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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
LA 2 of 2001
BETWEEN:
IN THE MATTER OF LAWYERS ACT (1986 as amended)
AND:
IN THE MATTER OF AN APPLICATION BY
GODWIN HAUMU FOR ADMISSION AS A LAWYER
WAIGANI: KANDAKASI, J.
2001: April 2nd & 6th
LAWYERS –Lawyers Act 1986 – Admission to practice – Requirements for admission – National lawyer found guilty of a criminal offence without any convictions – Application under s. 25 of the Act – Attorney General certified applicant to be a "fit and proper person" – Certificate by Attorney General conclusive unless there is prove of fraud, malice, bias excess of jurisdiction or otherwise unlawful exercise of power – Factors to be considered before giving certificate – Conviction no automatic bar to admission or disbarment - Lawyers Act 1986 ss 25 26, 27, 28 and 29.
WORDS AND PHRASES – "Fit and proper person" – Meaning of – Factors for consideration to determine "fit and proper person" – Lawyers Act 1986 s. 25(3)(d).
Cases Cited:
Peter Norman Moore [1993] PNGLR 470
Papua New Guinea Law Society –v- Martin Dennis McEniery [1993] PNGLR 76
John Sifta [1975] PNGLR
Costello v. Controller of Civil Aviation [1977] PNGLR 229
Egerton MacPherson Robb [1995] PNGLR 462
Giems –v- Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 283
Counsel:
Mr. L. Manua, for the Applicant
Mr. T. Elemi, for the PNG Law Society
6th April 2001
KANDAKASI, J: This is an application by the applicant, Mr. Godwin Haumu for admission as a lawyer pursuant to s. 25 of the Lawyers Act 1996 (hereinafter "the Act"). The application is opposed by the Papua New Guinea Law Society (the Law Society) principally on the basis that the applicant is not a "fit and proper person" to be admitted as a lawyer in accordance with the Act. That is because he has been found guilty of assaulting another person although not convicted. I heard the application on the 2nd of April 2001 and I reserved a ruling to today.
Background and Relevant Facts
On the 14th of February, 2001 the applicant filed his application by a way of a Notice of Motion together with an affidavit sworn by himself on the 6th of February 2001, in support of his application. In that affidavit, he deposes to having completed a Bachelor of Laws degree at the University of Papua New Guinea in 1998. A copy of his degree is annexed as annexure "A". Thereafter he entered and successfully completed courses at the Legal Training Institute ("LTI") in 1999. However, the LTI refused to issue him a certificate for the purposes of his admission as a lawyer. That was on the basis of a minor assault he committed when he was a student at the University of Papua New Guinea ("UPNG"). He took the matter to the National Court for appropriate orders by way of a judicial review. The National Court quashed the decision of the LTI and ordered it to issue the applicant his certificate of having successfully completed his course of training. In accordance with the National Court order, the LTI issued him with a Certificate of Training, a copy of which is annexed to his affidavit as annexure "D".
The applicant then sought and obtained a certificate as a "fit and proper person" from the Attorney General on 13th of December 2000. The original of the certificate is in evidence has court document No. 3, with a copy annexed to the applicant’s affidavit as annexure "E".
On the 20th of February 2001, the applicant deposed to another affidavit setting out his educational qualifications prior to UPNG and LTI qualifications. He says, between 1981 and 1986, he did his primary education at the Sembo Community School in the East Sepik Province and completed Grade 6 in 1986. He then attended the St. Xavier’s High School, East Sepik Province between 1987 and 1990 and completed grade ten (10) at the end of 1990. A copy of his grade ten (10) certificate is annexed as annexure "A".
The following year, in 1991, he attended Kerevat National High School and in 1992 he attended the Divine Word Institute and completed Grade 12 in 1993. A copy of his grade 12 certificate is annexure "B". He spent 1994 in his village before attending the UPNG between 1995 and 1998, where he gained his degree in Bachelor of Laws and thereafter the LTI, where he successfully completed the course requirements there and was issued pursuant to the National Court order, a Certificate of completing those courses.
About July 1999, whilst attending the LTI, the applicant was attached to Harricknen Lawyers for two weeks to gain work experience. During that period, he carried out research work, simple drafting and filing and serving of Court documents tasks. After completing the LTI, he continued to be attached with Harricknen Lawyers as a clerk and gained additional work experience for about eight months whilst pursuing his case against the LTI for refusing to certify him to be admitted as a lawyer.
By another affidavit sworn by the applicant on 28th of February 2001, he states that, on the 19th February 2001 at 10.30am he attended and served on the Law Society a copy of the notice of motion filed on the 14th of February 2000 together with his affidavit sworn on the 6th of February 2001. Then on the 20th of February 2001, he says he attended on the Law Society and served it with a copy of his affidavit sworn and filed on the 20th of February 2001. The following day on the 21st of February 2001, he says he advertised in the National newspaper his notice of intention to apply for to be admitted as a lawyer. A copy of the advertisement is annexure "C" to that affidavit.
The applicant further says in the above affidavit that, he has no criminal conviction records against his name. He annexes a statutory declaration dated 28th of February 2001, to confirm that.
According to a further affidavit the applicant swore to on the 2nd of March 2001, his affidavit sworn on the 28th of February 2001 and filed on the 1st of March 2001 was served on Mr. Bob Mellor, Secretary of the Society at the 3rd Floor of the Mogoru Moto Building, Champion Parade, Port Moresby.
On the 13th of March 2001, the Law Society filed a Notice of Appearance giving notice of its Intention to Appear on the hearing of the Application and opposed it.
On the 16th March 2001, the Society filed an affidavit by Dr. John Bu sworn on the 14th of March 2001, an affidavit by Ere Kariko sworn on the 15th of March 2001, and an affidavit sworn by a Maggie Bakamienuc also sworn on the 16th of March 2001.
Dr. John Bu deposes to having carried out an examination of Maggie Bakamienuc and doing a report confirming that she sustained a fractured injury to her right radius, which showed rotation and non-union of the fracture. She would need to undergo an operation to correct the deformity. The report also states that, since she is right handed, she will find it difficult at times to continue to use the right hand due to muscle fatigue for writing long essays and the like.
The affidavit of Maggie Bakamienuc deposes to her being a psychology student due to graduate on the 23rd of March 2001. She says, she lodged a claim with the Law Society about a serious assault inflicted upon her by the applicant while he was a final year law student at the UPNG. The matter was referred to the UPNG Students Disciplinary Committee and the Police. The former found the applicant guilty of a disciplinary charge and fined him K300.00. The latter, after some delay charged the applicant with assault and the Waigani District Court subsequently found the applicant guilty on the 4th of May 2000. That Court in the exercise of its discretion, decided not to enter any conviction against the applicant and ordered that, he enter into his own recognisance with a cash surety of K200.00 and keep peace towards Maggie Bakamienuc for a period of one year from the 5th of May 2000 and pay a sum of K1, 000.00 in cash within six months to Maggie Bakamienuc. He was ordered not to consume any sort of liquor or alcohol or drugs during the one year and to appear before the Court when called upon during the one year for conviction and sentence if any of the conditions are not complied with.
The deponent expressed dissatisfaction and disappointment at the position or decision taken by the District Court and asked the Public Prosecutor to appeal against the decision but it seems no appeal has been lodged. She claimed the injuries she sustained were serious and the kind of penalties imposed against the applicant was too lenient. She also complained to the Law Society about the decision and the need to appeal against the decision of the District Court.
The affidavit by Ere Kariko sworn on the 15th March 2001 confirms having received the documents filed and served on them by the applicant and the complaints lodged by Maggie Bakamienuc. He also says the police clearance certificate was in the name of Gogwin Haumu and not Godwin Haumu.
On the 26th March 2001, an affidavit sworn by Pauline Toliman Mogish was filed for the Law Society. The deponent is the current Director of the LTI. She merely annexes copies of correspondences, including complaints from Maggie Bakamienuc against the applicant.
The final affidavit on file is an affidavit by the applicant sworn on the 23rd of March 2001, and filed on the 28th of March 2001. In that affidavit, the applicant responds to the affidavits of Ere Kariko and Maggie Bakamienuc. In respect of the affidavit by Mr. Kariko, the applicant states that, at the time of seeking the certificate as a "fit and proper person" from the Attorney General, he submitted a number of documents including a police clearance certificate. That certificate stated his name as Gogwin Haumu, which was a minor error that got corrected on the 22nd of March 2001. This fact was communicated to the Attorney General.
In respect of the affidavit of Maggie Bakamienuc, the applicant states that he was initially charged for grievous bodily harm but that was later amended on the police prosecutor’s application to assault occasioning in bodily harm under s. 340 of the Criminal Code. He was subsequently tried before the Grade V District Court and found guilty but was not convicted. He therefore, has no conviction recorded against his name.
The applicant finally states that, he is married with one wife who is not employed and has a child. He says he has met all the requirements prescribed by statute and there is no impediment to his admission as a lawyer.
A relevant law
Section 26 of the Act provides:-
"(1) An application for admission to practice shall be made to the Court.
(2) An application under subsection (1) shall be –
(a) made in the manner prescribed by the Rules of Court; and
(b) accompanied by –
- (i) evidence of qualifications for admission as required under section 25; and
(ii) fee prescribed by the Rules of Court."
Then s. 27 provides that:-
"An applicant for admission to practice as a lawyer shall –
(a) not less than 14 days prior to the date of his application under s. 26 published in a newspaper circulating throughout Papua New Guinea, notice of his intention to apply for admission to practice as a lawyer; and
(b) as soon as possible after making his application under s. 26 served on the Secretary a copy of the application and of the evidence lodged therein."
After hearing an application, s. 28 of the Act provides that: -
"(1) The Court may, at any sitting, on motion, admit an applicant to practice as a lawyer if that applicant shows to the satisfaction of the Court that he possesses the required qualifications.
(2) In considering an application for admission to practice as a lawyer, the Court may waive all or any of the requirements of s. 25."
Section 25 of the Act in speaking of the qualifications for admission provides in the following terms: -
"(1) An applicant for admission to practise shall satisfy the Court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted as a lawyer.
(2) The required academic qualifications referred to in Subsection (1) are—
(a) possession of the degree of Bachelor of Laws from the University of Papua New Guinea; or
(c) such other academic or educational qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2).
(3) The required practice qualifications referred to in Subsection (1) are—
(a) a certificate in the form prescribed by the Rules made by the Admission Council under Section 25A(2) signed by the Director of the Papua New Guinea Graduate Legal Training Institute certifying that the applicant has successfully completed the course of training conducted by that Institute; or
(b) a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules made by the Admission Council under Section 25A(2) together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules made by the Admission Council under Section 25A(2) for a period of not less than three years following the date of his admission to practise in that country; and
(c) such other practice qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2); and
(d) a certificate signed by the Attorney-General that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.
(4) In determining whether or not to grant a certificate under Subsection (3)(d), the Attorney-General may require the applicant—
(a) to attend before him for a personal interview; and
(b) to produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit.
(5) Where the Attorney-General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations."
What is clear from the above provision is that, an applicant for admission as a lawyer under s. 26 of the Act has to meet the following requirements per s. 25 of the Act:
(1) appropriate academic qualifications; and
(2) appropriate practice qualifications; and
(3) show that he is a "fit and proper person" to be admitted as a lawyer.
The Law Society has a right pursuant to s. 29 of the Act to appear and make such submissions, as it thinks fit in support of or in opposition to the application. In this case, it objects to the application only on the basis that, he is not a "fit and proper person." That is despite the certificate to by the Attorney General dated the 13th December 2000 in accordance with s.25(3)(d) of the Act that the applicant is a "fit and proper person."
There is no issue on the first two requirements. As such, those factors go in favour of the applicant. Indeed, on the evidence produced in support of the application there, is no room for any argument against the applicant on those points. There is however, some basis to consider the question of whether or not the applicant is a "fit and proper person" to be admitted as a lawyer. That issue was considered In the Matter of the Lawyers Act 1996 and In the Matter of An Application by Peter Norman Moore [1993] PNGLR 470, by His Honour, Sevua, J. at page 472 and 473 in this terms: -
"The discretion to hold an applicant a fit and proper person to practice is a discretion which rests solely on the Attorney General by virtue of s. 25(3)(d). I cannot see any concurrent discretionary powers here to be exercised by the Court and the Attorney General. In my view, the Attorney General’s discretion is a matter of policy decision which this Court cannot interfere with unless the exercise of such a discretion is outrageous or is exercised unlawfully, for instance on the basis of race, sex or religion.
...
Because the Lawyers Act 1986 does not give the Court any discretion under s 25 (3)(d) in a situation where the Attorney General, in its discretion, has refused to issue a certificate, I have no discretion to exercise and I consider that I would be in error if I step in an exercise a discretion which I do not have."
In that case, the Attorney General refused to issue a certificate certifying that the applicant was a "fit and proper person" to be admitted as a lawyer. After noting that, His Honour said this at page 473:-
"That discretion as I said, is vested in the Attorney General alone. Since he has exercised it and has refused to issue a certificate, how then could I go around this refusal without offending a discretionary power of the Attorney General? In my view, I can not challenge the Attorney General’s exercise of his discretion unless it can be established that he has acted unlawfully, maliciously or in excess of his jurisdiction."
The applicant in the above case, applied for a waiver of the requirement for a certification as to him being a "fit and proper person" under s. 25(3)(d) of the Act. Where such an application is made, the Supreme Court has held in the case of, Papua New Guinea Law Society –v- Martin Dennis McEniery [1993] PNGLR 76 at page 79 that: -
"The test to be applied is not "on the balance of convenience" but whether there has been substantial compliance with s. 25 of the Act. In this case Mr. McEniery, despite his other qualifications has only minimal post admission experience in the practice of law in a prescribed country, well short of the required period of three years. On any view, this could not be said to be substantial compliance with the legislation and, therefore, he is not qualified for admission as a lawyer in Papua New Guinea at this time."
As already noted, there is no issue on the applicant’s need to meet the first two requirements of academic and practice qualifications in the present case. The only issue is in relation to question of whether or not he is a "fit and proper person" to be admitted as lawyer. The Attorney General has issued a certificate in accordance with s. 25(3)(d). I have carefully considered what my brother, Sevua, J. has said in the application by Peter Norman Moore (supra) on the issue as quoted above. In so doing, I also carefully note the wording in s. 28 (1), which says: -
"The Court may, at any sitting, on motion, admit an applicant to practice as a lawyer if that applicant shows to the satisfaction of the Court that he possesses the required qualifications."
(Underlining mine)
The required qualifications are as provided for by s. 25 of the Act. As long as those three requirements are met, it seems, there is nothing preventing the Court from admitting an applicant to practice as a lawyer. That accords well in my view, with the general import of the Supreme Court decision in the Martin Denise McEniery (supra) case where the Supreme Court said, the appropriate test is "whether there is substantial compliance" with the requirements under s. 25 of the Act. Thus, in the context of a s. 25(3)(d) issue, there would be substantial compliance of the requirements of the Act if there were a certificate from the Attorney General certifying the applicant as a "fit and proper person". The only way to get around that is to show by appropriate evidence that, the certificate was obtained unlawfully, maliciously or in excess of jurisdiction to use the words of Sevua J in Peter Norman Moore (supra) case. I add that, if there is prove of the Attorney General taking into account irrelevant factors or failing to take into relevant factors before deciding to issue his certificate or that he was actuated by fraud or bias towards the applicant, only then, could one go behind the certificate of the Attorney General.
Counsel for the Law Society conceded that, they did not have any evidence or any basis whatsoever to show that the certificate the Attorney General gave on the 13th December 2000, was obtained unlawfully, malicious or in excess of the Attorney General’s jurisdiction or that the Attorney General took into account irrelevant factors and failed to take into account relevant factors or was actuated by fraud or bias toward the applicant. In other words, the Law Society failed to provide any basis for this Court to go behind the certificate that has been independently issued by the Attorney General. As was observed in the Peter Norman Moore application, the discretion whether or not to certify a person as a "fit and proper person" for the purposes of s. 25(3)(d) of the Act, is vested in the Attorney General. Its not a concurrent one and is one that is not open for the Court to ignore and go behind unless some good basis, for example fraud, bias, malice or in excess of jurisdiction or the like is established.
Whilst conceding that there is no basis to go behind the certificate of fitness issued by the Attorney General, the Law Society argues that the fact that the applicant has been found guilty for assault is sufficient to prevent the applicant from being admitted to practice as a lawyer. Counsel pointed out that, the legal profession is a noble one and that only people with good character or criminal records should be admitted to practice law. In essence, he argued that, it does not really matter whether there is a conviction or not as long as he has been found guilty and penalised for a criminal offence. That fact he submits, casts some doubt as to applicant being a "fit and proper person" to be admitted to practice law.
I have not been able to find any case, which has defined, or attempt to define the phrase "fit and proper person" within the meaning of s. 25(3)(d) of the Act. However, definitions or meanings given to that phrase in similar legislative provisions may be of assistance whilst noting that, the meaning may not be the same because of the different context and intent of the legislation concerned. Such a case is In re John Sifta [1975] PNGLR 435, where the applicant, John Sifta applied for registration as a dentist pursuant to s. 23(3) for the Medical Services Act 1965. That provision provided inter alia that, a person may be registered as a dentist if he is of good character or is otherwise a "fit and proper person" to be registered or provisionally registered as a dentist. Frost, CJ., considered the phrase "fit and proper person" and said this about that phrase, in the context of s. 23(3)(b) of the relevant Act at page 438 of the judgement:-
"... The words "fit and proper person" does not, in my opinion referred to the possession of qualifications; that is the subject exclusively covered by more or less 23(3)(b). There is no warrant whatever for the Board requiring, as it did, a current certificate of registration. As I said during the argument, the provision is directed to matters such as physical or mental defects or a sufficient knowledge of the English language. As no other consideration was put forward bearing upon the appellant’s fitness, in my opinion, the appellant showed sufficient compliance with s. 23(3)(a) so that possessing the presented qualifications he was entitled to be registered."
Another case is Costello v. Controller of Civil Aviation [1977] PNGLR 229. That case concerned s. 267 of the Civil Aviation Regulations 1973 which provided inter alia that, the Controller of Civil Aviation shall not refuse to grant a licence or certificate unless a number of factors existed. It then specified in relation to the issue of a licence or certificate that:-
"The applicant is not a "fit and proper person" to have the responsibilities and exercise and perform the functions and duties of a holder of the licence or certificate of which the application was made."
(Emphasis added)
In that case, the appellant was unable to meet or pass medical tests or requirements demonstrating his ability to perceive readily colours, the perception of which was necessary for the safe performance of his duties. The Controller of Civil Aviation therefore, refused to grant a licence to Mr. Costello on the basis that, he was not a "fit and proper person" to be issued a licence. In upholding that decision, the Court at pages 245 and 246 said: -
"I am of the opinion therefore that the Controller was justified in refusing to grant the licence sought and that this Court should also refuse to order the grant of such a licence.
I am also of the opinion that the applicant is not a "fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence for which the application was made.
I note in this regard the decision of the National Court (Frost, CJ) in re: Sifta [1975] PNGLR 435 at 438 in regard to a somewhat similar section in the Medical Services Act that the phrase "fit and proper person" may refer not to the possession of qualifications but to such matters as "physical or mental defects or a sufficient knowledge of the English language".
Taking the above as a guide for the purposes of the phrase "fit and proper person" within the meaning of s. 25(3)(d) of the Act in the present case, I am of the view that, that phrase does not concern the academic or practice qualifications, which are already specifically provided for by the earlier parts of s. 25. Instead, I am of the view that, this has to do with the character, reputation or standing of the person applying to be admitted as a lawyer. That question may be determined having regard to a number of factors. Without limiting the list I consider the following factors relevant:
Elaborating on these, let me say that, an applicant with a criminal record has the onus of showing that his conviction is not a serious one and do not and should not reflect on the legal profession, which he is seeking to join. The same would go for any disciplinary problem or record he may have and his general conduct and or attitude to respecting authority, the rule of law and law and order generally. As for his physical and mental condition, the applicant would also have the onus to show by appropriate say medical evidence that, he does not have any mental or physical condition that would interfere with the due and proper discharge of his duty has a lawyer. Further given that English is the official medium of communication both in government and in commerce, proficiency in that language is a necessity. Hence the applicant has to show also that he is proficient in that language in addition to meeting the other requirements. Finally, the certifying authority should take into account the country’s standing policy, if any, on the admission of lawyers. In respect of that, the applicant has the onus to show that admitting him to the practice of law will not contravene any such policy. These are necessary and important factors because of the very nature the legal profession is. The profession and hence the society expects the highest level of good conduct from lawyers. It would not be in the best interest of the profession and indeed the legislation to admit persons to practice law who have proven or shown themselves to be violent in nature or character, who have no respect for law and order and are untrustworthy or are of questionable nature or characteristics and do not have the necessary language skills to conduct themselves as a lawyers.
The power to make a decision as to whether a person is a fit and proper person to be admitted as a lawyer is vested in the Attorney General by virtue of s. 25(3)(d) of the Act. That discretion should be exercised after having regard to the above factors and taking into account all the factors that need to be taken, including any policy matters. Only if it is shown that, due to circumstances beyond the control of the applicant it is difficult to obtain such a certificate from the Attorney General and the case is proven to be one which requires a waiver of meeting that requirement, then the Court may assume that responsibility and determine the question of whether or not the applicant before it, is a "fit and proper person" to be admitted as a lawyer as did his Honour, Brown J. in In the Matter of the Lawyers Act and In the Matter of an Application by Egerton MacPherson Robb [1995] PNGLR 462 at 466. Once, the discretion vested in the Attorney General has already been exercised than as Sevua, J. said in the application of Peter Norman Moore (supra), the Court has no discretion to go behind the certificate. That is subject to the exceptions mentioned in that judgment and those mentioned above.
In this case, as I have already said, a certificate has been issued by the Attorney General in accordance with s. 25(3)(d) of the Act. Counsel for the Society concedes that, there is no basis within the meaning of the ruling in Peter Norman Moore case and as modified herein above, to go behind the certificate that has been issued. In the light of that, this Court is entitled to assume that all the factors that need to be taken into account before deciding in favour of the applicant being a "fit and proper person", has been taken into account by the Attorney General before issuing the certificate. I therefore, find that this Court has no jurisdiction or basis to go behind the certificate that has been issued.
Further, the Lawyers Admission Rules 1990, which has been enacted pursuant to s. 25(a) of the Act, provides in s. 2 that an application for admission to practice as a lawyer shall be made by way of a notice of motion supported by an affidavit from the applicant. Subsection 2 of that provision requires and affidavit setting out in brief, details of the applicant’s schooling, his work experience, his academic qualifications with copies of his degree, diploma or certificate and state whether the applicant has any criminal convictions. If he has any convictions, he is required to give details of those convictions.
If the legislature intended that all acts of criminal conduct whether a conviction has been recorded or not is to be taken into account, the word "convictions" in s. 2(2)(d) of the Admission Rules could not have been used and in its stead, words such as, "criminal conduct", could have been used. Thus, it follows that, an applicant is obliged only to disclose the number of criminal convictions if any, and provide the details of those convictions. Where he has no convictions, he is not obliged to disclose them.
In the case of a record of a criminal conviction, there is authority for the proposition that, the fact of conviction and sentence whilst of great importance is not decisive against an applicant as to the question of whether or not he should be admitted to practice. This was made clear by the Australian High Court judgement in Ziems –v- Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 283 at pages 287, 290, 297 and 299 as well as 308 per Fullagar, Kitto and Taylor JJ. That was in the context of a practicing lawyer who was convicted of manslaughter resulting from negligent driving after being hit on the head at a drunken brawl.
At page 288 of the judgement, Fullagar J., expressed the view in effect that, a conviction and sentence is not unchallengeable and conclusive of the ultimate issue. Then at page 290 of the judgement His Honour said:
"Personal misconduct, as distinct from professional misconduct may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practice as a barrister ... But the whole approach of a court to a case of misconduct must surely be very different from its approach to the case of professional misconduct. Generally speaking the latter must have a much more direct bearing on the question of a man’s fitness to practice then the former."
Kitto J., at page 299 express on his part the following view:-
"The conviction is of an offence the seriousness of which no one could doubt but the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister continuing a member of his profession. The conviction relates to an isolated occasion, and, considered by itself as it must be on this appeal, it does not warrant any conclusion as to the man’s general behaviour or inherent qualities. True, it is a conviction of a felony; but the fact that as a matter of technical classification it bears so ugly a name, ugly because the most infamous crimes are comprehended by it, ought to be disregarded, lest judgement be coloured and attention diverted from the true nature of the conviction. It is not a conviction of a premeditated crime. It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connexion with nor significance of any professional function. Such a conviction is not inconsistent with the previous possession of a deservedly high reputation, and, if the assumption be made that it hitherto the barrister in question is acceptable in the profession and of the character and conduct satisfying its requirements, I cannot think that, when he has undergone the punishment imposed upon him for one deplorable lapse of which he has been found guilty, any real difficulty will be felt, by his fellow barristers or by judges, in meeting with him and co-operating with him in the life and work of the bar."
Taylor, J., on his part expressed the view at page 302 of the judgement that, prove of the effect of a conviction and sentence without more does not make it inevitable that an order shall be made directing that the barrister’s name be removed from the roll of barristers. The vital question however, is not whether a practitioner has been convicted of an offence against a criminal law but whether his conduct as been such as to show that, he is unfit to remain a member of his profession.
Apparent from the judgement in the above case, is the fact that, a conviction and sentence does not automatically lead to disbarment and with necessary modifications, prevent an applicant for admission to be admitted to practice as a lawyer. Rather, the Court considering the question of disbarment or grant of admission has to inquire into the circumstances of each of the convictions and then ascertain whether or not, the misconduct is personal or professional in nature and whether, the conduct has any element of violence. If it is found to be professional than, that may form the basis for barring the lawyer concerned, if he is already a practicing lawyer or prevent the applicant from being admitted in the case of an application for admission to practice.
This is why in my view, there is no provision in the Act or the Admission Rules, barring a person from being admitted to practice as a lawyer because of criminal convictions or conduct. Instead, the requirement is for the applicant to disclose all of his convictions and the details of those convictions for consideration before determining whether he is a "fit and proper person" to be admitted to the practice of law.
Counsel for the applicant referred me to the case of Gamoga Karo v. The State [1981] PNGLR 443 in which Mr. Karo was convicted for dangerous driving causing death but that did not prevent Mr. Karo from being admitted to practice as a lawyer. That was because, the conviction concerned a case of dangerous driving causing death. The conduct was not deliberate or violent in nature, it was simply an accident. That case has to be distinguished with a conduct such as is the case in the present case, which involves the inflicting of physical harm to a female student, which was not an accident.
In our country, there are not many educated people and much more not having any or little knowledge about the law and its practice. Consequently, whatever lawyers do or say results in big impacts on the conduct of the general people. I therefore, do not consider it appropriate that the test adopted in the Ziems case appropriate in the particular circumstances in which our legal profession exists and functions. Consequently, I consider that the test should really be whether the conduct in question does have any impact or reflection on the legal profession and its practice. If that question is answered in the affirmative, the application for certification as a "fit and proper person" or admission should be declined or, if the person concerned is a practicing lawyer, he should be disbarred.
In the present case, the applicant has no prior convictions. The District Court which dealt with the assault charge against him found him guilty and in the exercise of its discretion, decided not to enter a conviction and issued a number of orders including an order for payment of compensation to the victim of the offence. That offence was committed when he was in his final year of law studies at the UPNG. Accordingly, he was not yet a practicing lawyer at the time of the commission of that offence. Besides, that conduct was more personal in nature rather than a professional misconduct. Nevertheless, I find the conduct unacceptable for a final year law student who was just at the verges of becoming a lawyer subject to meeting postgraduate requirements. It did not reflect well on a person who was about to become a lawyer. Admitting such persons to the practice of law in the circumstances of our country, certainly sends the wrong message that, lawyers or law students are above the law and that, engaging in such conduct can not operate against an admission to practice law. This leaves much room or a desire and respect for the noble legal profession it is and the perception that lawyers are duty bound to uphold the rule of law. I am thus of the view that, these kinds of people should not be admitted to practice law.
Nevertheless, in the present case, a certificate under s. 25(3)(d) of the Act has already been given by the Attorney General. That has conclusively, determined the issue of, whether or not, the applicant is a "fit and proper person". The Law Society concedes it has no basis to challenge or provide the basis for this court to go behind the certificate from the Attorney General. In the circumstances, I am left with only one conclusion and that is, there has been a substantial compliance of the requirements for admission as a lawyer under s. 25 of the Act. Accordingly, the applicant has to be granted.
On the basis of these findings, I grant the application and order that Godwin Haumu be admitted to practice as a lawyer pursuant to s. 28(1) of the Lawyers Act 1986 as amended.
In passing however, may I take the opportunity to warn the applicant that the Law Society and the country expects the highest of conduct on the part of lawyers. They should therefore, be above reproach and refrain from taking matters into their own hands. They should always endeavour to uphold the rule of law and refrain from conduct, which may fail to show any respect for the rule of law. As a matter of policy, it is open to the Society to determine what is acceptable and what is unacceptable conduct on the part of lawyers and they have the authority to determine whether or not a lawyer should be allowed to continue to practice law or not. It will therefore, be in the best interest of the applicant to ensure that he conducts beyond reproach and ensure to conduct both his personal and professional life in such a manner that does not put into question or doubt is professional integrity and his personal character and reputation as a lawyer.
Our Society looks upon lawyers with highest regard and that must be returned with appropriate conduct.
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Lawyer for the Applicant: Harricknen Lawyers
Lawyer for the PNG Law Society: Turai Elemi Lawyers
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URL: http://www.paclii.org/pg/cases/PGNC/2001/86.html