Elias Padura v Stephanie Valakvi (2012) N4830

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 October 2012
• Citation: (2012) N4830
• Docket Number: OS NO 256 of 2012
• Court: National Court
• Year: 2012
• Judgement Number: N4830

Full Title: OS NO 256 of 2012; Elias Padura v Stephanie Valakvi (2012) N4830

National Court: Cannings J

Judgment Delivered: 23 October 2012

N4830

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 256 OF 2012

ELIAS PADURA

Plaintiff

V

STEPHANIE VALAKVI

Defendant

Madang: Cannings J

2012: 7, 12 September, 5, 23 October

CONTEMPT – disobedience contempt – alleged disobedience by defendant of court order restraining parties to civil proceedings from threatening, harassing or instigating violence against each other – two charges of contempt of court – elements of offence.

The National Court ordered that both the plaintiff and the defendant to civil proceedings were restrained from threatening, harassing or instigating violence against each other pending determination of the proceedings. After the order was made the defendant was involved in two incidents in which she, firstly, assaulted a female employee of the plaintiff on the plaintiff’s business premises and, secondly, assaulted the plaintiff’s girlfriend in the presence of the plaintiff in a public place. The plaintiff then filed a notice of motion seeking punishment of the defendant on two counts of contempt of court. The defendant (referred to in the judgment as ‘the contemnor’, being a person charged with contempt) pleaded not guilty and the matter proceeded to trial.

Held:

(1) Proceedings for contempt are criminal in nature and the court must be satisfied beyond reasonable doubt of the three elements of the offence:

· the order was clear;

· it was properly served; and

· there was a deliberate failure to comply.

(2) As to count 1, the order was clear and unambiguous, however it had been made only four days before the assault and not entered (reduced to writing and stamped with the official seal of the National Court) until the day of the assault and not served on the contemnor until the following day. The second element of the offence was not proven and the contemnor was found not guilty of count 1.

(3) As to count 2, the order remained clear and unambiguous and it was served four weeks prior to the incident at the centre of the charge, thus the first two elements were proven.

(4) It was proven that the contemnor harassed and instigated violence against the plaintiff, in addition to assaulting the plaintiff’s girlfriend; thus the contemnor failed to comply with the restraining order and her failure was deliberate. The third element was proven.

(5) Accordingly the defendant was found guilty of count 2.

Cases cited

The following cases are cited in the judgment:

Gregory Kasen v The State (2001) N2133

Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763

Moses Vua v Francis Mavu (2008) N3294

Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447

Peter Luga v Richard Sikani and The State (2002) N2286

Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572

The State v Alois Dick (2007) N3219

NOTICE OF MOTION

This is a ruling on a motion under which a party to civil proceedings was charged with two counts of contempt of court.

Counsel

W A Windi, for the plaintiff

T M Ilaisa, for the defendant

1. CANNINGS J: The plaintiff, Elias Padura, has charged the defendant, Stephanie Valakvi, with two counts of contempt of court and this is the court’s ruling – the verdict – on whether the defendant (hereafter referred to as ‘the contemnor’, being a person charged with contempt) is guilty.

2. The contempt charges arise out of civil proceedings the plaintiff commenced against the defendant in which the plaintiff was seeking a permanent order restraining the contemnor from interfering with his businesses and from threatening, harassing or instigating violence against him or his staff. The plaintiff and the contemnor had a de facto marital relationship since 2000. They also became business partners, operating two successful businesses in Madang town: Summit Video and Variety Shop and Summit Secretarial Services. Both aspects of their relationship (marital and business) soured during 2011 and 2012 and they separated. It was in those circumstances that the plaintiff commenced the civil proceedings OS No 256 of 2012 on 4 May 2012.

ORDER OF 18 MAY 2012

3. On 18 May 2012, the court was advised that the parties had made progress in settling their grievances and jointly signed a statutory declaration to that effect. A draft consent order was proposed by Mr Windi on behalf of the plaintiff and Mr Ilaisa on behalf of the contemnor. The court on that day made an order in the terms proposed:

The court orders that … the terms of the Statutory Declaration of 13/4/12 annexed to the Plaintiff’s Affidavit in Support of 04/5/12 be given effect to by both parties and accordingly both parties be restrained from threatening, harassing or instigating violence against each other and both parties shall give each other respect and operate each other’s businesses peacefully pending determination of these proceedings.

4. The statutory declaration referred to in the order stated:

I, Elias Padura & Stephanie Valakvi of P.O. Box 779, Madang, Papua New Guinea do solemnly and sincerely declare that:

1. Elias Padura and Stephanie Valakvi has been operating a registered business namely: Summit Secretarial Services and Summit Video & Variety Shop at Beckslea Plaza, Nanulon Road, Madang as partners;

2. At the time of the business operation, both parties were able to acquire a parcel of [land] with description as follows: Allotment/Portion 7, Section 150, Madang, Madang Province;

3. Both parties has agreed to split, divide and operate the business as follows:

Elias Padura (Party A) – to operate continuously Summit Video and Variety Shop (Store and ... production line) which is a separate registered business entity;

Stephanie Valakvi (Party B) to operate continuously summit Secretarial Services which is a separate Registered business entity and to acquire and take position of the parcel of land Allotment/Portion 7 Section 150, Madang, Madang Province;

4. While both parties operate separately, both parties not have any rights to interfere with each other’s business operations and clients;

5. Both parties have agreed and abide on the above statement. [sic]

THE CHARGES

5. It is undisputed that after the order of 18 May 2012 was made the contemnor was involved in two incidents in which she, firstly, on 22 May 2012, assaulted a female employee of the plaintiff on the plaintiff’s business premises and, secondly, on 22 June 2012, assaulted the plaintiff’s girlfriend in the presence of the plaintiff in a public place. The plaintiff asserts that on each occasion the contemnor committed the offence of contempt of court in that she disobeyed the restraining order of 18 May 2012. The contemnor thus faces two charges of contempt:

· count 1, which is contained in paragraph 4(a) of the statement of charge filed on 29 June 2012, concerning the incident of 22 May; and

· count 2, which is contained in paragraph 4(b) of the statement of charge filed on 29 June 2012, concerning the incident of 22 June 2012 (paragraph 4(b) incorrectly refers to 23 June, but this error is immaterial as it is agreed that the relevant date is 22 June 2012).

DUPLICITY

6. Mr Ilaisa, for the contemnor, challenged the validity of the statement of charge on the ground of duplicity. The rule against duplicity is intended to prevent the ‘doubling up’ of separate charges in a single count in an indictment or an information or the simultaneous charging of several distinct and unrelated offences in one indictment or information (Gregory Kasen v The State (2001) N2133, The State v Alois Dick (2007) N3219). It is actually a rule of procedural fairness as it ensures that the person being charged knows clearly the charge(s) he or she is facing. It does not prevent more than one charge being included on the one charging document. I find no merit in the argument that the statement of charge offends against the rule against duplicity. There is no doubling up of separate offences in either of the two counts, which are sufficiently and clearly drafted to put any reasonable person on notice as to the allegations being raised.

ELEMENTS

7. The parties agree that proceedings for contempt are criminal in nature and that for the contemnor to be found guilty of this sort of disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence:

(a) the order was clear;

(b) it was properly served; and

(c) there was a deliberate failure to comply.

(See Peter Luga v Richard Sikani and The State (2002) N2286, Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447, Moses Vua v Francis Mavu (2008) N3294, Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763.)

COUNT 1: INCIDENT OF 22 MAY 2012

(a) Clear and unambiguous?

8. I reject Mr Ilaisa’s submission that the order was ambiguous in that it did not restrain the parties...