David Gwaya Poka v The Independent State of Papua New Guinea [1988] PNGLR 218

• Jurisdiction: Papua New Guinea
• Judge: Cory J:
• Judgment Date: 02 December 1988
• Court: Supreme Court
• Citation: [1988] PNGLR 218
• Year: 1988
• Judgement Number: SC357

Full Title: David Gwaya Poka v The Independent State of Papua New Guinea [1988] PNGLR 218

Supreme Court: Bredmeyer J, Woods J, Cory J

Judgment Delivered: 2 December 1988

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) 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...