Augerea v Yama [2013] PGNC 194; N5436 (10 December 2013)

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CONTEMPT – incident outside courthouse – alleged threat of violence by party to court proceedings against police officers providing security – whether amounted to disobedience of court order.

There was an incident outside a courthouse during the luncheon adjournment of court proceedings involving an election petition that were due to continue in the afternoon. As he was driving away from the courthouse the petitioner was threatened with violence and intimidated by supporters of the respondent. When he returned to the courthouse for the afternoon session the petitioner, before going into court, addressed members of the Police Force on duty outside the courthouse and criticised their performance. The Registrar of the National Court inquired into the conduct of the petitioner – the contemnor – and charged him with three counts of contempt of court for (1) interfering with and harassing members of the Police Force who were on duty securing the courthouse and the precincts of the National Court, (2) threatening to shoot members of the Police Force, and (3) ignoring the request and orders of the trial judge that he as a leader was to take control of his supporters and associates to ensure no disturbance took place outside the court while the court was dealing with the proceeding. A trial was held to determine whether the contemnor was guilty of contempt.

Andrew Kwimberi v The State (1998) SC545
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Yama v Yagama (2013) N5354

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

1. CANNINGS J: This judgment gives reasons for the Court's verdict on three charges of contempt of court that have been laid against the contemnor, Peter Charles Yama. He has been charged with contempt in relation to an incident outside the National Court at Yabob Road Madang at 1.25 pm 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. The contemnor was the petitioner, and he 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, and Mr Yagama, with contempt of court. During the course of the Court's inquiries into that incident, it became apparent that there was a later incident involving an alleged threat of violence by the contemnor against members of the Police Force. It is the conduct of the contemnor in that later incident, which is the subject of the three charges of contempt of court. The statement of charge alleges that the contemnor 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:

4. 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). The prosecution bears the onus of proving contempt according to the criminal standard of proof: beyond reasonable doubt (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533).

5. I was the presiding Judge in EP No 52 of 2012. I became aware of the violent incident that took place at 11.20 am on 3 September 2013 when it was reported to the court by the contemnor's lawyer, Mr Kiuk, at the start of the afternoon session on 3 September 2013. After hearing further reports of that incident, and after delivery of the ruling on the recount (Yama v Yagama (2013) N5354) I, on 5 September 2013, summoned the contemnor, and 16 other persons, to attend the court. The contemnor attended on 10 September 2013 and I informed him of the allegations of contempt against him and that I was directing the Registrar, under Order 14, Rule 47(1) of the National Court Rules, to commence contempt proceedings against him. The charges were served on the contemnor, he was given time to engage a lawyer and normal criminal procedures were applied. He was arraigned and pleaded not guilty so a trial was conducted.

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

7. Most of the evidence in support of the charges was given by affidavit, in accordance with Order 14, Rule 44 of the National Court Rules. In addition one witness was permitted to give oral testimony. The prosecution evidence is summarised in the following table.

No	Witness		Description
1	Alex Sowal		Snr Constable, member of Police Force
Evidence		He was providing security at the National Court, Madang on 3 September 2013, he was with Snr Sgt Moses and Const Kafur and other members of the Police Force, stationed with the contemnor's supporters. When the contemnor returned to court after the luncheon adjournment he drove in from the Department of Works end of Yabob Road and stopped his vehicle and spoke to the witness and other members of the Police Force – he asked where the Provincial Police Commander was and when they replied that the PPC was in Port Moresby he complained to them about the job that they were doing, saying 'You Ramu police are not doing your job professionally. Why don't you disarm the supporters of the member? If anything happens I will shoot you first.' – the witness was standing five metres away when he heard the contemnor say those words – the contemnor's supporters were making no noise; they did not engage in any rowdy or unruly behaviour – the contemnor did not try to get them angry, he only spoke to the police.
2	Cletus Moses		Snr Sergeant, member of Police Force, Ramu Mobile Squad
Evidence		He was providing security at the National Court, Madang on 3 September 2013 – the contemnor drove his vehicle near to where the Police were and asked where the PPC was and then accused the Ramu police of not carrying out their duties professionally and asked why they did not disarm the supporters of Yagama – the contemnor then said 'Whatever happens, you'll be the first guys I'll shoot at, I got some sophisticated firearm, which I will shoot you guys'.
3	Cosmos Kafur		Constable, member of Police Force, Ramu Police Station
Evidence		He was providing security at the National Court, Madang on 3 September 2013 – the contemnor drove his vehicle near to where the Police were and asked where the PPC was and then accused the Ramu police of not carrying out their duties professionally and asked why they did not disarm the supporters Yagama – the contemnor then said 'If anything goes wrong, you Ramu Police will be the first guys to be held responsible. I got some high-powered firearms, which I will use to shoot you'.
4	Alex Kalandi		Lawyer for the plaintiff (prosecuting counsel)
Evidence		As a result of ongoing clashes and violence between the supporters of the parties to EP No 52 of 2012 the trial judge warned the parties at a hearing in the National Court at Waigani to control their supporters from causing any disturbance within the precincts of the Court and warned that people would be charged if there was non-compliance – an extract of a transcript of the Waigani hearing was annexed to the witness's affidavit.

8. The contemnor swore an affidavit, and there were six other affidavits, all of which were admitted into evidence by consent. The evidence of the deponents is summarised in the following table.

No	Witness		Description
1	Peter Charles Yama		Contemnor, Petitioner in EP No 52 of 2012
Evidence		He applied to the Court in Waigani for restraining orders to prevent Mr Yagama getting access to funds belonging to Usino-Bundi District – when he was in Port Moresby he received reports from his wife that supporters of Mr Yagama had damaged his property and traumatised his family and one of his staff members – the trial judge did not grant the orders sought but restrained Mr Yagama and him from attacking each other while the court was sitting and from causing disturbances within the precincts of the court. After the morning session finished at 11.15 am he drove down towards Modilon Road: near the new Treasury Building, he saw that Mr Yagama's supporters were blocking the road, when he stopped they charged at him, waving offensive weapons in the air – he drove on to the lawn to evade them. At 1.25 pm he returned to the courthouse from the direction of the Madang Urban LLG office and saw that the Police from Ramu had blocked the road close to where his supporters had gathered – he made known to the Police that they had failed to do their job with due diligence as he had seen them escorting Mr Yagama and they had not disarmed Mr Yagama's supporters – he expressed the same concern to the Sheriff of the Court, Mr Yambun, when he was going into the courtroom.
2	Frank Faibson		Member of Police Force, Madang Police Station
Evidence		He observed the incident in the morning when Mr Yagama's supporters surrounded the contemnor's vehicles and chanted a war cry. At 1.25 pm he was standing near the vehicle belonging to the Police from Ramu – he heard the contemnor addressing them in a frustrated tone but he did not hear him say any threatening words.
3	Benedict Simanjuang		Contemnor's employee
Evidence		He was standing near the contemnor's vehicle when the contemnor drove in for the afternoon session on 3 September 2013 – he heard the contemnor speak to the Ramu Police – the contemnor told them to do their job fairly and properly and with due diligence and they had not done their job properly as they had failed to remove offensive weapons from Mr Yagama's supporters and that he had faced injuries and even death at the hands of hooligans – the contemnor took full control of his supporters.
4	Peter Sumnan		Member of Reserve Police, Goroka
Evidence		He observed the incident in the morning when Mr Yagama's supporters surrounded the contemnor's vehicles and chanted a war cry. At 1.25 pm he was standing near the vehicle belonging to the Police from Ramu – he heard the contemnor addressing them, telling them they had to do their job fairly and properly, and that because of their failure to disarm Mr Yagama's supporters, he had almost been killed that morning – the contemnor did not utter any words of threat or intimidation.
5	Steven Monde		Ward 1 member, Madang Urban Local-level Government
Evidence		He observed the incident in the morning when Mr Yagama's supporters surrounded the contemnor's vehicles and chanted a war cry. At 1.25 pm he was standing near the vehicle belonging to the Police from Ramu – he heard the contemnor addressing them, telling them they had to do their job fairly and properly, and that because of their failure to disarm Mr Yagama's supporters, he had almost been killed that morning – he did not hear the contemnor use any threatening words.
6	William Solomon		Member of Police Force, Madang Task Force, Rapid Response Unit
Evidence		He observed the incident in the morning when Mr Yagama's supporters surrounded the contemnor's vehicles and chanted a war cry. When the contemnor was returning to the courthouse for the afternoon session, he (the witness) was standing near the vehicle belonging to the Police from Ramu – he heard the contemnor addressing them, telling them they had to be neutral and that their paramount duty was to protect lives and properly, which they had failed to do in the morning – he did not hear the contemnor say any words of threat or abuse or mention anything about using firearms or weapons against the Ramu Police.
7	Michael Wambun		Sheriff officer, National Court, Madang
Evidence		The contemnor spoke to him (the witness) outside the Registry, just before he was going into Court, and complained that the Police were not doing anything to protect him – he said that his life was in danger and 'If this goes on I will retaliate.' – he (the witness) told the contemnor to let the law take its course.

9. For the purposes of this contempt trial, the most significant findings of fact are those that relate to the conduct of the contemnor when he returned to the courthouse for the afternoon session. However it is important to put those findings in the context of the Court proceedings in Waigani on 29 July 2013 and what happened earlier that day.

10. The transcript reveals that the presiding Judge made the following comments and orders were made concerning the conduct of the parties and their supporters and associates in EP No 52 of 2012:

I must say I am very disappointed to hear about what has happened in the last day or so in Madang. I think it is shameful for everyone involved in this case. It is embarrassing for me as a resident judge for Madang to see this sort of thing happen in the town that I am responsible for and I implore the leaders Mr Yama and Mr Yagama to take control.

I endorse what I saw, it is a quote from the provincial police commander in one of the newspapers today in which he called upon the leaders to lead and take control and not retaliate, not take the law into their own hands. And I trust that Mr Yagama and Mr Yama, Mr Kuli and the other leaders involved in this case will do exactly that.

The damage that has been done to property, the injuries that have been caused to people, these are all police matters and the law will take its course. And I would also like to emphasise that these are court matters and I do not want to see or hear of any disturbances of this nature happening again, particularly in the precincts of the court because if any of this happens in the precincts of any court in which I am presiding, I will not hesitate to charge everyone suspected on reasonable grounds of involvement with contempt of court.

I will not wait for the police to take the initiative; I will take the initiative. I will have people arrested and rounded up and imprisoned, put in remand awaiting their opportunity to be dealt with for contempt of court. I will not tolerate this sort of behaviour. It is very disappointing.

Mr Interpreter, I believe we have got supporters from both sides here. I will just repeat that. I want everybody who is involved in supporting Mr Yagama and Mr Yama in this case to understand that the court expects everybody to behave themselves in the precincts of the court. If I hear any disturbance taking place inside or outside of this court room, for example this afternoon, I will not hesitate to get people arrested and charged with contempt of court. That applies to Waigani and also applies particularly in Madang. Thank you.

Now, getting back to my ruling, I have no difficulty in making orders of the sort that are asked for in paragraphs 1 and 2. Paragraph 3 is to do with vehicles. There is not enough evidence before the court to warrant these orders. I am going to leave this matter with Mr Yagama to sort out. If there are complaints about misuse of government vehicles, those complaints can be made to the police or to the Ombudsman Commission. There is not enough evidence at this stage for the court to make the sort of orders now being sought.

So the order of the court in relation to the notice of motion filed on 29 July 2013 is as follows: (1) the first respondent and the petitioner and their supporters, agents or servants are restrained from causing or inciting any form of disturbance to any of the parties involved, their family members or their properties including scrutineers involved in the recount; (2) the first respondent and the petitioner and their supporters are restrained from inciting or causing any disturbances, threats, intimidation, violence, assault, any destruction or damage to any person or any properties involved in the recount; (3) the application for the relief sought by paragraph 3 of the notice of motion is refused; and (4) the parties to bear their own costs.

11. I find that during the luncheon adjournment on 3 September 2013, as the contemnor and his lawyer and other associates were driving along Yabob Road in the direction of Modilon Road, they were confronted and threatened with physical violence by a group of Mr Yagama's supporters, who shouted at and abused Mr Yama. The incident occurred about 50 metres from the courthouse gate.

12. Some members of the Yagama group had black paint and mud on their faces and some were armed with weapons including bushknives, iron rods, stones and axes, which were brandished in a threatening manner, for example by being scraped along the road. Members of the Yagama group had stationed themselves outside the courthouse so that they would be able to intimidate the contemnor and his lawyer and members of the contemnor's group as they left the precincts of the Court. It was a serious incident, involving threats of violence with weapons and a high level of intimidation, against a party to ongoing court proceedings, and his lawyer and other associates, in the precincts of the National Court. The aggressors were members of a group of Mr Yagama's supporters.

13. The contemnor's supporters were stationed at the opposite end of Yabob Road. They did not offer any aggression and did not get involved in the violent incident. They kept the peace.

14. I find that the contemnor returned to the courthouse at 1.25 pm. He drove along Yabob Road from the direction of Yabob village. He drove near to where the Ramu Police members were located, which was near the NBC building about 50 metres away from the courthouse gate. The contemnor was annoyed over the failure of the Police to disarm Mr Yagama's supporters and very concerned about what had happened as he and his associates had left the courthouse in the morning. He stopped his vehicle and spoke to the members of the Police Force from Ramu. He asked where the Provincial Police Commander was and when they replied that the PPC was in Port Moresby he complained to them about the job that they were doing. I accept the evidence of the only witness to give oral testimony and to be subject to cross-examination, Snr Const Alex Sowal, who was a credible witness, of sound demeanour, who I am satisfied was telling the truth. The contemnor said words to the effect:

'You Ramu police are not doing your job professionally. Why don't you disarm the supporters of the member? You have a duty to be fair. You are not being neutral.'

15. I accept the oral evidence of Snr Const Sowal, corroborated by the evidence of Snr Sgt Moses and Const Kafur, and find that it has been proven beyond reasonable doubt that the contemnor was angry and also said words to the effect:

If anything happens I will shoot you first ... You'll be the first guys I'll shoot at, I got some sophisticated (or high-powered) firearms, which I will use to shoot you.

16. I note that the contemnor does not expressly deny using those threatening words. His witnesses gave evidence that they did not hear him use those words. And that is probably correct. They did not hear him say those words. However, I am satisfied beyond reasonable doubt that the members of the Police Force to whom the contemnor was speaking, in an angry and frustrated tone, did hear those words, which were uttered by the contemnor.

18. I uphold the submissions of Mr Kalandi, the prosecuting counsel, that the use of such threatening words by the contemnor amounted to interference with and harassment of members of the Police Force. It was aggressive and inflammatory conduct that was likely to interfere in the due administration of justice as it had real potential to cause alarm and affront to members of the Police Force who were required to ensure the security and peace of the precincts of the National Court.

19. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. It is conduct that constitutes contempt of court. The contemnor is guilty of count 1.

20. I find that this threat was actually made. The fact that there is no evidence that the contemnor took any steps to carry out the threat is of no consequence. It is understandable that the contemnor was angry and frustrated. It is accepted that he was genuinely in fear of his personal safety as a result of the morning's incident. However, uttering those threatening words, in such a tense environment, was aggressive and inflammatory conduct that was likely to interfere in the due administration of justice as it had real potential to cause alarm and affront to members of the Police Force who were required to ensure the security and peace of the precincts of the National Court.

21. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. It is conduct that constitutes contempt of court. The contemnor is guilty of count 2.

22. I find that the contemnor's conduct did not amount to a breach of the orders of the trial judge that the contemnor take control of his supporters and associates. The contemnor complied with those orders in that he took control of his supporters and associates, as borne out by the fact that they were well behaved and respectful of the Court. It was his failure to control himself that put him in contempt. The contemnor is found not guilty of count 3.

Verdict accordingly.
_________________________________________________________
NJSS In-House Lawyer: Lawyer for the plaintiff
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the contemnor

National Court of Papua New Guinea

Augerea v Yama [2013] PGNC 194; N5436 (10 December 2013)