Andrew Kwimberi of Paulus M Dowa Lawyers v The State

• Jurisdiction: Papua New Guinea
• Judge: Injia J:
• Judgment Date: 27 March 1998
• Citation: (1998) SC545
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC545

Supreme Court: Woods J, Hinchliffe J, Injia J

Judgment Delivered: 27 March 1998

SC545

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCRA 36 OF 1997

BETWEEN: ANDREW KWIMBERI of Paulus M. Dowa Lawyers

- Appellant -

AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA

- Respondent -

Mount Hagen : Woods, Hinchliffe & Injia, JJ

1997 : October 28th

1998 : March 27th

Contempt — Contempt of Court — Interference with course of justice — Failure of lawyer to appear — Criminal trial.

Held: Failure of lawyer to appear in a criminal trial, the date for which was fixed with his consent, in circumstances amounting to gross carelessness is guilty of Contempt of Court.

The following cases are cited in the judgment:

1. Attorney General -v- Times Newspapers Ltd [1974] AC 273

2. Balog -v- Crown Court at St. Albans [1974] 3 ALLER 283

3. Bishop -v- Bishop Brothers [1988-89] PNGLR 533

4. Mckeown -v- The Queen [1971] 16 DLR (3rd) 390

5. Metta -v- The State [1992] PNGLR 176

6. Poka -v- Papua New Guinea [1988] PNGLR 218

7. Parasharam Detaram Shandasani -v- King Emperor WALA, 16 November 1951

8. Re Rooney (No.2) [1979] PNGLR 448

9. Re Passingan Taru [1982] PNGLR 292

10. Robinson -v- Papua New Guinea [1986] PNGLR 307

11. Re Paul Luben & David Poka N612 [1987]

12. SCR No. 3 of 1984; Ex Parte Callick and Karoma [1985] PNGLR 67

13. The State -v- Mark Taua: Re Awaita [1985] PNGLR 179

14. The State -v- Raymond Tupundu N1536 [1996]

15. The State -v- Lucas Sosorva N1494 [1996]

16. The State -v- Foxy Kia Kala: Corney Wiyam N1192 [1994]

17. Uzuora -v- The Queen [1953] AC 327

18. Weston -v- Central Criminal Courts Administrator [1977] QB 332

Appellant in person

J. Kawi for the Respondent

27 March 1998

Woods J: I agree with the judgment of Injia, J.

Hinchliffe J: I agree with the judgment of Injia, J.

Injia, J This is an appeal against conviction and sentence of the Appellant on a charge of contempt of Court by the National Court at Mount Hagen on 11th April 1997.

1. Background of Appeal

The Appellant is a private lawyer employed by Paulus M. Dowa Lawyers of Mount Hagen, Western Highlands Province. He was the counsel appearing for three co-accused persons who were facing trial at the said Court on a charge of wilful murder. On the date and time fixed for the trial of these accused, the Appellant was absent. As a result, the trial judge decided to charge him for contempt of Court. He directed the Assistant Registrar at Mt. Hagen to prepare and serve the necessary documents. After a hearing, the Appellant was convicted and punished by a fine of K100, payable within seven (7) days, in default eight (8) weeks imprisonment. The Appellant paid the fine and later lodged this appeal. In this appeal, the Appellant challenges the procedure used by the Assistant Registrar, upon the direction of the judge, to charge him and the procedure used by the judge to hear and determine the contempt charge and punish him.

2. Grounds of Appeal

The grounds of appeal as set out in the Appellant's Notice of Appeal are:

"3. GROUNDS OF APPEAL

(a) that the conviction was unsafe and unsatisfactory pursuant to Sections 22 and 23 of the Supreme Court Act, Chapter 37 for the following reasons:

(i) The Appellant was denied or deprived of his rights under Section 37 of the Constitution in that there was:

(a) no proper trial conducted.

(b) no plea of guilty and allocatus administered.

(c) no evidence called either oral or by way of affidavit to prove the alleged offence of contempt of Court.

(d) no opportunity given to the Appellant to properly defend himself but after the Appellant responded to the Statement of Charge, the trial Judge convicted.

(b) There was miscarriage of justice in that the Appellant was denied or deprived of his right to natural justice under Section 59 of the Constitution on the following grounds:

(a) the learned Judge was biased in his decision to convict and to fine the Appellant because he was the Judge before whom the alleged contempt occurred.

(b) the decision to convict the Appellant of contempt of Court was pre-determined.

Alan Robinson -v- The State [1986] PNGLR 307

Meta -v- The State [1992] PNGLR 176

(c) that the appropriate or competent authority to prosecute contempt proceedings is the Public Prosecutor and not the Assistant Registrar.

Alan Robinson -v- The State [1986] PNGLR 307

(d) that the learned Judge incorrectly relied on the facts which were not available at the trial to substantiate the charge of contempt of Court".

The above grounds of appeal which are set out in the Notice of Appeal primarily raise questions of law for which no leave is required. If leave were required, then it would be necessary to determine the Application for Leave to Appeal filed on 28th April 1997. I mention this because in the Application for Leave to Appeal, the proposed grounds of appeal are worded slightly differently to those in the Notice of Appeal proper and it contains a new ground of appeal, namely, ground (1) (e), which is not included in the Notice of Appeal. At the hearing of this appeal, the Appellant correctly argued the grounds of appeal in the Notice of Appeal without seeking leave to appeal. For these reasons, only the grounds set out in the Notice of Appeal are properly before us for determination.

At the hearing, of this appeal, the Appellant abandoned ground 3(d) above.

Also at the hearing, the Appellant raised a new ground of appeal which is that the charge documents were not personally served on him as required by the National Court Rules, O. 14 r. 45. I would reject this ground as it is not raised in the original Notice of appeal and there is no proper application before us to amend the Notice of Appeal.

The grounds of appeal in the Notice of Appeal are founded on constitutional premises in particular, under Constitution, S. 37 and S.59. All the procedural issues raised and argued before us must be seen and dealt with in that light.

In my view, most of the remaining grounds of appeal and the manner in which they were argued before us by both parties, particularly the Appellant, shows little understanding of the principles laid down in a number of cases decided by this Court and the National Court on the substantive law and the practice and procedure relating to contempt of Court, to the extent that many of the remaining grounds of appeal are misconceived. For this reason, I will endeavour to set out an over-view of these principles. As it appears to me that the law on this area in this country is still developing, there are no clear principles established by our own Courts in some areas, hence the need to resort to principles of the common law as adopted under Constitution, Schedule 2.1, is unavoidable.

But before I do this, it is necessary first to fully set out the procedure used by the trial judge to deal with the Appellant.

3. Contempt proceedings in the National Court

The events which took place in the Court below including the two judgments of the Court on the question of guilt and punishment are clear on the face of the record and those records are not in dispute in this appeal. It is necessary to set out the procedure in sufficient detail.

1. On 4 November 1996, the trial of the Appellant's three (3) clients was fixed by the Court for 1st-3rd April 1997. The trial date was fixed after a pre-trial review was conducted under Order 2 of the Criminal Practice Rules 1987. The Appellant was present when this trial date was fixed and he consented to this fixture. The Appellant's clients were on bail at that time.

2. Sometimes in the third week of March 1997, a status conference was held to confirm the trial listing for April. The Appellant did not attend that status conference, and he "failed to inform the Court ........... that he would not be able to proceed with the trial on the set date". As a result, the Court took the trial dates to be confirmed and were not altered.

3. On 1 April 1997, when the Court commenced and the matters were called out in the morning, presumably at 9.30 am, there was no appearance of the accused nor the Appellant. Between 4 November 1996 to this date, no word had been received from the Appellant or his clients as to their likely unavailability on the date of the trial. It would seem that the State Prosecutor, Mr Carter was ready to proceed with the trial. The Court then adjourned the matter to 1.30 pm that day to enable them to appear. At 1.30 pm, the three accused and the Appellant still didn't appear. The State Prosecutor, Mr Cater, then applied for an adjournment on behalf of the accused to adjourn the matter to the next day, 2 April 1997, at 9.30 am.

4. On 2 April 1997, at 9.30 am, the 3 accused appeared but there was no appearance of the Appellant. Still no word was received from him advising of his whereabouts. The matter was then adjourned to 3 April 1997.

5. On 3 April 1997, still there was no appearance of the Appellant. Mr Cater informed the Court that the Appellant was in Goroka but "no notice was given prior to this".

6. As a result, the Court wasted three sitting days for that month with nothing to...