State v Donne [2007] PGNC 47; N3133 (20 July 2007)

N3133

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 203 OF 2007

STATE

v.

JOEL DONNE
JACK PAMBEL
CAMILLUS SAMBUA
&
DOROTHY KAKOT

Kokopo: Sevua, J
2007: 6 & 8 June
Waigani: 2, 7 & 20 July

CONTEMPT – Contempt of court – Failure of lawyer to appear as prosecutor in criminal trial – Defence ready to proceed – State not ready due to failure of lawyer to appear – Interference with administration of justice – Whether failure deliberate or intentional – Contempt made out.

National Court Rules, r.38 –r. 40

Cases Cited

PNG cases

The State v. Mark Tawa: Re Awaita [1985] PNGLR 179
David Gwaya Poka v. The Independent State of Papua New Guinea [1988] PNGLR 218
Robert Wer & Ors v. The State [1988-89] PNGLR 444
Andrew Kwimberiv. The Independent State of Papua New Guinea (1998), unreported, SC 545, 27th March 1998, (Woods Hinchliffe Injia JJ.)

Overseas cases

Weston v. Criminal Court Administrator [1977] QB 32
Izuora v. The Queen [1935] AC 336

Counsel
L. Siminji, for Contemnors

20 July, 2007

1. SEVUA, J : The contemnors have been cited for contempt of court and asked to show cause why they should not be punished for contempt.

2. The first contemnor, Joel Donne is a lawyer in the employ of the Public Prosecutor’s Office in Lae. Until the contempt charge, the Court was not aware that he is not a gazetted State Prosecutor. The second contemnor, Jack Pambel is the Acting Public Prosecutor. The third contemnor, Camillus Sambua is the Deputy Public Prosecutor and the fourth contemnor, Dorothy Kakot is the Administrative Officer in the Office of the Public Prosecutor.

3. The particulars of contempt have already been stated to the contemnors at Kokopo on 6th and 8th June respectively when they appeared in Court at Kokopo on those dates as this charge relates to non-appearance in Court at Kokopo. However, for the purpose of this judgment, I shall state the particulars of contempt again.

4. The National Court Circuit for June 2007, commenced on Monday, 4th June. I was on circuit to Kokopo that month and arrived at Kokopo on Sunday, 3rd June. On Monday, 4th June, I commenced dealing with civil cases listed before me in Court 2. On Tuesday, 5th June, the criminal trial of The State v. Danny Pirino CR 1254 of 2001 was to commence in my Court at 9.30am. The trial date for that matter had been fixed on 19 March, 2007.

5. When the case was called on the morning of Tuesday, 5 June 2007, Mr. Rangan, the State Prosecutor based at Kokopo appeared for the State whilst Mr. Potoura appeared for the accused. The accused appeared from custody and the defence was ready to proceed with the trial.

6. However, Mr. Rangan sought an adjournment because he said he was not quite ready to proceed. He said he needed to sort out the prosecution’s witnesses who were outside the Court that morning, and he also needed to sort out the indictment. It became evident later that the State’s witnesses for this trial were not available outside the Courtroom as indicated by counsel.

7. Mr. Rangan further informed the Court that the State intended to indict a co-accused with Danny Pirino. It was obvious that the State was not ready at all. Mr. Rangan also informed the Court that counsel who was to prosecute this case had not yet arrived in Kokopo due to circumstances "beyond his control." The Court later learnt that the prosecutor was Joel Donne, the first contemnor herein.

8. The application for adjournment was refused on the ground that the State had had more than sufficient time since 19 March 2007 to prepare for that trial. The accused had waited for 5 years 7 months for his trial, and when the time finally arrived for his trial, the State was back-peddling and pussy-footing around. The Court’s decision for refusing the adjournment is a matter of record, and is the subject of a short published judgment on 5 June 2007.

9. Due to the unpreparedness of the State; the excuses that were advanced, and the length of time the accused had waited for his trial, the Court, in the exercise of its powers under the Constitution, ordered the discharge of the accused, Danny Pirino from a charge involving a very serious violent crime.

10. The Court was caught by surprise on the morning of 5th June as Mr. Donne was not available to prosecute the case set for trial. On 6th June, a short matter that was to come before the Court for hearing was aborted because Mr. Rangan had to return to Court 1 to continue a part-heard matter before Justice Lenalia. It became evident that Mr. Rangan was the only State Prosecutor on the ground, and had to run between Court 1 presided by Justice Lenalia, and Court 2 presided by me. The second case had to be adjourned as well because Mr. Donne had yet to arrive in Kokopo on the morning of 6th June.

11. At lunch time on Wednesday, 6th June, I was advised that Mr. Donne had arrived in Kokopo and had asked to see me in Chamber. I refused and conveyed my message to him that I had decided to cite him for contempt of court and would deal with him in Court, not in Chamber. At about 1.30pm that day, Mr. Donne appeared in Court and was formally charged with contempt of court.

12. As a result of the failure by Mr. Donne to appear in Court 2 on 5th and 6th June, the Court and the State had incurred unnecessary expenses. The Court was unable to do any work for almost 2 days therefore making the public think that the Court was not doing any work.

13. After the Court formally charged Mr. Donne with contempt, the Court ordered him into custody at Kerevat CIS that day, but he was released on bail on 7th June, on the application of his lawyer, Mr. Gavara-Nanu. At the same time, the Court ordered Mr. Pambel, Mr. Sambua and Ms. Kakot to appear personally on 8th June to show cause why they should not be punished for contempt of court.

14. Mr. Donne’s failure to appear in Court had therefore not only put the Court and the State to unnecessary expenses, but caused unnecessary delay in and interfered with the administration of justice.

15. On 8 June 2007, when the other three contemnors appeared in Court, the particulars I have alluded to above were put to them. The affidavit of Mr. Donne sworn on 5th June, and faxed to the Court on the same date provided the explanation he was not able to be in Kokopo at the commencement of the circuit.

16. In the particulars of contempt put to the three contemnors, the Court alluded to that sworn affidavit and referred to the following.

17. Mr. Donne had deposed to the following facts. He returned from circuit in Finschhafen on Friday, 25 May 2007. At approximately 11.00 am on Monday, 28th May or Tuesday, 29th May, Mr. Sambua advised him by telephone that he (Donne) would do the Kokopo Circuit in June. On Thursday, 31st May Mr. Pambel was in Lae when Mr. Donne then confirmed his travel to Kokopo. Finally, Mr. Donne spoke to the Administrative Officer about his circuit arrangements, but was informed that Mr. Sambua had yet to advise the Administrative Officer of the travel arrangements for the Kokopo Circuit.

18. On Saturday, 2nd June Mr. Donne rang Mr. Pambel at about 10.00 am and was referred to Mr. Sambua. Mr. Sambua later telephoned Mr. Donne and advised that things would be sorted out on Monday, 4th June. Let me just interpose here for moment and make one observation. At about the time that counsel should have been in Kokopo or should have travelled to Kokopo, Mr. Pambel and Mr. Sambua were still talking about counsel’s travel arrangements when they would have already been advised by the Chief Justice that the June Circuits would commence on Monday, 4th June.

19. On Monday, 4th June when Mr. Donne telephoned the Public Prosecutor’s Office he was advised that there was a delay at Finance resulting in receiving a cheque late. Ms. Kakot then advised Mr. Donne by telephone at about 4.36 pm and advised that by the time the cheque was available and "they" went to Air Niugini, it was already 4.15 pm. No one knows who was "they".

20. Ms. Kakot then advised Mr. Donne that he would receive his ticket on Tuesday, 5th June and further that he would travel out of Nadzab to Kokopo on Thursday, 7th June as there were only two flights from Nadzab to Kokopo. Again, I make a similar observation here. The circuit had already commenced on Monday, 4th June, however, Ms. Kakot was still talking about Mr. Donne’s travel on 7th June. So Ms Kakot, Mr. Pambel and Mr. Sambua thought that the Court would wait for them in Kokopo whilst they get themselves and their counsel organized. In other words, its okay, the Court can wait for us until we get our acts together. What kind of management is this? Should the Court put up with this kind of stupidity and nonsense?

21. On the afternoon of Monday, 4th June, at about 5.14pm Mr. Pambel sent a text message to Mr. Donne to pick up his ticket that afternoon for the next day early morning flight. Mr. Donne said it was late to collect his ticket to fly out on Tuesday, 5th June. His attempts to contact Mr. Pambel between 8.30 – 9.00 am that day were unsuccessful as Mr. Pambel’s cell phone was continuously engaged.

22. Between 10.00 and 11.00 am, Tuesday, 5th June, Mr. Donne received a telephone call from Mr. Rangan at Kokopo who advised that if Mr. Donne did not appear on Wednesday morning, 6th June, he would be cited for contempt of court. Mr. Donne then conveyed that message to Mr. Pambel and Mr. Sambua. Mr. Donne did not arrive at Kokopo until midday Wednesday, 6th June. His failure to appear meant the Court waited for almost two days doing no work. The failure to appear in Court meant that while the Court was waiting to hear two cases, Mr. Donne and the other three contemnors were still running around arranging his ticket and travel, which arrangements should have been completed prior to the commencement of circuit on 4 June 2007.

23. The Court was of the view that Mr. Pambel, Mr. Sambua and Ms. Kakot had contributed to Mr. Donne’s failure to appear in Court on Tuesday, 5th June and Wednesday morning, 6th June. If the Court were to invoke the principle of principal offenders under s. 7 Criminal Code, the other three contemnors would be equally guilty as Mr Donne, whose failure to appear in Court on Tuesday, 5th June, resulted in the Court discharging a person charged with a serious violent crime, and further the Court was unable to deal with another criminal matter on the same day (afternoon) and Wednesday. Therefore the Court had wasted almost 2 sitting days waiting for Mr. Donne.

24. At no time prior to Monday, 4th June did any of the contemnors advise the Court that Mr. Donne would not be available in Kokopo at the commencement of the circuit. Mr. Pambel, Mr. Sambua and Ms. Kakot did not show any courtesy and respect to the Court by advising the Court of Mr. Donne’s predicaments. They showed no respect in their conduct which led to Mr. Donne’s failure to appear in Court on Tuesday, 5th June and Wednesday morning, 6th June.

25. For almost 2 days, the public must have believed and thought that the Court had no work to do. And while the Court was on the ground waiting for counsel, Mr. Donne, the three other contemnors, Mr. Pambel, Mr. Sambua and Ms. Kakot thought the Court would wait for them and Mr. Donne. This conduct is belittling the Acting Public Prosecutor and the Deputy Public Solicitor. When will senior government lawyers like these two learn some respect for the Court?

26. The collective actions of the three contemnors, not only put the Court and the State at unnecessary expenses, but interfered with the administration of justice in The State v. Danny Pirino, resulting in the release of the accused, who had been charged with a serious violent crime, and had waited for more than 5 years in prison for his trial, and the delay in another criminal case.

27. Those are the circumstances in which the contempt of court charges arose, and those particulars were put in writing to the contemnors for the purpose of understanding and appreciating the basis for those charges against them.

28. In response to these charges, the contemnors had filed affidavits explaining their individual position and the role each played in this matter. I have alluded to the fact that Mr. Donne had sworn an affidavit in Lae on 5th June, and faxed it to the Court in Kokopo on the same date. He has filed a second affidavit sworn on 26th June.

29. Mr. Pambel has filed two affidavits on 8th June and 18 June 2007. Mr. Sambua has filed one affidavit sworn on 8th June, and another sworn and filed on 21st June in respect of his application to vary bail conditions. Ms. Kakot has filed two affidavits sworn 8th June and filed on the same day, and a second affidavit filed on 4th July.

30. There is another affidavit sworn by Monica Yibmaramba on 7th June and filed on 8th June. She is the Acting First Assistant Secretary Finance and Administration in the Department of Justice & Attorney General. Perhaps she should also be charged with contempt of court.

31. The Court has perused all these affidavits and duly considered all the matters that have been deposed to.

32. Having read and considered these affidavits, it is my opinion that all the deponents by their affidavits, have desperately attempted to justify their actions, which the Court does not accept for the simple reason that, the failure by the Department of Justice and Attorney General or the Public Prosecutor to secure circuit funds is not a new issue, and most important of all, the Public Prosecutor has recourse under s.225 of the Constitution.

33. That being the case, the Public Prosecutor cannot continue to use his failure to take a positive step as the reason to justify his poor and negligent conduct. I do not accept that excuse at all because as a Constitutional Office Holder, the Public Prosecutor has the right to seek redress under s.225 Constitution. Therefore in my view, and with respect, he cannot continue to use the same excuse each time his officers are not punctual at attending Court circuits. The Court; accused persons charged with serious indictable offences, and other lawyers cannot continue to be held at ransom by the Public Prosecutor, his lawyers and the administrators in his office and the Department of Justice & Attorney General for that matter.

34. On 4th July, the Court heard submissions from the contemnors’ counsel, Mr. Siminji and reserved its ruling to 12th July, however due to the influx of election related proceedings that were coming to my Court, this smatter had to be adjourned several time. I do apologise for that.

35. Having considered counsel’s submissions, I am of the view that it is appropriate for this Court to deal with the charge against Mr. Donne, as the contempt arose in relation to his non-appearance in Court regarding a criminal trial then before the Court in Kokopo.

36. On the other hand, I consider that the charges against Mr. Pambel, Mr. Sambua and Ms. Kakot should be dealt with by another Judge, not necessarily because of counsel’s submissions, but more so, to avoid any accusation and allegations of bias on my part, or that I have a personal interest in the case involving those contemnors. I have no interest in that matter except upholding the authority of the Court and its integrity and processes.

37. Accordingly, I direct that the Registrar files an Originating Summons together with a Notice of Motion charging the three contemnors, Jack Pambel, Camillus Sambua and Dorothy Kakot with contempt of court. The particulars of contempt which are in writing have already been put to them at Kokopo, and such particulars would form the basis of the charge to be instigated and prosecuted by the Registrar. In relation to the question of bail, I direct that, until that case is assigned to another Judge, any application for variation must still come to my Court.

38. In respect of Joel Donne, I consider that his conduct interfered with the administration of justice in the criminal case he was to prosecute and therefore, whilst it is not contempt in the hearing of the Court, it is contempt in relation to its proceedings, which is tantamount to contempt in the face of the court and the Court which the contempt relates to, can hear the matter. See: The State v. Mark Tawa: Re Awaita [1985] PNGLR 179; and Andrew Kwimberi v. The Independent State of Papua New Guinea (1998), unreported, SC 545, 27th March 1998 (Woods, Hinchliffe, Injia JJ.).

39. Mr. Siminji has made a number of submissions in this matter in respect of all the contemnors, however in the light of the order I have made above, I will confine my consideration of this charge to Joel Donne only.

40. I need not repeat the facts giving rise to this charge against this contemnor, however suffice it to say, I will repeat the undisputed primary fact that the contemnor failed to appear in Court on Tuesday, 5th June and the morning of Wednesday, 6th June in Kokopo. His failure to appear directly affected the trial of The State v. Danny Pirino resulting in Mr. Rangan, the local State Prosecutor standing in for the contemnor and the over all unpreparedness and unreadiness consequently led to the Court discharging the accused from a serious charge, vis a viz, armed robbery. I find that Mr Donne’s conduct, intended or otherwise, interfered with the administration of justice in the case of The State v. Danny Pirino and another case.

41. I think the crux of Mr Siminji’s submissions relate to the issue of deliberate or intentional failure. As I understand, his submission was that since the contemnor’s failure to appear in court was not deliberate, he did not intend to interfere with the course of justice. Counsel submitted that Mr Donne’s non-appearance although may amount to contempt of court, was due wholly to travel arrangements that were beyond his control.

42. It is my opinion that whether a conduct amounting to failure by a lawyer to appear in court is intentional or not, contempt can be made out from the circumstances surrounding that conduct. However, in the present case, I am of the view that counsel has missed a very important point here. Nowhere in the particulars of contempt did I allege deliberate or intentional conduct or failure by Mr Donne. The crux of his failure to attend, and the effect it subsequently had on the trial he was to prosecute, is the issue here. I consider that that issue needs to be clarified here.

43. This Court is not dealing with a contempt charge emanating from an intentional failure to appear in Court. Therefore, in my view, counsel’s submission that the non-appearance was not deliberate, and the failure was not intended to cause interference with the cause of justice is misconceived. The cases of Re Awaita and Andrew Kwimberi (supra) canvass that issue, which I need not dwell on in this judgment.

44. As I intimated during counsel’s submissions, if I were to accept that such a conduct was unintentional then I must be satisfied as to the reason the contemnor, his superiors, Messrs Pambel and Sambua, and even Ms Kakot did not have the respect or courtesy to telephone the Court and advise that Mr Donne was unable to appear due to money problem. As has been seen, the travel of Mr Donne in this circuit had been planned in the last week of May after his return from the Finschhafen circuit.

45. Mr Donne’s superiors including Ms Kakot knew that he had been advised that he would be involved in the Kokopo circuit in June. Why weren’t his travel arrangements made then? Even then, when they became aware on Monday 4th June that Mr Donne could not travel, why didn’t Mr Pambel who is Acting Public Prosecutor, and which the bucks stops with him, and Mr Sambua, Deputy Public Prosecutor responsible for organising National Court circuits for State Prosecutors have the common courtesy or respect to advise the Court? Why are these explanations coming up after they have been charged with contempt of court? If I were to accept this explanation, why wasn’t it made at the material time? As I said, these are deliberate attempts to justify their failure and negligence.

46. It is advisable to say that counsel must carefully study the decision of the Supreme Court in Kwimberi’s case (supra) to understand the Court’s discussion of intentional or unintentional conduct. It is my view that whether Mr Donne’s failure was intentional or not, his failure to appear in Court for two days amounted to an interference with the administration of justice. Whether a lawyer’s conduct is negligence or gross carelessness as in Awaita’s case (supra), it is contempt of court. I consider that the issue of intention is relevant to culpability therefore a matter to be considered on penalty.

47. The explanation by the contemnors of the internal arrangements of senior counsel to appear before a senior Judge and junior counsel to appear before a junior Judge although may be a honourable thing, is quite pathetic to say the least. I mean, why was it that this arrangement not communicated to the Judges on the ground, and why is it that this has to surface after the contempt charges had been laid? Is this the level of respect and courtesy that the Public Prosecutor and his lawyers have for the Court?

48. Although the contemnor has apologised in his affidavit and said, "I had no deliberate intention of not appearing before the Court in Kokopo" due to circumstances beyond his control, I find that his overall conduct, that is, his failure to appear in Court when required, and his failure, together with the failure of his superiors, Mr. Pambel and Mr. Sambua, amounted to contempt of court. The charge itself and the particulars of contempt put to the contemnor allege no deliberate intention and therefore intention is not an essential element.

49. As Re Awaita (supra) was approved by the Supreme Court in Kwimberi’s case, the principles established in it are principles that the Supreme Court has approved. It is therefore necessary to cite some of those statements of the law here to illustrate this Court’s adoption of same and to emphasise the law on contempt. Woods, J in that case held inter alia that:-

(2) The Court itself may deal with a contempt relating to proceedings before

it whether in the face of the court or otherwise.

(3) An act or omission calculate to interfere with the due administration of

justice is a contempt of court.

(4) Any conduct which presents an effective challenge to the authority of

the court, to the supremacy of the law or to the due administration of justice may constitute a contempt of court. (my own emphasis).

50. In the present case, the trial of The State v. Danny Pirino had been fixed for hearing on 19 March 2007, exactly 2 months 2 weeks and 2 days before 5 June 2007. Judicial time had been committed to that trial, and the Court was already on the ground. The contemnor was not available.

51. I accept that the trial had been fixed in accordance with the Criminal Practice Rules, and with the consent and the presence of the State’s representative, not necessarily Mr. Donne. However as it is with the current practice and procedure, State Prosecutors, Defence counsels and Judges from one location would normally circuit to other locations where Judges and lawyers are resident as in the present case. Therefore matters fixed for trial in advance would normally be dealt with unless extenuating circumstances exist to warrant an adjournment.

52. In the present case, while I accept that Mr Donne did not consent to the trial date as he was not counsel who appeared at the call over when this case was fixed for trial, he was nevertheless aware that he would be doing the Kokopo circuit in June. He knew this as early as 28th or 29th May. He and his superiors, Mr. Pambel and Mr Sambua had one full week and a few days to make the necessary arrangements for his travel. As I have adverted to, I do not accept the Public Prosecutor’s reason of late receipt of circuit funds for the reason I have alluded to, but I reiterate that the Public Prosecutor, like the Public Solicitor, has recourse under s.225 Constitution. As the Court said in The State v.Robert Wer & Ors [1988-89] PNGLR 444 at 448; in respect of the Public Solicitor’s Office, "..... Potential arguments that the Public Solicitor’s Office is under-resourced have to be reconciled with s. 225 and s. 23 of the Constitution."

53. Mr. Siminji also referred to two other English cases, Weston v. Criminal Court Administrator [1977] QB 32 and Izuora v. The Queen [1953] AC 336; and David Gwaya Poka v. The Independent State of Papua New Guinea [1988] PNGLR 218.

54. Without delving into those cases, I am of the view that those cases can be distinguished as the facts are different and therefore cannot have any application to the present case, just as Woods, J distinguished them in Re Awaita (supra).

55. I am of the view that the contemnor is guilty of contempt of court and should be punished accordingly. However, in arriving at that conclusion, I adopt what Woods, J said in Re Awaita (supra) which the Supreme Court in Kwimberi (supra) also referred to at page 17 of its judgment. At page 183 of Re Awaita (supra) the Court said:

" It has been further submitted to me that whilst it might be conceded that you were careless and even foolish in not advising the court of 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 where there is clear intent.

I am prepared to accept 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 careless- ness as you have displayed in your appearance before the court to arrange for the hearing of the substantive criminal matter here" (Emphasis added).

56. In Poka’s case (supra), Bredmeyer, J considered that Woods, J’s finding that the lawyer’s conduct was not intended to interfere with the administration of justice, his carelessness by his non- appearance amounted to contempt of court. I find that I am in agreement with Woods, J in Re Awaita and Bredmeyer J’s rationalization of Re Awaita’s decision in Kwimberi .

57. I too, will accept that Mr Donne’s conduct may not have been intended to interfere with the administration of justice, however as I have alluded to, his overall conduct, not just the non-appearance, constituted contempt of court. I do not accept the submission that as there was no intention to cause interference with the administration of justice, he should not be guilty of contempt. As has been seen in Re Awaita (supra) which the Supreme Court adopted in Kwimberi (supra), carelessness may amount to contempt of court.

58. And in the present case, delay in travel arrangements by Mr Donne, though not intended and beyond his control, thus causing the Court to wait for him in Kokopo for two days amounts to contempt. Should the Court be put in such situation where there is technically contempt, however maintain, condone, uphold and agree to the negligent and oft-repeated silly excuse by the Public Prosecutor of the under-resourced argument?

59. I reiterate that the two sitting days which Mr Donne had failed to appear in Court, to use the Supreme Court’s words in Kwimberi (supra) at page 20; "was clearly destructive and interfered in the due and fair administration of justice." I mean what Court in its right mind would not hold this to be so under such circumstances? After all, this is not the first time or the only time lawyers, and particularly government lawyers, have failed to appear in Court. Government lawyers have become notorious for this failure, and it seems that it is becoming an entrenched culture in the Constitutional law offices and those responsible under the Constitution for those law offices must wake up to themselves or pull their socks up and do something rather than give the same lame excuse which does not make any more sense to anyone, let alone the Courts.

60. There is no need to remind the contemnor, and all government lawyers for that matter, that lawyers are bound by the same law, rules of court, etiquettes and practice and procedures that the ordinary people on the street are required to uphold. If lawyers fail to appear in Court, they must be treated in the same manner as the ordinary people because it will be very unfair and an injustice to the man on the street to be hauled into court for contempt of court and punished when lawyers get away with it.

61. For these reasons, I find that the conduct of the contemnor, Mr Joel Donne, although not intended, amounted to contempt of court and I find him guilty as charged.

_________________________________

Public Solicitor: Lawyer for Contemnors