Kulunga v Vaki [2014] PGSC 69; SC1394 (31 October 2014)

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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.

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

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

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.

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 10 June and directed Mr Manase and Mr Bonner to appear at that time to explain the circumstances of the draft consent order.

9. Later that day, Friday 6 June, Mr Bonner filed a notice of motion and supporting affidavit, the purpose of which was to formally apply for orders that the Chief Justice's ruling on the stay application be "vacated" and that the terms of the draft consent order be "sanctioned" by the Court. This was the Friday before the Queen's Birthday long weekend and the notice of motion remained in the Registry until 8.30 am on Tuesday 10 June, when it was delivered to the Chief Justice's chambers.

10. On Tuesday 10 June, Mr Manase and Mr Bonner appeared before the Chief Justice to receive the ruling on the stay application. Mr Bonner attempted to move the motion for sanctioning of the consent order. However, his Honour did not allow him to do so, on technical grounds to do with the correctness of the return date. His Honour handed down the ruling on the stay application, refusing it. He adjourned the proceedings to the next day to consider whether those involved in submitting and pursuing the consent order should be charged with contempt of court.

11. On Wednesday 11 June his Honour ordered the Registrar of the Supreme Court to lay charges of contempt of court against Mr Manase, Ms Parua and Mr Bonner.

12. The Registrar laid the charges, which alleged that the contemnors each committed contempt of court in respect of both:

13. This Court was convened to hear the charges. Each of the contemnors pleaded not guilty so a trial was conducted. They were each found not guilty of contempt in respect of the National Court proceedings but guilty of contempt in respect of the Supreme Court proceedings before the Chief Justice.

14. We found that the manner in which the draft consent order was attempted to be drawn to the attention of the Chief Justice on 5 June 2014 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 effect of such a course of conduct was to interfere with the Chief Justice's decision, to present a real risk of interference with the due administration of justice and to, in fact, interfere with that process.

15. We found that each of the contemnors was involved in that course of conduct and that they each committed acts and omissions outside court that were likely to interfere with and obstruct the due administration of justice. They were therefore convicted of contempt of court.

16. In relation to Mr Manase, we rejected his assertion that it was always his intention to ensure that a formal application be filed and drawn to the attention of the Chief Justice before the existence of any draft consent orders were drawn to his Honour's attention. We found that it was Mr Manase who drafted the draft consent order and that he was reckless in the trust he placed in Mr Bonner to do the proper thing and that his trust was misplaced and that he was complicit in the steps Mr Bonner took on 5 June 2014.

17. In relation to Ms Parua, we found that she signed the draft consent order begrudgingly, that she did so contrary to the advice she gave to her client, Sir Toami, and that by doing so she acted in accordance with his instructions. She was in a predicament not of her own making. She felt that if she refused to sign, her firm would have to cease acting for Sir Toami and that if that were happen, her client's interests would be prejudiced. However, once she signed the draft consent order and then instructed her clerk to file it at the Supreme Court Registry she became inextricably implicated in the course of conduct that Mr Bonner had engineered.

18. In relation to Mr Bonner, we found that the plan to have a draft consent order put to the Court was Mr Bonner's idea. He took two distinct and separate steps to get the draft consent order delivered to the Chief Justice on 5 June 2014: entering the courtroom and delivering the envelope to the Chief Justice's Associate and later that day, having the signed draft consent order presented to the Registry. We took into account his evidence that it was not his intention to interfere with the due administration of justice or to undermine the Chief Justice. He did not act in bad faith. He was caught in a difficult situation, but lost sight of his paramount duty, as an officer of the Court, to the Court.

20. Each contemnor was given the opportunity to address the Court on the question of punishment.

21. Alfred Manase stated that he is extremely remorseful for his actions. He apologised unreservedly to the Supreme Court and to the Chief Justice and other members of the Judiciary and to other persons he has offended or embarrassed. He said that such conduct would not occur again. He has learned a valuable lesson. He is humbled by his conviction and the publicity given to the matter. The charges and his conviction have caused him to second-guess his continued practice as a lawyer and he is seriously considering resigning as a councillor of the Law Society. He asked the Court not to impose a custodial sentence, which would be disastrous for his family and would lead to the closure of his practice, Manase & Co Lawyers, and his staff would have to be laid off. Many people unconnected with this case would suffer, including many children.

22. Margareth Parua asked the Court to take into account that she had served the legal profession with distinction for 27 years and never before had her name called into disrepute. She has tried her best to manage her practice in a manner that honoured the profession that she has lived her adult life with and loved and cared for. She begrudgingly signed the draft consent order at the behest of her client. It was never her intention to undermine the integrity of the Chief Justice or to usurp his powers. She has always had the highest regard for the Courts and for her fellow lawyers. She tries her best to be professional and ethical. She is truly sorry and apologised to the Court and to the Chief Justice for her role in the saga. She hopes this experience will make her a better person.

23. Sam Bonner maintained that he never intended to interfere with the dispensation of justice or the decision-making process of the Chief Justice. He acted in good faith at all times to assist the Court in determining the stay application. He apologised to the Court and asked the Court to take into account his long and unblemished career in the Police Force and as a lawyer.

24. Alfred Manase is aged 49 and comes from Tinjipak village, Kandep District, Enga Province. He has a primary teacher certificate from Balob Teachers College and a law degree from the University of Papua New Guinea. He has practised as a lawyer since 1992. He became a partner in Pato Lawyers in 2005 and established his own firm, Manase & Co Lawyers, in 2009. His firm presently employs five lawyers and 14 support staff. He has been a councillor of the Law Society since October 2013. He has an unblemished professional record. He is married with five children. He has a heart condition which requires him to take regular medication and be subject to continuing review. He has provided glowing character references from the Minister for Foreign Affairs and Immigration Hon Rimbink Pato LLB OBE MP, Rev Bishop Giegere Wenge, Head Bishop of the Evangelical Church of Papua New Guinea and Sir Kina Bona KBE, President of the Law Society.

25. Margareth Parua is aged 50 and comes from Munump village, Dei District, Western Highlands Province. She has a law degree from the University of Papua New Guinea. She has practised as a lawyer since 1987. She is the principal of Parua Lawyers, the practice she established in 1999. She has an unblemished professional record. She is married with one child. She has provided a glowing character reference from the Electoral Commissioner, Andrew S Trawen CMG MBE.

26. Sam Bonner is in his 50s and comes from Western Highlands Province. He has a certificate in community teaching and a law degree from the University of Papua New Guinea. He was a member of the Police Force from 1981 to 2005 and commenced practising as a lawyer in 1994, as a Police legal officer, rising to the position of Principal Legal Officer in 1998, a position that he occupied until 2005 when he worked as a private practitioner. He established his firm, Sam Bonner Lawyers, in 2007. He has an unblemished professional record. He is married with five children. He has provided glowing character references from the Commissioner of Police, Geoffrey Vaki MBE QPM DPS, a long-standing friend and client Ajith Kumarasinghe and a Pastor of the Holy Spirit Movement Ministry, Pastor Luke Larry Pu.

27. We adopt the decision-making process applied by the National Court in a number of decisions on punishment for contempt, including Newsat Ltd v Telikom PNG Ltd (2007) N3673, Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572, Ian Augerea v David Tigavu (2010) N4188, Elias Padura v Stephanie Valakvi (2012) N4830, John Siune v Rendle Rimua (2013) N5110, Ian Augerea v Peter Charles Yama (2014) N5476, Ian Augerea v Hon Anton Yagama MP (2014) N5477:

28. The law under which this matter has been prosecuted does not fix a maximum punishment for contempt. Order 14, Rule 49(1) (punishment) of the National Court Rules (adopted for the purposes of these proceedings under Order 2, Rule 1(g) of the Supreme Court Rules 2012) simply states:

Where the contemnor is not a corporation the Court may punish contempt by committal to prison or fine or both.

29. We also note that, in addition to committal to prison and a fine, the Court has the option of making an order for costs, including costs on an indemnity basis.

30. The Court therefore has a very wide discretion as to punishment. In deciding how it should be exercised, it is useful to set a notional maximum. In the cases referred to above the National Court examined laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies and concluded that a notional maximum should be two years imprisonment or a fine of K5, 000.00 or both.

31. 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 greater than that appropriate for persons who are not officers of the court. We regard the notional maximum penalty as four years imprisonment or a fine of K50, 000.00 and/or an order for payment of costs up to K50, 000.00. There might be cases in which the nature and extent of the contempt warrant sterner punishment. However, this is not such a case.

31. 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.

32. In selecting equivalent cases to consider, it is important to take into account the nature of the contempt committed by the contemnors. Sakora J explained in Peter Luga v Richard Sikani (2002) N2285 that contempt of court can be constituted by a number of different sorts of conduct, the main ones being:

33. We agree with the submissions of Ms Twivey-Nonggorr, for Mr Bonner, that the contempt committed in the present case falls into category 5: other forms of interference with the administration of justice. We also agree with counsel's observation that most contempt cases dealt with by the National Court have been category 4, disobedience, cases which tend to be more serious in nature than category 5 cases. This is an important distinction to draw.

34. As observed in Elias Padura v Stephanie Valikvi (2012) N4894 it has been customary to punish the disobedience form of contempt with a term of imprisonment. Short, sharp sentences in the range of 10 weeks to 18 months imprisonment have been the norm, as shown by the selection of cases in the following table.

No	Case	Details	Punishment
1	The State v John Rumet Kaputin [1979] PNGLR 544, Greville-Smith J	Contemnor, a Member of Parliament, disobeyed National Court order directing him as company secretary to lodge annual return within 3 months, by failing to lodge return. (Appeal against conviction and punishment dismissed: John Rumet Kaputin v The State [1979] PNGLR 559.)	10 weeks imprisonment
2	Yap v Tan [1987] PNGLR 227, Hinchliffe J	Contemnor, a businessperson, disobeyed orders of the Supreme Court requiring him to cooperate with the receiver of a company, by not cooperating – convicted on three counts.	K5,000.00 x 3 = K15,000.00, in default 12 months imprisonment
3	Bishop Brothers v Ross Bishop (1989) N690, Bredmeyer J	Contemnor, a businessperson, disobeyed a National Court order requiring him to allow other persons on to business premises, by refusing access – convicted on two counts. (Appeal against conviction upheld: Ross Bishop v Bishop Brothers [1988-89] PNGLR 533.)	K500.00, in default 3 months imprisonment; 6 months imprisonment, suspended
4	Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47, Sheehan J	Contemnor, Managing Director of the Forestry Authority, disobeyed an interim National Court order that restrained him from closing the plaintiff's logging operations, by giving notice to the plaintiff to stop its operations.	Order for costs against contemnor
5	Peter Luga v Richard Sikani (2002) N2285, Sakora J	Contemnor, Commissioner of the Correctional Service, disobeyed a National Court order to reinstate a dismissed officer, by failing to reinstate him. (Appeal against conviction upheld: Richard Sikani v The State (2003) SC807.)	6 months imprisonment
6	Re Valentine Kambori (No 3) (2003) N2490, Sevua J	Contemnor, a Departmental Head and Chairman of the National Forest Board, convicted on two counts: (1) breaching bail condition by travelling overseas without the leave of Court and (2) failing to comply with undertaking to Court that he would arrange payment of a judgment debt.	6 months imprisonment, suspended; K2,500.00 fine
7	Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923, Sevua J	Two contemnors, purporting to be landowner representatives, fraudulently obtained a cheque for K500, 000.00, being timber royalties, and disobeyed a National Court order requiring them to produce to the Court within 14 days all documents relating to the payment – they pleaded guilty to contempt.	18 months imprisonment x 2
8	Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931, Cannings J	Contemnor disobeyed an order of the National Court not to take disciplinary action without the leave of the Court against nurses who had been involved in strike action, by charging and then dismissing a nurse, without seeking the Court's leave, over a disciplinary matter.	6 months imprisonment

35. Some cases not categorised as involving a disobedience contempt are worthy of mention. First is the decision of the Supreme Court in Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448. Although it was neither disobedience contempt nor category 5 contempt - the contemnor, the Minister for Justice, was convicted of publication of a document that scandalised the Supreme Court, so it was a category 3 case – it is significant that the contemnor was sentenced to eight months imprisonment.

36. Secondly, the recent string of cases involving incidents in the precincts of the National Court at Madang: Ian Augerea v David Tigavu (2010) N4188, Ian Augerea v Augustine Koroma (2014) N5475, Ian Augerea v Peter Charles Yama (2014) N5476, Ian Augerea v Hon Anton Yagama MP (2014) N5477. Those were all category 5 cases, in which the punishment took the form of prison sentences of 12 months, 18 months, 6 months and 9 months respectively.

37. We now highlight the mitigating and aggravating factors as they ultimately govern the form and extent of the punishment. We regard these factors as being common to all contemnors.

40. Should the Court commit the contemnors to prison? Or impose a fine? Or order the contemnors to pay the Registrar's costs? Or impose a combination of those forms of punishment? Or, as Ms Twivey-Nonggorr submitted, order that no conviction be recorded?

41. We reject the submission that no conviction be recorded. That would be counter-productive. We have already noted that there are considerably more mitigating than aggravating factors, but a conviction for contempt of court, especially for a lawyer, is a serious matter and this will not be reflected by ordering that there be no record of conviction.

42. We uphold the submission that the nature of the contempt and the lack of disobedience and intention to interfere with the due administration of justice mean that committal to custody is not necessary. We consider that a fine is a more appropriate penalty.

43. The seriousness of the matter warrants imposition of substantial fines. The amounts must reflect the degree of culpability of each contemnor.

44. Mr Bonner bears the highest degree of culpability. It was his idea to attempt to get a draft consent order before the Chief Justice. It was a ham-fisted scheme, which should never have been attempted. Having identified a starting point of K25, 000.00 and taking into account the large number of mitigating factors and the fact that he took the matter to trial, we impose a fine of K20, 000.00.

45. Mr Manase was complicit from an early stage in Mr Bonner's plans and he is fined K15, 000.00.

46. Ms Parua was the least culpable. She knew it was wrong to sign the draft consent order, but eventually yielded and acted against her better judgment. She is fined K10, 000.00.

47. The fines are payable within one month, in default the following terms of imprisonment will apply: Mr Bonner, 18 months; Mr Manase, 12 months; Ms Parua 9 months.

48. Suspending all or part of the fines is an option under Order 14, Rule 49(3) of the National Court Rules, which states:

The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

49. We do not consider that suspending the fines would serve the purpose of deterrence that imposition of such substantial fines is designed to achieve. There is no suspension.

50. As the contemnors are required to pay substantial fines within a month, we consider that that is a sufficient punishment. It may be oppressive to also order that they pay the Registrar's costs. We will order that the parties bear their own costs.

Punishments accordingly
______________________________________________________________
Ashurst Lawyers: Lawyers for the Registrar of the Supreme Court
Steeles Lawyers: Lawyers for the first contemnor
Parua Lawyers: Lawyers for the second contemnor
Twivey Lawyers: Lawyers for the third contemnor

Supreme Court of Papua New Guinea

Kulunga v Vaki [2014] PGSC 69; SC1394 (31 October 2014)