Ian Augerea, Registrar of the Supreme Court and the National Court v Robert Kopaol (2020) N8388

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 26 June 2020
• Court: National Court
• Citation: (2020) N8388
• Docket Number: OS No 180 of 2015
• Year: 2020
• Judgement Number: N8388

Full Title: OS No 180 of 2015; Ian Augerea, Registrar of the Supreme Court and the National Court v Robert Kopaol (2020) N8388

National Court: David, J

Judgment Delivered: 26 June 2020

N8388

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No.180 of 2015

BETWEEN:

IAN AUGEREA, REGISTRAR OF THE SUPREME COURT

AND THE NATIONAL COURT

Plaintiff

AND:

ROBERT KOPAOL

Defendant

Waigani: David, J

2020: 26th June

CONTEMPT OF COURT – punishment – contempt committed outside courtroom within precincts of court at Courthouse car park – assault of lawyer for clients defending contemnor’s claim for K4.9 million arising from the death of contemnor’s son allegedly in a motor vehicle accident caused by the negligent driving of the son of one of the lawyer’s clients – assault after adjournment - exercise of discretion – fine imposed, in default of payment, imprisonment for eight months in hard labour.

Cases Cited:

Public Prosecutor v Nahau Rooney (No.2) (1979) PNGLR 448

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State (No.3) [1982] PNGLR 92

Ure Hane v The State [1984] PNGLR 105.

Yap v Tan (1987) PNGLR 227

Daniel Gwaya Poka v The State [1988] PNGLR 218

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

Bishop Brothers Engineering Pty Ltd v Ross Bishop (1989) N690

Kwimberi v The Independent State of Papua New Guinea (1998) SC545

Peter Luga v Richard Sikani (2002) N2286

Richard Charles Sikani v The State (2003) SC807

Manu Kovi v The State (2005) SC789

Re Contempt of Court; Re Assistant Registrar, Philip Kaumba (2004) N2763

Stephen John Rose v Neville Devete (2007) N3327

Thress Kumbamong v The State (2008) SC1017

Ian Augerea v David Tigavu (2010) N4188

Elias Padura v Stephanie Valakvi (2012) N4894

Ian Augerea v Augustine Koroma (2014) N5475

Ian Augerea v Hon Anton Yagama MP (2014) N5477

Christine Gawi v Elizabeth Mandus Wukawa (2016) SC1478

Ian Augerea v Robert Kopaol (2020) N8374

Counsel:

Robbie Yansion, for the Plaintiff

Derek Wood, for the Defendant

PUNISHMENT

26th June, 2020

1. DAVID, J: INTRODUCTION: This is the decision of the Court on punishment following the verdict of the Court delivered on 15 May 2020 finding the contemnor guilty of one count of contempt of court.

2. In the verdict, the Court found that McRonald Nale (Mr. Nale), a lawyer was assaulted by Mr. Kopaol and his supporters at the car park of the Supreme and National Courts at Waigani (Courthouse car park) after National Court proceedings commenced by WS No.757 of 2014 on 2 July 2014 by the contemnor and one Mr. Philip Wari as first and second plaintiffs respectively against Mr. Nale’s clients, John Nahare and Gobe Business Development Corporation Ltd as first and second defendants respectively claiming K4.9 million (WS No. 757 of 2014) were adjourned to 4 March 2015 for hearing of Mr. Nale’s client’s application to dismiss those proceedings for failing to disclose any reasonable cause of action or were frivolous or vexatious or for abuse of process. The details of the circumstances when the offence of contempt of court was committed are set out in the verdict, Ian Augerea v Robert Kopaol (2020) N8374.

BRIEF BACKGROUND

3. Mr. Nale was the lawyer for the defendants in WS No.757 of 2014.

4. In WS No.757 of 2014, it was alleged that on 18 January 2014, Ronnie Kopaol (deceased) who was the contemnor’s son, was a passenger on the trailer of a Nissan Navara (4x4) utility driven by Deheray Nahare, who is John Nahare’s son. Deheray Nahare allegedly lost control of the vehicle when it negotiated the roundabout at South Pacific Brewery at Gordons, National Capital District and hit a concrete flower pot in the middle of the road. The deceased was thrown off the vehicle and landed on the bitumen head first. The deceased allegedly suffered severe head injuries and was pronounced dead upon arrival at the hospital. Subsequently, on 27 January 2014, a Peace Agreement (Peace Agreement) was allegedly signed by the representatives of the contemnor and Mr. Nahare.

5. It was also alleged that pursuant to the terms of the Peace Agreement, the plaintiffs would accept the death of the deceased and ensure peace was maintained between the parties and the defendants would pay K5 million as compensation to the plaintiffs. In addition, it was alleged that the defendants made a part payment of K100,000.00 and the balance outstanding of K4.9 million was sought to be recovered against the defendants in the proceedings.

6. By separate defences filed on 20 August 2014, the defendants denied liability and asserted, amongst others, that the Peace Agreement was invalid as it was signed under duress, Gobe Business Development Corporation Ltd was not a party to the peace agreement, the Board or shareholders of Gobe Business Development Corporation Ltd did not resolve to pay the claim for customary compensation, the Peace Agreement contravened the Motor Vehicles (Third Party Insurance) Act and the proceedings, failed to disclose any reasonable cause of action or were frivolous or vexatious and should be dismissed.

7. On 9 February 2015 at about 1:30 p.m., WS No. 757 of 2014 was mentioned in Court before His Honour Justice Sakora at which time, on the application of the lawyer for the contemnor and Mr. Wari, His Honour adjourned the proceedings to 4 March 2015 for the hearing of the defendants’ notice of motion filed on 3 October 2014 which sought an order to dismiss the proceedings for disclosing no reasonable cause of action or were frivolous or vexatious or were an abuse of the process of the Court.

8. After Mr. Nale left the Court room and when he was at the Courthouse car park, the contemnor committed the offence of contempt of court.

ALLOCUTUS

9. Following the delivery of the verdict on 15 May 2020, allocutus was administered, ie., the contemnor was asked whether he had anything to say in mitigation of punishment. He said he had and made a statement to the following effect:

He did nothing wrong as he was only trying to protect Mr. Nale. Police lied to Court. The incident arose from the death of his son and he is still grieving his son’s death in his heart without showing tears. He said sorry on behalf of his boys. The claim he filed was defended by the defendants showing arrogance despite the Peace Agreement so it was tantamount to de facto provocation. He was willing to pay a reasonable fine on behalf of his boys. He was not a criminal, but a leader. He was the father of the national Christian education policy. He respected the work of the courts.

10. The Court noted that the contemnor was emotional when making his statement.

ANTECEDENTS

11. There is no evidence to demonstrate that the contemnor has prior convictions.

PERSONAL PARTICULARS

12. The contemnors personal details are sketchy. From material available before the Court including the contemnor’s affidavit sworn and filed on 12 June 2020 attached to which are several character references which I have considered, the contemnor is married with children one of whom was the deceased, Ronnie Kopaol. He is a Peace Maker, a leader, a consultant, a donor, educationist and practicing Christian and involves in Christian activities.

PLAINTIFF’S SUBMISSIONS

13. Mr. Wood for the plaintiff contends that a penalty of imprisonment would be consistent with established legal principles and reflective of community expectations. He said the Court ought not to exercise its discretion and suspend any part of any sentence imposed. In addition, it was argued that the public and parties to court proceedings should feel safe to come to Court and the attack on a lawyer erodes the public’s confidence that the Court is a safe place for them to resolve their disputes. It was submitted that a custodial sentence would impress upon the contemnor the gravity of his conduct and also would deter others in the public who are inclined to such behaviour.

14. Mr. Wood urged the Court to take note of the offence of assault under Section 6 of the Summary Offences Act which carries a maximum penalty of imprisonment for a term not exceeding two years by way of comparison. He said the contemnor’s contempt was wilful, contumacious and deliberate. There was a deliberate intention to defy the authority of the Court in that the contemnor assaulted Mr. Nale after a court hearing with the intention of interfering with Mr. Nale’s discharge of his duty to the Court to represent his client’s interest fully and freely. It was submitted that the contemnor’s contempt was at the highest end of the scale of seriousness. Mr. Wood stated that justice of the case would be best served by the imposition of a custodial sentence of imprisonment for a term of 24 months.

CONTEMNOR’S SUBMISSIONS

15. Mr. Yansion for the contemnor argued that the contemnor has a heavy heart given these proceedings and the eventual finding of guilt for contempt of court directly arises from his claim for compensation in the National Court which was instituted as a result of the death of the contemnor’s son in a motor vehicle accident and eventually withdrawn following the incident giving rise to these proceedings. He said all...