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Re Paul Luben and David Poka [1987] PGNC 6; N612 (17 August 1987)

Unreported National Court Decisions

N612

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
RE: PAUL LUBEN AND DAVID POKA

Wabag

Amet J
11 August 1987
17 August 1987

CONTEMPT - Interfering with course of justice - Lawyer - Failure to attend as Counsel for start of sittings on circuit.

LAWYER - Constitutional obligations of Public Prosecutor or and Public Solicitor - Failure of Lawyers to attend court on time - Contempt of Court.

CONSTITUTION - s 37(3) right of accused to speedy trial - infringement of by lawyers failure to attend court on time - Contempt of Court.

A lawyer who fails to attend court on time when he knows he is required to do so as Counsel, without reasonable excuse is guilty of contempt of court.

Discussion of the duties of lawyers in relation to the constitutional rights of accused to a fair hearing within a reasonable time - s 37(3).

Case cited and relied on:

Re Passingan Taru [1982] PNGLR 292

Cur. adv. vult

CONTEMPT OF COURT

AMET J: This is the matf Paul Lube Luben, a Senior State Prosecutor in the office of the Public Prosecutor, and David Poka, a defence lawyer in the office of the Public Solicitor, whom I have called upon to explain ach of them should not be d be dealt with for contempt of court.

SHORT STATEMENT OF FACTS

Both officers are based in Mount Hagen. They are Counsel assisting the court in their respective roles in the National Court sittings in Wabag. The matter arises out of a failure by each of them to arrive and be present for the commencement of the Court sittings in Wabag, Enga Province at 9.00 am on Monday, 10 August 1987. They did not arrive in Wabag at the court house until about 3.30 pm on Monday, 10 August 1987.

The respective offices were advised in the usual way that the sitting in Wabag would commence on Monday the 10th of August 1987, and that the court would travel to Wabag via Mount Hagen on Sunday, 9 August 1987. The court did arrive in Mount Hagen on mid morning of Sunday, 9 August 1987 and travelled by road to Wabag.

As a result the court was not able to commence sittings until Tuesday, 11 August 1987.

EXPLANATIONS

Paul Luben

He is in charge of a two man Public Prosecutor’s office in Mount Hagen. He was originally scheduled to do the Simbu Circuit before Deputy Chief Justice Kapi and that William Akuani, a prosecutor from Port Moresby was to do the Wabag Circuit. He was advised on Thursday, 6 August 1987 that there would be no sitting of the National Court in Simbu, and had it confirmed that the sittings in Wabag would proceed as scheduled. There had been some uncertainty earlier in the week as to whether or not the sittings in Wabag would be on. He was also advised on Friday, 7 August 1987, if not on Thursday, 6 August, that his colleague William Akuani was not able to get a confirmed booking to Mount Hagen and that he was only wait-listed for Saturday and Sunday, 8 and 9 August 1987. Paul Luben realised then that he had to make arrangements to conduct the Wabag circuit until William Akuani was able to arrive. He checked the flights on Saturday but William Akuani did not arrive. On Sunday morning flight, on which the judge arrived at Mount Hagen, again he learned that William Akuani did not arrive. He saw the judge arrive en-route to Wabag. Again, he checked the afternoon flight to see if William Akuani would arrive but again he did not. Paul Luben, apparently had made no arrangements for his accommodation warrant up to this time, and so he had to attend to this with the local Bureau of Management Services (BMS) before he could travel to Wabag. He attended to this on Monday morning 10 August 1987. He had also wanted to make sure on Monday morning whether or not William Akuani could make it before he made arrangements to travel. He was originally to transport William Akuani and David Poka to Wabag if William Akuani arrived. He explained that he was thus left in a situation where he had to make quick arrangements on Monday, 10 August and also to check if William Akuani would arrive in the morning flight from Port Moresby. He had in fact learned also on Thursday afternoon that William Akuani was wait-listed on Saturday and Sunday. He had no transport difficulty, his office had an official car assigned to it. He had to wait until Monday to arrange accommodation warrant before he could travel.

David Poka

He was ready at all times except that he was relying on Paul Luben to transport him together with William Akuani should he arrive in time from Port Moresby either on Saturday or Sunday. Though his office had an official car, they had made arrangements to travel together to save costs, and as a result the Public Solicitor’s car was locked away in the transport pool and he did not have ready access to it. Even if he did, he could not drive and he had made no alternative arrangements with the transport pool for a driver to drive his office car. A further logistical difficulty was that even if he did arrange a driver the keys were with another officer of his office who was not readily available. And so he was totally dependent on the State Prosecutor’s vehicle for transportation.

ROLE DUTY OBLIGATIONS AND RESPONSIBILITIES OF LAWYERS AND COURTS

The primary responsibility of the courts and lawyers of the State are to administer justice. The lawyers from the offices of Public Prosecutor and Public Solicitor and Judges, Magistrates, Police and Correctional Officers are servants of the people and the laws we are sworn to uphold. The Public Prosecutor and Public Solicitor are Constitutional offices with Constitutional obligations as do Judges and Magistrates. The accused persons who are dealt with and who have been awaiting their trials also have constitutional rights. They have, as persons who are innocent until proven guilty according to law, the constitutional right to ‘be afforded a fair hearing within a reasonable time’, per s. 37(3) Constitution. It is a constitutional duty of the courts therefore to commence and bring cases to final resolution in a speedy manner. Lawyers of the State whose responsibility it is to prosecute and provide defence for people charged with offences have corresponding obligations to be ready and prepared to prosecute accused and represent them in their defence with diligence and promptness.

Lawyers generally, of course, are officers of the court. They have professional and ethical obligations toward the courts they are to appear before. One of these ethical obligations is punctuality. They owe this obligation to both the court and their respective clients or parties they represent. This of course goes without saying, but unfortunately it bears reminding because in recent years this is one area of the legal profession in the public sector which has received much criticism from judges of this court and I believe the magistracy. Delays which are unavoidable and beyond one’s control will of course be excused plus those which may be adjudged reasonable depending upon circumstances. Delays which are not reasonable will not be tolerated.

WHAT CONSTITUTES CONTEMPT OF COURT

With the limitation of reference material on circuit I have only been able to make reference to one contempt judgment, in the matter of Re Passingan Taru [1982] PNGLR 292, contempt by a police officer failing to attend as a witness. At p. 295 Pratt, J referred to Halsbury’s Laws of England (4th ed.) Vol. 9, para 7 where the definition is set out succinctly:

“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 contempts of court.”

APPLICATION TO CIRCUMSTANCES EXPLAINED

In this matter I am concerned with “acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice.” The Constitutional rights of accused persons are quite imperative about the ‘fair administration of justice’. Constitution s. 37(3) requires that that justice shall be “within a reasonable time,” and any act done outside court which is intended or likely to interfere with the hearing of any accused’s case within a reasonable time, is in my view prima facie punishable as contempt. It would range from private witnesses and police officers, such as in Re Passingan Taru, who deliberately absented themselves from attending and giving evidence and thus causing delay in the speedy disposition of accused’s trial, that is, a “fair hearing within a reasonable time” to delay unreasonably caused by correctional officers and in my view lawyers who have carriage of cases before the court, who conduct themselves in a particular manner outside of court which are intended or likely to interfere with or obstruct the fair hearing within a reasonable time.

This is even more imperative where the accused are held in custody. A “reasonable time” of course does not mean reasonable according to the personal conveniences of the investigating police officers, other police officers involved as witnesses, such as in Re Passingan Taru, or indeed lawyers having carriage of cases on circuits both as prosecuting lawyers and defence lawyers.

As a result of both lawyers delay in arriving for the commencement of the sittings in time, a full day’s sitting has been lost. A day’s worth of case or cases as the case might have been therefore will not have been dealt with. Some of the accused in custody or on bail will therefore not have their cases heard because a day’s hearing has been lost. The court has had and will continue to have intermittent delays and adjournments requested by lawyers, owing to their late arrival and unpreparedness.

CIRCUMSTANCES OF PAUL LUBEN

He learned or was advised on Thursday afternoon that William Akuani was only wait-listed for Saturday and Sunday. He had the whole of Friday to make arrangements for his accommodation and to travel to Wabag at the latest on Sunday in the event that William Akuani did not arrive by Sunday. It was unreasonable and unacceptable that he had not arranged accommodation Warrant on Friday in order that he should travel on Saturday or Sunday if William Akuani were not able to arrive on either of those days. He knew that the judge was travelling through on Sunday and in fact saw the judge, yet did not consider it important that he should be in Wabag by Monday morning when the sittings was expected to commence. I find it even more extraordinary that he considered he should wait to check on Monday morning’s flight to see if William Akuani might arrive, putting aside the need to obtain accommodation warrant which I have not accepted as unreasonable. This seems to me the epitome of arrogance when he knew full well that the judge had arrived and was en route to Wabag and would have to then wait on Monday for him, William Akuani plus Defence Counsel David Poka, who was to travel with him.

I therefore do not find these explanations reasonable. The fact is that Paul Luben as Senior State Prosecutor in Mount Hagen who was available from Thursday afternoon and learning of William Akuani’s predicament had ample time to make arrangements so that he was in Wabag ready to start on Monday, 10 August 1987 until William Akuani arrived to relieve him.

CIRCUMSTANCES OF DAVID POKA

He too ought to have learned on Friday that William Akuani was only wait-listed for Saturday and Sunday, yet did not consider other possibilities for himself in the event, as it transpired, that William Akuani did not arrive on Sunday. He too was aware that the court was going to travel to Wabag on Sunday in readiness to commence sittings on Monday morning. I find it as no answer to say I was totally dependent on William Akuani’s arrival and transportation by Paul Luben. I am not in the least persuaded by his own office difficulties with transport arrangements. The fact of his situation is that he placed himself in that predicament by design or by choice knowing full well by the afternoon of Sunday when William Akuani did not arrive that commencement of the Court sitting would be delayed until he and Paul Luben arrived. I consider that he ought to have made other travel arrangements, upon learning of William Akuani’s situation on Friday, to ensure that, in the event that William Akuani was not able to arrive Sunday morning, he would be able to travel to Wabag before Monday morning.

I find his explanations not reasonable and unacceptable in the circumstances.

Both lawyers knew by early Sunday afternoon that William Akuani would not make it in time for them to travel to Wabag to be ready for the sittings to commence. They knew the court had already travelled to Wabag, yet they chose to stay and check on Monday morning and to attend to other personal conveniences, and expected that the court would await their convenience.

In the end result I do not accept each of their explanations as reasonable and find that their actions leading to their not being here in Wabag in readiness for the commencement of sittings on Monday morning interfered with and obstructed the fair administration of justice and therefore find each of the guilty of contempt of court.

Allocutus was then administered to each contemnor.

Each had nothing to say.

PUNISHMENT

As I said in the judgment that this matter of counsels’ late arrival and lateness in commencement of cases have been a source of criticism by judges in recent years, particularly public sector counsel in the circuit criminal jurisdiction. There has been, in my view, a marked decline in ethical and professional standards of decorum and respect for the courts by counsel at the public bar. This manifests itself in the low standard of professionalism that the Chief Justice and other justices have had occasion to be critical of. The non-caring cavalier attitude demonstrated by some counsel and an air of don’t care arrogance has got to be erased and standards raised. Counsels on circuit with courts have to be more diligent in the discharge of their responsibilities. The judiciary is presently very concerned about the long lists of cases of people awaiting their trial for very long periods on bail and particularly in custody. These kinds of delays contribute to the overall backlog.

Let this verdict and punishment be a warning to lawyers and in particular public sector lawyers travelling on circuit with both the National and Magistrate Grade V courts. The courts have been prepared to be lenient for far too long and we have perhaps contributed to the complacency in the standards now being complained of. I intend to adhere to the standard that I expect by this judgment, in punctuality, proper dress, address, decorum and other ethical standards.

You are fined K50.00 payable by 4.00 pm Friday, 21 August 1987 in default then five (5) days imprisonment with hard labour.

Mr Paul Luben in person

Mr David Poka in person