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Poka v The State [1988-89] PNGLR 218 (2 December 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 218 - David Gwaya Poka v The State 

[1988] PNGLR 218

SC357

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DAVID GWAYA POKA

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Bredmeyer Woods Cory JJ

27 May 1988

2 December 1988

CONTEMPT - Contempt of court - Interference with course of justice - Lawyer failing to appear on time for circuit sittings - Whether failure “deliberately with intent to hinder court” - Carelessness and inadequate travel arrangements not deliberate obstruction - Contempt not made out.

LAWYERS - Contempt of court by - Failure to attend circuit sittings in time Whether failure “deliberately with intent to hinder court” - Carelessness and inadequate travel arrangements - Not contempt.

Held

(1)      A lawyer who deliberately fails to attend court with intent to hinder or delay the court and does so may be guilty of contempt of court.

Weston v Central Criminal Court Court’s Administrator [1977] QB 32 at 43, adopted and applied.

(2)      In circumstances where a lawyer’s failure to appear at the first day of the sittings at Wabag before 3.30 pm on that day was due to carelessness and inadequate travel arrangements rather than any deliberate attempt to obstruct the administration of justice, no contempt had been made out.

Cases Cited

Izuora v The Queen [1953] AC 327; [1953] 2 WLR 700; [1953] 1 All ER 827.

Johnson, Re [1887] UKLawRpKQB 172; (1887) 20 QBD 68.

Passingan Taru, Re [1982] PNGLR 292.

Robinson v The State [1986] PNGLR 307.

State, The v Mark Taua; Re Awaita [1985] PNGLR 179.

Weston v Central Criminal Court Court’s Administrator [1977] QB 32.

Appeal

This was an appeal against a decision of Amet J in which he found the appellant guilty of contempt of court and fined him K50.

Counsel

E Batari and R Kidu, for the appellant.

V Noka and J Mugambwa, for the respondent.

Cur adv vult

2 December 1988

BREDMEYER J: This is an appeal against a decision of Amet J (Unreported, National Court judgment No N 612 of 17 August 1987) convicting the appellant of contempt of court and fining him K50 in default five days imprisonment.

The facts were as follows. The judge notified the Public Prosecutor’s Office and the Public Solicitor’s Office that he would arrive in Mt Hagen on Sunday 9 August 1987, drive to Wabag that day, and commence the sittings of the National Court in Wabag that day, and commence the sittings of the National Court in Wabag on Monday, 10 August at 9 am. The appellant, who is employed in the Public Solicitor’s Office at Mt Hagen, was going to be the defence counsel on this circuit. He arranged to travel to Wabag with the Public Prosecutor, Mr Paul Luben, who is also based in Mt Hagen, in Mr Luben’s government car.

Mr Luben, however, was hoping that another prosecutor would arrive from Port Moresby to prosecute this circuit. This man was wait-listed on the Saturday and Sunday flights from Port Moresby to Mt Hagen. Mr Luben called at the airport on both days and learnt that the Moresby prosecutor had not arrived. He also saw that the judge arrived on the Sunday. Mr Luben decided not to travel to Wabag on the Sunday as he did not have a government purchase order to pay for his hotel accommodation in Wabag.

When Mr Poka learnt on the Sunday that the judge had arrived and that Mr Luben was not going to Wabag that day, so he could not get a ride with him, he was in a dilemma. It was Sunday. Mr Poka had no private car, and does not drive. His office has a government car but it was locked up in the transport pool and he had not arranged for a driver. Moreover the keys were with his senior work colleague who was not readily available. He decided to travel to Wabag with Mr Luben on the Monday. They arrived at about 3.30 pm and were ready to start work on Tuesday, 11 August.

No judicial work was done on the Monday, the trial judge lost a days work. He cited both lawyers for contempt of court and after listening to their explanations and submissions, and giving a carefully reasoned judgment, he convicted and fined each man K50. Only Mr Poka has appealed to this court.

Halsbury’s Laws of England (4th ed, vol 9), par 7, defines contempt of court as follows:

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

That passage has two legs to it: an intention to interfere with or obstruct the administration of justice or; secondly, words or acts which are likely to interfere with or obstruct the fair administration of justice. Probably that passage which was written in 1974 would need to be re-worded, as an accurate statement of the English Common Law, in view of Weston v Central Criminal Court Court’s Administrator [1977] QB 32, where Lord Denning MR (at 43) said:

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

The other two Lord Justices (Stephen and Bridge LJJ) on appeal agreed with Lord Denning. So the law in England now is that it is only a deliberate failure to attend which will amount to a contempt of court. Weston’s case is post-Independence and is not binding on this court; nevertheless I consider that it is suitable and applicable to the circumstances of Papua New Guinea and I propose to follow it. I believe that the other relevant authorities can be explained in a way consistent with Lord Denning’s statement of the law.

In Re Passingan Taru [1982] PNGLR 292, Pratt J convicted a police witness for contempt of court. The police inspector failed to attend the court and he was convicted and fined K50. The relevant facts of that case were that the inspector was told to appear as a witness in Rabaul in a criminal case starting on Monday. The inspector was based in Rabaul. The case started on the Monday and was expected to last no more than two days. On the Monday afternoon the inspector chose to go to Port Moresby carrying a sample of cannabis for scientific examination. He hoped to return on the Tuesday but in fact did not. Pratt J (at 298) said:

“... I am of the view that he deliberately went to Port Moresby expecting that if he did not get back the court would adjourn the matter to suit his convenience.”

In The State v Mark Taua; Re Awaita [1985] PNGLR 179, Woods J convicted a lawyer for contempt of court and fined him K1,000. The facts of that case were that at a call-over before the judge held in Waigani the lawyer asked for two of his matters to be specially listed in Popondetta on a certain date. The judge so listed the cases and he and the prosecutor travelled to Popondetta to be ready to commence these two special fixtures which were expected to take one week. The lawyer concerned was a private lawyer and because of the special fixtures the Public Solicitor did not attend for that week. When the judge opened the sittings in Popondetta there was no appearance by the private lawyer and, of course, the cases were not able to go on. The judge had no other work to do owing to the absence of any other defence counsel and wasted two days of court time. Woods J (at 183) accepted the lawyer’s argument that he did not intend to interfere with the administration of justice, but found that his carelessness in not attending in the circumstances amounted to contempt of court. I consider that the conviction could equally well have been explained on the basis that the lawyer deliberately chose not to come. He had no good explanation as to why he did not come. He was not delayed or prevented by sickness or any other circumstance beyond his control. His explanation appeared to be that he had not been put in funds by his clients.

Izuora v The Queen [1953] AC 327, concerned an appeal to the Privy Council from West Africa. In that case a lawyer had been convicted of contempt of court for failure to attend and was fined £10. The facts were that the trial judge in a divorce case announced that he would reserve his judgment until the next day. Izuora, who was counsel for the petitioner, asked to be excused. The judge initially said “yes” and then counsel for the respondent also asked to be excused from attending the next day. The judge said that he could not conduct the case unless counsel were present and he withdrew his approval for Izuora to be absent and required them both to be present the next day to receive his reserved judgment. Izuora did not attend and was later given an opportunity to be heard and was convicted and fined for contempt of court. His explanation for not being present was that no contempt was intended and that there had been a misunderstanding. At 336 the Privy Council said:

“It is not possible to particularise the acts which can or cannot constitute contempt in the face of the court, but in this connection it is desirable to bear in mind what was said in the judgment of the Board delivered by Lord Goddard in Parashuram Detaram Shamdasani v King-Emperor WACA, 16 November 1951 where these words are to be found: ‘Their Lordships would once again emphasise what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended.’

It is not every act of discourtesy to the court by counsel that amounts to contempt, nor is conduct which involves a breach by counsel of his duty to his client necessarily in this category. In the present case the appellant’s conduct was clearly discourteous, it may have been in breach of r 11 of Ord 16, and it may, perhaps, have been in dereliction of his duty to his client, but in their Lordships’ opinion it cannot properly be placed over the line that divides mere discourtesy from contempt.”

It can be seen that the Privy Council considered that the lawyer’s action was clearly discourteous but fell short of contempt. I rationalise the decision this way. The lawyer’s absence was indeed deliberate but there was no serious interference with or obstruction to the fair administration of justice because, I think it was highly likely that the reserved judgment was in fact read on the next day.

I now propose to apply this law to the facts of our present case. I do not think that Mr Poka deliberately failed to attend in Wabag. He failed to attend due to carelessness or more specifically due to inadequate travel arrangements. His initial arrangement to travel there from Mt Hagen with the more senior counsel, Mr Paul Luben the prosecutor, was a reasonable arrangement and one which is regularly made by counsel appearing at the Wabag sittings. However, when Mr Luben failed to travel to Wabag on the Sunday, because he was hoping another prosecutor would arrive from Port Moresby to prosecute the circuit instead of him, and he had not obtained a government purchase order to pay for the hotel, Mr Poka failed to make adequate alternative travel arrangements for himself. He could have, for example, asked the judge for a ride to Wabag on the Sunday. Mr Poka’s failure to get to Wabag before 9 am on the Monday meant that the fair administration of justice was interfered with and the trial judge was quite right to say that the fair administration of justice includes the requirement of s 37(3) of the Constitution that criminal trials shall be held “within a reasonable time”. Nevertheless Mr Poka’s failure to attend was I believe due to carelessness and inadequate arrangements rather than any deliberate intent to interfere with or obstruct the fair administration of justice. On that basis I consider that he was not guilty of contempt of court and I would allow the appeal and quash the conviction.

WOODS J: This is an appeal against a conviction and punishment imposed by the National Court at Wabag on 17 August 1987 on a charge of contempt of court. The grounds of the appeal are first: that there was an error in law on conviction and that his Honour failed to commence proceedings against the appellant for contempt of court and secondly that there was an error in law on conviction in that there was no evidence upon which his Honour convicted the appellant.

As stated in Halsbury’s Laws of England (4th ed, vol 9), par 5, under the heading “Contempt in the face of the Court”:

“The power to fine and imprison for a contempt committed in the face of the court is a necessary incident to every court of justice”, and “It is not from any exaggerated notion of the dignity of individuals that insults to judges are not allowed but because there is imposed upon the Court the duty of preventing any attempt to interfere with the administration of Justice.”

This power to deal with a contempt in the face of the court is clearly covered in the National Court Rules at O 14, r 38, and it would appear that it was under that rule that the judge acted. It is first of all submitted that the contempt, namely the failure to be present at the commencement of the court circuit, is not one done actually in the court premises when the court was sitting. This, however, seems to be putting a very narrow interpretation on the prepositions used in the term “contempt in the face of the court”. I need go no further than the words of Lord Esher MR in the case in Re Johnson [1887] UKLawRpKQB 172; (1887) 20 QBD 68, where he said (at 71):

“The main argument appears to come to this, that there was no contempt in court: but it does not follow that there was no contempt of Court ... It is not necessary to constitute a contempt of Court that the contempt should be in court, or that it should be a contempt of a judge sitting in court. All that is necessary is that it should be a contemptuous interference with judicial proceedings in which the judge is acting as a judicial officer.”

Lord Esher then goes on to quote Wilmot CJ in another case as follows (at 72):

“This question resolves itself at last into this single point, whether a judge making an order at his house or chambers is not acting in his judicial capacity as a judge of this Court, and both his person and character are under the same protection as if he was sitting by himself in court? ... The reason, therefore, must be that he is in the exercise of his office and discharging the function of a judge of this Court ... .”

Lord Esher then continued (at 72):

“If he is acting judicially in the office of a judge, he is acting as a judge of the High Court of Justice. It signifies not where he is sitting, or what he is doing in such judicial capacity. If anyone attempts to interfere improperly with such judicial proceeding provided it is done with sufficient nearness, it is a contempt; a contempt not of the judge but of the High Court as a judge of which he is acting.”

It is clear that the Judge upon arriving at the court house at Wabag on the Monday morning was in the words of Wilmot CJ “acting in his capacity as a Judge of this Court” and what the appellant did by failing to attend when required to commence the sittings was an insult to the administration of justice. That being so he was liable to be called to account for it as he was, not before the judge sitting at chambers but before the court. And that is why his Honour duly called the appellant before him sitting in the court on the following day. I therefore see no error of law in the submission that the contempt was not made in the face of the court.

There is a further argument that in any respect the Judge should have proceeded under the National Court Rules, O 42, r 14, and not O 14, r 38. I see no good basis for this argument as the contempt alleged was clearly before the Judge and the nature of the contempt was such that the court was cognizant of all the facts namely the absence of the appellant and the appellant himself was present in due course before the court. This is not a matter where the contempt was done away from the court and the contemnor made no appearance at or near the court close to the time of the contempt. Further it was not a situation that required further material or evidence for the hearing of the charge.

With respect to the ground of appeal that there was no evidence upon which to convict the appellant I say there is no substance in this ground at all as the contempt was a fact that existed before the court; it was not a matter that needed to be proved by evidence. It was a fact purely within the personal knowledge of the appellant and the judge at the time. It was not a situation akin to that in the case of Robinson v The State [1986] PNGLR 307 where the alleged contemptuous behaviour was committed in the absence of the judge and it would therefore be necessary to produce the appropriate affidavit evidence before the matter could be heard in the court. It appears that in the submissions on the question of evidence counsel is confusing the explanation which was called for from the appellant and the fact of the absence of the appellant from the court at the required time.

It is further submitted that the contempt found by the judge was not a matter of contempt of court namely a positive or negligent interference with the administration of justice but more a matter of discourteous behaviour before the court. If it was merely a matter of inconvenience to the Judge then the failure to appear could possibly be regarded as a mere discourtesy, however, the effect of the delay in the lawyers appearing was more than just inconvenience to the judge, it meant that a whole day was lost and this then snowballs and means that more and more people have to wait longer periods on bail or in custody before their cases can be heard. And this could mean that people could be remanded in custody for longer than necessary. I need not emphasise that some periods of remand are getting very close to being breaches of Constitutional rights. In the circumstances the court and the judge concerned are entitled to expect punctuality and proper behaviour before a court and delays which in some regards may only appear to be discourteous can in reality have serious implications on the administration of justice. I see no error in the Judge finding that the delay caused by the behaviour of the appellant did or could be seen to seriously prejudice the administration of justice.

However, should such behaviour be held to be contempt where it was not deliberate behaviour of the lawyer. Lord Denning MR, in Weston v Central Criminal Court Court’s Administrator [1977] QB 32 at 43, emphasised the need for deliberate behaviour in such cases of contempt. Thus even though the appellant’s absence did mean a serious delay in the administration of justice where this absence was a matter of unfortunate circumstances and not a deliberate act it should not be held to be contempt.

The unfortunate circumstances were not necessarily gross carelessness in the arrangements whereby he relied on someone else, a common arrangement in the circumstances of some areas of the country. He could and perhaps should have made his own arrangements but such failure does not appear to have been a deliberate attempt to interfere with the administration of justice. I am therefore satisfied that whilst his failure to attend on time was due to carelessness and inadequate arrangements that does not amount to conduct which should in the circumstances be held to be contempt of court.

I would allow the appeal and quash the conviction.

CORY J: I agree with the judgment of Bredmeyer J and have nothing to add.

Appeal allowed.

Lawyer for appellant: E Kariko, Public Solicitor.

Lawyer for respondent: K Bona, Public Prosecutor.