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Evertz v The State of Papua New Guinea [1979] PNGLR 174 (8 June 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 174 - Mathias Peter Joseph Evertz v The State of Papua New Guinea 

[1979] PNGLR 174

N193

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MATHIAS PETER JOSEPH EVERTZ

V

THE STATE OF PAPUA NEW GUINEA

Waigani

Wilson J

28 May 1979

4 June 1979

8 June 1979

HUMAN RIGHTS - Protection of basic rights - Legal aid - Application by an appellant for a direction that the Public Solicitor provide him with legal assistance on an appeal to the Supreme Court against conviction in the National Court - Whether a refusal by the Public Solicitor to provide legal aid is a condition precedent to application under s. 177(3) of the Constitution - Nature of the discretion vested in the Supreme Court and the National Court to give the Public Solicitor a direction to provide legal aid under s. 177(2)(b) considered - Circumstances in which the discretion may be exercised considered - Constitution of the Independent State of Papua New Guinea, ss. 177(2)(b) and 177(3).

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Protection of basic rights - Right to legal aid on appeal against conviction - Constitution, ss. 177(2)(b) and 177(3).

Section 177(3) of the Constitution of the Independent State of Papua New Guinea provides:

“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).”

Section 177(2)(b) of the Constitution provides:

“(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: ...

(b)      notwithstanding the provisions of Section 175(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.”

On an application by a person wishing to appeal against conviction on charges of stealing as a servant, 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,

Held:

(1)      A condition precedent to an application under s. 177(3) of the Constitution is the refusal of the Public Solicitor to provide legal aid.

(2)      A person cannot be “aggrieved” by a refusal to provide legal aid where he is unwilling or has refused to accept the advice of the Public Solicitor because he does not find that advice acceptable to him.

(3)      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), 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.

(4)      In the circumstances the application should be refused.

Application

This was an application by an appellant for a direction, pursuant to s. 177(2(b) of the Constitution of the Independent State of Papua New Guinea that the Public Solicitor provide the appellant with legal aid on an appeal to the Supreme Court against conviction in the National Court.

Counsel

The applicant, in person.

K. A. Wilson, for the State.

8 June 1979

WILSON J: In the National Goals and Directive Principles that underlie the Constitution of the Independent State of Papua New Guinea the people acknowledged that, subject to any restrictions imposed by law on non-citizens, all persons in the country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, place of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to a number of basic rights including inter alia the protection of the law, and accordingly included in the Constitution provisions designed to afford protection to those rights and freedoms subject to certain limitations.

In s. 37 of the Constitution what is meant by the protection of the law is spelt out.

Sub-section (1) of s. 37 provides:

“(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.”

Sub-section (3) of s. 37 provides:

“(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.”

Sub-section (4) of s. 37 provides:

“(4)    A person charged with an offence:

(a)      shall be presumed innocent until proved guilty according to law, ...; and

(b)      ...

(c)      shall be given adequate time and facilities for the preparation of his defence; and

(d)      ...

(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)      ...”

Sub-section (15) of s. 37 provides:

“(15)   Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.”

The applicant in this application before me was charged on indictment with three counts of “stealing as a servant” involving the theft of K8,807.36. He was represented by a firm of private solicitors, who briefed a Sydney barrister to appear as counsel for him at his trial. It is apparent to me (and it has not been suggested to the contrary) that the applicant was entitled to receive, and did receive, the basic right, viz. the protection of the law, and, as a person charged with an offence, was (subject to his right of appeal) afforded a fair hearing within a reasonable time by an independent and impartial court, viz. the National Court sitting at Lae presided over by the Deputy Chief Justice. The applicant was permitted to defend himself before that court at his own expense by a legal representative of his own choice and, following his conviction and sentence on 17th November, 1977, was entitled to have his conviction reviewed by the Supreme Court according to law. It will be seen therefore that the applicant’s fundamental rights were protected at least up until the time when he purported to institute proceedings to have his conviction reviewed by the Supreme Court pursuant to the provisions of the Supreme Court Act 1975 relating to appeals in criminal cases.

Following his conviction on 17th November, 1977, the applicant, as I have said, purported to have his conviction reviewed by the Supreme Court, and, to that end, had prepared with the assistance of the same private firm of solicitors a notice of appeal. On 23rd December, 1977, notice of appeal was given, i.e. within the time limit provided by s. 27 of the Supreme Court Act 1975, viz. within forty days after the date of conviction, and it would seem therefore that his appeal against his conviction as a matter of right (i.e. his appeal on any ground which involves a question or questions of law or a question of mixed law and fact, but not on any ground which involves a question or questions of fact alone) was properly instituted. (See s. 4 and s. 21 of the Supreme Court Act 1975.) I observe in passing that each of the first three grounds of appeal as set out in the notice of appeal would seem to involve questions of fact alone. It is noted that the applicant did not have prepared on his behalf a notice of application for leave to appeal or an application for an extension of time within which to give notice of an application for leave to appeal. Both the time within which such a notice of an application for leave to appeal may be given, i.e. within forty days after the date of conviction (see s. 27(1) of the Supreme Court Act 1975) and the time within which an application for an extension of time within which to give notice of an application for leave to appeal, i.e. within forty days after the date of conviction (see s. 27(2) of the Supreme Court Act 1975) have expired. It is now some eighteen months after the date of conviction and, to this date, neither a notice of an application for leave to appeal has been given nor has an application for an extension of time within which to give such a notice been made.

Although I need not decide the point (and I expressly refrain from deciding it), it must be said that it is at least arguable that the applicant is barred by the statutory time limits enacted in the Supreme Court Act 1975 from having his conviction reviewed by the Supreme Court on any question of fact alone. An appeal lies to the Supreme Court from a conviction in the National Court without the leave of the Supreme Court on a question of law or on a question of mixed fact and law (see s. 4 and s. 21 of the Supreme Court Act 1975).

Some time after the 23rd December, 1977, (it is not clear to me precisely when, although the applicant suggested that it was in about May 1978), the applicant’s solicitors ceased to act for the applicant (apparently because of some “difficulties regarding future costs”) and ever since he claims he has been trying to to obtain legal assistance from the Public Solicitor upon the ground that he has been without means and in need of the Public Solicitor’s help.

For the purpose of this application it is assumed (and conceded by the Public Solicitor) that the applicant is without means and is, by virtue of the fact that he is in custody undergoing sentence, in need of the Public Solicitor’s help. The applicant claims (without justification, in my opinion, as will subsequently appear) that legal aid has been denied to him.

I have made these observations and recited this history because it is important to understand the background to the present application.

This application was referred to me as a judge of the Supreme Court by the Supreme Court constituted of three judges on Monday, 28th May, 1979, at which time the applicant’s appeal was pending before the Supreme Court. The application was made by the applicant in person just as his appeal was about to be heard. The applicant seeks to persuade me to direct the Public Solicitor to provide him with legal aid, advice and assistance incidental to his appeal. The applicant bases his application on two grounds: first, on s. 177(3) of the Constitution, and, secondly and in the alternative, on s. 177(2)(b) of the Constitution. Section 177 deals inter alia with the functions of the Public Solicitor. Section 177(3) of the Constitution provides:

“(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).”

The Supreme Court and the National Court are hereby constituted administrative appeals tribunals. Section 177(2)(b) of the Constitution provides:

“(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)      ...

(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.”

There is no sound basis upon which I could grant this application on the first ground, for it appears that the Public Solicitor has not refused to provide legal aid to the applicant. Indeed, he provided a considerable amount of legal aid — “far-ranging” would be an apt description — in the form of investigation, research and legal advice in the period from the date when the applicant’s former solicitors ceased to act for him until the present time. In the past two weeks, Mr. Wilson has, at my request, carefully read and considered the transcript of the evidence at the trial, the exhibits and the applicant’s letter to the Justices of the Supreme Court dated 16th May, 1979, in which the applicant purports to set out his grievances. The merits of the appeal have been fully examined. It would not be right to disclose in this judgment at this stage the nature of the legal advice given by the Public Solicitor to the applicant, although it was disclosed to me during the hearing of this application. In the event of this judgment of mine being reported, it would then be appropriate to disclose the nature of that advice provided that, in the meantime, the applicant’s appeal had been heard and determined and no prejudice to his interests would be likely to arise. Suffice it to say now that I am satisfied that officers of the Public Solicitor’s office (and Mr. Wilson in particular) have discharged their professional duty with diligence, sympathy for the applicant’s position, and in the best traditions of the Public Solicitor’s office. In this context I remind myself not only that the Public Solicitor and his legal staff, as legal practitioners, are officers of the Court but also that the Public Solicitor is a Law Officer of Papua New Guinea, (see s. 156 of the Constitution), is independent (i.e. subject to s. 177(2) of the Constitution, he is not subject to direction or control by any person or authority in the performance of his functions under the Constitution), and is a constitutional office-holder (see s. 221 of the Constitution). The applicant has been unwilling (or has refused) to accept the advice of the Public Solicitor. Whilst he may be aggrieved by the legal aid he received in the sense that the advice he has received does not give him any joy, it cannot be said that he is aggrieved “by a refusal ... to provide legal aid”. Accordingly, the application based on the first ground must fail.

It is open to me to grant this application on the second ground. As I have already indicated it is assumed (and quite properly conceded by the Public Solicitor) that the applicant is without means and is, by virtue of the fact that he is in custody undergoing sentence, “in need of (the Public Solicitor’s) help” as far as his appeal is concerned. Although s. 177(2)(b) vests in both the Supreme Court and the National Court a wide discretion regarding the giving of directions to the Public Solicitor, such a 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[cci]¹ per Starke J. [a statement which he repeated in Cranssen v. The King[ccii]²].) It must be exercised “as justice and common-sense demand”. (Commissioners of Inland Revenue v. Joicey (No. 1)[cciii]³.) Although the jurisdiction of the Supreme Court in this area is conferred in unlimited terms, it should nevertheless 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.

In exercising my discretion I have taken into account the following facts and circumstances:

1.       Legal advice (which I have no reason to suppose was wrong) was given by the Public Solicitor to the applicant.

2.       The Constitution does not guarantee any right in a convicted person to legal assistance on an appeal against conviction.

3.       There is no rule of law or rule of practice to the effect that convicted persons should be entitled to receive legal assistance for the purposes of having their appeals against conviction prepared and argued for them.

4.       The Court should be slow to intervene in the area of the 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.

5.       The Public Solicitor has limited resources with which to discharge his functions and is entitled to determine an order of priorities for the expenditure of such resources. I was informed during the hearing of this application that the Public Solicitor is presently giving priority (and rightly so) to the defence of persons charged on indictment in the National Court. Incidentally, I was distressed to learn that, on account of the strain on existing resources, the Public Solicitor from 1st June, 1979, is refusing all legal aid in civil matters. That being so, I feel bound to observe that Papua New Guinea is likely to come into some criticism, both from within and internationally, should legal aid services be so restricted indefinitely. The extent to which a nation provides legal aid for its needy citizens is a measure of its true attitude to the preservation of basic human rights and is therefore a measure of its integrity as a nation.

6.       There is an absence of substantial reasons or special circumstances which, in the interests of justice, would require this Court to direct that legal assistance be given.

For these reasons this application will be refused. No direction to the Public Solicitor will be given.

Application refused.

Mathias Peter Joseph Evertz: in person.

Solicitor for the State: M. Kapi, Public Solicitor.

[cci](1936) 55 C.L.R. 499, at p. 503.

[ccii][1936] HCA 42; (1936) 55 C.L.R. 509, at p. 513.

[cciii][1912] UKLawRpKQB 180; [1913] 1 K.B. 445, at pp. 454-456.