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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO.180 OF 2015
BETWEEN:
IAN AUGEREA, REGISTRAR OF THE SUPREME
AND NATIONAL COURTS OF JUSTICE
Plaintiff
AND:
ROBERT KOPAOL
Defendant
Waigani: David, J
2020: 15th May
CONTEMPT OF COURT – incident outside, but in the precincts of court house - essential elements of contempt of court - any act or omission, committed in the face of the court or outside court, and which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice – assault of court officer - lawyer representing parties defending a claim for K4.9 million in the National Court - claim arose from death of contemnor’s son in an alleged motor vehicle accident – Peace Agreement signed - application filed to dismiss claim on the grounds that Peace Agreement signed under duress, contrary to law and proceedings disclosed no reasonable cause of action or were frivolous or vexatious – hearing of application to dismiss adjourned on application of lawyer for contemnor – lawyer went to courthouse car park to leave court premises – contemnor approached lawyer and asked him to speak with him – lawyer refused to speak with the contemnor – lawyer assaulted by contemnor and his supporters by grabbing and pulling him towards contemnor’s vehicle – actions of contemnor and supporters deliberate, intentional and without lawyer’s consent - verdict of guilty.
Cases Cited:
Papua New Guinea Cases
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Andrew Kwimberi v The State (1998) SC545
Ian Augerea v David Tigavu (2010) N4185
Ian Augerea v Hon. Anaton Yagama MP (2013) N5437
Peter Bire v Dr Philip Kereme (2016) N6328
Overseas Cases
French v French (1824) 1 Hog 138
Re Ludlow Charities, Lechmere Charlton’s Case [1837] EngR 524; (1837) 2 My & Cr 316
R v James Martin (1848) 5 Cox 356
Re Johnson [1887] UKLawRpKQB 172; (1887) 20 QBD 68 CA
Brown v Putnam (1975) 6 ALR 307
Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506
Counsel:
Derek Wood, for the Plaintiff/Prosecution
Robbie Yansion, for the Defendant/Contemnor
JUDGMENT
15th May, 2020
CHARGES
2. In the statement of charge filed on 7 April 2015, the plaintiff has charged the contemnor with one substantive count of contempt of court and the other charge is framed in the alternative.
3. It is alleged that the contemnor assaulted Mr. Nale of Jema Lawyers and/or his actions encouraged or incited other unknown people to assault Mr. Nale who was the lawyer acting for the defendants in proceedings WS No.757 of 2014 on the afternoon of 9 February 2015 at the Courthouse Car Park and those actions constituted an interference with the due administrative of justice and is a contempt of court or alternatively constituted an intention to interfere with the due administration of justice and is a contempt of court.
4. The statement of charge also alleges in the alternative that the effect or purpose and/or intention of the contemnor’s actions and/or words on 9 February 2015 when he assaulted and spoke to Mr. Nale at the Courthouse Car Park was:
whereby his actions constituted an interference with or hindrance with the course of justice or an attempt to influence the outcome of proceedings WS No.757 of 2014 and was in contempt of court or alternatively constituted a real risk of interference with the due administration of justice and is a contempt of court.
5. The statement of charge further alleges that the contemnor intended to interfere with the due administration of justice, or the effect or purpose of his actions was to interfere with the due administration of justice, by assaulting Mr. Nale at the Courthouse Car Park on 9 February 2015.
BRIEF FACTS ALLEGED AND BACKGROUND
6. The brief facts relied on to support the charges are contained in the statement of charge from paragraphs 5 to 9.
7. The contemnor and Mr. Philip Wari as first and second plaintiffs respectively commenced proceedings WS No.757 of 2014 claiming, among others, the sum of K4.9 million. It was alleged that on 18 January 2014, one Ronnie Kopaol (the deceased), the contemnor’s son, was a passenger on the trailer of a Nissan Navara (4x4) utility (the Nissan Navara) driven by one Deheray Nahare (Deheray), the son of John Nahare (Mr. Nahare), the first defendant in proceedings WS No.757 of 2014. Deheray lost control of the Nissan Navara when he was negotiating the roundabout in the vicinity of the South Pacific Brewery at Gordon’s, National Capital District while travelling along the Poreporena Freeway, hit a concrete flower pot in the middle of the road and the deceased was thrown off the Nissan Navara and landed on the bitumen head first. The deceased allegedly sustained severe head injuries and was rushed to the hospital where he was pronounced dead on arrival. After several days of intense negotiations following the motor vehicle accident, on 27 January 2014, a Peace Agreement (Peace Agreement) was allegedly signed by the deceased’s representatives and Deheray’s relatives at the Ela Beach Hotel. By the Peace Agreement, the deceased’s relatives agreed to accept the death of the deceased and ensure peace was maintained between the parties and Deheray’s relatives agreed to pay K5,000,000.00.00 as compensation. It was alleged that Deheray’s relatives made a part-payment of K100,000.00. The alleged balance of K4,900,000.00 was sought to be recovered against the defendants in proceedings WS No.757 of 2014.
8. On 20 August 2014, the defendants filed separate defences (annexures “B” and “C” to Exhibit “E”) both denying liability. The defences asserted, among others, that; the Peace Agreement was invalid as it was signed under duress, the second defendant was not a party to the Peace Agreement, the Board or shareholders of the second defendant did not resolve to pay the plaintiff’s’ claim, the claim for customary compensation and the Peace Agreement contravened the Motor Vehicles (Third Party Insurance) Act; and the proceedings failed to disclose a reasonable cause of action or were frivolous or vexatious and should be dismissed.
9. On 23 October 2014, Mr. Nahare filed the 23 October Notice of Motion to dismiss proceedings WS No.757 of 2014.
10. On 9 February 2015 at about 1:30 pm, proceedings WS No.757 of 2014 was mentioned in Court before His Honour Sakora, J by Mr. Nale appearing for the defendants. He was ready to move the 23 October Notice of Motion when Mr. Phillip Wariniki of Wariniki Lawyers and the plaintiffs’ lawyer, applied to adjourn the hearing of the motion on the basis that settlement discussions were on foot. Mr. Nale informed the Court that he had no instructions about the purported settlement discussions, but on the contrary had instructions to proceed with the motion. The Court, among other matters, granted the plaintiffs’ application and adjourned the proceedings to 4 March 2015 for hearing of the 23 October Notice of Motion. Mr. Nale left the Court room and went to the Courthouse to return to his office.
11. When Mr. Nale arrived at the Courthouse Car Park, the contemnor and his supporters were already there. The contemnor asked Mr. Nale if he could speak with him, but Mr. Nale refused and said he had to go and so Mr. Nale got into his client’s vehicle, which was an open back Toyota Land Cruiser bearing registration number BEH 315 to leave.
12. The contemnor then stood at the rear of the vehicle and stopped the vehicle from leaving the Courthouse Car Park. The contemnor then asked Mr. Nale to go out of the vehicle and among others, said in relation to proceedings WS No.757 of 2014, “lawyer you are lying ...you should not mislead the Court.” All of a sudden, the contemnor grabbed and pulled Mr. Nale by the shirt and said, among others, “get into my vehicle ... hurry up ... you come into my vehicle.” The contemnor and his supporters grabbed and pulled Mr. Nale in the direction of the contemnor’s vehicle while Mr. Nale’s friends and judicial security officers defended Mr. Nale and pulled him away from the contemnor and his supporters. After several minutes of wrestling, Mr. Nale managed to free himself and he ran through a gap in the crowd, up the concrete footpath and into the courtyard behind the scanning machines at the main entrance (Courtyard of the Courthouse) to the Supreme Court and National Courts building (Courthouse). Mr. Nale’s white shirt was torn in the struggle.
13. On 12 March 2015, the plaintiffs filed a notice of motion seeking leave to discontinue or withdraw the proceedings. The Court granted the plaintiff leave to withdraw the proceedings and ordered that the defendants’ costs be paid by the plaintiffs on a solicitor/client basis.
PLEA
14. The contemnor was arraigned and denied the charge so a trial was conducted.
PROSECUTION’S EVIDENCE
15. The prosecution’s evidence consists of oral and affidavit evidence.
16. The affidavits tendered and admitted into evidence are:
17. Except for Mr. Ivaharia, all other witnesses gave oral evidence and were subjected to cross- examination.
18. Joseph Simbaisipta was the first witness to be called by the plaintiff. His affidavit sworn on 30 March 2015 and filed on 7 April 2015 was tendered, but was objected to by Mr. Yansion for the contemnor on the basis that Order 11 Rule 22(3) of the National Court Rules as to certification of an affidavit made by an illiterate deponent was not complied with. The plaintiff through Mr. Wood argued that the Court had power to allow the use of the affidavit under Order 11 Rule 22(4) of the National Court Rules, but if the tender were rejected, he suggested that the witness be allowed to give oral evidence instead. I upheld the objection for reasons that; trial was directed to proceed by way of affidavit evidence subject to the right of cross-examination; and there was no evidence to assist the Court to determine as to whether the affidavit was read to the deponent and that he seemed to understand it in accordance with Order 11 Rule 22(4). Consequently, I did not allow the use of Mr. Simbaisipta’s affidavit or for him to give oral evidence.
CONTEMNOR’S EVIDENCE
19. The contemnor’s evidence consists of oral and affidavit evidence. All witnesses were subjected to cross-examination.
20. The affidavits tendered and admitted into evidence are:
SUMMARY OF PROSECUTION’S EVIDENCE
Marere Ivaharia
21. He is a clerk employed by the Port Moresby law firm of Ashurst, who are lawyers for the plaintiff.
22. On 18 May 2015 at about 2:12 pm, he attended the office of Yansion Lawyers located at Allotment 78 Section 52 Kennedy Road, Gordon’s and served upon one Tobias Yala, a secretary of Yansion Lawyers, sealed copies of the originating summons and statement of charge and eighteen affidavits under cover of a letter from Ashurst to Yansion Lawyers dated 18 May 2015. A true copy of the letter which bears the acknowledgement of receipt of Mr. Yala is annexure “A” to Exhibit “A”.
Simon Kewa Kur
23. He is a Senior Sergeant in the Royal PNG Constabulary.
24. On 9 February 2014, he went to the Waigani National Court with four other officers namely, Senior Constable Samson Panta, Senior Constable David Pekau, Senior Constable Samuel Koy and Reserve Constable Richard Max Yandua to provide security to Mr. Nale and supporters of Mr. Nahare who attended the Court to observe proceedings WS No.757 of 2014 as Mr. Nahare felt threatened. In cross-examination, the witness said they were unarmed. They arrived at the Courthouse Car Park at about 1:40 pm. They parked along the driveway leading to the Courthouse Cell and near the footpath leading to the main entrance to the Courthouse. He then instructed Senior Constable Pekau and Senior Constable Koy to go to Court Room 3 where proceedings WS No.757 of 2014 was being heard.
25. After Mr. Nale finished, he saw him and seven other men being escorted by Senior Constable Pekau and Senior Constable Koy, who walked behind them, to their vehicle, a Toyota Land Cruiser, open back, which was parked at the Courthouse Car Park.
26. Mr. Nale and Mr. Wap, who was the driver, got into the front of the vehicle and the rest of the men jumped onto the back of the vehicle. As Mr. Wap was reversing the vehicle, the contemnor stood at the rear of the vehicle and blocked the path of the vehicle. He demanded to talk to Mr. Nale and accused him of lying in Court. The contemnor was very aggressive in his speech and approach.
27. Mr. Nale got out of the vehicle and spoke with the contemnor. As he was getting into the passenger’s side of the vehicle, the contemnor grabbed him forcefully and shouted to his supporters in Tok Pisin “tromoim em go inside long car blong mi” (throw him into my car). The contemnor’s vehicle, a Toyota Land Cruiser, Ten Seater was parked next to Mr. Nahare’s vehicle.
28. After several minutes of wrestling with the contemnor and his supporters, Mr. Nale broke loose and ran up the concrete footpath and into the Courtyard of the Courthouse. He then jumped out of the police vehicle and ran behind the lawyer into the Courtyard of the Courthouse while blocking off any pursuit. When the situation finally settled after several minutes and the contemnor and his supporters had left, he and other police officers and the judiciary’s security officers escorted Mr. Nale to their police vehicle at the Courthouse Car Park and took Mr. Nale to Mr. Nahare’s place at Koki Nest.
Samuel Koy
29. He is a Senior Constable in the Royal PNG Constabulary.
30. On 9 February 2015, at about 1:30 pm, he was with Senior Sergeant Kur, Senior Constable Samson Pantan, Senior Constable David Pekau and Reserve Constable Richard Yanduo when they entered the Courthouse Car Park in a police vehicle. They were there to provide security to Mr. Nale and supporters of Mr. Nahare who were attending a hearing involving proceedings WS No.757 of 2014. Asked in cross-examination whether they were there in official capacity or not he said they were on official police duties. Senior Sergeant Kur then instructed Senior Constable Pekau and himself to go to Court Room 3 where proceedings WS No.757 of 2014 was being heard and to escort Mr. Nale and Mr. Nahare’s supporters to their vehicle parked at the Courthouse Car Park and they did.
31. They met Mr. Nale (who was wearing a white shirt and a black long trousers) and several supporters of Mr. Nahare at the Courtyard of the Courthouse near the stairs leading up to Court Room 3.
32. Senior Constable Pekau and himself walked behind Mr. Nale and other men as they escorted them to the Courthouse Car Park where their vehicle, a grey, open back Toyota Land Cruiser (Grey Vehicle) was parked. A blue Toyota Land Cruiser, 10 seater (Blue Vehicle) was parked next to the Grey Vehicle. As they approached the Grey Vehicle, there were about 30 men (the crowd) who had gathered around the Grey Vehicle and the Blue Vehicle. He stood a few feet away from the crowd and watched as Mr. Nale and his clients tried to leave in the Grey Vehicle. Asked in re-examination as to how far he stood from the crowd, the witness said he stood 6 to 10 metres away from the crowd. The crowd then started to gather around Mr. Nale who stood in the centre and beside the passenger door of the Grey Vehicle.
33. He then saw an elderly bearded man, fat in build who stood close to Mr. Nale and did much of the talking to Mr. Nale and at times the crowd with hand motions. When the contemnor was doing the hand motions, his fingers were inches away from touching Mr. Nale’s face. He now knows the man to be the contemnor who was the plaintiff in proceedings WS No.757 of 2014. He was the person wearing a blue shirt in Court.
34. He also saw and heard some individuals in the crowd raising their voices at the contemnor and Mr. Nale, but could not clearly recall what they were saying.
35. By then, their police vehicle approached and stopped beside the driveway at the Courthouse Car Park. The other police officers sat inside while Senior Constable Pekau and himself stood against the vehicle and observed the events unfold.
36. The contemnor and other individuals argued with Mr. Nale for about 20 to 30 minutes. The contemnor managed to calm down the frustrated individuals in the crowd. He thought the heated argument had come to an end when he heard the contemnor shouting at Mr. Nale. Suddenly, he saw some men beside the contemnor and Mr. Nale starting to grab, pull and push Mr. Nale and the contemnor also joined in by forcefully grabbing and pulling Mr. Nale. Asked in cross-examination whether he saw the contemnor assault Mr. Nale, the witness said he did. When pressed in cross-examination whether he saw the contemnor assault Mr. Nale, the witness said he saw the contemnor pushing and pulling Mr. Nale. When further pressed in cross-examination whether he saw the contemnor push Mr. Nale, he said no. Asked in re-examination whether he saw the contemnor pull or push Mr. Nale, the witness said the contemnor held Mr. Nale around the waist and hands for about 2 to 3 minutes while others were pulling and pushing him. All the while, Mr. Nale was struggling to free himself.
37. Mr. Nale forcefully moved to the front of the Grey Vehicle and Blue Vehicle and moved further towards the driveway of the car park. Mr. Nale then managed to free himself and ran along the driveway, up the concrete ramp and into the Courtyard of the Courthouse.
38. Sergeant Kur followed Mr. Nale up into the Courtyard of the Courthouse while preventing any pursuit.
39. A few minutes later, the contemnor and his supporters got into the Blue Vehicle and drove away.
40. The Grey Vehicle was also driven away.
41. After a while, when the situation at the Courthouse Car Park was calm, Senior Sergeant Kur escorted Mr. Nale to their vehicle and took him away.
42. The right sleeve of Mr. Nale’s white shirt was torn into two or three strips.
43. Asked under cross-examination whether he knew both Mr. Nale and the contemnor personally, he said he did not know any of them.
McRonald Nale
44. He is the Managing Partner of the Port Moresby law firm, Jema Lawyers who were lawyers for the defendants in proceedings WS No.757 of 2014.
45. On 9 February 2015 at about 1:15 pm, he went to the National Court in Waigani as proceedings WS No.757 of 2014 was scheduled for hearing at 1:30 pm. A true copy of the writ of summons filed in proceedings WS No.757 of 2014 is annexure “A” to Exhibit “E”.
46. The proceedings WS No.757 of 2014 was a claim for K4.9 million as compensation for the death of the deceased who allegedly died in a fatal motor vehicle accident in the early hours of 18 January 2014 in Port Moresby. It was alleged that the deceased was a passenger on the trailer of the Nissan Navara driven by Deheray which crashed into a concrete flower pot in the middle of the road when he lost control of the vehicle while negotiating the roundabout at South Pacific Brewery at Gordon’s along the Poreporena Freeway and was thrown off the vehicle onto the road sustaining severe head injuries and was pronounced dead on arrival at the hospital. It was alleged that in order to avoid any retaliatory action in connection with the death of the deceased and to maintain peace between the relatives of the deceased and Deheray, the Peace Agreement was signed. Under the Peace Agreement, it was agreed, among others, that the defendants would pay and the plaintiffs would accept K5 million in compensation for the death of the deceased. A true copy of the Peace Agreement is annexure “B” to the contemnor’s affidavit filed on 2 July 2014 in proceedings WS No.757 of 2014 which is annexure “D” to Exhibit “E”.
47. In the first defendant’s defence filed on 20 August 2014, he admitted signing the Peace Agreement, but denied liability as; the Peace Agreement was invalid having signed it under duress, as a result of being threatened and intimidated; the claim for customary compensation and the Peace Agreement contravened the Motor Vehicles (Third Party Insurance) Act; and there was no reasonable cause of action against it and the claim was frivolous and vexatious. A true copy of the first defendant’s defence is annexure “B” to Exhibit “E”.
48. In the second defendant’s defence also filed on 20 August 2014, it denied liability as; it was not a party to the Peace Agreement; the Board or shareholders of the second defendant did not resolve to pay the plaintiffs’ claim; the claim was contrary to law; and there was no reasonable cause of action against it and the claim was frivolous and vexatious. A true copy of the second defendant’s defence is annexure “C” to Exhibit “E”.
49. The contemnor’s claim in proceedings WS No.757 of 2014 ought to have been made against Motor Vehicles Insurance Limited.
50. He mentioned proceedings WS No.757 of 2014 before Sakora, J and was ready to move the 23 October Notice of Motion to dismiss those proceedings when Mr. Wariniki interrupted, and without him being made aware earlier, informed the Court that parties were discussing settlement and requested that the application be adjourned. He objected to the application for adjournment and informed the Court that he had no such instructions from his client but had instructions to proceed with the application. The Court adjourned his client’s application to 4 March 2015 for hearing. After the Court granted the adjournment, he discussed the matter with Messrs Wariniki and Lai. He then left the Court room and walked to the Courthouse Car Park.
51. As he was walking down the concrete footpath after leaving the main entrance to the Courthouse, he called his client, Mr. Nahare on his cell phone and updated him on what transpired in Court. As he walked past the ADR Centre building, he saw Mr. Waraniki talking to the contemnor and his supporters at the Courthouse Car Park. They were standing close to where Mr. Nahare’s vehicle, an open back, Toyota Land Cruiser bearing registration number BEH 315 (Vehicle BEH 315) was parked. It was parked facing the District (Committal) Court.
52. When he reached the Courthouse Car Park, the contemnor asked to speak with him. He insisted to speak to him in the presence of Mr. Wariniki, but he told him that he had to go and so he got into Vehicle BEH 315. Brian Wap, a relative of his client, got into the driver’s seat and started to reverse Vehicle BEH 315 when he heard someone tapping on the vehicle and Mr. Wap stopped the vehicle. He turned and saw the contemnor standing at the rear of the vehicle and stopping them from reversing. The contemnor, in a very aggressive way and loud enough for people there to hear what he was saying, demanded that he get out of the vehicle. The contemnor was very angry. The contemnor expressed his disappointment about his client’s attitude and the submissions he made in Court. Asked in cross-examination whether he knew the contemnor before the alleged incident, the witness said he did.
53. When he alighted from Vehicle BEH 315, there was a commotion as the contemnor and his supporters began shouting at him and those he was with. There were a lot of people gathering where Vehicle BEH 315 was parked close to the north west corner of the car park. In cross-examination, the witness said he was surrounded by people and they were drawing closer to where they were.
54. The contemnor shouted at him and said, among others,; “Lawyer you are lying ... you should not mislead the Court.” The contemnor went on further to say words to the effect in Tok Pisin, John tasol stopim payment .. na lawyer you no ken giaman .. me wokim easy long John long company long payim me.” (John is the one who is stopping the payment. Lawyer you should not lie about this. I am the one who is taking off the burden from John so that the company would pay me). By this, the contemnor was saying that he should tell his clients to pay his claim of K4.9 million.
55. All of a sudden, the contemnor reached out and grabbed him by his white shirt very forcefully and shouted in a very loud and angry voice, “Get into my vehicle .. hurry up, you come into my vehicle.” In re-examination, the witness said the contemnor grabbed him by his right arm and was pulling him. He was in fear of his life. When it was put to the witness in cross-examination that the contemnor did not assault him physically, but wanted to shake hands with him, the witness disagreed and said at no time did the contemnor wanted to shake hands with him. In cross-examination, the witness said the contemnor did not punch him.
56. He was then pulled by the contemnor in the direction of his vehicle and told him to get into his vehicle, a Toyota Land Cruiser, 10 seater which was parked near Vehicle BEH 315. The contemnor had more than 50 supporters with him and some of them came to his assistance and pulled him in the direction of the contemnor’s vehicle. While being pulled by the contemnor’s supporters, they threw punches at him at various parts of his body and so most of the time, he had his head dug under his hands to protect his face.
57. He was terrified and struggled to get away from the contemnor and his supporters. Judicial security officers and those men he was with went to his defence and tried to pull him away from the contemnor and his supporters. In the process, his shirt was torn. Annexures A” to “D” are photographs of himself showing his torn white shirt from four different angles. His shirt was intact before the alleged incident.
58. He then forced his way through a gap in the rowdy crowd and ran up the concrete footpath and into the Courtyard of the Courthouse.
59. After a while, he was escorted by police officers and Judicial Security Officers from the Courtyard of the Courthouse to the Courthouse Car Park where a police vehicle was waiting for him. The police vehicle then took him away.
60. He did not expect a man of the contemnor’s standing to do such a thing.
61. He laid a formal complaint at the Boroko Police Station. The contemnor was later arrested and charged for assault.
62. On 12 March 2015, the plaintiffs in proceedings WS No.757 of 2014 filed a notice of motion seeking leave to discontinue or withdraw. The Court granted the plaintiffs leave to withdraw those proceedings and ordered that the defendants’ costs be paid by the plaintiffs on a solicitor/client basis. Annexures “E” and “F” respectively to Exhibit “D” are true copies of the notice of motion filed on 12 March 2015 and order filed on 17 March 2015.
David Pekau
63. He is a Senior Constable in the Royal PNG Constabulary.
64. On 9 February 2015, at about 1:30 pm on 9 February 2015, he was with Senior Sergeant Kur, Senior Constable Samson Pantan, Senior Constable Samuel Koy and Reserve Constable Richard Yanduo when they entered the Courthouse Car Park in a police vehicle. They were there to provide security to Mr. Nale and supporters of Mr. Nahare who were attending a hearing involving proceedings WS No.757 of 2014. Senior Sergeant Kur then instructed Senior Constable Koy and himself to go to Court Room 3 to escort Mr. Nale and Mr. Nahare’s supporters to their vehicle parked at the Courthouse Car Park and they did.
65. They met Mr. Nale who was wearing a white shirt and a black long trousers and several supporters of Mr. Nahare at the Courtyard of the Courthouse near the stairs leading up to Court Room 3.
66. Senior Constable Koy and himself escorted Mr. Nale and other men down the footpath to the Courthouse Car Park where their vehicle, a grey, open back Toyota Land Cruiser, (Grey Vehicle) was parked. Mr. Nale got into the front passenger seat of the vehicle.
67. He and Senior Constable Koy then went to their police vehicle which was parked on the opposite side to where the Grey Vehicle was parked. They were closely watching Mr. Nale and his clients in their vehicle as they could sense the tension at the car park was high. A man whom he later found out was the contemnor and the first plaintiff in proceedings WS No.757 of 2014 was with his supporters at the car park. The contemnor’s blue Toyota Land Cruiser 10 seater was parked next to the Grey Vehicle.
68. As the driver was reversing the Grey Vehicle, the contemnor stood at the rear of the vehicle and blocked the path of the vehicle. He observed and heard the contemnor suggesting to Mr. Nale that both of them have a discussion before departing. Mr. Nale appeared to be afraid. Asked in cross-examination as to what he saw and heard, the witness said the contemnor was shouting in a loud voice at Mr. Nale and saying something to him. Someone in the crowd shouted at Mr. Nale and his clients and suddenly the contemnor rushed towards Mr. Nale and grabbed him forcefully by his white shirt. Asked in cross-examination whether the contemnor assaulted Mr. Nale, the witness said the contemnor walked up from the back of the Grey Vehicle and held Mr. Nale by his shirt. The contemnor’s men also came to his assistance and threw punches at Mr. Nale. Under re-examination, the witness said Mr. Nale was trying to get into the vehicle when he was grabbed by the contemnor and his supporters. Asked in further re-examination how many people assisted the contemnor, the witness said about seven people including the contemnor assaulted Mr. Nale.
69. Mr. Nale escaped and ran up the footpath and into the Courtyard of the Courthouse. As Mr. Nale was running up the footpath, he heard and saw two men shouting at Mr. Nale in Tok Pisin “shootim em, shootim em” (shoot him, shoot him). However, they were unarmed and were only trying to scare Mr. Nale. Asked in re-examination whether other people tried to stop what was happening, the witness said yes.
70. Later, the contemnor drove off in his vehicle.
71. Sgt Kur then went up to the Courtyard of the Courthouse and together with the judiciary’s security officers escorted Mr. Nale down to the police vehicle and they took him away to Mr. Nahare’s place at Koki Nest.
72. He noticed that Mr. Nale’s shirt was torn when he was brought to their vehicle.
Samson Pantan
73. He is a Senior Constable in the Royal PNG Constabulary.
74. On 9 February 2015, at about 1:30 pm on 9 February 2015, he was with Senior Sergeant Kur, Senior Constable David Pekau, Senior Constable Samuel Koy and Reserve Constable Richard Yanduo when they entered the Courthouse Car Park in a police vehicle. They were there to provide security to Mr. Nale and supporters of Mr. Nahare who were attending a hearing involving proceedings WS No.757 of 2014. Senior Sergeant Kur then instructed Senior Constable Pekau and Senior Constable Koy to go to Court Room 3 where proceedings WS No.757 of 2014 was being heard to escort Mr. Nale and Mr. Nahare’s supporters to their vehicle parked at the Courthouse Car Park and they did.
75. A short while later, he saw a gentleman, whom he now knows as Mr. Nale, in a black trousers and white shirt with several other men walking down the footpath leading to the Courthouse Car Park escorted by Senior Constable Pekau and Senior Constable Koy who were walking a few feet behind them.
76. When Mr. Nale and his companions reached their vehicle, a grey, open back Toyota Land Cruiser, (Grey Vehicle) parked at the Courthouse Car Park, they were surrounded by an elderly man and his supporters. He now knows the elderly man as the contemnor who was the plaintiff in proceedings WS No.757 of 2014. He saw the contemnor talking to Mr. Nale for several minutes. When it seemed that their conversation had ended and Mr. Nale tried to settle into the passenger’s seat, the contemnor rushed towards Mr. Nale and forcefully pulled him out of the Grey Vehicle. When it was put to the witness in cross-examination that there was already evidence before the Court suggesting that Mr. Nale was outside when the commotion started, he said he saw the contemnor pull Mr. Nale out of the Grey Vehicle. When Mr. Nale was pulled out, the contemnor and his men tried to pull him away from the Grey Vehicle and force him into the contemnor’s vehicle, a blue Toyota Land Cruiser 10-seater which was parked next to the Grey Vehicle. When it was put to the witness in cross-examination that the contemnor did not pull Mr. Nale out of the Grey Vehicle, the witness said no. Under re-examination when the witness was asked whether he saw the contemnor grab Mr. Nale, he said the contemnor pulled him out. In re-examination, the witness said he was observing from the police vehicle which was parked about 2 metres from where the commotion was.
77. There was then a wrestle between the contemnor and his men and Mr. Nale and the men with him. He saw Judiciary Security Officers come to the defence of Mr. Nale and tried to stop the contemnor and his supporters from assaulting Mr. Nale. All the while, he heard and saw some of the contemnor’s supporters shouting at Mr. Nale in Tok Pisin saying “yu lawyer blo we, yu waitman ah?” (Where are you from, are you a foreigner?). In re-examination, the witness said the contemnor also made those remarks and the atmosphere was tense. After several minutes of struggling, Mr. Nale managed to escape from the rowdy crowd and ran up the footpath and into the Courtyard of the Courthouse. He noticed that Mr. Nale’s white shirt was torn at the back when he escaped from the rowdy crowd.
78. After Mr. Nale escaped, the Judiciary Security Officers demanded that the contemnor and his supporters leave the Courthouse Car Park and they left.
79. When the situation at the car park was calm, Senior Sergeant Kur and Judiciary Security Officers escorted Mr. Nale from the Courtyard of the Courthouse to the Courthouse Car Park and they took him away in their police vehicle.
Ben Kemen
80. He is employed by the National Judicial Staff Service as a Security Officer.
81. At about 1:30 pm on 9 February 2015, he was on duty and at the front of the reception area of the HR Office/Administration Office which was located at the back of the ADR Centre and talking with a Training Officer, Stanley Kokiva when he heard loud voices and screaming coming from the direction of the Courthouse Car Park. He immediately ran up to the Courthouse Car Park and noticed a group of men attacking a gentleman (gentleman). He thought the gentleman was a lawyer as he was wearing a black trousers and a white shirt and was holding a lawyer’s black gown and a file.
82. One group of men was pulling the gentleman and another with Joseph Simbaisipta, a Judicial Security Oficer was defending him and trying to pull him away from the other group of men. He ran into the crowd and assisted Mr. Simbaisipta and the others. The other group of men was trying to pull the gentleman into a nearby vehicle. As a result, the gentleman’s white shirt was torn. They managed to free the gentleman from the other group’s grasp.
83. The gentleman was escorted by police officers into the Courtyard of the Courthouse.
84. He remained at the Courthouse Car Park and saw the group of men who attacked the gentleman drive away in a Toyota Land Cruiser.
85. The gentleman was escorted by police officers and Judicial Security officers from the Courtyard of the Courthouse to the police vehicle at the Courthouse Car Park and they drove away with him.
Ronson Gunisa
86. He is employed by the National Judicial Staff Service as a Court Attendant/Interpreter.
87. On 9 February 2015, at about 1:50 pm, he was returning from the Court Room Services Office to attend the sittings of the National Court at Court Room 9 which was scheduled to commence at 2:00 pm when he heard faded shouts and screams coming from the direction of the Courthouse Car Park.
88. He turned towards the direction of the Courthouse Car Park and at first peeped through the flowers and later from the footpath on the hilltop to have a good view of what was actually happening there. He saw a crowd moving quickly towards the Courthouse Car Park and suspected that there was a fight there. When it was put to the witness in cross-examination that he did not see what started the commotion, he said yes. He however noticed a gentleman dressed in a black trousers and a white shirt struggling to free himself from a group of about 10 to 15 men. It was apparent that the gentleman was a lawyer from the way he dressed.
89. The gentleman struggled to free himself as he was outnumbered, and he was being pushed around. He also saw some men launching punches at the gentleman.
90. He then saw Judicial Security officers intervene and tried to stop the group of men from pushing and punching the gentleman. It was then that the gentleman escaped and ran up the footpath and into the Courtyard of the Courthouse. The gentleman appeared to be badly hurt with scratches on his body and his white shirt was torn.
91. The assailants got on a blue Toyota Land Cruiser 10 seater and a white car and drove away.
John Endekyo
92. He is employed by the National Judicial Staff Service (NJSS) as a security officer. He is a member of the Reserve Police attached with the NJSS.
93. On 9 February 2015, at about 1:50 pm, he was on duty. He had left the Courthouse cell which is located at the bottom of the Courthouse and was walking along the access road to the cell towards the Courthouse Car Park when he saw people arguing with a gentleman wearing a black trousers and a white shirt at the Courthouse Car Park. It takes about 3 minutes to walk to the car park. He assumed that the gentleman was a lawyer. He had no idea as to how the commotion started. He also saw the contemnor, whom he knew as a former politician of the Nipa Kutubu Electorate, forcefully grabbing the gentleman on his shoulder and pulling him towards to his vehicle. The contemnor was wearing a black long trousers and a black suit. When it was suggested to the witness in cross-examination that he could have been mistaken about the identity of the contemnor, he said no.
94. The contemnor’s supporters numbering more than 10 men also went to the assistance of the contemnor and were arguing with
the lawyer. Asked in cross-examination as to how many people were there, the witness said more than 20 people were there including
the contemnor’s supporters. Ben Kemen and Joseph Simbaisipta, Judicial Security Officers and few other men went to the gentleman’s
defence and tried to pull him away from the contemnor and his men.
95. He went into the rowdy crowd and to the defence of the gentleman and shouted at the contemnor and his men in Tok Pisin and said
“dispela em court haus, ino ples blong yupla long fight. Yupla must respectim court haus. Yupla mus go out.” (This
is the premises of the Supreme and National Courts. It is not a place for physical battle. You people must respect the Court. You
must leave.) He could tell from the gentleman’s facial expression that he was concerned for his own safety and all the while
struggling to escape.
96. The gentleman was escorted to the Courtyard of the Courthouse.
97. The contemnor and his men then left the Courthouse Car Park in a Toyota Land Cruiser.
98. After a while, the gentleman was escorted down to a police vehicle waiting for him at the Courthouse Car Park and he was driven away.
SUMMARY OF CONTEMNOR’S EVIDENCE
Rotney Korobo
99. He is employed as a clerk with Pacific (Betting) Horse Racing. He is originally from Southern Highlands Province. He currently resides at 8 Mile outside of Port Moresby.
100. On 9 February 2015, he was at the Courthouse, Waigani to observe a case involving one of his brothers. He arrived between 10:00 am and 11:00 am and waited for his brother at the Courthouse Car Park. When his brother arrived, he accompanied him to one of the Court rooms. His case was adjourned so they went to the Courthouse Car Park and sat under the shade with some of their mates.
101. The alleged incident took place in broad daylight between 2:00 pm and 3:00 pm.
102. The contemnor exited the Court House and went to where he was. The contemnor called his friends and supporters together and was talking to them about his case. Noise was being made in the crowd that had gathered and there seem to be no one in control so the contemnor told the crowd to minimise the noise.
103. The contemnor also called to another group led by somebody whom he later found out was Mr. Nale, a lawyer. The contemnor told Mr. Nale to inform his client that he wanted lasting peace in order to avoid stress and more unwanted problems. It was then that the contemnor’s boys shouted from the back of the crowd that they agreed to make peace. A few people from Mr. Nale’s group responded by playing down the contemnor’s suggestion. Mr. Nale did not respond and excused himself from the crowd as it was obvious that he was nervous and visibly shaken by what was happening. There was disorder with people mumbling everywhere. No commotion or fighting of any kind took place between the contemnor’s group and Mr. Nale’s group.
104. When it was put to the witness in cross-examination that his account of what transpired on the afternoon of 9 February 2015 was incorrect as the incident started as a result of the contemnor blocking the vehicle Mr. Nale was in from reversing when he stood at its rear, the witness said that was a lie.
105. When it was put to the witness in cross-examination that the contemnor approached Mr. Nale and mentioned several things to him including that he was telling lies in Court, the witness said, the contemnor invited Mr. Nale to have a talk with him and did not pull Mr. Nale by his shirt. In re-examination, when asked if the contemnor said other things, the witness said the contemnor said ”stop, stop, stop.” In cross-examination, the witness said he was standing very close to the contemnor so he clearly observed what transpired and also heard everything he said. When pressed in cross-examination whether anyone was in front of him, the witness said some people whose names he did not know stood in front of him.
106. When it was put to the witness that the contemnor held Mr. Nale by his white shirt and told him to get out of his vehicle, the witness said the contemnor wanted to shake hands with Mr. Nale, but security guards pulled him away. When asked in cross-examination as to why would the security guards intervene and pull the contemnor back, the witness said he would not know. When it was put to the witness that the contemnor forcefully grabbed Mr. Nale by his arm and shoulder, the witness said that never happened. Further on in cross-examination, when it was put to the witness that the contemnor’s people were trying to assist the contemnor to pull Mr. Nale by his shirt, the witness said, the contemnor was neither assisted nor did he touch Mr. Nale as suggested. Later on in cross-examination, the witness said other people held Mr. Nale, but he could not identify who they were given the presence of the contemnor’s large group. When it was put to the witness in cross-examination that two people grabbed Mr. Nale when the contemnor went to shake hands with Mr. Nale, he said yes and also said that they were trying to protect him.
107. It was then that NJSS security guards took Mr. Nale and escorted him to the Courtyard of the Courthouse.
108. He did not see the contemnor or anyone punch or assault Mr Nale. He also did not see the contemnor break Mr. Nale’s shirt.
109. The contemnor and his group left in their waiting vehicles soon thereafter.
David Isaiah
110. He is from Wapenamanda, Enga Province. He has been employed by the NJSS as a security guard since 1 September 2014.
111. At the time of the alleged incident on the afternoon of 9 February 2015, he was on duty at the main entrance at the security check point. From where he was positioned, he saw a large crowd gathering at the Courthouse Car Park. He saw the contemnor, a former politician, standing in front of the crowd with raised hands to calm down the crowd. He quickly attended the scene and stood about one metre from the contemnor. Some young boys were making noise at the back of the crowd. He noticed that there were two groups, one led by the contemnor and the other by Mr. Nale, a lawyer.
112. He denied the allegations made against the contemnor. The witness said the contemnor with a raised voice appealed to Mr. Nale to advise his client to agree to a compromise for the sake of peace and good order amongst themselves. In cross-examination, the witness said the contemnor was not talking in a loud voice or screaming, but in a polite manner. Mr. Nale was embarrassed and became fearful for some reason and was escorted by their boys to the Courtyard of the Courthouse. The boys stayed with Mr. Nale until the crowd dispersed. When it was put to the witness in cross-examination that Mr. Nale had actually escaped and ran up the ramp into the Courtyard of the Courthouse, he said Mr. Nale was scared as there were many people around. When everyone had dispersed, they took Mr. Nale to his waiting vehicle and left.
113. He did not see the contemnor punch or assault Mr. Nale or hold him by his shirt or tear his clothes. He did not see the contemnor’s supporters assault or punch Mr. Nale. However, asked in cross-examination whether he saw security guards or police there to stop the situation, he said NJSS security guards, Thadeus, Frank, John Enedekyo, Joseph Simbaisipta and himself were there. He also said that a police vehicle was there too. He denied that other people went there to break up a fight. During further cross-examination, the witness said there was a fight, but it did not take long. Asked in cross-examination whether he was there to stop a fight, he said no and also said he was standing on the side. During further cross-examination and re-examination, the witness said there was no fighting; only talking going on.
Thadeus Pius
114. He is from Wabag, Enga Province. He has been employed by the NJSS as a security guard since 25 September 2012.
115. On Monday, 9 February 2015 between 2:00 pm and 3:00 pm, he was on duty and stationed at the Courthouse Car Park. Several cases were dealt with that day so there were many people and vehicles at the Courthouse Car Park. His attention was caught by two groups gathering at the car park to discuss settlement of a case. One group was led by a lawyer namely, Mr. Nale and the other group led by a prominent leader and former politician, the contemnor. Both Mr. Nale and the contemnor were in front of the crowd. The contemnor raised his hands to calm the crowd down and to address the crowd. He approached Mr. Nale and heard the contemnor suggest to him to inform his client that it was in their interests as brothers that the case be resolved amicably. Somebody at the back of the crowd was grumbling and this made the lawyer feel uncomfortable. No one threw any form of missile or assaulted anyone. Mr. Nale, without saying any word, dashed out from the crowd.
116. He and some of the security guards then took Mr. Nale to the Courtyard of the Courthouse and stayed with him until the crowd dispersed. The lawyer was later escorted to the Courthouse Car Park, got into his waiting vehicle and drove away.
117. When it was put to the witness in cross-examination that Mr. Nale was in a vehicle that was reversing to drive away when the contemnor standing at the rear of the vehicle stopped its progress, he said he did not see that. There was a large crowd who surrounded both Mr. Nale and the contemnor who were in the middle the witness said. The witness also said that Mr. Nale and the contemnor were standing at the same place and he was standing close by. When it was put to the witness during cross-examination that Mr. Nale’s body language in that situation demonstrated that he was uncomfortable, he said yes. When it was put to the witness that the contemnor approached Mr. Nale and told him that he was lying in Court and his client should pay to ease his burden, he said he did no hear that. The witness said the contemnor did not do anything else apart from shaking hands with Mr. Nale.
118. It was then that the contemnor’s supporters hit Mr. Nale and were pulling him. During cross-examination, the witness denied that the contemnor’s supporters punched Mr. Nale. In re-examination, the witness said that the supporters of Mr. Nale and the contemnor were only talking and the contemnor did not say anything to stir up a confrontation. When it was put to the witness in cross-examination that the contemnor attacked Mr. Nale and attempted to pull him out from the vehicle he was in, he denied that was the case. In further cross-examination, the witness denied the contemnor grabbing Mr. Nale by his shirt and telling him to get in his vehicle. The witness said as a “one man operation” and with the large crowd present, the evidence he was giving was about what he saw. Pressed in cross-examination that there was a fight, the witness said the contemnor’s supporters pulled Mr. Nale away and the contemnor stopped the fight and got in his vehicle. He later said there was no fight as he was standing in the middle. When it was put to the witness in cross-examination that Mr. Nale’s torn shirt shown in photographs in evidence was attributed to the actions of the contemnor and his supporters, he said that was not what happened. Asked in re-examination how long the argument had taken, the witness said approximately 5 minutes.
Kope Wesa
119. He is from Nipa-Kutubu, Southern Highlands.
120. On 9 February 2015, he accompanied the contemnor and other supporters to the Courthouse at Waigani to attend the hearing of an unmeritorious application to dismiss a case commenced by the contemnor against Mr. Nahare which was scheduled to be heard at 1:30 pm. The case was in relation to the death of the deceased.
121. They, the deceased’s relatives and supporters, were a bit furious as Mr. Nale lied to the Court when he objected strongly to the settlement of the case outside of Court which was contrary to the Court’s direction giving the parties two weeks to mediate and settle the case out of Court. In cross-examination, the witness said they were upset. When it was put to the witness in cross-examination that he was misleading the Court by stating in his affidavit that mediation to settle the case was taking place, he said it was Mr. Nale who misled the Court.
122. After the Court adjourned the hearing, they proceeded to the Courthouse Car Park. The contemnor called their boys together and also requested the other group led by Mr. Nale to come up with some suggestions to settle the case amicably once and for all. When both groups got together, the need to conclude the case which had been deliberately and technically prolonged into the second year and the concern that opportunists could take advantage of the situation and cause more problems for all of them given their tribal and community related problems, was raised. After the briefing was finished, the contemnor walked over to Mr. Nale and attempted to talk to him and also shake hands with him, but Mr. Nale’s supporters did not allow him to engage with the contemnor. Given the refusal, their boys got closer to Mr. Nale, surrounded him and tried to assault him, but the contemnor instantly defused the situation and stopped them. The contemnor appealed for calm and advised the supporters to get into their vehicle.
123. When it was put to the witness in cross-examination that Mr. Nale’s supporters were trying to protect him from the contemnor and his supporters when he was approached by them, he said he had no idea why there was a need to protect him. When it was put to the witness in cross-examination that the contemnor was shouting at Mr. Nale and telling him that he misled the Court and his client was not paying as agreed, he said he did not hear what was said as the conversation took less than 5 minutes. The witness then said after that they jumped on a vehicle and drove off.
124. He did not see the contemnor throw a punch or push Mr. Nale or grab him by his shirt and tear it in the course. He denied that the contemnor told Mr. Nale to get in the contemnor’s vehicle. He denied that the contemnor’s supporters tried to grab Mr. Nale and pull him to the contemnor’s vehicle. The allegation against the contemnor was a fabrication and Mr. Nale was telling lies. When it was put to the witness in cross-examination that the contemnor grabbed Mr. Nale by his shirt, he said he did not see that.
125. Asked in cross-examination whether he was aware that lawyers of opposing parties talk to each other about cases between them, the witness said yes. Asked further in cross-examination whether he was aware that a party’s lawyer was not allowed to speak to the opposing party, he said no.
126. Asked in cross-examination whether he saw Mr. Nale going to the Courthouse Car Park after the Court case and getting into his vehicle, the witness said he walked to the car park with his supporters, but did not see him get into a vehicle. He said Mr. Nale was standing around.
127. When it was put to the witness in cross-examination that the vehicle Mr. Nale was in was reversing when the contemnor stood at the rear of the vehicle to stop it and was shouting at Mr. Nale in an angry voice, he denied that was the case. When it was put to the witness in cross-examination that Mr. Nale got out of the vehicle after that, he said he did not see that.
128. Asked in cross-examination as to how far he was standing from Mr. Nale when he saw him at the Courthouse Car Park, the witness said 6 to 7 metres. The witness said he could clearly observe what was happening from where he was standing.
129. Asked in cross-examination where Mr. Nale might have gone to after he saw him at the Courthouse Car Park, the witness said after the little discussions had taken place, he did not see Mr. Nale get into a vehicle, but he was standing around.
130. When the witness was referred to the photographs in evidence, he said the images were that of Mr. Nale’s face. When it was put to the witness in further cross-examination that what was captured in the photographs was caused by the contemnor and his supporters, he said there was no time to take photographs and that no media of any form was engaged to take photographs. The witness said he knew Mr. Nale, but did not see him with a torn shirt.
Robert Kopaol
131. He is the contemnor.
132. He is the father of the deceased who died as a result of a motor vehicle accident that occurred in the early hours of 18 January 2014 at the roundabout near SP Brewery, Gordon’s along the Poreporena Freeway. The driver of the Nissan Navara the deceased was a passenger on was Deheray from Erave and the deceased was from Nipa both in the Southern Highlands Province.
133. A Peace Agreement was signed on 27 January 2014 at the Ela Beach Hotel between the relatives of the deceased and the driver in a peaceful environment after Mr. Nahare had made changes to it to avert trouble occurring between them. At the signing, he led the deceased’s relatives while the driver’s father led the driver’s relatives. The agreement was that the deceased’s relatives would accept the death of the deceased and would ensure that peace prevailed if the driver’s relatives paid compensation for the death of the deceased in the sum of K5 million. A part payment of K100,000.00 was made at the Police Station therefore K4.9 million was owing under the Peace Agreement.
134. He commenced proceedings WS No.757 of 2014 to enforce the Peace Agreement which was defended when defences were filed denying liability asserting that the Peace Agreement was invalid as it was signed under duress and the claim should have been pursued under the Motor Vehicles (Third Party Insurance) Act. There were ongoing negotiations between the parties to settle the claim.
135. On 9 February 2015, he went late to Court. After 1:30 pm following the adjournment of proceedings WS No.757 of 2014, he was briefed by his lawyer, Mr. Wariniki on what transpired at the hearing in Court outside at the Courthouse Car Park in the presence of his supporters. An adjournment was sought so that parties could continue to negotiate a settlement out of Court.
136. Mr. Nale, the lawyer for Mr. Nahare, arrived at the Courthouse Car Park later. He thought that it was the best time for the parties to converse for the good of all of them so he requested to talk to both parties to strengthen peace resolutions and efforts made to achieve a mediated settlement.
137. Their vehicles were parked close to each other. He stood at the side of the vehicles and urged supporters of both sides to continue to maintain peace notwithstanding that the case had been dragged into the second year. He was personally quite upset with Mr. Nahare because if it were not for his delay-tactics, dishonesty and going into hiding by his lack of direct involvement to resolve the case demonstrated by using his Chairman to negotiate a settlement on his behalf on the one hand while instructing his lawyer to proceed with his application on the other hand, the case would not have entered the second year. Mr. Nahare’s conduct was creating an environment for opportunists from both sides to cause more problems for both sides. A few others present made similar remarks.
138. After he finished talking, he walked over to Mr. Nale to pass on a message to Mr. Nahare for a swift ending of the case as he did not attend Court. He reached out to shake hands with Mr. Nale, but Mr. Nale’s boys stopped him from getting any closer to him. His supporters surrounded Mr. Nale and tried to assault him, but he raised his voice and yelled at them in Tok Pisin “stop, stop, stop - yupla igo bek long car bilong yupla” (stop, stop stop - go back to your vehicle) and they did instantly. When it was put to the witness that his supporters were angry, he said yes. He had about 60 supporters there and Mr. Nale had many supporters as well so anything could have gone wrong had he lost control. It was a difficult situation to tell who did what. He called for calm and told his supporters to get back to their vehicle. He was not happy with the behaviour of his supporters.
139. When it was put to the witness that Mr. Nale got into a vehicle and the vehicle he was in was being reversed when he stood at the back to stop it, he said Mr. Nale never went into the vehicle, but was standing outside on the side about a metre away to the left. He himself was standing on the side.
140. When it was put to the witness in cross-examination that he was upset with Mr. Nale as he was opposing his claim when he wanted to move an application to dismiss proceedings WS No.757 of 2014, he said yes. Upon further cross-examination, the witness said that he was also annoyed with Mr. Nale as he told the Court lies. Further into cross-examination, he recanted and said he was not angry with Mr. Nale. When it was put to the witness in cross-examination that one of the grounds for moving the application to dismiss proceedings WS No.757 of 2014 was that his claim ought to have been pursued under the Motor Vehicles (Third Party Insurance) Act, he said parties were negotiating settlement.
141. Further into cross-examination, he denied shouting at Mr. Nale and telling him that he was lying and misleading the Court as he was not angry with him, but with Mr. Nahare, and shook hands with Mr Nale after that. When it was put to the witness that his anger with Mr. Nahare had built up so he took it out on his lawyer instead with the support of his angry supporters, he said Mr. Nale ran away and sustained no injuries.
142. The witness was asked in cross-examination in a series of questions as to why he did not respond to Mr. Nale’s allegation that he was grabbed by his shirt, pulled and his shirt was torn in the process, he said he did not touch, punch or pull Mr. Nale or tear his shirt as alleged by Mr. Nale and he was only presenting his side of the story.
143. In further cross-examination, the witness said Mr. Nale told lies in Court and therefore provoked his supporters who punched him. Fortunately, he was there to calm the situation down as the situation at the time was tense and still is currently. Mr. Nale’s refusal to shake hands with him caused the incident complained of.
144. When it was put to the witness in cross-examination that he grabbed Mr. Nale and tried to pull him out of the vehicle he was in and into his vehicle, he said he did not.
145. He was referred to the photographs of Mr. Nale with images showing that he was wearing a torn white shirt in Mr. Nale’s affidavit (annexures “A” to “D”, Exhibit “D”) and when it was put to the witness that that was the result of he and his supporters trying to pull Mr. Nale to his vehicle, he denied that was the case. In re-examination, he said he did not see Mr. Nale escaping with a torn shirt.
146. He saw a police vehicle there, but the police did not intervene. Security guards were there, but there was no time or opportunity for them to act within the short time in which the emotionally charged confrontation occurred.
147. He did not punch Mr. Nale or had any intention to do so. If he had such an intention, it would have been planned and carried out by his boys elsewhere in the city, outside of the Court premises.
148. As a former Member of Parliament for the Nipa-Kutubu Open Electorate, Southern Highlands Province, former State Minister and a leader, he still commands a lot of respect and he respects his people. It was too low for him to be fighting a lawyer in the precincts of the Courthouse as an elite, leader with his level of education and standing.
149. Asked in re-examination if he said anything that made his supporters become angry, the witness said no. He was not happy with Mr. Nahare only.
150. He was charged in the District Court in connection with the events at the Courthouse Car Park and found not guilty.
UNDISPUTED FACTS
151. From all the evidence before me, the following facts appear to me not to be disputed:
1. The deceased who is the contemnor’s son allegedly died in a motor vehicle accident in the early hours of 18 January 2014 at Gordon’s along the Poreporena Freeway while the vehicle he was on as a passenger on the trailer of the vehicle driven by Mr. Nahare’s son was negotiating the roundabout near the South Pacific Brewery.
2. The Peace Agreement was signed on 27 January 2014 for compensation in the sum of K5 million to be paid.
3. A part-payment of the sum of K100,000.00 was allegedly paid to the contemnor.
4. On 2 July 2014, proceedings WS 757 of 2014 was filed to enforce the terms of the Peace Agreement and through which it was alleged that a balance of K4.9 million was still due and owing.
5. On 20 August 2014, in separate defences filed, the defendants denied liability on the basis that the Peace Agreement was invalid as it was signed under duress and, among others, contravened the Motor Vehicles (Third Party Insurance) Act; and the proceedings disclosed no reasonable cause of action or were frivolous or vexatious.
6. The 23 October Notice of Motion was filed by the first defendant, Mr. Nahare to dismiss the proceedings.
7. The 23 October Notice of Motion was fixed for hearing before Sakora. J on 9 February 2015 at 1:30 pm.
8. Mr. Nale is a lawyer and an officer of the Court.
9. Mr. Nale wore a white shirt.
10. Mr. Nale appeared before Sakora, J on 9 February 2015 at about 1:30 pm or shortly thereafter and was about to move the 23 October Notice of Motion when Mr. Wariniki, acting for the contemnor, sought an adjournment as he informed the Court that the parties were discussing a possible out of court settlement.
11. Mr. Nale opposed the application for adjournment as he said he had no such instructions from his clients about any out of court settlement discussions and had instructions to move the 23 October Notice of Motion.
12. The application to adjourn the hearing of the 23 October Notice of Motion by Mr. Wariniki was granted and the motion rescheduled for hearing on 4 March 2015.
13. After the adjournment, Mr. Nale left the Court room and walked down to the Courthouse Car Park in order for him to be transported out of the Court premises.
14. Mr. Wariniki, the contemnor and his supporters (about 50 or more) were already at the Courthouse Car Park with Mr. Wariniki talking to them.
16. Mr. Nale and the contemnor know each other.
17. When Mr. Nale arrived at the Courthouse Car Park, the contemnor asked Mr. Nale if he could speak with him.
18. The contemnor did not punch Mr. Nale.
19. The alleged incident took place after the hearing outside the Courthouse at the Courthouse Car Park at around 2:00 pm or thereabouts.
DISPUTED FACTS
152. From all the evidence before the Court, the following facts appear to me to be disputed:
ISSUE
153. The substantive issue in this trial is, whether the contemnor is guilty of contempt of court?
PROSECUTION’S SUBMISSIONS
154. Mr. Wood for the prosecution submitted that the actions and/or words of the contemnor were intended to cause or had a real potential to cause Mr. Nale not to move the 23 October Notice of Motion on 4 March 2015 and were intended or likely to impinge on Mr. Nale’s duty to assist the Court to reach a result which would follow in the ordinary course. It was argued that the conduct of the contemnor had the effect or potential of intimidating Mr. Nale which presented a real risk of hampering his ability as an officer of the Court to freely assist the Court in the proceedings.
155. In addition, it was contended that the actions and/or words of the contemnor were intended to cause or would likely cause Mr. Nale to encourage or persuade his clients to agree to the orders and relief sought in the writ of summons filed in proceedings WS No.757 of 2014 notwithstanding that there was an application to dismiss those proceedings for failing to disclose a reasonable cause of action against Mr. Nale’s clients.
156. It was submitted that there is no doubt that the actions and words of the contemnor were intended to interfere with the course of justice and to obtain a result of legal proceedings different from that which would follow in the ordinary course. It was therefore argued that the contemnor’s conduct was to induce or had a real potential to induce Mr. Nale, an officer of the Court, to depart from the course of his duty to the Court, and to adopt a course he would not otherwise pursue. It is a contempt of the highest order it was submitted.
CONTEMNOR’S SUBMISSIONS
157. Mr. Yansion for the contemnor contends that the contemnor could not be guilty of contempt of court as he did not punch Mr. Nale. This was confirmed by Mr. Nale in cross-examination he said.
158. Mr. Yansion also argued that charges must be clear, unambiguous and unequivocal. He said the originating summons and statement of charge lacked that as they were framed in very confusing terms. Hence, every single witness did not know or understand what the word “assault” meant and that was demonstrated in their evidence. What type of assault complained of is not clearly specified Mr. Yansion said. Counsel argued that in any event, the act of the alleged assault was not proved beyond reasonable doubt and therefore the proceedings should be dismissed and the contemnor be acquitted.
159. In addition, Mr. Yansion contended that the Court should take judicial notice of the dismissal of the assault charge laid against the contemnor under Section 6 of the Summary Offences Act by the Boroko District Court in connection with the events at the Courthouse Car Park of 9 February 2015 for want of evidence and consider that in favour of the contemnor.
REASONS FOR DECISION
Law
160. Section 37(2) of the Constitution recognises the offence of contempt of court as an exception to the law that nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law. It states:
Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
161. Sections 160(2) and 163(2) of the Constitution empowers both the Supreme Court and National Court as superior courts of record to punish those who commit the offence of contempt of court against them.
162. Contempt of court is a criminal offence: Andrew Kwimberi v The State (1998) SC545. Hence, the conventional and proper way of conducting a trial for a charge of contempt of court is to conduct it as if it were a criminal trial: Andrew Kwimberi v The State (1998) SC545.
163. The essential elements of the offence of contempt of court were set out by the Supreme Court in Andrew Kwimberi v The State (1998) SC545 and have been adopted and applied in numerous decisions of the National Court since then. They are:
164. The party prosecuting the charge bears the onus of proving each of the elements of the offence of contempt of court according to the criminal standard of proof, i.e., beyond reasonable doubt: Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533, Andrew Kwimberi v The State (1998) SC545.
Findings of fact on disputed facts
165. I have summarised the evidence of all witnesses called in support of or against the allegation that the contemnor was in contempt of court on 9 February 2015. Only Marere Ivaharia was not called to give an oral testimony. In any event, his evidence is not relevant to the incident complained of.
166. Of all the witnesses called or whose evidence is relied on by the opposing parties to determine the substantive issue before the Court, I prefer the evidence of the prosecution’s witnesses. They were credible witnesses and each of them gave a truthful account of what transpired on 9 February 2015. They have produced overwhelming evidence. There were no material or serious inconsistencies in their evidence, they were not evasive and stood the test of cross-examination. The demeanour of each of the prosecution’s witnesses in the witness box was good.
167. The evidence of Mr. Nale, in particular was not disturbed at all in cross-examination. His evidence is corroborated by Sgt. Kur, Sen. Const. Koy, Sen. Const. Pekau, Sen. Const. Pantan and Mr. Endekyo when they say that the contemnor was physically involved in the assault of Mr. Nale together with his supporters. Mr. Ben Kemen and Mr. Gunisa both confirm that Mr. Nale who was referred to generally as “the gentleman dressed in a black trousers and a white shirt” was assaulted during the commotion at the Courthouse Car Park.
168. The same cannot be said about the evidence adduced for and in support of the contemnor’s case. They were not truthful or reliable witnesses. The evidence adduced shows serious inconsistencies and the witnesses were very evasive in cross-examination and told half-truths. The demeanour of each of the contemnor’s witnesses was poor in the witness box.
169. The evidence before the Court supports the following findings of fact:
Charges to be clear, unambiguous and unequivocal
170. I concur with Mr. Yansion’s submission that charges must be clear, unambiguous and unequivocal, but in the present case I do not see how they (both the main and alternative counts) are not. The statement of charge clearly pleads the alleged contempt and the elements of the offence of contempt of court are demonstrated and supported by the short facts relied on.
Act or omission
171. Mr. Yansion’s submission that the contemnor could not be guilty of contempt of court as he did not punch Mr. Nale is misconceived.
172. In Osborn’s Concise Law Dictionary, Tenth Edition, Sweet & Maxwel, 2005 the word “assault” is defined in the following terms:
An assault is any act committed intentionally or recklessly, which leads another person to fear immediate personal violence.
173. For purpose of guidance, I have also considered the definitions of the term “assault” under Section 6(2) of the Summary Offences Act and Section 243(1) of the Criminal Code. The definitions are similar.
174. Section 6(2) of the Summary Offences Act states:
For the purposes of this section, a person who—
(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or
(b) by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent,
under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,
is deemed to assault that person.
175. The contemnor and his supporters grabbed and pulled Mr. Nale as I have found already. The contemnor’s actions encouraged or incited his supporters, whose names are unknown, to do what they did. The act of grabbing and pulling of Mr. Nale was deliberate and intentional and the evidence shows that he was in fear of immediate personal violence. Any force applied to the person of Mr. Nale by touch or otherwise without his consent was sufficient to constitute assault. There is also evidence that demonstrates that the contemnor’s supporters punched Mr. Nale on various parts of his body during the commotion. This was confirmed by the contemnor himself in cross-examination when he said that his supporters punched Mr. Nale because he told lies in Court.
176. As to Mr. Yansion’s argument that every single witness did not know or understand what the word “assault” meant and that was demonstrated in their evidence and the assault complained of was not clearly specified is misconceived or ill-thought-out. It was only for the contemnor to understand the charge as is required by Section 37(4)(b) of the Constitution. Section 37(4)(b) provides that ‘[a] person charged with an offence shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged’. The contemnor did not take issue with this when he was arraigned.
177. As to the type of assault complained about, I am of the view that the short facts are clearly pleaded in the statement of charge at paragraph 9. The allegation was that the contemnor and his supporters grabbed and pulled Mr. Nale in the direction of the contemnor’s vehicle and I have made relevant findings of fact in that regard above.
178. I have considered Mr. Yansion’s contention that I should take judicial notice of the dismissal of the assault charge laid in the Boroko District Court under Section 6 of the Summary Offences Act for want of evidence. Mr. Nale’s evidence is that he laid a formal complaint at the Boroko Police Station following the events of 9 February 2015 at the Courthouse Car Park and the contemnor was later arrested and charged for assault. The contemnor’s evidence is that he was charged and found not guilty by the District Court.
179. Criminal proceedings in the District Court are usually commenced by the laying of an Information and a Summons to a Person on Information issued by the District Court to compel a defendant to appear in Court on a date, time and place specified to answer the Information and to be further dealt with according to law. I consider the evidence before the Court as insufficient or lacking with regard to how the dismissal of the assault charge, if true, was attained. No Court documents have been produced in evidence such as true copies of the relevant Information, Summons to a Person on Information, record of proceedings or depositions, reasons for decision, Order of Dismissal of an Information, and Certificate of Dismissal to add strength to Mr. Yansion’s contention and to compel the prosecution to make an appropriate response by way of rebuttal evidence as to my mind, a general statement without any details is not good enough. In addition, if is true that the assault charge was dismissed for want of evidence, at what stage of the criminal proceedings was that decided? This uncertainty neither assists the Court to appreciate what might have happened in the Boroko District Court nor does it benefit the contemnor. Accordingly, I reject Mr. Yansion’s contention.
180. Did the contemnor assault Mr. Nale or that his actions encouraged or incite other unknown people to assault Mr. Nale outside the Courthouse at the Courthouse Car Park? Yes. The first element has been proven beyond reasonable doubt.
Act or omission committed in the face of the court or outside court
181. It is not disputed that the incident occurred outside the Courthouse at the Courthouse Car Park and within the precincts of the Courthouse after proceedings WS No.757 of 2014 were adjourned.
182. As to the sacrosanctity of a courthouse and its precincts, I would concur with and adopt as mine the observations of Cannings, J in Ian Augerea, v Hon Anton Yagama MP (2013) N5437 where at paragraph 21 of the judgment, His Honour said:
A courthouse and the immediate physical area in which it is situated are special, sacrosanct areas. All persons who come into these areas must preserve the peace. To engage in any rowdy or violent behaviour is a show of disrespect to the Court.
183. The second element has been proven beyond reasonable doubt.
Act or omission intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice
184. It is an undisputed fact that Mr. Nale is a lawyer and an officer of the Court. Mr. Nale was assaulted by the contemnor and his supporters at the Courthouse Car Park after proceedings WS No.757 of 2014 were adjourned to 4 March 2015 for hearing of Mr. Nale’s client’s application to dismiss those proceedings which was pursued by the 23 October Notice of Motion.
185. A lawyer is an officer of the Court and his duty to the Court takes priority over his duty to his client: Peter Bire v Dr Philip Kereme (2016) N6328. Any act or omission committed against an officer of the Court or a party to court proceedings in reference to ongoing court proceedings which causes or intends to cause or is likely to cause an interference with the due administration of justice is a contempt of Court: French v French (1824) 1 Hog 138, Re Ludlow Charities, Lechmere Charlton’s Case [1837] EngR 524; (1837) 2 My & Cr 316, R v James Martin (1848) 5 Cox 356, Re Johnson [1887] UKLawRpKQB 172; (1887) 20 QBD 68 CA, Brown v Putnam (1975) 6 ALR 307, Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506, Ian Augerea v David Tigavu (2010) N4185, Ian Augerea v Hon. Anaton Yagama MP (2013) N5437.
186. In Ian Augerea v David Tigavu (2010) N4185, an incident outside a courtroom and within the precincts of the National Court led to the contemnor being charged with four counts of contempt of court. He; threatened and incited physical violence against and between parties to an ongoing court proceedings; threatened and abused lawyers who were involved in those court proceedings; and threatened and abused persons who may have been witnesses in those proceedings. In finding the contemnor guilty of three out of the four counts of contempt of court, the Court at paragraph 34 of the judgment stated:
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.
187. The Court at paragraph 39 of the judgment further stated:
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.
188. These judicial statements are most appropriate to this case and are reminiscent of what transpired at the Courthouse Car Park on the afternoon of 9 February 2015 when Mr. Nale was assaulted by the contemnor and his supporters not long after he emerged from the courtroom and arrived at the Courthouse Car Park.
189. I accept Mr. Wood’s submissions. Given that, and adopting and applying my findings of fact above here and adopting and applying the judicial statements in Ian Augerea v David Tigavu (2010) N4185 above, I am satisfied that the third element has been proven beyond reasonable doubt.
ALTERNATIVE COUNT
190. The outcome of the main count of contempt of court pleaded at paragraph 1 of the statement of charge filed on 7 April 2015 is against the contemnor, so it is now not necessary to address the alternative charge.
DECLARATION AND VERDICT
191. For all the foregoing reasons, it is declared that the actions of the contemnor complained of at paragraph 1 of the statement of charge filed on 7 April 2015 constituted an intention or was calculated to or likely to interfere with or obstruct the fair or due administration of justice and is a contempt of court.
192. Accordingly, a verdict of guilty is entered against the contemnor and he is convicted as charged.
ORDER
193. The formal orders of the Court are:
Verdict and orders accordingly.
___________________________________________________________
Ashurst: Lawyers for the Plaintiff/Prosecution
Yansion Lawyers: Lawyers for the Defendant/Contemnor
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