Solomon Tato v Samson Akunai, Acting Provincial Administrator, Eastern Highlands Province and The Honourable Julie Soso Akeke MP, Governor, Eastern Highlands Province and Eastern Highlands Provincial Executive Council in the matter of charges of Contempt of Court; Ian Augerea, Registrar of the Supreme Court v The Honourable Julie Soso Akeke MP (2016) SC1519

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kangwia J, Higgins J
• Judgment Date: 28 July 2016
• Court: Supreme Court
• Citation: (2016) SC1519
• Docket Number: SCA No 12 of 2016
• Year: 2016
• Judgement Number: SC1519

Full Title: SCA No 12 of 2016; Solomon Tato v Samson Akunai, Acting Provincial Administrator, Eastern Highlands Province and The Honourable Julie Soso Akeke MP, Governor, Eastern Highlands Province and Eastern Highlands Provincial Executive Council in the matter of charges of Contempt of Court; Ian Augerea, Registrar of the Supreme Court v The Honourable Julie Soso Akeke MP (2016) SC1519

Supreme Court: Cannings J, Kangwia J, Higgins J

Judgment Delivered: 28 July 2016

SC1519

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 12 OF 2016

SOLOMON TATO

Appellant

V

SAMSON AKUNAI, ACTING PROVINCIAL ADMINISTRATOR,

EASTERN HIGHLANDS PROVINCE

First Respondent

THE HONOURABLE JULIE SOSO AKEKE MP,

GOVERNOR, EASTERN HIGHLANDS PROVINCE

Second Respondent

EASTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL

Third Respondent

IN THE MATTER OF CHARGES OF CONTEMPT OF COURT

IAN AUGEREA, REGISTRAR OF THE SUPREME COURT

Applicant

V

THE HONOURABLE JULIE SOSO AKEKE MP

Contemnor

Waigani: Cannings J, Kangwia J, Higgins J

2016: 25th & 28th July

CONTEMPT OF COURT – disobedience of court order – punishment – whether committal to prison or fine is appropriate – mitigating and aggravating factors – extent of punishment.

The contemnor, a provincial governor, was found guilty after trial of contempt of court for disobeying an order of the Supreme Court. The order, dated 15 February 2016, restored the appellant to office as Provincial Administrator forthwith and required that the respondents, including the contemnor, and the National Executive Council, permit him to resume office forthwith pending determination of the appeal by the appellant against orders of the National Court that restrained him resuming office after he had been suspended from duty. The contemnor disobeyed the order of 15 February 2016 by seeking to frustrate the implementation of the order. She did so by writing a letter to the appellant the next day, 16 February 2016, in coercive terms, instructing him to step down as Provincial Administrator and remain on paid leave. The letter was served on the appellant on 18 February 2016 as he sought to re-enter his office as provincial administrator. A hearing was subsequently held to determine the punishment. The contemnor apologised to the Court. It was argued on her behalf that a fine of K10, 000.00 to K15, 000.00 would be sufficient punishment. The Registrar of the Supreme Court, who brought the charge against the contemnor, did not seek a custodial penalty and agreed that a fine of the amount proposed by the contemnor would be appropriate and that in addition to the fine the contemnor should be ordered to pay the Registrar’s costs.

Held:

(1) There is no written law imposing maximum penalties for contempt of court but the conventional forms of punishment are a fine, committal to custody and/or an order for payment of costs.

(2) It is convenient to set a notional maximum and to assign a starting point. In this case, as the contemnor is a leader and subject to the Leadership Code, the contempt of which she has been convicted is intrinsically a very serious matter, warranting a notional maximum and a starting point greater than that appropriate for persons who are not leaders.

(3) The notional maximum penalty was regarded as four years imprisonment or a fine of K50, 000.00 and/or an order for payment of costs up to K50, 000.00. An appropriate starting point is in the middle of the range: two years imprisonment or a fine of K25, 000.00 and/or an order for payment of costs up to K25, 000.00. The court should then consider the mitigating and aggravating factors to assess the form and extent of the appropriate punishment.

(4) Mitigating factors are: the contemnor expressed genuine remorse and made a full apology in Court for her actions; she has no prior conviction for contempt or any other criminal offence; she is highly regarded in her community and has a long record of committed public service, which is unblemished; she has a long and outstanding record as a women’s leader; she has been placed in a difficult personal situation due to the recent death of her husband; the conduct constituting the contempt was reckless rather than intentional; the cause of the contemptuous course of conduct was a concern for avoidance of disorder in the administration of the province and avoidance of confusion brought about by ongoing disputes about who should occupy the office of Provincial Administrator; she was motivated by a legitimate concern for the integrity of the office of Provincial Administrator, which had to some extent been brought into question by the appellant being recently charged with serious criminal offences; her act of disobedience in writing the letter and having it served on the appellant was a single act or transaction, which was not prolonged or repeated; there is no evidence that the appellant was significantly prejudiced by the disobedience of the order; the degree of interference in the administration of justice was relatively low as the court order that was disobeyed was, soon after the contempt of court was committed, implemented; the contemnor has fully cooperated with the Court in the contempt proceedings.

(5) Aggravating factors are: the contemnor is a leader and subject to the Leadership Code and has a special duty and responsibility to uphold the rule of law; the contempt was committed in relation to the highest court and the most senior judicial officer in the country.

(6) In view of the nature and seriousness of the contempt and the lack of strong intention to interfere with the due administration of justice and the mitigating factors outweighing the aggravating factors, committal to custody was not necessary. A fine was a more appropriate penalty.

(7) The circumstances of the case warranted a fine that is below the notional starting point but still a substantial amount to signify the gravity of the offence. The fine imposed was K15, 000.00, payable by 31 August 2016; in default, committal to custody for six months.

(8) Further, no public funds shall be used in any way whatsoever to assist the contemnor pay the fine, which is and remains in perpetuity her personal and private responsibility.

(9) The parties will bear their own costs of the proceedings.

Cases cited:

The following cases are cited in the judgment:

Bishop Brother’s v Ross Bishop (1989) N690

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47

Elias Padura v Stephanie Valakvi (2012) N4830

Gawi v Wukawa (2016) SC1478

John Rumet Kaputin v The State [1979] PNGLR 559

Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923

Kulunga v Vaki (2014) SC1394

Peter Luga v Richard Sikani (2002) N2285

Re Valentine Kambori (No 3) (2003) N2490

Richard Sikani v The State (2003) SC807

Ross Bishop v Bishop Brothers [1988-89] PNGLR 533

Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572

Tato v Akunai (2016) SC1511

The State v John Rumet Kaputin [1979] PNGLR 544

Tzen Pacific Ltd v Innovest Ltd (2015) SC1459

Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel:

D Wood, for the Applicant

T Waisi, for the Contemnor

28th July, 2016

1. BY THE COURT: The Honourable Julie Soso Akeke MP, Governor of Eastern Highlands Province, the contemnor, has been convicted after trial of contempt of court for disobeying an order of the Supreme Court. This is the decision on punishment.

2. The order, dated 15 February 2016, restored the appellant, Solomon Tato, to office as Provincial Administrator forthwith, and required that the respondents, including the contemnor, and the National Executive Council, permit him to resume office forthwith. The order was expressed to remain in force pending determination of the appeal by the appellant against orders of the National Court that restrained him from resuming office after he had been suspended from duty.

3. The order, made by the Chief Justice, Sir Salamo Injia, sitting as a single Judge of the Supreme Court, stated:

Pursuant to the Court Orders of the National Court made by Kandakasi J in OS 471 of 2015 Solomon Tato & Another v Hon Julie Soso & Ors, on 12 August 2015, the acting appointments of the first respondent made by the National Executive Council on 11 February 2016 cease to have effect forthwith. The appellant is restored to office according to law effective as from this day on, and shall be permitted by the Respondents and the National Executive Council to resume office forthwith, pending the determination of this appeal.[Emphasis added.]

4. The contemnor disobeyed the order of 15 February 2016 by seeking to frustrate the implementation of the order. She did so by writing a letter to the appellant the next day, 16 February 2016, in coercive terms, instructing him to step down as Provincial Administrator and remain on paid leave. The letter was served on the appellant on 18 February 2016 as he sought to re-enter his office as Provincial Administrator. Further details of the contemnor’s conviction are set out in our decision on verdict, Tato v Akunai (2016) SC1511.

ANTECEDENTS

5. The...