Today, Sam Koim, of Task Force Sweep, made an application to the Supreme Court to discontinue his appeal. The appeal was against the decision of Justice Colin Makail in the National Court that dismissed the judicial review of the disbanding of Task Force Sweep.
In finally accepting judicial defeat, and after three long years of court battles, Koim, nevertheless still sought to maintain control by asking the courts to direct the government and its agencies, by order, to surrender all Task Force Sweep’s files to line agencies and the Fraud Squad.
While the discontinuation was granted, the order to surrender the files, according to Koim’s direction, was refused.
This effectively puts control of the of the country’s disciplinary forces back where they belong – with the duly elected government of the day.
Therefore, the NEC’s 2014 decision to set up an interim office of ICAC under the direction of retired judge Graham Ellis now stands. I expect that the new office will take custody of those files forthwith and PNG will be welcoming the Judge back to its shores.
A three-man bench of the Supreme Court today refused the application of Lawyers Tiffany Twivey and Sam Bonner to have their referral to the Law Society quashed and so the referral stands and will go ahead.
The decision to refuse the appeal was a majority decision (2:1) of Justices Makail and Sawong with Hartshorn dissenting.
The referral to the Law Society for disciplinary action was initiated by Justice Kirriwom and announced in court during the hearing of the case of the arrest warrant of Secretary of Treasury Dairi Vele and the replacement of two respondents without, what the learned Judge considered, sufficient notice. The complaint/order was later followed up by His Honour by letter to the Society.
Lawyers for Twivey and Bonner argued that the pair had not been accorded natural justice or procedural fairness by the court before the referral. They were given no opportunity to respond to the allegations.
Twivey and Bonner contended that, as such, the ensuing plethora of publicity in the mainstream and online press (that had only one side of the story to report -Kirriwom Js) had tarnished their reputations’ and impacted negatively on their standing in both the eyes of the public and their clients and they stood to lose personally, substantially and professionally.
The cases were not decided on any wrongodoing on the part of the two lawyers but on a procedural consideration of whether the referral was a court order or a complaint.
Two judges decided that the referral was not a court order and that they had no jurisdiction to hear the appeal and indeed may be usurping the role of the Society were they to.
It was considered that all the grievances of the lawyers could be aired when the Society considered the complaint.
Hartshorn’s dissent arose from the fact that he considered that the referral was a court order and he agreed that natural justice had not taken place and furthermore was of the opinion that, under the circumstances, if the complaint was subsequently heard by the Law Society, justice would not be served as the nature of the referral had already done the damage regardless of the eventual outcome. He wanted the case quashed.
So, in this matter, the Supreme Court of Papua New Guinea has passed the buck to the Law Society with but a single prick of conscience from the dissenting judge for the potential damage to reputations that has already been caused.
I guess it’s medical doctors not Judges that take the Hippocratic Oath – “First do no harm.”
In the National Court, yesterday, Justice Makail adjourned two motions that arose as a result of Sam Koim’s alleged contempt – when he published material about the Task Force Sweep’s case in contravention of a court order that expressly forbade him.
The first motion asked the court to dismiss the entire judicial review into the disbanding of Task Force Sweep (the substantive matter) on account of the breach of the order while the second motion sought to have Sam Koim punished for the contempt.
Justice Makail, in his wisdom, decided that the substantive matter should be heard prior. What the…?
So what’s the point of contempt laws?
The whole point of the laws of sub judice contempt and the point of the court’s ruling that Koim not publish anything about this case, was to avoid the case being tried in the court of public opinion and risk that public opinion influencing the court’s decision. (Me, I am of the definite opinion that a full-page advertisement in a national daily newspaper just may be construed as carrying some influence – is there even a question?)
Furthermore, it has been argued by Professor Michael Chesterman, Professor of Law and Acting Judge, District Court of New South Wales, that “stopping the trial and fining the media [the offender] – should either occur together or not occur at all [in the finding of a charge of sub judice contempt].”
Under the circumstances, it seems logical that the contempt charges be heard first as they will quite likely have a profound impact. in law and in actuality, on the substantive case – indeed if Koim is found guilty and the motions succeed there may not be a substantive case to try.
So where’s the logic in this ruling? In making this ruling, Makail has managed to effectively make at least one of the motions absolutely pointless – that’s not how it should work.