Tato v Akunai [2016] PGSC 29; SC1511 (28 June 2016)

SC1511

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 12 OF 2016

SOLOMON TATO

Appellant
V

SAMSON AKUNAI, ACTING PROVINCIAL ADMINISTRATOR,
EASTERN HIGHLANDS PROVINCE

First Respondent
THE HONOURABLE JULIE SOSO AKEKE MP,
GOVERNOR, EASTERN HIGHLANDS PROVINCE

Second Respondent
EASTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL
Third Respondent

IN THE MATTER OF CHARGES OF CONTEMPT OF COURT

IAN AUGEREA, REGISTRAR OF THE SUPREME COURT
Applicant

V

SAMSON AKUNAI
First Contemnor

THE HONOURABLE JULIE SOSO AKEKE MP
Second Contemnor

ALVIN INAMMOI
Third Contemnor

JOHN KALI
Fourth Contemnor

Waigani: Cannings J, Kangwia J, Higgins J

2016: 31 May, 9, 28 June

CONTEMPT OF COURT – disobedience of court orders – disobedience must be wilful – intent to defy irrelevant – belief in changed circumstances no excuse – proper course to apply for discharge of order to avoid contempt – civil or criminal contempt – distinction not relevant to elements of offence – act of disobedience must be deliberate and unambiguous – proof beyond reasonable doubt required.

This was a trial before the full court of the Supreme Court of contempt of court charges against four contemnors. They are each alleged to have breached and disobeyed an interim order of the Supreme Court made on 15 February 2016 in appeal proceedings that restored the appellant to office as Provincial Administrator, pending determination of the appeal. The first contemnor is alleged to have breached the order by inciting his supporters to lock the gates to the Provincial Administration building and by refusing to vacate his position as Acting Provincial Administrator. The second contemnor is alleged to have breached the order by writing a letter of 16 February 2016 instructing the appellant to step down as Provincial Administrator and by later recommending the appointment of the third contemnor as Acting Provincial Administrator. The third contemnor is alleged to have breached the order by attempting on 4 and 5 April 2016 to enter into the office of the Provincial Administrator and to assume duties as Acting Provincial Administrator. The fourth contemnor is alleged to have breached the order by writing a letter dated 8 March 2016 to the appellant instructing him to vacate the office of Provincial Administrator and by writing a letter dated 4 April 2016 to the third contemnor instructing him to assume office as Acting Provincial Administrator. Each contemnor pleaded not guilty, so a trial was conducted in accordance with conventional criminal procedures. Evidence, which was mainly by affidavit, was presented and submissions made. The Court reserved a ruling on verdicts.

Held:

(1) Contempt of court is a criminal offence, the elements of which are any act or omission, committed in the face of the court or outside court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice.

(2) Where the contemnor is alleged to have committed a disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence: the order was clear; it was properly served or the contemnor was aware of the order; and there was a deliberate failure to comply with the court order.

(3) Here, the first two elements were clearly satisfied in respect of each contemnor and the verdict in each case turned on whether the contemnor had breached or disobeyed the order of 15 February 2016 wilfully and deliberately.

(4) The second contemnor wilfully and deliberately disobeyed the order of 15 February 2016 and was found guilty of contempt of court

(5) It was not proven beyond reasonable doubt that the first, third or fourth contemnors had wilfully and deliberately breached the order of 15 February 2016 and each was found not guilty.

Cases cited

The following cases are cited in the judgment:
21 ILG Gobe Project Area Inc Land Groups v MRDC (2006) N3066
Andrew Kwimberi v The State (1998) SC545
Application by Herman Joseph Leahy (2006) SC855
Hinch v A-G (Vic) [1987] HCA 56; (1987) 164 CLR 15
Ian Augerea, Registrar of the National Court v Todagia Kelola and South Pacific Post Limited (2014) N5582
M^cNair Anderson Associates Pty Ltd v Hinch & 3AW Broadcasting Co Pty Ltd [1985] VicRp 30; [1985] VR 309
P A Thomas & Co v Mould [1968] 2 QB 913
Somare v Manek (2011) SC1118
Spokes v Banbury Board of Health [1865] UKLawRpEq 38; (1865) LR 1 Eq 42
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572
Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) ALR 535
Yap v Tan [1987] PNGLR 227

TRIAL

This was the trial before the Supreme Court of four persons charged with contempt of court.

Counsel:
L A D Wood, for the applicant
M N Wilson, for the first & third contemnors
T Waisi, for the second contemnor
K H Monei, for the fourth contemnor

28 June, 2016

1. BY THE COURT: This is a trial before the Supreme Court in its original jurisdiction to determine whether the respondents to an application by the Registrar, Mr Ian Augerea, are guilty or not of contempt of this Court. As respondents, they are called the contemnors. However, that term implies no stigma or onus of proof upon them. Rather, it is a term meaning no more than is the case with a person accused of a crime being referred to as “the accused”.
   
2. The applicant bears the onus of establishing beyond reasonable doubt that each contemnor is guilty of contempt. If that is established in the case of one or more of the contemnors the next question is that of the punishment to be imposed. That, in turn, depends on whether the contempt so found is to be regarded as sufficiently contumacious as to warrant imprisonment or some lesser sanction.
   
3. Further, the fact that there is a joint trial of the contemnors does not mean that there is any question of guilt by association. The case against each contemnor must be assessed separately and upon evidence admissible against that contemnor. The joint trial is a matter of procedural convenience as the facts in respect of each contemnor arise from the same or part of the same series of events.
   
4. The trial was largely conducted on the basis of affidavit evidence, mostly uncontested.
   
5. The proceedings out of which the referral arises is an appeal by Solomon Tato, the appellant, against Samson Akunai, one of the contemnors, the Hon Julie Soso Akeke MP, Chair of the Eastern Highlands Provincial Executive Council (PEC) and Provincial Governor and the PEC itself as respondents.
   
6. However, the referral is by the Registrar (the applicant) at the direction of the Chief Justice, Sir Salamo Injia, and relates to each of the named contemnors.
   

CHARGES

7. The Registrar charges each contemnor with contempt of the Supreme Court. Each contemnor is alleged to have breached and disobeyed an interim order of the Supreme Court made by Injia CJ on 15 February 2016, in the appeal proceedings, that restored Mr Tato to office as Eastern Highlands Provincial Administrator, pending determination of the appeal.
   
8. The first contemnor, Samson Akunai, is alleged to have breached the order of 15 February 2016 by inciting his supporters to lock the gates to the Eastern Highlands Provincial Administration building and by refusing to vacate his position as Acting Provincial Administrator.
   
9. The second contemnor, Hon Julie Soso Akeke MP, is alleged to have breached the order of 15 February 2016 by writing a letter of 16 February 2016 instructing Mr Tato to step down as Provincial Administrator and by later recommending the appointment of Mr Inammoi as Acting Provincial Administrator.
   
10. The third contemnor, Alvin Inammoi, is alleged to have breached the order of 15 February 2016 by attempting on 4 and 5 April 2016 to enter into the office of the Eastern Highlands Provincial Administrator and to assume duties as the Eastern Highlands Provincial Administrator.
    
11. The fourth contemnor, John Kali, the Secretary for Personnel Management, is alleged to have breached the order of 15 February 2016 by writing a letter dated 8 March 2016 to Mr Tato instructing him to vacate the office of Provincial Administrator and by writing a letter dated 4 April 2016 to Mr Inammoi instructing him to assume office as Acting Provincial Administrator.
    
12. It is convenient first to set out the background facts and place each contemnor in context.
    

BACKGROUND

13. On 26 November 2014, the appellant, Mr Tato, was appointed Provincial Administrator for Eastern Highlands Province by the National Executive Council (NEC).
    
14. In June 2015 allegations of official corruption including misappropriation of public funds were raised against the appellant. Charges were laid before the Goroka District Court by the National Fraud and Anti-Corruption Directorate of the Royal PNG Constabulary.
    
15. Mr Samson Akunai was then recommended for appointment as Acting Administrator by the EHP Provincial Executive Council (PEC). That body is chaired by the Governor, the Hon Julie Soso Akeke MP (Ms Soso Akeke). The minutes are not produced but Ms Soso Akeke offers a recollection that on 28 May 2014 (sic) Mr Akunai’s appointment for 3 months from 1 July 2014 (sic) was agreed to be recommended to the NEC. The reference to 2014 is plainly wrong. It should be 2015. The appointment of Mr Akunai was confirmed on 31 July 2015.
    
16. The appellant then sought orders staying these actions and challenging their validity.
    
17. That matter came before Justice Kandakasi in the National Court at Waigani on 3 August 2015. His Honour granted interim orders as requested.
    
18. On 12 August 2015 orders were made, apparently by consent, including an order that the appellant would voluntarily step aside from office pending the outcome of the criminal proceedings against him.
    
19. The charges against him were dismissed on 27 November 2015, although the prosecution indicated it would seek an ex officio indictment. Nevertheless, as the criminal proceedings then pending against the appellant were dismissed, he sought to resume office.
    
20. On 30 November 2015 Justice Polume-Kiele granted interim orders in OS 762 of 2015, returnable on 21 December 2015 at Goroka preventing that course of action. The appellant was given leave to apply to discharge those orders on three days notice.
    
21. The appellant, however, applied in separate proceedings, OS 815 of 2015, to discharge or nullify those orders. On 17 December 2015, Acting Justice Koeget, sitting at Waigani, granted those orders.
    
22. OS 762 of 2015 returned before Justice Polume-Kiele at Goroka. Her Honour effectively continued the orders she had made.
    
23. This confusing picture was, however, clarified on 15 February 2016 when both matters came before Injia CJ sitting as a single Judge of the Supreme Court. All parties were represented before his Honour.
    
24. All prior orders were stayed pending the hearing and determination of an appeal to the Supreme Court in respect of both matters.
    
25. Relevantly his Honour further ordered:
    

Pursuant to the Court Orders of the National Court made by Kandakasi J in OS 471 of 2015 Solomon Tato & another v Hon Julie Soso & Ors, on 12 August 2015, the Acting appointments of the first respondent made by the National Executive Council on 11 February 2016 cease to have effect forthwith. The appellant is restored to office according to law effective as from this day on, and shall be permitted by the Respondents and the National Executive Council to resume office forthwith, pending the determination of this appeal.

26. It is that order that each of the contemnors is alleged to have disobeyed, putting them in contempt of the Supreme Court.
    
27. On 18 February 2016, the appellant re-entered his office as Provincial Administrator. Mr Akunai was present when he did so.
    
28. Persons purporting to act on behalf of the Governor (Hon Soso Akeke) then entered and stated they were serving a suspension notice on Mr Tato under her hand pursuant to a PEC recommendation for administrative charges to be laid against the appellant.
    
29. The “Notice”, though not accepted by the appellant, was dated 16 February 2016. It stated:
    

RE: ADVICE (sic) OF PROVINCIAL EXECUTIVE COUNCIL DECISION AND RESOLUTION PERTAINING TO THE OFFICE OF THE EASTERN HIGHLANDS PROVINCIAL ADMINISTRATOR

I make reference to the above.

The Provincial Executive Council has in its first meeting of 2016 resolved that you continue to remain on Paid leave for the reasons that you have been administratively charged for breach of the Terms and Conditions of your Contract of Employment, and relevant provisions of the Public Services (Management) Act, Public Service Code of Conducts (sic) and Ethics.

This decision has not been taken lightly considering the extensively endemic situation of chaos and great turmoil within the Office of the Provincial Administrator and the Province for the past couple of months since last year 2015.

You would further appreciate the fact that because of this situation, it has greatly affected the normal flow of service delivery to the people of Eastern Highlands Province. The past occurrence of events had not only disrupted the normal flow of services but it had further tainted and put into disrepute the image of the Eastern Highlands Provincial Administration and the Provincial Government that we all should be taking appropriate steps to rectify and serve as Public Servants.

You would appreciate the fact that the provincial (sic) Executive Council has all mandates (sic) in resolving all manner of disputes from within the Provincial Administration and as such it has resolved to “maintain status quo” to be in the best interest of the Provincial Government and the Administration of Eastern Highlands and the State.

By way of attachment, find annexed a Provincial Executive Council Resolution for your convenience.

30. The letter bears the signature of Ms Soso Akeke. Indeed, Ms Soso Akeke has conceded she signed that letter before leaving Goroka on 16 February 2016. There is no doubt that it is a genuine document which seeks to persuade the appellant to stand aside from the office to which the order of the Chief Justice of 15 February 2016 had restored him. It was couched in mandatory terms. It was purportedly a demand backed by the authority of the Provincial Executive Council.
    
31. The history of prior proceedings is of relevance only to background but it warrants the conclusion that Ms Soso Akeke was never happy with the appellant’s appointment. She was also, no doubt genuinely, disturbed about the allegations raised against the appellant.
    
32. Nevertheless, the procedures for suspending a duly appointed Provincial Administrator from office (per Section 193 (1D) of the Constitution and Section 73 (2B) of the Organic Law on Provincial Governments and Local-level Governments) have not been activated.
    
33. The appointment of an Acting Administrator can only be effectively made where the substantive office holder is either suspended from or absent from duty (see Public Services (Management) (Employment of Provincial Administrators) Regulation 2014, Section 18(1)).
    
34. On and since 15 February 2016, the appellant was not unavailable for or on leave from office.
    
35. As at that date, the appointment of Mr Samson Akunai as Acting Administrator was still current.
    
36. Mention should be made of the contemnor, Mr John Kali. His office was and is that of Secretary of the Department of Personnel Management. His involvement is in writing a letter dated 8 March 2016 addressed to and received by the appellant. This is the crux of the complaint of contempt against Mr Kali.
    
37. It is in the following terms:
    

I refer to the above matter and advise that my officers met with the Public Prosecutor on Tuesday 1 March 2016 at his office following our consultations to ascertain whether or not an ex-officio indictment would be issued to recommit you to stand trial on the charges dismissed by the District Court in Goroka. You will note that this was the reason why you were not readily allowed to resume office and you were aware of this. However you fought the State in the courts in order to resume office early and on the 15 February 2016 the Supreme Court did order that you be allowed to resume office. In so doing the Supreme Court also invalidated Mr Akunai’s acting appoint (sic) which was to commence after his last acting period of 3 months lapsed on 11 February 2016. The Supreme Court made these orders without being made aware of the actions taken to ascertain the issue of an ex-officio indictment which was the reason for not allowing you to resume office as yet. The reason has now been justified by the Public Prosecutor.

At this meeting the Public Prosecutor advised that he had after requiring further information from the police, decided to issue the ex-officio indictment. He also briefed my officers on the process of issuing of an indictment in the criminal process. My officers explained the requirement for a provincial administrator to take leave of office when charged and whether the issuing of an ex-officio indictment should be treated differently. With his explanations it was ascertained that an indictment is as good as a charge if not more in that it commits a person to stand trial without the need for committal. This is because the committal court had not considered evidence against you in the way that the Public Prosecutor has done in order to arrive at the conclusion that there is a case to be tried at the National Court.

The Public Prosecutor further advised that by the end of the week or the beginning of the following week the indictment would be served by police on you. As you yourself argued previously the Regulation states that you may take voluntary leave but that is not to mean you can remain because the court later through Judge Kandakasi did order you to vacate office.

In order to respect the wishes of the State as translated through the Regulation it is therefore incumbent on all of us to do what is right and therefore I am writing to formally advise you of the position brought about by the issue of the ex-officio indictment. I am accordingly advising you to prepare to vacate office and allow the government to make an acting appointment as soon as you are served with the indictment.

38. It makes reference to an indictment being ‘issued’ by the Public Prosecutor however it also concluded that the appellant should “prepare to vacate office” so as to allow an acting appointment.
    
39. The Regulation cited above permits an Administrator to take leave if charged and, as also noted, there are provisions allowing suspension from office. However, to take the latter steps would be a direct defiance of the orders of the Chief Justice of 15 February 2016. There was nothing to prevent the parties bound by those orders from applying to vary or discharge them on the basis of further developments.
    
40. Ms Soso Akeke, in particular, has not chosen to do that. It is, nevertheless, true that the orders do not prevent charges being laid against the appellant. That circumstance, if it occurred, would be an arguable basis for an application to discharge or vary the Chief Justice’s orders.
    
41. Mr Alvin Inammoi’s involvement is subsequent to 15 February 2016. He was appointed Acting Provincial Administrator as from 29 March 2016. He was informed by a letter from Mr Kali to expect that the appellant would be vacating the office.
    
42. There is no doubt, given the terms of Mr Kali’s letter to him, that Mr Inammoi was aware of the effect of the Chief Justice’s orders. The same has to be concluded in respect of each of the contemnors.
    
43. It is also clear that the proper party to seek to discharge or vary the Chief Justice’s orders was Ms Soso Akeke, although any of those affected by it could have sought leave to do so.
    
44. A preliminary question relates to the role and actions of the Public Prosecutor. Under the Criminal Code, Sections 524 and 525, the Public Prosecutor decides after committal what, if any, charges should be presented by way of indictment in the National Court. Under Section 526, where, as in this is case, “a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may ... reduce into writing in an indictment a charge of any offence that the evidence appears to warrant” and present the indictment to the National Court. That provides for the process known as an ex officio indictment (Application by Herman Joseph Leahy (2006) SC855).
    
45. As Mr Kali correctly observed in his affidavit of 28 April 2016 par 10:
    

... when Mr Tato was restore (sic) to office and Mr Akunai’s last acting appointment was nullified, there was no longer a temporary vacancy in the office ...

46. On 14 March 2016, the Public Prosecutor advised Mr Kali’s Department, through Mr Mesulam, a legal officer:
    

Please be advised that I have exercised my powers under Section 526 of the Criminal Code Act to proceed with this matter in the National Court.

47. Annexed was a form of indictment signed by Mr Pondros Kaluwin as Public Prosecutor. It was in the following terms:
    

PAPUA NEW GUINEA

IN THE NATIONAL COURT
OF JUSTICE AT GOROKA

THE STATE

Against

SOLOMON TATO

of Ibusa-Moke Village,

Okapa, Eastern Highlands Province

HELD AT: GOROKA

COUNT 1: SOLOMON TATO of Ibusa-Moke Village, Okapa, Eastern Highlands Province stands charged that he between the 05^th day of March 2011 and the 21^st day of March 2012 at GOROKA, in Papua New Guinea being employed in the public service as the Acting Provincial Administrator of the Eastern Highlands Provincial Administration and as the Chairman of the Eastern Highlands Provincial Supply and Tenders Board, abused the authority of his office in not calling for a public tender and awarded a contract to LANCE WORKS LIMITED contrary to the procurement process under the Public Finance (Management) Act, prejudicial to the rights of the Independent State of Papua New Guinea.

COUNT 2: SOLOMON TATO of Ibusa-Moke Village, Okapa, Eastern Highlands Province stands charged that he between the 05^th day of March 2011 and the 21^st day of March 2012 at GOROKA, in Papua New Guinea dishonestly applied to the use of LANCE WORKS LIMITED and others monies in the sum of Two Million Kina (K2, 000,000.00) the property of the Independent State of Papua New Guinea.

DATED this 14^th day of March 2016

[Signed]
PONDROS KALUWIN
PUBLIC

PROSECUTOR

TO: SOLOMON TATO of Ibusa-Moke Village, Okapa, Eastern Highlands Province

TAKE NOTICE that you will be tried on the charge of which this is a copy at ORDINARY Criminal sessions of the National Court to be held at GOROKA, EASTERN HIGHLANDS PROVINCE at ... o’clock in the fore noon/afternoon of the ... day of ... 2016 or as soon thereafter as circumstances permit.

48. It is apparent that this document had yet to be presented to the National Court. No date for trial was endorsed on the document. It remains a matter that may or not progress to trial. That is a matter for the Public Prosecutor. The consequence if it is taken further may be an application for variation of the current orders but that has yet to occur.
    
49. The question is whether the current orders of this Court have been defied so as to amount to contempt of court and if so, by whom.
    
50. Reference was made to Somare v Manek (2011) SC1118. That case simply, for present purposes, relates to the effect of Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership. That provides that a ‘leader’ (a class of persons including the appellant) is suspended from duty if, under Section 27, he or she is referred to a Leadership Tribunal.
    
51. The net result is that nothing that has occurred to date has, as from 15 February 2016, relieved those to whom the orders of that date were addressed, whether parties to those proceedings or not, from obedience to them.
    

GENERAL PRINCIPLES

52. 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). Where the contemnor is alleged to have committed a disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence:
    

• the order was clear;
• the order was properly served or the contemnor was aware of the order; and
• there was a deliberate failure to comply with the court order
  

(See Ian Augerea, Registrar of the National Court v Todagia Kelola and South Pacific Post Limited (2014) N5582.)

Duty to obey court orders

53. As Wood V-C stated in Spokes v Banbury Board of Health [1865] UKLawRpEq 38; (1865) LR 1 Eq 42:
    

The simple and only view is that an order must be obeyed, that those who wish to get rid of the order must do so by the proper course.

54. That is, of course, an appeal or, in the case of interim orders, an appeal or application to vary or discharge them.
    

Orders must be clear and unambiguous

55. Because the end result may be imprisonment of the contemnor there must be “quite clear certainty about it” (per O’Connor J in P A Thomas & Co v Mould [1968] 2 QB 913, as cited in “The Law of Contempt” 3^rd edition, p 559 by Nigel Lowe and Brenda Sufrin) if a person is to be convicted of contempt.
    
56. It is accepted that an ambiguous order cannot be enforced by proceedings for contempt. An example thereof is found in the decision of Lay J in 21 ILG Gobe Project Area Inc Land Groups v MRDC (2006) N3066.
    
57. These orders were clear and unambiguous.
    

Awareness and service of order

58. A contemnor cannot be guilty of contempt unless aware of the terms of the order. That must usually be proved by personal service of the order. However, if the contemnor was aware of the terms of the order before disobeying it, a lack of personal service will not excuse a contemnor.
    
59. Nor will a belief no matter how sincerely held, that disobedience was excusable or in the public interest or for any other reason eg that circumstances have changed even if such change might have rendered it unlikely that the orders would have been made in the first place (see eg Yap v Tan [1987] PNGLR 227 per Hinchliffe J).
    

Act of contempt must be wilful and deliberate

60. Accidental or unintentional acts which tend to interfere with the course of justice are not regarded as contempt.
    

Proof beyond reasonable doubt required

61. The penalty to be imposed depends on the contumaciousness of the conduct in breach.
    
62. The order the subject of proceedings must be read sensibly according to its terms (McNair Anderson Associates Pty Ltd v Hinch & 3AW Broadcasting Co Pty Ltd [1985] VicRp 30; [1985] VR 309). Southwell J affirmed that, where publication of certain matter was prohibited by an order, the fact that others had already published it and that the contemnors believed that fact rendered publication permissible was no defence. Intent to breach an order is irrelevant. However, the penalty imposed in that case was a finding of contempt with costs.
    
63. In Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) ALR 535 Pincus J held that Mr Hinch had been guilty of contempt. Hinch had been made aware that an injunction preventing publication of the relevant matter was about to be made but believed it would not be done before his next broadcast segment. However, the order was granted some minutes before his broadcast and he was informed of the substance of the order after a telephone call and before the matter was broadcast. Liberty had been given to notify the terms of the order by telephone. The point was made (at 541) in support of the view of Deane J in Hinch v A-G (Vic) [1987] HCA 56; (1987) 164 CLR 15 that there is really no difference between civil and criminal contempt. In each case there must be proof beyond reasonable doubt of the elements of the charge. The distinction is whether the conduct calls for a remedial or punitive approach. The former will usually be the case where the contempt arises from disobedience to orders made in civil litigation (Yap v Tan [1987] PNGLR 227).
    
64. The fact that it was open to the contemnors to have applied to vary or discharge the orders in question is no defence. None of them did so.
    
65. The matter of Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572 per Cannings J is a good example supporting that contention. It was an order that the contemnor not take disciplinary action against the plaintiff without leave of the Court. Whether or not there were new grounds to take such action, the leave of the Court was required before that action could lawfully be taken.
    
66. Another decision of Cannings J is Ian Augerea, Registrar of the National Court v Todagia Kelola and South Pacific Post Limited (2014) N5582. It was similar to the Hinch matters (supra). Photographs of persons taken at Manus Island Regional Processing Centre were to be “frosted” obscuring recognition if published. That did not happen. The issue was whether the non-compliance was deliberate and wilful. Mr Kelola directed the editor, a Mr Fong, to ‘frost’ the images selected for publication so that persons could not be identified. Mr Fong ‘forgot’ to obscure the faces as Mr Kelola had requested. His Honour found that there was a positive duty on those made aware of the order to ensure compliance. He, Mr Kelola “... failed to do everything reasonably expected and required of him”.
    
67. The company was “bound by their conduct” (ie Mr Kelola & Mr Fong). It was found that it and they had, by their negligent acts and omissions, wilfully failed to comply with the court orders. That failure to comply clearly had the effect of frustrating the effect of the orders made. It did not matter that the contemnors did not intend to breach the court orders. It sufficed that their intentional conduct or acts or omissions, had that effect.
    
68. The charges will now be considered in respect of each contemnor.
    

FIRST CONTEMNOR: MR SAMSON AKUNAI

69. Mr Akunai had been duly appointed as Acting Administrator for the period during which the appellant was the subject of police charges before the District Court at Goroka. That appointment had been recently renewed as at 15 February 2016.
    
70. Mr Akunai acknowledged awareness of the orders of 15 February 2016. He asserts that he stepped aside from acting as Administrator on being made aware of those orders.
    
71. It is alleged, firstly, that ‘supporters’ of Mr Akunai and, presumably, of Ms Soso Akeke, impeded the access of the appellant to his office so that he could resume duty. That there was violence and resistance to the entry of the appellant to his office is demonstrated by the evidence. What is not proven is whether those persons were acting pursuant to any encouragement from either Ms Soso Akeke or Mr Akunai. Neither is shown to have been present nor is there any evidence of their communication with the “supporters”.
    
72. The next accusation relied upon is that far from ‘stepping down’, Mr Akunai accompanied the Governor (Ms Soso Akeke) to a meeting of Provincial Leaders in Port Moresby on 16 February 2016. That, it was alleged, was in his capacity as Acting Provincial Administrator.
    
73. That, Mr Akunai denies. He said that, prior to 15 February 2016, as Acting Administrator, he planned to attend the meeting of 16 February 2016. He had prepared a report for presentation to the meeting should the opportunity arise.
    
74. He had travelled to Port Moresby, not as Acting Administrator, but to resolve his entitlements in respect of that office.
    
75. He acknowledges attending the meeting and being seated near the Governor as were provincial administrators for other provinces seated near their governors.
    
76. Mr Wilson, for Mr Akunai, submitted that that attendance did not amount to continuation in office as Acting Administrator nor did it evidence defiance of the orders of 15 February 2016.
    
77. We would respectfully concur with this submission. Certainly, Mr. Akunai’s presence with knowledge of his appointment as Acting Administrator and the absence of the appellant might reasonably appear to an observer to be asserting defiance of the orders of 15 February 2016. We cannot be satisfied that it unambiguously had that effect or that it was so intended.
    
78. The charge of contempt against Mr Akunai must be dismissed.
    

SECOND CONTEMNOR: HON JULIE SOSO AKEKE MP

79. The essence of the complaint against Ms Soso Akeke is, firstly, that she wrote and signed a letter of 16 February 2016 instructing the appellant to step down as Provincial Administrator.
    
80. Secondly, that she then recommended the appointment of Mr Alvin Inammoi as Acting Administrator.
    
81. There was also an allegation that she was present in court when the orders were made. She was certainly represented by counsel who clearly was present. The evidence of her presence was conflicting. She denied it on oath. That was not challenged. It cannot be found that she was then present.
    
82. However, as noted above, it is awareness of the substance of the orders that suffices to impose the obligation of obedience upon a person.
    
83. The very terms of the letter of 16 February 2016 evidence the fact that Ms Soso Akeke was well aware that the appellant had been restored to office by order of the Supreme Court. It is not believable, nor is it asserted, that counsel for Ms Soso Akeke did not tell her of the orders of the Chief Justice.
    
84. The appointment of Mr Inammoi was undoubtedly done with Ms Soso Akeke’s consent, if not urging.
    
85. As Cannings J noted in Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572 there is a positive duty on a person ordered to do or refrain from doing an act to avoid non-compliance.
    
86. It is apparent, beyond reasonable doubt, that, motivated no doubt by an understandable desire to avoid disorder in the administration of the Province, Ms Soso Akeke sought to frustrate the implementation of the orders of 15 February 2016.
    
87. Mr Waisi’s submissions in defence did not dispute the facts but offered the defence that the letter of 16 February 2016 was merely conveying the PEC decision of 29 January 2016. The delay between the two dates gives, in itself, the lie to this contention if it be to suggest that the timing of the letter was mere coincidence. The terms of the letter are coercive, not advisory.
    
88. This ground for a finding of contempt is made out.
    
89. The second aspect relates to the appointment of Mr Inammoi as Acting Administrator. This followed the decision of the Public Prosecutor to issue an ex officio indictment. If it was to be presented then it could reasonably be expected that the appellant would be suspended from office. Of course, that result required a variation to the orders of the Chief Justice but the making of an application for that purpose would not be inconsistent with the Chief Justice’s orders. The appointment of Mr Inammoi in that context would not be a breach of those orders. It could be seen as contingent upon the vacancy in office occurring.
    
90. It follows that it cannot be concluded with any certainty that the PEC resolution seeking Mr Inammoi’s appointment had the effect of conflicting with or purportedly nullifying the orders of 15 February 2016.
    
91. This ground for a finding of contempt is not made out.
    

THIRD CONTEMNOR: MR ALVIN INAMMOI

92. Mr Inammoi’s first involvement was to respond to an advertisement seeking expressions of interest for appointment as Acting Provincial Administrator. He was aware that the office was being offered in anticipation of a vacancy in the substantive office.
    
93. He was appointed on 1 April 2016, with effect from 29 March 2016. He attended the Provincial Administrator’s office but was informed by the appellant that he was still in office. He then desisted from attempting to take up the office. He was aware of the ex-officio indictment proposed by the Public Prosecutor.
    
94. As from 4 April 2016 Mr Inammoi was aware of the effect of the 15 February 2016 orders, though he may not have been aware of their precise terms. Nevertheless, he was bound to respect them. There is no evidence to support a finding that he incited any opposition to the appellant remaining in and performing the duties of his office. He has not been shown to have attempted to have asserted any overriding authority even if he believed he possessed it.
    
95. It follows that wilful disobedience of the orders of 15 February 2016 has not been established against Mr Inammoi.
    

FOURTH CONTEMNOR: MR JOHN KALI

96. Mr Kali is and was Secretary of the Department of Personnel Management. He does not dispute knowledge of the orders of 15 February 2016. His contempt is alleged to be constituted by two letters, the first of 8 March 2016, the second of 4 April 2016.
    
97. The first is addressed to the appellant and was in fact delivered to and received by him. It states:
    

I refer to the above matter and advise that my officers met with the Public Prosecutor on Tuesday 1 March 2016 at his office following our consultations to ascertain whether or not an ex-officio indictment would be issued to recommit you to stand trial on the charges dismissed by the District Court in Goroka. You will note that this was the reason why you were not readily allowed to resume office and you were aware of this. However you fought the State in the courts in order to resume office early and on the 15 February 2016 the Supreme Court did order that you be allowed to resume office. In so doing the Supreme Court also invalidated Mr. Akunai’s acting appoint which was to commence after his last acting period of 3 months lapsed on 11 February 2016. The Supreme Court made these orders without being made aware of the actions taken to ascertain the issue of an ex-officio indictment which was the reason for not allowing you to resume office as yet. The reason has now been justified by the Public Prosecutor.

At this meeting the Public Prosecutor advised that he had after requiring further information from the police, decided to issue the ex-officio indictment. He also briefed my officers on the process of issuing of an indictment in the criminal process. My officers explained the requirement for a provincial administrator to take leave of office when charged and whether the issuing of an ex-officio indictment should be treated differently. With his explanations it was ascertained that an indictment is as good as a charge if not more in that it commits a person to stand trial without the need for committal. This is because the committal court had not considered evidence against you in the way that the Public Prosecutor had done in order to arrive at the conclusion that there is a case to be tried at the National Court.

The Public Prosecutor further advised that by the end of the week or the beginning of the following week the indictment would be served by police on you. As you yourself argued previously the Regulation states that you may take voluntary leave but that is not to mean you can remain because the court later through Judge Kandakasi did order you to vacate office.

In order to respect the wishes of the State as translated through the Regulation it is therefore incumbent on all of us to do what is right and therefore I am writing to formally advise you of the position brought about by the issue of the ex-officio indictment. I am accordingly advising you to prepare to vacate office and allow the government to make an acting appointment as soon as you are served with the indictment.

98. Mr Kali acknowledges the authorship of this letter.
    
99. Whilst the heading refers to a “requirement” to take leave from office if charged with a crime the concluding paragraph advises the appellant, not that he is forthwith instructed to vacate his office but that Mr Kali was “advising” him to “prepare to vacate office and allow the government to make an acting appointment as soon as you are served with the indictment.”
    
100. The indictment has not been served, though an earlier attempt was made. Service has not been attempted subsequently, presumably because the Public Prosecutor now recognizes the need to obtain leave of the Supreme Court before doing so, in order to respect the interim orders of 15 February 2016.
     
101. A second letter to the appellant, dated 12 April 2016, discusses allegations of collusion raised by the appellant in a response to the letter of 8 March 2016. It is not alleged to evidence contempt of the relevant orders.
     
102. The letter to Mr Inammoi from Mr Kali of 4 April 2016 is relied upon. It is in the following terms:
     

I refer to the above and inform you that the Governor of Eastern Highlands has written to my office recommending your appointment as the new acting Provincial Administrator for EHP as a result of the ex-officio indictment issued to Mr Solomon Tato by the Public Prosecutor. See attached a copy of Gazette on your acting appointment.

I have written to Mr Tato on 8^th March 2016 instructing him to take leave of absence to pursue the criminal proceedings as per the indictment.

You will note that the Supreme Court on 12^th February 2016 has restored Mr Tato back in office as the Provincial Administrator, however the indictment issued by the Public Prosecutor has rendered him unfit to hold office, and therefore a need for a new acting appointment.

It is important that you get into office immediately and restore some confidence in the public servants in the EHP. Should you require further assistance, please do not hesitate to call my office on telephone numbers 327 6379, 327 6348 or 327 6327.

103. The letter does refer to an ‘instruction’ to the appellant to “take leave of absence”. However, the letter of 8 March 2016, so referred to, does not in fact amount to an instruction. The letter of 4 April 2016 is therefore capable of the interpretation that Mr Inammoi should prepare to take up an acting appointment as Administrator should the appellant take leave from or be stood down from office.
     
104. None of these letters, in our view, unambiguously constitutes a defiance, or the urging of a defiance, of the orders of 15 February 2016.
     
105. They do not preclude the making of an application, based on the new information as to a proposed indictment, to discharge or vary the interim orders of 15 February 2016. It is true, as the statement of charge asserts, that a person bound to respect a court order cannot regard themselves as absolved from obedience to it because of changed circumstances or other matters not relied upon when the orders were made that, in the view of a contemnor, might have resulted in a different outcome had the court been then aware of them. To reiterate, the correct course is for an application to be made to set aside or vary the orders if the assumptions upon which they were made appear to have become redundant.
     
106. Mr Monei for Mr Kali, made a submission that the appellant ‘had to take leave of office’ and that the original court order was ‘ambiguous’. He further submitted that Mr Kali was not a party to the appeal. For the reasons already stated these submissions must be rejected. However, it still is an issue as to whether the letters referred to, written by Mr Kali, constitute ‘wilful disobedience’ of the orders of 15 February 2016. For the reasons given, we are not satisfied that those letters do unambiguously amount to “wilful disobedience”.
     
107. The charge of contempt against Mr Kali cannot, accordingly, be sustained.
     

VERDICTS

108. The following verdicts are entered:
     

(1) Samson Akunai is not guilty of contempt of the order of 15 February 2016.

(2) The Honourable Julie Soso Akeke MP is convicted of contempt of the order of 15 February 2016 by signing for delivery to the appellant the letter of 16 February 2016.

(3) Alvin Inammoi is not guilty of contempt of the order of 15 February 2016.

(4) John Kali is not guilty of contempt of the order of 15 February 2016.

109. We will hear counsel on costs and the counsel for the Honourable Julie Soso Akeke MP on penalty.
     

Verdicts accordingly,
___________________________________________________________
Ashurst PNG: Lawyers for the applicant
Warner Shand Lawyers: Lawyers for the 1^st & 3^rd contemnors
Tony Waisi Lawyers: Lawyers for the 2^nd contemnor
Solicitor-General: Lawyer for the 4^th contemnor