State v Nawaqalevu [2010] FJHC 298; HAC025.2010 (12 August 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 25 OF 2010

BETWEEN:

STATE

AND:

1. ESIRA NAWAQALEVU
2. WAISELE MOIERE
3. TOA TURAGACATI
   

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

Date of Hearing: 10 August 2010
Date of Ruling: 12 August 2010

RULING

Background

1. This matter was mentioned before the High Court of Labasa on the 9th August 2010 for taking plea from the accused persons.

2. When the case is called the accused persons were present but unrepresented.

3. The records reveal that these accused persons were given Legal Aid, and they also confirms of getting the Counsel from Legal Aid.

4. When I inquired from the accused persons, they submit that the Counsel who is appearing for them had gone to Savusavu to appear in the Magistrates Court.

5. Now I peruse the Magistrates Court record of Nabouwalu. When this was called on the 24th June 2010 the proceedings states as follows:

"24/6/10

Prosecution - Mr. Kaisami

Accused:	Mr. Lee
Accused:
Accused:

All 3 Accused present in Court.

Lee: Legal Aid will representing 3 Accused in Court.

Court: 09/08/10 for taking of plea in High Court".

6. As per the above entry the Legal Aid was given to all three accused persons and Mr. Lee was appearing from the 10th March 2010 up to 24th June 2010.

7. When the order was made by the Learned Magistrate, Mr. Lee was there and it is his duty to enter it in his diary and appear on the relevant date.

8. This is a case the accused persons are solely depending on the Legal Aid Counsel. When the Counsel is so irresponsible the Public may loose faith in the entire system.

9. Now I consider section 150 of the Criminal Procedure Decree 2009. Especially section 150 says as follows:

150-(1) 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.

(2) A judge or magistrate who acquits or discharges a person accused of an offence, may order the prosecutor, whether public or private, to pay to the accused such reasonable costs as the judge or magistrate determines.

(3) An order shall not be made under sub-section (2) unless the judge or magistrate considers that the prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the matter.

10. Section 150 (4) sets out under what circumstances a cost can be awarded. Now I refer section 150 (4).

(4) 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 any 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.

11. 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".

12. 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.

13. Further Mr. Lee accepts his mistakes and ask for forgiveness from the Court.

14. Now I consider whether Mr. Lee has committed an act which amount to be a Professional Negligence.

15. Considering all available materials, I am of the view that Mr. Lee has acted in a negligent manner.

16. Considering the experience in the Bar and the place he work, I am not considering to report him to the Chief Registrar for Professional Negligence.

17. After considering the circumstances and the plea in mitigation by Mr. Lee, I find Mr. Lee was negligent and decide to order Mr. Lee to pay cost in a sum of $50.00 to the Court within 14 days.

18. I wish to place it on record that the amount is only a nominal cost if he continues with the same type of conduct severe action will be unavoidable.

S. Thurairaja
JUDGE

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