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Augerea v Bellie [2018] PGNC 152; N7249 (10 May 2018)

N7249

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 249 OF 2018

IN THE MATTER OF CONSTITUTION SECTION 163 (2)

AND
IN THE MATTER OF CONTEMPT OF COURT

BETWEEN
IAN AUGEREA as registrar of the National and Supreme Courts of Justice
In Papua New Guinea
Plaintiff

ROBERT BELLIE
Defendant

Kimbe: Miviri AJ
2018: 9 & 10 May

CONTEMPT – Public Solicitors counsel threatening Probation officer – PSR MAR reports ordered by court not ready – plea– serious offence –first offender–– strong deterrent sentence – 3 months IHL suspended on condition pay K1000 within 7 days.

Facts

The Contemnor was Public Solicitors Lawyer on circuit into Kandrian. He applied for Presentence Reports and Means Assessment Reports for his clients who were charged with various criminal offences including murder. The court ordered as applied and the probation officer went ahead to prepare and could not complete as he was threatened by this Lawyer. The criminal case could not proceed as probation reports were not completed directly attributed to Public Solicitors counsel on circuit the contemnor.

Held
Serious offence
Interference with administration of Justice
Plea
First offender
K1000 fined to be paid within 7 days in default imprisonment for 3 months.

Cases Cited:
Papua New Guinea Cases

Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1988] PGSC 9; SC545
Luga v Sikani Commissioner of Correctional Services (No.1) [2002] PGNC 59; N2285
Re Passingan [1982] PNGLR 282
Re Raymond Tupundu [1996] PGNC 10; N1536
State v Sasoruo [1996] PGNC 38; N1494
The State v Mark Tauwa, Re Awaita [1985] PNGLR 179
The State v Foxy Kia Tala, Re Conny Winjain, [1994] PGNC 76 ; N1192
The State v Poka [1988-89] PNGLR 218

Overseas cases:

AG v Leveller Magazine Ltd [1979] AC 440
Jennison v Baker [1972] 2 QB 52

Counsel:

D Aheng, for the Plaintiff
R. Bellie, in Person

SENTENCE
10^th May, 2018

1. MIVIRI AJ: This is the sentence of the court upon the contemnor who pleaded guilty to contempt of court.
   

Background

2. Contemnor was Public Solicitors counsel on circuit with the court for the Kandrian Circuit on the 19^th April 2018. On the 18^th April 2018 he was intoxicated with alcohol, he swore and harassed the probation officer one Joseph Telkit who was not able to complete the presentence and means assessment reports due in CR 149 of 2018, State v Jude Leo, CR 150 of 2018, State v Beven Macklay, CR 354, State v Micah Raphael, CR 355 of 2018 State v Pani Adit. CR 356 of 2018, The State v Mathias Serepio, CR 357 of 2018, The State v Joe Kapi, CR 358 of 2018 The State v Raphael Wale Yalel and CR 359 of 2018, The State v Bokomo Manlem. The court could not continue to deal with it and to complete it, 19^th April 2018 being the last day of the circuit there due to the actions of the contemnor. He showed extreme disrespect to the court such that his contemptuous behaviour went against public confidence in the judicial system.
   
3. He was cited and matter was referred to the Registrar of the court who has filed an originating summons dated the 20^th April 2018 invoking section 163 (2) of the Constitution and order 14 rule 47 of the National Court Rules moving the court by motion attaching a statement of charge supported by two affidavits to have contemnor dealt with in law. The contemnor has pleaded guilty to the charge served on him with an affidavit of service dated the 26^th April 2018 on the same day and the matter was adjourned for submission on sentence to Wednesday 9^th May 2018.
   

Charges

4. The charge was that he stopped the work and interfered with the due administration of the court on the 19^th April, 2018 whilst the court was on circuit in Kandrian when the orders of the court executed by the probation officer was prevented with no filing of Presentence and means assessment reports in the cases before the court set out above.
   
5. The entire circuit duration was not effected in any way except to the last day as dated as above when his application ordered by the court was implemented by the probation officer in the production of reports to assist in the determination of sentence against his clients. Probation officer, a police officer and Prosecuting counsel were all housed in the same accommodation during the circuit but could not continue on the date in question because contemnor was seriously effected by alcohol and displayed criminal conduct that had the effect of the former two officers leaving the accommodation in fear of commission. The end result was all reports were not adequately prepared and ready to assist the court in dispensation of Justice for the prisoners in the cases before it. What could have been done there was adjourned to Kimbe.
   

Issue

6. What is an appropriate sentence for the contemnor?
   

Punishment for contempt Order 14 Rule 49

7. The punishment for contempt pursuant to Order 14 Rule 49 “punishment” was by committal to prison or fine or both. There was also empowerment to suspend sentence including suspension with security in such manner and sum as the court may approve for good behaviour and performance of the terms of the security.
   
8. There is no maximum prescribed penalty for the offence, one can be committed to prison or fined or both, including suspension of the sentence on conditions with security and performance of it. In Re Passingan [1982] PNGLR 282 the court imposed K50 fine against a police officer required as a witness who failed to appear. In the State v Mark Tauwa, Re Awaita [1985] PNGLR 179, K1000 a lawyer was fined K1000 when he failed to appear. In State v Foxy Kia Tala, Re Conny Winjain, [1994] PGNC 76; N1192, the court imposed a six months suspended imprisonment term on a policeman who failed to appear in a criminal trial as a witness. In Re Raymond Tupundu [1996] PGNC 10; N1536 a fine of K500 was ordered against a lawyer who failed to turn up in court for a set criminal trial. Yet again in State v Sasoruo [1996] PGNC 38; N1494 failure of a lawyer to appear in a date in a criminal matter was fined K500. In the present case that is the range of sentence that will be considered against the contemnor. He could be fined or imprisoned or both imposed with security imposed to ensure compliance.
   

Allocutus

9. Contemnor apologised to the court for his actions which caused the unavailability of the presentence reports ordered. He further stated that the subjects of the presentence reports were completed with his assistance in court today Wednesday 9^th May 2018. He apologised to all the officers including Senior Inspector Morris Itoro, State Prosecutor Augustus Bray and all the staff. He admitted to drinking alcohol which effected the way that he behaved on this day. In the morning he went and invited back the Probation officer and the police officer back to the residence where they were altogether at this sentence. He said he reconciled the matter by payment of a pig that was valued at K 600 to the three officers including payment of shell money to the officers that he committed wrong witnessed by village elders.
   
10. In Jennison v Baker [1972] 2 QB 52 at 61 Salmon LJ said:
    

“contempt of court............prohibits acts and words tending to obstruct the administration of Justice.” Lord Diplock in AG v Leveller Magazine Ltd [1979] AC 440, said: “Although criminal contempt of court may take a variety of forms, they all involved an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by the contempt of court, not the individual court or Judge who is attempting to administer it”

11. By this it is clear the act is not against an individual Judge or court but against Justice. Here in reference to the cases set out above where order was made for presentence and means assessment reports in the determination of sentence upon each of the prisoners, 8 in all. So the payment of Shell money and pigs to the probation officer and the police officer or any others is not Justice and will be obita or by the way and not the fundamentals here. He will give due to Justice.
    

Mitigation

12. He pleaded guilty to the charge and was a first time offender. He completed the cases the subject of the contempt today 9^th May 2018. He is the solicitor in charge of Public Solicitors Office Lae six years now and has been in that office now for 13 years without any similar offence committed. And has helped to dispose off the entire criminal list in Kandrian except for these eight prisoners who were to be sentenced so that the list in Kandrian was clean. He has maintained his integrity up to the date of the offence. And is a good lawyer except for this occasion when he fell into the lure of alcohol infested criminality that has effected the proceedings of the court.
    

Aggravation

13. The contemnor applied for presentence and means assessment reports which were granted. Order was made to prepare both reports for the court. Both reports were not ready and the progress of the Court was seriously stopped from dealing with the eight cases at the time ordered to. Because he threatened, harassed, and swore at the Probation officer Joseph Telkit both reports worked on by this officer were not complete as ordered to by there were a total of 8 prisoners whose sentences could not be completed because of his actions. As a result work that could have been disposed off there was adjourned to Kimbe to complete.
    

Comparative cases

14. This is not the same situation as in Luga v Sikani Commissioner of Correctional Services (No.1) [2002] PGNC 59; N2285 where orders were made in a proceedings and not complied with. This is conduct related to a specific case in which litigation in court was proceeding and could not be proceeded with because of the actions of the Contemnor. By his conduct he undermined due administration of the matter before the court. It effected due disposal of these criminal matters for address on sentence and sentence.
    
15. To an extent the circumstances here can be likened to Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1988] PGSC 9 ; SC545 where the appellant had set down a criminal matter in court but failed to appear in court at that date and time set. His appeal to the Supreme Court was dismissed and decision at first instance was confirmed of contempt. The court held his conduct to amount to gross carelessness befitting contempt. This is a similar situation here where orders were made for presentence and means assessment report returnable on this particular date and time. And which were in response to the application by the contemnor. Rather than allow Probation officer to prepare and execute the orders of the court his actions prevented that from happening. He was drunk and effected by alcohol which was self induced.
    
16. His conduct must be distinguished from Poka v The State [1988-89] PNGLR 218 where it was held that careless and inadequate travel arrangements did not amount to deliberate intent to hinder the court, there was no contempt of court made out. Here is a criminal act by the contemnor against the Probation officer Joseph Telkit that prompts him to leave the area of residence and not being allowed to complete the reports ordered by the court in the deliberation of appropriate sentence in a murder and wilful and unlawful damage case involving 8 prisoners. It is a deliberate act which cannot be likened to as being careless because the contemnor is versed of the role played by the probation officer in the execution of the orders of the court. And this is evident from the evidence in the case by the probation officer.
    
17. And here it is the “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 [1982]PNGLR 292 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 unnecessarily 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,” Re Paul Luben and David [1987] PGNC 6; N612 (17 August 1987).

18. The remarks of this court per Amet J as he then was are relevant and

applicable to the facts and circumstances of the present case. What the contemnor has done has seriously effected the speedy disposal of the cases on the list in Kandrian. On the other hand his guilty plea has saved court time and resources in the prosecution of the matter. Further it is clear his conduct was as a result of alcohol consumed to an extent where he was prone as evidenced. Importantly in his favour is the fact that he has pleaded guilty, expressed remorse and not to indulge again in the future. Particularly considering the fact that he is employed by a Constitutional office whose role assists the court to dispense Justice in a timely manner to those who are incarcerated by criminal law.

19. No doubt with this experience added to his record of service and on court record he will desist from his behaviour and will amend for the better. The plaintiff has submitted that a fine of K5000 be imposed and 6 months imprisonment be imposed. Considering all set out above that would be for a very bad or worst case of contempt of court. This is not the extreme case or the worst case of contempt. It is a one of incident no doubt will be on the mind sight and focus for a long time to come in his career. And it will be a very effective deterrent on him and any others with like or similar inclinations. The Sentence will also emphasise respect for Justice and duty to the court to be paramount. Failure will meet serious consequences upon those who defy.
    
20. The cases the subject of the contempt have been now successfully disposed off with the help of the contemnor. He has in this sense made up for what he abused and committed. He is continuing to help in the disposal of criminal matters before the court which is in his favour. That what has happened is out of character and will not be repeated given it is now on court record and a conviction against him. No doubt he will refrain as even more serious consequences will follow should he re offend.
    
21. In all the circumstances the proportionate sentence given all above in your case contemnor Robert Bellie is, you are fined K1000 to be paid within 10 working days as of today Thursday 10^th May 2018 in default you will be imprisoned for 3 months IHL. The 10 working days expire on the 10^th working day counting from today’s date is Thursday the 24^th May 2018. Upon payment official receipt to be filed with the Assistant Registrar of the Court.
    
22. Fined K1000 to be paid within 10 working days expiring Thursday 24^th May 2018. Receipt of payment to be lodged with the National court through the office of the Assistant Registrar of the Court.
    
23. In default 3 months imprisonment IHL.
    

Orders accordingly,
_____________________________________________
NJSS: Lawyer for the Plaintiff
In person: Lawyer for the Contemnor