Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545 (27 March 1998)

Unreported Supreme Court Decisions

SC545

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 36 OF 1997
BETWEEN:
ANDREW KWIMBERI of Paulus M Dowa Lawyers - Appellant
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Respondent

Mount Hagen

Woods Hinchliffe Injia JJ
28 October 1997
27 March 1998

CONTEMPT - Contempt of Court - Interference with course of justice - Failure of lawyer to appear - Criminal trial.

Held:

Failure of lawyer to appear in a criminal trial, the date for which was fixed with his consent, in circumstances amounting to gross carelessness is guilty of Contempt of Court.

Cases Cited:

The following cases are cited in the judgment:

Attorney General v Times Newspapers Ltd [1974] AC 273

Balog v Crown Court at St Albans [1974] 3 ALLER 283

Bishop v Bishop Brothers [1988-89] PNGLR 533

Mckeown v The Queen [1971] 16 DLR (3rd) 390

Metta v The State [1992] PNGLR 176

Poka v Papua New Guinea [1988] PNGLR 218

Parasharam Detaram Shandasani v King Emperor WALA, 16 November 1951

Re Rooney (No 2) [1979] PNGLR 448

Re Passingan Taru [1982] PNGLR 292

Robinson v Papua New Guinea [1986] PNGLR 307

Re Paul Luben & David Poka N612 [1987]

SCR No 3 of 1984; Ex Parte Callick and Karoma [1985] PNGLR 67

The State v Mark Taua Re Awaita [1985] PNGLR 179

The State v Raymond Tupundu N1536 [1996]

The State v Lucas Sosorva N1494 [1996]

The State v Foxy Kia Kala Corney Wiyam N1192 [1994]

Uzuora v The Queen [1953] AC 327

Weston v Central Criminal Courts Administrator [1977] QB 332

Counsel:

Appellant in person

J Kawi for the Respondent

27 March 1998

WOODS J: I agree with the judgment of Injia J.

HINCHLIFFE J: I agree with the judgment of Injia J.

INJIA J: This is an appeal against conviction and sentence of the Appellant on a charge of contempt of Court by the National Court at Mount Hagen on 11th April 1997.

1. BACKGROUND OF APPEAL

The Appellant is a private lawyer employed by Paulus M Dowa Lawyers of Mount Hagen, Western Highlands Province. He was the counsel appearing for three co-accused persons who were facing trial at the said Court on a charge of wilful murder. On the date and time fixed for the trial of these accused, the Appellant was absent. As a result, the trial judge decided to charge him for contempt of Court. He directed the Assistant Registrar at Mount Hagen to prepare and serve the necessary documents. After a hearing, the Appellant was convicted and punished by a fine of K100, payable within seven (7) days, in default eight (8) weeks imprisonment. The Appellant paid the fine and later lodged this appeal. In this appeal, the Appellant challenges the procedure used by the Assistant Registrar, upon the direction of the judge, to charge him and the procedure used by the judge to hear and determine the contempt charge and punish him.

2. GROUNDS OF APPEAL

The grounds of appeal as set out in the Appellant’s Notice of Appeal are:

“3. Grounds of Appeal

(a) that the conviction was unsafe and unsatisfactory pursuant to Sections 22 and 23 of the Supreme Court Act, Chapter 37 for the following reasons:

(i) The Appellant was denied or deprived of his rights under Section 37 of the Constitution in that there was:

(a) no proper trial conducted.

(b) no plea of guilty and allocatus administered.

(c) no evidence called either oral or by way of affidavit to prove the alleged offence of contempt of Court.

(d) no opportunity given to the Appellant to properly defend himself but after the Appellant responded to the Statement of Charge, the trial Judge convicted.

(b) There was miscarriage of justice in that the Appellant was denied or deprived of his right to natural justice under Section 59 of the Constitution on the following grounds:

(a) the learned Judge was biased in his decision to convict and to fine the Appellant because he was the Judge before whom the alleged contempt occurred.

(b) the decision to convict the Appellant of contempt of Court was pre-determined.

Alan Robinson v The State [1986] PNGLR 307

Meta v The State [1992] PNGLR 176

(c) that the appropriate or competent authority to prosecute contempt proceedings is the Public Prosecutor and not the Assistant Registrar.

Alan Robinson v The State [1986] PNGLR 307

(d) that the learned Judge incorrectly relied on the facts which were not available at the trial to substantiate the charge of contempt of Court.”

The above grounds of appeal which are set out in the Notice of Appeal primarily raise questions of law for which no leave is required. If leave were required, then it would be necessary to determine the Application for Leave to Appeal filed on 28th April 1997. I mention this because in the Application for Leave to Appeal, the proposed grounds of appeal are worded slightly differently to those in the Notice of Appeal proper and it contains a new ground of appeal, namely, ground (1) (e), which is not included in the Notice of Appeal. At the hearing of this appeal, the Appellant correctly argued the grounds of appeal in the Notice of Appeal without seeking leave to appeal. For these reasons, only the grounds set out in the Notice of Appeal are properly before us for determination.

At the hearing, of this appeal, the Appellant abandoned ground 3(d) above.

Also at the hearing, the Appellant raised a new ground of appeal which is that the charge documents were not personally served on him as required by the National Court Rules, O. 14 r. 45. I would reject this ground as it is not raised in the original Notice of appeal and there is no proper application before us to amend the Notice of Appeal.

The grounds of appeal in the Notice of Appeal are founded on constitutional premises in particular, under Constitution, S. 37 and S.59. All the procedural issues raised and argued before us must be seen and dealt with in that light.

In my view, most of the remaining grounds of appeal and the manner in which they were argued before us by both parties, particularly the Appellant, shows little understanding of the principles laid down in a number of cases decided by this Court and the National Court on the substantive law and the practice and procedure relating to contempt of Court, to the extent that many of the remaining grounds of appeal are misconceived. For this reason, I will endeavour to set out an over-view of these principles. As it appears to me that the law on this area in this country is still developing, there are no clear principles established by our own Courts in some areas, hence the need to resort to principles of the common law as adopted under Constitution, Schedule 2.1, is unavoidable.

But before I do this, it is necessary first to fully set out the procedure used by the trial judge to deal with the Appellant.

3. CONTEMPT PROCEEDINGS IN THE NATIONAL COURT

The events which took place in the Court below including the two judgments of the Court on the question of guilt and punishment are clear on the face of the record and those records are not in dispute in this appeal. It is necessary to set out the procedure in sufficient detail.

1. On 4 November 1996, the trial of the Appellant’s three (3) clients was fixed by the Court for 1st-3rd April 1997. The trial date was fixed after a pre-trial review was conducted under Order 2 of the Criminal Practice Rules 1987. The Appellant was present when this trial date was fixed and he consented to this fixture. The Appellant’s clients were on bail at that time.

2. Sometime in the third week of March 1997, a status conference was held to confirm the trial listing for April. The Appellant did not attend that status conference, and he “failed to inform the Court...that he would not be able to proceed with the trial on the set date”. As a result, the Court took the trial dates to be confirmed and were not altered.

3. On 1 April 1997, when the Court commenced and the matters were called out in the morning, presumably at 9.30 am, there was no appearance of the accused nor the Appellant. Between 4 November 1996 to this date, no word had been received from the Appellant or his clients as to their likely unavailability on the date of the trial. It would seem that the State Prosecutor, Mr Carter was ready to proceed with the trial. The Court then adjourned the matter to 1.30 pm that day to enable them to appear. At 1.30 pm, the three accused and the Appellant still didn’t appear. The State Prosecutor, Mr Cater, then applied for an adjournment on behalf of the accused to adjourn the matter to the next day, 2 April 1997, at 9.30 am.

4. On 2 April 1997, at 9.30 am, the 3 accused appeared but there was no appearance of the Appellant. Still no word was received from him advising of his whereabouts. The matter was then adjourned to 3 April 1997.

5. On 3 April 1997, still there was no appearance of the Appellant. Mr Cater informed the Court that the Appellant was in Goroka but “no notice was given prior to this”.

6. As a result, the Court wasted three sitting days for that month with nothing to do. For this reason, the trial judge directed the Assistant Registrar to lay charges of contempt of Court against the Appellant.

7. On 7 April 1997, the Assistant Registrar in Mount Hagen instituted Contempt proceedings by way of a Notice of Motion which reads:

“PAPUA NEW GUINEA

NATIONAL COURT OF JUSTICE AT MOUNT HAGEN

MP NO 180 OF 1997

IN THE MATTER OF THE STATE AGAINST ZECHARY KOMBUK, GABRIEL ZENG & EDDIE TOPO BEING CR 52/96 & CR 500/96.

AND:

IN THE MATTER OF AN APPLICATION BY THE REGISTRAR OF THE NATIONAL COURT PURSUANT TO ORDER 14 OF THE NATIONAL COURT RULES FOR THE CHARGE OF CONTEMPT OF COURT.

AGAINST:

ANDREW KWIMBERI OF PAULUS M DOWA LAWYERS - Defendant

NOTICE OF MOTION

The Plaintiff will on Tuesday the 8th day of April 1997, at 9.30 am or soon thereafter as the case may be, move the Court for Orders that:

1. The Defendant be declared guilty of Contempt of Court, for not appearing in Court on the 1st, 2nd and 3rd April 1997 to proceed with the trial of the matter being “The State v Zechary Kombuk, Gabriel Zeng and Eddie Topo” same being matter Nos CR 52 of 1996 and CR 500 of 1996.

2. Orders for punishment of the Defendants for contempt.

3. Any other orders this Court deems appropriate.

(Signed)

REGISTRAR”

8. Accompanying the Notice of Motion was a “statement of charge” which stated:

STATEMENT OF CHARGE

1. The defendant is a lawyer employed by the office of Paulus Dowa Lawyers in Mount Hagen and acts for the three defendants namely Zechary Kombuk, Gabriel Zeng and Eddie Topo in matters, CR 52 of 1996 and CR 500 of 1996 respectively. Pre-trials were conducted and same were listed for trial from Tuesday 1st - Thursday 3rd April 1997.

2. The defendant stands charged that on the 1st to the 3rd April 1997, he, by his action or inaction caused undue delay in the schedule of the National Court by not proceeding with the trial of this matter.

3. The defendant, who was at all material times, the lawyer acting for the above named three clients, failed to inform the Court on the third week of March 1997, during the Status Conference that he would not be able to proceed with the trial on the set date.

4. As a result of that, on the 1st April 1997, which was the date set for the trial of this matter to begin, Mr Cater of the State Prosecutor’s Office sought an adjournment on the defendant’s behalf for the matter to be proceeded on Wednesday 2nd April 1997.

5. On Wednesday 2nd April there was no appearance by the Defendant and also no notice to the Court advising of the reasons of the non appearance. The matter was then further stood-over to Thursday 3rd April 1997 and there was still no appearance on the part of the defendant and no explanation as to the non appearance. Mr Cater then informed the Court that the defendant was in Goroka but notice was not given prior to this.

6. The Court having wasted three sittings days for the month of April finds that the defendants actions amount to contempt and that he should be punished for same.

7. Having so directed by this Honourable Court to lay charges of contempt, I so lay this charge pursuant to Order 14 Rule 42 of the National Court Rules and request that the Court punish the defendant accordingly.

(Signed)

REGISTRAR”

9. On 7 April 1997 at 3.31 pm, the Clerk of Court at Mount Hagen purported to serve the Notice of Motion and Statement of Charge on the Appellant by leaving the documents with one Weri Saea, an employee of Paulus M Dowa Lawyers, at the office of Paulus M Dowa Lawyers. Ms Saea accepted service of the documents on behalf of the Appellant.

10. On 8 April 1997, which was the date fixed for hearing of the motion, it was adjourned to 9 April 1997 at the request of the Appellant’s principal, Mr Dowa.

11. On 9 April 1997, the Appellant attended in Court, in answer to the charge. The Assistant Registrar also attended. The following events took place in Court before the trial judge:

(a) The trial judge read and explained the statement of the charge.

(b) After reading the statement of charge to the Appellant, the trial judge asked the Appellant “You understand the statement of charge here?”

(c) The Appellant replied “Yes, it is correct, your Honour”.

(d) The trial judge then said to the Appellant: “Now, what do you say about the statement of charge? The Defendant, is it correct or what do you say? Is the statement of the charge correct? And if it is correct, is it true - the allegations contained in the statement of charge, is it true or is it not true?”

(e) The Appellant replied “Your Honour, the allegations containing the statement of charge is correct. However, I would like to give my explanation later when I am required to do so”.

(f) The trial judge then re-stated the statement of the charge and the circumstances leading to the laying of the charge by the Assistant Registrar upon his direction.

(g) Then to formalise the charge, the trial judge asked the Assistant Registrar to read out the statement of the charge which she did.

(h) After this, the trial judge then asked the Appellant: “Mr Kwimberi, do you have anything to tell the Court now before the Court can determine as to what the Court - what penalties should the Court impose on you?”

(i) The Appellant then gave his explanation for his absence in the following words:

With due respect your Honour, firstly I very much regret what had happened that I will explain why or what actually happened. Your Honour, I was away for about a month on leave when my father died - passed away on the 17th of February...

Yes, this 1997 and I resumed duties on the 20th of March. Due to my leave - absence for about almost a month I have worked which - so much work piled up on my desk which I did needed to clear them so at the date of commencement I was under extreme pressure. On the date of 1st of April, it was on Tuesday, your Honour I was in the office whole of the morning and my diary did not show that I had this matter set for the 1st, 2nd and 3rd. Also, your Honour it was also unfortunate I was not advised to attend the status conference. I believe which was on the 3rd week as stated in the statement of charge. Nor did my clients show up at the office so I was not aware that this matter was set for the 1st. Your Honour as I have said as I was under extreme pressure and I was not able to check the file because my diary did not show to confirm the date for this particular matter to be on trial. Your Honour, it was so unfortunate it had happened and if I was informed at least or if the matter had come on first in the morning and I was informed of either by the Registrar or one of the staff ring up the office, I would have attended. So, without knowing that the matter was fixed, I left for Goroka for an urgent matter. Your Honour, in the previous cases and number of others since I began work as a lawyer, I always tried my best to attend to all matters or if I am not able to, I inform the court or the Registrar. Your Honour, this is a situation where I was unaware of what was happening and had I known I would have either asked the principal to attend to it or myself would your Honour.

(j) After the Appellant concluded his explanation, the trial judge said this: “I shall consider a punishment for you and as you are aware and being a lawyer yourself since you pleaded guilty to this charge - the statement of charge, you are a convicted prisoner and I will use my discretion to release you on bail to appear this week for sentence, all right?”

(k) On Friday 11th, the trial judge sentenced the Appellant to a fine of K100 to be paid within 7 days in default 8 weeks imprisonment. The trial judge gave detailed reasons for finding him guilty and imposing the punishment. It is necessary to set out the trial judge’s reasons in full. The trial judge said:

“The Defendant in this case is a contemnor in these proceedings. On 3rd of April 1997 I directed the Assistant Registrar of the National Court at Mount Hagen to issue proceedings by way of a summons to Mr Andrew Kwimberi, now the contemnor, to show cause why he should not be dealt with for contempt of court for his inability to attend on the trial dates set for the cases of his three clients. The trial was set for the 1st to 3rd of April 1997. His three clients are Zechary Kombuk, Gabriel Zeng and Eddie Topo who were charged with wilful murder pursuant to S. 299 of the Criminal Code. After having read the statement of charge to the contemnor, he pleaded guilty and I convicted him accordingly. The facts to which the contemnor pleaded guilty are that the case of the three accused as I have mentioned was listed for trial from the 1st to 3rd of April. This was listed on the 4th of November 1996, some four months down the track. It was then listed with the consent of both lawyers. The contemnor is employed by Paulus Dowa Lawyers of Box 1265, Mount Hagen. I think at the call-over in the morning session of the 1st of April being a Tuesday, the three Defendants were called, there was no appearance nor was the appearance of their lawyer. After resuming at 1.30 pm, the matter was once again called, still there was no appearance of both the contemnor and his clients. By Wednesday the 2nd, the matter was called at 9.30 am. Only the three accused appeared. There was no appearance of the lawyer. Mr Carter requested for a short adjournment and asked if my associate could consult Paulus Dowa Lawyers office after which Mr Carter was informed and which he later advised the court after presuming that the lawyer or the contemnor was in Goroka attending to an urgent matter. The result of your failure to attend on these three days was that the court was left unoccupied doing nothing for those three days and in my view, three days was too much to be wasted and I will inform you in the cause of this ruling why. When I asked you in your allocatus to address the court as to why you should not be punished for your contemptuous behaviour to this court, you gave me the following explanations:

You went for a special compassionate leave and returned and resumed duty on the 20th of March. Upon resumption you said you found that you had so much to attend to on your desk and said you were under extreme pressure. You said on 1st of this month, you were in your office, the date on which the call-over was conducted but that your diary did not show if there was any cases on that day. You further stated that it was not possible for you to attend the status conference conducted on the last week Friday of the last week of or third last week of last month. You further said that it was really unfortunate that nobody from the court house consulted your office about these cases.

If you say that the names of your clients were not noted in your diary then whose responsibility was it to ensure that their names were entered? You told the court, you did not even attend the status conference last month. This must not be taken as an excuse. Being a lawyer yourself, you are aware that the purpose of a status conference is to confirm all the cases that would have been listed for the following month and that is this month. Failure to attend a status conference would be deemed and taken to be that all matters listed would proceed as scheduled.

Recently I have observed behaviour of some lawyers in relation to their appearance to be very low. Ten to fifteen minutes late and delay of trial would not bother me. The cases listed for those wasted three days were criminal cases.

Your office is being paid for services you render to your clients. Criminal contempt is conduct that obstructs or tends to obstruct the proper administration of justice. It is an act or omission calculated to interfere with due administration of justice. Your clients’ cases were set down for three days. I wasted those three days which could have been wisely used to determine cases of other accused who wanted speedy trials. This is the only offence in Papua New Guinea for which you can be convicted but yet it is not defined or prescribed by a written law. I refer to Section 37 (3) of the constitution. You are aware of the requirement that a person charged with an offence must be afforded a fair hearing within reasonable time. Requirement comes from Section 37 (3) of the Constitution - sorry, the former section is sub-section 2 of the Constitution. I distinguished your case from the case of The State v Mark Taua and in Re Awaita in which it involve a case that was specifically listed and a special picture to be done for it. All lawyers and the courts were expected to be there at Popondetta for this case. The contemnor in that case arrived two days later. The court wasted two sitting days. Despite that, your case was listed in November last year in the hope that you would prepare well and be prepared when it came on the first three days of this month. I must say, your the failure to properly record the days for hearing these cases, amounted to the impediment of the administration of justice and denial of constitutional rights of your clients. The result of your inability to attend the cases of your clients would mean they would be listed some four to five months up the track. Judge Woods expressed this contempt with this type of behaviour in the State v Mark Taua and it is the David Awaita’s case at page 179 reported in 1985 (PNGLR) and I cite page 181:

‘We judges, courts, lawyers and as the staff are here to administer justice. We are all servants of the people and there is an obligation on all of us, quite aside from the requirements of the constitution, particularly S. 37 thereof that, when the man is charged, we must ensure the matter is brought to a speedy fruition. At all times, it is our duty to ensure justice is done and that the person is given all the rights accorded to him by the law. Contempt of court proceedings in this area would be a sanction to promote the administration of justice and the public interest. It is reasonable to suppose that the categories of behaviour which amount to contempt are never closed since the broad statement of contempt would indicate that any conduct may be classified as contempt which presents an ineffective challenge to the authority of the court to the supremacy of the law or to the due and impartial administration of justice. What we are looking at is the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of it’s responsibilities. There are cases of defiance abuse of judge or of the court’s authority, contemptuous behaviour on the court, interference with evidence, refusal to obey orders of the court. It could probably be an exceptional situation where lateness in attendance in court would be regarded as contempt. However, even carelessness alone without the intention to interfere with the course of justice would amount to contempt in certain circumstances. The question would always be one of fact and circumstances.’

In your case, you have a principal. Had you have been aware of the cases to be tried on the dates that the cases were set to, you would have easily arranged with Mr Dowa to take on the matters. I have been at pains to decide a penalty for you and given the circumstances of your case, I find you guilty and I order you to pay a fine of K100, in default eight weeks in hard labour. This fine is payable within seven days and that is (all).”

4. PRINCIPLES ON CONTEMPT OF COURT

(a) Constitution

A contempt of Court is an offence of a criminal nature committed against the Court for which a contemnor may be charged, convicted and punished by the Court, without following the usual criminal procedure prescribed by written law. This is explicit in S. 37 (2) of the Constitution which provides:

“Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of Court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.” (my underlining).

The Constitution does not however, define the term Contempt of Court nor does it provide any procedure for dealing with Contempt.

(b) Statutes

In this country, there are no statutory provisions which define contempt of court and prescribe the procedure to be followed in dealing with contempt of Court.

(c) National Court Rules - 1983

The National Court Rules 1983 under O.14 r. 37 - 50 provides the procedure for dealing with contempt. However, it does not define the term contempt of Court.

Order 14 r. 37 - 50 of the National Court Rules 1987 provides “a comprehensive statement of the procedure to be followed in cases involving contempt of Court (O. 14 r. 38) and in other situations where the contempt complained of is in connection with proceedings in the Court (O. 14 r. 42).”: Robinson v The State [1986] PNGLR 307 at 309. These rules are promulgated by the National Court judges pursuant to S. 8 of the National Court Act (Ch. No. 38), and S. 184 (rules of the Court) of the Constitution. It should be borne in mind at the outset that these rules are designed to guide and assist the Court and the parties to reach a fair, orderly and expeditious disposition of contempt matters before the Court. The rules are intended to be applied flexibly. Non-compliance with any of the rules do not render any proceedings void, unless the Court otherwise orders: See National Court Rules O. 2 r. 8.

Under Order 14, there are two types of procedures. First, under Sub-division “B” O. 14 r. 38 40, (contempt in the face or hearing of the Court), there is a summary procedure for dealing with contemnors. Where it appears to the Court “on its own view, that a person is guilty of contempt of Court, committed in the face of the Court or in the hearing of the Court, the Court may” issue oral orders directing the contemnor to be brought before the Court or issue a warrant for his arrest (r. 38). When the contemnor is brought before the Court, the Court informs the contemnor of the charge orally, requires him to make his statement in defence, hears him and determines the matter of the charge and make such order as to punishment (r. 39). The Court may direct the contemnor to be kept in custody pending the Court’s determination of the charge (r. 40).

The second type of procedure is under Sub-division “C” Order 14 r. 41 - 42 where the contempt committed is “in connexion with proceedings in the Court”: Proceedings are commenced by motion if in relation to contempt in connexion with proceedings in Court or by originating summons if the contempt is not “in connection with proceedings in Court”: O. 14 r. 42. A statement of charge is prepared together with a notice of motion: O. 14 r. 43. Evidence may be given by affidavit or otherwise as ordered by the Court: O. 14 r. 44. The documents are served on the contemnor personally: O. 14 r. 45. The Court may direct the Registrar to commence proceedings under this Sub-division by motion or by originating summons: O. 14 r. 47. The court may also refer the matter to the Public Prosecutor for prosecution: Robinson v PNG [1986] PNGLR 307.

The procedure under the National Court Rules O. 14 r. 37-50 reflect practice developed in the common law over centuries. These rules however, do not define contempt of Court. The definition of contempt is to be found in common law cases decided in England and those cases decided here.

(d) Meaning of Contempt of Court Generally

The meaning of the term Contempt of Court is to be found in cases decided here and at common law.

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 at 184; Poka v Papua New Guinea [1988] PNGLR 218 at 219; SCR No 3 of 1984; Ex-parte Callick and Koroma [1985] PNGLR 67 at 75; Re Passingan Taru [1982] PNGLR 292 at 295; Re Rooney (No 2) [1979] PNGLR 448 at 473. Also see Halsbury’s Laws of England (4th ed. Vol. 9) para. 7. It is punishable as criminal contempt: Poka v Papua New Guinea, supra, at 220. A “conduct amounts to contempt where it presents a real risk, as opposed to a mere possibility, of interference with the due administration of justice”: Re Rooney (No 2), supra, at 467; SCR No. 3 of 1984, supra, at 73, 77. The purpose of contempt powers is to preserve and protect the general community interest, not the Court’s own dignity, in suppressing unjustifiable interference in the authority of the Courts of the land: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 302 adopted in Metta v The State, supra, at 184. The standard of proof of criminal contempt is proof beyond reasonable doubt: Bishop v Bishop Bros [1988-89] PNGLR 533.

(e) Practice and procedure for dealing with Contempt of Court

(i) Generally

The general rule is that a contempt of Court is punishable by the Court before or against whom it is committed. The law on contempt in the common law has developed along this principle. Consistent with this practice, our own National Court Rules do not prevent the Court itself from dealing with it, whether the contempt is committed in the face of the Court or outside of the Court: SCR No 3 of 1984, supra, at 69-70 The State v Mark Tava: Re Awaita [1985] PNGLR 179 at 180-181. But there are certain underlying principles of natural justice which the Court must observe. Among them is the “principle that no one shall be liable to penalty or punishment without a fair hearing and the principle that he shall suffer no conviction at the hands of another who is his prosecutor and his judge; and the principle that he shall not be judged by one in whom there is reasonable apprehension of bias”: per Laskin J in McKeown v The Queen (1971) 16 DLR (3rd) 390 at 398 adopted in SCR No 3 of 1984, supra, at 70.

(ii) Summary procedure: Contempt committed in the face of the Court or hearing of the Court

The summary procedure under O. 14 r. 38-39 applies to contempt committed “in the face of the Court” (or “within the hearing of the Court”, which is one of many instances thereof). The phrase “in the face of the Court” has never been defined in the cases decided here. A useful definition is given by Lord Denning MR in Balog v Crown Court at St Albans [1974] 3 ALL ER 283 at 287 where the learned Master says:

“...what is meant by ‘committed in the face of the Court’...has never been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempts of which a judge of his own motion could punish a man on the spot. So ‘contempt in the face of the Court’ is the same thing as ‘contempt which the Court can punish of its own motion’. It really means ‘contempt in the cognisance of the Court’.”

Also in the past cases which have been decided in this country, there is no clear statement as to what kind of contempt may be summarily dealt with. Again in Balog v Crown Court at St Albans, Lord Denning says (at 287-288):

“Gathering the experience of the past - then whatever expression is used, a judge...could always punish summarily of his own motion for contempt of Court whenever there was gross interference with the Court of justice in a case that was being tried, or about to be tried, or just over - no matter whether the judge saw it with his own eyes or was reported to him by officers of the Court, or by others - whenever it was urgent and imperative to act at once...In all other cases, he should not take it on himself to move. He should leave it to the Attorney-General or to the party aggrieved to make a motion in accordance with the rules in RSC Ord. 52. The reason is so that he should not appear to be both prosecutor and judge; for that is a role which does not become him well.

...This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately - so as to maintain the authority of the Court - to prevent disorder - to enable witnesses to be free from fear and jurors from being improperly influenced and the like. It is of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt: See R v Gray by Lord Russel of Killowon CJ. But properly exercised, it is a power of the utmost value and importance which should not be curtailed.”

Lord Denning then goes on to set out three specific instances of “contempt in the face of the Court” under the categories of “In the sight of the Court”, “within the courtroom but not seen by the judge” and “At some distances from the Court”. Lawton CJ in the above case expounds on the above principle and gives specific illustrations of the kinds of contempt which may be dealt with summarily. At p. 295, His Honour says:

“In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified and without disturbance and with a fair chance of a just verdict or judgment. Contempts which are not likely to disturb the trial or affect the verdict or judgment can be dealt with my motion to commit under RSC Ord. 52, or even by indictment.

The exercise of judicial discretion in this way can be illustrated by reference to the kinds of contempt which are most frequently witnessed by or reported to judges: witnesses and jurors duly summoned to attend who refuse to attend Court; witnesses duly sworn who refuse to answer proper questions; persons in court who interrupt the proceedings by insulting the judge, shouting or otherwise making a disturbance, persons in Court who assault or attempt to assault or threaten the judge or any officers of the Court whose presence is necessary; persons in or out of Court who threaten those about to give evidence or who have given evidence; persons in or out of Court who threaten or bribe or attempt to bribe jurors or interference with their coming to Court, persons out of Court who publish comments about a trial going on by revealing a Defendant’s criminal record when the rules of evidence exclude it. Contempt of these kinds may well justify the use of the summary jurisdiction, but everything will depend on the circumstances.” (my emphasis).

It is to be noted from the above passage that the categories of such contempt “in the face of the Court” are never closed. It all depends on the circumstances of each case. As it was proven in the subsequent case of Weston v Central Criminal Court’s Administrator [1977] QB 32, Lord Denning MR (at 43), expanded these instances to include a lawyer who fails to attend Court in relation to a criminal case which had been set down for trial. Lord Denning said (at p. 43):

“But the question arises: Was his breach of duty a contempt of Court such as to be punishable summarily? I have no doubt that if a solicitor deliberately fails to attend - with intent to hinder or delay the hearing, and doing so - he would be guilty of contempt of Court. He would be interfering with the course of justice.”

(iii) Lawyers’ failure to attend Court

In this country, so too has it never been doubted that a lawyer’s failure to attend in Court in a case in which he is acting, is contempt “in the face of the Court”, which may be dealt with summarily under O. 14 r. 37-40. Examples include Re Paul Luben & David Poka Unreported National Court judgment number N612 (1987) which summary procedure was not questioned by the Supreme Court in Poka v Papua New Guinea, supra, see Woods J at p. 222; The State v Mark Taua; Re Awaita; (supra), The State v Raymond Tupundu N1536 (1996); The State v Lucas Sosorua N1494 (1996); and The State v Foxy Kia Kala; Corney Wiyam N1192 (1994).

(iv) Disqualification of judge before whom contempt is committed

There is no doubt that a judge before whom the alleged contempt is committed “in the face of the Court” can summarily deal with the contempt himself. However, in certain situations, it may become desirable for him to disqualify himself and refer the matter to another judge to dealt with it or to the Public Prosecutor for prosecution under O. 14 r. 42. The test is one of whether the contemptuous behaviour is one of personal affront to, scandalous of or criticism of to the judge concerned; or whether it goes against the system of administration of justice: Re Mark Taua, per Woods J at p. 181. If the contempt is a personal affront to the judge, etc; he should disqualify himself: If it goes to public confidence in the judicial system, then the judge before whom the contempt is committed is entitled to deal to with it: see McDermott J, in SCR No 3 of 1984, supra, at p. 69: Hence, a lawyer’s failure to attend Court on a fixed date may amount to “contempt in the face of the Court” which may be summarily dealt with by the judge before whom the contempt is committed because it interferes with the administration of justice generally.

For instance in Robinson v The State [1986] PNGLR 307, the contemnor, a defence lawyer, called the judge and the prosecutor - “bastards trying to put up bail”. These words were uttered inside the Courtroom after the Court adjourned and after the judge retired to his chamber. The judge’s associate and the prosecutor who heard these words reported the matter to the judge in his chambers. The next morning, the judge summarily tried the contemnor. He put the allegations to the contemnor as reported to him and sought an explanation. The contemnor denied the allegation and refused to address on sentence. The judge convicted him and fined him K100.00 and made an order for him not to appear before any Court until the fine was paid.

On appeal, the Supreme Court said, at p. 309:

“The rules of the National Court contain a comprehensive statement of the procedure to be followed in cases involving contempt of Court (O. 14 r. 38) and in other situations where the contempt complained of is in connection with proceedings in the Court (O. 14 r. 42).

The correct procedure in a case as this one would be by notice of motion or originating summons with supporting evidence by way of affidavit (O. 14 r. 44), and see the State v Mark Taua, Re Contempt Proceedings [1985] PNGLR 179. The State Prosecutor would be a competent person to initiate such proceedings.

If the correct procedure had been adopted, the matter would, in our view, need to be listed before another judge, due to events which took place in the judge’s chambers.”

Although the Supreme Court did not fully elaborate why it preferred the formal procedure under O. 14 r. 41 - 42, and disapproved the summary procedure under O .14 r. 37 - 38, the reason could have been because the contempt was not committed in the face of the judge (Court) or within the hearing of the judge (Court) and the judge was relying on information put to him by his associate and the prosecutor. In these circumstances, it became desirable to institute separate proceedings under Sub-division “B” of Order 14 such as by Originating Summons or Notice of Motion supported by affidavits from these two witnesses. Also because the words allegedly uttered by the contemnor were scandalous of the judge in person it became necessary to bring the Contempt charge before another judge by way of Notice of Motion or Originating Summons supported by affidavits.

(v) Summary hearing: Evidence

As to the nature of the facts or evidence before a judge under a summary procedure involving a lawyer failing to appear in Court on a fixed date, time and place; it is not necessary that evidence be placed before the Court in accordance with technical rules of evidence. The trial judge can act on any information which is before him or within his personal knowledge. As Woods J said in Poka v PNG, (at p. 223):

“With respect to the ground of appeal, that there was no evidence upon which to convict the Appellant, I say there is no substance in this ground at all as the contempt was a fact that existed before the Court; it was not a matter that needed to be proved by evidence. It was a fact purely within the personal knowledge of the Appellant and the judge at the time.”

His Honour Woods J states earlier in the same case (at p. 223):

“There is a further argument that in any respect the Judge should have proceeded under the National Court Rules, (O. 14 r.42), and not O.14 r.38. I see no basis for this argument as the contempt alleged was clearly before the judge and the nature of the contempt was such that the Court was cognisant of all the facts namely, the absence of the Appellant and the Appellant himself was present in due course before the Court. This is not a matter where the contempt was done away from the Court and the contemnor made no appearance at or near the Court close to the time of the contempt. Further it was not a situation that required further material or evidence for the hearing of the charge.”

(vi) Lawyer’s failure to attend Court: Deliberate failure with intention to interference in administration of justice or gross carelessness?

As to what conduct actually amounts to contempt of court committed “in the face of the Court” in a situation where a lawyer fails to attend a listed case, it was held by the Supreme Court in Poka in 1988 that where a lawyer deliberately fails to attend - with intent to hinder or delay the hearing - he would be guilty of contempt of Court. It was also held that failure to attend Court “due to carelessness and inadequate arrangements” or due to act of discourtesy which involves breach of duty to his client do not necessarily amount to contempt of Court: Poka (at p. 221). This principle of “deliberate failure with intent to interfere in the administration of justice” was adopted from the statement of Lord Denning in Weston v Central Criminal Courts Administrator [1977] QB 32 at 43 and from the decision of the Privy Council in Izuora v The Queen [1953] AC 336. The facts in Poka were that the Court party (the judge, and the lawyers) were not resident in the circuit province. The circuit judge arrived on time to preside at the commencement of the circuit. No case had yet been listed previously for the first day of the circuit or for all the other days of the circuit. The failure by the Appellant to attend Court on the first day of the sittings was “due to carelessness and inadequate (travel) arrangement” in securing travel allowance, accommodation and transport warrants, etc. Although the Supreme Court agreed with the trial judge that the Appellant’s failure to appear on the first day of the sittings seriously interfered with or obstructed the fair administration of criminal justice, the Supreme Court held that it was not done deliberately and therefore it did not amount to contempt of Court.

Earlier in 1985, in Re Awaita, Woods J sitting as a National Court judge had the occasion to consider the application of the principles in Weston and Izuora to the facts of that case, which facts are somewhat similar to the facts of the present case. In that case the lawyer (contemnor) and the judge were based in Port Moresby. Before the circuit to Popondetta commenced, at a call-over held in Port Moresby, the lawyer specifically asked for a fixture of trial dates in respect of a criminal matter he was handling and he was granted a fixture of two days in Popondetta. When the judge sat in Popondetta to hear these cases on the fixed date, the Appellant was not in attendance. No word had been received by the Court from the Appellant as to his expected unavailability. As a result, the judge wasted 2 sitting days. The judge cited him for contempt. At a summary hearing, the lawyer gave his reasons as being that his client did not deposit money on account of his fees for attending the fixture. Woods J found the lawyer guilty of contempt. In arriving at this decision, His Honour distinguished Izuora’s case and Weston’s case in this way (at 182 - 183):

“I have been referred to two cases where the default or failure of the lawyer to turn up was held not to amount to contempt.

I distinguish the case of Izuora v The Queen [1953] AC 327 where a lawyer failed to turn up for judgment as that quite clearly did not affect the overall administration of justice or cause any delay, it was merely an act of discourtesy.

I was also referred to the case of Weston v CCC Administrator [1977] 1 QB 32 where the solicitor not only failed to turn up but refused to turn up over what he apparently felt was some administrative high-handedness over forcing his case on earlier than he had expected.

I distinguish that case on the basis that in the situation before me now you had yourself set the case down for hearing and, as I have already said, set the court process in motion and thereby caused the effects I have already detailed, whereas in Weston’s case the judge found himself in the middle of what was in effect a rather discourteous battle between the lawyer and the court administrator. As Lord Denning emphasised in that case at 43: ‘It did not interfere with the course of justice in the court’. I have already stated how the behaviour in the case now before me has affected the course of justice.”

His Honour a little later goes on (at p. 183):

“It has further been submitted to me that whilst it might be conceded that you were careless and even foolish in not advising the court of your difficulties with your client, there was no intent to thwart the administration of justice or to cause the effects stated and contempt proceedings should be limited to where there is clear intent.

I am prepared to accept the fact that there was no intent to interfere with or thwart the administration of justice however the court is entitled to insist on and accept a high standard of consideration and behaviour from lawyers. In the administration of justice we cannot accept such carelessness as you have displayed in your appearance before the court to arrange for the hearing of the substantive criminal matter here.” (my underlining).

Subsequently in 1988 in Poka, Bredmeyer J rationalised Woods J’s decision in Re: Awaita in this way (at p. 220):

“Woods J (at 183) accepted the lawyer’s argument that he did not intend to interfere with the administration of justice, but found his carelessness in not attending in the circumstances amounted to contempt of court. I consider that the conviction could equally well have been explained on the basis that the lawyer deliberately chose not to come. He had no good explanation as to why he did not come. He was not delayed or prevented by sickness or any other circumstances beyond his control. His explanation appeared to be that he had not put in funds by his clients.” (my emphasis).

Bredmeyer J’s above rationale re-inforces the principle that it is never possible to exhaustively particularise the acts which may or may not amount to contempt “in the face of court” when a lawyer fails to attend Court on a fixed date. And rightly so, Bredmeyer J did not rule out Woods J’s finding of contempt in Re: Awaita on those set of circumstances. Woods J’s decision in Re: Awaita has been well received and applied by judges in subsequent National Court cases such as in Raymond Tupundu, Lucas Sosorua and Foxy Kia Kala’s. Indeed Re: Awaita, which is a National Court decision, was not over-ruled by the Supreme Court in Poka’s case and in any other subsequent Supreme Court decision that I know of. I consider that Woods J’s reasoning in Re: Awaita is sound law and it ought to be approved and applied in the present case.

In the present case, the parties including the lawyers and the trial judge were resident in Mount Hagen; that the Appellant was a private lawyer based in Mount Hagen; that the matter was pre-trialed and listed for trial with the consent of the Appellant some four months earlier; that three sitting days had been set aside for this case; that the trial dates were confirmed at the status conference held on the 3rd week of March 1996; that no word had been received by the Court from the Appellant as to his expected unavailability and the trial judge sat to deal with this trial only on the listed days. He had no other cases listed for these days. When the Appellant failed to appear in Court, it resulted in the trial judge wasting three (3) sitting days with nothing to do. Yet there was a backlog of criminal cases pending trial in that Court, many of whom were waiting for their trial in custody. The Appellant’s failure to attend Court seriously interfered with the fair and due administration of criminal justice. The only question is whether the present Appellant was grossly careless in failing to attend Court and thereby his conduct amounted to contempt of Court within the meaning of Re: Awaita. I will deal with this issue later in this judgment.

(vii) Concluding remarks on summary contempt procedure, and the ordinary criminal procedure

The summary procedure to be adopted in dealing with contempt committed in the face of the court when a lawyer fails to attend a fixture of a criminal trial under O. 14 r. 37-40 is comprehensive: see Robinson at 309. There is no room to invoke the ordinary criminal procedure. In my view, the rules of practice and procedure in ordinary criminal cases, as technical and rigid as they are, are never intended to apply to contempt proceedings. The overriding principle however, is the principle of fairness as provided for in Constitution, S. 59. It is the duty to act fairly and be seen to be acting fairly. The procedure set out in O. 14 r. 39 is intended to ensure fairness in the summary procedure. This summary procedure however, gives the Court the immediate and ultimate power to decide the fate of the contemnor. To some extent, it works to the detriment of the contemnor in that he may be deprived of his personal liberty without first being heard e.g. arrest upon oral order. The summary procedure has some associated risks such as perceived bias of the judge, the judge’s perception of contempt committed before hearing the contemnor, arrest of the contemnor on an oral order before hearing the contemnor, absence of any formal documentation of the contempt charge, etc. But that is a procedure which the Court of necessity must possess. But then again, the overriding principle is one of fairness. In order to ensure fairness, if a judge opts to employ facets of the procedure under O. 14 r. 41-50, such as by motion or originating summons through the Registrar, in order to afford the contemnor adequate time and opportunity to respond to the charge of contempt, then there can be no argument of irregularity in the contempt procedure working to the detriment of the contemnor. In any case, the use of such combined procedure would not void the summary proceeding: Order 1 r. 8. But then again, “...this summary power for punishing for contempt should be used sparingly and only in serious cases...its usefulness depends on the wisdom and restraint with which it is exercised”: per Lord Goddard in Parasharam Detaram Shandasani v King Emperor WALA, 16 November 1951 quoted in Poka (at 221).

5. DETERMINATION OF GROUNDS OF APPEAL

Now returning to the grounds of appeal before us, applying the principles canvassed above, grounds 3 (a) (i); (a), (b), (c), (d) insofar as they are based under S. 37 of the Constitution, are misconceived as not being required. The procedural errors raised in these grounds of appeal are procedures in an ordinary criminal trial and are not applicable to a charge of contempt committed “in the face of the Court”. In the present case, the contempt was committed in the face of the Court for which the contemnor stood to be dealt with summarily under O. 14 r. 38-40. The real issue is whether the summary procedure under O. 14 r. 38 was followed to afford a fair hearing to the accused on the charge. I will come to this issue a little later.

In relation to ground 3 (b) (a), applying the principles canvassed above, ground C 3 (b) (a) is obviously without merit. The judge was entitled to deal with the contempt committed in the face of his Court. The nature of the contempt was not a personal affront to the judge but an interference with administration of criminal justice at the Mount Hagen National Court generally.

Ground 3 (b) (b) also misconceived because under this summary procedure, there is no question of perceived bias.

Ground 3 (b) (c) is also misconceived. In the exercise of his summary powers, the judge decided to call in the help of the Assistant Registrar under O. 14 r. 47 to facilitate notification to the Appellant of the charge against him and requiring him to attend Court on his own accord to afford a hearing. This was neither required nor necessary; it was superfluous. If it was irregular or erroneous, it did not void the summary proceedings: O. 1 r. 8. There was no need for the judge to disqualify himself and refer the matter to another judge to deal with it or to the Public Prosecutor for prosecution because the contempt was committed against the judicial system, in particular the due and fair administration of criminal justice in the National Court at Mount Hagen. It was not a personal affront to the judge concerned.

On the record of proceedings before us in the Court below, I am satisfied that the procedure employed, albeit unnecessary and superfluous, in certain respects, was fair to the Appellant. The Appellant was informed of the charge, both in writing as per the Statement of the Charge, and again orally in Court by the judge and the Assistant Registrar. The Appellant was required to make his defence to the charge. The Appellant accepted the charge and statement of facts as correct on two occasions. The judge took his two statements as an admission of the charge and proceeded to hear him on the reasons as to why he committed the offence. The judge then determined that on his (Appellant’s) own admission, he was guilty of the charge and proceeded to determine punishment. At no stage in the entire process did the Appellant, an experienced lawyer, raise any objection as to the procedure being used to his disadvantage. When he was punished by a fine, he promptly paid the fine without protest. In these circumstances, it is my view that the procedure applied by the judge was fair to the Appellant.

It is submitted by the Appellant that he gave an explanation in which he showed that his failure was not deliberate and not intended or calculated to interfere in the fair administration of criminal justice. It could be also argued I suppose that the statement of facts as per the charge did not contain any reference to whether the absence of the Appellant was deliberate.

This submission is countered by the Respondent on the basis of the Appellant’s “unequivocal admission” of the charge. Further, it is submitted for the Respondent that the Appellant’s failure to attend Court resulted in the Court wasting 3 scheduled trial days from which it could be inferred that such conduct was calculated or intended to interfere or obstruct the fair administration of justice.

In my view, these submissions on deliberate failure with intent to interfere with the course of justice do not arise for consideration here. It is clear from the trial judge’s judgment that the nature of the contempt was based on the Re Mark Taua principle of gross carelessness amounting to contempt of court. I do not see any error in this.

In the present case, the Appellant was involved in a criminal case in the National Court involving several accused. He represented three accused charged with wilful murder, a charge which is very serious, punishable by a maximum punishment of death. All the accused were released on bail pending their trial. Public interest demanded that their case be dealt with fairly and promptly or within a reasonable time. And speaking of fairness, the Court was required to be fair to both the accused and the accuser, which is the State, which represents the community. The Court could not be so pre-occupied with the rights of the accused that it forgot the interest of the community in the speedy and systematic disposition of all criminal cases before it. Pursuant to the pre-trialing procedure set out in the Criminal Practice Rules, their case was pre-trialed and listed for trial in November 1996, some four months down the track. The Appellant is a private lawyer based in Mount Hagen. He was present and he consented to the trial dates’ fixture. This trial date was not altered in the intervening four months. On the last week in March, again under the pre-trial procedure under the Criminal Practice Rules, a status conference was held to confirm the fixtures for April. Neither the Appellant nor the accused attended that status conference. The Court correctly assumed that the trial dates were not to be altered. On that basis, no other cases were listed in those dates in the intervening four months. And no word was received from the Appellant or his clients that the Appellant would not attend Court on the scheduled dates. On the day of the trial, neither the Appellant nor his clients turned up. The Court ended up wasting 3 days doing nothing. Cases of other accused could not be brought forward on short notice. And there were many accused in custody awaiting their trial.

At the hearing of this appeal the Appellant repeated his reasons as put to the Court below before us and said he was not told by the Court staff or the prosecutor that the case would be proceeding on 1-3/4/97 and therefore he made a commitment to travel to Goroka for another commitment. But the Court staff and the judge were under no duty to confirm the fixture with the Appellant. It was the Appellants’ duty to keep accurate records in his diary and check up and confirm Court fixtures. A lawyer who does not keep accurate records in his diary and relies on others to inform him of his Court commitments is a grossly careless or negligent lawyer. The Appellant in this case was an experienced lawyer who just didn’t perform to his expected standard. He was grossly negligent in attending to his duty to the Court as well as his duty to his clients. In the circumstances, we agree with the trial judge that the Appellants’ failure to attend Court was as a result of gross carelessness on his part. The trial judge, based on the Appellant’s admission and subsequent explanation found the Appellant guilty of Contempt of Court. Even when the Appellant’s reasons were provided at a later stage, the trial judge was not persuaded that what the Appellant did was not contemptuous. The judge was entitled to and could have accepted the Appellant’s explanation and found the Appellant’s conduct not contemptuous at any stage of the proceedings before punishment after the accused gave his explanation, but the judge was not persuaded one bit. His two judgments on file shows the exercise of great care and restraint on his part in arriving at his decision.

It is common knowledge, and this was pointed out by the trial judge, that there is a back-log of criminal cases in the National Court of people charged with violent crimes, the wastage of three sitting days was clearly obstructive and interfered in the due and fair administration of justice. The reasons given by the Appellant was not acceptable in view of the fact that the trial date was fixed with the Appellant’s consent. The reasons given by the Appellant did not and could not stand in the face of the clear record of past events which rendered his absence, grossly careless and negligent. Not forgetting that the procedure applied here was, as ought to be, a summary procedure, and in view of the trial judge’s variation of the summary procedure to incorporate facets of the formal procedure to the Appellant’s advantage, I do not think the judge committed any fundamental error as such would vitiate the proceedings and punishment. For these reasons, I would dismiss the appeal, and confirm the conviction and sentence of the Court below.

ORDER OF THE COURT

Appeal is dismissed. No order as to costs.

Appellant in person.

Lawyer for the Respondent: Solicitor General