Gumoi v Gorgum [2016] PGSC 39; SC1520 (28 July 2016)

SC1520

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 19 OF 2015

DR MODOWA TREVOR GUMOI
Appellant

V

GULL GORGUM
First Respondent

JOHN KALI,
SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT
Second Respondent

SIR PUKA TEMU, MINISTER FOR PUBLIC SERVICE & CHAIRMAN, MINISTERIAL EXECUTIVE APPOINTMENTS COMMITTEE
Third Respondent

NATIONAL EXECUTIVE COUNCIL
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

IN THE MATTER OF CHARGES OF CONTEMPT OF COURT

DR MODOWA TREVOR GUMOI
Applicant

V

GULL GORGUM
First Contemnor

JOHN KALI
Second Contemnor

SIR PUKA TEMU
Third Contemnor

Waigani: Cannings J, Kassman J, Murray J
2016: 30 June, 22, 28 July

CONTEMPT OF COURT – trial in Supreme Court – three parties to a Supreme Court appeal alleged to have committed contempt of court by disobeying two interim Court orders – elements of the offence of contempt of court by disobedience – whether any of the contemnors disobeyed Court orders.

This was a trial before the full court of the Supreme Court of contempt of court charges against three contemnors. They are respondents to a Supreme Court appeal. They were each charged with contempt by the appellant (the applicant), who alleged that they had each, by taking steps to have the first contemnor appointed as Acting Provincial Administrator, disobeyed two court orders that restrained his appointment: an interim order of the National Court of 7 May 2015 in the proceedings from which the appeal emanated and a stay order of the Supreme Court of 4 November 2015 made in the appeal proceedings. Each contemnor 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. The first contemnor argued, as a precursor to submissions on verdict, that the contempt charges were defective. The court heard all submissions and reserved a ruling on verdicts.

Held:

(1) The arguments about the charges being defective were made late. Such arguments 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) 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).

(3) There are five generally recognised types of contempt of court. The contemnors were charged with the fourth type, known as contempt by disobedience of a court order. Accordingly it was necessary for the prosecuting party, in this case the appellant, to prove beyond reasonable doubt the existence of the three elements of such a contempt: the order was clear and unambiguous; it was properly served or the contemnor was aware of the order; and there was a deliberate failure to comply with the court order.

(4) 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 either the National Court order of 7 May 2015 or the Supreme Court order of 4 November 2015 wilfully and deliberately.

(5) It was not proven beyond reasonable doubt that any of the contemnors breached either of the orders, let alone that they did so wilfully and deliberately.

(6) Each contemnor was found not guilty. The appellant was ordered to pay the costs of each contemnor.

Cases cited:

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
David Toll v The State (1989) SC378
Eremas Wartoto v The State (2013) SC1298
Kulunga v Vaki (20014) SC1389
Peter Luga v Richard Sikani (2002) N2285
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Solomon Tato v Samson Akunai (2016) SC1511
The State v Bond Nanal (2007) N5480
The State v Cain Wosae (2010) N3996

TRIAL

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

Counsel:

R Raka, for the Appellant/Applicant
L Tangua, for the first Contemnor
I Mugugia, for the second &third Contemnors

28^th July 2016

1. BY THE COURT: This was a trial before the full court of the Supreme Court of contempt of court charges against three contemnors:

• Gull Gorgum, first contemnor;
• John Kali, Secretary for Personnel Management, second contemnor; and
• Sir Puka Temu, Minister for Public Service, third contemnor.
  

2. Mr Gorgum, Mr Kali and Sir Puka 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. Under the adopted rule, the term “contemnor” means “a person guilty or alleged to be guilty of contempt of the Court”. Mr Gorgum, Mr Kali and Sir Puka are not referred to as ‘alleged contemnors’, which is incorrect terminology and should be avoided

3. The contemnors are respondents to a Supreme Court appeal, SCM 19 of 2015, in which the appellant, Dr Modowa Trevor Gumoi, appeals against an order of the National Court, constituted by Nablu AJ, as she then was, of 7 July 2015, refusing his application to refer constitutional questions to the Supreme Court.

4. Underlying the Supreme Court appeal, which has been heard but not yet determined, lies a complex set of National Court proceedings regarding a dispute about who should be appointed Provincial Administrator of Western Province. The main protagonists are Dr Gumoi (whose appointment is favoured by the Provincial Governor, Hon Ati Wabiro MP) and Mr Gorgum (whose appointment is generally favoured by the National Government). There has not been a substantive appointment to the office of Provincial Administrator of Western Province since 2012. Dr Gumoi was appointed Acting Provincial Administrator in January 2013 for an unspecified period. Mr Gorgum has been appointed Acting Provincial Administrator on at least three separate occasions in 2015 and 2016, but for no more than three months on each occasion.

5. Dr Gumoi has charged the contemnors with contempt of court. He alleges that they each, by taking steps to have Mr Gorgum appointed as Acting Provincial Administrator of Western Province, disobeyed two court orders that restrained his appointment:

• an interim order of the National Court (Nablu AJ) of 7 May 2015 in the proceedings, OS (JR) 240 of 2015, from which the appeal emanates; and
• a stay order of the Supreme Court (Kassman J) of 4 November 2015 made in the appeal proceedings.
  

6. Each contemnor 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. The first contemnor argued, as a precursor to submissions on verdict, that the contempt charges were defective. The court heard all submissions and reserved a ruling on verdicts.

7. The facts are largely uncontested, so we begin by making findings of fact. Then the charges are set out. The arguments about the defects in the charges are then dealt with and we explain why we find no merit in them. We then set out the elements of the charges, bearing in mind that the appellant has charged the contemnors with criminal offences, and bears the onus of proving the elements of the offences beyond reasonable doubt. Finally, we determine the verdict in respect of each of the contemnors.

FINDINGS OF FACT

January 2013

8. On 23 January 2013 the National Executive Council appointed Dr Gumoi Acting Provincial Administrator, with effect from 18 October 2012, for an unspecified period.

February 2015

9. On 23 February 2015 the National Executive Council appointed Mr Gorgum Acting Provincial Administrator for a period of three months.

March 2015

10. Dr Gumoi challenged Mr Gorgum’s appointment in National Court proceedings, OS (JR) 120 of 2015. On 13 March 2015 the National Court granted an interim order, restraining Mr Gorgum from taking office.

11. In the meantime, however, on 2 March 2015 the National Executive Council revoked the 23 February 2015 appointment and made a fresh appointment of Mr Gorgum, again for a period of three months.

May 2015

12. Dr Gumoi responded on 5 May 2015, by commencing fresh National Court proceedings, OS (JR) 240 of 2015, challenging the reappointment of Mr Gorgum.

13. On 7 May 2015 the National Court (Nablu AJ) granted an interim order, restraining Mr Gorgum from taking office. The order relevantly stated:

The Court orders that: ...

Interim restraining order pursuant to Order 1, Rule 7 of the National Court Rules, restraining the first defendant [Mr Gorgum] from taking office until leave [to apply for judicial review] is granted.

That is the order of the National Court that the contemnors have allegedly disobeyed.

June 2015

14. On 18 June 2015 the National Court (Nablu AJ) heard a motion by Dr Gumoi to have questions regarding the constitutionality of certain provisions of the Public Services (Management) Act 2014 and the Public Services (Management) (Appointment of Provincial Administrators) Regulation 2014 referred to the Supreme Court under Section 18(2) of the Constitution for determination.

July 2015

15. On 7 July 2015 the National Court (Nablu AJ) refused the application to refer constitutional questions to the Supreme Court.

16. On 30 July 2015 Dr Gumoi applied to the Supreme Court for leave to appeal against the National Court’s refusal to refer constitutional questions.

September 2015

17. On 22 September 2015 Kassman J, sitting as a single Judge of the Supreme Court, granted leave to appeal.

November 2015

18. On 4 November 2015 Kassman J, sitting as a single Judge of the Supreme Court, stayed the National Court proceedings before Nablu AJ, by an order, which relevantly states:

The Court orders that: ...

Pursuant to Section 19 of the Supreme Court Act Chapter 37 and Order 3, Rule 2(b) of the Supreme Court Rules 2012 that until the final hearing and determination of this appeal, or until further earlier order, that proceedings referenced as OS (JR) No 240 of 2015 is stayed.

That is the order of the Supreme Court that the contemnors have allegedly disobeyed.

April 2016

19. On 1 April 2016 the National Executive Council revoked all previous appointments of Acting Provincial Administrator and made a fresh appointment of Mr Gorgum as Acting Provincial Administrator, for a period of three months, commencing 4 April 2016.

20. Shortly after that fresh appointment Mr Gorgum commenced National Court proceedings, OS 202 of 2016, in which he named the Governor as first defendant and Dr Gumoi as second defendant, seeking orders to affirm his appointment and to restrain those defendants and others from interfering with his performance of the duties of Provincial Administrator.

21. On 13 April 2016 Koeget AJ, sitting at Kiunga, Western Province, granted interim orders, restraining those defendants and others from interfering with Mr Gorgum’s performance of the duties of Provincial Administrator.

22. 27 April 2016 the charges against the contemnors were filed.

May-July 2016

23. The charges were served on the contemnors in May and the contempt proceedings were fast-tracked. The matter came before us on 30 June, when the arraignment took place, with pleas of not guilty being entered for all contemnors. The evidence was received and the trial was adjourned to hear submissions. On 22 July 2016 we heard submissions and reserved judgment on the verdicts.

THE CHARGES

24. The gist of the charges is contained in paragraph 14 of the statement of charge, in which it is alleged that each contemnor is guilty of contemptuous conduct as particularised:

(1) Contempt by the first respondent [first contemnor, Mr Gorgum]

The first respondent at all material times was fully aware and familiar with the interim injunction dated 7 May 2015 in the National [Court] and the stay orders by Supreme Court and yet on 13 April 2016 at the National Court in Kiunga before Koeget AJ obtained ex parte interim orders which amongst other orders sought to set aside the interim restraining orders granted in proceedings OS (JR) No 120 of 2015 and OS (JR) No 240 of 2015 when such proceedings had no bearing and are unrelated to the unreferenced proceedings that the first respondent filed in Kiunga National Court and to give effect to his purported appointment.

(2) Contempt by the second respondent [second contemnor, Mr Kali]

The second respondent who is the Secretary for the Department of Personnel Management at all material times was fully aware and familiar with the interim injunction dated 7 May 2015 in the National [Court] and the stay orders by Supreme Court and despite the said orders undertook the process of the appointment of the first respondent as Acting Provincial Administrator despite being warned of the serious consequences of such actions by the Governor of Western Province through a letter dated 1 March 2016.

(3) Contempt by the third respondent [third contemnor, Sir Puka Temu]

The third respondent being the Minister for Public Service and Chairman of the Ministerial Executive Appointments Committee at all material times was fully aware and familiar with the interim injunction dated 7 May 2015 in the National [Court] and the stay orders by Supreme Court and notwithstanding the said orders recommended to the Head of State for purported appointment of the first respondent as Acting Provincial Administrator.

25. In summary, it is alleged that each of the contemnors disobeyed the National Court order of 7 May 2015 and the Supreme Court order of 4 November 2015, in that:

• the first contemnor, Mr Gorgum, “obtained” the order from Koeget AJ of 13 April 2016;
  
• the second contemnor, Mr Kali, “undertook” the process of Mr Gorgum’s appointment;
  
• the third contemnor, Sir Puka Temu, “recommended” Mr Gorgum’s appointment to the Head of State.
  

ALLEGED DEFECTS IN CHARGES

26. Counsel for Mr Gorgum, Mr Tangua, submitted at the beginning of his submissions on verdict that the charges were defective and should be dismissed and that his client should be acquitted. Three arguments were put to the Court:

1. The parties are incorrectly referred to as plaintiff and defendants in the application by which the contempt proceedings were instituted.
   
2. There is only one statement of charge, covering all contemnors, when there should be three, one for each contemnor.
   
3. The charge against Mr Gorgum is vague, ambiguous and confusing as it does not “plead” the particular order that Mr Gorgum is alleged to have violated.
   

27. Those were potentially significant arguments, which should have been made by way of a formal application before the contemnors were arraigned. Mr Tangua alluded to them orally at the time of arraignment. But that was not ideal. Directions could and should have been sought from the Court, well before the matter was set down for trial, as to how such arguments could be put, in a similar way that a demurrer can be taken to a criminal charge prior to arraignment (see Criminal Code, Section 567 and cases such as David Toll v The State (1989) SC378, Eremas Wartoto v The State (2013) SC1298, The State v Bond Nanal (2007) N5480).

28. 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 formally 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.

29. Mr Tangua’s arguments can be regarded as jurisdictional points, which in principle can be raised at any stage of the proceedings (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 and the argument being raised should almost be unarguable (Kulunga v Vaki (20014) SC1389, The State v Cain Weasel (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:

1. The initial misdescription of the parties as plaintiff and defendants is a minor error, which has been corrected by subsequent documentation.
   
2. There is no rule dictating that separate charges are required for each contemnor. None of the contemnors can reasonably complain that he has been prejudiced by having one statement of charge covering all of them.
   
3. The statement of charge is not a model of clarity and it has been drafted more like a pleading in a civil action than a charge in a criminal proceeding, which is not ideal. However it is not so vague and confusing as to prejudice the first contemnor, or the other contemnors for that matter.
   

In summary, the arguments that the charges are defective are dismissed. We will now determine the verdicts after setting out the elements of the charges.

ELEMENTS OF THE CHARGES

30. 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).

31. There are five generally recognised types of contempt of court, as set out by Sir Bernard Sakora in the leading case Peter Luga v Richard Sikani (2002) N2285:

• improper behaviour in a court room during a hearing; the “contempt in the face of the court” situation;
  
• endeavouring improperly to influence participants in proceedings;
  
• contempt by publication, notably publishing allegations that tend to undermine public confidence in the administration of justice; and publishing material which tend to prejudice the fair trial of a case;
  
• failure to comply with an order of the court or undertaking given to a court – the “disobedience contempt”; and
  
• other forms of interference with the administration of justice, including failing to carry out one’s duties as a court officer and taking reprisals on witnesses and court officials on account of what they have said or done in court.
  

32. The contemnors are charged with the fourth type, known as contempt by disobedience of a court order. Accordingly it is necessary, as explained in the recent case Solomon Tato v Samson Akunai (2016) SC1511 for the prosecuting party, in this case the appellant, to prove beyond reasonable doubt the existence of the three elements of such a contempt:

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

THE FIRST CONTEMNOR, MR GORGOM

33. The parties agree that Mr Gorgum was served with or at least was aware of the two orders that he allegedly disobeyed: the National Court injunction of 7 May 2015 and the Supreme Court stay order of 4 November 2015. So the second element of contempt is established. It is the first and third elements that are contentious. These elements need to be tested in relation to each of the two orders that Mr Gorgum is alleged to have breached, by “obtaining” the National Court in Kiunga on 13 April 2016.

34. As for the first order, the National Court order of 7 May 2015, it will be recalled that it states:

The Court orders that: ...

Interim restraining order pursuant to Order 1, Rule 7 of the National Court Rules, restraining the first defendant [Mr Gorgum] from taking office until leave [to apply for judicial review] is granted.

35. Mr Raka, counsel for Dr Gumoi, submitted that this order clearly and unambiguously restrained Mr Gorgum from taking office as Acting Provincial Administrator at any time until Dr Gumoi’s application for leave for judicial review is granted. He submitted that the effect of the order of 7 May 2015 was to allow Dr Gumoi to continue in office as Acting Provincial Administrator pursuant to his open-ended appointment of February 2013. It is argued that Mr Gorgum breached the order of 7 May 2015, in that he “obtained” the order in Kiunga on 13 April 2016, which set aside the order of 7 May 2015 and ordered that Mr Gorgum occupy the office of Acting Provincial Administrator, free of interference from the Governor and Dr Gumoi and others.

36. We reject that submission. The order of 7 May 2015 only restrained Mr Gorgum from taking office pursuant to the appointment (the one made in March 2015) that was being challenged in the judicial review proceedings in which the order was made, which was only a three-month appointment. It is arguable that the order extended further in time, and it is also arguable that the order had the effect of confirming that Dr Gumoi was the Acting Provincial Administrator pursuant to his open-ended appointment of February 2013. But it cannot be said that the order clearly and unambiguously had that effect. We uphold Mr Tangua’s submission that the allegedly contemptuous act in April 2016 of ‘obtaining’ the order in Kiunga was not in breach of the 7 May 2015 order.

37. As for the second order, the Supreme Court order of 4 November 2015, it will be recalled that it states:

The Court orders that: ...

Pursuant to Section 19 of the Supreme Court Act Chapter 37 and Order 3, Rule 2(b) of the Supreme Court Rules 2012 that until the final hearing and determination of this appeal, or until further earlier order, that proceedings referenced as OS (JR) No 240 of 2015 is stayed.

38. Mr Raka submitted that this order clearly and unambiguously stayed the order of the National Court appealed from (the order of 7 July 2015, refusing the application to refer constitutional questions to the Supreme Court), leaving intact the order of 7 May 2015, which restrained Mr Gorgum from taking office as Acting Provincial Administrator at any time until Dr Gumoi’s application for leave for judicial review is granted and allowed Dr Gumoi to continue as Acting Provincial Administrator. Mr Raka submitted that Mr Gorgum breached that order when he “obtained” the order in Kiunga on 13 April 2016, which set aside the order of 7 May 2015 and ordered that Mr Gorgum occupy the office of Acting Provincial Administrator, free of interference from the Governor and Dr Gumoi and others.

39. We reject that submission. The Supreme Court order of 4 November 2015 simply stayed the National Court proceedings, OS (JR) No 240 of 2015. It was simply ordering that no steps be taken by any of the parties in those proceedings until the Supreme Court appeal was heard and determined. It was not expressed to stay or affirm any orders of the National Court. It was certainly not restraining Mr Gorgum taking steps in any other proceedings, such as those he commenced that led to him ‘obtaining’ the National Court order at Kiunga on 13 April 2016.

40. We find that Mr Gorgum did not breach either the National Court order of 7 May 2015 or the Supreme Court order of 4 November 2015. He is found not guilty.

THE SECOND CONTEMNOR, MR KALI

41. Mr Kali’s allegedly contemptuous act was that he “undertook” the process of Mr Gorgum’s appointment. It is alleged that, by initiating the appointment process and favouring Mr Gorgum’s appointment, he breached the National Court order of 7 May 2015 and the Supreme Court order of 4 November 2015.

42. We uphold the submission of Ms Mugugia, counsel for Mr Kali, that the National Court order of 7 May 2015 only restrained Mr Gorgum from taking office pursuant to the appointment (the one made in March 2015) that was being challenged in the judicial review proceedings in which the order was made, which was only a three-month appointment. Mr Kali did not breach that order by ‘undertaking’ Mr Gorgum’s reappointment in early 2016 or at any other time.

43. As for Mr Kali’s alleged breach of the Supreme Court order of 4 November 2015, we find, for the reasons set out above in relation to Mr Gorgum’s alleged breach of that order, that nothing he did to institute or undertake Mr Gorgum’s reappointment was contrary to the Supreme Court order.

44. We find that Mr Kali did not breach either the National Court order of 7 May 2015 or the Supreme Court order of 4 November 2015. He is found not guilty.

THE THIRD CONTEMNOR, SIR PUKA TEMU

45. Sir Puka’s allegedly contemptuous act was that he “recommended” Mr Gorgum’s appointment. It is alleged that, by recommending Mr Gorgum’s appointment to the National Executive Council, he breached the National Court order of 7 May 2015 and the Supreme Court order of 4 November 2015.

46. We uphold the submission of Ms Mugugia, counsel for Sir Puka, that the National Court order of 7 May 2015 only restrained Mr Gorgum from taking office pursuant to the appointment (the one made in March 2015) that was being challenged in the judicial review proceedings in which the order was made, which was only a three-month appointment. Sir Puka did not breach that order by ‘recommending’ Mr Gorgum’s reappointment in early 2016 or at any other time.

47. As for Sir Puka‘s alleged breach of the Supreme Court order of 4 November 2015, we find, for the reasons set out above in relation to Mr Gorgum’s alleged breach of that order, that nothing he did to recommend Mr Gorgum’s reappointment was contrary to the Supreme Court order.

48. We find that Sir Puka did not breach either the National Court order of 7 May 2015 or the Supreme Court order of 4 November 2015. He is found not guilty.

CONCLUSION

49. Each of the contemnors has been found not guilty. Costs will follow the event.

ORDER

(1) The contemnors are each found not guilty of contempt of court.

(2) The appellant shall pay each contemnor’s costs of the contempt proceedings on a party-party basis, which shall, if not agreed, be taxed.

Verdicts accordingly,
__________________________________________________________________
Posman Kua Aisi Lawyers : Lawyers for the appellant/applicant
Baniyamai Lawyers : Lawyers for the first contemnor
Solicitor-General : Lawyer for the second & third contemnors