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Phalanger v Kapil [2013] PGNC 161; N5298 (24 July 2013)

N5298

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 148 OF 2011

BETWEEN:

JINGHAN PHALANGER & LILIAN PHALANGER
Plaintiffs

AND:

DAVID KAPIL
Defendant

Mount Hagen: Poole, J
2013: 24 July

CONTEMPT OF COURT – Inherent jurisdiction of Court of punish – party accused of Contempt to be given particulars and opportunity to be heard on charge of an penalty – Contempt actions to protect democratic government and rule of law for public benefit.

PUNISHMENT FOR CONTEMPT – Community leaders whose examples are followed by public have additional obligation to abide by the law and obey Court Orders – Willful, contumacious and repeated disobedience of Court Orders requires custodial sentence – 15 months imprisonment with 12 months suspended and bond of K7500.00 to keep peace and be of good behaviour for 5 years.

Cases Cited:
Papua New Guinea Cases

Robinson v The State [1986] PNGLR 307
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448
State v John Kaputin [1970] PNGLR 544
Metta v The State [1992] PNGLR 176
State v Awaita [1985] PNGLR 179
Kwimberi v The State SC 545
Liriope v Usurup (N3931)
Lufa v Sikani & The State (N2286)

Overseas Cases

Re Davis (1888) 21QBD 236

Counsel

Ms. Palts, for Plaintiff
Mr. Pora, for Defendant

24th July, 2013

1. POOLE, J: This is the decision on sentence of David Kapil on his third conviction for Contempt of the National Court Orders made on the 1st April 2011.

2. The Background of this mater must be stated so as to appreciate the facts which make up the context of this decision.

3. On 3rd June 1999 a number of people who claimed customary ownership of land (later known as portion 1090C, Milinch Minj, Fourmil Ramu) disposed of that land under the provisions of the law then governing transfer of customary land. The state issued a lease for 99 years to the Plaintiffs on 20th August 2010 when they bought it from the people to whom it had been transferred in 1999.

4. The Contemnor David Kapil, some 10 years after the original transfer and after two of the original transferors had died, disputed the transfer by customary owners. He claimed he was wrongfully excluded from the decision – making process and challenged the Plaintiffs' right to possession of the land.
5. The Plaintiff's right to possession, at no stage, has been denied by any Court Order or by anyone other than the Contemnor and those apparently acting on his direction.

6. Despite this, on 20th March 2011, David Kapil and others entered on the land without any authority and demolished buildings, occupied the land and prevented the Second Plaintiff from entering the land. At this time he was in negotiation to sell the land to a third party. He also started building on the site of the Plaintiffs' house which had been demolished a very short time before.

7. On 1st April 2011 Justice David issued Orders restraining David Kapil and his servants, agents, relatives and tribesmen from entering the land or interfering with it.

8. The Orders were served on David Kapil personally the day they were made.

9. No Appeal or Application to stay or vary the Order was made.

10. David Kapil failed to vacate the land and he and his workmen continued with construction work.

11. The Plaintiffs' moved the Court for Orders for Contempt and, on 30th May 2011, the Court found the Contemnor guilty of willfully disobeying the Court Orders of 1st April 2011 and he was sentenced to one months imprisonment. He spent this time in the police lock-up.

12. In September 2011, when the Second Plaintiff and her workmen were starting to fence the land, the Contemnor again ignored the Orders of 1st April 2011 and, in spite of the punishment for Contempt on 3rd May 2011, violently drove the Second Plaintiff and her workmen off the land. He was accompanied by a considerable number of people.

13. On 9th September 2011 the dispute came before the Court again and the Court again found David Kapil guilty of Contempt but suspended punishment.

14. On 30 March 2012 the Court again issued Orders that David Kapil and "his agents, relatives and tribesmen" be restrained from entering on and interfering with the land and dismissed his Motion to overturn the Plaintiffs' possession of the land and declare the original sale void. He did not Appeal from this decision.

15. Despite these Orders, on the 7th July 2012, when the Second Plaintiff and her workmen went to the land, David Kapil and a crowd of his supporters once again attacked them. David Kapil publically stated he would not obey the Court Orders and alleged the Second Plaintiff had bribed the Judge who made the Orders. The contemnor and his supporters (which unfortunately included a Councillor from Nondugl village) attacked the Second Plaintiff and her workers and drove them from the land. A number of the workers were beaten up and two of them required hospital treatment for their injuries.

16. The Plaintiffs moved the Court for Orders for Contempt and, on the 12th July 2013, the Court Ordered:-

"1. The Defendant shall personally appear before this Court at 9.00 am on Wednesday 7th July 2013 and show cause why he should not be dealt with for being in Contempt of Court Orders made on 30th March 2012 and entered on 5th April 2012.

2. the Court Orders of 30th March 2012 are re-enforced in that;

(a) the Defendant, his servants, agents, associates and relatives are restrained from entering on or interfering with the land described as portion 1090C Milinch Minj, Fourmil Ramu, until further Order;

(b) The Defendant, his servants, agents, associates and relatives are restrained from assaulting, harassing, intimidating and interfering with the Plaintiffs' agents, associates, servants and relatives until further Order.

3. The Police at Minj and Banz police stations are not to interfere with this matter which is Civil in nature."

(Order 3 was made because of evidence given to the Court that a sgt. of police from Minj had attended the land with four other policemen, falsely claimed he had a restraining Order, and expelled the Second Plaintiff and her workers from the land on 16th July 2012.)

17. The matter returned to Court on 17th July 2013 and the Orders of 30th March 2012 were confirmed.

18. On 19th July 2013, following a hearing at which the Court considered a large volume of affidavit evidence and the submissions of counsel for the parties, the Court found the contemnor, once again, guilty of contempt of Court.

19. The Court heard extensive argument on the question of penalty and adjourned to consider the evidence.

20. The Undisputed Facts are that this is the third occasion that the Court has found David Kapil guilty of Contempt of Court Orders. He has not Appealed from the Orders or sought to stay or vary them – he has just willfully disobeyed them.

21. The Law on Contempt of Court in this jurisdiction is plain and clear.

22. The power of the Court to punish parties who disobey its Orders by proceedings in Contempt is part of its inherent jurisdiction and Rules of the National Court (Order 14, rules 38 to 46) "contain a comprehensive statement of the procedure to be followed" (see Robinson v The State [1986] PNGLR 307 & Metta v The State [1992] PNGLR 176).

23. As previously stated, these requirements were complied with in this case and the Contemnor found guilty beyond reasonable doubt of willful disobedience of the Court Orders.

24. The power of Courts to punish for Contempt is not intended to protect the petty dignity of a judge who made the Orders – it has nothing to do with judges. The power of punishment for contempt is to protect our democratic way of life (see Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448) - it is to ensure that the law is applied equally to all people without exception and that all people, without exception, obey the law. That is what "the Rule of Law" means – not one law for people who think they are above the law because they are "leaders" and another law for the grass roots – but lo b'long ol. (see Rooney (No 2)).

25. In this matter the facts show that David Kapil has repeatedly, contumaciously disobeyed the Orders of the Court – and done so by active disobedience, not by failing to do what he was ordered to do, when he knew of these Orders. In terms familiar to a pastor, it was not leaving undone what he ought to have done but he was doing what he ought not to have done.

26. Each case, of course, must be decided on its own merits and the punishment which a Court may impose should be commensurate with the seriousness of the conduct which the facts before the court show. (see the judgement of Raine DCJ in Rooney (No 2)). In other words, a court must "let the punishment fit the crime."

27. Punishment for Contempt may vary and the range of penalties was recently analysed and considered by Cannings J in Liriope v Usurup (N2931) and, earlier, by Sakora J in Luga v Sikani and The State (N2286). Examination of cases in Papua New Guinea and under the English Common Law shows that the question of intention of the Contemnor on contumacious, deliberate flouting of Court Orders and the authority of the Court (as distinct from mere sullen refusal to obey) is a matter to which the Courts give considerable weight when sentencing.

28. In this case the contemnor has repeatedly and violently done what he was ordered not to do. In terms of the Criminal law he is a recidivist.

29. In imposing a sentence the Court has to consider a number of factors which include factors personal to the individual to be sentenced, and factors concerned with the objective public interest.

30. As an individual, the contemnor says he is a community leader and a pastor of a well known church. He argues that he is a good man. It was submitted on his behalf that such a man should be at liberty.

31. His Counsel told the Court that David Kapil "was sorry for what had happened." There was no expression of remorse for his own actions, merely a regret for the consequences of those actions.

32. In canvassing options for punishment his counsel, having taken instructions in Court, informed the Court that as, well as being a pastor, David Kapil owned a trade store and would be able to pay a "cash fine" of K2000.00.

33. The task of imposing a sentence is a delicate one which requires careful deliberation not only of the facts but, also, of the effects of a sentence on the convicted person, his immediate family circle and on the community in which the events took place.

34. Were this Court merely to impose a fine there is no way of ensuring it would not be paid, in part or in total, by friends and supporters. It may have little deterrent effect in such circumstances. This is a factor the Courts should consider (see The State v John Kaputin [1979] PNGLR 544). Clearly a custodial sentence is called for.

35. A custodial sentence has been imposed on the contemnor in the past for disobeying the same Court Orders and he served a months in the police lock-up. This failed utterly to deter him and, quite clearly, failed to deter other people from assisting him in a repeated violent exercise of law – breaking in defiance of Court Orders.

36. Clearly, for David Kapil to be deterred it is necessary to impose a longer term of imprisonment. This may also deter these who have been aiding and abetting him in actions of defiance from similar behavior in the future.

37. David Kapil stated in his affidavit material that he is a leader in his community and people look up to him. The consequence of that is that his example can influence those in the community who look up to him. In such a situation a leader has an additional duty to the community to set a good example as a law abiding citizen. He has, in a sense, a greater duty not to break the law. It he breaks the law and sets an example of illegal behaviour, he carries, at least morally, some responsibility for the actions of those who follow his bad example. In such a case the Court should impose a sentence which reflects the condemnation of that breach of duty, not only to mark its disapproval of such conduct by people who set themselves up as public leaders but also to deter those who may be tempted to follow this bad example.

38. To assist in the deterrence, I propose to do two things. The first is to suspend the greater part of the sentence on condition that he keep the peace and be of good behavior in general and, in particular comply with the Court Orders for a term of 5 years.

39. This means that, upon the slightest breach of those orders or of any lawless behavior by David Kapil or his associates, servants, agents or relatives (who are also mentioned in the Orders) he is immediately liable to return to prison to serve the balance of his sentence.

40. The second is that I shall order him to lodge a bond with the Registrar of the Court in a sum to make it worth his while not to have it forfeit. Should the conditions of this sentence be broken, the money will be forfeit.

41. Having considered the facts of this matter and taking into account the blatant and repeated breaking of Court Orders and lack of personal contrition by a man who claims to be a community leader, the Sentence of the Court is:

1. The Convictions of David Kapil for Contempt of the Court Orders on the 9th of September 2011 and the conviction on the 18th of July 2013 are to be recorded by the Royal Papua New Guinea Constabulary as criminal convictions on David Kapil's criminal history records.

2. David Kapil shall post a bond with the Registrar of the National Court in the sum of K7500, such bond to be returned to him on satisfactory completion of the condition of his sentence that he keep the peace and be of good behaviour for a term of 5 years to expire on 1st August, 2018.

3. David Kapil is sentenced to a term of 15 months imprisonment with hard labour; ninety days are to be served without remission in the nearest Correctional Institution; the final twelve months of his term is to be suspended provided he refrain from breach of the law and keep the peace and be of good behaviour and, in particular, strictly comply with the Court Orders of 9th of September 2011 and 17th July of 2013 and if he or his agents, associates, servants or relatives should breach these conditions he is to appear before this Court and show cause why he should not serve the balance of his sentence.

4. The Applicant/Plaintiff's costs of and incidental to his Application shall be paid by the Respondent/Defendant, such costs to be taxed if not agreed.

5. Time is abridged.

_______________________________________________
Twivey Lawyers: Lawyers for the Plaintiff
Simon Norum & Co. Lawyers: Lawyers for the Defendant