The State v Raymond Tupundu

• Jurisdiction: Papua New Guinea
• Judge: Batari AJ
• Judgment Date: 30 May 1996
• Citation: (1996) N1536
• Court: National Court
• Year: 1996
• Judgement Number: N1536

National Court: Batari AJ

Judgment Delivered: 30 May 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 292 OF 1996

THE STATE

v

RAYMOND TUPUNDU

Waigani

Batari AJ

15 April 1996

27 May 1996

30 May 1996

CONTEMPT — Contempt of Court — interference with course of justice — Lawyer failing to appear after adjournments — Delayed trials — Deliberate intent to hinder Court — Plea — Contempt proceedings — Practice and procedure.

LAWYERS — Contempt of Court — Plea — Sentencing for interference with course of justice — Fine and default penalty.

Cases Cited:

Daniel Gwaya Poka v The State [1988] PNGLR 218

The State v Mark Taua: Re Awaita [ 1985] PNGLR 178

Paul Metta v The State [1992] PNGLR 196

Re: Passingan [1982] PNGLR 292

Weston v Central Criminal Court Courts Administrator (1977) QB 32

Melbourne v Smith (1886) 35 ChD 436

Counsel:

B Andrew for the Contemnor

30 May 1996

BATARI AJ: On 15 April, 1996 Raymond Tupundu was charged orally under Order 14, Rule 39 of the National Court Rules with Contempt of Court on the following facts:

"On 10 April, 1996 at about 3.00 pm in Court Room 6 an indictment was presented in the case of State v.Kapera Ivoro, David Momo and Nandel Masel on charges of robbery and rape. You appeared as Counsel for the Defendants and Mr Daniel Mark of the Public Prosecutor's Office appeared as Counsel for the State. Upon your application to adjourn the case to 22 April, the only reason given was that you would be attending a course from 15 to 19 April. Your application was refused and the Court indicated that it would sit long hours if need be to complete the case before 15 April. After the accuseds were arraigned, their trial was adjourned to 9.30 am on 11 April, 1996 so that the State would locate witnesses who had been advised earlier not to attend the Court. You did not inform the Court then of your unavailability on the 11 April or thereafter and the reasons. When the case was called on 11 April, there was no appearance from you. Representation was then requested from the office of the Public Solicitor, inyour absence. Matters listed for that day were:

State v Benjamin Garo (for decision on a voir dire on admissibility of confessional statements) and State v Kapera Ivoro, David Momo & Nandel Masel both of which cases you were the Defending Counsel.

Principal Legal Officer Mr Frazer Pitpit appeared and advised the Court that you had not turned up in the office and being, your immediate Supervisor, you had not advised him also of the reason for your absence from the office and from appearance in Court. At 1:30 pm Mr Pitpit advised the Court the situation was still the same as during that morning regarding your absence. The case of State v Benjamin Garo was in the meantime concluded with Mr Pitpit appearing as an alternate counsel while the case of State v Kapera Ivoro & 2 Ors was deferred to 12 April as neither Mr Pitpit nor any other lawyer had been briefed on the File. A further adjournment to Monday 15 April was again given on account of your failure to turn up and Mr Pitpit who appeared on 12 April advised the Court that he had not seen or heard from you. He further advised of his inability and that of any other lawyer from the office of the Public Solicitor to take up the case as you had the File and had not briefed anyone to appear.

This morning when the case was again called, you were again not in Court. There was also no appearance by any lawyer from the Office of the Public Solicitor. By 15 April, the Court also had not been advised of your reason for absence on 11 & 12 April, 1996. The Court became aware you are attending a course which commenced this morning at the Institute of Public Administration, Waigani.

The case of State v Kapera Ivoro & 2 Ors was set for trial during court listing day on 11 February, 1996. The dates of 8, 9, 10,11 & 12 April, 1996 were specifically set aside for that case.

Your failure to appear is required for the accuseds has resulted in the delay of their trial for 3 days. It is alleged your actions on 11, 12 & 15 April, were calculated, to interfere with or obstruct the fair administration of justice or are likely to cause this happening. It is alleged that you committed contempt in the face of the Court.

You are required to make your defence to this charge. You are given until 16 April, 1996 to make your defence. If you have a lawyer, he may appear on your behalf."

These facts were transcribed on the same day and subsequently served on the contemnor. In the meantime, the case was adjourned to allow the defendant time to prepare his response.

At the next adjournment on 27 May, you pleaded guilty. You also apologised to the Court. That supported your remorse for your contempt which I accept and take into account in deliberating your sentence.

Contempt of Court is undefined by statute in this jurisdiction. The common law definition as accepted and applied in Papua New Guinea is set out in Halsbury's Laws of England (4th Ed. Vol 9) para 7 as follows:

"In general terms, words spoken or otherwise published, or acts done outside Court which are intended or likely to...