Ian Augerea, Registrar of the National Court v David Tigavu (2010) N4185

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 December 2010
• Citation: (2010) N4185
• Docket Number: OS NO 582 OF 2010
• Court: National Court
• Year: 2010
• Judgement Number: N4185

Full Title: OS NO 582 OF 2010; Ian Augerea, Registrar of the National Court v David Tigavu (2010) N4185

National Court: Cannings J

Judgment Delivered: 17 December 2010

N4185

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 582 OF 2010

IAN AUGEREA,

REGISTRAR OF THE NATIONAL COURT

Plaintiff

V

DAVID TIGAVU

Contemnor

Madang: Cannings J

2010: 17 November, 14, 15, 17 December

VERDICT

CONTEMPT – incident outside courtroom – alleged threats and incitement to violence by contemnor against parties to ongoing court proceedings – alleged threats and abuse against lawyers and witnesses – alleged statement questioning integrity and impartiality of judge – whether such conduct constitutes contempt of court – standard of proof.

There was an incident outside a courtroom, within the precincts of the National Court, which led to the contemnor being charged with four counts of contempt of court for (1) threatening and inciting violence against and between parties to ongoing court proceedings, (2) threatening and abusing lawyers involved in those court proceedings, (3) threatening and abusing persons who may be witnesses in those proceedings and (4) calling into question the integrity and impartiality of the presiding Judge. A trial was held to determine whether contemnor was guilty of contempt.

Held:

(1) Contempt of court is a criminal offence, the elements of which are any act or omission, committed in the face of the court or outside court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545).

(2) There are numerous categories of contempt, including taking reprisals on witnesses and court officials on account of what they have said or done in court (the type of contempt charged under counts 1, 2 and 3) and scandalising the court or a judge (the type of contempt charged under count 4) (Peter Luga v Richard Sikani (2002) N2285).

(3) There was clear evidence that, during an adjournment of ongoing court proceedings, the contemnor, behaving in an angry and aggressive manner, threatened and incited physical violence against parties to ongoing court proceedings, threatened and abused lawyers and a person who may be a witness.

(4) Such conduct was likely to interfere in the due administration of justice as it had real potential to interrupt the orderly dispatch of the business of the National Court by hampering the ability of parties, lawyers and potential witnesses to put their cases and give evidence freely and without fear of intimidation or reprisal.

(5) The contemnor was accordingly found guilty of counts 1, 2 and 3.

(6) As to count 4, the words uttered by the contemnor in describing the judge as being “sympathetic” to one side, while not, in the circumstances, being complimentary and being capable of having negative connotations (eg that the judge was one-sided or partial) was not sufficiently pejorative as to call into question the integrity and impartiality of the judge.

(7) The contemnor was accordingly found not guilty of count 4.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545

Attorney-General Michael Gene v Hamidian Rad [1999] PNGLR 278

Peter Luga v Richard Sikani (2002) N2285

Re Nahau Rooney (No 2) [1979] PNGLR 448

Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533

SCR No 3 of 1983; Ex parte Callick and Koroma [1985] PNGLR 67

TRIAL

This was the trial of an originating summons charging a person with four counts of contempt of court.

Counsel

N Goodenough, for the plaintiff

B W Meten, for the contemnor

17 December, 2010

1. CANNINGS J: There was an incident outside the courtroom of the National Court at Madang on Thursday 23 September 2010. Soon after the court adjourned at about 12 noon and those involved in the court proceedings, lawyers and members of the public left the courtroom, there was a commotion outside.

2. This incident led the Registrar of the National Court, Mr Augerea, to charging David Tigavu, the contemnor, with four counts of contempt of court. A trial has been conducted and this judgment gives the Court’s verdict on the four charges.

3. The Registrar alleges that the contemnor engaged in conduct that lowered the authority of the court, scandalised the court and a Judge and interfered in the due administration of justice, in that he:

· Count 1: threatened and incited physical violence against and between parties to ongoing court proceedings, WS No 202 of 2010, Re Eddie Tarsie & Ors v Ramu Nico Management (MCC) Ltd & Ors; and

· Count 2: threatened and abused lawyers who were involved in those court proceedings; and

· Count 3: threatened and abused persons who may be witnesses in those court proceedings; and

· Count 4: called into question the integrity and impartiality of the Judge who was presiding in those proceedings.

4. The court proceedings, WS No 202 of 2010, had been commenced in March 2010 and concerned a challenge by a group of plaintiffs, from the Rai Coast (also known as Raikos) area of Madang Province to the construction and operation of the deep-sea tailings placement system (DSTP) for the Ramu Nickel mine. The court granted an injunction restraining the construction of the DSTP, pending trial, and the case had been the subject of numerous pre-trial proceedings from March to September. On the day in question, 23 September, the court was dealing with an application by the remaining plaintiffs to discontinue the proceedings and an application by another Rai Coast person, Louis Medaing – one of the witnesses to the alleged contempt – to be joined as a plaintiff.

5. The contemnor is chairman of the Kurumbukari Landowners Association, a group of customary landowners in the Bundi area of Madang Province (the site of the mine) who have not been happy about the delay to commencement of the mining project, which they believe has been caused by the court proceedings, WS No 202 of 2010.

PROCEDURES

6. I was the presiding Judge in WS No 202 of 2010 and, after hearing a report of what happened outside the courtroom, I summoned the contemnor to attend the court on 1 October, which he did. I informed him of the allegations of contempt against him and that I was directing the Registrar, under Order 14, Rule 47(1) of the National Court Rules, to commence contempt proceedings against him.

7. The charges were served on the contemnor, he was given time to engage a lawyer and the matter was set down for trial. Prior to commencing the trial, the issue was raised whether I should deal with the matter as I was the presiding Judge in the court proceedings to which the charges relate and the Judge who directed that the contemnor be charged and the Judge whose integrity and impartiality were allegedly called into question. The issue was actually raised by the prosecutor, Mr Goodenough, not by the contemnor’s lawyer, Mr Meten. I indicated that I saw no difficulty with my dealing with the matter. Mr Meten agreed and indicated that the contemnor took no objection to my presiding.

8. It has been suggested in some cases such as Andrew Kwimberi v The State (1998) SC545 that it may be desirable for a judge to disqualify himself and refer the matter to another judge if the alleged contempt involved a personal affront to the judge or is scandalous of the judge concerned as distinct from an affront to the system of administration of justice. Here, only one of the four charges (count 4) could conceivably be regarded as alleging a personal affront; but even if it were to be so regarded, that would not by itself prohibit the judge concerned from dealing with the matter. The overriding consideration is that the principles of natural justice apply: the contemnor must be given a fair hearing by an independent and unbiased court.

9. Those principles have been observed in this case by adopting normal criminal procedures: the contemnor has been given a written statement of charge, time to engage a lawyer and a full opportunity to present his defence to the charges. It was not necessary – especially as the contemnor did not object – to depart from the normal procedures for contempt trials, which allow the court or judge, which is the subject of the alleged contempt, from dealing with the charge, whether the alleged contempt is committed in the face of the court or outside the court (SCR No 3 of 1983; Ex parte Callick and Koroma [1985] PNGLR 67).

THE OFFENCE OF CONTEMPT OF COURT

10. Contempt of court is a criminal offence, the elements of which are any act or omission, committed in the face of the court or outside court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545).

11. The prosecution bears the onus of proving contempt according to the criminal standard of proof: beyond reasonable doubt (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533).

12. There are numerous categories of contempt, including taking reprisals on witnesses...