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Yao v The State [1990] PGSC 1; SC381 (2 March 1990)

Unreported Supreme Court Decisions

SC381

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO 26 OF 1987
BETWEEN
KAMBERE YAO AND ANOTHER
APPELLANT
AND
THE STATE
RESPONDENT

Waigani

Woods Hinchliffe Brunton JJ
2 March 1990

CRIMINAL LAW - Appeal - Appellants not present in person - Supreme Court Act s 9 - Specific instruction given to counsel of appellants desire to be present in court - Non-attendance of appellants caused by their lawyers - Delay - Application for adjournment - Costs discussed.

Held

Adjournment granted to allow attendance of appellants at the hearing of the appeal. In the circumstances of a default by lawyers employed by a government body costs were inappropriate, and the matter of default should be referred to the Lawyers Statutory Committee.

Statute

Supreme Court Act s 9.

Counsel

E Kariko for the Appellants

R Auka for the State

WOODS HINCHLIFFE BRUNTON JJ: Mr. Kariko for the Appellant applied for an adjournment of this appeal on the basis that the appeal could not go ahead because the appellants had sent him written instructions that they wished to be in court for the hearing, and that in those circumstances the Supreme Court Act s 9 prevented the appeal from proceeding without them.

The Supreme Court Act s. 9 provides;

“9. Attendance of Appellant in Custody

Except with the consent of the appellant, the hearing of an appeal to the Supreme Court shall not take place in the absence in custody of the appellant unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the Court orders him to be removed and the hearing of the appeal to continue in his absence.”

In a criminal appeal where appellants are in custody and have given notice to their lawyers that they wish to attend the hearing of the appeal, then the words of s 9 give the Court no option but to adjourn the appeal until the appellants case be brought before the Court.

Accordingly, the Court orders that an adjournment be granted in this appeal to allow the appellants to be present in court during the hearing of the appeal.

This leaves as an outstanding issue what is to be done about the delay and the expense which the Court has incurred because steps were not taken to have the appellants brought to Port Moresby.

It was not denied that the cause of the absence of the appellants was other than a failure to action properly a written request from the appellants, received in the Public Solicitor’s office on the 19th of February 1990, that they attend the hearing. The lawyer in the Public Solicitor’s office, for whom the Public Solicitor is responsible, took no steps to ensure that the Appellants were brought to Waigani for the appeal.

There was a breach of duty towards the client, and a breach of duty towards the Court. In relation to the Court, public monies have been incurred in assembling the members of the Court in Port Moresby, and three judges who would otherwise have been sitting in the Supreme Court have had their time wasted.

Incidents like this are now, unfortunately, all too common. There seems to be a lack of concern amongst some lawyers over their responsibilities towards the Court, and to the expedition and efficient operation of the Court.

Had the defaulting lawyers been other than government employees the Court could have used costs against the party responsible as a sanction. However to award costs against the Public Solicitor in a case in which the Public Prosecutor is the other party is to move funding from one appropriation to another, without any impact on the lawyers concerned.

The Court is not in a position to assess who is in default in this matter and the extent of the default. It is able to say that it has been inconvenienced, an appeal has been delayed, and public money has been squandered.

It is better that any lawyer who may be in default in this matter should answer to his or her peers for their conduct. Accordingly the Court will refer this aspect of the case to the Lawyers Statutory Committee as a complaint.

Lawyer for the Appellant: The Public Solicitor

Lawyer for the Respondent: The Public Prosecutor