N10293
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1029 OF 2019

THE STATE

V

ROBERT AGEN
(No 6)

Waigani: Ganaii, AJ.
2022: 18th July

CRIMINAL LAW – Procedure - Application seeking orders to cease to act – Professional Conduct Rules – National Court Rules – Whether application properly before Court – Whether grounds relied on are proper?

Cases Cited

SCRA 41 of 2022, Transcript of Cannings J, Unreported, Unnumbered 
State v Robert Agen (No 2) (2022) N10276

Counsel	

Ms M Tamate & Ms S. Suwae, for the State
Mr J Napu, for the Defendant

RULING ON APPLICATION SEEKING ORDERS FOR CEASING TO ACT  

18th July, 2022  

1.      GANAII AJ:	This is a ruling on an oral application by counsel for the accused, Mr John Napu, of Napu and Company Lawyers, seeking orders to cease to act for the accused. State objected to the application on the grounds that the motion is not properly before the Court, for failing to give notice within seven clear days to the State. 
2.	At the outset it is to be noted that an oral application seeking an adjournment to file the SC reference was refused by the Court on the basis that there was no evidence to support that motion and the motion was not properly before the court. Mr Napu then proceeded to making this oral application. 

Background

3.	The accused was indicted on one count of Assault occasioning bodily harm, contrary to s 340 (1) of the Criminal Code Act (CCA), one count of Rape, contrary to section 347 (1) of the CCA and one of GBH contrary to section 319 of the CCA.  Alternative to Count 3, State indicted the accused with Count 4, one count of Assault occasioning bodily harm, contrary to section 340 (1) of the CCA.

4. 	State called evidence and at the end of their case, the defence made a no-case application. The Court refused the no case application in a delivered ruling and adjourned for the trial to continue. Upon the return date, the defence was to state their position on how they will run their case. When the matter returned for that to happen, Mr Napu appeared and informed the Court by way of a Notice of Motion that he was seeking orders from the Court to cease to act for the accused. The State was ready to respond and I heard the application. 

5.	There were no proper affidavit evidence or written submissions filed to support the defence motion. When asked by the court to clarify his position, Mr. Napu submitted that he relied on two main grounds in making this application. 

6.	The grounds were these: firstly, counsel submitted that he needed time off from this criminal trial to file a SC reference on a question of law on the Court’s ruling after a no-case to answer application was refused. Counsel argued that where the court refused to grant a longer adjournment to him to concentrate on the SC reference, he must cease to act for the accused in the criminal trial so that he will be free to attend to the filing of the SC reference. Secondly, Mr Napu submitted that the accused Robert Agen had agreed that another lawyer can take on the criminal trial from here whilst Mr. Napu cease to act now to concentrate on the filing the SC reference.  
7.	In their objection, State cited Order 2, Rule 39, of the National Court Rules (NCR), arguing that the proper processes were not followed by the defence namely that the defence did not give 7 days’ notice before filing their motion of ceasing to act. 
8.	State also submitted that pursuant to provisions of the Lawyers Professional Conduct Rules (PCR), Mr. Napu had a duty to his client and to the court to ensure that in the interest of justice this trial is not unnecessarily interrupted and delayed and that his client’s case is not jeopardised. 
9. 	Mr. Napu replied submitting that the NCR only applied to civil proceedings and that referring a question of law for interpretation on a Constitutional provision was his client’s right and he must cease to act to represent his client’s interest. 
Issue

10.	Apart from the main issue to be one of whether the Court should grant orders in favour of Mr Napu to cease to act for the accused in this pending criminal trial, I consider the sub-issues to be whether the application is properly before the Court and whether the grounds relied on are proper.
Law

11. 	The applicable laws are the National Court Rules and the Professional Conduct Rules. I refer to them here below. 
National Court Rules, 1983
“Order 2
Division 5.—Solicitors.
Order 2, Rule 38

38. Removal of solicitor. (66/6)
(1) Where a solicitor acts for a party in any proceedings and afterwards the party determines the authority of the solicitor to act for him in the proceedings—
(a) the party shall file notice of the change and serve the notice on the other parties and on his former solicitor; and
(b) the former solicitor may file notice of the change and serve the notice on the parties.
(2) Sub-rule (1) does not apply to a case to which Rule 35 applies”.

Order 2, Rule 39

“39. Withdrawal of solicitor. (66/7)
(1) Where a solicitor acts for a party to any proceedings and afterwards ceases to act, the solicitor may, subject to Sub-rule (2), file notice of the change and serve the notice on the parties.
(2) A solicitor shall not file or serve notice of a change under Sub-rule (1)without leave of the Court unless he has, not less than seven days before doing so, served on his former client notice of his intention to file and serve the notice of change. 
(3) A solicitor filing a notice of change under Sub-rule (1) shall, except where the notice is filed with the leave of the Court, file and serve with the notice an affidavit showing service in compliance with Sub-rule (2).
(4) A solicitor may serve a notice under this Rule on his former client by posting it to the former client at the residential or business address of the former client last known to the solicitor”.
Order 2, Rule 40

“40. Effects of change. (66/8)
A change of which notice is required or permitted to be filed under any of Rules 35, 36, 37, 38 and 39 shall not have effect as between a party or solicitor to which the change relates on the one hand and the Court or any other party on the other hand until notice of the change is filed and, as regards any other party, served on that other party”.
12.	The Lawyers Professional Conduct Rules 1989 also apply. The following sections are quoted:

“13. 	KEEPING THE CLIENT INFORMED.
(1) A lawyer shall inform his client fully of his rights and possible courses of conduct regarding issues of substantial importance and shall keep his client appraised of all significant developments and generally informed in the matter entrusted to him by that client unless he has been instructed to do otherwise.
(2) A lawyer shall–

(c) advise each of his clients of his intention to close his office or to cease to practice.
(5) If, during the conduct of a matter, a lawyer fails to conduct the matter in the interests of the client, he shall inform the client of the facts of the act or omission and advise the client of the consequences and the remedial action which may be taken”.

“15. COURT PROCEEDINGS.
(1) Subject to these Rules, a lawyer shall conduct each case in such manner as he considers will be most advantageous to his client.
(2) A lawyer shall not knowingly deceive or mislead the Court.
….
(4) A lawyer shall–
(a) act with due courtesy to the Court before which he is appearing; and
(b) use his best endeavours to avoid unnecessary expenses and waste of the Court’s time; and…
…
(5) A lawyer shall ensure that the Court is informed of any relevant decision on a point of law or any legislative provision of which he is aware and which he considers to be relevant, whether it be for or against his contention.

(15) A lawyer shall withdraw from representing a client if–
…
(b) he can withdraw without jeopardizing his client’s interests.

(16) Where a lawyer–
(a) does not accept instructions under Subsection (14); or
(b) withdraws from representing a client under Subsection (15),
another lawyer in the same firm as that lawyer may accept the instructions of the client provided that the conduct of the firm or a lawyer in the firm is not likely to become a material issue in the case.
ss (17) A lawyer shall not settle a case before the Court without first obtaining his client’s specific instructions”.

“16. DEFENDING A PERSON ACCUSED OF CRIME.
(6) A defending lawyer shall not absent himself from a trial unless–
(a) there are exceptional circumstances which he could not reasonably have foreseen; and

(b) he obtains the consent of the instructing lawyer or his representative or of his client; and

(c) a competent deputy who is well informed about the case and able to deal with any question which might reasonably be expected to arise takes his place”.

“20. PROFESSIONAL COURTESY.
(1) A lawyer shall treat his professional colleagues with the utmost courtesy and fairness.
(2) If a lawyer observes that another lawyer is making or is likely to make a mistake or oversight which may involve the other lawyer’s client in unnecessary expense or delay, he shall not do or say anything to induce or foster that mistake or oversight and shall, except where so doing might prejudice his own client, draw the attention of the other lawyer to that mistake or oversight”.

Consideration

13. 	At the outset, I consider that the provisions of the PCR and the NCR do apply. Both Rules provide guidance on the issue of whether Mr Napu, as a lawyer, had complied with the law, the rules and proper practice and procedure for moving an application to be removed as counsel representing the accused.
14.	Due to lack of evidence before me and lack of proper submissions to assist the court, I am not satisfied that Mr Napu has properly complied with the requirements of the Rules, in the observance of his duty to the Court, to his client and to obey the law, when making an application seeking orders to cease to act. 
15.	These are the reasons. Firstly, Mr Napu had failed to give sufficient 7 days’ notice to the State. The State was not prepared but had to do its best to respond with a view that any further adjournments will cause unnecessary delay to the progress of this matter. That is an unfair advantage for the defence. 
16.	Secondly, Mr. Napu has not provided any legal basis for taking this course after the court made its ruling on a no-case to answer application, and when counsel immediately rose to his feet and stated that “the ruling of the court was full of errors.” With counsel’s views that this Court’s ruling was erroneous, it appears that the defence was aggrieved with an interlocutory ruling of the Court. That is the intimation that this Court is entitled to draw in the absence of further assistance by Counsel, and a brief oral submission when asked to be assisted.  
17.	This leads the Court to say this. Unlike civil matters, criminal trial practice and procedure is such that any challenge to an interlocutory ruling in a criminal matter can be considered after sentence where the accused is found guilty. This is so even if it is a challenge under s 155 (2) (b) of the Constitution, seeking the inherent jurisdiction of the National Court, which appears to be the only avenue available for challenging an interlocutory ruling in a criminal matter. There are no appeal proceedings in the interlocutory stage of criminal proceedings to the Supreme Court.
18.	For the above, I reject the motion as one without proper legal basis, and for failing to comply with the relevant rules.	 
19. 	On duty of counsels, I go on to say that when making a decision to represent an accused in a serious criminal allegation, it is required that counsel is competent and committed to the course. The course here is the criminal trial process which ends at sentence if the accuse is found guilty. This will ensure that counsels who are well versed with their case and the law will progress the case without unnecessary delay and without jeopardising their client’s interest. It will also ensure that counsel will not abuse the court’s processes by unnecessarily delaying the progress of a criminal trial. 
20. 	When Mr. Napu had anticipated that such a course will be taken (SC challenge), he should have pre-arranged for another lawyer within or outside the firm to assist or sit in the criminal trial so that this will enable them to competently take carriage of the trial to the end. Taking these steps, will ensure that the trial is not delayed and his client’s interest is not jeopardised. Mr. Napu has not done that. 
21.	Given the history of the slow progress of this trial, for various reasons including where a similar application was made seeking change of lawyers after the State opened its case with its main witness, and more particularly where the instant motion has no proper legal basis, the motion may be seen as a delay technique by the defence to slow the progress of this proceeding, which can amount to an abuse of the court’s process. 
22. 	Whilst Mr. Agen’s position is that he had agreed for another counsel to act for him for the balance of the trial, which is now at the defence case, and of which he is at liberty to do so, he has not provided any reasons to justify why so, except to rely on Mr Napu’s submissions. The reasons advanced by Mr. Napu to cease to act has no proper legal basis, is not supported by evidence and cannot support Mr. Agen’s position. 
23. 	I am not satisfied that Mr. Agen has provided any relevant evidence to demonstrate why Mr. Napu should cease to act for him in the criminal trial, nor am I satisfied that Mr. Napu had done so. Apart from that, there is no evidence before me to show that Mr. Napu is in any conflict-of-interest situation with his client whereby his continued representation of Mr. Agen would not be fair on his client in these criminal proceedings.
24.	Mr. Agen is at liberty to engage another lawyer instead of having Mr. Napu act for him to file a SC reference. This option will ensure that the trial progresses with Mr Napu who is well versed with the case and can represent the accused to the end. The interest of the accused will not be jeopardised if the abrupt departure of Mr. Napu away from the trial can be prevented.
25. 	Given the above, this trial must continue and Mr. Napu who is well versed with the evidence in the trial thus far has an obligation to his client to represent him for the balance of the trial. 
26.	Counsel Mr Napu also has a duty to the court and that is to ensure that the criminal trial progresses without further delay and more particularly so, where there is no proper legal basis for making such an application for ceasing to act. 
27. 	I refuse the motion and direct that the Mr. Napu appear at 9:30 am tomorrow to represent the accused in this trial. The trial must continue and any application to refer any questions to the SC for interpretation can be done after trial or sentence. 

Orders

28. 	This court makes the following orders.
1)	The oral application by Mr Napu seeking to cease to act for the accused is refused for having no proper legal basis and is an abuse of the process of the Court.

2)	The trial will continue.

3)	Mr Napu will appear to represent the accused when the trial resumes.

Orders accordingly. 
________________________________________________________________
Public Prosecutors: Lawyers for the State
Napu & Company Lawyers: Lawyers for the Defendant