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Karl v Public Prosecutor [1982] PGNC 8; N388(L) (30 September 1982)

N388(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

S.C.A. 23 OF 1981

BETWEEN:

SIMON KARL
APPLICANT

AND:

THE PUBLIC PROSECUTOR
RESPONDENT

Mendi & Waigani: Pratt J
18 June 1982; 30 September 1982

PRATT J: This is a matter of an application by one SIMON KARL for a direction from the National Court to the Public Solicitor to grant legal aid.

The applicant was convicted after trial on the 18th September 1981 by the National Court at Mendi of stealing as a servant the sum of K11,010.55 and was sentenced to a period of imprisonment, namely four years. In those proceedings he was represented by a lawyer from the Public Solicitor’s Office. During my own circuit to Mendi in June this year, the prisoner made application under s.177(2)&(3) of the Constitution for a direction that the Public Solicitor should provide legal aid for the purpose of conducting an appeal to the Supreme Court against conviction and sentence, or sentence alone. The relevant parts of the Constitution read:

"177. ...

(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) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court;

...

(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)."

During my stay in Mendi it was impossible to obtain any information from the Public Solicitor due to a series of unfortunate problems in transport and communication. Some time after leaving Mendi I did receive a report from the Public Solicitor and in accordance with my intimation to the applicant, I arranged for this report to be shown to him through a visiting justice from Mt. Hagen, his observations and comments recorded, and then transmitted back to me in Port Moresby. From the material made available, it appears that the counsel from the Public Solicitor’s Office appearing at the trial, recommended an appeal. The particular counsel involved could not even organize that efficiently and it was necessary for another officer to apply at Waigani for an extension of time. During this period a copy of the trial judge’s notes was obtained and two experienced officers examined the matter before recommending to the Public Solicitor that an appeal was without merit. After bringing his own mind to bear on the matter, the Public Solicitor refused legal representation and on the 30th November 1981 advised his deputy in Mt. Hagen to this effect.

The applicant’s comments, after reading the material furnished to me by the Public Solicitor, merely confirm that refusal of legal aid was transmitted to him on the 16th December 1981.

It is clear therefore that a considerable amount of time and effort has been expended by the Public Solicitor’s Office in analysing the case and assessing the merits of the application. Under s.177(2) (a), the Public Solicitor is subject to a mandatory direction provided the person qualifies under sub-section (4). Apart from that, he must organize his staff and facilities in accordance with an order of priorities which has yet to be made the subject of an Act of Parliament. In my view it would be a clear breach of his constitutional duty to provide legal assistance in a matter which he considered to be without merit. It may be that he is wrong on some occasions but that does not detract from the fact that he has fulfilled his professional and constitutional responsibilities. He has come to a decision both as a lawyer and as a constitutional officeholder having observed all the ethical and moral obligations which attend the performance of those functions. What the Public Solicitor has done is to refuse representation on appeal. That does not stop the applicant from lodging his own appeal though the time factor might now mean an application for review under s.155(4) of the Constitution as covered in the Avia Aihi case^[1]. Much, if not most, of the delay has not been the fault of the applicant. He has been the subject of an unfortunate sequence of events. In my view the Public Solicitor has in fact granted the applicant a great deal of aid, advice and assistance already. The matter really reduces itself to the situation where the applicant does not like the advice he has received. This is not uncommon in any legal situation.

If the Public Solicitor had acted arbitrarily, for improper motives or on irrelevant material, in short if he had acted unprofessionally, then there would be a sound basis for granting a direction under s.177(3). Such has not been shown to be the case in this application. Indeed the matter has much in common with application for direction in the reported case Evertz v. The State^[2], and I have gained a great deal of assistance from the judgment of Mr Justice Wilson therein. By way of summary of my own views, I adopt and reiterate what His Honour said at pp.179-180 of that report:

"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." (And I would add here the words, "or sentence".)

"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." (Again I add the words "or sentence" to that clause.)

"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 ...
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 the application by Mr Simon Karl is refused. As I am by force of circumstance delivering this judgment in open court at Port Moresby, I shall ensure that the decision is transmitted to Mr Karl together with the reasons for my decision as soon as possible. I understand that he has been transferred from the Corrective Institution at Mendi to the Corrective Institution at Mt. Hagen.

At Mendi

Applicant in person
No appearance for respondent

^[1] Unreported Supreme Court Judgment SC195 dated 27th March 1981
^[2] [1979] PNGLR 174