N10197

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 242 OF 2022

BETWEEN:
BEN HEROWA
As Acting Chairman of Juha Special Purpose Authority
- Plaintiff-

AND:
PETER LANGA ANDAMA
As Purported Chairman of Juha Special Purpose Authority
Defendant

Waigani: Tamade AJ
2022:  19th December
2023: 17th February

CONTEMPT OF COURT – contempt in the face of court – verbal threats to plaintiff’s lawyers prior to hearing – application made by plaintiff’s lawyer – threats not related to current proceedings – standard of proof – beyond reasonable doubt – evidence not sufficient to prove contempt in the face of court
 
Cases Cited:

Re Contempt of Court, Re Assistant Registrar Philip Kaumba [2004] PGNC 21; N2763 
Andrew Kwimberi v. The State (1998) SC545
Kulunga v Vaki [2014] PGSC 69; SC1394
Holland v Nauga [2016] PGNC 533 

Counsel:	

Mr Paul Harry, for the Plaintiff
Mr Steven Dadada, for the Defendant 

17th February, 2023

1.	TAMADE, AJ: This is a decision on an application for Contempt in the face of the Court by the Plaintiff/ Applicant. 

2. 	The Plaintiff had filed a Notice of Motion on 26 November 2022 seeking restraining orders against the Defendant from holding himself out as Chairman of the Juha Special Purpose Authority and from transacting using the bank account of the Juha Special Purpose Authority. This application came before the Court on 30 November 2022 and was adjourned to 2 December 2022.

3. 	When the matter came before the Court on 2 December 2022, Mr Harry of the Plaintiff mentioned the matter in Court and then informed the Court that an incident had occurred the night before on the evening of 1 December 2022 when Mr Harry was out having dinner with his wife at the Maggie Seafood restaurant in Gordons when the Defendant in the company of two others approached him and his wife and verbally assaulted and harassed them without any cause or reason. This continued outside the car park of the restaurant when Mr Harry and his wife were trying to leave the restaurant.

4. 	Mr Harry alleges that there were threats by the Defendant and his companions to kill Mr Harry. Mr Harry alleges that the Defendant said words to the effect that the Defendant said that he is from Tari and he could do anything. Mr Harry alleges that the verbal assault, harassment and the encounter against Mr Harry was intended to cause disruption to the hearing of the Plaintiff’s application which was set to be heard by the Court the next day before me. Mr Harry therefore wants Mr Andama to be found guilty for contempt of Court.

Contempt in the face of the Court

5. 	In the case of Re Contempt of Court, Re Assistant Registrar Philip Kaumba, Justice Batari set out the following excerpts on contempt in the face of the court which I adopt and restate below as referred to in the case of Andrew Kwimberi v. The State (Unreported Supreme Court Judgment (1998) SC545:

"A useful definition is given by Lord Denning MR in Balog -v- Crown Court at St. Albans [1974] 3 ALL ER 283 at 287 where the learned Master says:

‘..... what is meant by 'committed in the face of the Court'.......has never been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempt of which a judge of his own motion could punish a man on the spot. So 'contempt in the face of the Court' is the same thing as 'contempt which the Court can punish of its own motion'. It really means 'contempt in the cognisance of the Court’.

"Also in the past cases which have been decided in this country, there is no clear statement as to what kind of contempt may be summarily dealt with. Again in Balog -v- Crown Court at St. Albans, Lord Denning says (at 287-288):
‘Gathering the experience of the past — then whatever expression is used, a judge ..... could always punish summarily of his own motion for contempt of Court whenever there was gross interference with the Court of justice in a case that was being tried, or about to be tried, or just over —no matter whether the judge saw it with his own eyes or was reported to him by officers of the Court, or by others — whenever it was urgent and imperative to act at once ...... In all other cases, he should not take it on himself to move. He should leave it to the Attorney-General or to the party aggrieved to make a motion in accordance with the rules in RSC Ord. 52. The reason is so that he should not appear to be both prosecutor and judge; for that is a role which does not become him well.
‘..... This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately — so as to maintain the authority of the Court — to prevent disorder — to enable witnesses to be free from fear and jurors from being improperly influenced and the like. It is of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt: See R -v- Gray by Lord Russel of Killowon CJ. But properly exercised, it is a power of the utmost value and importance which should not be curtailed.’

"Lord Denning then goes on to set out three specific instances of "contempt in the face of the Court" under the categories of "In the sight of the Court", "within the courtroom but not seen by the judge" and "At some distances from the Court". Lawton CJ in the above case expounds on the above principle and gives specific illustrations of the kinds of contempt which may be dealt with summarily. At p. 295, His Honour says:

‘In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified and without disturbance and with a fair chance of a just verdict or judgment. Contempt which are not likely to disturb the trial or affect the verdict or judgment can be dealt with my motion to commit under RSC Ord. 52, or even by indictment.
‘The exercise of judicial discretion in this way can be illustrated by reference to the kinds of contempt which are most frequently witnessed by or reported to judges: witnesses and jurors duly summoned to attend who refuse to attend Court; witnesses duly sworn who refuse to answer proper questions; persons in court who interrupt the proceedings by insulting the judge, shouting or otherwise making a disturbance, persons in Court who assault or attempt to assault or threaten the judge or any officers of the Court whose presence is necessary; persons in or out of Court who threaten those about to give evidence or who have given evidence; persons in or out of Court who threaten or bribe or attempt to bribe jurors or interference with their coming to Court, persons out of Court who publish comments about a trial going on by revealing a Defendant's criminal record when the rules of evidence exclude it. Contempt of these kinds may well justify the use of the summary jurisdiction, but everything will depend on the circumstances.’ (my emphasis).
"It is to be noted from the above passage that the categories of such contempt "in the face of the Court" are never closed. It all depends on the circumstances of each case. As it was proven in the subsequent case of Weston -v- Central Criminal Court's Administrator [1977] QB 32, Lord Denning MR (at 43), expanded these instances to include a lawyer who fails to attend Court in relation to a criminal case which had been set down for trial. Lord Denning said (at p. 43):
‘But the question arises: Was his breach of duty a contempt of Court such as to be punishable summarily? I have no doubt that if a solicitor deliberately fails to attend — with intent to hinder or delay the hearing, and doing so — he would be guilty of contempt of Court. He would be interfering with the course of justice.’

"The common law definition as accepted and applied in Papua New Guinea is set out in Halsbury's Laws of England (4th Ed. Vol 9) para 7 as follows:
‘In general terms, words spoken or otherwise published, or acts done outside Court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempt of Court.’
"That definition says there must be an intention to interfere with or obstruct the fair administration of justice; or second that the words or acts are likely to interfere with or obstruct the fair administration of justice. In Weston v Central Criminal Courts Administrator, (1977) QB 32 the accurate statement of the English Common Law appears to be contained in the judgment of Lord Denning, MR at p. 43 as observed by Mr Justice Bredmeyer in the Supreme Court appeal of David Gwaya Poka v The State [1988] PNGLR 218 at pp. 219 and 220:
‘But the question arises: was his breach of duty a contempt of court such as to be punishable summarily? I have no doubt that if a solicitor deliberately fails to attend - with intent to hinder or delay the hearing, and doing so he would be guilty of contempt of court. He would be interfering with the course of justice. But in this case the conduct of the Solicitor was not done with intent to hinder or delay the hearing. He took the view that in fairness to the accused the case could not be forced on for trial at such short notice before he was ready, and that, as it was bound to be adjourned, he did not propose to attend.’"

6. 	In the case of Kulunga v Vaki, the Supreme Court considered Contempt in the face of the Court against lawyers.  This was a case where the Supreme Court heard a stay application and was deliberating on a ruling when the contemnors delivered Consent Orders to the Judge. The Court therefore considered whether the conduct of the contemnors interfered with the real administration of justice and convicted the lawyers for contempt of Court.

7. 	An Applicant who applies for contempt in the face of Court therefore has a burden to prove beyond reasonable doubt the allegations therein as in the case of Holland v Nauga .This is because contempt of Court has criminal culpability to it.

8. 	Mr Harry has filed his Affidavit regarding the incident that happened on the evening of 1 December 2022 however he has not put before the Court the Affidavit of his wife. He makes submissions that his wife a highly educated women is in fear of her life that she has refused to write an Affidavit fearing any reprisal by the Defendant and or his supporters.

9. 	I find that the evidence of Mr Harry in his Affidavit goes towards a near altercation between the Defendant and his companions and Mr Harry the evening before. The dispute as retold by Mr Harry accused Mr Harry of representing the Plaintiff, accusing Mr Harry of his legal fees in a separate matter representing the Moran Special Purpose Authority and causing a scene in the restaurant much to the embarrassment of Mr Harry and his wife. The loud exchange of words caused Mr Harry and his wife to discontinue their dinner and leave the restaurant. Mr Harry states that the arguments continued outside the car park where the Defendant threatened to kill Mr Harry and that he should fear him as he is from Tari and he can do anything.

10. 	A further Affidavit from Mr Harry filed on 19 December 2022, stated that he received calls purportedly from the Police Fraud Squad to attend at their office for an interview regarding his client the Plaintiff. Apparently, there was a police case against Mr Harry’s client and Mr Harry was requested to attend at the Police Fraud Squad to answer some questions. 

11. 	The whole encounter to my mind between Mr Harry and the Defendant stem from various disagreements including his representation of the Plaintiff and can not be said as only against his representation of the Plaintiff. 

12. 	The Defendant has filed an Affidavit and also attended Court at the contempt hearing to answer to the contempt charge by Mr Harry. Mr Andama, the contemnor states in his affidavit that the encounter with Mr Harry at the Maggie Seafood Restaurant in the evening of 1 December 2022 had nothing to do with this case which was scheduled for the next day. Mr Andama states that the argument ensued over a discussion on some payments allegedly received by Mr Harry for representing the Moran Special Purpose Authority. Mr Andama had approached Mr Harry and his wife and told him about the allegation regarding the Moran Special Purpose Authority which triggered Mr Harry into a loud argument wherein Mr Andama embarrassingly left and resigned to his table. He had several discussions with the people on his table after Mr Harry and his wife left the restaurant for about 30 to 40 minutes however as soon as they came out of the restaurant, Mr Andama states that Mr Harry was outside with a group of people wherein Mr Harry started the argument again between them on why Mr Andama had accused him inside the restaurant regarding the Moran Special Purpose Authority funds.

13. 	There are affidavits of other people who were with Mr Andama at the restaurant at the material time who corroborate his evidence. One of this people is Mr Joseph Abraham Kumbari who is the Principal Lawyer of the Law Firm representing the Defendant. Mr Kumbari states that he met his client the Defendant at the Maggie Seafood Restaurant on 1 December 2023 to discuss these legal proceedings. Mr Kumbari said at the restaurant, the Defendant saw Mr Harry and therefore he left his table and politely approached Mr Harry to talk about something he had heard regarding the Moran Special Purpose Authority. The conversation between Mr Harry and the Defendant got heated with Mr Harry raising his voice and the Defendant resigned from the conversation feeling embarrassed and returned to his table. Mr Kumbari’s evidence corroborates the Defendants evidence as to what transpired outside when they exited the restaurant.

14. 	To cut the entire debacle between the Defendant and Mr Harry short, I find that there remain issues between Mr Harry and the Defendant personally and the fact that Mr Harry is representing an opposing party to the Defendant aggravated the situation at the Maggie Seafood the night before. Any criminal matters that the Fraud Squad is requesting for Mr Harry or any other person involved in these proceedings to answer to is a different process and this Court should not be entangled up in that process.

15. 	I find that Mr Harry has not proven a case for Contempt in the face of the Court against Mr Andama beyond reasonable doubt as what the whole narrative was is in regard to fees to Mr Harry regarding the Moran Special Purpose Authority, is an issue unrelated to the case at hand. It is convenient for Mr Harry to throw Mr Andama under the bus so to speak before this Court and use the encounter the night before to nail Mr Andama over the allegations that were labelled against Mr Harry by Mr Andama. This Court shall not be lowered to the personal disputes between Mr Harry and Mr Andama, they should be resolved either through the Criminal process by a Complaint to the police and followed through or for restraining orders in the civil Court.

16. 	The Court’s powers to punish for contempt in the face of the Court should be used sparingly and with great caution in the clearest of cases that would protect the integrity of the Court and its processes and the real administration of justice. I am of the view that the complaints of Mr Harry fall way short of contempt in the cognisance of the Court.

17. 	The Court orders that:

i)	The Application for Contempt of Court against the Defendant is refused forthwith.
ii)	No order as to costs.

Orders accordingly.

Harry Lawyers: Lawyers for the Plaintiff 
Kumbari & Associate Lawyers: Lawyers for the Defendant