N4462

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

APP NO 172 0F 2010

AGNES OKONA METEN
Appellant

V

WILLIAM SENEKA
First Respondent

MAGISTERIAL SERVICES
Second Respondent

Madang: Cannings J
2011: 25 August, 9 December

CONTEMPT – District Court – failure by lawyer to attend court for matter listed for hearing – whether District Court has power to summarily convict and sentence a lawyer for contempt of court – District Courts Act, Section 277 – whether procedural fairness accorded to contemnor – whether punishment imposed, prohibiting lawyer from appearing in court until fine paid, was lawful.

A lawyer was convicted of contempt of court by the District Court for failing to attend court for a listed matter, and fined K20.00 and prohibited from appearing before the District Court until the fine was paid. She appealed against both conviction and punishment; as to conviction, on the grounds that she was dealt with summarily by the presiding Magistrate contrary to the District Courts Act, Section 277 (contempt of court) and was not given a reasonable opportunity to be heard, and that her failure to attend court did not amount to contempt; and as to punishment, that the order prohibiting her appearance was beyond the jurisdiction of the District Court.

Held:

(1)	The offence commonly known as contempt of court, vis-à-vis the District Court, is a statutory offence created by Sections 277(1) and (2) of the District Courts Act. If a person is alleged to be guilty of an offence under that provision, he or she may be dealt with summarily under Section 277(3) or by the laying of an information under Section 28. Whichever procedure is used, it must be fair: it must comply with the principles of natural justice.

(2)	Here, the District Court's adoption of a summary procedure to charge, try and convict the appellant was available to the Court, but in the circumstances, the procedure was unfair as it was not apparent from the record of the District Court what particular offence under Section 277 the appellant was charged with, and convicted of; and she was not given a proper opportunity to defend herself. Furthermore, the District Court failed to address its mind to the elements of the statutory offence under Section 277 and consequently a conviction was entered unlawfully.

(3)	As to punishment, there is no provision in the District Courts Act or any other law allowing a District Court to prohibit a lawyer, who holds a current practising certificate, from appearing before it; so this part of the appeal was allowed.

(4)	There was a substantial miscarriage of justice and therefore the order finding the appellant guilty of contempt and imposing a punishment was quashed and a verdict of not guilty was entered in substitution for the District Court's order.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
Daniel Gwaya Poka v The State [1988] PNGLR 218
The State v Joel Donne (2007) N3133
The State v Mark Taua: Re Awaita [1985] PNGLR 178

APPEAL

This was an appeal from a decision of the District Court convicting the appellant, a practising lawyer, of contempt of court and punishing her by fining her K20.00 and prohibiting her from appearing before the District Court until the fine was paid.

Counsel

A O Meten, the appellant, in person

9 December, 2011

1. CANNINGS J: Agnes Okona Meten, a practising lawyer with the Office of the Public Solicitor, has appealed to the National Court against the decision of the Madang District Court, constituted by his Worship Mr William Seneka, Senior Provincial Magistrate, of 25 October 2010, convicting her of contempt of court and fining her K20.00 and prohibiting her from appearing before the District Court until the fine was paid.

THE DISTRICT COURT DECISION

2. The conviction and punishment were entered in the course of civil proceedings in which the appellant appeared for the complainant. His Worship noted in his reasons for decision that the matter had been adjourned on 24 occasions since its commencement in 2008 and on 16 of those occasions the appellant had failed to attend. On some other occasions she was late. She attended on 21 October 2010, when the matter was briefly mentioned, and notified his Worship that she would be available for the next hearing, which was set down for 1.30 pm on the following day, 22 October 2010. At that time however, she did not appear. Her client and the opposing party and his lawyer appeared, but the appellant was not present. His Worship asked the complainant where his lawyer was and he said he had no idea. No message or other information was conveyed to the court about the appellant's non-appearance, so his Worship advised the complainant to get his lawyer into court on Monday 25 October 2010 at 9.00 am and explain why she should not pay a fine of K20.00 under the District Courts Act.

3. The appellant appeared before the District Court on the Monday morning as required and gave her explanation, which was that she was at the National Court at Madang on the morning of Friday 22nd, but because of a long list, her cases were stood down to 1.30 pm. No one from her office came to the National Court when the Court adjourned at 12.00 noon so she had to stay there and appear before the National Court at 1.30 pm.

4. In convicting the appellant of contempt of court his Worship highlighted that there was no advice from the appellant or her office as to her whereabouts on the afternoon of Friday 22 October. She had been warned over her lateness in appearing before the District Court on a number of previous occasions. On one such occasion she was fined K20.00 but the fine was later withdrawn after the appellant and her boss attended his Worship's chambers to make a formal apology.

5. His Worship considered that it was a proper case for him to deal with summarily (ie a formal charge was unnecessary and it was not necessary for the matter to go before a different magistrate) as, in accordance with the decision of the Supreme Court in Andrew Kwimberi v The State (1998) SC545, the sort of contempt involved was contempt in the face of the court, involving not a personal affront to a judicial officer but a matter going to public confidence in the judicial system. Referring to the decision of the Supreme Court in Daniel Gwaya Poka v The State [1988] PNGLR 218, as well as Kwimberi, together with the National Court decisions by Woods J in The State v Mark Taua: Re Awaita [1985] PNGLR 178, and by Sevua J in The State v Joel Donne (2007) N3133 (in both those cases, a lawyer was found guilty of contempt for their failure to attend court for a listed matter) his Worship noted that it was clear that a lawyer's failure to attend court for a listed matter can, depending on the circumstances, amount to contempt of court. If a lawyer deliberately absents himself or herself from court, this will be contemptuous. If the lawyer's failure to appear is the result of negligence or recklessness this can also amount to contempt if the court's time is wasted and there is a substantial interference in the administration of justice.

6. His Worship concluded that the present case was comparable with the facts in Kwimberi, Awaita and Donne: he accepted that the appellant's conduct was not intended to interfere with the due administration of justice but held that her careless attitude displayed by her not attending at the appointed time and not informing the District Court about her non-appearance amounted to contempt of court.

GROUNDS OF APPEAL

7. The appellant argues three grounds, which relate to:

1	the procedure used by the District Court (the third ground listed in the notice of appeal);

2	the substance of the finding that she was guilty of contempt (the first ground listed in the notice of appeal);

3	the punishment (the first ground listed in the notice of appeal).

8. It is logical and convenient to deal with them in the above order, rather than in the order in which they are listed in the notice of appeal.

GROUND 1: IMPROPER PROCEDURE AND LACK OF PROCEDURAL FAIRNESS

9. This ground of appeal states:

The learned Magistrate erred in law and in fact whereby a formal charge was not laid against the appellant and a proper opportunity was not given to the appellant to provide evidence to defend herself when the contempt order was made against the appellant.

10. Two distinct arguments are raised here:

(a)	a formal charge was required to be laid, but that did not happen, as the appellant was dealt with summarily; and

(b)	she was not given a proper opportunity to defend herself, which is a claim of lack of procedural fairness or denial of natural justice.

11. I reject argument (a), but uphold argument (b). To explain why I have come to these conclusions it is necessary to emphasise that the offence of contempt of court of which the appellant was convicted is a statutory offence. The procedure for dealing with a person alleged to be guilty of that offence, and its elements and punishment upon conviction, are prescribed by Section 277 (contempt of court) of the District Courts Act, which states:

(1)	A person who:

(a) 	wilfully interrupts the proceedings of a Court; or

(b) 	conducts himself disrespectfully to the Court during the sittings of the Court; or

(c) 	obstructs or assaults a person in attendance, or an officer of the Court, in view of the Court; or 

 (d) 	wilfully disobeys an order made by the Court under section 63, 

may be excluded from the Court and is guilty of an offence.

Penalty: A fine not exceeding K200.00

(2)	A person who, in the opinion of the Court, wilfully prevaricates in giving evidence is guilty of an offence.

Penalty: A fine not exceeding K100.00.

(3) 	The Court in the presence of which an offence under this section is committed may immediately convict the person guilty of the offence, on its own view or on the oath of some credible witness.
 
(4) 	If a person convicted of an offence against subsection (1) makes to the Court, before its rising, such apology as it considers satisfactory, the Court may remit the fine wholly or in part.

12. By contrast, the offence of contempt of court where it is alleged to have been committed against the Supreme Court or the National Court, is a common law, or underlying law, offence. The offence in relation to those courts is not defined by written law, a scenario that is expressly authorised by Section 37(2) of the Constitution. The Supreme Court and the National Court have each been established as a superior court of record, under Sections 160(2) and 163(2) of the Constitution respectively, and expressly given power to punish the offence against themselves commonly known as contempt of court. Under the underlying law of Papua New Guinea – ie the unwritten law, consisting of the common law and customary law, which form part of the laws of Papua New Guinea under Section 9 (the laws) of the Constitution – the elements of the offence are very broad; so it is often said that the categories of contempt are never closed. The elements of the underlying law offence are: any 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 (Andrew Kwimberi v The State (1998) SC545).

13. The appellant was not charged with the underlying law offence of contempt of court. She was charged with, tried and found guilty of an offence under Section 277(1) of the District Courts Act. Section 277(3) allows a District Court to deal with a person alleged to be guilty of an offence under Section 277(1) summarily. Alternatively, an information (a written charge) may be laid under Section 28 of the District Courts Act, but that is not a mandatory procedure. A summary procedure is permitted under Section 277(3). That was the procedure invoked by the learned Magistrate in the present case; and that is why I reject argument (a) of ground 1.

14. As to argument (b), the fundamental point to be made here is that whichever procedure is used, it must be fair: it must comply with the principles of natural justice (Andrew Kwimberi v The State (1998) SC545). The person alleged to be guilty of contempt must be given adequate notice of the charge and told in reasonably precise terms what the charge is and given a reasonable opportunity to be heard.

15. Sections 277(1) and (2) actually create five different contempt of court offences:

•	wilfully interrupting the proceedings of a Court (s 277(1)(a));

•	conducting himself disrespectfully to the Court during the sittings of the Court (s 277(1)(b));

•	obstructing or assaulting a person in attendance, or an officer of the Court, in view of the Court (s 277(1)(c));

•	wilfully disobeying an order made by the Court under Section 63 (s 277(1)(d));

•	wilfully prevaricating in giving evidence (s 277(2)).

16. It is not apparent from the record of the District Court which of those offences the appellant was charged with, and convicted of, breaching. His Worship did not, with respect, address his mind to the elements of any of those offences. He applied the elements of the underlying law offence of contempt, not the elements of the statutory offence of contempt. The conviction was therefore entered in error.

17. Furthermore, the appellant was summoned to appear before the court and asked to show cause why she should not be fined. That is not, with respect, a proper way to afford to someone alleged to have committed a criminal offence a reasonable opportunity to be heard. It offended against the presumption of innocence guaranteed by Section 37(4)(a) of the Constitution. I am satisfied that the requirements of procedural fairness (also known as the principles of natural justice) were not adhered to in this case, and that the appellant was not given a proper opportunity to defend herself. The result is that ground 1 of the appeal is partially upheld.

GROUND 2: THE SUBSTANCE OF THE CONVICTION FOR CONTEMPT

18. This ground of appeal states:

The learned Magistrate erred in fact and did not take into account that the appellant is an officer of both the District Court and the National Court and at the relevant time the appellant was attending cases at the National Court and could not be at two places at once.

19. This ground of appeal is of limited relevance in view of my finding that his Worship erred by applying his mind to an incorrect offence. His Worship applied the underlying law of contempt rather than the statutory offence under Section 277. However, putting that aside for the moment, and acting on the presumption that the underlying law of contempt was relevant, I consider that his Worship made no error in applying it. There have been a number of cases, referred to by his Worship in his reasons for decision, in which lawyers have been found guilty of contempt of the National Court for their non-appearance before the court, without explanation. It would have been no good answer for the appellant to simply say that she was obliged to be in the National Court at the same time that she was required in the District Court and that she could not be in two places at the same time. Any lawyer is duty-bound if they find themselves in such a predicament to use every available means and take all steps reasonably practicable to notify the court before which they are unable to attend of their predicament. The appellant did not do that in this case. I dismiss this ground of appeal.

GROUND 3: UNLAWFUL PUNISHMENT

20. This ground of appeal states:

The learned Magistrate erred in law and in fact when making an order that if the appellant fails to pay the fine of K20.00 within one week from the date of the order, she is not to again appear before the Grade V Court.

21. I uphold this ground as Section 277 of the District Courts Act does not allow for this form of punishment. There is no provision in the District Courts Act or any other law allowing a District Court to prohibit a lawyer, who holds a current practising certificate, from appearing before it.

CONCLUSION 

22. Grounds 1 and 3 of the appeal have been substantially upheld. I am satisfied that there has been a substantial miscarriage of justice for the purposes of Section 230(2) of the District Courts Act. Therefore the appeal will be upheld. I will exercise the powers of the National Court under Section 230(1)(c) of the District Courts Act to quash the conviction and punishment. Little is to be gained by ordering a retrial. This has undoubtedly been a chastening experience for the appellant. It is a major event in any lawyer's professional life to be charged with contempt of court. This is a significant case as it has revealed what might be considered as flaws or gaps in the District Courts Act and in the ability of the District Court to deal with contempt committed against it in the same way that the Supreme Court and the National Court can. All of the protagonists can learn valuable lessons from what has happened. I will therefore exercise the power of the National Court under Section 230(1)(e) of the District Courts Act to enter a verdict of not guilty on the charge of contempt. A claim for damages that appeared in the notice of appeal was not pursued at the hearing of this appeal and I consider that this is not an appropriate case for damages or for costs to be payable to the appellant.

ORDER

(1)	The appeal is allowed.

(2)	The order of the Madang District Court of 25 October 2010, convicting the appellant of contempt of court and fining her K20.00 and prohibiting her from appearing before the District Court until the fine was paid, is quashed.

(3)	The appellant is found not guilty of contempt of court in respect of her failure to attend the Madang District Court on 22 October 2010.

(4)	The parties shall bear their own costs.

(5)	Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.
(6)	
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Public Solicitor: Lawyer for the Appellant