State v Kissi (No 2) [2023] PGNC 467; N10620 (13 December 2023)

N10620

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 173 AND 1923 OF 2023

THE STATE

V

SAM KETENG KISSI
(No 2)

Waigani: Berrigan, J
2023: 13^th December

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 177(2)(b) of the Constitution – Power of Court to order Public Solicitor to provide legal aid - Protection of the law – Proposed withdrawal of counsel from the Public Solicitor’s Office during trial – Public Solicitor ordered to continue to act for accused.

Cases Cited:
Tomscoll v State (2012) SC1208
Evertz v State [1979] PNGLR 174
Section 14, 15, 16 and 19, Professional Conduct Rules, 1989
R v McFadden [1976] 62 Cr App R 187
R v Farooqi [2008] EWHC 546; [2014] 1 Cr App R 8, CA

References Cited:
Sections 37, 177(2)(b) of the Constitution

Counsel
Mr E Kave, for the State
Mr O Himore, for the accused

RULING

13^th December 2023

1. BERRIGAN J: The accused is charged with the abduction, unlawful deprivation and sexual penetration of a child under the age of 12 (then 9 years of age) on 24 September 2018, the abduction, unlawful deprivation and sexual penetration of another child under the age of 12 (then 10 years of age) on 8 October 2018, and the abduction and unlawful deprivation of a third child on 25 October 2018.
   
2. The accused filed an application to the National Court sitting in its Human Rights jurisdiction after being held in custody for five years without trial. On 22 September 2023 Cannings J ordered, amongst others, that the Public Solicitors shall forthwith assign a senior lawyer in his office to interview the applicant to ascertain whether the applicant wishes to be represented by the Public Solicitor in this matter.
   
3. Mr Popeu of the Public Solicitor’s Office took instructions from the accused, together with his application for legal aid, which was granted.
   
4. On 2 October 2023 Cannings J made the following orders:
   
   • (1) The Public Solicitor is directed under s 177(2)(b) of the Constitution that he shall provide legal aid, advice and assistance to the applicant, Samuel Keteng Kissi, in connection with all criminal proceedings in the National Court currently involving him including the proceeding CR No 173 of 2023.
     
   • (2) The criminal proceeding CR No 173 of 2023 is now referred to the attention of the Judge Administrator Crimes General Track at the National Court Waigani so that the circumstances of the applicant and in particular the outstanding case CR No 173 of 2023 can be given an urgent priority and with that order.
     
5. Mr Popeu subsequently appeared for the accused before the Chief Justice who took conduct of the matter before having to recuse himself. The matter was referred to me. I heard and dismissed an application to quash the indictment and separate certain counts on the indictment.
   
6. The matter returned for trial on Tuesday, 5 December 2023 on which day Mr Himore appeared in place of Mr Popeu. I was concerned about this development given the particular circumstances of the case, the need for senior counsel, and the fact that Mr Himore had sought a short adjournment to speak with the accused. The matter was adjourned to the afternoon at which time Mr Popeu appeared. Mr Popeu and Mr Himore assured the court that Mr Himore was ready to proceed.
   
7. The trial commenced following arraignment. I have now heard six of the 20 witnesses the State intends to call from the 30 witnesses listed on the indictment. In particular, I have heard from two of the three complainants, and a number of each of their family members.
   
8. Yesterday Dr Marilyn Morris was called by the State to give evidence. She identified her affidavit of 20 October 2023 and the accompanying sexual assault report for one of the complainants dated 25 September 2018. The affidavit was admitted. It became apparent that the accused wished to speak to his lawyer at this time and I allowed him to do so. It appears that he wished to have his lawyer object to the document and cross-examine the witness.
   
9. Mr Himore indicated that the Public Solicitor’s Office was withdrawing from the matter. I expressed my concern and counsel was directed to consult the Public Solicitor. Mr Himore returned with an affidavit from himself stating that he had consulted Deputy Public Solicitor and Chair of the Legal Aid Committee, Mr Kirriwom, about withdrawal of legal aid, and further, that the accused refused to listen to advice “time and time again” and that as the counsel employed by the Public Solicitor’s Office and representing the client he was withdrawing his representation.
   
10. His affidavit attached an email from Mr Kirriwom appearing to withdraw legal aid. It states that the accused has “continuously and consistently demonstrated his refusal to accept legal advice or the manner in which Mr Himore has conducted his trial”. He says that “in light of the accused’s obvious dissatisfaction with the manner in which his trial is being conducted or rather his preference to conduct the trial in the manner he sees fit he no longer wishes to retain the legal services provided to him by the Public Solicitor through Mr Himore. It is only proper therefore that the Public Solicitor withdraw his services to Mr Keteng Kissi and allow Mr Kissi to conduct his trial in the manner he sees fit”.
    
11. It was apparent that Mr Himore had not consulted with the Public Solicitor and I adjourned to allow him to do so as requested.
    
12. Today Mr Himore provided an affidavit from the Public Solicitor which states at [9] to [10] that:
    

“The accused was also assisted by the Public Solicitor’s Office during his trial up to the point when the accused being a lawyer by profession started objecting to the State’s documentary evidence from the dock against my lawyer’s advise (sic).

This conduct by the accused has demonstrated that he does not want or does not accept the Public Solicitor’s advise (sic) through his employed lawyer who has carriage of the trial.

On that basis I intend to use my discretion as the Public Solicitor to withdraw legal aid in this matter and allow the accused to run his own case as he sees fit”.

13. Mr Himore has prepared a notice of ceasing to act.
    
14. I invited counsel to address the Professional Conduct Rules. He was unable to do so other than to say that the accused has a poor attitude towards lawyers from the PSO.
    
15. I adjourned from this morning to give this ruling.
    

Law

16. Tomscoll v State (2012) SC1208 has no application for present purposes. The Supreme Court held in that case that whilst an accused may have the right to indicate their preference for a particular lawyer within the Public Solicitor’s Office ultimately it is a matter for the Public Solicitor to assign a lawyer having regard to the needs of the particular case and the work load and other demands of the office.
    
17. In Evertz v State [1979] PNGLR 174 Wilson J, sitting as a single judge of the Supreme Court, held that (emphasis mine):
    

“Section 177(2)(b) of the Constitution vests in both the Supreme Court and the National Court a wide discretion regarding the giving of directions to the Public Solicitor; such discretion must be exercised ... judicially according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion (House v. The King [1936] HCA 40; (1936), 55 C.L.R. 499, per Starke J., at p. 503); it should be regulated by a consideration of circumstances and consequences that have reference to the administration of justice itself and the concept of legal aid for persons in need.”

18. In that case Wilson J refused the application pursuant to s 177(2)(b) of the Constitution by a person wishing to appeal against conviction for a direction that the Public Solicitor provide him with legal assistance for that purpose, the Public Solicitor having in fact provided a considerable amount of legal aid in the form of investigation, research and legal advice. In doing so he observed that the Constitution does not guarantee any right in a convicted person to legal assistance on an appeal against conviction. There is no rule of law or practice to the effect that convicted persons should be entitled to receive legal assistance for the purposes of having their appeals against convictions prepared and argued for them. The Court should be slow to intervene in the area of provision of legal aid, advice and assistance, which is the primary function of the Public Solicitor, and should therefore be slow to interfere with the Public Solicitor’s discretion. The Public Solicitor has limited resources. He found that there was an absence of substantial reasons or special circumstances which in the interests of justice require the Court to direct that legal assistance be given.
    
19. Section 37 of the Constitution provides (emphasis mine):
    

37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c) shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(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
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

20. Section 177(2)(b) of the Constitution provides (emphasis mine):
    

177. Functions of the Public Prosecutor and the Public Solicitor.

(1) The functions of the Public Prosecutor are—...

(2) The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular—

(a) to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and

(b) notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and

(c) in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be—
(i) limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and
(ii) granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.

(3) A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Subsection (2)(b).

(4) For the purposes of this section the need of a person is to be interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.

(5) An Act of Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need of his help whom he considers are able to make a contribution towards the cost of these services.

(6) An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Subsections (1) and (2), on the Public Prosecutor or the Public Solicitor.

21. In addition to the Constitutional provisions we are now well into trial and considerations under the Professional Conduct Rules, 1989 are relevant. I note some in particular because they make clear the obligations of defence counsel to the Court and to their client and the differences between them, as well as the seriousness of withdrawal from a criminal trial already underway before the court.
    
22. See for instance s 14(3) of the PCR (emphasis mine):
    

14, CONDUCT OF CLIENTS.

(1) A lawyer shall not advise his client to engage in conduct which the lawyer considers may be illegal, except in good faith to test the validity or scope of the law and provided that prior to so doing–

(a) he informs the client of the consequences and likelihood of the conduct being found to be illegal; and

(b) the client is given complete freedom of choice whether or not so to act.

(2) A lawyer shall draw his client’s attention to the possible effect of any proposed course of action which may adversely affect his client’s credit or honour.

(3) A lawyer, whose client behaves in an offensive or improper manner, shall nevertheless continue to act for him unless–

(a) the lawyer is justified in assuming that his instructions have been withdrawn; or

(b) the lawyer finds that his professional standing is being or is likely to be impugned and he can withdraw from the case or matter at that stage without jeopardising his client’s interests.

23. Section 15 of the PCR provides (emphasis mine):
    

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.

(3) If, at any time before judgement is delivered in a civil case, a lawyer is informed by his client that the client has–

(a) committed perjury; or

(b) otherwise been guilty of fraud upon the Court,

the lawyer shall not inform the Court of that fact without his client’s consent, but he shall not take any further part in the case unless his client authorizes him to inform the Court of the perjured statement or other fraudulent conduct and he has so informed 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

(c) when requested, inform the Court of the probable length of a case; and

(d) inform the Court of the possibility of a settlement provided that he can do so without revealing the existence or the content of “without prejudice” communications; and

(e) subject to these Rules, inform the Court of any development which affects the information already before the Court; and

(f) not delay proceedings that have been set down for trial only for the reason that he does not hold money on account of his costs; and

(g) appear in court wearing a long-sleeved clean ironed opaque white shirt or blouse with collar closed at the throat and dark trousers or rami, laplap or a skirt and business shoes and–

(i) if appearing as Counsel, properly gowned with bib (tabs) and wig; and

(ii) if appearing as instructing lawyer, a tie in the case of a male.

(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.

(6) In cross-examination which goes to a matter in issue, a lawyer may put questions suggesting fraud, misconduct or the commission of a crime provided that–

(a) the matters suggested are part of his client’s case; and

(b) he has no reason to believe that the matter are only put forward for the purpose of impugning the witness’s character.

(7) Questions which affect the credibility of a witness by attacking his character, but which are otherwise not relevant to the actual inquiry, shall not be put in cross-examination unless there are reasonable grounds to support the imputation conveyed by the questions.

(8) For the purposes of Subsections (6) and (7), Counsel may regard instructions from his instructing lawyer that the imputation is well-founded as reasonable grounds to support the imputation conveyed by such questions.

(9) A lawyer instructed to prepare or settle a pleading shall not make any allegation unsupported by his instructions and, in particular–

(a) he shall not allege fraud unless he–

(i) has express instructions to plead fraud; and

(ii) has before him credible material which establishes an apparent case of fraud; and

(b) he shall not plead justification unless he–

(i) has express instructions to plead justification; and

(ii) has before him credible material which in his independent judgement supports that pleading.

(10) In all cases it is the duty of a lawyer–

(a) to guard against being made the channel for questions or statements which are only intended to insult or annoy either the witness or any other person or otherwise are an abuse of a lawyer’s function; and

(b) to exercise his own judgement both as to the substance and the form of the questions put or statements made.

(11) A lawyer shall not communicate with a witness under cross-examination without the leave of the Court.

(12) A lawyer representing an interested party in a Court shall not initiate communication with the Court about the facts or issues in a case that the lawyer knows is pending or likely to be pending before the Court unless he has first informed the lawyer for the other interested party of the nature of the matters he wishes to discuss with the Court and has given that other lawyer and the interested party an opportunity to be present.

(13) If a lawyer has a discussion with the Court regarding an issue in a case in the absence of the opposing lawyer, he shall fully inform the opposing lawyer of such discussion at the earliest opportunity.

(14) A lawyer shall not accept instructions in a case in which he has reason to believe that he is or is likely to be a witness.

(15) A lawyer shall withdraw from representing a client if–

(a) it becomes apparent to him that he is or is likely to be a witness on a material question of fact; and

(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.

(17) A lawyer shall not settle a case before the Court without first obtaining his client’s specific instructions.

24. Pursuant to s 16, particular rules apply to a lawyer defending a person accused of a crime (emphasis mine).
    

16, DEFENDING A PERSON ACCUSED OF CRIME.

(1) Subject to these Rules, a lawyer shall defend any person on whose behalf he has accepted instructions on a criminal charge irrespective of any opinion which he may have formed as to the guilt or innocence of that person.

(2) When defending a client on a criminal charge, a lawyer shall endeavour to protect his client from being convicted except by a competent tribunal and upon legally admissible evidence sufficient to support a conviction for the offence with which his client is charged.

(3) A lawyer shall not attribute to another person the crime with which his client is charged unless–

(a) he can properly do so in accordance with facts or circumstances; or

(b) there are facts or circumstances,

which reasonably suggest the possibility that the crime may have been committed by the person to whom the guilt is imputed.

(4) A lawyer, to whom a client has made a clear confession of guilt in respect of a charge–

(a) may, if the confession is made before the proceedings have commenced; or

(b) shall, if the confession is made during the proceedings,

continue to act for him, but shall not set up an affirmative case inconsistent with the confession by the client, in particular–

(a) asserting or suggesting that some other person committed the offence charged; or

(b) calling evidence in support of an alibi.

(5) A lawyer may advise his client as to the plea to a criminal charge, if necessary in strong terms, but the client must be allowed complete freedom of choice as to the plea he wishes to make.

(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.

(7) A defending lawyer in a criminal case is entitled to withdraw from the case if–

(a) during the course of the trial and prior to final sentence, the defendant absconds; or

(b) prior to or during the course of the trial, the defendant refuses to accept the jurisdiction of the Court.

(8) If a procedural irregularity comes to the knowledge of a defending lawyer before the verdict in a trial is returned, he shall inform the Court as soon as practicable and shall not wait with a view to raising the matter later on appeal.

(9) If, in a case, the Court has been led by the prosecution to believe that the accused person has no previous convictions, the defending lawyer is under no duty to–

(a) disclose facts to the contrary which are known to him; or

(b) correct any information given by the prosecution, if such disclosure or correction would be to his client’s detriment, provided that the lawyer shall not–

(i) lend himself to any assertion that his client has no convictions; or

(ii) ask a prosecution witness whether there are previous convictions against his client in the hope that he will receive a negative answer.

(10) A lawyer may advise his client about giving evidence in his own defence, but the client must be allowed complete freedom of choice as to whether to give evidence or not.

(11) A defending lawyer in a case shall not, in a plea in mitigation, make any allegation that is merely scandalous or calculated to vilify or insult any person.

(12) Unless there is good reason not to do so, a defending lawyer in a case shall attend his client after conviction and sentence or ensure that his instructing lawyer or a representative of that lawyer does so.

25. Finally, s 19 provides (emphasis mine):
    

19, TERMINATION OF RETAINER.

(1) A lawyer shall recognise that a client is entitled to change his legal adviser at any time without giving any reason for the change and shall, subject to the satisfaction of any lien the lawyer may have, take all reasonable steps to facilitate such a change should his client so request.

(2) If a client engages another lawyer in a matter and the latter lawyer is of the opinion that the conduct of his predecessor in the matter warrants the making of a complaint to the Council or the Committee, he shall advise the client accordingly.

(3) Subject to Section 14(3) and Section 18(4), and to the National Court Rules and Practice Directions, a lawyer may withdraw from representing a client–

(a) at any time and for any reason if the withdrawal will cause no significant harm to the client’s interests and the client is fully informed of the consequences of withdrawal and he voluntarily assents to it; or

(b) if the lawyer reasonably believes that continued engagement in the case or matter would be likely to have seriously adverse effect upon his health; or

(c) if the client commits a significant violation of a written agreement regarding fees or expenses; or

(d) if the client made material misrepresentations about the facts of the case or matter to the lawyer; or

(e) if the lawyer has an interest in any case or matter in which he is concerned for the client which is adverse to that of the client; or

(f) where such action is necessary to avoid commission by him of a breach of these Rules; or

(g) where the client fails or neglects to instruct the lawyer; or

(h) by leave of the Court,

provided that the lawyer shall take reasonable care to avoid foreseeable harm to his client, including–

(i) giving due notice to the client; and

(j) allowing reasonable time for substitution of a new lawyer; and

(k) co-operating with the new lawyer; and

(l) subject to the satisfaction of any lien the lawyer may have, promptly turning over all papers and property and paying to the client any moneys to which the client is entitled.

(4) Only in the most exceptional circumstances shall a brief for the defence of a person charged with a serious criminal offence be returned and then only if sufficient time remains for another lawyer to master the case.

(5) Where, through conflict of interest, a lawyer has recommended to a client that the client seeks alternative legal representation, the lawyer shall charge only for those items which it is clear a second lawyer will not need to duplicate.

26. Time has not permitted an extensive review of authorities.
    
27. I have found the discussion in Archbold, 2015, at [4-381] helpful. In R v McFadden [1976] 62 Cr App R 187 at 193 the Court set out the following principles governing the conduct of defence counsel. Whilst not binding the case is persuasive (emphasis mine):
    

“It is the duty of counsel when defending an accused on a criminal charge to present to the court, fearlessly and without regard to his personal interest, the defence of that accused. It is not his function to determine the truth or falsity of that defence, nor should he permit his personal opinion of that defence to influence his conduct of it. No counsel may refuse to defend because of his opinion of the character of the accused nor of the crime charged. ... Counsel also has a duty to the court and to the public. This duty includes the clear presentation of the issues and the avoidance of waste of time, repetition and prolixity. In the conduct of every case counsel must be mindful of this public responsibility”.

28. It appears to me that these principles are reflected in our PCRs.
    
29. In R v Farooqi [2008] EWHC 546; [2014] 1 Cr App R 8, CA the English Court of Appeal Criminal Division said, and again whilst not binding the comments are persuasive and applicable here in my view (emphasis mine):
    

“Something of a myth about the meaning of the client’s “instructions” has developed. As we have said, the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor “instructs” him. In short, the advocate is bound to advance the defendant’s case on the basis that what his client tells him is the truth, but save for well‐established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone remains responsible for the forensic decisions and strategy. That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.”

Consideration

30. The essential question is whether this Court should order that the Public Solicitor continue to act for the accused pursuant to its power under s 177(2)(b), Constitution.
    
31. In making this decision I remind myself of the principles outlined in Evertz v State, supra.
    
32. Accordingly, I have had regard to the following considerations, including the accused’s right to full protection of the law, his right to be afforded a fair hearing within a reasonable time, and his right to be permitted to defend himself by a legal representative if entitled to legal aid, by the Public Solicitor, or another legal representative assigned to him in accordance with the law under ss 37(1), (3) and 4(e) of the Constitution, respectively.
    
33. It is also particularly relevant in this case that the accused has been charged with offences alleged to have occurred in 2018. Furthermore, that the accused has been in custody since his apprehension in 2018 and has only been brought to trial upon application to and directions by the National Court in its Human Rights jurisdiction.
    
34. In addition, whatever the differences between the accused and counsel, the accused wishes to have the Public Solicitor continue to act for him.
    
35. Moreover, an application to quash the indictment has been heard and determined and the trial itself is well advanced. The trial is of some complexity. The allegations are very serious. The indictment contains a number of counts concerning three different complainants. The State intends to call at least twenty witnesses.
    
36. I have already heard the evidence of several witnesses, including that of two young complainants and at least some members of their families.
    
37. Withdrawal of the Public Solicitor’s Office, particularly at this stage of the proceedings, will have serious consequences for the interests of justice, including the interests of the State and its witnesses and the interests of the accused, as well as the efficient administration of justice, which has implications not just for this trial but all other trials before the National Court.
    
38. Against this I have taken into account the views of the Public Solicitor, including the fact that he was previously directed by the National Court to appear and now wishes to withdraw. I am conscious of his position as a Constitutional office holder and the fact that the Court should be slow to interfere with the exercise of his discretion.
    
39. I am not privy to what takes place between counsel and the accused in private but it is not my observation that the accused refuses to take the advice of the Public Solicitor’s Office or more particularly Mr Himore’s advice “time and time again”.
    
40. The accused has not intervened or behaved in a manner that is disruptive or offensive or improper in court. To my recollection this is only the second time it became apparent to me that he wished to consult with his lawyer during the course of the trial. As I recall the first time this occurred it was with respect to the same document but at an earlier stage of the trial.
    
41. I do accept, however, that the accused may not like or accept some of the advice given to him. He may be a difficult or demanding client. But neither the Public Solicitor nor Mr Himore have identified any basis upon which their continued appearance would place them in breach of their obligations to the Court or under the Professional Conduct Rules.
    
42. In the circumstances, having regard to the order made by Cannings J, the delay in the matter to date, the very serious nature of the allegations, the complexity of the trial, the effect the proposed withdrawal would have on the future progress of the matter, the rights of the accused to the protection of the law, and the Constitutional provisions designed to afford that protection, and the very serious cost and inconvenience to both the Court and the State, I order that the Public Solicitor continue to act in this matter.
    
43. In my view this decision accords with the rules of reason and justice having regard to the circumstances and consequences for the accused, the concept of legal aid for persons in need and the administration of justice itself; Evertz v S applied.
    
44. I will, however, make it clear to the accused that Mr Himore has obligations to the Court and under the Professional Conduct Rules and of the principles that apply regarding his appearance for the accused.
    

Order

45. I make the following order:
    

The Public Solicitor is directed under s 177(2)(b) of the Constitution that he shall continue to provide legal aid, advice and assistance to the applicant, Samuel Keteng Kissi, in connection with this matter.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused