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State v Sasoruo [1997] PNGLR 676 (26 September 1996)

[1997] PNGLR 676

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

LUCAS SASORUO

WAIGANI: SEVUA J
16, 30 August, 2, 20, 26 September 1996

Facts

The contemnor is a private lawyer and appeared as defence counsel in a criminal matter. He however, failed to attend at the trial, preferring instead to travel out of town on another case. He was charged with contempt.

Held

1. His absence due to attending another case is blatant disrespect of the authority of the court.
   
2. His action was likely to interfere with or obstruct the administration of justice.
   
3. Lawyers owe a duty to both their clients and the court.
   

Papua New Guinea cases cited

Poka v The State [1988-89] PNGLR 218.

Re: Passingan Taru [1982] PNGLR 292.

State v Foxy Kia Tala Re Corney Winjan (1994) unreported 21 February.

State v Mark Tauwa; Re Awaita [1985] PNGLR 129.

State v Raymond Tupundu (1996) (Unreported).

State v Tana Kera (1996) unreported 24 July.

Other cases cited

AG v Leveller Magazine Pty Ltd [1979] AC 440.

Jennison v Baker [1972] 2 QB 52.

Counsel

A Kora, for State.
Contemnor in person.

26 September 1996

Sevua J. The contemnor was the lawyer on record acting for one Raphael Ikupu in a bail application, which was filed together with a supporting affidavit on 23 August 1996. The application was set down for 9.30 am, Monday, 26th August 1996. When it initially came before me that morning, the applicant appeared and Ms Annette Kora appeared for the respondent, but Mr Sasoruo did not appear. Ms Kora informed the Court that he had requested an adjournment to Friday, 30th August 1996. The court granted the adjournment and the applicant who had appeared from custody was informed accordingly. On Friday, 30th August, when the application came before me the second time, the applicant appeared from custody, however, Mr Sasoruo did not appear. No reason was advanced either through my associate, or the respondent’s counsel as to his failure to appear. The Court then further adjourned the application to 2nd September, since the applicant insisted that his lawyer be present to make the application. Upon granting the adjournment, I intimated that if Mr Sasoruo did not appear on 2nd September, he would be cited for contempt of court and an order for his arrest would be issued.

On 2nd September 1996, Mr Sasoruo failed to appear and no explanation was forthcoming. His client appeared from custody, Ms Kora appeared for the respondent and the court was ready to hear the application. The court eventually ordered his arrest and detention at Bomana prison until 4th September, when I would deal with him. However, on 3rd September, police escorted him into court and I allowed him cash bail in the sum of K500.00.

His explanation on 3rd September 1996, were these. "I was of the view that there was a misunderstanding. I was not aware that the application was to be heard on 2nd September 1996. My discussion with one of the female lawyers, whom I understood to be, either Ms Kora or Ms Suwae, was that, since there was no copy of the information, the application was to be adjourned sine die until I was able to obtain one from either the arresting officer or the Public Prosecutor. I would then supply copies to the respondent and the court, then liaise with the Public Prosecutor’s Office to have a date set for the hearing of the application."

I cannot find any basis for his assumption that this matter was to be adjourned sine die. In fact, court record shows that on 26th August, the application was adjourned to 30th August. Court record further shows the court had requested copies of the information and statement of facts. There is no record that the application would be adjourned sine die if these documents were not available.

Ms Kora, counsel for the respondent, had filed an affidavit at the direction of the court. In her affidavit, she deposed to the following: Prior to the proceedings at 9.30 am on 26th August 1996, she had spoken to Mr Sasoruo outside the courtroom. He had informed her that he had other matters to attend to and had requested her to ask the Court for an adjournment to Friday morning, 30th August 1996. That was what transpired and is on record. He has not disputed this fact in his affidavit and there is no reason for this court to reject Ms Kora’s affidavit evidence.

Ms Kora further said that, after the adjournment was granted on 26th August, she telephoned Mr Sasoruo’s office and left a message with his secretary, Ms Konio Alu. On 27th August, Ms Kora made a follow-up telephone call; however someone hung up on her. As he did not appear on 30th August, the application had to be adjourned again, to 2nd September. Before lunch on 30th August, Ms Kora telephoned Mr Sasoruo’s office and advised his secretary that the application had been further adjourned to 2nd September 1996.

At 1.48 pm that afternoon, she transmitted a hand written letter to him advising him of that adjournment.

In his affidavit, Mr Sasoruo said he was in Goroka on court matters on Thursday, 29th and Friday, 30th August 1996. On Monday, 2nd September 1996, he fell ill. He had specifically requested the respondent’s counsel to seek an adjournment to Friday, 30th August, which was granted. Why travel to Goroka for other cases when he had committed the court, the respondent and his own client to having this matter dealt with on 30th August? To me, that is just unprofessional and unethical. I consider that he went to Goroka thinking that the court would adjourn because he was unavailable. The court did adjourn, however, he had asked for something, which he probably did not appreciate. His travel to Goroka on that date, demonstrated a blatant disrespect for the authority of the Court. Furthermore, his action was intended or likely to interfere with or obstruct the administration of justice in this case.

The primary responsibility of the courts and lawyers is to administer justice. Lawyers generally are officers of the court. It is their obligation, both professional and ethical toward the courts they are to appear before. One of these obligations is to appear on the dates their clients’ cases are set for hearing. Apart from their duty to their clients, they also have a duty to the court. Their obligation to appear in Court is owed to both the court and their clients. Unfortunately, some lawyers fail in this duty. The courts will of course excuse delays or non-appearance of counsels where they are unavoidable and beyond their control or the court considers that they are reasonable depending on their circumstances. However, the courts will not tolerate delays or non-appearances by lawyers, which are not reasonable. In my view, courts must act sternly and decisively to deter unreasonable conduct and unacceptable behaviour of lawyers.

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."

Pratt, J. referred to this in Re Passingan Taru [1982] PNGLR 292 at 295. Bredmeyer, J. also referred to it in Poka v The State [1988-89] PNGLR 218 at 219.

In Jennison v Baker [1972] 2QB 52 at 61, Salmon LJ said:

"contempt of court.........prohibits acts and words tending to obstruct the administration of justice."

Lord Diplock in AG v Leveller Magazine Ltd [1979] AC 440, said:

"Although criminal contempt of court may take a variety of forms, they all involved an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by the contempt of court, not the individual court or Judge who is attempting to administer it."

In the present case, I have found Mr Sasoruo guilty of contempt of court. He knew or ought to have known that his client’s bail application had been adjourned on 26th August to 30th August at his own request and convenience. The respondent’s counsel advised him. He did not appear, but decided, instead, to travel to Goroka for other cases. In my view, this was an act intended to interfere with or obstruct the fair administration of justice. It was a deliberate act on his part.

Furthermore, when the application was further adjourned to 2nd September 1996, he failed to appear. His reason was that he was ill and took some medication then went to bed. He did not instruct his secretary to inform the court of his predicament. There is no other evidence that he was sick. I therefore reject the reason for his failure to appear in court on 2nd September. Again, he knew or ought to have known that he was required to appear on that date because the respondent’s counsel had advised him by facsimile on 30th August at 1.48 pm, that his client’s application had been adjourned to 9.30 am on 2nd September.

He made no attempt to communicate his unavailability to the court or the respondent. This is not only unprofessional and unethical, but a breach of his obligation to the court. Feeling sick at the eleventh hour is becoming an excuse for lawyers in Waigani, and this is quite unacceptable. I will not tolerate it in my court.

In his allocutus, he apologised to the court and pleaded for a bond or a fine and undertook not to repeat this conduct again.

There have been far too many complaints about lawyers in private practice charging exorbitant fees yet their services are not commensurable with these exorbitant fees. In the present case, Mr Sasoruo’s failure to appear in court was a breach of his duty to his client and the court. His failure to appear interfered with the administration of justice in this case and I consider that this court should act decisively to deter this type of conduct or behaviour by lawyers.

Courts in previous cases have imposed monetary penalties. In Re Passingan (supra) Pratt, J. imposed a fine of K50.00 against a police officer that was required as a witness but failed to appear. In The State v Mark Tauwa, Re Awaita [1985] PNGLR 179, Woods, J. imposed a fine of K1,000.00 against Awaita, a lawyer who failed to appear as counsel. In The State v Foxy Kia Tala, Re Corney Winjain, 21 February 1994, (unreported) I imposed a 6 months suspended sentence on a police officer that failed to appear in a criminal trial as a witness. In Re Raymond Tupundu, 30th May 1996, (unreported) Batari, AJ ordered a fine of K500.00 against, Tupundu, a lawyer who failed to appear in Court. In The State v Tana Kera, 24th July 1996 (unreported) I imposed a fine of K250.00 against an accused person who failed to appear for his trial and a day of court’s time was wasted.

In this case, this is Mr Sasoruo’s first conviction. Having carefully considered what he said in his allocutus, I am of the view that a fine is appropriate. I hope that the penalty imposed here will deter him personally and will also act as deterrence to other members of the legal profession.

In the circumstances, I order that the contemnor pays a fine of K500.00 forthwith, in default 3 months imprisonment with hard labour. I order that his cash bail of K500.00 be appropriated to satisfy this order.

Lawyer for State: Public Prosecutor.
Lawyer for Contemnor: Contemnor in person.