State v Shankar [2002] FJHC 312; HAC014.2001S (23 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 014 OF 2001S

STATE

V

ALBERTINO SHANKAR; and
FRANCIS NARAYAN

Counsel: Mr Kuruisaqila with Ms Chandra for State
1st Accused in Person
Ms P. Narayan for 2nd Accused

RULING

The two accused persons are jointly charged with the murder of Tang Wen Jun in March 2001 in Suva. The Information was filed in the High Court on the 15th of October 2001. An amended Information was filed on the 1st of November 2001.

When the matter was first listed in the High Court before Surman J, the 1st Accused Albertino Shankar was unrepresented. Ms Narayan appeared (as legal aid counsel) for the 2nd Accused. The 1st Accused said he had applied for legal aid, had been refused, and had appealed that refusal. The matter was then adjourned on several occasions to allow the question of legal aid to be decided. The appeal against the refusal of the Legal Aid Commission was unsuccessful. On the 11th of April 2002, the 1st Accused said that he was in no position to get a lawyer because he did not have the financial means to obtain the services of counsel. Ms Narayan disputed this, saying that in the opinion of the Legal Aid Commission, the 1st Accused had the financial means to instruct counsel.

Ms Hamilton-White, who was at the time, counsel for the State, said that the 1st Accused needed to be legally represented because of the likelihood of a challenge to the 1st Accused’s caution statement to the police.

The matter was adjourned to give the 1st Accused time to instruct counsel of his own choice. He said that he would try to contact his relatives for that purpose. On the 25th of April 2002, the 1st Accused said that he was unable to instruct counsel. By that time, I had already caused, through the Chief Registrar, a letter to be written to Legal Aid Commission, recommending to the Commission that legal aid be granted to the 1st Accused. Despite this recommendation legal aid was refused again. However on 4th June 2002, Mr G.P. Lala appeared for the 1st Accused saying that he had agreed to take the 1st Accused’s brief pro bono. A hearing date was then set for the 19th of August 2002. That date was later vacated because Ms Narayan was involved in the treason trial (State -v- Timoci Silatolu & Another Cr. Action HBM 2/02).

The trial finally proceeded on the 17th of September. It commenced with a voir dire by agreement of all counsel. Detective Sgt. Mohammed Shafique began to give evidence. He had read half of the contents of the 1st Accused’s caution interview when the court adjourned for lunch. When we re-commenced Mr G.P. Lala asked for leave to withdraw saying that he had had a dispute with his client and his client no longer wished to retain him as counsel. The 1st Accused confirmed this and asked for time to make a further application for legal aid. All counsel agreed that he should be given time for this purpose. I granted Mr Lala leave to withdraw.

This morning a letter from the Director for the Legal Aid Commission was received by the Chief Registrar confirming that an application had been made and requesting a week from today to consider the application. All counsel agree that the 1st Accused should be granted a further adjournment.

This is a trial for murder. The depositions contain 63 witness statements. The 1st and 2nd Accused have challenged the admissibility of their confessions. Both confessions are inculpatory. The 2nd Accused is alleged to have said that the act of strangling the deceased was done by the 1st Accused. It seems very likely that apart from the issues of voluntariness and oppression in relation to the confessions, the questions of joint enterprise and common intention will be relevant during this trial. These are not issues that are easily understood by lay persons. I consider that proceeding with this trial without representation would expose the 1st Accused to a significant risk of prejudice.

In Dietrich -v- R [1992] HCA 57; (1992) 177 CLR 292 the High Court of Australia said (per Mason LJ and McHugh J) at p.311:

“The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge’s discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crime, the remedy of an adjournment should be granted in order that representation can be obtained.”

In Mitchell -v- The Queen [1999] UKPC 28; (1999) 1 WLR 1679, the Privy Council said that when counsel withdrew in the middle of a murder trial, the trial judge should have adjourned to allow the accused to seek different counsel, and that the failure to do so was a breach of the accused’s constitutional right to be represented.

In the circumstances I consider that this trial cannot proceed until the 1st Accused is represented by counsel. He has re-applied for legal aid. That process will take a week. Clearly the delay will be longer than that, because a newly instructed counsel will need further time to read the papers and prepare for the defence. There is no likelihood therefore that the trial can commence before November 2002.

I have therefore decided that a trial de novo commence before a new set of assessors when all parties are ready. This case will be called for mention only on Monday 30th September at 9.30am to check on the question of representation. The assessors are discharged from service for this trial.

Nazhat Shameem
JUDGE

At Suva
23rd September 2002