State v Seniloli [2004] FJHC 30; HAC0028X.2003S (10 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0028 OF 2003S

STATE

v.

RATU JOPE SENILOLI
RATU RAKUITA VAKALALABURE
VILIAME VOLAVOLA
ISIRELI LEWENIQILA
PECELI RINAKAMA
VILIAME SAVU

Hearing: 8th June 2004
Ruling: 10th June 2004

Counsel: Mr. G. Allen & Ms A. Prasad for State
Mr. M. Raza for 1st Accused
Mr. S. Valenitabua for 2nd Accused
Mr. S. Naqase for 3rd & 6th Accused
Mr. D. Sharma for 4th Accused
Mr. A. Seru for 5th Accused

RULING

The accused persons Ratu Rakuita Vakalalabure and Mr. Peceli Rinakama were originally represented by Mr. Kitione Vuataki. At the pre-trial conference, on the 24th of May 2004, (at which Mr. Vuataki was absent) I raised the question of Mr. Vuataki’s representation of these two accused persons at the trial. I raised the question because at the trial of Timoci Silatolu and Josefa Nata, Mr. Vuataki himself drew to the attention of the presiding judge, Wilson J, the fact that he was mentioned in the depositions, and himself told the judge that he could not appear as counsel for Mr. Silatolu. He was given leave to withdraw and Mr. Silatolu was given time to find alternative counsel.

A perusal of the depositions in this case showed a similar situation in this case. Indeed, counsel for Mr. Leweniqila went further and said that he wished to call Mr. Vuataki as a witness at this trial. In the circumstances Mr. Vuataki clearly could not appear as counsel. I adjourned to the 26th of May to discuss the matter with Mr. Vuataki. However he again failed to appear. No explanation was sent to the court as to his absence. I ruled that Mr. Vuataki could not be counsel and witness in the same case and both accused were advised to find alternative counsel. I then called the case on several days to check on their representation. On the 2nd of June, I was told by both accused that they had not taken steps to instruct anyone as they still wanted Mr. Vuataki as their counsel. When I explained my ruling of 24th May 2004 to them, that it was in their own interests to find a lawyer who was not in a conflict of interest situation, they undertook to instruct alternative counsel.

On the 3rd of June 2004, the 2nd accused said that he was having discussions with the other counsel in the case with a view to being represented by one of them. He also said he wanted to be represented by Mr. Valenitabua who was requested by the court to appear the following day. On the following day Mr. Valenitabua did indeed appear, but he said that he had received no instructions to represent the 2nd accused, that he had not read the depositions and could not take instructions unless the trial commenced at the end of August. Since he was not the 2nd accused’s counsel, he asked to be excused from the proceedings.

The matter was called again on the 7th of June to check on representation. This time Mr. A. Seru sent a message to the court that he represented the accused but could not come to court because of a landslide at Veisari. He asked for the matter to be called the following day, that is the 8th of June. I agreed and advised all counsel in open court. However, the 2nd accused said Mr. Seru was not his lawyer but that he still wanted Mr. Valenitabua, and wanted an adjournment to allow Mr. Valenitabua’s dates to be accommodated. I informed him that he needed first to instruct Mr. Valenitabua as counsel, and then to come to court to formally ask for an adjournment. The 2nd accused agreed to do this by the 9th of June.

The trial is set for June the 15th. That date was set in February of this year, and all counsel then on the record agreed to that date.

This application for adjournment arises out of Mr. Vuataki’s disqualification as counsel, the factual basis of which Mr. Vuataki must have known as early as the 21st of August 2003, when witness statements and other documents were first served on him, and the accused persons’ inability to instruct counsel from the 24th of May 2004 to the 9th of June 2004. Although the cause of this difficulty faced by these two accused must lie fairly and squarely at the door of their counsel, there can be no dispute that the accused persons cannot be blamed for it. They could not have known that Mr. Vuataki was disqualified from appearing as counsel, and the question for me now is whether they are prejudiced by having inadequate time to brief alternative counsel, and to prepare their defence before the trial.

The law

Section 28(1)(d) of the Constitution provides that every person charged has the right to defend himself or herself in person or to be represented at his or her own expense by a legal practitioner.

The Canadian Supreme Court in R v. Brydges 1990 CanLII 123 (SCC); (1990) 1 SCR 190 said that this right is aimed at “fostering the principles of adjudicative fairness” and to ensure a fair trial for the accused person. However the right to counsel is not an absolute right. It must be weighed with the rights of any other accused person involved in the case to a speedy trial, with the rights of witnesses who may not be available if an adjournment is granted, and with the public interest that criminal trials should proceed without delay.

Thus in Errol Dunkley & Anr. v. The Queen (1995) 1 AC 419, when counsel for one of the accused withdrew during the trial leaving him unrepresented for the rest of the trial, the Privy Council held that where an accused person was left unrepresented through no fault of his own, the interests of justice required that in all but the most exceptional circumstances there should be a reasonable adjournment. The accused was prejudiced by lack of representation particularly because he was deprived of the advantage of skilled cross-examination, and his conviction for murder was quashed. In Mitchell v. The Queen [1999] UKPC 28; (1999) 1 WLR 1679, a decision of the Privy Council from Jamaica, counsel withdraw on the second day of trial. The accused wished to represent himself. There was evidence that he did not do so competently. The Privy Council held that the judge should have adjourned the case to allow the accused to find alternative counsel. However in Robinson v. The Queen (1985) AC 956, also a decision from Jamaica to the Privy Council, counsel withdrew at the beginning of the trial. An application was made for time to apply for legal aid. However the judge refused because of the unavailability of witnesses. The Privy Council held that a trial judge had to balance a number of factors before deciding on whether or not to adjourn, and the availability of witnesses was one such factor. Further since the absence of legal representation was caused jointly by the accused (who had not paid counsel) and his counsel, there was no breach of the right to counsel.

In Romanu Naceva & Others v. State Crim. App. AAU0014 of 1998S, all accused persons were represented by one lawyer, in a case of murder. Half way through the trial, counsel said that there was a conflict between the defences of the 2nd and 3rd accused and sought leave to represent only the 5th accused. An application for mistrial was refused. On appeal, the Court of Appeal held that because of the complex issues of fact and law involved in the trial, and because they were deprived of counsel through no fault of their own, the convictions could not stand. Finally, the High Court of Australia in Dietrich v. The Queen (1992) CLR 293 said:

“In the absence of exceptional circumstances, a judge faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence, who, through no fault is unable to obtain legal representation, should adjourn, postpone or stay the trial until legal representation is available.”

The two accused persons in this case are not indigent, but they are now victims of circumstances which are not of their making. At the hearing of this application, on the 8th of June 2004, they were finally represented by counsel, the 2nd accused by Mr. Valenitabua, and the 5th accused by Mr. Seru. Neither counsel had read the depositions although Mr. Seru had been briefed on the 4th of June. He said that his client had not yet retrieved his papers from Mr. Vuataki. However he said he was committed in the Magistrates’ Courts until the end of August, but was available for this trial in September.

Mr. Valenitabua said he had only been briefed by the 2nd accused on the morning of the 8th of June and was fully booked until late August. He also said he needed time to prepare for trial. The 2nd and 5th accused therefore request an adjournment until (at least) the beginning of September.

There are however, more than one counsel in this case, and more than one accused. All defence counsel agree that some length of adjournment is in the interests of justice, but thereafter there is no consensus as to the length of it. Mr. Raza, for the 1st accused is before Winter J for one month from the 16th of August for a High Court trial. He is however happy to re-arrange his Magistrates’ Court dates to accommodate this trial thereafter. Mr. Naqase for the 3rd and 6th accused is fully booked in September at a High Court trial. He is prepared to re-arrange his other Magistrates’ Court dates to accommodate this trial.

Mr. Sharma who also agreed that the hearing be adjourned to accommodate the 2nd and 5th accused, said he was only available for the trial until the 26th of July. He said that September was not suitable for him as he had a High Court trial commencing in mid-September. He suggested that if the trial could not proceed in June, then it should be adjourned until November to accommodate the prosecutors.

Mr. Allan said that leading counsel Mr. Tedeschi was only available if the trial commenced before the 27th of July. Even then, he said, if the trial proceeded until the end of August, Mr. Tedeschi would have only one week to prepare for a murder trial commencing in New South Wales in the second week of September. Further, Mr. Allan himself is conducting another prosecution before Gates J from the 27th of July and would be unavailable thereafter for an uncertain length of time.

Quite apart from the various requests of counsel, my own diary is now full until the legal vacation in December, and any adjournment beyond the end of June would result in the re-listing of other cases, already set before me. In some of those cases, there are accused persons waiting in custody to be tried.

It is apparent that counsel in this case are unable to agree on a suitable date for adjournment. Any consideration of the application, as I have said, includes a balancing of the interests of all accused persons, and also of the prosecution. While it is important to consider the interests of the 2nd and 5th accused, it is also important that the rights and interests of their co-accused should not be prejudiced. All the accused have already complained of the delay in the hearing of this case, and have sought a stay on that basis. Although that application was unsuccessful, their complaints of delay are relevant to this application.

I accept that this is not a simple case. The elements of the offence may not be overly complicated, but there are evidential issues which need to be considered by counsel before trial. Some of these I have already outlined in the ruling delivered on the 2nd of June. Multi-accused trials are never simple, and when there are other issues to be considered, such as the possibility of the leading of evidence suggesting the commission of offences which do not appear on the Information, counsel need to be well-prepared and briefed. Finally, as I have said, Mr. Vuataki’s inability to appear is not the fault of the accused.

For these reasons I consider that it is in the interests of justice to adjourn the hearing date to allow counsel for the 2nd and 5th accused to be properly briefed and prepared. However, I am unable to accommodate Mr. Seru’s request for a September date, and Mr. Valenitabua’s request for a September or November date. These dates are not suitable for the other counsel in this case. They are not suitable for my own diary. I see no reason why the interests of the other accused persons in this case, and of the prosecution, should be prejudiced in favour of the interests of two of the accused persons, especially when the interests of the latter can be met by a shorter adjournment to allow them to brief new counsel.

I am therefore prepared to adjourn the hearing of the case to the 28th of June 2004. That allows the two accused 18 days to brief counsel and prepare for trial. If Mr. Seru and Mr. Valenitabua cannot accept these dates, then arrangements must be made by the accused to brief alternative counsel. If however, having being given this opportunity to instruct counsel the accused fail to avail themselves of it, then they must be prepared to appear unrepresented by counsel.

The application for adjournment succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
10th June 2004