State v Alifereti [2008] FJHC 61; HAC18.2005S (2 April 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
CRIMINAL JURISDICTION
AT SUVA

Criminal Misc Case No. HAC 18 of 2005S

BETWEEN:

THE STATE

AND

PITA ALIFERETI
PELI KETE DOVIYAROI
JOSEFA TIKO TAPELE

Counsel: Ms. Andie Driu for the State
Mr. Kevueli Tunidau for all three Accused

RULING

1. In this proceeding by way of Notice of Motion dated 8 February 2008, Ms Andie Driu State Prosecutor, seeks an order inter alia: ‘restraining and/or prohibiting Mr. Kevueli Tunidau from continuing as counsel for all the above named accused in the criminal proceedings herein’.
   
2. Copies of the Notice of Motion and the affidavit filed by the State were served on the respondent. They in turn have filed several affidavits and written submission. Both the state and the respondent have also filed and exchanged written submissions in support of their arguments.
   

Issues for Determination

3. Given that the Order prayed for in this application is asking the court to restrain defence counsel to act, the issues for determination in my view are:
   
   1. Has the High Court jurisdiction to control the representation of parties before it?
      
   2. Does the right of an accused person to legal counsel of his/her choice under section 28(1)(d) of the Constitution take precedence?
      
   3. Whether on the facts in this case, the interest to enhance and effective and efficient administration of justice, in particular to protect the integrity of the judicial processes, would be eroded if the order prayed for is not granted?
      

The Background Facts

4. The three accused in this trial were initially tried before my brother Mr. Justice Winter on the same charges which they now face again before me. The trial before Mr. Justice Winter was aborted and a new trial ordered because there were irreconcilable differences between the three accused and their legal counsels, Mr. Iqbal Khan and Mr. Kevueli Tunidau. The disagreement concerns a section of the Agreed Facts wherein one of the accused had made concessions that he had made cheque payments to another co-accused. The accused disputed giving any consent to their counsels to make these concessions in the Agreed Facts.
   
5. Before the trial proper started, there was a voir dire hearing held on 16 – 19 July 2007. The subject of that hearing was to determine the admissibility of unsworn statements made by the three accused to the police at various dates between 2002 and 2004. The record showed that Mr. Kevueli Tunidau appeared with Mr. Iqbal Khan as counsels for all the accused.
   
6. In his ruling on the matter of the application of defence counsel to withdraw, Mr Justice Winter set out the background circumstances in paragraph 2 and 3 thus:
   

‘[2]. Towards the end of yesterday’s trial hearing the accused clearly took issue with the agreed facts and in particular that section relating to their concession that various cheques had been paid by one of the accused to his co-accused. The result of which was that Mr. Khan advised me this morning in open court that he was told by the accused that he was acting against instruction when he signed the agreed facts.

[3]. This quite appropriately in my view led to Mr. Khan to make an application for both himself and his junior Mr. Tunidau to withdraw as they were embarrassed by those turn of events and could not proceed to defend the accused’. [emphasis added]

7. Before the mistrial commenced, a statement of Agreed Facts was filed in Court and it was signed by Ms Andie Driu as the State Prosecutor, Mr. Iqbal Khan, as Senior Counsel for the three accused and endorsed by the trial Judge, Mr. Justice Winter. Some aspects of this Agreed Facts was objected by the accused.
   
8. The State Counsel had asked the Court to inquire into the circumstances surrounding counsel’s withdrawal before granting an adjournment, but Justice Winter declined because the Court of Appeal case of Ravuwai & Others v The State [2006] FJCA 51 ‘does not encourage any enquiry of counsel’s embarrassment’.
   
9. Affidavits have been filed by Mr. Iqbal Khan for the State and the three accused persons on behalf of Mr. Tunidau. Most of what was deposed to by the three accused would have been better assessed for their truthfulness if there was an enquiry by Mr. Justice Winter because he was best placed to determine the claim by the three accused persons and Mr.Tunidau, that the first time they saw the Statement of Agreed Facts was when it was produced in court. They further claimed that it was never discussed with them at any time.
   
10. I have perused the Court Record on the issues raised and discussed during the pre-trial hearing leading up to the mistrial. I note that the Judge’s Notes for the following dates 22 June 2007, 9 July 2007 and 10 July 2007 recorded that, in open court when all the three accused were present, counsels for both parties had discussed the development draft agreed facts. This will be noted is at variance with the claim made by all three accused persons in their affidavit, that there were no discussions at all of any agreed facts, but all evidence will be contested with strategies and plans developed for these.
    

Court’s Jurisdiction – Has the court powers to restrain counsel?

11. It is now settled law in Fiji, that the High Court has the inherent jurisdiction to restrain a legal practitioner from appearing as counsel for one of the parties before it, if it is in the interest of protecting the integrity of the justice system, so requires. His Lordship Mr. Justice Gates held so in State v Khan & Singh [2003] FJHC 225(HAM: 018/2003) after discussing and adopting New Zealand and Canadian authorities referred to below. Madam Justice Shameem in Shah v Nand [2003] FJHC 205(HAM 018/2003), admittedly in a different context to the present case, held that the High Court has inherent jurisdiction to effectively control its procedures where there are no statutory provisions covering the same.
    
12. In Taylor v Attorney General [1975] NZLR 675, Richmond J, said at page 682:
    

‘But when one speaks of inherent jurisdiction of the Court, wide statutory powers of the kind now in question the problem really becomes one of powers ancillary to the exercise by the Courts of their jurisdiction in the primary sense just described. Many such ancillary powers are conferred by statute or by rules of court, but in so far as they are not so conferred, they can only exist because they are necessary to enable the Courts to act effectively within their jurisdiction in the primary sense.’

13. This principle was authoritatively settled by the New Zealand Court of Appeal in Black v Taylor [1993] 3 NZLR 403. In the judgment of Cooke P at page 406.26, his Lordship said:
    

‘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 309; 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 right of a representative appearing 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.’

14. Richardson J in the same case, said of the due administration of justice in this regard:
    

‘The High Court has an inherent jurisdiction to control its own process except as limited by statute. As an incident of 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 efficient and effective administration of justice – Halsbury’s Laws of England (4th Edition Para 396)’

And further on at page 409.50:

‘ I would hold that in principle where it is established that the interests of justice so require 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’

15. A similar view was expressed by the Divisional Court in Ontario in Everingham v Ontario (1992) 88 DLR (4th) 755 at page 761 cited with approval in Black v Taylor (supra):
    

‘ It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interest of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached..........The issue is whether a fair-minded reasonably informed member of the public would conclude the proper administration of justice required the removal of the solicitor.......................... The public interest in the administration of justice requires unqualified perception of its fairness in the eyes of the public ... the goal is not just to protect the individual litigant but even more importantly to protect public confidence in the administration of justice ’

16. On the facts in this case and in the light of the case law authorities cited above, I am satisfied that there are no statutory provisions in our laws to cover the situation herein question. Therefore the issues raised by the State application is to be determined by the exercise of powers inherent in the court’s jurisdiction to ensure that the efficient and effective administration of justice is not prejudiced and that justice is not only done but seen to be done.
    
17. I am further satisfied that, in this case, if the factual basis is established, this court has power to restrain a lawyer to appear as counsel and this is part of the inherent powers to control judicial processes to protect the integrity of the court processes and to enable it to effectively carry out its statutory jurisdiction.
    

Section 28(1)(d) of the Constitution- Rights of an Accused Person to legal counsel of choice

18. The three accused persons in this case have a right under section 28(1)(d) of the Constitution to be represented by counsel of their choice. Does that right supercede the Court’s inherent powers to control judicial proceeding before it to ensure that the administration of justice is efficient and effective? It does not. However, it is an important factor for the Court to consider in evaluating the competing interests that must be weighed, if counsel of choice for a party is to be retrained from appearing for that party.
    
19. The constitutional right conferred under section 28(1)(d) to an accused person is right to choose a counsel. It is not an absolute right. I adopt the following statement in Pham v Taylor & Anor [2000] VSC 53, wherein Nathan J stated:
    

‘The authorities.... establish a person accused of serious criminal offences is entitled to be represented by competent counsel. That does not mean a particular counsel, although circumstances may arise, when to retain counsel, other than the individual of particular choice might create an injustice. It is commonplace that a particular counsel of first choice is not available.’

20. It is a right that the court will consider carefully along with other factors in weighing up in the final consideration of the relevant and competing rights and interests raised in an application such as the one here: State v Khan & Shah (supra). From the above authorities, I hold that the right of the accused persons to choose their counsel under section 28(1)(d) of the constitution would not be infringed if their present counsel would be restrained by the court from representing them. A critical consideration in this regard is the stage of the trial has reached and whether any prejudice will be caused to the accused persons if their counsel were to be restrained by the court from continuing to represent the accused
    
21. Nevertheless, it is a serious matter to prevent a party from legal counsel of their choice. In R v Khazaal [2006] NSWSC 1353 the court said that it has inherent powers to restrain an accused person’s choice of legal counsel if it is to protect the integrity of the judicial process.
    

Should the Court intervene and restrain Mr.Kevueli Tunidau from representing the three accused persons in this trial?

22. The State as applicant in this matter submits that Mr. Kevueli Tunidau should be restrained by the Court from representing the three accused person in this trial. I have summarized the grounds submitted in support of their application as follows:

1. To allow Mr. Tunidau to act as counsel for the accused would compromise the right of the parties to fair trial.
   
2. The role played by Mr. Tunidau as counsel assisting Mr.Iqbal Khan in the mistrial and the preparation of the defence for the accused. That trial was discontinued after Mr. Iqbal Khan and Mr. K. Tunidau withdrew as counsels, following their claim of professional embarrassment, after the three accused persons disputed certain concessions made in the Agreed Facts that was tendered, which the three accused claimed to be made without their consent.
   
3. Mr. K. Tunidau in his present role as counsel for the same three accused persons in the trial of the same charges would find himself in serious position of conflict with regard to the instruction he will receive in this trial; his duty as an officer of this Court and his duty to his client should his new instructions be cause him ethical embarrassment.
   

23. The State had filed two affidavits of Mr. Iqbal Khan in support of their claim with regard to the role of M. Kevueli Tunidau in the preparation of the defence strategies and the Agreed Facts for the three accused leading up to the mistrial before Mr. Justice Winter. Mr. Khan’s first affidavit sworn on 7 February 2008 and filed in Court on 8 February 2008, at paragraph 7 to 14 inclusive states the following: [my summary]
    
    1. Mr. Kevueli Tunidau sat in on various discussions with all the accused pertaining to their trial;[para 7]
       
    2. Mr. Keveuli Tunidau was conversant with instructions furnished by all accused;[para 8]
       
    3. Mr. Tunidau was actively involved and aware of instructions by all accused leading to the filing of the Agreed Facts between the State and the Defence on 23 July 2007;[para 9]
       
    4. In both Mr. Khan’s view and that of Mr. Tunidau the Agreed Facts that was filed was in strict compliance with client instructions;[para 10]
       
    5. Mr. Tunidau was regarded as the lead counsel by Mr. Khan in the trial;[para 11]
       
    6. It was Mr. Tunidau who conducted the cross examination of SP Nasir Ali and it was the subject of that cross-examination that led all accused taking issue with the said Agreed Facts;[para 12]
       
    7. Due to professional embarrassment cause to them, by the change in their client’s instructions both Mr. Khan and Mr. Tunidau withdrew as counsels.
       
24. Pita Alifereti’s affidavit sworn on 14 February 2008 responded to all the above matters. He agreed with Mr. Khan but providing his explanation for the basis of his agreement to each of those matters. For this proceedings the court is only concerned with, whether Mr. Tunidau, given his deep and extensive involvement in preparing and appearing actively in the trial before Mr Justice Winter, before it was aborted, should be allowed to again represent the same accused persons in the retrial of the matter. In that regard not all the matters deposed in Alifereti’s affidavit are relevant. I summarise the relevant parts of Pita Alifereti’s affidavit as follows:
    
    1. Pita Alifereti did not deny that Mr. Tunidau had a thorough and comprehensive discussion with the acccused;[para 42.3]
       
    2. Do not deny Mr. Tunidau was actively involved in preparing defence case. Preparation was geared towards challenging all evidence;[para 42.5]
       
    3. Mr. Khan have not submitted any documentary evidence that the three accused persons consented to the Agreed Facts; [para 42.6]
       
    4. Confirms that the accused took issue with the Agreed Facts whilst Tunidau was cross-examining ACP Nasir Ali; [para 42.9]
       
    5. Mr. Khan can only speak for himself when he submitted in court that they were professionally embarrassed.[para 42.10]
       
25. The two co-accused Peli Doviyaroi and Josefa Tapele adopted the matters deposed to by Pita Alifereti in the above referred affidavit.
    
26. Pita Alifereti’s affidavit deposes to matters of no particular relevance to the issues that I need to satisfy myself with to make my determination in this matter. The major part of this affidavit deposes to matters that would be relevant in an enquiry proceedings seeking to establish the basis of the claim of professional embarrassment caused to counsels that led to the mistrial being ruled. This is one of those proceedings and I will not refer to those issues here. I am also mindful that the accused persons have lodged a complaint with the Fiji Law Society against Mr. Khan arising from the circumstances of the mistrial.
    
27. Mr. Khan in his first affidavit had said that discussions involving the Agreed Facts were carried out with Mr. Tunidau’s active participation and with accused consent. In reply, Mr. Alifereti’s at paragraph 42.5 of his affidavit, does not deny that Mr. Tunidau was actively involved in the preparation of the defence case, but towards challenging all the evidence. In paragraph 42.6 Alifereti’s affidavit, he claim’s that Mr. Khan is not in a position to prove that the accused persons consented to the Agreed Facts.
    
28. Mr. Khan in his second affidavit sworn on 12 March 2008, annexed a ‘Draft Proposed Agreed Facts’ as ‘exhibit A’. On the face of it, it had the signature of Pita Alifereti and Josefa Tapele but not Peli Doviyaroi. The response by the accused person to this was to allege certain conduct on the part of Mr. Khan that may be criminal in nature.
    
29. At paragraphs 8 to 18 (inclusive) of Mr. Khan’s second affidavit provided an explanation on how the ‘Draft Proposed Agreed Facts’ was developed. In paragraphs 8, 9 and 10 Mr. Khan explains Exhibit A was a ‘draft proposed Agreed Facts’ that was discussed by the parties. The crosses and ticks against certain parts of the document represents outcome of discussion and instructions between the parties. Mr. Khan’s affidavit also deposed that:
    
    1. Mr. Tunidau was present when the parties, that is the State and the defence proceeded to inform the learned trial Judge in Chambers on the day of the trial, 23 July 2007 of the Agreed Facts; [para 12][summary]
       
    2. Mr. Tunidau was present in Court when State Counsel opened the case for the state and referred to the Agreed facts. Copy of the Agreed Facts was available on the bar table.
       
30. The response to matters raised by Mr. Khan, in particular the ‘Draft Proposed Agreed Facts’ was from Josefa Tapele who filed a second affidavit sworn on 18 March 2008. Both Pita Alifereti and Peli Doviyaroi adopted paragraphs 6 to 25 of Josefa Tapele additional affidavit in theirs sworn on 18 March 2008. Again the bulk of the matters they raise are that at no time did Mr. Khan disagree with the defence strategies they had all discussed with Mr. Tunidau and Mr. Khan did not object to the manner of cross-examination on ACP Nasir Ali by Mr.Tunidau.
    
31. Without determining the truth of the matters deposed in all the three accused affidavits filed in this proceeding, the undisputed fact is that both Mr. Khan and Mr. Tunidau withdrew as counsel because they were professionally embarrassed due to change in instructions from their clients. This must have been their considered position because when Mr. Khan made their withdrawal application as counsel for the accused before Mr. Justice Winter, that was the ground in support of their application. The learned Trial Judge was duty bound to accept and as he rightly observed he was constrained by the Court of Appeal decision in Ravuwai(supra) from enquiring in the circumstances surrounding the claim of professional embarrassment.
    
32. From all of the above, it is clear that Mr. Tunidau was one of the counsel representing the three accused at the time the mistrial was declared by Mr. Justice Winter. It is also clear from paragraph 3 of the Extempore Decision by the trial judge that the application to withdraw as counsels for the three accused, due to professional embarrassment was for both Mr. Khan and Mr. Tunidau. In other words both counsels were embarrassed. It is also clear that Mr. Tunidau played a very active and often leading part in developing the defence case strategy and in the many discussions with the accused persons about the evidence and how it may be handled during the trial.
    
33. There is nothing in the affidavits filed by the three accused persons and Mua Panapasa to address the obvious question: if Mr. Tunidau was professionally embarrassed then, what has changed in the circumstances of the case and his duty to this court, to enable him to ensure that he will not be embarrassed again in this trial, thereby causing undue delay in the disposition of a very important trial? How is the interest of justice, in particular the integrity of the judicial process being enhanced by his involvement again as counsel for the same accused persons facing the same charges now, as in the mistrial before Justice Winter?
    
34. There no certainty to possible answers to the above question. The only person who can throw light on possible answers is Mr. Tunidau himself. But for him to do that would be to place him in the position of a witness and that is a totally unacceptable position given the conflictual issues involved. Thomas J said in Kooky Garments Ltd v Charlton [1994] NZLR 587 at page 590 observed that the ‘integrity of the judicial process is undermined if solicitors or counsel do not possess the objectivity and independence which their professional responsibilities and obligations to the court require them...if, therefore, the solicitors or counsel are in default in this regard, the Courts not only may intervene, but in all probability, should intervene.’
    
35. For a court to allow the possibility of that situation to remain would in my view be inconsistent with its duty to protect the integrity of the judicial process, which is an essential component of the proper administration of justice for which the inherent jurisdiction is precisely there to protect. When the Court makes such an order, it must be clear that it is not a punishment for misconduct. Rather it is a protection for the parties and for wider interests of justice. As Richardson J concluded in Black v Taylor (supra) at 412, ‘where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and in some cases the only effective remedy’
    
36. Having carefully considered the relevant facts and having considered the relevant principles of the applicable law, I have discussed above, and also the right of the accused to retain counsel of their choice, I conclude that given the fact that there has been a mistrial in which Mr. Tunidau had withdrawn as a counsel for the same accused persons, on grounds that he was professionally embarrassed, that a fair-minded and reasonably informed member of the pubic would conclude that the integrity of the judicial process on these facts requires that Mr. Kevueli Tunidau be prevented from acting as counsel for the same three accused in the re-trial of the same charges. There is no prejudice likely to be caused to the accused persons in this trial to brief new counsel. The trial is fixed for hearing on 7 July 2009, some 3 months from now.
    
37. In my view not to grant the order prayed for in this proceeding may lend the appearance to the reasonable observer that it is acceptable conduct to appear as counsel for party in a criminal trial; withdraw as counsel on the grounds of professional embarrassment only to re-appear as counsel in the retrial of the same matter, involving the same accused persons, without due regard to the mockery it may cause to the administration of justice and the costs to public revenue. The interest of the State and the fact that the State as a party; it too must be accorded equality and fairness in a trial. Not to restrain counsel, in my view, would be subversive of the appearance that justice is seen to be done: D & J Construction Pty Ltd. V. Head (1987) 9 NSWLR 118, at 123 per Bryson J.
    
38. In reaching the above conclusion I find support from Mr. Justice Mandie’s statement in Grimwade v Meaghre [2995] 1 VR 466, at page 455, after referring to the fact that it is a serious matter to deprive accused person his right to retain counsel of choice, he nevertheless concluded that an order restraining counsel to act was made because: ‘I am satisfied for the reasons which I have given that such an order should be made to ensure the due administration of justice and to protect the integrity of the judicial system and in order not only that justice is done but be manifestly and undoubtedly be seen to be done’. [emphasis added].
    
39. I therefore make the following Order:
    

‘That Mr. Kevueli Tunidau is henceforth restrained from appearing as counsel for the three accused [Pita Koney Alifereti, Peli Kete Doviyaroi and Josefa Tapele] in the criminal proceeding herein’

Isikeli Mataitoga
JUDGE

At Suva
2 April 2008