Augerea v Yagama [2013] PGNC 195; N5437 (10 December 2013)

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CONTEMPT – incident outside courthouse – threats and incitement to violence by supporters of a party to ongoing court proceedings – charge of contempt of court against party (the contemnor) whose supporters were involved in incident – whether the contemnor was responsible for conduct of supporters.

There was an incident outside a courthouse during the luncheon adjournment of court proceedings involving an election petition that were due to continue in the afternoon. As he was driving away from the courthouse the petitioner was threatened with violence and intimidated by supporters of the respondent. The Court had, at an earlier hearing, expressed concern about the conduct of supporters of the parties and ordered that the petitioner and the respondent and their supporters were restrained from causing or inciting any form of disturbance to any of the parties and requested the petitioner and the respondent to lead and take control of their supporters. The Registrar of the National Court inquired into the incident and charged the respondent – the contemnor – with three counts of contempt of court for (1) failing to take adequate steps to prevent his supporters and associates from threatening and inciting physical violence against and intimidating the petitioner and the petitioner's lawyer and supporters and associates, (2) failing to prevent his supporters and associates from disturbing the peace of the precincts of the National Court, (3) ignoring the request and orders of the trial judge that he as a leader was to take control of his supporters and associates to ensure no disturbance took place outside the court while the court was dealing with the proceeding. A trial was held to determine whether the contemnor was guilty of contempt.

Andrew Kwimberi v The State (1998) SC545
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Yama v Yagama (2013) N5354

This was the trial of an originating summons charging the contemnor with contempt of court.

1. CANNINGS J: This judgment gives reasons for the Court's verdict on three charges of contempt of court that have been laid against the member for Usino-Bundi Open, the Honourable Anton Yagama MP (the contemnor). He has been charged with contempt in relation to an incident outside the National Court at Yabob Road Madang at 11.20 am on Tuesday 3 September 2013.

2. The Court had that morning commenced hearing various applications regarding the result of a Court-ordered recount of votes in the 2012 general election for the seat of Usino-Bundi Open. The result of the election had been the subject of an election petition, EP No 52 of 2012. The petitioner was Mr Peter Charles Yama, who was challenging the election of the contemnor.

3. There was a violent incident near the courthouse at 11.20 am, that morning, which led the Registrar of the National Court, Mr Ian Augerea, to charging Augustine Koroma and 12 others, who are supporters of the contemnor, with contempt of court. The Court had, at an earlier hearing, expressed concern about the conduct of supporters of the parties and ordered that the petitioner and the contemnor and their supporters were restrained from causing or inciting any form of disturbance to any of the parties and requested the petitioner and the contemnor to lead and take control of their supporters. The Registrar of the National Court inquired into the incident and charged the contemnor with three counts of contempt of court.

4. The statement of charge alleges that the contemnor engaged in conduct in or in the precincts of or in the vicinity of the National Court that was calculated to interfere with the due administration of justice by:

5. Contempt of court is a criminal offence, the elements of which are any act or omission, committed in the face of the court or outside court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545). The prosecution bears the onus of proving contempt according to the criminal standard of proof: beyond reasonable doubt (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533).

6. I was the presiding Judge in EP No 52 of 2012. I became aware of the violent incident that took place at 11.20 am on 3 September 2013 when it was reported to the court by the petitioner's lawyer, Mr Kiuk, at the start of the afternoon session on 3 September 2013. After hearing further reports of that incident and related incidents, and after delivery of the ruling on the recount (Yama v Yagama (2013) N5354) I, on 5 September 2013, summoned the contemnor, and 16 other persons, to attend the court. The contemnor attended on 10 September 2013 and I informed him of the allegations of contempt against him and that I was directing the Registrar, under Order 14, Rule 47(1) of the National Court Rules, to commence contempt proceedings against him. The charges were served on the contemnor, he was given time to engage a lawyer and normal criminal procedures were applied. He was arraigned and pleaded not guilty so a trial was conducted.

7. This judgment is set out as follows. First the prosecution's evidence is summarised. Next, the contemnor's evidence is summarised. Then findings of fact are made. Then the verdict and orders of the Court are pronounced.

8. The evidence in support of the charges was by affidavit, in accordance with Order 14, Rule 44 of the National Court Rules. The prosecution tendered six affidavits, which were admitted into evidence without objection. The evidence of the deponents is summarised in the following table.

No	Witness		Description
1	Hilarion Ori		Security Supervisor, National Court, Madang
Evidence		He stood at the main gate of the courthouse and saw Mr Yama drive along Yabob Road followed by two escort vehicles – when Mr Yama was about to drive past Mr Yagama's supporters he heard an exchange of words and saw Mr Yagama's supporters rush towards Mr Yama's vehicles armed with bush knives and iron rods.
2	Ismael Yama		Petitioner's son
Evidence		He escorted his father and Mr Kiuk out of the courthouse – he drove one of the escort vehicles while his father and Mr Kiuk went ahead – Mr Yagama's supporters were blocking the road, armed with bushknives, axes, iron rods and spears: they threatened his father and Mr Kiuk by dragging bushknives and iron rods along the road. He recognised and named 13 of the contemnor's supporters as being amongst the group: Augustine Koroma, Dominic Angia, Donald Yama, Jack Tongia, John Neginzu, Justin Mende, Kombo Andambo, Kunda Kana, Michael Tomorangai, Rutai Tongia, Steven Andanbo, Thomas Kumbre and Tiamura Andanbo. As he (the witness) drove past, members of the group threw stones at the vehicle he was driving – the Police were present but did nothing.
3	Linus Yangi Lai		Principal Clerk, National Court, Madang
Evidence		He saw people moving to and fro in a hurry at the front of the Registry – he walked out of the Registry and proceeded to the main gate of the courthouse – saw a group of people with painted faces and mud, with bushknives, iron rods and axes standing outside the Training Centre 70 metres away – they were swearing, shouting war-cries and emotional – bystanders told him that they were Mr Yagama's supporters – he identified Augustine Koroma and Steven Andanbo who were very vocal and shouting. Another group was gathered outside the NBC gate: this group was very peaceful. While he (the witness) was at the main gate Mr P C Yama and his lawyers and two support vehicles drove towards Mr Yagama's group – Mr Yama stopped his vehicle, opened the door and said something to the group and then sped off – the angry mob tried to attack them and threw stones at Mr Yama's vehicle – Mr Yagama's supporters were dressed in tribal attire and were emotional and caused fear to the National Court staff and Madang town inhabitants; by contrast Mr Yama's group was very peaceful.
4	Peter Charles Yama		Petitioner in EP No 52 of 2012
Evidence		He lives only four houses away from the contemnor, Mr Yagama, and at 8.30 am on the day of the incident he heard a war-cry coming from Mr Yagama's residence – he sent one of his boys to check what was happening and he reported back that Mr Yagama's supporters had painted their faces black and were armed with knives, axes, iron rods and home-made guns – he took an alternative route to the courthouse and attended the morning session of the court. After the morning session finished at 11.15 he and his lawyer Mr Kiuk drove down the road – he saw that Mr Yagama's supporters were blocking the road – they had painted their faces black and were armed with knives, axes, iron rods and home-made guns and were blocking the road – he told them 'You people coming to fight?' – he recognised Augustine Koroma, Dominic Angia, Kombo Andambo and Steven Andanbo, all with their faces painted black – he heard shouting, eg 'Wanpela bai dai' ['One of you will die'] and Augustine Koroma called out to him: 'Yupla giaman tumas, go!' [You are telling too many lies. Go!] – his two escort vehicles were stoned and dented on their rear doors – when he returned to the courthouse at 1.30 pm he complained to the Police that they were not doing their job properly and that the contemnor's supporters had almost killed him, so they should be disarmed.
5	Ben Simanjuang		Personal Assistant to Mr P C Yama
Evidence		He was in one of the escort vehicles, driven by Labi Yalop – as they were driving out, he noticed a roadblock and a lot of Mr Yagama's supporters were blocking the road, with their faces painted black, armed with bushknives, iron rods and stones – he recognised Augustine Koroma and Steven Andanbo – the Police did nothing.
6	Alex Kalandi		Lawyer for the Registrar
Evidence		As a result of ongoing clashes and violence between the supporters of the parties to EP No 52 of 2012 the trial judge warned the parties at a hearing in the National Court at Waigani to control their supporters from causing any disturbance within the precincts of the Court and warned that people would be charged if there was non-compliance – an extract of a transcript of the Waigani hearing was annexed to the witness's affidavit.

9. The contemnor swore an affidavit, and there were four other affidavits, all of which were admitted into evidence by consent. The evidence of the deponents is summarised in the following table.

No	Witness		Description
1	Hon Anton Yagama MP		Contemnor, respondent in EP No 52 of 2012
Evidence		He was still inside the courtroom with his lawyer when the 11.20 am incident occurred – he was not in a position to control the behaviour of his supporters – when he tried to go outside, he was prevented by the courthouse securities for his own safety – when he went outside he was told by his supporters that the petitioner said words to them that angered them and that he and his escort vehicles had been driven towards them and past them at high speed – after hearing of the incident he urged his supporters to maintain peace with Mr Yama and his supporters – he told them that there is a Court Order preventing him and his supporters creating trouble with Mr Yama and his supporters – this trouble would not have started had Mr Yama, his son Ismael and Jackson had not acted in the way they did: they incited the trouble and provoked his supporters to act in the manner that they did.
2	Augustine Koroma		Supporter of contemnor
Evidence		He attended the Court with family members, supporters and friends of Mr Yagama – was present outside the courthouse as only six supporters each of Mr Yagama and Mr Yama were allowed in the courtroom – the police had cordoned off Yabob Road with barricades and the two groups of supporters were at opposite ends of the road – after waiting for a couple of hours people came out of the court – Mr Yama drove his vehicle towards Mr Yagama's supporters and slowed down next to Mr Yagama's supporters and said 'Yupla laik pait, orait bai yumi pait' [If you want to fight, then we will fight] – this statement angered the Yagama supporters who told Mr Yama to stop telling lies – he (the witness) went to ask the crowd to come back to their camp and wait for Mr Yagama – then Ismael Yama and one of Mr Yama's guards drove their vehicles at high speed towards Mr Yagama's supporters – this angered them so they shouted at the Yama group – if Mr Yama and his son had not acted in a provocative manner nothing would have happened – he (the witness) denies threatening or inciting any physical violence; he did not take part in the incident, he did not behave or react in a manner that would interfere with the due administration of justice – all the Yagama supporters were patient and very respectful of the court process.
3	Dominic Angia		Supporter of contemnor
Evidence		He was not at or near the courthouse – he was at Newtown with Donald Yama, John Neginzu, Kombo Andambo, Tiamura Andanbo – he has no knowledge of the incident.
4	Rutai Tongia		Supporter of contemnor
Evidence		He attended the Court but did not go in the courtroom – he was standing 50 metres away from the courthouse – Mr Yama drove his vehicle towards his (the witness's) group and slowed down next to Mr Yagama's supporters and said 'Yupla laik pait, orait bai yumi pait' [If you want to fight, then we will fight] – this statement angered the Yagama supporters who told Mr Yama to stop telling lies – he (the witness) was aware there was a court order in place in EP No 52 of 2012 not to disturb the peace or the administration of justice, so he never took part in the incident or acted in a manner to contravene the court order.
5	Steven Andanbo		Supporter of contemnor
Evidence		He attended the Court but did not go in the courtroom – he was standing 50 metres away from the courthouse – Mr Yama drove his vehicle towards his (the witness's) group and slowed down next to Mr Yagama's supporters and said 'Yupla laik pait, orait bai yumi pait' [If you want to fight, then we will fight] – this statement angered the Yagama supporters who told Mr Yama to stop telling lies – he (the witness) was aware there was a court order in place in EP No 52 of 2012 not to disturb the peace or the administration of justice, so he never took part in the incident or acted in a manner to contravene the court order.

10. During the luncheon adjournment on 3 September 2013, as one of the parties, Mr Peter Yama, and his lawyer and other associates were driving along Yabob Road in the direction of Modilon Road, when they were confronted and threatened with physical violence by a group of the contemnor's supporters who shouted at and abused Mr Yama. The incident occurred about 50 metres from the courthouse gate. Some members of the group had black paint and mud on their faces and that some of them were armed with weapons including bushknives, iron rods, stones and axes, which were brandished in a threatening manner, for example by being scraped along the road.

11. I reject the argument that responsibility for the incident should rest with Mr Yama because of the provocation he offered by his exchange of words with the Yagama supporters. I find that Mr Yama did say to the group 'You people coming to fight?' but I reject the claim that he added the words 'OK we fight' as there is no evidence to suggest that he and his group were displaying any interest in fighting anyone. If he did add those words, they were not so provocative to justify the threats and intimidation that followed. I find that members of the Yagama group had stationed themselves outside the courthouse so that they would be able to intimidate Mr Yama and his lawyer and members of Mr Yama's group as they left the precincts of the Court.

12. There is independent evidence in the affidavits of court officials, Mr Lai and Mr Ori, to support the finding that this was a serious incident, involving threats of violence with weapons and a high level of intimidation, against a party to ongoing court proceedings, and his lawyer and other associates, in the precincts of the National Court. The aggressors were members of a group of the contemnor's supporters.

13. Mr Yama's supporters were stationed at the opposite end of Yabob Road. They did not offer any aggression and did not get involved in the violent incident. They kept the peace.

14. It is reasonably to be inferred from the evidence and I find that the contemnor knew that his supporters had gathered outside the courthouse, that some had paint and mud on their faces (indicating aggression) and that some were armed.

15. The aggressive conduct of the contemnor's supporters was likely to interfere in the due administration of justice as it had real potential to interrupt the orderly dispatch of the business of the National Court by hampering the ability of Mr Yama and his lawyer to freely put their case to the court without fear of intimidation or reprisal. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. It is conduct that constitutes contempt of court.

16. I find that this was the sort of conduct which I, as the trial judge in EP No 52 of 2012, had requested and ordered should not occur, especially in the precincts of the Court. I warned that if anything of this nature happened, the consequences would be serious. The transcript of those proceedings at Waigani on 29 July 2013 reveals that I made the following comments and orders concerning the conduct of the parties and their supporters and associates in EP No 52 of 2012:

I must say I am very disappointed to hear about what has happened in the last day or so in Madang. I think it is shameful for everyone involved in this case. It is embarrassing for me as a resident judge for Madang to see this sort of thing happen in the town that I am responsible for and I implore the leaders Mr Yama and Mr Yagama to take control.

I endorse what I saw, it is a quote from the provincial police commander in one of the newspapers today in which he called upon the leaders to lead and take control and not retaliate, not take the law into their own hands. And I trust that Mr Yagama and Mr Yama, Mr Kuli and the other leaders involved in this case will do exactly that.

The damage that has been done to property, the injuries that have been caused to people, these are all police matters and the law will take its course. And I would also like to emphasise that these are court matters and I do not want to see or hear of any disturbances of this nature happening again, particularly in the precincts of the court because if any of this happens in the precincts of any court in which I am presiding, I will not hesitate to charge everyone suspected on reasonable grounds of involvement with contempt of court.

I will not wait for the police to take the initiative; I will take the initiative. I will have people arrested and rounded up and imprisoned, put in remand awaiting their opportunity to be dealt with for contempt of court. I will not tolerate this sort of behaviour. It is very disappointing.

Mr Interpreter, I believe we have got supporters from both sides here. I will just repeat that. I want everybody who is involved in supporting Mr Yagama and Mr Yama in this case to understand that the court expects everybody to behave themselves in the precincts of the court. If I hear any disturbance taking place inside or outside of this court room, for example this afternoon, I will not hesitate to get people arrested and charged with contempt of court. That applies to Waigani and also applies particularly in Madang. Thank you.

Now, getting back to my ruling, I have no difficulty in making orders of the sort that are asked for in paragraphs 1 and 2. Paragraph 3 is to do with vehicles. There is not enough evidence before the court to warrant these orders. I am going to leave this matter with Mr Yagama to sort out. If there are complaints about misuse of government vehicles, those complaints can be made to the police or to the Ombudsman Commission. There is not enough evidence at this stage for the court to make the sort of orders now being sought.

So the order of the court in relation to the notice of motion filed on 29 July 2013 is as follows: (1) the first respondent and the petitioner and their supporters, agents or servants are restrained from causing or inciting any form of disturbance to any of the parties involved, their family members or their properties including scrutineers involved in the recount; (2) the first respondent and the petitioner and their supporters are restrained from inciting or causing any disturbances, threats, intimidation, violence, assault, any destruction or damage to any person or any properties involved in the recount; (3) the application for the relief sought by paragraph 3 of the notice of motion is refused; and (4) the parties to bear their own costs.

COUNT 1: FAILING TO PREVENT SUPPORTERS, ETC FROM THREATENING VIOLENCE AGAINST PETITIONER, PETITIONER'S LAWYER, SUPPORTERS AND ASSOCIATES

17. Mr Boboro, for the contemnor, submitted that the contemnor could not be guilty of this count as he was at all relevant times in the courtroom when the 11.20 am incident occurred. This misses the point of the charge. The prosecution does not suggest that the contemnor was on Yabob Road when the trouble erupted.

18. The crux of the charge is that he failed to take adequate steps to ensure that this sort of thing did not happen. He as a leader should have ensured before the day of the hearing that his supporters did not come to court with painted faces, shouting war-cries and armed with weapons. He has given evidence that he knew about the Court's orders, as did his supporters. Therefore he should have warned them that aggressive and intimidating behaviour of that kind would not be tolerated. Upon coming to the courthouse on the morning of 3 September 2013 he should have re-emphasised to his supporters that they must not engage in any aggressive, violent or other contemptuous behaviour.

19. The court had by its orders and requests made at the previous hearing imposed a legal and moral duty on the contemnor to control his supporters. I find that it has been proven beyond reasonable doubt that he failed to discharge that duty by failing to take adequate steps to prevent his supporters from engaging in contemptuous conduct. His failure to act appropriately meant that he was engaging in conduct (of omission rather than commission) that was calculated (ie likely) to interfere with the due administration of justice. The contemnor is guilty of count 1.

COUNT 2: FAILING TO PREVENT SUPPORTERS AND ASSOCIATES FROM DISTURBING PEACE OF THE PRECINCTS OF COURT

20. This charge is very closely related to count 1. It is a fact that the contemnor's supporters disturbed the peace of the precincts of the National Court.

21. The court had by its orders and requests made at the previous hearing imposed a legal and moral duty on the contemnor to control his supporters by ensuring that they did not engage in any conduct that disturbed the peace of the precincts of the National Court. A courthouse and the immediate physical area in which it is situated are special, sacrosanct areas. All persons who come into these areas must preserve the peace. To engage in any rowdy or violent behaviour is a show of disrespect to the Court. I find that it has been proven beyond reasonable doubt that the contemnor failed to discharge his duty to the court by failing to take adequate steps to prevent his supporters from engaging in such conduct. His failure to act appropriately meant that he was engaging in conduct (of omission rather than commission) that was calculated (ie likely) to interfere with the due administration of justice. The contemnor is guilty of count 2.

COUNT 3: IGNORING THE REQUEST AND ORDERS OF THE TRIAL JUDGE MADE ON 29 JULY 2013

22. I am not satisfied that the contemnor ignored (ie deliberately disregarded) the orders and request of the Court at the previous hearing. There is no evidence that he actively encouraged his supporters to engage in contemptuous conduct. He failed to take adequate steps to control them but that does not mean that he ignored what the Court had requested and ordered. He is found not guilty of count 3.

Verdict accordingly.
_________________________________________
Registrar, National Court: Lawyer for the plaintiff
Kuman Lawyers: Lawyers for the contemnor

National Court of Papua New Guinea

Augerea v Yagama [2013] PGNC 195; N5437 (10 December 2013)