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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM NO 17 0F 2014
TOAMI KULUNGA
Appellant
V
GEOFFREY VAKI
First Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent
IN THE MATTER OF CHARGES OF CONTEMPT OF COURT
ALFRED MANASE
First Contemnor
MARGARETH PARUA
Second Contemnor
SAM BONNER
Third Contemnor
Waigani: Cannings J, Sawong J, Geita J
2014: 27 August, 18 September, 2 October
CONTEMPT OF COURT – trial in Supreme Court – lawyers alleged to have caused draft consent order to be put before a Judge who had, after contested hearing, reserved for ruling – whether conduct of contemnors hindered the course of justice – whether contemnors attempted to influence the decision of the Judge – whether the effect of their conduct was to interfere with the due administration of justice.
This was a trial before the full court of the Supreme Court of contempt of court charges against three contemnors. They are each lawyers who were involved (either directly or through their firm) in the hearing of an application in the Supreme Court to stay proceedings in the National Court in which a client of two of the contemnors had been convicted of contempt of court. The Registrar of the Supreme Court alleged that they each committed contempt of court by causing a draft consent order to be delivered to the Judge hearing the stay application, after his Honour had heard the application and reserved a ruling on it. It is alleged that they hindered the course of justice in the Supreme Court, and also interfered with the due administration of justice in the National Court. They each pleaded not guilty, so a trial was conducted in accordance with conventional criminal procedures. Evidence, which was exclusively by affidavit, was presented and submissions made. A number of arguments relating to the jurisdiction of this Court were raised by counsel for the third contemnor in the course of submissions on verdict. The court heard all submissions and reserved a ruling on verdicts.
Held:
(1) The jurisdictional challenges were made late. Such points should have been made before arraignment. The Court nevertheless considered them and dismissed them on their merits, and was satisfied that it had jurisdiction to proceed to deliver verdicts on the charges.
(2) The allegations of fact made by the Registrar were largely uncontested and the court made findings of fact accordingly.
(3) 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).
(4) Each of the contemnors had engaged, to various degrees, in a course of conduct, by causing the draft consent order to be delivered to a Judge who had reserved his ruling on the stay application, which: interfered with the Chief Justice's decision on the stay application; presented a real risk of interference with the due administration of justice; and interfered with the due administration of justice.
(5) Each of the contemnors was found guilty of contempt of the Supreme Court, but not guilty of contempt of the National Court.
Cases cited
The following cases are cited in the judgment:
Andrew Kwimberi v The State (1998) SC545
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
The State v Cain Wosae (2010) N3996
Vaki v Baki, National Executive Council and The State (2014) N5612
TRIAL
This was the trial before the Supreme Court of three persons charged with contempt of court.
Counsel
D Wood & W Neill, for the Registrar of the Supreme Court
D Mel, for the first contemnor
M Kuma, for the second contemnor
T Twivey-Nonggorr, for the third contemnor
2 October, 2014
1. BY THE COURT: This judgment gives reasons for the Supreme Court's verdict on charges of contempt of court that have been laid against Alfred Manase, Margareth Parua and Sam Bonner. They are each lawyers who were involved (either directly or through their firms) in the hearing of an application in the Supreme Court to stay proceedings in the National Court in which a client of two of the contemnors, Toami Kulunga, had been convicted of contempt of court.
2. Mr Manase, Ms Parua and Mr Bonner are referred to as contemnors in accordance with Order 14, Rule 37 of the National Court Rules (which rule has been adopted for the purposes of these proceedings under Order 2, Rule 1(g) of the Supreme Court Rules 2012), which provides that "contemnor means a person guilty or alleged to be guilty of contempt of the Court".
3. The Registrar of the Supreme Court alleges that they each committed contempt of court by causing a draft consent order to be delivered to the Judge hearing the stay application, after his Honour had heard the application and reserved a ruling on it. It is alleged that they hindered the course of justice in the Supreme Court, and also interfered with the due administration of justice in the National Court.
4. They each pleaded not guilty, so a trial has been conducted in accordance with conventional criminal procedures. Evidence, which was exclusively by affidavit, has been presented and submissions have been made. The facts are largely uncontested, so we begin by making findings of fact. Then the charges are set out. A number of arguments relating to the jurisdiction of this Court were raised by counsel for the third contemnor in the course of submissions on verdict. We address those arguments under the heading 'Jurisdictional Challenge' and explain why we find no merit in them. We then determine the verdict in respect of each of the contemnors.
FINDINGS OF FACT
May 2014
5. On Thursday 15 May the then Commissioner of Police, Toami Kulunga, was found guilty by the National Court, constituted by Deputy Chief Justice Salika, of contempt of court. He was convicted on a charge alleging that he had disobeyed an order of the National Court, constituted by Justice Kirriwom, made on 1 October 2012, that required him as Commissioner of Police to reinstate Geoffrey Vaki as Assistant Commissioner of Police.
6. In the National Court proceedings, OS (JR) No 608 of 2010, the second contemnor Ms Parua's firm, Parua Lawyers, represented Mr Kulunga. The third contemnor Mr Bonner's firm, Sam Bonner Lawyers, represented Mr Vaki.
7. On Friday 15 May Salika DCJ administered the allocutus to Mr Kulunga and adjourned the proceedings to early June for a hearing on punishment.
8. On Sunday 25 May the first contemnor Mr Manase received instructions from Parua Lawyers on behalf of Mr Kulunga to prepare an appeal against the guilty verdict and to make an application for a stay of the National Court contempt proceedings pending the hearing of the appeal.
9. On Friday 30 May the appeal and the application for a stay of proceedings were filed. The appeal was given the file reference SCM (Supreme Court Motion) 17 of 2014 as it was an appeal against an order of the National Court (the guilty verdict of 15 May) that was made in proceedings (the judicial review proceedings commenced by Mr Vaki) brought under Order 16 of the National Court Rules. Order 10, Rule 1(1) of the Supreme Court Rules 2012 requires that such appeals be instituted by notice of motion.
3 June 2014
10. On Tuesday 3 June the punishment hearing proceeded before Salika DCJ. His Honour heard submissions and reserved a decision on punishment to 13 June 2014.
4 June 2014
11. On Wednesday 4 June the stay application in SCM No 17 of 2014 was heard before Chief Justice Injia, sitting as a single Judge of the Supreme Court. It was a contested application. Mr Manase appeared for the appellant, Mr Kulunga, and submitted that the National Court proceedings should be stayed (in which case the Court would be restrained from handing down the decision on punishment) pending determination of the appeal against conviction. Mr Bonner appeared for Mr Vaki and opposed the stay, submitting that the National Court should be permitted to proceed, without restraint, to its decision on punishment.
12. Injia CJ reserved his ruling on the stay application to Friday 6 June at 1.30 pm.
13. Mr Bonner has given evidence, which we accept, that late on the night of Wednesday 4 June he received a phone call from his mother in Mt Hagen. His mother told him that she and the family had received threats from Mr Kulunga's clansmen that if Mr Kulunga were sent to prison, Mr Bonner's family's properties would be destroyed; and the threats were issued in relation to the family members themselves. Mr Bonner decided not to report the threats to the Police, but rather to raise the matter with Mr Manase and with his client.
5 June 2014
14. He did that, early the next day, Thursday 5 June. Mr Vaki was concerned about the welfare of Mr Bonner's mother and other family members so he gave instructions to Mr Bonner to consent to the stay of the National Court proceedings. Mr Bonner told Mr Manase that he would file a formal application supported by affidavit.
15. Mr Bonner did not, however, file a formal application that day. Instead, he wrote a letter, under his firm's letterhead, addressed to Injia CJ's Associate, annexing a draft consent order and had it delivered to the Court (in two different ways, as we explain below). The letter was in the following terms:
05th June, 2014
THE ASSOCIATE TO HIS HONOUR
CHIEF JUSTICE INJIA "Without Prejudice"
Supreme Court of Justice By Hand & Fax: 325 6895
PO Box 7018
WAIGANI
National Capital District
Attention: Mr Tongia
Dear Sir,
RE: SCM NO 7 OF 2014 – TOAM KULUNGA -v- GEOFFERY VAKI [sic]
We advise that the parties have agreed and Consented to Stay the sentencing on 13th June 2014. We enclose the endorsed Consent Order for His Honour CHIEF JUSTICE INJIA to sanction them.
Could you advise His Honour and let Mr Alfred Manase on phone: 7281 5159 or myself on phone: 323 3772 or 722 58083 or 766 60544 as soon as possible. [sic]
Thank you.
Yours faithfully,
Sam Bonner Lawyers
.... [signed]....
SAM BONNER
16. The draft consent order, which had a coversheet purporting to show it was filed by Parua Lawyers, stated:
CONSENT ORDER
THE COURT ORDERS BY CONSENT THAT:
BY THE COURT
_____________
REGISTRAR
ORDERED this 5th day of June 2014
ENTERED this day of June 2014
I, LANCE OKIL, of Parua Lawyers for the Appellant hereby consent to the within Orders.
....................
LANCE OKIL
PARUA LAWYERS
Lawyers for the Appellant
DATED this day of June 2014
I, SAM BONNER, of Sam Bonner Lawyers for the First Respondent hereby consent to the within Orders.
....................
SAM BONNER
SAM BONNER LAWYERS
Lawyers for the First Respondent
DATED this day of June 2014
17. Mr Bonner did two things with his letter. First, at 2.15 pm, he entered courtroom 3 at Waigani, in which the Chief Justice was presiding in National Court matters, unrelated to SCM No 17 of 2014. He handed an envelope containing his letter and the annexed draft consent order (which at that stage was not signed by anybody) to the court attendant, and asked the attendant to hand it to the Chief Justice's Associate, Tongia Kekebogi, who was in the courtroom. The attendant handed the envelope to Mr Kekebogi who opened it and noted that the letter was marked to his attention, so he made a handwritten notation at the top of the letter: "Rec'd 5th/6/14 at 2.15 pm".
18. The next thing Mr Bonner did with the letter and in particular the draft consent order was to get the draft order signed. He signed it himself and eventually persuaded Ms Parua to sign it.
19. It is clear from the evidence that Ms Parua had serious misgivings about agreeing to Mr Bonner's proposed course of action. She
exchanged correspondence earlier that day with Mr Manase. She was cross with him about the agreement he had made with Mr Bonner,
without her knowledge, and because he had communicated with Mr Kulunga directly. She was concerned about the propriety of endorsing
a consent order on a matter that was reserved for ruling. She told Mr Manase that she was considering referring him to the Lawyers
Statutory Committee for unethical conduct. She attended upon Mr Kulunga at his office at Police headquarters and advised him that
he should not consent to what Mr Bonner and Mr Manase had agreed on. However Mr Kulunga insisted that she should sign the draft order,
so she did so "begrudgingly", as she described her conduct in her evidence before this Court. Ms Parua struck out the name of Lance
Okil (the lawyer in her firm who was counsel for Mr Kulunga in the National Court proceedings) where it appeared twice in the attestation
clauses of the draft order and replaced it with her own name and signed the draft order and dated it 5 June 2014.
20. The signed draft order was given to a Parua Lawyers filing clerk, Gabriel Wau, and Ms Parua instructed him to take it that afternoon
to the Supreme Court Registry. Mr Wau did as he was instructed and at 3.30 pm presented the document (but not Mr Bonner's covering
letter that had earlier been given to Mr Kekebogi) to the Acting Assistant Registrar, Supreme Court, Andrew Tamanabae.
21. We point out here that Mr Wau was also charged with contempt of court for his alleged role in the incidents that led to the three contemnors being charged. He was arraigned and pleaded not guilty. During the course of the trial we upheld a no-case submission made on his behalf and acquitted him of the charges.
22. Mr Tamanabae has given evidence that during the course of conversation with Mr Wau, Mr Wau telephoned Mr Manase to clarify Mr Tamanabae's query as to whether the Court would be expecting the draft signed order and that there were several telephone conversations between Mr Manase and Mr Wau. We have difficulty with this part of Mr Tamanabae's evidence, and prefer Mr Manase's evidence that it was not him who was conversing with Mr Wau at that time, and that it was more likely to have been Mr Bonner.
23. We have difficulty with Mr Bonner's evidence that it was not his intention to have the signed draft consent order presented to the Registry that afternoon and that that was done by mistake, and that he did not know that the signed draft order had been taken to the Registry until after he rang Mr Manase that afternoon to enquire as to its whereabouts. With respect, we find that version of events not credible. We find, having considered the affidavits of Mr Manase, Ms Parua, Mr Wau and Mr Tamanabae, that Mr Bonner had full knowledge of Mr Wau attending upon Mr Tamanabae and that it was Mr Bonner's intention to have the signed draft consent order presented to the Registry that afternoon so that it might be drawn to the Chief Justice's attention before his Honour delivered his ruling on the stay application, which was due to be handed down the next day.
24. At 4.00 pm Mr Tamanabae took a copy of the draft signed consent order to the Chief Justice's chambers. He was told that Mr Kekebogi was still in court so he left the copy with the Chambers secretary, together with a stick-on note addressed to Mr Kekebogi, stating that the signed draft consent order had been given to him by the parties to be referred to him (Mr Kekebogi).
25. At 4.10 pm Mr Kekebogi returned to chambers and saw the signed draft consent order and Mr Tamanabae's stick-on note, which had been placed on his table. He then attached the signed draft consent order to Mr Bonner's letter (which had been given to him earlier in the afternoon in courtroom 3) and attached them to the court file SCM No 17 of 2014.
6 June 2014
26. At 1.30 pm Mr Manase appeared before the Chief Justice to receive the ruling on the stay application. Mr Bonner did not appear. Mr Manase alerted the Chief Justice to the possible existence of a draft consent order. We accept Mr Manase's evidence that at that stage he had not sighted the signed draft consent order. The Chief Justice expressed the view that such a matter should be dealt with in open court. His Honour further reserved the ruling to 10 June at 9.30 am and directed Mr Manase and Mr Bonner to appear at that time to explain the circumstances of the draft consent order.
27. Late on the afternoon of Friday 6 June Sam Bonner Lawyers filed a notice of motion in SCM No 17 of 2014, supported by an affidavit by Mr Bonner. The purpose of the motion was to apply to the Court for orders, amongst other things, that the terms of the signed draft consent order be "sanctioned" by the Court. The notice of motion, which contained obviously incorrect dates, was in the following terms:
NOTICE OF MOTION
TAKE NOTICE: that on 10th day of May, 2014 at 0930 am, the First Respondent/Applicant will move the Court for following Orders:
28. Mr Bonner stated in the supporting affidavit at paragraphs 9 and 10:
Thus, I hold instructions that it is an appropriate way forward for the First Respondent [his client, Mr Vaki] to mutually request or invite the Appellant to agree and consent to the terms of the Consent Orders for the good, and the betterment of both parties, but more importantly for the good administration of the Police Force, if not such consideration, it will send the bad signal to the Rank and file of the Police Force for such Senior Police Officers to fight over trivial administrative matters at Court per se, which reflects a bad image of the Police Force. [sic]
Therefore, the First Respondent and the Appellant humbly request the Court to sanction the Consent Orders.
29. Mr Tamanabae gave evidence, which we accept, that when the notice of motion and supporting affidavit were filed, the court file SCM No 17 of 2014 was in the Chief Justice's chambers (its proper place as the ruling on the stay application was still pending), so he obtained the next document number from Mr Kekebogi. It was the eve of a long weekend (Monday 9 June was the Queen's Birthday public holiday) so he did not want to be around longer than necessary. The documents remained in the registry.
10 June 2014
30. At 8.30 am Mr Tamanabae took the notice of motion and supporting affidavit (which had been filed late the previous Friday afternoon) to Mr Kekebogi, so they could be placed on the court file.
31. Mr Manase and Mr Bonner appeared before the Chief Justice to receive the ruling on the stay application and to address the matters his Honour had raised on 6 June. Mr Bonner attempted to move the motion for sanctioning of the consent order. However his Honour did not allow him to do so, on technical grounds to do with the correctness of the return date. His Honour handed down the ruling, refusing the application. He adjourned the proceedings to the next day to allow himself time to consider whether those involved in submitting and pursuing the consent order should be charged with contempt of court.
11 June 2014
32. His Honour delivered a written ruling giving reasons for his decision to order the Registrar of the Supreme Court to lay charges of contempt of court against Mr Manase, Ms Parua and Mr Bonner (as well as an un-named filing clerk from Parua Lawyers, who as it transpired was Mr Wau). His Honour considered that the conduct of those persons raised serious questions concerning an attempt to interfere in the administration of justice.
13 June 2014
33. Salika DCJ delivered the judgment on punishment in the National Court, sentencing Mr Kulunga to seven months imprisonment on each of three charges of contempt of court of which he had been convicted (Vaki v Baki, National Executive Council and The State (2014) N5612). Later that day Kariko J, sitting as a single Judge of the Supreme Court, being satisfied that there were exceptional circumstances, granted bail in the sum of K10,000.00, pending determination of his appeal against conviction, to Mr Kulunga (SC App No 3 of 2014, 13.06.14).
24 June 2014
34. The Registrar Ian Augerea engaged Ashurst Lawyers to prosecute the contempt proceedings, who filed a notice of motion (seeking orders finding the contemnors guilty of contempt of court) and a statement of charge. Amended versions of those documents were later filed.
THE CHARGES
35. The gist of the charges is contained in paragraphs 1 to 4 of the amended statement of charge. The remaining paragraphs, 5 to 16, are more a statement of facts and to some extent submissions in support of the charges. The charges are:
TO:
ALFRED MANASE and MARGARET[H] PARUA and SAM BONNER ...
You are charged with contempt of court in that:
36. In summary, it is alleged that the contemnors committed contempt of court by:
in that by doing so, they jointly or individually:
37. In particular it is alleged that they each committed contempt of court in respect of both:
JURISDICTIONAL CHALLENGE
38. Ms Twivey-Nonggorr submitted at the beginning of her submissions on verdict that the manner in which the charges had been laid was an abuse of process, and that the Court has no jurisdiction to determine the charges. Three arguments were put to the Court:
39. We indicated to Ms Twivey-Nonggorr when these submissions were made that their timing surprised us. We could not understand why jurisdictional arguments were being made after the close of the evidence and as a precursor to submissions on verdict. Surely, the proper time to make submissions of this nature was at the beginning of the trial, before the contemnors were arraigned.
40. It must be appreciated that this matter was set down before this Court, constituted by three Judges, as a trial of charges of contempt of court. This was unusual, as the Supreme Court is not often constituted as a trial court. However, none of the contemnors took issue with this and we were, and are, satisfied that we have jurisdiction to sit as a trial court. We indicated at the outset of the hearing that conventional criminal procedures would apply. The contemnors were accordingly arraigned. It was clear that they each understood the charges. They each pleaded not guilty. Each of them is a lawyer, of some high standing, it must be said, in the profession, so it was reasonably presumed that they would understand the charges and the procedures that were being invoked, and that if they or their counsel saw any problem it would have been raised before they entered their pleas. Their not guilty pleas, and the absence at that stage of any challenge to the jurisdiction of this Court, are regarded by the Court as acquiescence to the jurisdiction of the court.
41. Ms Twivey-Nonggorr responded that jurisdictional points can be raised at any stage of the proceedings. This to some extent is correct (Sir Arnold Amet v Peter Charles Yama (2010) SC1064). However, if they are to be raised at this late stage, very good reasons should be made known to the court for doing so (eg there might be a recent Supreme Court decision on point or by genuine oversight or counsel have overlooked a critical issue), and the argument being raised should almost be unarguable (The State v Cain Wosae (2010) N3996). Here we see no good reason why these arguments were raised so late, and they are not unarguable. With respect, they are without merit, for the following reasons:
Pursuant to the ruling of the Court on 11 June 2014, Sections 37(2), 155(4), 160(2) and/or 185 of the Constitution and/or Order 14, Rules 42(1) and 49 of the National Court Rules.
That was an adequate statement of jurisdiction.
Ms Margareth Parua, un-named filing clerk employed by Parua Lawyers, Mr Sam Bonner and Mr Alfred Manase be charged with contempt of court by the Registrar.
His Honour did not restrain the Registrar in the manner contended for. It was left to the Registrar to frame the charges as he saw fit. The Registrar, in our view, properly exercised his discretion to charge the contemnors for not only contempt of the Supreme Court but also a contempt of the National Court.
42. In summary, the jurisdictional challenge is unsuccessful. We will now determine the verdicts.
THE FIRST CONTEMNOR, ALFRED MANASE
43. The first limb of the factual allegations in support of the charge has been proven in that Mr Manase caused the draft consent order to be delivered to the Chief Justice on 5 June 2014. He was a party to the agreement with Mr Bonner to have a draft consent order put to the Court that day. Though he did not sign the draft consent order, we find that Mr Manase was complicit in the two steps Mr Bonner took to get the draft consent order delivered to the Chief Justice on that day: entering courtroom 3 and delivering the envelope to Mr Kekebogi and later that day, having the signed draft consent order presented to the Registry.
44. As to the second limb of the factual allegations in support of the charge, we find that it has not been proven that Mr Manase caused a copy of the signed draft consent order to be filed in support of the notice of motion filed on 6 June 2014. We find that the filing on 6 June of the notice of motion and supporting affidavit was Mr Bonner's doing, and that Mr Manase cannot be said to have been complicit in that action.
45. The question then becomes whether Mr Manase:
46. These questions must be posed in relation to both:
Re proceedings in the Supreme Court
47. We take into account Mr Manase's evidence that it was not his intention to pervert the course of justice or to undermine its due administration or to usurp the powers and authority of the Chief Justice. He told Mr Bonner that an appropriate application had to be filed at the earliest opportunity. His efforts at securing the consent order were on the understanding that Mr Bonner had already filed the application. He never intended the consent order to be brought to the Chief Justice's attention before the application was filed, "which is in fact what happened and no doubt gave the impression that the alleged contemnors were attempting to interfere in the due course of justice". He has the deepest respect for the Supreme Court and the Chief Justice and the administration of justice. It was never his intention to offend any of these institutions or individuals.
48. We largely accept that evidence and accordingly find that it has not been proven that Mr Manase:
49. However, we have difficulty with Mr Manase's suggestion that it was always his intention to ensure that a formal application be filed and drawn to the attention of the Chief Justice before the existence of any draft consent orders were drawn to his Honour's attention. We do not accept that part of Mr Manase's evidence. It must be emphasised that it was Mr Manase who drafted the draft consent order. If we did accept Mr Manase's assertion, we would still consider that he was at least reckless in the trust he placed in Mr Bonner to do the proper thing. That trust was clearly misplaced. We find that it has been proven that Mr Manase, by being complicit in the steps Mr Bonner took on 5 June 2014:
50. We find that the manner in which the draft consent order was attempted to be drawn to the attention of the Chief Justice on 5 June 2014 was ill-conceived, highly irregular, in breach of the Supreme Court Rules, unprofessional, unethical, an abuse of process and disrespectful of the Court and Chief Justice. The effect of such a course of conduct could only be to interfere with the Chief Justice's decision, to present a real risk of interference with the due administration of justice and to, in fact, interfere with that process.
51. At this juncture we remind ourselves of the classic statement of the elements of contempt of court made by the Supreme Court in Andrew Kwimberi v The State (1998) SC545: 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.
52. We are satisfied that Mr Manase committed acts and omissions outside court that were likely to interfere with and obstruct the due administration of justice. He is guilty of contempt of the Supreme Court.
Re proceedings in the National Court
53. We are not satisfied that the effect of Mr Manase's acts and omissions was to interfere with the National Court's proceedings or to present a real risk of interference with the due administration of justice or to interfere with the due administration of justice in the National Court.
THE SECOND CONTEMNOR, MARGARETH PARUA
54. The first limb of the factual allegations in support of the charge has been proven in that Ms Parua caused the draft consent order to be delivered to the Chief Justice on 5 June 2014. After some considerable resistance, and against her better judgment, she signed the draft consent order. She was therefore, albeit reluctantly, a party to the agreement with Mr Bonner to have a draft consent order put to the Court that day. She was ultimately complicit in the two steps Mr Bonner took to get the draft consent order delivered to the Chief Justice on that day: entering courtroom 3 and delivering the envelope to Mr Kekebogi and later that day, having the signed draft consent order presented to the Registry.
55. As to the second limb of the factual allegations in support of the charge, we find that it has not been proven that Ms Parua caused a copy of the signed draft consent order to be filed in support of the notice of motion filed on 6 June 2014. The filing on 6 June of the notice of motion and supporting affidavit was Mr Bonner's doing, and Ms Parua cannot be said to have been complicit in that action.
56. The question then becomes whether Ms Parua:
Re proceedings in the Supreme Court
57. We take into account Ms Parua's evidence that she signed the draft consent order begrudgingly, that she did so contrary to the advice she gave to her client, Mr Kulunga, and that by doing so she acted in accordance with his instructions. She was in a predicament not of her own making. She felt that if she refused to sign, her firm would have to cease acting for Mr Kulunga and that if that were happen, her client's interests would be prejudiced.
58. We accept that evidence and accordingly find that it has not been proven that Ms Parua:
59. However, we consider that once Ms Parua signed the draft consent order and then instructed Mr Wau to file it at the Supreme Court Registry she became inextricably implicated in the course of conduct that Mr Bonner had engineered. We find that it has been proven that Ms Parua, by being complicit in the steps Mr Bonner took on 5 June 2014:
60. We repeat our view that the manner in which the draft consent order was attempted to be drawn to the attention of the Chief Justice on 5 June 2014 was ill-conceived, highly irregular, in breach of the Supreme Court Rules, unprofessional, unethical, an abuse of process and disrespectful of the Court and Chief Justice. The effect of such a course of conduct could only be to interfere with the Chief Justice's decision, to present a real risk of interference with the due administration of justice and to, in fact, interfere with that process.
61. We are satisfied that Ms Parua committed acts and omissions outside court that were likely to interfere with and obstruct the due administration of justice. She is guilty of contempt of the Supreme Court.
Re proceedings in the National Court
62. We are not satisfied that the effect of Ms Parua's acts and omissions was to interfere with the National Court's proceedings or to present a real risk of interference with the due administration of justice or to interfere with the due administration of justice in the National Court.
THE THIRD CONTEMNOR, SAM BONNER
63. The first limb of the factual allegations in support of the charge has been proven in that Mr Bonner caused the draft consent order to be delivered to the Chief Justice on 5 June 2014. The plan to have a draft consent order put to the Court that day was Mr Bonner's idea. He took two distinct and separate steps to get the draft consent order delivered to the Chief Justice on that day: entering courtroom 3 and delivering the envelope to Mr Kekebogi and later that day, having the signed draft consent order presented to the Registry.
64. We find that the second limb of the factual allegations in support of the charge has also been proven. Mr Bonner caused a copy of the signed draft consent order to be filed in support of the notice of motion filed on 6 June 2014. The filing on 6 June of the notice of motion and supporting affidavit was all Mr Bonner's doing.
65. The question then becomes whether Mr Bonner:
Re proceedings in the Supreme Court
66. We take into account Mr Bonner's evidence that it was not his intention to interfere with due administration of the judicial process or to undermine the Chief Justice or the integrity of the Office of Chief Justice. He acted in good faith "to maintain a peaceful and harmonised relationship between Mr Kulunga's clansmen and my mother's clansmen from any bloodshed at home (Hagen)".
67. We largely accept that evidence and accordingly find that it has not been proven that Mr Bonner:
68. However, Mr Bonner is directly and personally responsible for the steps he took on 5 June 2014 and accordingly we find it proven that he:
69. Although he was caught in a difficult situation, he lost sight of his paramount duty, as an officer of the Court, to the Court. The manner in which he attempted to get the draft consent order to the attention of the Chief Justice on 5 June 2014 was ill-conceived, highly irregular, in breach of the Supreme Court Rules, unprofessional, unethical, an abuse of process, ham-fisted and disrespectful of the Court and Chief Justice. The effect of such a course of conduct could only be to interfere with the Chief Justice's decision, to present a real risk of interference with the due administration of justice and to, in fact, interfere with that process.
70. We are satisfied that Mr Bonner committed acts and omissions outside court that were likely to interfere with and obstruct the due administration of justice. He is guilty of contempt of the Supreme Court.
Re proceedings in the National Court
71. We are not satisfied that the effect of Mr Bonner's acts and omissions was to interfere with the National Court's proceedings or to present a real risk of interference with the due administration of justice or to interfere with the due administration of justice in the National Court.
CONCLUSION
72. Each of the contemnors has been found guilty of contempt of the Supreme Court and not guilty of contempt of the National Court. They will be punished in due course. The question of costs of these proceedings will be addressed at a later hearing. The contemnors will be placed on OR bail.
ORDER
(1) Verdicts are entered in relation to the contemnors, as follows:
- (a) First contemnor, Alfred Manase: guilty of contempt of the Supreme Court, not guilty of contempt of the National Court;
- (b) Second contemnor, Margareth Parua: guilty of contempt of the Supreme Court, not guilty of contempt of the National Court;
- (c) Third contemnor, Sam Bonner: guilty of contempt of the Supreme Court, not guilty of contempt of the National Court;
(2) The contemnors will be subject to punishment in accordance with further proceedings and orders of the Court.
(3) The question of costs shall be addressed at a later hearing.
(4) Each of the contemnors is granted bail on their own recognisance, subject to the condition that they each be of good behaviour and appear before the Court at the times set for the further conduct of these proceedings.
Verdicts accordingly.
_____________________________________________________________
Ashurst Lawyers: Lawyers for the Registrar of the Supreme Court
Steeles Lawyers: Lawyers for the first contemnor
Parua Lawyers: Lawyers for the second contemnor
Twivey Lawyers: Lawyers for the third contemnor
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URL: http://www.paclii.org/pg/cases/PGSC/2014/31.html