompetence, weakness and failure on your part. You have shown yourself to be lacking in self-discipline and I hope the NJSS management can do something about it since your conduct may also amount to serious breach of the NJSS Act.

The assault within the Court premises is particularly serious because of its adverse implications against the dignity and authority of the Court and the office you occupy. It was unwise of you to attack the judge’s private secretary while your contempt of Court case was still pending. Your action insults commonsense and dents your own acumen. The insinuations and the public perception from the incident which are; that, it was a direct attack on the judge and the Court; that, it was a direct retaliation against the judge; that the attack was intended to intimidate the judge and/or his staff and that the attack was intended to influence the outcome of your contempt charges, should have been obvious to you but you did not seem to care.

Having said all that, the sentence I impose on you must also warn others serving the Court, be they NJSS staff members or lawyers that, the law and public policy bestow on those involved in the administration of justice, the highest standard of consideration and conduct. Employees within the NJSS and lawyers alike, assume professional ethics and responsibility of the highest regard which must translate into appropriate and ordered behavior in the performance of their duties. This high obligation and the reason to punish contempt of Court in the public interest is well stated by Woods J in The State v Mark Toua, re: Awaita, [1985] PNGLR 179 at p. 181:

"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."

There is no case on all fours with your case that I can find on the issue of penalty. However I have had regard to some cases and the trend of penalty being awarded. In Re - Awaita (supra) a lawyer convicted of contempt for negligence in the performance of his duty to the Court was fined K1000.00 and ordered to keep away from the precincts of the Court premises until the fine was paid. Your case comes close to that case on the facts constituting carelessness in performing your duty.

In The State v. Raymond Tupundu, (supra), I found the contemnor 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 both as to the fact of the cases having been listed and his intended absence during those dates at the Institution of Public Administration.

In Kwimberi v. The State, (supra), 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. The penalty of K100.00 fine to be paid within 7 days in default 8 weeks imprisonment was confirmed by the Appellate Court.

Other cases dealing with contempt of Court cases arising out of Lawyers' failure to attend Court and amounting to contempt "in the face of the Court", which I referred to on the sentences imposed include: Poka v The State [1988] PNGLR 218; The State -v- Lucas Sosorua N1494 (1996); The State -v- Foxy Kia Kala; Corney Wiyam N1192 (1994).

You have asked that I take into account your service as Assistant Registrar in Goroka for the past 10 years. You should have in fact been the wiser instead of acting carelessly in your duty and responsibility to the Court. I also do not consider your expression of remorse genuine as it was not reflected in your conduct following your charge and conviction on contempt. I consider that a fine and a default penalty may be appropriate in all the circumstances of your case. You are fined K1000.00 on both charges to be paid within 40 days and 90 days imprisonment with hard labour in default.
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Contemnor in Person
C. Sambua as Amicus Curiae