POST ANALYSIS - CONTEMPT OF COURT PROCEEDINGS AGAINST POLICE COMMISSIONER.
Contempt of court is behaviour that opposes or defies the authority and dignity of the court. Contempt charges may be brought against individuals who party to proceedings; including lawyers, court officers; witnesses; people who are seated in courtroom or those protesting outside.
Courts have great leeway in making contempt charges, and thus confusion sometimes exists about the distinctions between types of contempt. Generally, however, contempt proceedings are categorized as civil or criminal, and direct or indirect.
Civil contempt - generally involves the failure to perform an act that is ordered by a court. (failure to comply with or defy court orders)
A direct contempt - is an act that occurs in the presence of the court and is intended to embarrass or engender disrespect for the court."
Indirect contempt - occurs outside the presence of the court, including public or media statements with the intention to belittle, mock, obstruct, interrupt, or degrade the court and its proceedings."
The essential element or essence of contempt of court is that the misconduct impairs the fair and efficient administration of justice.
Unlike other laws that are defined by legislation (Act of Parliament) with a prescribed maximum penalty or fine , contempt of court is not defined in any legislation nor is there any maximum penalty or fine. It is an underlying law that exists in principle to protect justice and enforce respect and dignity for the Courts.
Contempt of Court proceedings may be initiated by the Court itself where the Judge may direct the Court Registrar to file proceedings against persons involved in it's proceedings. Or the contempt proceedings maybe initiated by parties through civil proceedings were they believe Court orders have been ignored or defied.
In 2014 National Court dealing with an election petition matter initiated its own contempt proceedings against Peter Yama and Anton Yagama, Justice Cannings who presided over the case ordered the Court Registrar to bring contempt proceedings against Yama and Yagama after they defied his earlier orders to prevent their supporters and associates from threatening and inciting physical violence during the court proceedings.
Yama and Yagama were found guilty of two counts of contempt.
(1) failing to take adequate steps to prevent their supporters and associates from threatening and inciting physical violence against each other during an election petition proceedings after Court gave specific instructions to do so.
(2) failing to prevent their supporters and associates from disturbing the peace of the precincts of the National Court. The incident happened outside the Madang Courthouse.
When considering the penalty Justice Cannings ruled that an appropriate notional maximum for contempt of court is imprisonment for two years or a fine of K5,000.00 or both. In the end National Court sentenced Yama and Yagama to six and nine months in prison respectively.
In March 2014 former Police Commissioner Sir Toami Kulunga was found guilty of three counts of contempt of court by Deputy Chief Justice Gibbs Salika and sentenced to seven months imprisonment for defying an earlier National Court order to reinstate Geoffrey Vaki to his previous position as Assistant Commissioner of Police. Vaki filed civil contempt proceedings against Kulunga.
Before a person can be found guilty of contempt of charges the Court will conduct a trial to consider the evidence and facts to confirm that they are guilt of the charge.
A trial is where the Court will formally hear the evidence presented by parties to determine whether the evidence presented supports the facts or charges brought before the Court. A trial is conducted in two stages.
Court will first call the Plaintiff or Prosecution to present their evidence. This is because they initiated the Court proceedings therefore they carry the burden to prove their case. Plaintiff's lawyer will call their witnesses to take the stand (stand in the witness box) They will then be sworn in, take an oath by placing their hand on the bible promising to tell the truth and nothing but the truth.
Evidence given by a witness is referred to as "testimony." In that they are testifying to their version of the facts. Evidence may be give in written statement form (sworn affidavit) or given orally by answering questions in Court. Documents or items submitted as evidence in Court are referred to as "exhibits"
If Plaintiff has filed witness affidavits in support of their case when the witness is called they will present a copy to them in the witness stand asking them to confirm the contents. Plaintiff's lawyer will then ask specific questions in relation to their evidence. This process is referred to as "Examination in Chief" (in charge of examining your own witness)
After a witness has been called and testified the opposing party (Defendant's) lawyer will be given the opportunity to cross examine (interrogate or question) them. This is referred to as "Cross Examination" to test whether their witness evidence is credible or whether they are telling lies. During cross examination lawyers will ask clever questions to try and confuse and discredit witnesses by forcing them to give contradictory (inconsistent) evidence. Thus causing the Court to doubt it credibility.
During cross examination Defendant's lawyer will be restricted to only ask questions in relation the evidence stated in witness affidavit or oral evidence given during examination in chief. After cross examination the Court will accept the witness affidavit and mark it an as exhibit "A" ...etc.
The process is repeated for each witness called by Plaintiff to testify. Once Plaintiff has called all their witnesses they will then notify the Court they wish to close their case. When a party closes their case they can no longer bring new evidence. The Court will then invite the Defendant to open their case and present their evidence in response.
However after hearing all the Plaintiff's evidence if the Defendant's lawyer believes the evidence is insufficient to prove their case or charges they may give notice to the Court that they intend to make a No Case Submission.
No Case Submission also referred to as "No Case to Answer to" is an application by Defendant to the Court giving notice to stop the trial without having to present their evidence. If the Defendant can demonstrate that the Plaintiff has failed to produce sufficient credible evidence to prove their case then there's no point wasting the Courts time continuing with the trail to hear Defendant's evidence.
If the Court agrees with Defendant's No Case Submission it will stop the trial and dismiss the entire case or charges against the Defendant. If it believes there is sufficient evidence it will dismiss the Defendant's No case Submission putting him on notice that it believes he has a case to answer to.
The only option left to the Defendant at this stage is continue with the trial to present its own evidence hoping to convince the Court to believe its evidence over the evidence submitted by the Plaintiff.
This process is the same, in that Defendant calls their witnesses if any, they are sworn in and introduced during examination in chief. Plaintiff's lawyer will be given the opportunity to cross examine them.
Defendant will then close their case, Court will adjourn for a week or so and advise parties to prepare final submissions (written arguments) summarising the issues in the case. This includes stating brief background facts, relevant laws, legal issues, case law (previous judgements in similar cases) and the evidence. Parties will also emphasis why the Court should rely on their evidence and reject the other parties.
Parties will return to Court and present their final submissions, handing up a copy to the Court and the opposing party. They will give an oral summary of the final written submissions. The Judge will then adjourn for a month or more to review the submissions and consider the evidence before making a final determination (ruling) Once Judge has completed writing up his ruling his associate will contact parties to appear in Court to hand down the final ruling.
In this case Damaru & Gitua initiated civil contempt proceedings on 11 July 2014 against Police Commissioner Geoffrey alleging he intentionally and wilfully impeded or interfered with the warrant of arrest against Prime Minister Peter O'Neill that was issued on 12th June 2014 by Chief Magistrate of District Court The warrant directed the Commissioner of Police and all officers and members of the Police Force to arrest the Prime Minister and ensure his appearance in court to answer to the charges of Official Corruption in Office for his alleged involvement in the unlawful payments of K71.8m to Paraka Lawyers.
Timothy Gitua applied to the District Court for the warrant at the approval of former Police Commissioner Sir Tomai Kulunga. Immediately after being served the warrant of arrest the Prime Minister convened National Executive Committee (NEC) removing Kulunga and appointing Geoffrey Vaki as Acting Commissioner.
It was reported that Vaki refused to effect the warrant, insisting that there was a need for a review of the investigation files. The Fraud office was reluctant to release the files to the Commissioner in fear of its evidence being compromised. Vaki contested that as the head of the Police Force he had constitutional powers to direct or control over other members of the Police Force regarding the execution of warrants of arrest.
Chief Justice Salamo Inja presided over the proceedings in the National Court. The trial commenced on Tuesday 24th February 2015 were Damaru and Gitau's lawyer Greg Egan assisted by McRonald Nale opened their case calling six witnesses to give evidence in support of charges. Damaru, Gitua, Police Lawyer Nicholas Nirivi, ABC foreign correspondent Liam Cochrane, Adrian Mathias of Mid Week Chronicles and Malum Nalu of National testified that Vaki stated he would not arrest the Prime Minister.
Immediately after Damaru and Gitua had concluded closed their case Vaki's lawyer Griffin moved a "No Case Submission" asking the Court to dismiss the entire proceedings for lack of evidence.
Vaki's lawyer submitted that the charges against Vaki failed to meet with requirements of contempt of court in that Vaki was never personally served the warrant and had no knowledge of it and even if he had the warrant was ambiguous in it failed to prescribe a date the orders (arrest against the PM) was to be carried out.
Damaru & Guitau's lawyer argued that Vaki issued instructions by his own letter to Mawa Lawyers who he had briefed out to represent the Police to support the Prime Ministers application in the National Court for a permanent stay on the warrant of arrest. This confirms Vaki had knowledge of the warrant and he was purposely interfered with its implementation.
On 26th February 2015 after hearing arguments from both parties lawyers the CJ dismissed Vaki's No Case Submission ruling that that Supreme Court had substantially made some findings in respect of propriety (proper procedure of implementing) warrant of arrest. There was evidence that Mr Vaki had knowledge of the warrant and that he interfered with it's implementation. His honour held the view Vaki had a case to answer to.
Following the CJ ruling Vaki's lawyer sought an adjournment claiming their witnesses were not readily available to be called to give evidence in their defence.
The trial continued on 10th March 2015 Vaki opened his case calling Greg Sheppard, Philip Tabuchi and Ralph Saulep to the witness stand to give evidence in his defence.
Parties will return to Court on 27th April 2015 to argue final submissions.
