N4185

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 582 OF 2010

IAN AUGEREA,
REGISTRAR OF THE NATIONAL COURT
Plaintiff

V

DAVID TIGAVU
Contemnor

Madang: Cannings J
2010: 17 November, 14, 15, 17 December

VERDICT

CONTEMPT – incident outside courtroom – alleged threats and incitement to violence by contemnor against parties to ongoing court proceedings – alleged threats and abuse against lawyers and witnesses – alleged statement questioning integrity and impartiality of judge – whether such conduct constitutes contempt of court – standard of proof.

There was an incident outside a courtroom, within the precincts of the National Court, which led to the contemnor being charged with four counts of contempt of court for (1) threatening and inciting violence against and between parties to ongoing court proceedings, (2) threatening and abusing lawyers involved in those court proceedings, (3) threatening and abusing persons who may be witnesses in those proceedings and (4) calling into question the integrity and impartiality of the presiding Judge. A trial was held to determine whether contemnor was guilty of contempt.

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 (Andrew Kwimberi v The State (1998) SC545).

(2)	There are numerous categories of contempt, including taking reprisals on witnesses and court officials on account of what they have said or done in court (the type of contempt charged under counts 1, 2 and 3) and scandalising the court or a judge (the type of contempt charged under count 4) (Peter Luga v Richard Sikani (2002) N2285).

(3)	There was clear evidence that, during an adjournment of ongoing court proceedings, the contemnor, behaving in an angry and aggressive manner, threatened and incited physical violence against parties to ongoing court proceedings, threatened and abused lawyers and a person who may be a witness.

(4)	Such conduct was likely to interfere in the due administration of justice as it had real potential to interrupt the orderly dispatch of the business of the National Court by hampering the ability of parties, lawyers and potential witnesses to put their cases and give evidence freely and without fear of intimidation or reprisal.

(5)	The contemnor was accordingly found guilty of counts 1, 2 and 3.

(6)	As to count 4, the words uttered by the contemnor in describing the judge as being "sympathetic" to one side, while not, in the circumstances, being complimentary and being capable of having negative connotations (eg that the judge was one-sided or partial) was not sufficiently pejorative as to call into question the integrity and impartiality of the judge.

(7)	The contemnor was accordingly found not guilty of count 4.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
Attorney-General Michael Gene v Hamidian Rad [1999] PNGLR 278
Peter Luga v Richard Sikani (2002) N2285
Re Nahau Rooney (No 2) [1979] PNGLR 448
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
SCR No 3 of 1983; Ex parte Callick and Koroma [1985] PNGLR 67

TRIAL

This was the trial of an originating summons charging a person with four counts of contempt of court.

Counsel

N Goodenough, for the plaintiff
B W Meten, for the contemnor

17 December, 2010

1. CANNINGS J: There was an incident outside the courtroom of the National Court at Madang on Thursday 23 September 2010. Soon after the court adjourned at about 12 noon and those involved in the court proceedings, lawyers and members of the public left the courtroom, there was a commotion outside.

2. This incident led the Registrar of the National Court, Mr Augerea, to charging David Tigavu, the contemnor, with four counts of contempt of court. A trial has been conducted and this judgment gives the Court's verdict on the four charges.

3. The Registrar alleges that the contemnor engaged in conduct that lowered the authority of the court, scandalised the court and a Judge and interfered in the due administration of justice, in that he:

•	Count 1: threatened and incited physical violence against and between parties to ongoing court proceedings, WS No 202 of 2010, Re Eddie Tarsie & Ors v Ramu Nico Management (MCC) Ltd & Ors; and

•	Count 2: threatened and abused lawyers who were involved in those court proceedings; and

•	Count 3: threatened and abused persons who may be witnesses in those court proceedings; and

•	Count 4: called into question the integrity and impartiality of the Judge who was presiding in those proceedings.

4. The court proceedings, WS No 202 of 2010, had been commenced in March 2010 and concerned a challenge by a group of plaintiffs, from the Rai Coast (also known as Raikos) area of Madang Province to the construction and operation of the deep-sea tailings placement system (DSTP) for the Ramu Nickel mine. The court granted an injunction restraining the construction of the DSTP, pending trial, and the case had been the subject of numerous pre-trial proceedings from March to September. On the day in question, 23 September, the court was dealing with an application by the remaining plaintiffs to discontinue the proceedings and an application by another Rai Coast person, Louis Medaing – one of the witnesses to the alleged contempt – to be joined as a plaintiff.

5. The contemnor is chairman of the Kurumbukari Landowners Association, a group of customary landowners in the Bundi area of Madang Province (the site of the mine) who have not been happy about the delay to commencement of the mining project, which they believe has been caused by the court proceedings, WS No 202 of 2010.

PROCEDURES

6. I was the presiding Judge in WS No 202 of 2010 and, after hearing a report of what happened outside the courtroom, I summoned the contemnor to attend the court on 1 October, which he did. I informed him of the allegations of contempt against him and that I was directing the Registrar, under Order 14, Rule 47(1) of the National Court Rules, to commence contempt proceedings against him.

7. The charges were served on the contemnor, he was given time to engage a lawyer and the matter was set down for trial. Prior to commencing the trial, the issue was raised whether I should deal with the matter as I was the presiding Judge in the court proceedings to which the charges relate and the Judge who directed that the contemnor be charged and the Judge whose integrity and impartiality were allegedly called into question. The issue was actually raised by the prosecutor, Mr Goodenough, not by the contemnor's lawyer, Mr Meten. I indicated that I saw no difficulty with my dealing with the matter. Mr Meten agreed and indicated that the contemnor took no objection to my presiding.

8. It has been suggested in some cases such as Andrew Kwimberi v The State (1998) SC545 that it may be desirable for a judge to disqualify himself and refer the matter to another judge if the alleged contempt involved a personal affront to the judge or is scandalous of the judge concerned as distinct from an affront to the system of administration of justice. Here, only one of the four charges (count 4) could conceivably be regarded as alleging a personal affront; but even if it were to be so regarded, that would not by itself prohibit the judge concerned from dealing with the matter. The overriding consideration is that the principles of natural justice apply: the contemnor must be given a fair hearing by an independent and unbiased court.

9. Those principles have been observed in this case by adopting normal criminal procedures: the contemnor has been given a written statement of charge, time to engage a lawyer and a full opportunity to present his defence to the charges. It was not necessary – especially as the contemnor did not object – to depart from the normal procedures for contempt trials, which allow the court or judge, which is the subject of the alleged contempt, from dealing with the charge, whether the alleged contempt is committed in the face of the court or outside the court (SCR No 3 of 1983; Ex parte Callick and Koroma [1985] PNGLR 67).

THE OFFENCE OF CONTEMPT OF COURT

10. 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).

11. The prosecution bears the onus of proving contempt according to the criminal standard of proof: beyond reasonable doubt (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533).

12. There are numerous categories of contempt, including taking reprisals on witnesses and court officials on account of what they have said or done in court (the type of contempt charged under counts 1, 2 and 3) and scandalising the court or a judge (the type of contempt charged under count 4) (Peter Luga v Richard Sikani (2002) N2285).

PROSECUTION'S EVIDENCE

13. The evidence in support of the charges was by affidavit, in accordance with Order 14, Rule 44 of the National Court Rules. The prosecution tendered three affidavits, which were admitted into evidence without objection. None of the deponents was required for cross-examination.

14. The first affidavit was by Michael Wambun, Security Supervisor at Madang Courthouse. He was outside the courtroom. He saw the contemnor come out of the courtroom and face the courtroom. He heard him say:

Nau bai yumi pait, ol Bundi na Raikos bai yumi pait, ol America bai bringim development ikam long yupela ol Raikos olsem na yupela kotkot long stopim project ah, yupela NGO na lawyer, yupela laikim mani tasol.

[Now, we will fight. The Bundis and the Raikos will fight. Americans will bring development to the Raikos and that is why you (Raikos) have been coming to Court to stop the project. The NGOs and lawyers only want money.]

15. Upon hearing those words from the contemnor, Mr Wambun said:

Hey! Yu go out na igo long narapela hap na mekim ol kain toktok.

[Hey! You go outside and go somewhere else and speak like that.]

16. Mr Wambun saw the contemnor walk out of the courthouse car park and stand outside the main entrance, where he became more agitated and aggressive. He was supported by a group of men and a woman employed by the mining company that is one of the parties to the court proceedings.

17. Ray William, of Nonggorr William Lawyers, faced the contemnor and said:

Yu laik paitim mipela ah?

[You want to fight us?]

18. There was a heated argument between Mr William and the contemnor, so he (Mr Wambun) walked up to Mr William and asked him to fall back into the courthouse premises, which he did.

19. Mr Wambun went outside the main entrance, faced the contemnor and his group, and saw and heard the contemnor, who was unsteady, moving back and forth, and angry, say:

Yupela ol Raikos come outside, bai yumi pait, Bundi na Raikos bai pait nau. Ol America bai bringim development ikam long yupela olsem na yupela kotkot. Yupela lawyers laikim mani tasol na sapotim ol Raikos. Just because of a sympathetic Judge na yupela save win na hambak.

[You people from Raikos come outside and we will fight, Bundi and Raikos will fight now. The Americans are going to bring development to you and that is why you are continuing to agitate this matter in court. You lawyers want money only and are supporting the Raikos. Just because of a sympathetic Judge, you win and show off.]

20. Mr Wambun then warned the contemnor in the following terms:

Hey! Be careful about what you are saying, the Judge got nothing to do with your grievances. You better leave this place before I come down hard on you.

21. The contemnor then said "Sorry" and walked away, and his supporters followed.

22. The second affidavit was by Louis Medaing, a customary landowner in the Basamuk area. He had been in the courtroom making an application, through his lawyers, Tiffany Nonggorr and Ray William, to join WS No 202 of 2010 as plaintiff. His application was refused in a ruling handed down the following day and he commenced separate proceedings, WS No 1192 of 2010, the subject matter of which was the same as WS No 202 of 2010. He is seeking a permanent injunction to prohibit operation of the DSTP.

23. Mr Medaing states:

The matter was adjourned for the lunch break and we came out and stood at the veranda of the courtroom … and could see David Tigavu and his team going out the courthouse gate.

I saw them standing outside the gate and looking back at us and shouting threatening words at us.

David Tigavu, the Chairman of Kurumbukari Landowners Association, was leading a mob of disgruntled people and was shouting at me and threatening me and the people I represent. He shouted and said:

 "Louis you stop hiding in there, you come out here and we fight, Louis I will smash you".

He then shouted to my lawyers and said:

"You people are only interested in making money for yourselves; you are hindering developments to the people of Bundi and Rai Coast with this Court cases; our children are now not going to school, are you going to help them; are you going to bring development to us."

He then pointed at me and said:

"If we are to fight over this project we will fight, there will be a civil war, Louis you come out here and we fight."

Tigavu then went on to label Justice Cannings, saying:

"The Judge is too sympathetic to you people and allow the case to drag on."

24. The final affidavit tendered by the prosecution was by Ray William, a lawyer with Nonggorr William Lawyers. He was one of the lawyers appearing for Mr Medaing in court that morning. Mr William's evidence is that when he walked out of the courtroom he heard and saw a group of people shouting abuse from outside the front gate, daring those inside to go out to fight them. Tiffany Nonggorr walked from the courthouse. The contemnor pointed towards Mrs Nonggorr and shouted something at her.

25. Mr William says that he walked over towards the gate to find out what was going on. The contemnor accused Mrs Nonggorr of only being after money and not caring about the welfare of the contemnor's people. He challenged her to tell him what her plans were to develop his area, claiming that schools were in bad shape and that he needed a mining project to assist in the development of his area. He told her that what she was doing was to force his people to continue to live as primitives.

26. When Mr William heard that, he walked towards the gate and told the contemnor that the function of bringing services belonged to the government and was not for them to worry about. The contemnor then turned towards him and said that Madang was not his (Mr William's) customary land, that he was from Goroka and that he was going to fight him.

27. The contemnor shouted at Louis Medaing that he would fight him too. He also shouted that because they had a "sympathetic judge", their clients were granted the orders that they were seeking. He told them that otherwise we were losers and that we would not win the case.

28. Mr William and his group could not move out of the gate because the contemnor and his group were waiting outside wanting to fight them. The Police then came and dispersed the crowd, including the contemnor.

CONTEMNOR'S EVIDENCE

29. The evidence for the contemnor, David Tigavu, consisted of one affidavit, of himself, which was admitted into evidence without objection or cross-examination. He stated that he "would like to sincerely apologise" for the incident and that he had already written letters, dated 29 September 2010, to Nonggorr William Lawyers and to the Court, apologising for the incident. He did not take issue with the version of events given in the three affidavits tendered by the prosecution but explained the circumstances in which the events occurred, as follows:

The incident happened in a spur of the moment. After the morning Court session I walked out of the courthouse and was at the gate and saw that Mrs Nonggorr was taking pictures of us with a mobile phone camera.

I was not happy with that, which led me to argue with Mrs Nonggorr, and then Mr William joined in the argument and I said the words that I said. I did not mean any of them and I only said them in the heat of arguing with the lawyers.

I am truly sorry for what I said.

I did not intend to cast any doubt on the … DSTP court proceedings.

I am and have been the Chairman of the Kurumbukari Landowners Association for 4 years now. Being the Chairman of the Kurumbukari mine site landowners, who are also owners of the nickel and cobalt, we have nothing to say or do with the DSTP issues. It is a coastal issue.

My people, for whom I act as spokesman, have put up with so much unforeseen suffering such as living in makeshift shelters and feeding on rice and tinned fish for nearly two years. This is because construction of their relocation homes has been delayed due to the DSTP case. The health centre and school buildings have not been built yet and our road network to the mining–affected villages is half-complete and in most places, work has been abandoned.

There is no proper source of clean water and many people are getting sick because of it. And to top it all off, the young people, with no full understanding of the DSTP case, went on strike the week before the hearing started and closed the mine gates for a few days.

I, as the Chairman, had to go back to the village and negotiate with the young people to re-open the mine gates. During the negotiation I was placed under considerable pressure to see that the mine commences and that the people's concerns are addressed. Eventually, we had the mine opened and I returned to Madang the night before, the 22nd September 2010.

The DSTP case has led to many unforeseen circumstances, thus putting much pressure on me as the Chairman of the Kurumbukari Landowners Association. I have been tasked to answer to my people and take some form of action, but what am I to do? The DSTP issue is a coastal issue, and I am from the mine site. I have nothing to do with this case.

I know and can see that my people are suffering and I am under tremendous pressure. I have never experienced such hype and level of pressure in my whole life.

I had no intention of dishonouring the court and I ask for the court's mercy and forgiveness.

I am also a severe diabetic with high blood pressure and this incident has put strain on my heart and medical condition. I have a family of thirteen (13), and this was also my first appearance in court. …

I ask for the court's understanding and mercy. I promise this type of incident will never happen again. I respect the court's authority and independence, and apologise most sincerely for the inconvenience and distress caused.

COUNT 1: THREATENING AND INCITING PHYSICAL VIOLENCE AGAINST AND BETWEEN PARTIES

30. There is evidence that the contemnor threatened and incited physical violence by uttering words such as "Now we will fight" and shouting at Louis Medaing "Louis, you stop hiding in there, you come out here and we fight, Louis, I will smash you".

31. Mr Meten, for the contemnor, submits that this evidence is insufficient to support a guilty verdict under count 1. He submits that the evidence is inconsistent and unreliable, and that the prosecution has not proven that the contemnor had any intention to interfere with the processes of the court or that there was any likelihood of interference and that, in any event, Mr Medaing was not a party to the proceedings.

32. I reject the inconsistency argument. There is clear evidence of a commotion and of the contemnor being agitated and behaving noisily and aggressively. Each witness has given evidence of what they heard the contemnor say. The fact that their affidavits do not exactly match is inconsequential. They may have each heard the contemnor say different things. There is no good reason to doubt the reliability of the evidence, the import of which is that the contemnor incited physical violence by expressing a willingness and desire to fight Louis Medaing and that he threatened to physically harm Mr Medaing.

33. As to the contemnor's state of mind, his explanation can be accepted at face value: he was under pressure from the members of his association who were frustrated by the delays in the project, which they believed had been caused by the court case, and that it was a spur of the moment reaction to an unfolding incident as he was upset that one of Mr Medaing's lawyers, Mrs Nonggorr, was taking photographs of him and his supporters. I accept that the contemnor did not intend to interfere with or obstruct the administration of justice.

34. However, I do not accept that the contemnor's actions were not likely to interfere with or obstruct the fair or due administration of justice. The very act of issuing a threat or inciting violence against any person involved in court proceedings, outside a courtroom, immediately after the person has emerged from the courtroom, interferes with the fair and due administration of justice. It presents a real risk, not just a mere possibility, of interference (Re Nahau Rooney (No 2) [1979] PNGLR 448). It directly interferes with the right of the person (the subject of the threat or incitement) to freely conduct whatever business they wish to in the courtroom, without fear of harassment, intimidation or reprisal. It infringes on the principle of freedom based on law, guaranteed by Section 32 of the Constitution. It inhibits the right under Section 37(11) of the Constitution of all persons involved in civil proceedings to have the existence and extent of their civil rights and obligations determined by independent and impartial courts fairly and within a reasonable time. These constitutionally guaranteed rights and freedoms are imperilled by acts of physical or verbal violence that are committed outside a courtroom. The Rule of Law is threatened, as is the fundamental principle, enshrined in the Constitution, of justice, according to law, being available to everybody.

35. Mr Meten submitted that the principal issue that was before the National Court in WS No 202 of 2010 – whether an injunction should be granted to prevent construction of the DSTP – had been settled by the plaintiffs' decision to discontinue the proceedings. Therefore, the argument ran, there was nothing of substance before the court. There were no proceedings pending, so the risk of interference with the proceedings was minimal. This argument is misconceived. To prove contempt of court it is not necessary to prove that there was a real risk of interfering with actual, ongoing court proceedings. It is the prospect of interference with the system of justice that is the key factor. In any event, these were not proceedings which, at 12 noon on 23 September 2010, had concluded. There were matters pending determination (viz Mr Medaing's application to join as a party and the plaintiffs' application for leave to discontinue the proceedings). Therefore, even if Mr Meten's submission on this point of law had merit, on the facts, it would have carried no weight.

36. Nor do I accept Mr Meten's argument that Mr Medaing was not a party to the court proceedings. The word "party" in count 1 must be interpreted broadly. It covers not only persons who are according to the National Court Rules to be regarded as a party (plaintiff or defendant), but anyone involved actively in those proceedings. Here, Mr Medaing was, in the courtroom, making an application to be joined to the court proceedings as a plaintiff. He was directly involved in WS No 202 of 2010. He was a party.

37. I find that all elements of count 1 have been proven beyond reasonable doubt. The contemnor is guilty, as charged.

COUNT 2: THREATENING AND ABUSING LAWYERS

38. I am satisfied beyond reasonable doubt that the contemnor threatened and abused two lawyers, Ray William and Tiffany Nonggorr, in the manner set out in Mr William's affidavit. There was a heated argument between the contemnor and Mr William but it was not a vigorous, intellectual exchange between two people about legal or factual issues that had arisen in court. It was an altercation, which could easily have turned into physical violence, which was instigated by the contemnor's inflammatory actions immediately after emerging from the courtroom.

39. If a lawyer is harassed or intimidated, physically or verbally, within the precincts of a court, in relation to his or her work as a lawyer, this is an affront to the court and to the system of justice. Lawyers are officers of the court, so any interference with the discharge of their duty to the court to represent their clients' interests fully and freely is an interference in the due administration of justice.

40. The fact that the contemnor wrote a letter of apology to the lawyers, and a separate letter of apology to the court, does not absolve him of the contempt. Nor is it a defence that he was under pressure at the time and that he reacted on the spur of the moment to seeing one of the lawyers taking photos of his group. These matters help explain why the contemnor acted as he did and may mitigate the seriousness of his conduct, but they do not negate what he did.

41. I find that all elements of count 2 have been proven beyond reasonable doubt. The contemnor is guilty, as charged.

COUNT 3: THREATENING AND ABUSING PERSONS WHO MAY BE WITNESSES

42. The witness or potential witness who was threatened or abused was Louis Medaing. He was in court on the morning of the incident and it was not unlikely that he would be a witness. He was threatened and abused by the contemnor and the threats and abuse were conduct which, by its very nature, interfered with the due administration of justice.

43. I find that all elements of count 3 have been proven beyond reasonable doubt. The contemnor is guilty, as charged.

COUNT 4: CALLING INTO QUESTION THE INTEGRITY AND IMPARTIALITY OF PRESIDING JUDGE

44. The evidence is clear that the contemnor described the presiding Judge as being "sympathetic". I agree with Mr Goodenough's submission that, given the volatile environment in which that word was used, it could be regarded as a criticism of the Judge. It cannot be reasonably regarded as a compliment. It was a statement that, arguably, lowered the Judge's authority. Any act done or writing published that is calculated to bring a court or a Judge into contempt, or to lower the Judge's authority, can be regarded as a contempt of court (Attorney-General Michael Gene v Hamidian Rad [1999] PNGLR 278). There is, arguably, an implication that the Judge is sympathetic to one side and that he is not impartial. If this were to be the only interpretation available, it would follow that the contemnor was calling the judge's integrity into question. The conclusion would be that the contemnor was scandalising the Judge and the Court, and that would amount to contempt.

45. However, I uphold Mr Meten's submission that the word "sympathetic", as it was used here, did not necessarily have negative connotations. According to the New Oxford Dictionary of English, Clarendon Press © 1998, "sympathetic" means, amongst other things, 'showing approval of or favour towards an idea or action'. That is the closest the word comes to having negative connotations or being a pejorative description of a person.

46. I am not satisfied beyond reasonable doubt that the word "sympathetic" or other words said by the contemnor about the presiding Judge called into question the Judge's integrity and impartiality. The contemnor is not guilty of count 4.

VERDICT

(1)	The contemnor, David Tigavu, is adjudged guilty of contempt of court on counts 1, 2 and 3 and is convicted accordingly.

(2)	The contemnor, David Tigavu, is adjudged not guilty of contempt of court on count 4 and is acquitted of that charge.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the Plaintiff
Meten Lawyers: Lawyers for the Contemnor