Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Tupundu [1996] PGNC 10; N1536 (30 May 1996)

Unreported National Court Decisions

N1536

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 292 OF 1996
THE STATE
v
RAYMOND TUPUNDU

Waigani

Batari AJ
15 April 1996
27 May 1996
30 May 1996

CONTEMPT - Contempt of Court - interference with course of justice - Lawyer failing to appear after adjournments - Delayed trials - Deliberate intent to hinder Court - Plea - Contempt proceedings - Practice and procedure.

LAWYERS - Contempt of Court - Plea - Sentencing for interference with course of justice - Fine and default penalty.

Cases Cited:

Daniel Gwaya Poka v The State [1988] PNGLR 218

The State v Mark Taua: Re Awaita [ 1985] PNGLR 178

Paul Metta v The State [1992] PNGLR 196

Re: Passingan [1982] PNGLR 292

Weston v Central Criminal Court Courts Administrator (1977) QB 32

Melbourne v Smith [1887] UKLawRpCh 70; (1886) 35 ChD 436

Counsel:

B Andrew for the Contemnor

30 May 1996

BATARI AJ: On 15 April, 1996 Raymond Tupundu was charged orally under Order 14, Rule 39 of the National Court Rules with Contempt of Court on the following facts:

“On 10 April, 1996 at about 3.00 pm in Court Room 6 an indictment was presented in the case of State v.Kapera Ivoro, David Momo and Nandel Masel on charges of robbery and rape. You appeared as Counsel for the Defendants and Mr Daniel Mark of the Public Prosecutor's Office appeared as Counsel for the State. Upon your application to adjourn the case to 22 April, the only reason given was that you would be attending a course from 15 to 19 April. Your application was refused and the Court indicated that it would sit long hours if need be to complete the case before 15 April. After the accuseds were arraigned, their trial was adjourned to 9.30 am on 11 April, 1996 so that the State would locate witnesses who had been advised earlier not to attend the Court. You did not inform the Court then of your unavailability on the 11 April or thereafter and the reasons. When the case was called on 11 April, there was no appearance from you. Representation was then requested from the office of the Public Solicitor, in your absence. Matters listed for that day were:

State v Benjamin Garo (for decision on a voir dire on admissibility of confessional statements) and State v Kapera Ivoro, David Momo & Nandel Masel both of which cases you were the Defending Counsel.

Principal Legal Officer Mr Frazer Pitpit appeared and advised the Court that you had not turned up in the office and being, your immediate Supervisor, you had not advised him also of the reason for your absence from the office and from appearance in Court. At 1:30 pm Mr Pitpit advised the Court the situation was still the same as during that morning regarding your absence. The case of State v Benjamin Garo was in the meantime concluded with Mr Pitpit appearing as an alternate counsel while the case of State v Kapera Ivoro & 2 Ors was deferred to 12 April as neither Mr Pitpit nor any other lawyer had been briefed on the File. A further adjournment to Monday 15 April was again given on account of your failure to turn up and Mr Pitpit who appeared on 12 April advised the Court that he had not seen or heard from you. He further advised of his inability and that of any other lawyer from the office of the Public Solicitor to take up the case as you had the File and had not briefed anyone to appear.

This morning when the case was again called, you were again not in Court. There was also no appearance by any lawyer from the Office of the Public Solicitor. By 15 April, the Court also had not been advised of your reason for absence on 11 & 12 April, 1996. The Court became aware you are attending a course which commenced this morning at the Institute of Public Administration, Waigani.

The case of State v Kapera Ivoro & 2 Ors was set for trial during court listing day on 11 February, 1996. The dates of 8, 9, 10,11 & 12 April, 1996 were specifically set aside for that case.

Your failure to appear is required for the accuseds has resulted in the delay of their trial for 3 days. It is alleged your actions on 11, 12 & 15 April, were calculated, to interfere with or obstruct the fair administration of justice or are likely to cause this happening. It is alleged that you committed contempt in the face of the Court.

You are required to make your defence to this charge. You are given until 16 April, 1996 to make your defence. If you have a lawyer, he may appear on your behalf.”

These facts were transcribed on the same day and subsequently served on the contemnor. In the meantime, the case was adjourned to allow the defendant time to prepare his response.

At the next adjournment on 27 May, you pleaded guilty. You also apologised to the Court. That supported your remorse for your contempt which I accept and take into account in deliberating your sentence.

Contempt of Court is undefined by statute in this jurisdiction. The common law definition as accepted and applied in Papua New Guinea is set out in Halsbury's Laws of England (4th Ed. Vol 9) para 7 as follows:

“In general terms, words spoken or otherwise published, or acts done outside Court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempts of Court.”

That definition says there must be an intention to interfere with or obstruct the fair administration of justice; or second that the words or acts are likely to interfere with or obstruct the fair administration of justice. In Weston v Central Criminal Courts Administrator, (1977) QB 32 the accurate statement of the English Common Law appears to be contained in the judgment of Lord Denning, MR at p. 43 as observed by Mr Justice Bredmeyer in the Supreme Court appeal of David Gwaya Poka v The State [1988] PNGLR 218 at pp. 219 and 220:

“But the question arises: was his breach of duty a contempt of court such as to be punishable summarily? I have no doubt that if a solicitor deliberately fails to attend - with intent to hinder or delay the hearing, and doing so he would be guilty of contempt of court. He would be interfering with the course of justice. But in this case the conduct of the Solicitor was not done with intent to hinder or delay the hearing. He took the view that in fairness to the accused the case could not be forced on for trial at such short notice before he was ready, and that, as it was bound to be adjourned, he did not propose to attend.”

The Supreme Court in Poka's case adopted and followed Lord Dennings' statement of law in Weston's case when it held that, a lawyer who deliberately falls to attend court with intent to hnder or delay the Court and does so may be guilty of Contempt of Court. The application of such law appear consistent with other relevant authorities. In Re: Passingan [1982] PNGLR, 292 Pratt J convicted a witness of contempt of court after finding that the witness (at p.298):

“deliberately went to Port Moresby expecting if he did not get back, the Court would adjourn the matter to suit his convenience.” (emphasis mine).

In The State v Mark Taua: Re: Awaita [1985] PNGLR 179 Woods J at p. 183 accepted the lawyer’s explanation and submission that he did not intend to interfere with the administration of justice but found that the lawyer’s carelessness in failing to attend in the circumstances amounted to contempt of court. The conviction could well be consistent with, the explanation that the lawyer deliberately chose not to come as opined by Bredmeyer, J in Poka’s case. In the more recent case of Paul Metta v The State [1992] PNGLR 176 the Supreme Court adopted the definition of contempt of court as “an act or omission calculated in interfere with the due administration of justice”, from the case, Helmore v Smith [1887] UKLawRpCh 70; (1886) 35 ChD 436 at 455, per Bowel, LJ.

In the matter before me, I am dealing with the behaviour of a lawyer before this Court, which behaviour has had the effect as set out in the facts outlined. I have accepted and confirmed your plea of guilty in the light of the cases referred. The only issue that remains is the sentence, that would fit your offence. You have explained through your lawyer that on 11 April, 1996 you had a sudden attack of malaria which caused you severe headache and high fever. You visited a Dr Pip on the same day and obtained from him a prescription for treatment of your condition. The prescription form tendered shows that 600mgr of Quinine was prescribed to be taken over five days. Your lawyer submitted it was an error of judgment on your part not to have informed your office on 11, 12 & 15 April, 1996 of your ill-health and inability to attend duties. You also submitted your failure to attend the Court was unintentional.

If you were well enough to consult a doctor on 11 April, you would no doubt have been physically well enough either to present yourself in the office or at least telephone your supervisors or even the Court, to explain your dilemma or instruct your personal contacts to do this for you. You also have a duty to inform the Court at the earliest opportunity in the circumstances of your absence. That simple common sense approach is a matter of indulgence by a diligent lawyer when faced with such situation as yours.

On Monday 15 April, 1996 you attended a Public Service Induction Course at the Institute of Public Administration, somewhat oblivious to the fact that you had not explained your abscondment from Court proceedings to anyone. When you appeared before me on 15 April, I did not observe any indication of your bad health in the last four days. That itself is not conclusive that you were not sick. However, you looked strong as usual and fully alert when you appeared before me upon your arrest.

I do not find your explanation in any way convincing. Despite your plea, I am of the view that you deliberately absented yourself from attending Court as required. In the final analysis, you chose on Thursday 11 April to stay away from the Court when required to complete the trial of State v. Benjamin Garo and continue the trial of Kapera lvoro, David Momo and Nandel Masel. You chose to stay away until Monday 15 April hoping that the two cases and other trials in Court Room 2 Waigani would be adjourned or re-assigned to another lawyer to suit your convenience. You chose to abandon the cases fixed for trials in Court Room 2 so that you would attend the Public Service Course uninterrupted. The basic aspect that emerges is that you had decided you should be the person who will dictate what the priorities in Waigani Court sittings and for that matter, of administration of justice are - not the Court, not the law but you alone. For you to just walk off in the middle of court sittings in the belief that if you did not return, the Court would simply adjourn and re-list the cases epitomises arrogance.

What is distressing, is that at this early part of your professional career as a lawyer, you had not only committed contempt but you had acted unprofessionally towards the Court and to your clients. The sentence I am going to impose on you must also serve as a warning to other practitioners that when one chooses a professional career in law, the Court will expect from him, the highest standard of consideration and conduct. Lawyers upon admission, assume professional ethics and responsibility of the high standard which must transmit through his actions and conduct towards the Court and his clients. The high obligation placed on those of us involved in the administration of justice is succinctly put by Justice Woods in the case of The State v Mark Tour re: Awaita: Contempt proceedings, [1985] PNGLR 179 at p. 181.

“We judges, courts, lawyers and other staff are here to administer justice. We are all servants of the people and there is an obligation on all of us quite aside from the requirements of the Constitution, particularly in s.37 thereof, that when a man is charged we must ensure the matter is brought to a speedy fruition. At all times it is our duty to ensure Justice is done and that a person is given all the rights accorded to him by the law. Contempt of court proceedings in this area would be a sanction to promote the administration of justice in the public interest.”

The case of The State v Mark Taua: Re - Awaita [1985] PNGLR 179 is relevant to your case. Woods, J in that case convicted a lawyer for contempt of court on the facts that: at the call-over held in Waigani before the Judge, the lawyer asked for two of his matters to be specifically given trial dates at Popondetta. The Judge and the Prosecutor travelled to Popondetta in time to commence the two special fixtures which were expected to take one week. On the first day when the Court commenced sittings, there was no appearance by the private lawyer and the cases were not able to proceed. The Court could not sit and wasted two days judicial work as the other defence lawyer did not arrange to travel early because of the special fixtures. His Honour, found the lawyer’s carelessness in failing to attend the Court amounted to contempt of Court. The lawyer was fined K1,000.00 and barred from the precincts of the National Court in Papua New Guinea until the fine is paid.

Your conduct is of similar gravity:

(1) You failed to attend the Court during the course of two ongoing trial matters, Besides, you were the lawyer assigned as Counsel for all legal aid cases in Court Room 2 in Waigani for the month of April, 1996 which meant the cases fixed for trials in that Court are affected by your failure to attend. You caused a disruption to the smooth management of cases trials in Waigani with the result that three days of court work was lost; the trial of State v Kapera Ivoro & 2 Ors had to be re-listed, thereby causing further delay to their trial and a snow- balling delay effect against other accused awaiting their trials.

(2) In Awaita's case, the contemnor made an attempt in the last minute to advise of his inability to attend Court. In your case, you simply failed to turn up after the adjournment on the previous day and offered no explanation whatsoever until two days ago.

(3) The accused in the second case ie. (Kapai Ivoro, David Momo and Nandel Masel) appeared from custody on each day set for their trial and no doubt were anxious for their case to be heard quickly. You caused their rights to speedy trial to be placed in jeopardy. When explained the reason why their case could not proceed, they might well be justified to feel that their constitutional rights are breached.

Your plea and expression of remorse however mitigate your case in substantial way against the seriousness of your conduct.

I also take into account your personal background and the fact that you are a relatively new practitioner on probation under Public Service Act. I consider that a fine and a default penalty may be appropriate in the circumstances of your case. You are fined K500.00 to be paid within 40 days and 60 days imprisonment with hard labour in default.

Lawyer for the Accused: Attorney General