Ombudsman v Leymang [1997] VUSC 29; Civil Case 003 of 1997 (25 August 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 3 OF 1997

ALIGN="CENTER">IER">IN THE MATTER:
of an Application by the Ombudsman for an Order for Committal:
Cpt in connection with refusal to answer question under oath
in view of the Court. urt. [i.e. contempts in the face of the Court].

BETWEEN:

THE OMBUDSMAN
Plaintiff

AND:

Fr. GERARD LEYMANG
of Port-Vila
Respondent

RER">REASONS FOR COMMITTAL ORDER
DATED 19 AUGUST, 1997

This is a committal procg. The Ombudsman of the Republic applies to have the Respondent Mr Gerard Leymang comm committed to prison. The reason being that, without lawful excuse, Mr Leymang, in view of the Court, refused to answer questions despite knowing the answer to the question put to him on examination under oath.

In order to understand the present proceedings, it is of some importance to have some background information about Civil Case No. 139 of 1996 in which, the Plaintiff (Mr Gerard Leymang) filed a writ of Summons against the Defendant/Ombudsman seeking for various constitutional declarations from this Court.

To some extent, civil Case No. 139 of 1996 is related to Civil Case No. 3 of 1997 (subject of the present committal proceedings).

I. PROCEEDINGS IN CIVIL CASE NO. 139 OF 1996 - BETWEEN Fr GERARD LEYMANG (PLAINTIFF) AND THE OMBUDSMAN (RESPONDENT)

On 15 October 1996, Mr Leymang refused to answer questions put to him under oath in an investigation conducted by the Ombudsman pursuant to Article 62 of the Constitution and Section 17 (1) (2) (3) of the Ombudsman’s Act No. 14 of 1995.

On 21 October, 1996 Mr Leymang files Civil Case No. 139 of 1996 against the Ombudsman.

On 31 October, 1996 the Ombudsman advises Leymang to serve Ombudsman personally.

On 6 November, 1996 Leymang files an interlocutory application and on the same month of November 1996, he reserves proceedings and interlocutory application.

On 12 December 1996, the Ombudsman files a memorandum of appearance.

On 20 December, 1996 the Ombudsman files directions application including request for amending the pleadings and on 24 January, 1997 the Defendant/Ombudsman advises Leymang of the hearing date of the Application of directions (10.02.1997).

On 29 January, 1997 the Court on its own motion adjourns all matters to 17 March, 1997 at 9.00am. But arrangements were made so that the matters were put before the Court earlier on 6 March 1997.

On 6 March 1997, the Ombudsman suggested to Mr Leymang to get legal assistance from Public Solicitor to draft his pleadings.

On 17 March, 1997 at 9.00am o’clock, Mr Leymang does not attend the Court, the Court adjourns to 2.00pm in the afternoon.

At 2.00pm [on 17.03.97] Mr Leymang attends the Court and says that he wants Mr Anatole Hymak as his lawyer, but Mr Hymak is still awaiting Vanuatu Law Council approval. (Since Mr Hymak is not yet admitted to practise in this jurisdiction.)

Mr Leymang was then directed by this Court to:

1. Obtain a lawyer, i.e. see Public Solicitor;

2. File and serve amended pleading;

3. Before next call, 22.04.97.

On 22 April, 1997 Mr Leymang advises the Court that:

1. He has not seen a lawyer nor Public Solicitor; and

2. He has not prepared amended pleadings.

Mr Leymang was then ordered by this Court as follows:

1. Leymang to obtain a lawyer;

2. Leymang to file and serve amended pleading by 14 May 1997;

3. Ombudsman to file Statement of defence by 28 May 1997;

4. Matter to be recalled on 22 June 1997.

On 14 May 1997, no amended pleading nor thereafter to date.

On 16 June 1997 Mr Leymang asks the Ombudsman’s consent for further adjournment.

On 17 June 1997 the Ombudsman advises will oppose any further adjournment.

On 20 June 1997 Fr Leymang advised the Court he wanted to be represented by one Mr Roger de Robillard.

The Court then adjourns the matter for Mr Leymang to contact his lawyer Mr de Robillard overseas and to advise the Court accordingly on 23 June 1997.

On 23 June 1997, the Court adjourns the matter to 27 June 1997 for introductory decision. No decision was given until 7th July 1997.

On 7 July 1997, the Court issues the Orders to the following effect:

1. The application for further adjournment by Fr Leymang is granted and Civil Case No. 139 of 1996 is adjourned to 21 July 1997 at 9.00am o’clock under the following conditions:

a) If the Plaintiff/Fr Gerard Leymang wishes to have a foreign legal Counsel including Mr Roger de Robillard to represent him in this Civil Case No. 139 of 1996, he should have been informed that the Foreign Counsel concerned must get a Temporary Practising Certificate granted to him/her to appear for that specific Case No. 139 of 1996 under Section 13 of the Legal Practitioner’s Act CAP 119 (as amended).

b) By 21st July 1997, Fr Leymang has to comply with point 2 of the Orders issued by this Court on 22 April 1997. If he fails to do so as ordered, then Civil Case No. 139 of 1996 be struck out forthwith.

2. That other points raised by Fr Leymang are irrelevant at this stage of the proceedings and ought not to be considered by this Court at this stage.

3. That the costs of this application be paid by the Plaintiff/Mr Leymang and be taxed failing agreement.

On 21 July 1997, the Plaintiff files an application for leave to appeal the interlocutory judgment dated 7 July 1997.

This Court refuses that application for leave on the basis that the grounds in support thereof are irrelevant indeed.

II - PROCEEDINGS IN CIVIL CASE No. 3 OF 1996 BETWEEN THE OMBUDSMAN (APPLICANT) AND GERARD LEYMANG (RESPONDENT)

On 21 July 1997, this Court proceeds to hear application for the Ombudsman under Section 17(7) of the Ombudsman Act No. 14 of 1995 for the Respondent Leymang to be examined before the Court and having considered the Affidavits of Marie Noelle Ferrieux Patterson and Peter Bong, both dated 29 January, 1997 in support thereof, this Court Orders the Respondent Gerard Leymang to attend the Supreme Court at Port-Vila to be examined by the Ombudsman, through Counsel, on 21 July 1997 at 2.00pm in the afternoon.

At 2.10pm on 21 July 1997, witness Leymang is present in Court. Mr Crossland and Mrs Heather Lini Leo represent the Ombudsman of the Republic. Mrs Heather Lini Leo conducted the examination of witness Leymang.

It is to be understood and be reminded that the Respondent Mr Leymang was a witness under examination before the Supreme Court pursuant to an Order of the Supreme Court given on the morning of 21 July 1997 under Section 17(7) of the Ombudsman Act. The Ombudsman’s application had been necessitated as a result of Mr Leymang’s earlier refusal on 15 October 1996 to answer questions put to him, under oath in an investigation conducted by the Ombudsman pursuant to Article 62 of the Constitution. It transpires from the record in Court that a former resident in this Republic, Mr X , subsequently complained to the Ombudsman and it was in the course of her inquiries that the Ombudsman sought information from Mr Leymang.

The examination of Mr Leymang as a witness before this Court was conducted on 21 and 22 July 1997. The questioning of Mr Leymang both before the Ombudsman (and through follow up correspondence) and subsequently in the Court focused on one topic: The names of the people Mr Leymang had said had allegedly complained to him.

On 21 and 22 July 1997 Mr Leymang despite knowing the answer to the question, refused to disclose all the names of the people he alleged has complained about the activities of an expatriate resident, Mr X, whose residency permit was not renewed.

How then contempt arises in these proceedings before the Court. On 21 and 22 July 1997?

The following extract of the transcript of the hearing of 21 and 22 July 1997 will provide further details of the contempt.

The said transcript are also treated as part of this judgment.

A - Examination of Mr Leymang pursuant to Court Order issued under Section 17(7) of the Ombudsman’s Act
Hearing of 21 July 1997

150 KC Thank you your Honour. Mifala, Mr Crossland mo colleague blong mi, Mrs Lini-Leo oli appear long behalf blong Ombujman. Application ia, purpose blong hearing emi examine Mr Leymang emi present long Kot. Mrs Lini-Leo afta Madam Registrar is swerem in witness Mrs Lini-Leo emi conductem examination blong witness ia.

151 GL [oath taken].

152 Lunabek J Yes Mrs Lini-Leo.

153 HLL Thank you your Honour. Samting baambae mi talem Mr Gerard Leymang emi wan leta ia. Leta bae mi givim long yu bae lukluk long em. Yu luk save leta ia?

154 GL Yes sure.

206 HLL Yu save talem nem blong olgeta?

207 GL Again mi no save.

208 HLL You Honour, at this stage, yumi luk olsem se Mr Leymang emi stap long wan contempt blong Kot from emi refuse blong ansarem ol questions we mifala I putum and emi nao olsem part blong ol kes ia I kam tru long Kot of Appeal judgment long kes blong De Robillard, mi askem blong yu consider blong adjournem kasim long 24 hours olsem, blong hem, emi tingting long saed ia lond side blong contempt blong Kot and at the same taem tu bambae mi mi risivim instruction long client blong mi, long Ombujman olsem wanem nao lukluk blong em, instruction long saed committal long saed blong proceeding for contempt of Kot.

209 Lunabek J Bifo mi mekem anything mi wandem sapos wan long yutufala lawyers istanap and then just blong assistem this Kot, blong mekem samting emi smouth blong explenem, probably this man emi no andastanem wanem nao really emi happen sapos emi stap refuse and then emi thing se emi refuse nomo olsem. Be emi no luk save oli gat implications blong em, legal implications, so mi interupetem nao ikam so that yutufala lawyer I explainem taem wan witness emi swear mekem Oath, then sapos emi transpire se deliberately blong no wandem ansarem questins, what is the consequence? That is to say bae yumi kam long saed blong contempt issue be mi wandem yufala I explain so that emi aware sapos I gat any adjournment that emi aware in the first place.

After Mrs Heather Leo Lini assisted the Court by explaining to witness Leymang the position he was now in by refusing to answer questions pursuant to an Order of the court under Section 17(7) of the Ombudsman’s Act which amounts to a contempt in the face of the Court, the matter was adjourned till the following day - (22 July 1997 at 2.00pm in the afternoon). The adjournment of 24 hours was made to keep in line with the words of wisdom from the Court of Appeal decision in de Robillard (unrep., Civil Appeal 1 of 1997, June 1997, Robertson, Los K. and Mataskelekele JJ) who at page 37 echoed the earlier Counsel of Lauton LJ in Moran (1985) 81 Cr Appeal Rep. 51 at 53 who suggested that time be given overnight (with fresh and second thoughts).

B - Examination of Leymang (continued)
Hearing of 22 July 1997

249 HLL Yumi go ahed olsem, yumi kam bak, yumi long Oath we yumi tekem long yesterday. Bambae mi askem yu samfala question ia we mi bin askem long yu yesterday, yu talem se yu yu save nems blong olgeta we oli complen lon yu, mo yu bin talem tu se yu no wandem talem blong olgeta from lon lukluk blong yu from bae yu betrayem olgeta, be yu putum President nems blong olgeta man we oli givim information long yu long saed blong Kleckham?

250 GL Bambae mi, mi no ansa long question ia. Mi mekem objection. From nao mi mekem objection long any question long any question we bae yufala I askem long mi ale mi sikim wan more legal advice about objection we yu putum this afternun Mr President mi putum objection long any question we I kam long mi naoia this aafternum until mi sikim wan gud legal advice.

251 HLL Emia yu ......... bakegen se any question we bambae mifala I putum long afternun ia bae yu no save ansarem?

252 GL Mi ripitim bakegen. Mi talem stret nomo mi no refuse mi putum objection. Je mets objection, je fais objection jusqu’a nouvel ordre de conseiller legal. Je fais objection, questions qui me seront posees Mr Le President. Mi putum objection long any questions long this afternoon until mi kasim wan gud legal advice.

................

On 22 July, 1997 the transcript shows that Mr Leymang changed his tack and he said that he was not refusing to answer but he was "objecting" to the question.

Under such circumstances, the matter was adjourned to 29 July 1997 at 9.00am o’clock. During that period of adjournment, this Court ordered and directed that:-

(1) Mr Leymang is given further time to seek legal advice,

(2) A complaint be referred to the Public Prosecutor for the Contempt of Court under Section 82(1)(b) of the Penal Code Act; and

(3) the Ombudsman is directed to prepare the Committal Proceedings under Section 82(3) of the Penal Code. [CAP 135].

On 29 July 1997, due to heavy schedule of the Court, the matter was then adjourned to 18 August, 1997.

III - HEARING OF 18 AUGUST 1997 - COMMITTAL PROCEEDINGS IN CIVIL CASE NO. 3 OF 1997

On 18 August 1997 a Notice of Motion supported by an Affidavit of Mrs Heather Lini Leo was put before this Court. Both were dated and filed 28 July 1997.

The Applicant/Ombudsman seeks for the following Orders:

1) That the Respondent, Gerard Leymang be committed to prison.

2) Costs and incidental to this application be paid by the Respondent to the Applicant.

3) Any other Orders the Court thinks fit to make.

The Motion was issued on the grounds that:

1) The Respondent Leymang on 21 and 22 July 1997 refused to answer to a question under oath in judicial proceedings, even though he told the Court, he knew the answer to the question put to him; and

2) Grounds as contained in Mrs Heather Lini Leo’s Affidavit in support thereof.

The Committal Application was issued under Section 23 of the Courts Act [CAP 122], Section 82(3) of the Penal Code Act [CAP 135], and pursuant to the inherent powers of the Supreme Court and pursuant to Order 55, r.1 of the High Court (Civil Procedure) Rules, 1964.

On 18 August , 1997 Mr Raymond Hopi from the Ombudsman’s Office was in Court to translate to Witness Leymang. Under the guidance set forth under Civil Committal proceedings and in particular under the judgment of the Court of Appeal in Re de Robillard’s case, Mr Leymang was asked to cross-examine Mrs Heather Lini Leo on her Affidavit of 28 July 1997.

Mr Leymang said to the effect he has no question to ask to Mrs Heather Lini Leo.

It is further ruled by this Court on that date [18.08.97] that the Committal Proceedings be heard in public save that the name of the person referred to in the Ombudsman enquiry must not be revealed at any stage by any member of the public in Court or outside the Court or not to be revealed by any newspaper or radio broadcasting until released by the Ombudsman in her report.

Mr Leymang was in Court on 18 August, 1997 without a lawyer. Since the beginning of these proceedings until the committal stage, he was encouraged to get legal advice. Today he advised the Court that his position remain the same: he has no confidence in local lawyers. He confirms to the Court that Mr R. de Robillard is his lawyer and witness Leymang got legal advice from him. Mr Leymang did not either bring any document with him in Court. Mr Crossland indicates to the Court that on 29 July 1997 Mr Leymang was personally served with the Notice of Motion related to Committal Proceedings together with the supporting Affidavit of Mrs Heather Lini Leo, by an officer of the Ombudsman’s Office. Mr Leymang did not deny that.

A short adjournment was sought by MR Crossland to allow Mr Leymang to get from his home his papers back in Court. Mr Leymang refused to have a short adjournment. So the Court proceeded with the Committal hearing.

CONTEMPT OF COURT - PRINCIPLES

The law on contempt of Court was developed by the Judges as a means whereby the Courts may prevent or punish conduct that tends to obstruct, prejudice or abuse the administration of justice, whether in a particular case or generally [see report of the Phillimore Committee on Contempt of Court, 1974, p.2-cited by E.C.S. Wade and A W Bradley in Constitutional and Administrative Law. Tenth edition 1985 - p 342].

The learned authors further say that this branch of the law operates in the interests of all who take part in Court proceedings, as judges, counsel, parties or witnesses. But it also imposes restraints upon many persons, particularly on the press, whose freedom to report news about the administration of justice is sometimes severely limited by the law of contempt. (at p.342)

It should be noted that there are two broad categories of contempt - Civil contempt and criminal contempt.

Civil Contempt

Civil Contempt may take two forms. Civil contempt is the failure to obey the order of a Superior Court of record which prescribes certain conduct upon a party to a civil action. A Civil Judge has power to commit to prison anyone who disregards an order addressed to him. In this way, decrees of specific performance and injunctions, as well as the Writ of Habeas Corpus and other judicial orders, may be enforced by the High Court. Where a Civil Contempt is committed, the Court may commit the wrongdoer to prison for a fixed period, may fine him or may order his property to be sequestrated.

[An example of Civil Contempt of Court - Re de Robillard, Civ. App. No. 1 of 1997].

Criminal Contempt

Criminal Contempt may be described as conduct which is calculated to interfere with the due administration of justice or to bring the Courts into disrepute gives rise to proceedings which are in the nature of criminal proceedings, although both Civil and Criminal Courts may exercise the jurisdiction. Criminal Contempt may take various forms, including:

1) Contempt in the face of the Court;

2) Publications prejudicial to a fair criminal trial;

3) Publications prejudicial to civil proceedings;

4) Scandalising the Courts; and

5) Other acts which interfere with the course of justice.

[This classification derives from G. Borrie & N. Lowe the law of contempt - cited by A.W. Bradley in Constitutional and Administrative Law (1985) - referred to above (at p.343)]

For the purpose of this case, I will limit myself here to contempt in the face of the Court.

CONTEMPT IN THE FACE OF THE COURT

All Superior Courts have power to punish summarily by fine or imprisonment violence committed or threats uttered in face of the Court. Thus, the judge may punish an attack on himself or anyone in Court, or restrain the use of threatening words or scurrilous abuse. The issue whether an act constitutes a contempt is for the judge alone. If the Act is committed in his Court, he is in a sense prosecutor, chief witness, judge and jury.

In Morris v. Crown Office [(1970) 2 Q.B. 114], a group of students demonstrated in support of the Welsh language by interrupting a sitting of the High Court in London, where they sang, shouted slogans and scattered pamphlets. After order was restored, the trial judge sentenced some of the students to prison for three months and fined others $50 each.

On Appeal, the Court of Appeal, Civil Division, held that a High Court Judge still had power at Common Law to commit instantly to prison for Criminal Contempt; and that the requirement under the Criminal Justice Act 1967 that prison sentences under six months be suspended did not apply to Committal for Contempt. The Court did not consider the prison sentences to be excessive, but, having regard to all the circumstances, allowed the appeal against sentence and bound over the appellants to be of good behaviour for one year.

Contempt in the face of the Court includes also insulting behaviour, disregard of a judge’s ruling and refusal by a witness to give evidence or to answer questions which is required to answer.

This is quite clearly the situation in the Civil Case No. 3 of 1997 in which Witness Leymang refuses to answer questions put to him by the Ombudsman’s Counsel while he was in court and under oath.

In the English case of Attorney General -v- Mulholland and Foster [(1963)2 Q.B. 477], two journalists refused to disclose their sources of information to a Tribunal of inquiry appointed after an Admiralty Clerk, Vassall, had been convicted of espionage. The tribunal had by statute the powers of the High Court, to whom the tribunal had reported the journalists, it was held that journalists had no legal privilege to refuse to disclose sources of information given to them in confidence, where the information was relevant and necessary to the trial or inquiry.

Committal Proceedings under Western Pacific High Court (Civil Procedure) Rules of 1964

Mr Crossland, rightly, pointed out that, in Vanuatu, the Western Pacific High Court (Civil Procedure) Rules of 1964, do not explicitly cover the situation of committal proceedings, in terms of procedure to be adopted, and also as to whether the Supreme Court and the Judges of the Supreme Court of the Republic have a Common Law right to use the contempt proceedings on their own motion.

Mr Crossland refers the Court to Order 71 [Saving Provisions] of W.P.H.C. Rules of the "Blue Book" of 1964 which reads:

"Where no provision is made by the Rules, the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the High Court of the Western Pacific."

In order to have a clear idea about the extent to which Order 71 of the WPHC Rules of the "Blue Book" of 1964 can be applied, it is of a vital importance to have some historical background information.[to the extent of their relevancy].

Interestingly reference should be made to the Western Pacific (Courts) Order in Council, 1961 No. 1506 [see Statutory Instruments, 1961 No. 1506, Pacific Islands, S.I. 1961/1506 (3067)] Section 3 (of Part II) of this Order in Council, 1961 No. 1506 provides that:-

"... the High Commissioner’s Court constituted by the Principal Order shall be reconstituted in accordance with the provisions of this Order and shall be styled the High Court of the Western Pacific and, as heretofore, shall be superior court of record."

["The principal Order" means Order in Council, 1893 (a) (as amended)].

Section 10 of the said Order in Council, 1961 says:-

"The High Court and all Judges thereof shall have in all respects the same powers in relation to contempt of Court, ... , by the law of England, as for the time being had ... by the Supreme Court of Judicature in England or the judges or corresponding officers thereof."

But more importantly then, it is section 15 of the said Order in Council, 1961 which deals with the "Application of law of England" in the New Hebrides. Section 15 of this Order in Council provides:-

S15

"(1) ... the civil and criminal jurisdiction of the High Court shall, So far as circumstances admit be exercised upon the principles of and in conformity with:-

(a) the statutes of general application in force in England on the 1st day of January 1961, and

(b) the substance of the English Common Law and doctrines of equity and with the powers vested in and according to the course of procedure and practice observed by and before the Courts of Justice in England according to their respective jurisdictions and authorities:

Provided that the said Common Law, doctrines of Equity and Statutes of general application shall be in force so far as only as the circumstances of any particular territory and its inhabitants and the limits of her Majesty’s jurisdiction permit and subject to such qualifications as local circumstances render necessary.

(2) ......

(3) For the purposes of facilitating the application of any statute, Common law or doctrine of equity under the provisions of subsection (1) of this section, any provision may be construed or used with such alterations and adaptations as may be necessary, and anything required to be done by or in relation to any Court, Judge, Officer or authority, may be done by or in relation to the High Court, or a Judge, Officer or authority having the like or analogous functions or by any officer designated ... by the High Court ... for that purpose ... and in case any difficulty occurs in such application, a secretary of state may direct by, and to whom, and in what manner anything is to be done, and such statute, common law or doctrine of equity shall be construed or applied accordingly."

This Order in Council, 1961 No. 1506 was reconfirmed by other Orders prior to 1980.

In that regard, a High Court for the New Hebrides, which was a superior Court of record, had been established: [see Section 3 of the New Hebrides order 1975 No. 1514 which amended Schedule 1 to the New Hebrides Order 1973 by inserting a New Section 12A].

And again, more importantly, Section 11 of the New Hebrides Order 1975 No. 1514 provides the following:-

Section 11 "(1) ...

(a) the High Court and all judges thereof shall have the like jurisdiction as the former High Court and the judges thereof would have had in and in relation to the New Hebrides as if this Order had not been made, and shall exercise that jurisdiction as if subsections (1) and (3) of Section 15 of the Order of 1961 were still in force and as if references in those subsections to the Order of 1961, to the former High Court ... were references to this Court and to the New Hebrides respectively;..."

And Section 3 of the High Court of the New Hebrides Regulation 1976 [Q.R. No. 2 of 1976] provides that:-

"Subject to any Regulation in force in the New Hebrides, the civil and criminal jurisdiction of the High Court shall, so far as circumstances admit, be exercised in accordance with the statute of general application in force in England on the 1st day of January, 1976 and the provisions of paragraphs (a) of subsection 1 of section 11 of the Order shall be read and construed accordingly".

And "the Order" means the New Hebrides Order 1975 No. 1514.

It is to be observed that since the coming into force of the W.P.H.C. (Civil Procedure) Rules of 1964, there are different Court procedures, practices and forms in force in the High Court of Justice in England and in particular since the original policy laid down in 1967, at the time of the change from the Annual Practice to the Supreme Court Practice. [For further information see Preface to the Fifth Edition "the Supreme Court Practice 1979" (English)].

Furthermore, on 30 July 1980, Vanuatu became an Independent and Sovereign Republic.

Having so observed, the question that comes immediately to my mind is this:

Can 1980 Volumes and Volumes of the subsequent years containing procedures, practices and forms in force in the High Court of Justice in England be and are relevantly and validly applied in the Supreme Court of Vanuatu today?

It must be remembered that the legal system of Vanuatu is derived from:

· Since 1980, the Constitution and the Statutes of the Parliament of Vanuatu. [Art. 2 & 16 of the Constitution].

All Joint Regulations and subsidiary legislation made thereunder in force immediately before the Day of Independence in 1980 [Art. 95(1) of the Constitution].

The Customary Law of the people of Vanuatu [See Art. 95(3) of the Constitution] and in particular, custom in relation to the ownership and use of land and to institutions and procedures for resolving disputes concerning customary ownership of land [Art. 73-74-75-78 & 79 of the Constitution].

Substantial Justice, which shall apply whenever possible, in conformity with custom, if there is no rule of law applicable to a matter [constitution, Art. 47].

The British and French laws as applied to, or made for, the Condominium of New-Hebrides prior to 1980, to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and whenever possible taking due account of custom [Constitution, Art. 95(2)].

Apart from French Laws which are not of our concern in this case, it is to be understood that under Article 95(2) of the Constitution, British laws shall include statutes of general application in force in England on the 1st day of January 1961 and those in force in England on the 1st day of January 1976 as well as the principles of Common Law and Equity... in so far as circumstances admit.

Fundamentally, thus, subject to qualifications contained in Article 95(2) of the Constitution, the British laws that are applied and continue to apply in Vanuatu (after 1980), are English laws as applied to the Condominium of New Hebrides prior to 1980; or those made for the Condominium of New Hebrides prior to 1980.

Therefore, by considering and applying Article 95(2) of the Constitution, together with Order in Council, 1961 No. 1506 [Section 15(1) (a) (b), (3)] and the New Hebrides Order 1975 No. 1514 [Section 11(1) (a)] and the High Court of the New Hebrides Regulation 1976 [section 3], I am of the opinion that 1980 volumes and volumes of the subsequent years containing procedures, practices and forms in force in the High Court of Justice in England, are not relevant and cannot validly and/or legally applied in the Supreme Court of the Republic of Vanuatu and I so hold.

The relevant volumes containing procedures, practice and forms in force in the High Court of Justice in England which can be relevantly and validly referred to and applied before the Supreme Court of this Republic, on the basis of Order 71 of the Western Pacific High Court [Civil Procedure] Rules 1964 of the "Blue Book" are those from 1961 to 1976 and to some extent "The Supreme Court Practice (English) of 1979" and I so rule.

Exercise of Summary Jurisdiction for Contempt by the Court on its own Motion

In this case, I am, therefore, satisfied that the procedure adopted in the Committal proceedings comply with the relevant provisions within the Rules of the Supreme Court 1965 (Order 52) or the Supreme Court Practice (Order 52) 1976 or the Supreme Court Practice 1979 (0.52) via reference made under Order 71 of the W.P.H.C. (Civil Procedure)Rules of 1964 in the "Blue Book". On that basis I am further satisfied that this Court has the common Law right of contempt and has the power to make an order of Committal of its own motion against a person guilty of contempt of Court. This is supported further under section 29(1) of the Courts Act [CAP 122] which says:

"Subject to the Constitution, any written law and the limits of its jurisdiction a Court shall have such inherent powers as shall be necessary for it to carry out its function."

And a "Court" pursuant to the Interpretation Act [CAP 132] means a Court of competent jurisdiction whether provided for under the Constitution or any law. The Supreme Court has unlimited jurisdiction to hear and determine any Civil or criminal proceedings, and such other jurisdiction and powers as may be conferred on it by the Constitution or by law.[Constitution Art. 49(1)].

Under Section 23 of the Courts Act [CAP 122] the Supreme Court has power to punish summarily for contempt of Court, by imprisonment for a term not exceeding 1 year, or, at the discretion of the Court, a fine.

In this case, the Court has all the powers to deal directly with witness Leymang under Section 82(1)(b) of the Penal Code Act for contempt in the face of the Court.

However, I decided to proceed another way by lodging a criminal complaint to the Public Prosecutor so that charges be properly laid against Mr Leymang under Section 82 (1)(b) of the Penal Code. The reason being that witness/Accused be given all the opportunity he needs to get legal advice and to prepare his defence as a fundamental part of process considerations.

In the Committal proceedings, the Court obtained assistance from the Ombudsman’s Counsel by proceeded by way of Committal supported by an Affidavit from the examining Counsel, Mrs Lini-Leo. In addition, the cassettes recording the examination were transcribed at the expenses of the Ombudsman’s Office.

I do agree with Mr Crossland’s submissions that by going that far, the Ombudsman has done more than is necessary to meet the requirements for Civil Contempt granted in de Robillard’s case.

In this case, Mr Leymang:

(a) has had the opportunity to obtain legal advice and arrange for the calling of evidence (at p.37);

(b) has the opportunity to answer the charges against him (at p.36);

(c) has the opportunity to cross-examine Mrs Lini-Leo (but he refused to do so);

(d) can be in no doubt exactly why he is facing a contempt of Court finding.

The Appropriate Standard of Proof to be applied in Committal proceedings: Criminal Standard of Proof of beyond a reasonable doubt

In this instant case, witness Leymang was under oath, despite he knew the answers to the question he was asked to answer by the Ombudsman’s Counsel, Mrs Heather Lini-Leo [see the transcript at paragraphs 188-192-196 and 205], Mr Leymang refused to answer to the said question [see transcript paragraphs 187 to 198 and para. 199 to 207; and 249-252].

Further after the adjournment of 21 July, 1997 to the next following day, Mr Leymang when he was still in the witness box and when asked again for him to give the names of the people who complained to him (witness) about Mr X, he changed his tack and said he is objecting to any questions put to him.

Despite the fact that the witness was reminded by the Court about his oath to tell truth and to answer all the questions put to him in Court [see the transcript paragraph 203] and various adjournments allowing Mr Leymang to consider the seriousness of the situation he is now in and for him to get legal advice, Mr Leymang maintained firmly his position.

In this case, I am therefore satisfied beyond reasonable doubt that, witness Leymang by deliberately refusing to answer questions put to him, although he knew the answers, is guilty of a contempt of the Court. The contempt here, is a contempt in the face of the court which is of a criminal nature under section 82 (3) of the Penal Code Act [CAP 135].

I must say, I get great assistance from the case of Ex parte Fernandez (1861) 10 C.B.N.S. [C.B.N.S. = Common Bench Reports (New series)] which was referred to this Court by Mr Crossland. In this case one Fernandez was called as a witness for the Crown in an election bribery trial of an MP before an assize Court. Fernandez had been given certificate granting him immunity from prosecution. In answer to a question, to be a lawful, put to him, Fernandez refused to answer on the ground that the answer could incriminate him. The judge then told him that he had been given immunity from prosecution which was complete protection. The judge then directed Fernandez that he was bound to answer the question. Fernandez persisted in his refusal to answer. The judge held Fernandez in Contempt of Court and committed him to prison for 6 months together with a fine of 500 pounds.

The matter was revisited on a Writ of Habeas Corpus before a bench of three judges in the court of Exchequer. The main argument before the Court was whether:-

(a) an assize judge had jurisdiction to sentence summarily for contempt. [the answer is: yes, because an assize court was held to be a superior court]

(b) a warrant for committal had to specifically state the question and evidence that the contemnor had refused to provide [the answer is: No]

Further, in Attorney General -v- Mulholland and Fester [(1963) 2 QB 477] mentioned earlier in the judgment, it was held that journalists had no legal privilege to refuse to disclose sources of information given to them in confidence, where the information was relevant and necessary to the trial or inquiry of the tribunal.

On the same line of thoughts, I hold that in the present case re. Ombudsman -v- Gerard Leymang [Civil Case No. 3 of 1997], Witness Leymang has no legal privilege to refuse to give or refuse to disclose the names of the people Mr Leymang had said they had complained to him [about the activities of Mr X], where the information was relevant and necessary to the Ombudsman’s enquiry as per Article 62(3) of the Constitution.

I have to mention another matter. While in Court, under oath, witness Leymang attempted to tender a document from the witness box. I note that that document was filed by Mr Leymang Gerard. The content of the said document was similar to what Mr Leymang said in paragraphs 249-252 of the transcript. In effect, Mr Leymang sought to advance factual and legal matters while he was in the witness box and under Oath. It seems to me that Mr Leymang decides what questions to answer to supplant the court ruling on the law or he was trying to echo what his Foreign Counsel advises him to do.

It is extraordinary and improper for a witness to act in this way. This is reflected in the conduct of witness Leymang when on 22 July 1997, he changed his tack by saying that he did not refuse to answer questions but he was objecting to any questions put to him.

On that point of objection by the witness to answer question while he was in Court and under Oath, I cannot do better than adopt as my own what Erle CJ says in Ex parte Fernandez in the Court of Exchequer as follows:-

"As to the objection that the witness’s refusal to answer was no offence, because it was for the witness, not the judge, to determine whether the question was one which he was bound to answer, - that is a startling proposition. Every person in the Kingdom except the sovereign may be called upon and is bound to give evidence to the best of his knowledge upon any fact material and relevant to an issue tried in any of the Queen’s Courts, unless he can show some exception in his favour such, for instance, as that suggested to exist in this case, namely, that to answer might put him in peril of criminal proceedings. Some judges out of tenderness for the witness, have held it sufficient excuse if he swears in his opinion - where such opinion may be well founded - his answering will expose him to such proceeding. Some have thought that too lax and yielding a practice: but there has never been any doubt that it is for the court to decide whether the circumstances judicially before it are such as to excuse the witness from answering. The law is correctly stated by Mr Best in his very able and learned work on Evidence, where the authorities are collected, p.171 of the 3rd edition, - "where the grounds of privilege are before the court, it is for the court, and not for the witness or party interrogated, to decide as to their sufficiency." The warrant states that the question was one which the witness was bound by law to answer, and it is therefore in that respect sufficient. I need only cite 4 Blackstone’s Commentaries, 281, 283 to show that a witness refusing to be examined commits an offence for which as being a contempt in the face of the court, he may be "instantly apprehended and imprisoned at the discretion of the judges, without any further proof or examination" (at p. 364).

[Reference be made to the transcript - paragraphs 198 - and paragraph, 250].

It follows then that there is no doubt about the law. It is for the Court to decide whether the circumstances judicially before it are such as to excuse the witness from answering. Thus, where the grounds of privilege are before the Court, it is for the Court, and not for the witness or party interrogated, to decide as to their sufficiency.

A witness refusing to be examined commits an offence for which, as being a contempt in the face of the Court, he may be "instantly apprehended and imprisoned at the discretion of the judges, without any further proof or examination."

I am further assisted by the case of Balogh v. Crown Court (1974)3 All ER 283 (CA) which was referred to the Court by Mr Crossland. Whilst dealing with different facts the Court made a very telling observation when setting out various examples of contempt in the face of the Court. His Lordship said this (at p. 295):

"For example, judges from time to time will have to decide what to do about a witness who refuse to answer a question, often because he cannot bring himself to state that which is obvious to both judge and jury or because the answer would cause acute embarrassment, as sometimes happens with doctors and ministers of religion. In many such cases a judicial admonition may be adequate if judicial comment is required at all: but when the witness refuses to answer questions because he wants to deny the Court evidence which is important, the position is very different."

In this case, having considered the conduct of the witness, I am satisfied that witness Leymang refuses to answer questions because he wants to deny the Court evidence which is important for the enquiry of the Ombudsman pursuant to Article 62(3) of the Constitution.

COMMITTAL ORDER [SENTENCE]

This is a very serious matter. Witness Leymang is one of the leaders of this country. The Court has proceeded on the basis that Mrs Lini-Leo’s questions directed to the identity of the alleged complainants were proper. Mr Leymang has refused despite being given opportunity to obtain legal advice and this reflects on his position.

In this case, I accept Mr Crossland’s submissions that the Order for committal follow, together with a fine and an Order of costs in favour of the Ombudsman (Applicant).

It is important for the Courts of the Republic that in order to protect the due administration of justice, contemnor must be punished irrespective of his/her status.

In the circumstances of this case, the order for committal lie in Court for 21 days during which time Mr Leymang can either purge the contempt by being re-sworn and provide the names of all the alleged complainants or alternatively that he files a notice of appeal within such time in which case the writ shall lie until determination of the appeal.

The matter was adjourned from 18 August to the following day: 19 August 1997.

On 19 August 1997, before I sentence Mr Leymang for committal, an ultimate chance was given to him to reconsider his position and if he so wishes to go back into the witness box and be re-sworn and answer to the question put to him [i.e. provides information needed for the Ombudsman’s enquiry].

Witness Leymang told the Court, he still maintained his position and refused.

Under such circumstances, I call on Mr Leymang to go into the Defendant Box and I then read out to him the Order of Committal dated 19 August, 1997 which is herewith attached.

These are the reasons of the Committal Order.

DATED AT PORT-VILA, this 25th DAY of AUGUST, 1997

BY THE COURT

VINCENT LUNABEK
Acting Chief Justice