Gordon & Chaudhry Lawyers v State [2011] FJHC 392; HAC16.2010 (23 June 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 16 of 2010

In the matter of an application for withdrawal of Counsel brought under the inherent jurisdiction of the High Court in criminal matters.

BETWEEN:

GORDON & CHAUDHRY LAWYERS
Applicant

AND:

THE STATE
Respondent

Date of Ruling: 23/06/2011

RULING

[1] The accused persons Ravinesh Vikash Padiyachi and Mohammed Nadim are charged with 2 counts of the offence of Murder and with one count of the offence of Larceny.

[2] The trial is fixed for 4 weeks commencing from 27/06/2011.

[3] On 17/6/2011 Mr S. Valenitabua of Gordon & Chaudhry Lawyers appearing for the accused persons made an application in court orally, for his firm to withdraw as Counsel on record for both accused persons. The reason for the application for withdrawal was non-payment of legal fees by the accused persons.

[4] Thereafter on 20/6/2011, a formal affidavit of Gyaneshwari Ram who is an employee of Messrs Gordon & Chaudhry Lawyers (the firm) was filed in support of the oral application made by the Counsel.

[5] In her affidavit she states that in terms of the agreement signed by both parties, the two accused persons and the firm, the accused persons have failed to pay the legal fees by 10th June 2011 and that both the accused persons are not serious about paying their Counsel and therefore the firm is compelled to withdraw as Counsel on the ground of non-payment of fees. A copy of the said agreement signed between the accused persons and the firm was produced as an annexure ("GR 1") to the said affidavit.

[6] Counsel for accused Mr S. Valenitabua supporting the application submitted, that the application to withdraw as Counsel is solely based on the non-payment of legal fees and that Mr Chaudhry had gone abroad expecting that the accused persons would pay the fees.

[7] Counsel for Applicant did not render any assistance to the court on the legal position to decide on the inherent jurisdiction of the court to decide on the matter. Further Counsel did not make any legal submission on the issue of withdrawal as Counsel for non-payment of fees. However, parties have not challenged the inherent jurisdiction of this court to decide on this application. Counsel for Respondent (State) assisted court by filing a succinct written submission on the issue.

[8] On 31/8/2010 both 1st and the 2nd accused pleaded not guilty to the charges and the trial date was fixed for 27/6/2011 onwards and Pre Trial Conference was fixed for 6/5/2011. Mr I. Khan appeared for the 1st accused and Ms. Vaniqi from Legal Aid Office appeared for the 2nd accused.

[9] On 21/4/2011 Mr Iqbal Khan filed an application to withdraw from the case and the matter was supported in court on 26/4/2011. On that day Mr Chaudhry appeared for the 2nd accused and he informed court that Mr Khan has gone overseas for medical treatment. Mr Khan was allowed to withdraw from the case and the 1st accused was granted time to retain a private Counsel as he requested.

[10] From the records it is apparent that on 5th May 2011 Mr Naidu appeared for both accused persons on the instructions of Mr Chaudhry. Pre Trial Conference was fixed for 1/6/2011.

[11] On 1/6/2011 both parties informed court that they are considering the agreed facts and moved for further time. On that day Mr R. Chaudhry appeared for both the accused persons. Pre Trial Conference was re-fixed on 6/6/2011.

[12] On 6/6/2011 Mr Chaudhry appeared for both accused persons and informed court that he had asked for further documents from State and moved for further time for Pre Trial Conference and therefore Pre Trial Conference was re-fixed for 17/6/2011.

[13] The application to withdraw as counsel was made thereafter on 17/6/2011 as mentioned above. This is neither a situation where there is conflict of interest between the Counsel and the accused, nor the Counsel seeks withdrawal for an ethical reason.

[14] When this application was supported by Mr Valenitabua on 21/6/2011 the 2nd accused on his own submitted a typed letter stating that his legal representative wants to withdraw from the case and seeking for time to pay the legal fees indicating his financial difficulties. On questioning by court the 1st accused too informed court, that he will have to retain a private Counsel and that he has financial difficulties.

[15] The Supreme Court of Canada in R v Cunningham 2010 SCC 10; [2010] 1SCR 331 deciding that, a court does have the authority to refuse criminal defence Counsel's request to withdraw for non-payment of legal fees said in paragraph 22 of the said judgment;

"The reasons in favour of courts exercising this jurisdiction are numerous. An accused, who becomes unable to pay his lawyer, may be prejudiced if he is abandoned by Counsel in the midst of criminal proceedings. Proceedings may need to be adjourned to allow the accused to obtain new Counsel. This delay may prejudice the accused, who is stigmatized by the unresolved criminal charges and who may be in custody awaiting trial. It may also prejudice the Crown's case. Additional delay also affects complainants, witnesses and jurors involved in the matter, and society's interest in the expedient administration of justice. Where these types of interests are engaged, they may outweigh Counsel's interest in withdrawing from a matter in which he or she is not being paid".

[16] In Fiji, on withdrawal of Counsel in criminal proceedings, his Lordship the Chief Justice has issued the Practice Direction No. 1 of 2011 dated 6/4/2011. Summarizing the direction in paragraph 6 it is said;

In summary the court is unlikely to permit withdrawal;

(a) Where Counsel would be in breach of his or her duty to the client.

(b) Where, though for valid reasons, the application to withdraw is made at the last minute, which would cause postponement of trial, wasted witness costs whether attending from overseas or locally, or where by the withdrawal a waste of court time and public funds is likely to be occasioned.

(c) To enable Counsel to undertake an alternative commitment whether of a public or private nature.

(d) Where Counsel's fees in whole or in part has not been paid.

[17] This practice direction was issued under the hand of the Honorable Chief Justice for efficient and fair administration of Justice in court. That direction must be followed without question, as there is no legal challenge in respect of the same.

[18] In this case, Mr Chaudhry appeared having instructions from both the accused persons when the trial date was already fixed. The annexure marked as "GR 1" as referred to in the affidavit of Gyaneshwari Ram is filed of record. The said undertaking was taken from the accused persons on 6/6/2011 according to the "GR1". However, Mr R. Chaurdhry appeared for the accused persons in the substantive matter much before that date. Even on the 26th April 2011, Mr Chaudhry appeared for the 2nd accused and on 5th May 2011 Mr Naidu had appeared on the instructions of Mr Chaudhry for both accused persons. However, the said undertaking to pay the legal fees was taken on 6/6/2011, at the last minute, even after appearing for accused persons on several occasions in the substantive matter.

[19] The trial is fixed for 27/6/2011 and this application is made orally on 17/6/2011 and formally on 21/6/2011. Therefore, it is an application made at the last minute, where accused persons would not have sufficient time to obtain legal representation of another Counsel if the application is allowed. The accused persons are on bail. Yet the court will have to adjourn the trial if this application for withdrawal is allowed for the accused persons to get legal representation. The two accused persons are charged with the most serious offences of murder, where in fairness they should have legal representation.

[20] In this court the trial roll extends to August 2012 and therefore if an adjournment is to be granted, the next possible trial date would be in August/September 2012. That would affect the accused persons by hanging over their heads these serious charges and also would affect the state witnesses. Time of court too will be wasted as there is no sufficient time to refix another Trial during that period.

[21] The length of the trial can be shortened by considering the agreed facts when submitted by both parties.

[22] In the above premise I find that this is not a fit case for the grant of the application by the Counsel to withdraw. Hence, the application is refused.

Priyantha Fernando
JUDGE

At Suva
23/06/2011