Re Joseph Mavuk [1980] PNGLR 507

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Greville–Smith J, Pratt J
• Judgment Date: 05 December 1980
• Citation: [1980] PNGLR 507
• Docket Number: Supreme Court Reference No 3 of 1980
• Court: Supreme Court
• Year: 1980
• Judgement Number: SC189

Full Title: Supreme Court Reference No 3 of 1980; Re Joseph Mavuk [1980] PNGLR 507

Supreme Court: Kidu CJ, Greville–Smith J, Pratt J

Judgment Delivered: 5 December 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF A REFERENCE TO THE SUPREME COURT OF JUSTICE UNDER S. 18 OF THE CONSTITUTION AND IN THE MATTER OF JOSEPH MAVUK AND 5 OTHERS.

SUPREME COURT REFERENCE NO. 3 OF 1980.

Waigani

Kidu CJ Greville Smith Pratt JJ

2 December 1980

5 December 1980

CRIMINAL LAW — Practice and procedure — Legal representation of accused — Right to defence "counsel of his choice" — Choice subject to proper exceptions — Legal ethics — Counsel of choice earlier involved on prosecution side of case — Discretionary power in court to refuse permission to appear — Constitution, s. 37 (4) (e).

Section 37 (4) (e) of the Constitution provides that a person charged with an offence, "shall be entitled to defend himself before the court in person or, at his own expense by a legal representative of his own choice ..."

Held

(1) The right of an accused person under s. 37 (4) (e) is not absolute; his "choice" is subject to all proper exceptions.

(2) Proper exceptions include cases where counsel may be rendered ineligible to appear on a legal ethics basis, for example where the counsel chosen was earlier involved in the case as Deputy State Solicitor and State Prosecutor.

(3) Per curiam: A trial judge has power in the exercise of an inherent jurisdiction to refuse, if necessary, to permit counsel to appear for accused persons.

Reference

This was a reference pursuant to s. 18 (2) of the Constitution of a question of law from a judge of the National Court the question being:

"Has Joseph Mavuk and his five co-accused got the right under s. 37...