(CRIMINAL REVISION)

SUDAN GOVERNMENT V. ABDEL AZIZ MOHAMED NUR AND ANOTHER

 AC-CR-REV-254-1966

Principles

·  Advocate—Professional ethics—Advocate who appears in criminal case as prosecutor for his client who becomes accused in same case is allowed to continue to represent his client as defence counsel

It is not against professional ethics for an advocate, who first appears as a prosecutor in a criminal case on behalf of his client who then becomes accused in the same case, to continue to represent his client as a defence counsel in the same case, because in both situations the advocate is protecting the interest of his client

Judgment

Advocate: Ga’afar Osman for the first accused

Salah E. Hassan j. (By authority of the Chief Justice), September 28, 1966: —This application is devoid of any merits and I accordingly see no reason to intervene.

In this case advocate Ali Mahmoud was representing accused No. 1 at a stage when he was complainant. He was given permission by the Attorney General to represent the prosecution. At a later stage in the police investigation the complainant was made as accused No. 1 by the investigating policeman, the case being one of bribery. The other party represented by advocate Gaafar Osman became the second accused. Naturally advocate Ali continued to represent his client as a defence counsel instead of being a prosecutor on his behalf. Advocate Gaafar objected to this on the ground that it is not ethical and that his client is not going to have a fair trial. The Province Judge dismissed this application, hence this appeal.

I am afraid we do not have much literature on this question touching the ethics of the legal profession but of course there are fundamental principles which have universal recognition such as that no party should be a judge in his own cause; and that justice must be seen to be done. Applying the above principles it is very clear that:

(i) A member of the Bar handling a case on behalf of one of the parties should not under any circumstances deal with the same case if he happens to join the bench later.

(ii) The converse of this situation has been dealt with in HC-REV 1965, (1966) S.L.J.R. 140, where it was ruled that it is not ethical for an advocate to represent any of the parties in a suit which he was handling previously when he was a member of the bench.

I approve this decision on the basis that justice must be seen to be done.

(iii) The situation in this case, the subject of this application, is different from both above-mentioned situations. In this case advocate Au Mahmoud is representing the same client first as a prosecutor on his behalf and now as his defence counsel. In both situations he is protecting the interest of his client. Advocates Ordinance, s. 11, embodies some principles concerning the ethics of the profession. It says: It is the duty of an advocate to act in the best interests of his client, etc., to keep secret all confidential information, to refuse to give assistance or advice if he is, or has been representing or advising an adverse party in the same case or one connected therewith.”

Now advocate Ali, by continuing to represent his client in his defence, is executing his duty of acting in the best interest of his client. The underlined part would prevent situations such as, e.g., if in this case advocate Au, who first appeared as prosecutor on behalf of his client who became accused No. 1, appears later in the same case to defend accused No. 2—as he would have been representing an adverse party in the same cause. The present situation does not come within this.

Leaving the legal aspect aside, let us look at it from a logical and moral point of view. If I seek your help in order to prosecute somebody, and in the process I unfortunately got entangled and I have to answer an accusation, would you run away and leave me helpless in this situation? The answer is obviousiy NO.