The State v Sebulon Wat and Miskus Maraleu

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 14 March 1994
• Citation: [1994] PNGLR 582
• Court: National Court
• Year: 1994
• Judgement Number: N1205

National Court: Doherty J

Judgment Delivered: 14 March 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SEBULON WAT AND MISKUS MARALEU

Kavieng

Doherty J

13-14 January 1994

14 March 1994

CRIMINAL LAW — Conspiracy to pervert the course of justice — Agreement to conspire may be inferred from acts or behaviour.

Facts

Both accused were lawyers appearing for the plaintiff and defendant, respectively, in civil proceedings in Kavieng District Court. On 23 December 1991, Mr Wat unexpectedly withdrew the civil complaint. On the same day, Mr Maraleu rendered an account to his clients, stating the case was dismissed by a Grade 5 Magistrate. After 23 December 1991, both lawyers said they negotiated a settlement to pay Mr Wat K700; neither consulted his client; there was conflict if it was for damages and costs or costs only. It was not paid, and on 20 January 1992, the same summons was laid again and served despite Mr Wat's assessment that it was a "hopeless case". Soon thereafter, Mr Maraleu paid K300 cash to Mr Wat.

Held

1. Conspiracy is an agreement between parties to carry out an unlawful purpose or a lawful purpose by unlawful means.

2. Conspiracy could be inferred from the conduct of alleged conspirators.

3. Evidence of a conspiracy by the two lawyers was not established beyond a reasonable doubt.

Cases Cited

Papua New Guinea cases cited

MVIT v Salem [1991] PNGLR 305.

State v Tanedo [1975] PNGLR 395.

Other case cited

Re Senat (1968) 52 Cr App R 282.

Counsel

F Kuvi, for the State.

E Jubilee, for the accuseds.

14 March 1994

DOHERTY J: The accuseds were indicted on one joint count that they conspired to obstruct the course of justice contrary to s 128 of the Criminal Code. The accused Mr Maraleu was indicted on one additional count of, by false pretence, inducing Fred Allardyce, company secretary of Poliamba Pty Ltd, to deliver K2,400 to him.

The elements of the offence of conspiring to obstruct justice are that:

1. a person has conspired with another; and

2. they conspired to obstruct the course of justice.

There must have been a conspiracy, and it must be directed towards obstruction of the course of justice.

I consider that Mr Kuvi put the matter succinctly in submission when he said in this particular case the question is not only whether the actions of the accused were improper but whether they were so highly improper as to amount to a perversion of justice.

Most of the written documents, that is the court records and letters, were tendered by consent. There was oral evidence, subject to cross-examination and dispute, and written evidence, the subject of another ruling.

The events are as follows:

"John Samot was terminated from his employment by a company, Poliamba Pty Ltd in July 1991. He approached the accused, Sebulon Wat for legal assistance concerning his termination in December 1991. Sebulon Wat asked for K300 deposit which Samot could not pay and it was agreed he pay K100 at that time and K200 later.

A complaint was laid and the summons issued out of the Kavieng District Court — it has been tendered by consent through the affidavit of Levi Tabakase — which states "The complaint of John Samot of Kavieng, self employed made the 2nd of December 1991 before the undersigned ....................., a Magistrate of the District Court he says on the.......................day of ......................1991 at Lakuramau, in Papua New Guinea, Poliamba Pty Ltd and Martin Collins of Lakuramau Plantation has wrongfully terminated the employment of the complainant with Poliamba Pty Ltd. The complainant has suffered damages as result of the termination and therefore claim the sum of K4,800 being one year salary and further K2,500 being general damages totalling the sum of K7,300. (sic) "

It is given a CIV number 470/91. It is, incidentally, defective and should not have been accepted. The return date was 13 December 1991. Both accused appeared as lawyers, Sebulon Wat for the complainant and Miskus Maraleu for the defendant. They sought an adjournment which was granted to 18 December 1991 when Miskus Maraleu is noted as having sought to dismiss the complaint. This was not upheld, and Mr Sebulon Wat applied for an adjournment "due to having been given the complainant's personal files, and I have some things to sort out with the defence".

Grant of adjournment is not recorded, but it is not disputed that the matter was stood over to 20 December 1991, when the record shows both accused appeared in their capacity as lawyers and "jointly agreed for the matter stood over to Monday". (sic).

Mr Samot says in evidence that he was present that day. Mr Wat told him that it would be mentioned on 23 December 1991 and it "is okay, it is not necessary for me to turn up". Mr Samot was not required to be present on 23 December. Hence, he did not come to the Court on that date.

Mr Wat says in his sworn evidence that he was given a file with the Poliamba records by Mr Maraleu at the court hearing on 20 December. He needed to study the file and "told Samot not to bother coming up on the 23rd, as it was for mention".

The District Court record, tendered by consent shows "Mr Wat apply to have matter withdrawn due to certain matters ascertained after looking through complainant's employment file with the Company. Mr Maraleu has no objection and says withdrawal of matter without costs." (sic)

In evidence before the National Court, Mr Wat explained, "After having a look at the files, I withdraw the matter on the 23rd so that I could get him (Mr Samot) to come and decide if he still wanted to take the defendant to court in the light of their evidence by the defence. About the 13th or 14th of January, Mr Samot came up to my office and told me he had been told by company surveyor of Poliamba Pty Ltd the matter against Poliamba was dismissed. Perhaps I go back after the 23rd withdrawal. Perhaps I'll say what happened after the 23rd/24th. After I withdraw the matter on the 23 of December, a couple of days later, Mr Maraleu came up to me and we discussed the possibility of a settlement out of court. After having discussed the matter through, we put the figure at K700 as an out-of-court settlement. I then told Mr Maraleu, "You confirm that to my client for his comment and endorsements, or whatever it was." (sic)

On this evidence, Mr Wat says that his client, Mr Samot, came to him on the 13th or 14th of January 1992 to discuss the case. This fact was not put to Samot in cross-examination. Why was there a need to discuss the figure of K700 (or any other figure) when the matter was withdrawn and, as far as the defendant was concerned, there was no need to settle?

None of these matters was put to Mr Samot. He said in his evidence that he "met the accused Mr Wat on the 19th of February 1992 at a trade store and Wat asked to see me". He saw Mr Wat subsequently in the office, and there he was told that the case was to be mentioned on 20 February 1992. Mr Samot went to the court on that date, but Mr Wat was not present due to illness. Mr Samot had already been told by Mr Wat that he was sick, and he had asked if the matter could be adjourned.

When he duly went to court and the matter was called, he was asked to go into the Senior Magistrate's office, where Timothy Salem, Poliamba's personnel officer, was also present. Mr Samot was asked if he knew the matter had already been settled out of court. He replied, "No". He said that "having learnt to all that, I was so upset because the matter was settled outside of court without my intention and also I had wasted a lot of money and time trying to get this matter sorted out in Court". (sic)

Mr Samot insisted that there had not been any communication between him and his lawyer, Mr Wat, between 20 December 1991 and 19 February 1992, although he called into the office. Despite cross-examination that the matter was being handled under his instruction and to his benefit, Mr Samot said he was never informed, nor was he informed that this case was hopeless.

The discussion of 13 or 14 January was not put to Mr Samot and, given the record of the court proceedings, it certainly seems odd that settlement, unknown to the client, was being discussed after the matter was withdrawn.

In fact, the case called on 20 February was not CIV 470/91 but a newly laid summons and complaint, CIV 20/92. I will return to the details of that in due course. Mr Wat says he had discussions with Mr Maraleu and there was:

"no confirmation or offer from Maraleu since we last discussed it in December, so I came to the conclusion that the offer fell through. The proposed settlement fell through. I then proceeded to issue a fresh summons in January 1992, the second/third week. I cannot recall now. The summons was returnable on the 31st of January 1992. Mr Samot came to my office and checked the date on which this matter could be heard again. I told him to come on the 31st of January 1992."

Hence, he told Mr Samot the complaint was returnable on 31 January 1992. On the 29th, Mr Maraleu gave him an envelope containing K300 in cash. Mr Wat says that he was never asked by Mr Maraleu to settle out of court on 18 December (prior to the withdrawal),...