State v Nand [2008] FJHC 341; HAM40.2008 (13 November 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Miscellaneous No. HAM 40 of 2008

Between:

THE STATE
Applicant

And:

RONALD RAKESH NAND f/n Satya Nand
SALVEEN SANDEEP PRASAD &
DALIP CHAND
Respondents

Hearing : 13 November 2008
Ruling : 13 November 2008

Ms. V. Lidise for the Applicant
Mr. K. Tunidau for the Respondents

RULING

1. This is the State’s application that Mr. Kevueli Tunidau, Counsel for the Respondents withdraw as counsel as a result of a conflict of interest.

2. The conflict identified by the State is that on 12 May 2006, while Mr. Tunidau was employed by the Office of the Director for Public Prosecutions ("DPP"), he appeared for the State in the Lautoka High Court in Action HBM 012/06 and responded to the bail application for the first accused, Ronald Rakesh Nand .
   
3. Since then, Mr. Tanidau has stopped working for the DPP, and gone into private practise as a Barrister and Solicitor doing criminal defence work.
   
4. Since leaving the Office of the DPP, Mr. Tunidau has accepted instructions and agreed to represent the Respondents in this matter.
   
5. In support of its Motion, the State relies on the following authority:
   

6. The State v Khan and Singh HAM18J.2003S where Justice Gates considered the question of whether the Magistrates Court had jurisdiction during a trial to order legal practitioner to cease appearing as counsel for an Accused person. The first Respondent had been charged with official corruption. The complainant was one Rajendra Narayan. Both the complainant and 1st Respondent had used the 2nd Respondent Mr. Abhay Singh as their personal lawyer. The complainant then alleged that Mr. Singh had asked him to change part of his story in his statement against the 1st Respondent. This then lead to Mr. Singh being charged and subsequently convicted for the offence of attempting to pervert the course of justice.

7. After Mr. Khan was charged, the DPP’s Office wrote to him requesting that he withdraw as counsel for the 1st Respondent given the imminent proceedings against him. When he did not, the State then made an application before the Magistrate that the 2nd Respondent be barred from acting as counsel in the 1st Respondent’s case. The Magistrate ruled against the State’s application and found that the court did not possess a jurisdiction to order removal from the case, counsel of the Accused’s choice.

8. His Lordship, Justice Gates at pages 9 and 10 of his judgment referred to several authorities in determining whether the court had an inherent jurisdiction to control the representation of parties. He referred to the case of Black v Taylor [1993] 3 NZLR 403 and quoted Cooke P at pg. 406.25:

"As to those who may be allowed to represent parties to argue cases, the Courts have an inherent jurisdiction: see RE GJ Mannix Ltd [1984] 1 NZLR; Abse v Smith [1986] QB 536; Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591; and R v Visitors to Lincoln’s Inn, Ex parte Calder [1992] 3 WLR 994, 1007. The jurisdiction extends to the propriety of a representative appearing in a particular case: it is not then a question of the right of practice generally, which is governed in New Zealand by statute, but a question concerning what is needed or may be permitted to ensure in a particular case both justice and the appearance of justice. Obviously it is a jurisdiction to be exercised with circumspection."

9. His lordship then referred to the (3(1) Halsbury’s Laws of England (4th ed) para 396) where Richardson J said, "The High Court has an inherent jurisdiction to control its own processes except as limited by statute. As an incident of that inherent jurisdiction it determines which persons should be permitted to appear before it as advocates. In determining what categories of person may appear it does so in accordance with established usage and with what is required in the public interest for the effective administration of justice....Pg.409.50... I would hold that in principle where it is satisfied that the interests of justice so require that that the High Court has an inherent jurisdiction to restrain a barrister from continuing to act as counsel for a particular party in proceedings before the Court."

10. Having considered several other authorities, Justice Gates, at page 12 para 53 said,

"For all these reasons I believe it is correct that the court should have intervened to prevent potential abuse of its process. ... In the result, the appeal succeeds. The decision not to order removal of Mr. Singh as counsel for the defence is quashed. In substitution Mr. Singh (2nd Respondent) is debarred from appearing as counsel for Mr. Khan in the lower court trial."

11. The ‘court’ being referred to was the Magistrate’s Court. It is submitted that in the same way, this court has the power to intervene and therefore has jurisdiction to hear the application.

12. The State also relies on the Rules of Professional Conduct and Practice under the Schedule to the Legal Practitioners Act 1997 which says at paragraph 1.02

"A party shall not act for more than one party in the same matter without the prior consent of all parties".

13. In answer to the States Motion, Mr. Tunidau argues that conflicts of interest are a matter of degree. He also says that despite his previous involvement in this case, there are no published guidelines which say that he is now not allowed to represent the 3 accused in this case.

13. In his submissions, Mr. Tunidau relied on the proposition that because the State has an obligation to make full and complete disclosure of the evidence it has against an accused, that no subsequent conflict can arise.

14. Mr. Tunidau says this is because after full disclosure has been made by the State, the accused would know everything that he knows about the case.
    
15. Mr. Tunidau also referred me to the General Orders of the Public Service Commission.
    
16. General Order 307 refers to the Official Secrets Act and says that it is an offence for any Officer to disclose, without authority, any official information, whether confidential or not, acquired during the course of his duties.
    
17. It also says that the provisions of the Official Secrets Act apply similarly to ex-civil servants so far as information is concerned which they obtained or to which they had access to while employed by the Government.
    
18. Mr. Tunidau says that as an ex-civil servant, he is bound by the Official Secrets Act, which stops him from disclosing anything that he may know about this case that the State was not obliged to make available to the Respondents under its usual obligation of disclosure.
    
19. In reply, to Mr. Tunidau’s disclosure argument, the State says that its obligation to make full disclosure is only limited to the evidence that it has accumulated in the case. It is not obliged to disclose the contents of the DPP’s own file which contains information such as the minutes of investigators, which it says Mr. Tunidau had access to.
    
20. From the States Motion, it is obvious that it does not consent to Mr. Tunidau acting for the Respondents in this matter.
    
21. It seems to me that from Mr. Tunidau’s previous involvement in this case as Prosecutor, he may have become aware of matters confidential to the DPP which may, as a real possibility, be helpful to the Respondents case, or to the advancement of their interests.
    
22. If this is the case, I do not see how Mr. Tunidau can avoid the possibility of being embarrassed by continuing to act in this matter. The fact that Mr. Tunidau may have been privy to such information, must certainly undermine his ability to properly discharge his duties as defence counsel.
    
23. In the absence of consent to act by the DPP, Mr. Tunidau’s continued involvement would be in breach of paragraph 1.02 of the Rules for Professional conduct under the Schedule to the Legal Practitioners Act 1997.
    
24. If the Court were to sanction Mr. Tunidau’s continued appearance as Defence Counsel in this matter, it would cast considerable doubt over the proper administration of justice in this court, while at the same time condone a blatant violation of the basic tenants of accepted professional conduct that exist in all common law jurisdictions.
    

25. For these reasons, I will grant the State’s Motion and Order that:

1. Mr. Kevueli Tunidau is debarred from appearing as Counsel in Criminal Case No. 422 of 2006 for RONALD RAKESH NAND f/n Satya Nand, SALVEENSANDEEP PRASAD and DILIP CHAND in all future matters leading to and including the trial.
   

Anthony J Sherry
Judge

Lautoka
13 November 2008