State v Rokobukai Junior [2010] FJHC 297; HAC017.2010 (12 August 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 017 OF 2010

BETWEEN:

STATE

AND:

SAULA ROKOBUKAI JUNIOR

Counsel: Mr. Qica - for the State
Mr. Lee - for the Accused

Date of Hearing: 10.08.2010
Date of Ruling: 12.08.2010

RULING

1. The accused above named was charged under section 237 (c) of the Crimes Decree of 2009 for murdering Sushil Devi d/o Ragubar.

2. When the case was mentioned on the 13th May 2010, the accused person informed the Court that he wants to apply for Legal Aid. A date was granted till 27/05/2010.

3. On the 27th May 2010 Mr. Lee appeared for the accused person and bailed him out. The next date was given as 09/08/2010.

4. When the case was taken up on 09/08/2010, the accused appeared without a Counsel. When I inquired from the accused he informs the Court that Mr. Lee is appearing and he had gone to Savusavu to appear in the Magistrates Court.

5. The accused submits that he had been given a full Legal Aid under the reference number of LAC 67/10 date 27/05/2010.

6. Mr. Lee was issued with a notice to appear on the 10/08/2010 to explain why he did not appear on the 09th August 2010.

7. When the case was called 9th August 2010 Mr. Lee appeared and tendered an apology. He further submits that it is not intentional and he made a mistake in entering it in his diary. He sincerely apologise for the non-appearance.

8. Now I consider Section 150 of the Criminal Procedure Decree. It states as follows:

"A judge or magistrate may order any person convicted of an offence or discharged without conviction in accordance with law, to pay to a public or private prosecutor such reasonable costs as the judge or magistrate determines, in addition to any other penalty imposed."

9. To award costs against Counsels is clearly sets out at Section 150 (4) – It refers as follows:

"A judge or magistrate may make any other order as to costs as may be required in the circumstances to –

(a) Defray the costs incurred by any party as a result of an adjournment sought by another party;

(b) Recompense any party for any costs arising from any conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial;

(c) Penalize a lawyer for an improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and

(d) Otherwise meet the interests of justice in any case.

10. In Akinisi Panapasa vs. The State Crim. Misc. HAM 101 of 2010. His Lordship Justice Goundar says:

"The Decree has retained the circumstances provided by the code, there is now a wider power to order costs against either the Prosecution or the defence".

11. Considering the present case I find that Mr. Lee who appeared for the defence has not maintained his Professional Diary. If I state in the Legal Profession Language it is amount to be "double booking" or negligence. Both are condemned and frown upon by the Judiciary.

12. Mr. Lee's act can be considered as Professional Negligence but considering the place he work and his experience in the Bar, I decided to not to report him for Professional Negligence.

13. Considering all factors I decided to impose a nominal cost to Mr. Lee. If he continues on the same manner he will be severely dealt with.

14. I fix the cost as $50.00 to be paid within 14 days.

S. Thurairaja
JUDGE

Solicitors: - Officer of the Director of Public Prosecutions for State
- Officer of the Legal Aid Commission for Accused