Padura v Valakvi [2012] PGNC 128; N4830 (23 October 2012)

N4830

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 256 OF 2012

ELIAS PADURA
Plaintiff

V

STEPHANIE VALAKVI
Defendant

Madang: Cannings J
2012: 7, 12 September, 5, 23 October

CONTEMPT – disobedience contempt – alleged disobedience by defendant of court order restraining parties to civil proceedings from threatening, harassing or instigating violence against each other – two charges of contempt of court – elements of offence.

The National Court ordered that both the plaintiff and the defendant to civil proceedings were restrained from threatening, harassing or instigating violence against each other pending determination of the proceedings. After the order was made the defendant was involved in two incidents in which she, firstly, assaulted a female employee of the plaintiff on the plaintiff's business premises and, secondly, assaulted the plaintiff's girlfriend in the presence of the plaintiff in a public place. The plaintiff then filed a notice of motion seeking punishment of the defendant on two counts of contempt of court. The defendant (referred to in the judgment as 'the contemnor', being a person charged with contempt) pleaded not guilty and the matter proceeded to trial.

Held:

(1) Proceedings for contempt are criminal in nature and the court must be satisfied beyond reasonable doubt of the three elements of the offence:

• the order was clear;
• it was properly served; and
• there was a deliberate failure to comply.
  

(2) As to count 1, the order was clear and unambiguous, however it had been made only four days before the assault and not entered (reduced to writing and stamped with the official seal of the National Court) until the day of the assault and not served on the contemnor until the following day. The second element of the offence was not proven and the contemnor was found not guilty of count 1.

(3) As to count 2, the order remained clear and unambiguous and it was served four weeks prior to the incident at the centre of the charge, thus the first two elements were proven.

(4) It was proven that the contemnor harassed and instigated violence against the plaintiff, in addition to assaulting the plaintiff's girlfriend; thus the contemnor failed to comply with the restraining order and her failure was deliberate. The third element was proven.

(5) Accordingly the defendant was found guilty of count 2.

Cases cited

The following cases are cited in the judgment:

Gregory Kasen v The State (2001) N2133
Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763
Moses Vua v Francis Mavu (2008) N3294
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Peter Luga v Richard Sikani and The State (2002) N2286
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572
The State v Alois Dick (2007) N3219

NOTICE OF MOTION

This is a ruling on a motion under which a party to civil proceedings was charged with two counts of contempt of court.

Counsel

W A Windi, for the plaintiff
T M Ilaisa, for the defendant

1. CANNINGS J: The plaintiff, Elias Padura, has charged the defendant, Stephanie Valakvi, with two counts of contempt of court and this is the court's ruling – the verdict – on whether the defendant (hereafter referred to as 'the contemnor', being a person charged with contempt) is guilty.

2. The contempt charges arise out of civil proceedings the plaintiff commenced against the defendant in which the plaintiff was seeking a permanent order restraining the contemnor from interfering with his businesses and from threatening, harassing or instigating violence against him or his staff. The plaintiff and the contemnor had a de facto marital relationship since 2000. They also became business partners, operating two successful businesses in Madang town: Summit Video and Variety Shop and Summit Secretarial Services. Both aspects of their relationship (marital and business) soured during 2011 and 2012 and they separated. It was in those circumstances that the plaintiff commenced the civil proceedings OS No 256 of 2012 on 4 May 2012.

ORDER OF 18 MAY 2012

3. On 18 May 2012, the court was advised that the parties had made progress in settling their grievances and jointly signed a statutory declaration to that effect. A draft consent order was proposed by Mr Windi on behalf of the plaintiff and Mr Ilaisa on behalf of the contemnor. The court on that day made an order in the terms proposed:

The court orders that ... the terms of the Statutory Declaration of 13/4/12 annexed to the Plaintiff's Affidavit in Support of 04/5/12 be given effect to by both parties and accordingly both parties be restrained from threatening, harassing or instigating violence against each other and both parties shall give each other respect and operate each other's businesses peacefully pending determination of these proceedings.

4. The statutory declaration referred to in the order stated:

I, Elias Padura & Stephanie Valakvi of P.O. Box 779, Madang, Papua New Guinea do solemnly and sincerely declare that:

1. Elias Padura and Stephanie Valakvi has been operating a registered business namely: Summit Secretarial Services and Summit Video & Variety Shop at Beckslea Plaza, Nanulon Road, Madang as partners;
   
2. At the time of the business operation, both parties were able to acquire a parcel of [land] with description as follows: Allotment/Portion 7, Section 150, Madang, Madang Province;
   
3. Both parties has agreed to split, divide and operate the business as follows:

Elias Padura (Party A) – to operate continuously Summit Video and Variety Shop (Store and ... production line) which is a separate registered business entity;

Stephanie Valakvi (Party B) to operate continuously summit Secretarial Services which is a separate Registered business entity and to acquire and take position of the parcel of land Allotment/Portion 7 Section 150, Madang, Madang Province;

4. While both parties operate separately, both parties not have any rights to interfere with each other's business operations and clients;
   
5. Both parties have agreed and abide on the above statement. [sic]
   

THE CHARGES

5. It is undisputed that after the order of 18 May 2012 was made the contemnor was involved in two incidents in which she, firstly, on 22 May 2012, assaulted a female employee of the plaintiff on the plaintiff's business premises and, secondly, on 22 June 2012, assaulted the plaintiff's girlfriend in the presence of the plaintiff in a public place. The plaintiff asserts that on each occasion the contemnor committed the offence of contempt of court in that she disobeyed the restraining order of 18 May 2012. The contemnor thus faces two charges of contempt:

• count 1, which is contained in paragraph 4(a) of the statement of charge filed on 29 June 2012, concerning the incident of 22 May; and
  
• count 2, which is contained in paragraph 4(b) of the statement of charge filed on 29 June 2012, concerning the incident of 22 June 2012 (paragraph 4(b) incorrectly refers to 23 June, but this error is immaterial as it is agreed that the relevant date is 22 June 2012).
  

DUPLICITY

6. Mr Ilaisa, for the contemnor, challenged the validity of the statement of charge on the ground of duplicity. The rule against duplicity is intended to prevent the 'doubling up' of separate charges in a single count in an indictment or an information or the simultaneous charging of several distinct and unrelated offences in one indictment or information (Gregory Kasen v The State (2001) N2133, The State v Alois Dick (2007) N3219). It is actually a rule of procedural fairness as it ensures that the person being charged knows clearly the charge(s) he or she is facing. It does not prevent more than one charge being included on the one charging document. I find no merit in the argument that the statement of charge offends against the rule against duplicity. There is no doubling up of separate offences in either of the two counts, which are sufficiently and clearly drafted to put any reasonable person on notice as to the allegations being raised.

ELEMENTS

7. The parties agree that proceedings for contempt are criminal in nature and that for the contemnor to be found guilty of this sort of disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence:

(a) the order was clear;
(b) it was properly served; and
(c) there was a deliberate failure to comply.

(See Peter Luga v Richard Sikani and The State (2002) N2286, Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447, Moses Vua v Francis Mavu (2008) N3294, Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763.)

COUNT 1: INCIDENT OF 22 MAY 2012

(a) Clear and unambiguous?

8. I reject Mr Ilaisa's submission that the order was ambiguous in that it did not restrain the parties from engaging in any extra-marital relationships that would be likely to result in threats, intimidation, harassment or violence. The terms of the order were clear. It would have been obvious to any reasonable person that the order had to be read together with the statutory declaration and that their combined effect was that the parties were being ordered to:

• give effect to the Statutory Declaration (and therefore not, amongst other things, to interfere with each other's business operations and clients);
  
• refrain from threatening, harassing or instigating violence against each other;
  
• give each other respect; and
  
• operate each other's businesses peacefully.
  

I find that the first element of the charge has been proven in that the order of 18 May 2012 was clear and unambiguous.

(b) Properly served?

9. The date that the order was made, 18 May 2012, is significant. That was only four days before the incident of 22 May 2012, which is also a significant date as it is the date on which the order was formally entered (ie reduced to writing and stamped with the official seal of the National Court). The evidence of Sgt Hendia Botty (his affidavit filed on 29 June 2012, exhibit P5, paragraph 10) is that he did not serve the order on the contemnor until the following day, 23 May 2012. This means that on the day of the alleged contempt, 22 May 2012, the contemnor had not been served with the order of 18 May 2012. The second element of the offence has not been proven. It is not necessary to consider the third element. The contemnor is not guilty of count 1.

COUNT 2: INCIDENT OF 22 JUNE 2012

(a) Clear and unambiguous?

10. The order of 18 May 2012 was not amended after it was entered on 22 May 2012. I have already ruled that it was a clear and unambiguous order. The first element is proven.

(b) Properly served?

11. As I found above, the order of 18 May 2012 was personally served on the contemnor (and also served on her lawyer) on 23 May 2012, which was more than four weeks before the incident of 22 June 2012. The second element is proven.

(c) Deliberate failure to comply

12. As I suggested in Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572 this element of a disobedience type of contempt charge gives rise to three issues:

• Was there a failure to comply?
• Who failed to comply?
• Was it deliberate?
  

Was there a failure to comply with the order?

13. To determine this issue it is necessary to make findings of fact about the incident of 22 June 2012. It is agreed that it occurred at the Interoil Service Station, Madang town where the contemnor became angered when she saw the plaintiff's girlfriend, a young woman called Irish, sitting on the grass at the front of the service station while the plaintiff was in a vehicle inside the service station. The contemnor regarded Irish as an under-aged concubine, walked up to her, said words to the effect of 'Irish, I have finally met you, why don't you go finish your grade 8 schooling and do your own business? and slapped her on the face, causing Irish to walk away, followed by the contemnor. What happened next is contentious. It is undisputed that there was a commotion but there are two versions of events.

14. The plaintiff's evidence is that he ran in to pacify the contemnor and Irish, at one point coming between them but that, despite his telling her not to commit another contempt of court, the contemnor assaulted him, pulled his hair and cut his arm with car keys, drawing blood. A large crowd gathered and the contemnor incited the bystanders to "Fight him. Kill him!' before he explained to the bystanders that the contemnor was not his wife any more. He got into his car and left the scene quickly in fear of his life.

15. The contemnor's evidence, which was corroborated by evidence of two of her employees who said that they were at the service station and saw what happened, was that when the plaintiff saw what had transpired between her and Irish he quickly got out of the car and ran towards her (the contemnor), assaulted her and grabbed hold of her hands then pushed her away and shouted at her 'Yu pait lo kok? You fighting for kok? I dumped you three months ago.' There was an exchange of obscenities between them and she was in great pain, fearing that the plaintiff would break her fingers and wrist. She denies saying words to the effect of 'Fight him. Kill him!'

16. Though the plaintiff's evidence was uncorroborated I prefer his evidence as he was a much more convincing witness than either the contemnor or her two witnesses. He stated, in a convincing manner, that he had never assaulted the contemnor in their 12 years of living together and that he has always known that if he did such a thing, being a non-citizen (a Filipino national) he would put himself at risk; and that he did not assault her on this occasion. He held on to her to prevent her getting out of control. By her own admission the contemnor was in an aggressive frame of mind. She had just slapped a young woman on the face. She felt cheated and used by the plaintiff. She was frustrated. She assaulted the plaintiff.

17. I find that the contemnor failed to comply with the order of 18 May 2012 in two respects:

• by the assault on Irish, who was known to be the plaintiff's girlfriend, in a public place and in the presence of the plaintiff, she was instigating violence against the plaintiff and not giving respect to the plaintiff; and
  
• by the assault on the plaintiff she was instigating violence against the plaintiff and not giving respect to the plaintiff.
  

Who failed to comply?

18. Clearly the contemnor was the person who failed to comply with the order. I reject the submission that it was the plaintiff who failed to comply with the order.

Was there a deliberate failure to comply?

19. Mr. Ilaisa submits that any failure on the part of the contemnor to comply with the order was not deliberate but resulted from her being exploited and used by the plaintiff over a long period for his sexual gratification and business purposes. She has given evidence of the plaintiff's proclivity towards sexual relations with under-age girls. So the contemnor was provoked by the immoral and irresponsible conduct of the plaintiff into doing what she did upon seeing, for the first time, his latest girlfriend. There was no intention on the part of the contemnor to disobey the court's order of 18 May 2012 or to show any disrespect to the court or its authority.

20. I reject this argument. The allegations against the plaintiff have not been proven. As I indicated in Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447 the court does not have to be satisfied that a contemnor was acting deceitfully or deliberately playing dumb. What must be proven is that the act of non-compliance with the order was deliberate. There is evidence (from both the plaintiff and the contemnor) that at one stage during the incident the plaintiff shouted 'Contempt of court!' or something similar. The contemnor was by those words alone put on notice that she was conducting herself in a way that could land her in trouble. The contemnor is obviously an intelligent person. She had been served with the order of 18 May 2012 four weeks earlier. The terms of the order were clear. It was a consent order designed to allow both parties to go about their lives and businesses peacefully without intimidation. I am satisfied beyond reasonable doubt that the contemnor's conduct amounted to a deliberate failure to comply with the order. The third element of the offence is proven. All three elements have been proven. The contemnor is guilty of count 2.

CONCLUSION

21. The contemnor is not guilty of count 1 as the order of 18 May was not served on her prior to the incident that is the subject of the charge. She is guilty of count 2 as all elements of the offence have been proven beyond reasonable doubt. The contemnor will now be punished. The question of costs will be reserved until determination of punishment.

ORDER

(1) The contemnor, Stephanie Valakvi, is adjudged not guilty of contempt of court, as charged in count 1 (paragraph 4(a)) of the statement of charge filed on 29 June 2012, and is acquitted of that charge.

(2) The contemnor, Stephanie Valakvi, is adjudged guilty of contempt of court, as charged in count 2 (paragraph 4(b)) of the statement of charge filed on 29 June 2012, and is convicted of that charge and shall be punished.

(3) The question of costs of the proceedings is reserved.

Verdict accordingly.
____________________________

Warner Shand Lawyers: Lawyers for the Plaintiff
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the Defendant