N10291

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1029 OF 2019

THE STATE

V

ROBERT AGEN
(No 4)

Waigani: Ganaii, AJ.
2022: 13th, 25th, 26th, April, 05th May

CRIMINAL LAW – Procedure - Application seeking orders to cease to act – Professional Conduct Rules – National Court Rules 

Cases Cited 
Nibabe v Soli [2017] PGNC 232; N6886

Counsel
Ms M Tamate, for the State
Mr J Sebby, 	for the Defendant

RULING ON AN APPLICATION TO FILE A NOTICE OF CEASING TO ACT 
05th May, 2022 
1.     GANAII, AJ: This is a ruling on an application by counsel for the accused, Mr Sebby, seeking orders for Joppo Lawyers 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. 
Background

2.	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.

3.	State opened its case and after calling its first witness, the complainant who gave sworn oral testimony in examination in chief, the matter was adjourned to the next sitting day for trial to continue. The matter returned to Court for defence counsel Mr Sebby to cross-examine the State witness. The State Prosecutor informed the Court that the state witness was still under oath and was ready to be recalled into the witness box for cross-examination. 
4.	Mr Sebby, however, was not in appearance. Counsel Mr John Napu appeared instead and informed the Court that he would be moving a motion on behalf of Mr Sebby seeking orders for Mr Sebby to cease to act for the accused and that he would act for the accused.  Mr John Napu relied on an affidavit sworn and filed by Mr John Sebby and a Notice of Ceasing to Act. These documents were short served on the State prosecutor. The essence of the contents of Mr Sebby’s affidavit is that Mr Sebby had other client’s matters to attend to in another province and would like to cease to act for the accused to concentrate on those matters.  
5.	Mr Napu attempted to present the Notice of Ceasing to Act to Court when the State raised objections. I heard counsels on whether it was proper to allow the motion for ceasing to act to be received and heard and I reserved to today for a ruling. 
Submissions

6. 	Mr Napu submitted that there had been a change of lawyers and Mr John Sebby had ceased to act for the accused. He submitted that he (Mr Napu) will now be acting for the accused, however, he needed time to be ready to act for the accused in this criminal trial. Mr Napu argued that the right of the accused to have a lawyer of his choice is accorded to him under section 42 (2) of the Constitution and he must be given the opportunity to exercise this right.
7.	Mr Napu argued that the accused is permitted by s 42 (2) (b) of the Constitution to have a lawyer of his choice represent him at any time. He relied on the cases of State v Peter [1983] N438, State v Wic Kor [1983] PNGLR  24 and State v Konts Kot [1987] N623.
8. 	Mr Napu argued further that in criminal matters, the accused right is accorded greater preponderance and so long the Court is satisfied that the accused is accorded those rights, the interest of justice is deemed served. Case of State v Peter (supra). 
9.	Counsel further submitted that the Court must make judicial adjustments to accord the right of accused, case of Peter (supra). The accused has a right to change lawyers at any time and he must be afforded that right. If accepted, Mr Napu, asks for a further 2 weeks for the accused to speak to a lawyer of his choice.  
10.	Mr Napu argued that principally, that the accused is entitled to a lawyer of his choice, which is a fundamental right accorded to him in recognition of the accused’s person right to full protection of the law, and as guaranteed under s 37 (4) (e) of the Constitution. 
11.	Section 37 (4) (e) of the Constitution is in the following terms: 
“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 

(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”.
State’s submissions

12.	State objected to the Court accepting the motion and hearing it on the following basis:
1)	That the Notice of Ceasing to Act is not properly before the Court. The 
applicant has not complied with the rules for filing of a Notice of ceasing to act.  
 
2)	Mr Sebby is the lawyer on record for the accused by virtue of s 37 (4) (e) 
of the Constitution and by virtue of his filing of his Notice of appearance. The Lawyers Professional Conduct Rules(PCR) and the National Court Rules (NCR) do come into play.

13.	State prosecutor submitted that pursuant to s15 of the PCR, which relate to lawyers conduct during court proceedings, ss (15) (b), provides that a lawyer shall withdraw without jeopardising his client’s interest. Section 16 ss (6), says a defending lawyer shall not absent himself unless there were exceptional circumstances that he could not have reasonably foreseen; or he had obtained the consent of another lawyer or has there is a competent counsel who can take his place. 
14.	Further, State prosecutor submitted that pursuant to s 16 ss (7), a defending lawyer in a criminal case is entitled to withdraw from the case if during the course of the trial and prior to final sentence, the defendant absconds; or prior to or during the course of the trial, the defendant refuses to accept the jurisdiction of the Court.

15.	Section 19 ss 3 of PCR is subjected to ss 14 (3) and 18 (4) of the PCR and the NCR and Practice Directions. It states that a lawyer may withdraw at any time provided the withdrawal will not cause significant harm to the client and the client is fully informed of the consequences if he agrees to the lawyer ceasing to act for him. At sub para (h), the Rules states that a lawyer may withdraw only upon leave of court provided he takes reasonable care to avoid foreseeable harm to his client. He must give due notice to his client for substitution of a new lawyer so that the accused can cooperate and work well with the new lawyer. 

16.	State submitted that Mr Sebby had not complied with these requirements of the rules when he short served his affidavit and notice of motion on the State and the accused. 
17.	In a mediation case of Nibabe v Soli [2017] PGNC 232; N6886 (25 September 2017), at para 22-23, the issue was on conduct of lawyers in representing their clients. The Court said the applicable rules, are Order 2 r 39 sub r 1 and 2 and Rule 40 of the NCR. 

18.	The Court in the Nibabe case said the two prerequisites are: with leave of court and only when proper 7 days’ notice is given to a client. In that case, where no leave was sought, and where there was no notice of ceasing to act filed with supporting affidavit, the Court found that the accused’s lawyer failed to comply with the rules and therefore, the notice was deemed defective, and of no effect. Hence, the lawyer who filed a Notice of appearance were deemed to be lawyers on records. 

19.	Here where there is insufficient evidence of proper compliance of the rules, Joppo Lawyers would still be deemed to be counsel on records for the accused. 
20.	States’ objection is based on the grounds that this trial is on foot, the star witness for the state is present and ready to be cross-examined by the accused’s counsel.   It is therefore, improper for counsel to file a notice of ceasing to act in the middle of the state witness evidence. The proper course that should have been taken is to allow cross-examination to end and then seek to cease to act. 
21.	In the interest of justice, State submitted that Mr Sebby continues as counsel to completion of the state witness evidence. 
22.	State further submitted that Mr Sebby’s affidavit does not entirely disclose that it was Mr. Agen’s choice that Mr Sebby will cease to act for him, or that Mr Sebby had given him ample notice.  There is also no evidence that Mr Agen chose the services of Mr Napu as his new lawyer. 
23.	When the Court enquired with the accused from the accused’s dock, it appeared that Mr Agen was not aware of the Notice of Ceasing to act, nor of Mr Napu acting for him. He however, said he accepted Mr Sebby’s reasons about attending to other urgent cases in the Highlands and he agreed to allow Mr Napu to act for him. It is clear that the ceasing of Mr Sebby to act for Mr Agen was not based on any communications with Mr Agen, nor is the representation of Mr Agen by the new lawyer, Mr Napu was made known to him. 
24.	The Court is reminded of the prejudicial effect of trial on the state’s position if the court is to accept, hear and grant the application. This matter cannot be prolonged any further.  

Reply by Mr Napu 

25.	Mr Napu submitted in response that the PCR does not bind the accused. It does not affect his right to fair trial, and right to a lawyer of his choice. Section 42 (2) (b) (c)  Constitution rights supersede the rules. 
Issues

26.	The main issue is whether the Court should grant the orders for Mr Sebby to cease to act for the accused. The sub issues are firstly whether the provisions of the PCR and the NCR on filing of notices of ceasing to act do come into play and secondly, whether the notice of motion is properly before the Court?
Law

27. 	Order 2 of the National Court Rules 1983 do apply and is in the following terms: 
“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”.
28.	The Lawyers Professional Conduct Rules 1989 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

29.	At the outset, this Court considers that the right of the accused to have a lawyer of his choice to represent him in his case before the Court is constitutionally based and must be accorded to the accused at all times.  The argument by Mr Napu on this is proper.

30.	The main issue is whether the Court should grant orders for Mr Sebby to cease to act for the accused. Based on the State’s objections, the two sub issues are firstly whether the provisions of the PCR and the NCR on filing of notices of ceasing to act do come into play and secondly, whether the notice of motion is properly before the Court?

31.	On the issues before this court, with due respect, the cases relied on by Mr Napu have no relevance. Those cases relate to admissibility of records of interview and compensation for being in custody. 

Whether the Professional Conduct Rules and the National Court Rules do come into play?

32.	On the first issue of whether the PCR and the NCR do come into play in the circumstance of this case, I answer in the positive.
33.	Rights of persons arrested and charged like any other rights come with responsibilities. Where an accused is appearing before a court of competent jurisdiction in a trial, what he does and what his lawyers do must be guided by rules of practice for all good purpose and intent. 

34.	Both the PCR and the NCR provide a guide on the issue of whether Mr Sebby, 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. 
35.	I am minded of the Constitutional right of the accused, that he is entitled to a lawyer of his choice at all times. However, in the exercise of this right, rules exist that provide guidance to ensure fairness to all parties and to the Court process. Hence, more particularly where it concerns applications by counsels who cease to act for an accused, who has been charged with a very serious indictable offence, the conduct of lawyers must be subjected to compliance of these rules and procedures so that the rights of the accused are safeguarded. 
Whether the notice of motion is properly before the Court?

36.	On the issue of whether the motion is properly before the Court, I am guided by the Rules referred to. Due to lack of evidence before me and lack of proper submissions to assist the court, I am not satisfied that Mr Sebby 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. He had failed to give sufficient notice to, the accused, to the State, and the court. He has failed to obey the rules by not giving sufficient notice to the accused and the State. 
37.	In view of the accused’s own response from the defendant’s dock to the Court’s questions, it appeared the accused was not aware of Mr Sebby’s motion to seek orders to cease to act for him. I am not satisfied that the accused had been given ample time to consider the motion and speak to a lawyer of his choice. 
38.	I do note from Mr Agen’s responses that due to the fact that Mr Sebby had indicated that he wishes to attend to other urgent matters, he had not shown an interest in Mr Agen’s trial and may not represent him fairly. On that basis, Mr Agen agreed for Mr Napu to act for him since Mr Napu is now appearing. In my view, that decision would not have been based on proper considerations as it appears that the accused had not had ample time to consider his options. 

39.	However, given that it was Mr Agen’s choice, that counsel Mr Napu will act for him, and in light of Mr Sebby’s statement which is deduced to mean that he will not be giving priority to this trial, Mr Agen’ oral application will be considered as a separate matter.  I am of the view that Mr Sebby had demonstrated lack of interest in the accused’s criminal matter and may not represent him fairly. I will give due consideration to the fact that Mr Agen’s lawyer of choice is Mr Napu. Mr Napu is ready to prosecute and I will make appropriate orders in this circumstance, in the exercise of this Court’s powers under s 155 (4) of the Constitution in a separate matter.  

40.	Returning to Mr Sebby’s motion, applying to get off the Court’s record as lawyer representing an accused person is not a matter that should be taken lightly. In my view, given the objectives of the PCR and the NCR, lawyers seeking to be removed as counsels on the records of the Court will have to provide a strong justification for getting off the record. They must demonstrate that their client’s case or trial in a criminal proceeding is not affected in a major way or if it is affected in some way that it can be promptly remedied. They must also show compliance with all relevant rules and regulations. 
41.	The combined effect of section 13 ss 5 and section 16 of the PCR is that a lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client. This should mean that once a lawyer has undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship.
42.	The Rules provide helpful guidance as to the manner in which a lawyer should pursue getting off the record. The lawyer should ensure that reasonable notice is provided to the client unless the client cannot be located after reasonable efforts.”Timing of the motion is critical. While there are no hard and fast rules, a lawyer should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.
43.	Depending on the complexity of the proceeding, generally, what is challenging for a person charged with serious indictable offences is they may face serious consequences like imprisonment, and counsel has a huge responsibility to stay on the case till completed. 
44.	Even if the lawyer has good reason to be removed from the record, the Court may decline to make the order if the case is at a critical stage in the proceeding, or at a time when withdrawal may put the client at a significant disadvantage.
45.	The process for changing lawyers under the PCR and the NCR in my respectful view are relevant and applicable in so far as their objectives are concerned and do come into play in this instant matter. Compliance of them is necessary.
46.	In the instant matter, the Rules are aimed at ensuring that the accused person in this criminal trial is not disadvantaged by the decision of his lawyer on record to stop to act for him. These Rules ensure that a lawyer can be taken off the record only upon the satisfaction of the Court that the accused is aware and has been given ample notice to respond and to seek the services of a new and competent lawyer. Further, these provisions are aimed at ensuring that the Court is satisfied that the accused in this criminal trial understands fully the consequences that will flow as a result of change of lawyers. 
47.	Mr Sebby ought to have given proper assistance to the accused, by giving him ample notice to find a lawyer of his choice, so that if there are any problems arising, they both will have an opportunity to remedy the problem.
48.	Mr Sebby’s action of not informing his client or the State when he failed to give seven clear days of notice, failed to seek leave of court, absented himself from court and when he did not represent the accused in court are serious breaches of the Rules, pertaining to his duty as counsel and officer of the Court.  
49.	Mr Sebby’s failure to inform the accused of the course he was taking breaches s 13 ss 5 of the PCR. Section 13 ss 5 is in the following terms:

“Section 13 ss (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”.

50.	In the absence of any evidence, I am not satisfied that Mr Sebby had conducted himself in a manner that served the interests of his client. He had not prior to today, inform Mr Agen of the facts or omissions he relied on to form the basis for him to cease to act. Further, Mr Sebby has not advised Mr Agen of the consequences and the remedial of his actions in ceasing to act. 
51.	As counsel representing an accused person, Mr Sebby has also failed to comply with s 16 of the Rules by absenting himself from trial where there were no exceptional circumstances, and where the criminal trial was at a significant stage where the Defence must put its case to the state witness in cross-examination. 

52.	Whilst this Court notes that Mr Sebby had informed and obtained the consent of another instructing lawyer, ie Mr Napu to representative the accused, Mr Agen was not aware of this until the day the motion was introduced. 

53.	Finally, Mr Sebby had failed to have a competent counsel from his firm, who is well informed about the case to take his place and be able to deal with any questions which might reasonably be expected to arise in this trial. I am not satisfied that these circumstances were reasonably unforeseen, as Mr Sebby has been in the practice of criminal law for many years and understands that if exceptional circumstance rises, so that he may not be able to represent the accused, another competent lawyer from his firm should stand ready to step in, without jeopardising the accused’s case. 

54.	The situation caused by Mr Sebby’s unpreparedness is causing undue delay in the progress of this trial. It is preventing the accused’s case to be dealt with expeditiously and is therefore not in his client’s best interest. It is also unfair on the State, whose witness is still under oath, in the witness box ready for cross-examination. 

55.	I uphold the objection that the motion has not satisfied the requirements of the law.

Conclusion

56.	This Court reaches the conclusion that provisions of the Professional Conduct Rules and the National Court Rules relating to filing of notice of ceasing to act do apply. Where Mr Sebby has not complied with the rules in serving the notice of motion within seven clear days, the notice of motion has not come properly before the Court this Court.  The Court will not grant the orders for Mr Sebby to cease to act for the accused. 
Orders

57.	I make these orders.
1.	The application by Mr Sebby of Joppo Lawyers seeking orders to cease to act for the accused is refused for non-compliance with service requirements.

2.	Joppo Lawyers will continue to represent the accused.

3.	The prosecution witness will be called for cross-examination.

Orders accordingly.

Public Prosecutor: 	Lawyers for the State
Joppo Lawyers: 	Lawyers for the Defendant