State v Kean [2007] FJHC 66; HAC 037.2007 (18 October 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.:
HAC 037 OF 2007

BETWEEN:

THE STATE
Applicant

AND:

FRANCIS BULEWA KEAN
Accused

Counsel: Ms. A. Prasad & Ms. S. Puamau – for the State
Mr. Abhay Kumar Singh & Mr. H.A. Shah - for the Accused

Date of Hearing: Wednesday 17th October, 2007
Date of Ruling: Thursday 18th October, 2007

RULING

This is a ruling prepared overnight and accordingly I reserve the right to perfect the ruling once it has been transcribed for me.

Background

[1] When the case was originally called the accused was represented by Mr. Raza. The trial was listed for mention on several occasions and finally set for hearing on the 29th of October 2007. The trial was subsequently bought forward some 25 days to meet the Court’s administrative requirements. Counsel and the accused were warned the trial would then proceed on the 4th of October.

[2] On the eve of trial the accused decided to change his counsel. I granted Mr. Raza leave to withdraw and he was replaced by Mr. Singh. New counsel assured the court he would be ready to proceed with the hearing on the 4th of October 2007.

[3] New counsel Mr. Singh then moved for my recusal. I ruled. The accused appealed my ruling unsuccessfully before a single Judge of Appeal. That process delayed the start of the trial again. All the while counsel and the accused were warned that the trial would proceed commencing at 1415 hours on the 17th of October 2007.

[4] When the case was called at that time Mr. Singh made application for leave to withdraw as he had been dismissed as counsel. Despite that dismissal he sought an adjournment on the accused’s behalf to Friday the 19th of October 2007. Somewhat surprisingly he made that application on behalf of the intended counsel Mr. Shah.

[5] The accused was reminded again of his constitutional rights for representation in court. He said he wanted a lawyer of his own choice, that being Mr. Shah and he wanted the trial adjourned to allow counsel to read the file.

[6] The State was advised of these developments around midday on the day the trial was due to commence. Despite my warning that the trial would proceed Prosecution Counsel decided as a matter of practicality to stand the prosecution down as it was assumed the case would not proceed. Counsel was not in a position to open her case for the State.

[7] For that reason after a short adjournment I granted the accused’s request to postpone the proceedings again overnight. I did, however, warn the accused, assessors and counsel to be ready to commence the trial today at midday.

[8] I now come to deal with two issues that are interrelated. First the accused’s request for a further adjournment. Secondly, Mr. Singh’s application to withdraw.

The Law

[9] The right to be represented is governed in Fiji by s. 28(1)(d) of the Constitution (Amendment) Act of 1997 which provides:

“28(1) Every person charged with an offence has the right:

To defend himself or herself in person or to be represented (at his own expense, by a legal practitioner of his or her choice or, if the interest of justice require, to be given the services of a legal practitioner under a scheme for legal aid.”

[10] But as pointed out by the Court of Appeal in Ratu Jope Seniloli and Others v The State [2004] FJCA 46; Criminal Appeal No. AAU0041 of 2004 the right is not absolute. That is in keeping with other Commonwealth jurisdictions.

[11] The provisions of the Constitution of Mauritius are in familiar terms. The material parts of section 10, read:

"(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence –

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense;"

[12] In Gooranah v The Queen [1968] MR 122 the appellant had appeared three times before the Mauritius Criminal Court before the date of trial. On the morning of trial he produced a letter from a member of the bar stating that he had just been instructed for the defence. New Counsel wanted an adjournment. The reason was he was engaged elsewhere and not had the time to study the case. The trial judge refused and the decision was upheld by the Supreme Court and eventually the Privy Council. In the judgment the Chief Justice Rivalland referring to the Mauritius Constitution said at pages 124-5:

"The all important words of paragraph (d) guaranting the right to repressentation were that the accused 'shall be permitted to defend himself'. The duty on the Court is clear and is impliedly twofold the Chief Justice said: an accused party must be given a reasonable opportunity to retain the services of a legal representative of his choice and, at the trial of the case, the legal representative must be given full latitude – in accordance with the law of the country – to defend the accused. On the other hand, the duty to retain the services of a legal representative of his choice lies on an accused party and the words 'of his choice' are here again important: they necessarily connote the idea that, if he has a wide choice from among the members of the Bar, the responsibility for the choice is his, not that of the Court. The duty cast on the Court is purely a passive one in so far as the presence of counsel at the trial is concerned, while the responsibility for the briefing of the legal representative and ensuring his presence in Court devolves from the very words of the Constitution on the accused party.

The provisions of the Constitution were never intended to be a cloak for the laches of an accused party.

[13] I consider the principles Gooranah v The Queen are correct and are consistent with those accepted by the Judicial Committee of the Privy Council in Robinson v The Queen [1985] AC 956 and Dunkley v The Queen [1995] 1 AC 419. In Robinson v The Queen counsel had been engaged by the appellant but did not turn up in court because he had not been put in funds. The judge refused to hold up the trial, which commenced without counsel. On the following day junior counsel appeared and asked for permission for himself and his leader to withdraw from the case. The judge offered him a legal aid assignment, but counsel declined it. The judge then refused permission to withdraw and refused to adjourn the trial, whereupon counsel left the court and did not return. The Judicial Committee held that there had not been a breach of the relevant provisions of the Jamaican Constitution again in familiar terms with the Fijian Constitution. Giving the judgment of the Board, Lord Roskill stated at pages 966-7:

"In their Lordships' view the important words used in section 20(6)(c) guaranteeing counsel in Jamaica is 'permitted'. The accused must not be prevented by the state in any of its manifestations, whether judicial or executive, from exercising the right accorded by the subsection. He must be permitted to exercise those rights. It is apparent that no one could have done more than the judge to secure the defendant's representation by counsel of his choice ...

In their Lordships' view the judge's exercise of his discretion, which the counsel for the appellant rightly conceded to exist, can only be faulted if the constitutional provisions make it necessary for the judge, whatever the circumstances, always to grant an adjournment so as to ensure that no one who wishes legal representation is without such representation.

[14] The Privy Council went on to observe and I agree that not for one moment did they underrate the crucial importance of legal representation for those who require it. However, their Lordships could not construe the relevant provisions of the Constitution in such a way as to give rise to an absolute right to legal representation which if exercised to the full could all too easily lead to manipulation and abuse:

"If a defendant ... does not take reasonable steps to ensure that he is represented at the trial, whether by a private counsel on legal aid or otherwise, he cannot reasonably claim that the lack of legal representation resulted from a deprivation of his constitutional rights."

Analysis

[15] This accused has known of his trial for several months. He and his Counsel have been advised on numerous occasions that the trial will proceed. Indeed the accused was warned by me that his trial could proceed in the absence of counsel.

[16] There has been an unsuccessful application for recusal. When the appeal against the refusal to recuse failed another counsel was dismissed by the accused and a request for yet another adjournment was made. I find these actions could all too easily lead to manipulation and abuse of the Criminal Justice System. It is for the Court to decide the time and place of trial not the accused.

[17] The accused has not taken reasonable steps to ensure that he is represented at his trial. He cannot reasonably assert that absence of counsel is in deprivation of his constitutional rights. Nor can he claim that it is unfair or unjust that his trial now commence with fresh counsel. As the Court of Appeal said in Mototabua v The State [2005] FJCA 45; AAU0025.2004S (18 March 2005) the fact that the trial will now proceed in that case without the services of Counsel or in this case with fresh counsel is a situation of the accused’s own making.

[18] As for the application for counsel to withdraw. Chief Justice Fatiaki followed Dunkley (supra) in Varawa v The State [2002] FJHC 87. His Honour quoted a passage from their Lordships judgement at page 428 with which I concur:

'In the first place where counsel appearing for a defendant ...... seeks leave to withdraw during the course of the trial, the trial judge should do all he can to persuade him to remain ...... The trial judge should only permit withdrawal if he is satisfied that the defendant will not suffer significant prejudice thereby.’

[19] I record that I did endeavour to encourage Mr. Singh to remain as counsel. I adjourned to enable him to take instructions. When the matter resumed Mr. Singh indicated that he was unable to appear. I cannot question counsel about his professional obligation to his former client.

[20] The accused has now chosen new counsel. The essential facts of the allegation are uncomplicated. The issues of causation and murderous intent are simply drawn upon these facts. The accused is a senior Naval Officer and so a man of some refinement and intelligence. I do not for these reasons apprehend any significant prejudice to his case if he either proceeds with fresh counsel or proceeds alone. His new counsel was asked if he had any application to make this morning. He has none. The State is ready to proceed at midday. The trial will commence then.

[21] The application for further adjournment is refused. I am satisfied that there is no prejudice to the defendant in the trial proceeding. Mr. Singh your application for withdrawal as counsel is granted. I thank you for your assistance Mr. Singh.

[22] The trial will commence at midday today the 18th of October, 2007.

Gerard Winter
JUDGE

At Suva
Thursday 18th October, 2007