Toami Kulunga v Geoffrey Vaki and National Executive Council and the Independent State of Papua New Guinea; In the matter of Charges of Contempt of Court; Alfred Manase, (First Contemnor) Margareth Parua (Second Contemnor) Sam Bonner (Third Contemnor) (2014) SC1394

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Sawong J, Geita J
• Judgment Date: 31 October 2014
• Court: Supreme Court
• Citation: (2014) SC1394
• Docket Number: SCM No 17 of 2014
• Year: 2014
• Judgement Number: SC1394

Full Title: SCM No 17 of 2014; Toami Kulunga v Geoffrey Vaki and National Executive Council and the Independent State of Papua New Guinea; In the matter of Charges of Contempt of Court; Alfred Manase, (First Contemnor) Margareth Parua (Second Contemnor) Sam Bonner (Third Contemnor) (2014) SC1394

Supreme Court: Cannings J, Sawong J, Geita J

Judgment Delivered: 31 October 2014

SC1394

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 17 OF 2014

TOAMI KULUNGA

Appellant

V

GEOFFREY VAKI

First Respondent

NATIONAL EXECUTIVE COUNCIL

Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

IN THE MATTER OF CHARGES OF CONTEMPT OF COURT

ALFRED MANASE

First Contemnor

MARGARETH PARUA

Second Contemnor

SAM BONNER

Third Contemnor

Waigani: Cannings J, Sawong J, Geita J

2014: 17, 31 October

CONTEMPT OF COURT – punishment – after trial – conduct of contemnors outside court interfered with a Supreme Court Judge’s decision on a stay application, presented a real risk of interference with due administration of justice, interfered with due administration of justice – whether committal to prison or fine is appropriate – mitigating and aggravating factors – extent of punishment.

Three lawyers were found guilty after trial of contempt of court for their conduct in causing a draft consent order to be delivered to the Chief Justice, who was sitting as a single Judge of the Supreme Court, hearing a stay application in contempt proceedings, after his Honour had heard the application and reserved a ruling on it. It was found that each of the contemnors interfered with the Judge’s decision on the stay application, presented a real risk of interference with the due administration of justice and interfered with the due administration of justice. A hearing was held to determine the punishment. The contemnors each apologised to the court and argued that payments of fines and/or an order for costs would be sufficient punishment. The Registrar of the Supreme Court, who brought the charges against the contemnors, did not seek custodial penalties.

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 each of the contemnors is a lawyer and an officer of the court, the contempt of which each 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 officers of the court.

(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 conduct constituting the contempt was reckless rather than intentional; the cause of the contemptuous course of conduct was a perceived threat to the safety and security of a contemnor’s family and property; there was no conscious intention to interfere with the due administration of justice; no disobedience of a court order was involved; the contemnors did not act deceitfully or otherwise in bad faith; the contemnors did not engage in any other contumacious conduct; each of the contemnors co-operated with the Court; each expressed genuine remorse; each has no prior conviction; each is experienced and highly regarded in the legal profession and the community; the case has been given publicity in the media and the contemnors have been punished already in terms of the adverse effect on their reputations.

(5) Aggravating factors are: each of the contemnors was involved to varying degrees in a course of conduct that was ill-conceived, highly irregular, in breach of the Supreme Court Rules, unprofessional, unethical, an abuse of process and disrespectful of the Court and the Chief Justice; 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 of the contempt and the lack of disobedience and intention to interfere with the due administration of justice, committal to custody was not necessary. A fine was a more appropriate penalty.

(7) The seriousness of the matter warranted substantial fines, the amount varying according to each contemnor’s degree of culpability. The fines imposed were: K15,000.00 (first contemnor), K10,000.00 (second contemnor) and K20,000.00 (third contemnor), payable within one month, in default, committal to custody for 12 months, 9 months and 18 months respectively.

Cases cited

The following cases are cited in the judgment:

Bishop Brothers v Ross Bishop (1989) N690

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47

Elias Padura v Stephanie Valakvi (2012) N4830

Ian Augerea v Augustine Koroma (2014) N5475

Ian Augerea v David Tigavu (2010) N4188

Ian Augerea v Hon Anton Yagama MP (2014) N5477

Ian Augerea v Peter Charles Yama (2014) N5476

John Siune v Rendle Rimua (2013) N5110

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

Newsat Ltd v Telikom PNG Ltd (2007) N3673

Peter Luga v Richard Sikani (2002) N2285

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

Re Valentine Kambori (No 3) (2003) N2490

Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572

The State v John Rumet Kaputin [1979] PNGLR 544

Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel

D Wood, for the Registrar of the Supreme Court

D Mel, for the first contemnor

M Kuma, for the second contemnor

T Twivey-Nonggorr, for the third contemnor

31st October, 2014

1. BY THE COURT: Alfred Manase, Margareth Parua and Sam Bonner have been convicted after trial of contempt of court and this is the decision on punishment.

2. They are each experienced lawyers admitted to practice in Papua New Guinea. They each committed various acts in June 2014 that resulted in a draft consent order being delivered to the Chief Justice, who was sitting as a single Judge of the Supreme Court, hearing a stay application in contempt proceedings involving former Commissioner of Police Sir Toami Kulunga.

3. The Chief Justice on Wednesday 4 June heard the application for a stay of the National Court proceedings in which Sir Toami had been convicted of contempt of court and reserved a ruling on the application to Friday 6 June. Ms Parua’s firm, Parua Lawyers, acted for Sir Toami in the contempt proceedings and in the stay application and engaged Mr Manase as counsel for the stay application. Mr Bonner’s firm, Sam Bonner Lawyers, acted for the plaintiff, Geoffrey Vaki (the present Commissioner of Police) in the National Court proceedings and in the stay application.

4. It was a contested application. Mr Manase submitted that a stay should be granted to prevent the National Court proceeding to hand down its punishment on Sir Toami, pending determination of an appeal against his conviction. Mr Bonner submitted that the stay application ought to be refused.

CONDUCT CONSTITUTING CONTEMPT

5. Late on the night of Wednesday 4 June Mr Bonner became aware of threats against his family and properties in the Western Highlands allegedly made by Sir Toami’s clansmen. Mr Bonner consulted his client, Mr Vaki, who instructed Mr Bonner to change his position on the stay application and to consent to the stay of the National Court proceedings. Mr Bonner consulted Mr Manase and told him that he (Mr Bonner) would file a formal application for a consent order. Mr Manase agreed with this course of action. Ms Parua was not initially consulted and when she first came to know about it, did not agree with what Mr Bonner (and Mr Manase) proposed to do.

6. A draft consent order was, however, prepared and steps were taken on Thursday 5 June to get it before the Chief Justice. Mr Bonner took the lead role. On the afternoon of 5 June he went into the courtroom in which the Chief Justice was presiding in another matter and gave a letter, enclosing the draft consent order, to his Honour’s Associate.

7. Later the same afternoon Mr Bonner arranged to have the draft consent order signed by the lawyers for the parties, himself and Ms Parua (who signed it begrudgingly, contrary to the advice she gave to her client, Sir Toami). The signed draft consent order was filed in the Supreme Court Registry at 4.00 pm and found its way to the Chief Justice’s Associate’s in-tray that evening.

8. The next day, Friday 6 June, Mr Manase – but not Mr Bonner – appeared before the Chief Justice to receive the ruling on the stay application and alerted his Honour to the possible existence of a draft consent order. The Chief Justice expressed the view that such a matter should be dealt with in open court and reserved the ruling to Tuesday...