State v Takiveikata [2011] FJHC 128; HAC005.2004 (16 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC005 of 2004

STATE

V

RATU INOKE TAKIVEIKATA

Hearing: 6 September 2010
Reasons: 16 February 2011

Counsel: Mr. D. Toganivalu for State
Mr. V. Vosarogo for Accused

REASONS FOR DECISION (ADJOURNMENT)

[1] This case is before the court for a re-trial. On the eve of the trial, the accused withdrew his instructions from Mr. A. Naco, who was counsel on record. On the day of the trial, the accused engaged a new counsel, Mr. V. Vosarogo, with limited instruction to vacate the trial completely so that he could instruct overseas counsel of his choice.

[2] After hearing submissions from counsel, I refused to vacate the trial completely. I made an order postponing the trial by one week to allow the accused to prepare for his trial. I further recommended that a senior counsel from the Legal Aid Commission assist the accused to prepare for his defence and his cross-examination of the crucial prosecution witnesses.

[3] The case was stood down to the afternoon for the Director of Legal Aid Commission, Mr. S. Sharma, to appear in the case as amicus currie. Mr. Sharma appeared in the case and offered to assist the accused.

[4] The following day, the case was called in court to check if the accused had accepted the assistance of the Legal Aid Commission. Both Mr. Sharma and Mr. Vosarogo appeared. Mr. Sharma advised the court that the accused refused to accept any assistance from the Legal Aid Commission. Mr. Sharma was granted leave to be excused.

[5] Mr. Vosarogo advised the court that the accused has engaged Mr. Maiden, SC, who was willing to represent the accused in his trial on 13 September 2010. An email correspondence between the accused's spouse and Mr. Maiden, SC, was tendered in court as proof that Mr. Maiden had been engaged. The case was adjourned to 13 September 2010 for the commencement of trial.

[6] On 13 September 2010, Mr. Vosarogo appeared and advised the court that Mr. Maiden, SC, will not be appearing and that he had been instructed by the accused to represent him in the trial. Further, Mr Vosarogo offered to explain the reasons for Mr. Maiden, SC, not appearing, but in court's view, the explanation was irrelevant in light of the accused engaging Mr Vosarogo for the trial.

[7] The court now publishes the reasons for not vacating the trial.

[8] The power to postpone or adjourn proceedings is contained in section 223 of the Criminal Procedure Decree. Section 223 provides:

"(1) If the court considers it necessary or advisable to postpone the commencement of the trial or to adjourn the trial by reason of the absence of witnesses or any other reasonable cause (which shall be recorded in the proceedings), the court may –

(a) From time to time postpone or adjourn it on such terms as it thinks fit and for such time as it considers reasonable;"

[9] Section 223 is in similar terms with its predecessor, section 283 of the Criminal Procedure Code.

[10] The use of the word "reasonableness" in section 223 of the Decree connotes that the grounds for an adjournment of trial must be assessed using an objective criterion. In the present case, the accused applied to adjourn his trial so that he could engage overseas counsel to represent him. There is no suggestion that the accused could not find a competent counsel locally to represent him. According to the record, the accused had previously engaged services of local counsel albeit in his first trial and on appeal to the Court of Appeal, he was represented by different overseas counsel. In the Supreme Court, the accused was represented local counsel. In this regard, engagement of overseas counsel is simply a choice of the accused. The question is whether it is reasonable to vacate the scheduled trial completely to allow the accused to engage overseas counsel, having regard to the entire circumstances of the case.

[11] Mr. Vosarogo submitted that the accused is charged with a serious offence and he is not in a position to competently defend the case in person. Further, it is submitted that the accused had always maintained the position that he wants overseas counsel of his choice to represent him in the trial.

[12] The right to legal representation is conferred by statute or the constitution as there is no such right in common law. Whilst I accept that it is desirable that an accused, who is charged with a serious offence, is legally represented at trial, I also bear in mind that the right to legal representation is not absolute (Ratu Jope Seniloli & Ors. v. The State Criminal Appeal No. AAU0041 of 2004 and Seremaia Balelala v. The State Criminal Appeal No. AAU0003 of 2004S). Nor is there an absolute constitutional right to counsel of one's own choosing (Eliki Mototabua v. The State CAV004 of 2005S).

[13] There are good reasons for not construing the right to counsel as an absolute right. In Albertino Shankar and Francis Narayan v. The State Criminal Appeal No. CAV0008 of 2005S the Supreme Court stated:

".....To construe s.28(1)(d) as conferring an absolute right to counsel of choice would seriously impede the administration of justice. Such a construction would, practically, be unworkable. It is implicit in the section that the right to counsel conferred thereby is qualified by considerations of reasonableness. The Constitutional right is one which must be exercised at the proper time. It cannot be exercised on the eve of the trial to force an adjournment."

[14] Similar observations were expressed by Gates J (as he was then) in the first trial of the accused. In State v. Takiveikata Cr. Case HAC005.04S (22 July 2004), Gates J was faced with a similar application that is before this court. Gates J at paragraph 26 of the ruling said:

"A court must be on its guard against manipulation. For instance, an Accused unwilling to come to trial or one who seeks to de-rail a trial, could keep chopping and changing his counsel. This was done (to no avail) in Greer (1992) 62 A Crim R 442 and Haset Ali v SPC Ltd and Anor. [1993] HCA 47; (1993) 116 ALR 625. Sometimes an Accused claims incapacity from illness falsely, or resorts to the silly tactical games that trial advocates have often referred to as "playing ducks and drakes", thus deliberately causing delay. In R v Cox [1960] VicRp 102; [1960] VR 665 the Full Court of the Supreme Court of Victoria said of the exercise of the court's inherent power to adjourn or not to adjourn in such cases (at p.667):

"The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a very different matter. In this case, these include such matters as the opportunities which the applicant had since committal of engaging counsel, the fact that he had not engaged counsel, the state of the court list, the inconvenience and expense which would or might be caused to others by granting the adjournment, whether it was desirable or convenient that the applicant's case should be adjourned and that of his co-accused proceed alone and whether he was of opinion that the application was really made for the reason advanced. A judge is not so naïve as not to know of the manoeuvring that sometimes goes on to avoid a trial before one judge in order to get a trial before another who is supposed to be more favourable for the accused, and he may well be critical of applications for adjournments."

[15] Similarly in R v De Oliveira [1997] Crim.L.R. 600, the English Court of Appeal took the view that an accused is entitled to be represented by counsel of his choice if that is reasonably practicable; whether it is reasonably practicable will depend not only on the availability of counsel but also on such matters as the availability of a suitably equipped court, the availability of witnesses and the timescale appropriate to the case. The overriding consideration must be the requirements of justice, for the prosecution and for the defence, in the circumstances of the particular case.

[16] In the present case, there is not doubt that the accused had been given ample opportunity to engage overseas counsel of his choice after the re-trial was ordered by the Court of Appeal on 27 June 2007.

[17] On 13 July 2007, the case was called before Shameem J. The accused was represented by Mr. D. Sharama, a senior counsel in Fiji. The State informed the court of its intention to appeal against the Court of Appeal judgment to the Supreme Court. Eventually, an appeal was filed and on 24 July 2008 the Supreme Court dismissed the State's appeal.

[18] On 3 October 2008, Mr. D. Sharama withdrew as counsel on record for the accused with the leave of the court. The accused engaged Mr. A. Naco and he appeared as his counsel until instructions were withdrawn from him by the accused before the commencement of the re-trial. Clearly in these circumstances the right to counsel of choice is being used to delay the re-trial and it would be unreasonable to grant an adjournment.

[19] The application for adjournment is refused.

Daniel Goundar
JUDGE

Solicitors:
Office of the Director of Public Prosecutions for State
Mamlakah Lawyers for Accused