N5435
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 474 OF 2013

IAN AUGEREA,
REGISTRAR OF THE NATIONAL COURT
Plaintiff

V

AARON DAVID & BENNY MORGAN
Contemnors

Madang: Cannings J
2013: 1, 18 October, 10 December

CONTEMPT – incident outside courthouse – alleged assault by contemnors on person attending court proceedings.

A person complained to the court that when he was in the precincts of the National Court, walking towards the courthouse to attend a court proceeding concerning an election petition, he was assaulted by two supporters of one of the parties to those proceedings. The two persons who allegedly assaulted the complainant were charged with three counts of contempt of court for (1) threatening and inciting violence against and intimidating a party to court proceedings and others, (2) disturbing the peace of the precincts of the National Court and (3) committing actual bodily harm against a person regarded as a supporter of the petitioner. A trial was held to determine whether either of the persons charged (the contemnors) was guilty of contempt.

Held:

(1)	Contempt of court is a criminal offence, the elements of which 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).

(2)	The prosecution case was particularly weak as: the complainant's evidence was short on detail and vague, there was no medical evidence, there was no corroboration of the complainant's evidence, there was no evidence from police officers who were stationed in the vicinity of the Court, there was no evidence of any complaint to the Police. It could not therefore be determined as a fact that the complainant was assaulted.

(3)	Even if it had been proven that the complainant was assaulted in the manner alleged, there was insufficient evidence to link the assault to the court proceedings (eg by showing that he was assaulted because he was a supporter of the petitioner), which would have had to be proven to sustain a conviction for any of the three charges.

Cases cited

No cases are cited in the judgment.

TRIAL

This was the trial of an originating summons charging two persons with contempt of court.

Counsel

A Kalandi, for the plaintiff
T Boboro & T Torato, for the contemnors

10th December, 2013 

1. CANNINGS J: This judgment gives reasons for the Court's verdicts on two persons who have been tried for contempt of court. They were each charged with contempt in relation to an alleged incident outside the National Court at Yabob Road Madang at 9.40 am on Tuesday 3 September 2013.

2. The Court had that morning commenced hearing various applications regarding the result of a Court-ordered recount of votes in the 2012 general election for the seat of Usino-Bundi Open. The result of the election had been the subject of an election petition, EP No 52 of 2012. Mr Peter Yama, the petitioner, was challenging the election of Hon Anton Yagama MP.

3. There was a violent incident near the courthouse at 11.20 am, that morning, which led the Registrar of the National Court, Mr Ian Augerea, to charging Augustine Koroma and 12 others, who are supporters of Mr Yagama, with contempt of court. During the course of the Court's inquiries into that incident, it became apparent that there was alleged to have been an earlier incident involving an assault by two other Yagama supporters on a supporter of Mr Yama. It is the alleged assault of the complainant, Junior Jimmy, which is the subject of three charges of contempt of court that have been brought against the two contemnors now before the Court, Aaron David and Benny Morgan.

4. The statement of charge alleges that the contemnors engaged in conduct in or in the precincts of or in the vicinity of the National Court that was calculated to interfere with the due administration of justice by each:

•	count 1: threatening and inciting physical violence against and intimidating the petitioner and the petitioner's supporters and associates; and

•	count 2: disturbing the peace of the precincts of the National Court; and

•	count 3: committing actual bodily harm against a person regarded as a supporter of the petitioner.

5. This judgment is set out as follows. First the prosecution's evidence is summarised. Next, the contemnors' evidence is summarised. Then findings of fact are made. Then the verdicts and orders of the Court are pronounced.

PROSECUTION'S EVIDENCE

6. The evidence in support of the charges was by affidavit, in accordance with Order 14, Rule 44 of the National Court Rules. The prosecution tendered one affidavit, which was admitted into evidence without objection. The evidence of the deponent is summarised in the following table.

No	Witness	Description	
1	Junior Jimmy	Complainant 	
Evidence	He is from Jimi village, Jiwaka Province – he resides at Sisiak No 3 with Tony Yama – on 10 September 2013 at around 9.40 am he was walking towards National Court at Yabob Road to attend an election petition hearing between Peter Yama and Anton Yagama – Benny Morgan approached him and punched him on the face for no reason, Aaron David also punched him – he did not have time to ask them why they punched him as there were lots of Bundi men with black paint on their faces armed with bushknives, grass knives, sticks and stones approaching – police came and stopped them and he was taken to Jomba Police Station and locked up.	

CONTEMNORS' EVIDENCE

7. Each of the contemnors swore an affidavit, which was admitted into evidence by consent. Their evidence is summarised in the following table.

No	Witness	Description	
1	Aaron David 	1st contemnor 	
Evidence	He attended the Court but did not go in the courtroom – he was standing 50 metres away from the courthouse – Mr Yama drove his vehicle towards his (the witness's) group and slowed down next to Mr Yagama's supporters and said 'Yupla laik pait, orait bai yumi pait' [If you want to fight, then we will fight] – this statement angered the Yagama supporters who told Mr Yama to stop telling lies – he (the witness) was aware there was a court order in place in EP No 52 of 2012 not to disturb the peace or the administration of justice, so he never took part in the incident or acted in a manner to contravene the court order.	
2	Benny Morgan	2nd contemnor	
Evidence	He attended the Court but did not go in the courtroom – he was standing 50 metres away from the courthouse – Mr Yama drove his vehicle towards his (the witness's) group and slowed down next to Mr Yagama's supporters and said 'Yupla laik pait, orait bai yumi pait' [If you want to fight, then we will fight] – this statement angered the Yagama supporters who told Mr Yama to stop telling lies – he (the witness) was aware there was a court order in place in EP No 52 of 2012 not to disturb the peace or the administration of justice, so he never took part in the incident or acted in a manner to contravene the court order.	

FINDINGS OF FACT

8. There is insufficient evidence to show that Junior Jimmy was assaulted by either of the contemnors. There is no corroboration of his evidence to support his story. There is no independent eyewitness evidence of him being assaulted. Neither is there any medical evidence of the assault.

9. As pointed out by Mr Boboro, Junior Jimmy states he was assaulted on 10 September 2013, which makes little sense. He might have been intending to refer to 3 September 2013, the date I made a ruling on EP No 52 of 2012 following the recount. However, it is another flaw in the evidence which cannot be ignored. 

10. It is interesting that neither of the contemnors has refuted the evidence of the prosecution. Each contemnor has given the standard version of events of being 50 metres away from the courthouse behind barriers erected by the Police. They have not given any evidence that directly rebuts the evidence from the prosecution witness.

11. In situations such as this, where there are deficiencies in both the prosecution's evidence and the evidence of the contemnors, the contemnors must be given the benefit of the doubt.

1	AARON DAVID

12. I find that the prosecution has failed to prove beyond reasonable doubt that Aaron David committed the contemptuous conduct alleged. He is not guilty of all counts.

2	BENNY MORGAN

13. I find that the prosecution has failed to prove beyond reasonable doubt that Benny Morgan committed the contemptuous conduct alleged. He is not guilty of all counts.

ORDER

(1)	Each contemnor is found not guilty of all charges, and is discharged.

(2)	The parties will bear their own costs.

Verdicts accordingly.
_______________________________________
NJSS In-House Lawyer: Lawyer for the Plaintiff
Kuman Lawyers: Lawyers for the Contemnors