SCR No 3 of 1980; Re Joseph Mavuk [1980] PGLawRp 617; [1980] PNGLR 507 (5 December 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 507 - SCR No 3 of 1980; Re Joseph Mavuk 

[1980] PNGLR 507

SC189

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF A REFERENCE TO THE SUPREME COURT OF JUSTICE UNDER S. 18 OF THE CONSTITUTION AND IN THE MATTER OF JOSEPH MAVUK AND 5 OTHERS.

SUPREME COURT REFERENCE NO. 3 OF 1980.

Waigani

Kidu CJ Greville Smith Pratt JJ

2 December 1980

5 December 1980

CRIMINAL LAW - Practice and procedure - Legal representation of accused - Right to defence “counsel of his choice” - Choice subject to proper exceptions - Legal ethics - Counsel of choice earlier involved on prosecution side of case - Discretionary power in court to refuse permission to appear - Constitution, s. 37(4)(e).

Section 37(4)(e) of the Constitution provides that a person charged with an offence, “shall be entitled to defend himself before the court in person or, at his own expense by a legal representative of his own choice ...”

Held

N1>(1)      The right of an accused person under s. 37(4)(e) is not absolute; his “choice” is subject to all proper exceptions.

N1>(2)      Proper exceptions include cases where counsel may be rendered ineligible to appear on a legal ethics basis, for example where the counsel chosen was earlier involved in the case as Deputy State Solicitor and State Prosecutor.

N1>(3)      Per curiam: A trial judge has power in the exercise of an inherent jurisdiction to refuse, if necessary, to permit counsel to appear for accused persons.

Reference

This was a reference pursuant to s. 18(2) of the Constitution of a question of law from a judge of the National Court the question being:

“Has Joseph Mavuk and his five co-accused got the right under s. 37(4)(e) of the Constitution to be defended at their trial in the National Court of Justice upon indictment on a charge of wilful murder by Mr. Miskus Maraleu of counsel in the circumstances set out in the attached reasons for reference?”

Counsel

L. Gavara Nanu, and K. R. Roddenby for the Public Prosecutor.

Cur. adv. vult.

5 December 1980

KIDU CJ GREVILLE SMITH PRATT JJ: In this matter a barrister and solicitor sought to appear at a trial before the National Court as counsel for six persons charged with wilful murder. He had previously been Deputy State Solicitor at Rabaul and a State Prosecutor, and as such had been involved in proceedings leading up to the point of trial of the six accused in a way, and to an extent, that in our opinion, without recourse to the provisions of s. 37(4)(e) of the Constitution, rendered him ineligible to appear at the trial as legal representative of the accused persons or any of them. Such ineligibility arose on a legal ethics basis relating to confidentiality, he having had possession of the police file, been asked to advise on the case, visited the scene with the police, and perhaps spoken to witnesses at the scene. However, on behalf of the six accused he sought to overcome such ineligibility by reference to the said section of the Constitution.

Section 37(4)(e) of the Constitution provides as follows:

N2>“(4)    A person charged with an offence:

...

(e)      shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

...”

The argument advanced was that the accused persons had, in the exercise of their rights under such provision, chosen him as their legal representative and that a failure by him to defend them would amount to a denial of their constitutional rights under s. 37(4)(e).

In our opinion such an argument is misconceived. The right in question cannot be an absolute right. For example the right of an accused person cannot extend to a right to have counsel who is employed as a State prosecutor to defend him, or who is employed as an officer of the Public Solicitor’s Office if he is not entitled to legal aid, or the Public Solicitor himself instead of one of the Public Solicitor’s Officers if he is entitled to legal aid, or a particular officer of the Public Solicitor’s Office, or a counsel who has by acceptance of a prior brief engaged himself so as to be unavailable at the time of the trial, or who, as in this case, is disqualified on ethical (see Halsbury’s Laws of England (4th ed.) vol. 3, par. 1143) and other grounds in respect of appearing as defence counsel in the trial in question. The aforestated exceptions are not exhaustive.

What an accused person is entitled to is to counsel of his choice but not necessarily his first choice. His choice is subject to all proper exceptions. One thing that the right conferred by the provision in question would do would be to prevent an accused person being against his will assigned by the State a defence counsel whom he did not want. Having said that, we think we should not explore the effect, generally, of the provision further in this reference.

The State Prosecutor, in the case with which we are here concerned, objected to the counsel in question appearing for the accused persons. Justice must not only be done but must be seen to be done, and that includes justice to the community as well as to the accused. In our opinion the trial judge would have power in the exercise of an inherent discretion to refuse, if necessary, to permit counsel in question to appear for the accused persons. However we have no doubt that counsel himself would heed the intimation herein contained.

The question referred to the court by a judge of the National Court is in the following form, namely:

QUESTION

“Have Joseph Mavuk and his five co-accused got the right under s. 37(4)(e) of the Constitution to be defended at their trial in the National Court of Justice upon indictment on a charge of wilful murder by Mr. Miskus Maraleu of counsel in the circumstances set out in the attached Reasons for Reference?”

We answer the question “no”.

Question answered accordingly.

div>