Augerea v Pambel [2008] PGNC 81; N3332 (16 January 2008)

N3332

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP 291 OF 2007

BETWEEN:

IAN AUGEREA in his capacity as Registrar of
THE NATIONAL & SUPREME COURTS
Plaintiff

AND:

JACK PAMBEL as the Acting Public Prosecutor,
CAMILLUS SAMBUA as the Deputy Public Prosecutor
& DOROTHY KAKOT as the Administrative Officer,
all of the Office of The Public Prosecutor
Respondents

Waigani: Hartshorn, J.
2007: 21 November
2008: 16 January

CONTEMPT OF COURT - Direction to Registrar - Order 14 Rule 47(1) National Court Rules - Contempt to be properly established - Proper proof required

Facts:

The Respondents in the proceedings were charged with Contempt for failing to appear before His Honour Justice Sevua in Kokopo National Court to prosecute a murder trial. The Plaintiff Mr. Ian Augerea, in his capacity as the Registrar of the National and Supreme Courts was directed by his Honour Justice Sevua, to commence proceedings against the Respondents for them to be punished for contempt.

Held:

1. Evidence is insufficient to meet the correct standard of proof to establish contempt on the part of the respondents

2. The orders sought in the Notice of motion are refused on the grounds that the Court is not satisfied beyond reasonable doubt that the Respondents are guilty for contempt as charged.

Cases cited:

Papua New Guinea Cases

Re Rooney (No.2) [1979] PNGLR 448
Poka v. Papua New Guinea [1988] PNGLR 218
Ross Bishop & Ors v. Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533
Metta v. State [1992] PNGLR 176
Kwimberi v. The State (1998) SC545

Overseas Cases

Spindler v. Balog (1959) 76 WN (NSW) 391

Counsel:

Mr. N. Kiuk Magela, for the Plaintiff
Mr. L. Siminji, for the Respondents

16 January, 2008

1. HARTSHORN, J: The Plaintiff Mr. Ian Augerea, in his capacity as the Registrar of the National and Supreme Courts of Justice of Papua New Guinea (Registrar), was directed by his Honour Justice Sevua, to commence proceedings against the Respondents for them to be punished for contempt.

2. These proceedings were commenced by Notice of Motion filed pursuant to Order 14 Rule 47(1) National Court Rules together with a Statement of Charges and affidavit of the Registrar in support. The Registrar subsequently filed a further affidavit in support.

3. The Notice of Motion sought amongst others, the following orders;

(1) That Registrar moves, pursuant to Order 14, Rule 47(1) of the National Court Rules, and the inherent powers of the Court that, JACK PAMBEL, acting Public Prosecutor, CAMILLUS SAMBUA Deputy Public Prosecutor and DOROTHY KAKOT Administrative Officer, all of the office of the Public Prosecutor Department of Justice and Attorney General be brought into Court to show cause as to why they should not each and severally be punished for contempt, for interference and causing delay with the due administration of justice; that is to say, They each and severally delayed the National Court criminal sittings held at Kokopo National Court presided over by the Honourable Justice Sevua from the 04th and 05th of June 2007 in the matter of - The State v Danny Pirino – CR 1254 of 2001 and in which His Honour Justice Sevua exercising his powers under the Constitution discharge the accused from a charge involving a very serious crime.

(2) That Registrar moves, pursuant to Order 14, Rule 47 (1) of the National Court Rules, and the inherent powers of the Court that, JACK PAMBEL, acting Public Prosecutor, CAMILLUS SAMBUA Deputy Public Prosecutor and DOROTHY KAKOT Administrative Officer, all of the office of the Public Prosecutor Department of Justice and Attorney General be punished for contempt has alluded to in paragraph 1 above.

4. The Statement of Charges is as follows:

(1) It is alleged that you Jack Pambel, and you Camillus Sambua and you Dorothy Kakot deliberately or unintentionally failed to make circuit arrangements in order to enable a person or persons from the Office of the Public Prosecutor to attend and prosecute criminal cases listed before the Kokopo National Court circuit which commenced on the 04th & 05th June 2007, thereby interfered with the administration of justice and the integrity of the Court by bring it into disrepute.

(2) It is alleged that you Jack Pambel, and you Camillus Sambua and you Dorothy Kakot deliberately or unintentionally failed to send your prosecutor namely Joel Donne to travel in time to prosecute the matter of; The State v Danny Pirino – CR 1254 of 2001, which caused the said National Court circuit in Kokopo to vacate trial and thereby wasted it’s time thereby amounting to carelessness in your conduct as offices of the Court.

(3) Pursuant to paragraphs 1 & 2 above that you Jack Pambel, and you Camillus Sambua and you Dorothy Kakot of the Public Prosecutor's office under each of the positions you occupy with powers and duties vested thereof, each and severally be punished for contempt of court for interference with due administration of justice and bringing into disrepute the integrity of the court.

5. The following statements were referred to with approval in the Supreme Court case of Kwimberi v. The State (1998) SC545; "a contempt of Court is an act or omission, committed in the face of the Court or outside Court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice"; Metta v. State [1992] PNGLR 176; Poka v. Papua New Guinea [1988] PNGLR 218; "it is punishable as criminal contempt"; Poka (supra), and "conduct amounts to contempt where it presents a real risk, as opposed to a possibility, of interference with the due administration of justice"; Re Rooney (No.2) [1979] PNGLR 448. In Ross Bishop & Ors v. Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533 it was held inter alia, that the standard of proof on a charge of contempt of court is beyond reasonable doubt. I also make reference to the case of Spindler v. Balog (1959) 76 WN (NSW) 391 at 393, where it was stated that, "It is the duty of the court to see that.... the contempt which is sought to be punished is properly established" and that "the court must not proceed on something less than proper proof of the... contempt..".

6. The only evidence filed in support of the application to have the Respondents punished for contempt is that contained in the 2 affidavits of the Registrar.

7. In his first affidavit the Registrar deposes inter alia, as to how he was directed to commence these proceedings and as to what he believes occurred on the 4th, 6th and 8 June 2007 at Kokopo National Court. He then deposes as follows;

"10. At no time prior to Monday, 04th June 2007 did any of the contemnors advise the Court that Mr. Donne would not be available in Kokopo at the commencement of the circuit. They did not show any courtesy to the Court by advising his Honour of Mr. Donne's predicaments. They showed no respect in their conducts (sic) which led to Mr. Donne's failure to appear in Court and found (sic) guilty of contempt.

11. The Contemnors actions/omissions although not been (sic) intentional or deliberate had interfered with the administration of justice and had put the integrity of the court into disrepute."

8. In his second affidavit the Registrar repeats almost word for word the content of his first affidavit. In addition he annexes a true copy of the statement of charges and the written decision of His Honour Justice Sevua in proceedings MP 203 of 2007 which was delivered on 20 July 2007. In that decision His Honour Justice Sevua inter alia, dealt with the charge against Mr. Joel Donne and directed that the Registrar proceed to charge the Respondents with contempt of court.

9. At this juncture I mention that given that His Honour Justice Sevua considered that the charges against the Respondents should be dealt with by another Judge and directed the Registrar accordingly, I have purposely not given any consideration to the content of His Honour’s written decision. I am considering the charges against the Respondents afresh.

10. Each of the Respondents have filed affidavits in these proceedings. Mr. Pambel has filed 2 affidavits, Mr. Sambua 3 affidavits and Ms. Kakot, 2 affidavits. Mr. Lukara Rangan, a Senior State Prosecutor and the Officer in Charge of the Rabaul/Kokopo Branch of the Public Prosecutor's office has also filed an affidavit in the proceedings.

11. The Respondents depose inter alia, that they never deliberately and they never intentionally failed to make circuit arrangements with the result that Mr. Donne was unable to attend and prosecute the criminal cases at Kokopo as alleged. The Respondents all believe that they attended to their respective duties as best they could and were unaware that what they thought had been arranged had not occurred until it was too late. It was understood that arrangements had been made for the Counsel of the Public Prosecutor's Office already in Rabaul/Kokopo to appear before Justice Sevua but that those arrangements were not adhered to. In that regard, Mr. Rangan deposes in his affidavit inter alia, that he was directed to appear before Justice Sevua at the material time.

12. The Supreme Court in Kwimberi (supra) was of the view that in certain circumstances if a lawyer’s failure to attend court was due to gross carelessness, such conduct could amount to contempt of court. It is not necessary that in all cases the failure to attend court has to be shown to be intentional or deliberate.

13. I am mindful that the charge has to be proved beyond reasonable doubt. As mentioned the only evidence in support of the charges is that of the Registrar's. To my mind this evidence is not sufficient and for the most part appears to be hearsay. In Spindler’s case (supra) it was stated that there must be proper proof and the contempt must be properly established. It would have been preferable if there had been affidavit evidence filed by either the Senior Clerk of the Court at Kokopo or perhaps Justice Sevua’s associate, as to what transpired and whether there were any communications with any or either of the Respondents or with the staff or lawyers at the local Public Prosecutor's office. As it is the Registrar who commenced the proceedings it is for him on the advice of his lawyers if thought necessary, to decide what evidence should be given in support of the relief that he seeks.

14. Given the state of the evidence, the particular standard of proof to be met in contempt proceedings and the requirement that the charges be properly established, I am unable to satisfy myself beyond reasonable doubt that the Respondents are guilty as charged.

15. Accordingly I find that the Respondents are not guilty of the charges contained in the statement of charge. The orders sought in the notice of motion are refused.

____________________________

Kange Lawyers: Lawyers for the Plaintiff
Office of the Public Solicitor: Lawyers for the Respondents