State v Takiveikata [2004] FJHC 111; HAC005D.2004S (18 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC005 OF 2004S

THE STATE

V

RATU INOKE TAKIVEIKATA

Gates J.

Mr J. Rabuku for the State
Mr N. Nawaikula for the Accused

18 June 2004

RULING

[1] Today’s mention date had been fixed on 9 June 2004 to allow further time to the Accused to arrange counsel. So far the Accused has been represented on different occasions by Mr R. Singh, Mr Komaisavai, Mr Vuataki and now by Mr Nawaikula. None of these counsel intend to be counsel for the trial.

[2] All along it appears overseas counsel had been engaged, that is Mr Stanton of the New South Wales Bar, together with Mr Vuataki of the local Bar. Mr Vuataki had appeared for the Accused in the Magistrates Court, though it was conceded by the Accused that it was realized that Mr Vuataki had a conflict since his name had been mentioned by certain witnesses in the depositions.

[3] At the mention on 13 May 2004 Mr Komaisavai said he wanted a trial date after 12 September 2004. The middle of September however was not convenient to the court. I asked for inquiries to be made if Mr Stanton would be available earlier, for instance from 9 August 2004. Before a final decision was to be made on trial date this inquiry was to be made first and the court informed on the next mention date, 24 May 2004. This was likely to be a 4-5 week trial.

[4] On 24 May 2004 Mr Komaisavai did not attend, nor did any counsel attend for the Accused. The Accused said Mr Komaisavai should have been at court. I asked the Accused:

Ct: "Who is to represent you? Mr Vuataki is mentioned in the statements as having some involvement sufficient for conflict.

The Ac c: "We had discussed that. Mr Stanton will appear."

Ct: "Likely date of trial 27 July 04. You will need to ensure you have counsel for that date, and counsel who can attend the PTC.

Adj. for fixing of all these matters and for PTC on 1 June 04 at 2.30 pm."

[5] On 1 June 2004 Mr Vuataki again attended. He re-iterated that Mr Stanton would be available from 1 September 2004. Mr Allan informed the court that another case had turned into a plea and thus an earlier date was available for this trial. Again I allowed a short adjournment to see if Mr Stanton could be available for 27 July 2004.

[6] On 4 June 2004 Mr Komaisavai attended for the Accused. He said he asked for counsel of the Accused’s choice pursuant to section 28 of the Constitution and said Mr Stanton was not available now till October. He argued that I should adjourn for trial in October. In effect he said the court should wait for counsel.

[7] He also foreshadowed that Mr Stanton would be arguing delay as a ground for a permanent stay of the trial. The Accused had in March complained to the Press about the court’s failure to give him an early court date. Mr Allan confirmed that the Bainivalu trial was now a plea and thus the earlier trial date was available for this trial.

[8] Accordingly I ordered the instant case to be set down for trial on 27 July 2004. This trial would follow on the other sensitive trial of Jope Seniloli and others, for both of which special security arrangements were being made.

[9] I adjourned for the Accused to instruct counsel who could appear for him with instructions at the pre-trial conference and at the trial.

[10] On that date, 9 June 2004, Mr Vuataki appeared. He said Mr Stanton could now appear in September. He informed me "He will submit on delay of the trial, seeking stay on grounds of delay."

[11] I responded "I have already set the trial date. I am trying to ensure that the Accused has an opportunity to brief counsel for the PTC and the trial."

[12] Mr Vuataki said "we will have to make other arrangements for counsel". I asked him how long did he require to engage counsel. Mr Vuataki replied "I will ask for another week." I said "Very well I will allow you another week for you to brief counsel." Meanwhile the Bainivalu case reverted to a trial and will occupy 3 weeks in October.

[13] On 18 June 2004 today Mr Nawaikula appeared and said:

"This is for mention for hiring of local solicitor. I am not the solicitor. Counsel is overseas counsel, only available in October. He is not able to arrange a local solicitor. Mr Stanton is only available in October."

[14] Other comments were made on the necessity for a duplicate set of papers to be provided to the new counsel. It was mentioned that the "refusal to allow counsel of choice" would be appealed. Mr Rabuku from the DPP said the Director as Respondent had not been served with any appeal papers. I approach the matter therefore as if there were no appeal afoot.

[15] The trial date having been set, the next matter was to ensure the Accused had counsel to represent him. There should have been a motion and affidavit filed seeking an adjournment if such were necessary and I would have ruled on that. At this stage, on the information available the court has decided on a date of trial. It is not for the Accused to demand dates which may only suit the defence. Many other considerations are relevant.

[16] The court will always endeavour to see an Accused is represented and to allow time for instructions. The right to counsel of choice does not mean however that the Accused is to be master of the proceedings. In Mukesh Kumar & Anor. v Vijayantimala (unreported) Civil App. HBA0005.00L, 8 October 2003, I had said at para [32]:

"If at all possible, a court will strive to see that a litigant can run his case with his choice of counsel. It is not an absolute right. It is an obligation to permit, not to ensure, legal representation: Robinson v The Queen [1985] 1 AC 956 at p.973."

[17] I cannot force the Accused to be represented at his trial, or at the pre-trial conference. However the Accused should be warned of the consequences of not arranging counsel now in order to be fully instructed and thus ready to be able to resist these serious charges. Without counsel, the Accused will be severely handicapped in his defence. I urge him to avoid this. With counsel’s assistance, I shall now set the date for pre-trial conference.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the Director of Public Prosecutions,
Suva
Solicitors for the Accused:Messrs Vuataki & Associates, Suva