The State v Joseph Waine, Jack B'sour and Matilda Kupul (2002) N2276

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 29 August 2002
• Court: National Court
• Citation: [2002] PNGLR 469
• Year: 2002
• Judgement Number: N2276

Full Title: The State v Joseph Waine, Jack B'sour and Matilda Kupul (2002) N2276

National Court: Jalina J

Judgment Delivered: 29 August 2002

N2276

PAPUA NEW GUINEA

[In the National Court of Justice]

MP 412 of 2002

THE STATE

V

JOSEPH WAINE

JACK B’SOUR

MATILDA KUPUL

Mt. Hagen: Jalina J

13th and 29th August 2002

Contempt – Contempt of Court – Lawyers failing to appear on time for cases listed in advance for trial – Lawyers living out of town and traveling to work by public transport - No effort by lawyers to advise the court of possibility of appearing in court late – whether it seriously interfered with or obstructed the fair administration of criminal justice.

Cases cited:

Poka v. The State [1988] PNGLR 218

Weston v. Central Criminal Court Court’s Administrator [1977] QB 32

Re Passingan Taru [1982] PNGLR 292,

The State v. Mark Taua: Re Awaita [1985] PNGLR 197

The State v. Raymond Tupundu, National Court, Unreported Judgment No. N1536 and dated 30th May 1996

Kwimberi v. The State, Unreported Supreme Court Judgement No. SC 545 and dated 27th March 1998,

Counsel:

B. Aipe for the Contemnors,

29th August 2002

JALINA J: The three (3) contemnors are lawyers who are based in Mt. Hagen. The first two, namely Joseph Waine and Jack B’Sour are employed by the Office of the Public Prosecutor while Matilda Kupul is employed by the Office of the Public Solicitor.

Sometime last month (July) Hinchliffe, J, the Resident Judge in Mt. Hagen listed both civil and criminal cases for trial before Batari J. as he was to be the only judge on circuit to Mt. Hagen in August.

Upon approval from the Chief Justice I arrived in Mt. Hagen on 5th August to be the second circuit judge to Mt. Hagen. Hinchliffe J, who was partly relieved from court sitting’s to write outstanding judgments, then arranged through his associate for the lawyers in the Public Solicitor’s and Public Prosecutor’s Offices to prepare criminal cases to be tried before me. So the case of The State v. Baltasar Koi Las CR 860/99 was listed for trial on 12th August at 9.30 am and the case of The State v. John Yandapu CR 1581/2001 was listed for trial on 13th August at 9.30 am.

Due to Batari J being stranded in West New Britain as a result of the Mt. Pago volcanic eruption near Hoskin airport, I took over civil cases which were to be tried before him. His Honour arrived the following week but due to the urgency of a case involving the South Waghi Local Level Government Election I could not start the criminal case listed for trial on Monday 12 August so it was adjourned to Tuesday 13th August.

On 13th August I went into court at about 9.45 am but there was no lawyer from either the Office of the Public Solicitor or the Office of the Public Prosecutor present in court. I then adjourned. When I returned to court at about 10 am I found the three (3) contemnors in court and charged them with contempt in the face of the court in that they failed to appear on time in criminal matters that were listed in advance for trial. They were then remanded in custody to appear the next day but were released on bail in the afternoon by Batari J upon application by Mr. Aipe from the Office of the Public Solicitor in Mt. Hagen.

They appeared before me on 13th August and pleaded not guilty and gave their explanation.

Mr. Waine said that being from another province and accommodation being difficult to find in the city of Mt. Hagen, he lived at Panga Coffee which was off the main road and behind the airport. He had been living there for two years and travel into the city by public transport usually took 45 minutes. He usually made an effort to arrive at work early but recently election related violence had made transportation difficult as people were blocking the roads.

He went on to say that on the day in question he arrived at his office at about 9.30 am and got himself ready to attend Court but as he was about to leave his office the investigating officer in the listed matter of The State v. Yandapu walked in and advised him that he was having problems with collecting the witnesses from Porgera, Wabag and Baiyer River and so was trying to give him instructions. So he spent about 10 minutes with the investigator. He was conscious of the fact that he had to appear in Court at 9.30 am so he rushed to Court with his collegue Mr. B’Sour. It took them about 5-6 minutes possibly 8-9 minutes. When they arrived they were informed that the judge had gone into court and left. The court resumed about 10 minutes later and charged them with contempt of Court.

The explanation by Mr. Jack B’Sour was that he had been living at Newtown in Mt. Hagen but due to continuous break-ins as well the concern for his own security and the security of his family members in view of the nature of his job as a State Prosecutor, he moved to his wife’s village near Minj. Travel to Mt. Hagen from Minj usually took one and half hours by road in view of the bad condition of the road. If the road was good then travel into Mt. Hagen would take between 45 minutes and 1 hour depending on the kind of vehicle and the manner the driver drove. Despite these difficulties he usually arrived at his office on time. With regard to his failure to attend on time he said that he was prevented from attending by certain factors. They were that he had a new house in town and his wife packed everything that day and she left earlier for the new house in town. He had to stay back and protect the rest of their belongings in their house at Minj. His wife had their car so he had to travel on different buses to get to Mt. Hagen. There were also problems related to the election of President in the South Waghi Local Level Government area so he ended up arriving at his office at about 9.30 a.m. After he arrived Mr. Waine asked him to accompany him to court for fear related to the case of The State v. John Yandupu.

He also acknowledged that timing was important and that they should bring witnesses and proceed on time.

Ms Matilda Kupul explained that she went to her office at 7.30 am. While in the office she called the court house to find out if the accused in the plea matter of The State v. Kerowa Kana had been brought to the court from Baisu Corrective Institution as she wanted to obtain instructions. That was because she was not appearing in any of the listed matters. Her other colleagues namely Messrs Aipe and Kumo were appearing in those matters.

Upon entering the Court she was informed by the Court Reporter that I had gone into court and adjourned as there were no lawyers present. So she decided to stand in for her two male colleagues. That was when I returned to Court and charged her with the other two lawyers with contempt of court. Before she could explain herself she was remanded in custody.

Contempt of Court is not defined by any statue in this jurisdiction. In fact, Contempt of Court is the only offence that a person can be charged with even though it is not defined by law. Otherwise a person cannot be charged with an offence that is not defined or prescribed by law. (see

Constitution s.37(2)).

The Common Law definition which is set out in Halburys Laws of England (4th ed. Vol. 9 para 7) has been accepted in Papua New Guinea in Poka v. The State [1988] PNGLR 218 at 219 as follows:

“In general terms, words spoken or otherwise published, or acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempt.”

It appears from the above definition that there must firstly be an intention to interfere with or obstruct the fair administration of justice or secondly that the words or acts are likely to interfere with or obstruct the fair administration of justice.

The correct statement on the law of Contempt under the English Common Law appears in Weston v. Central Criminal Court Court’s Administrator [1977] QB 32 where Lord Dening MR. (with whom Lord Justice Stephen and Bridge LJJ agreed) said at 43:

“But the question arises: Was his breach of duty a contempt of court such as to be punishable summarily? I have no doubt that if a solicitor deliberately fails to attend – with intent to hinder or delay the hearing, and doing so – he would be guilty of contempt of court. He would be interfering with the course of justice. But in this case the conduct of the solicitor was not done with intent to hinder or delay the hearing. He took the view that in fairness to the accused the case could not be forced on for trial at such short notice before he was ready: and that, as it was bound to be adjourned, he did not propose to attend.”

The Supreme...