Balaggan v State [2012] FJHC 1141; HAM077.12 (21 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Misc. Crim. Case No: HAM 077 of 2012
(Criminal Case No: HAC 049 of 2011)

BETWEEN:

MUSKAN BALAGGAN
Applicant

AND:

THE STATE
Respondent

Hearing & Ruling: 21 May 2012
Counsel: Applicant in person
Ms I. Whippy for State

RULING

[1] The accused, Balaggan seeks the following orders:

I disqualify myself from presiding in her case.

The trial be vacated to allow her to engage counsel.

The proceedings be permanently stayed.

[2] The orders sought are contained in a motion supported by an affidavit from Balaggan filed on 14 May 2012. The documents are in legal form. On 17 May 2012, the Court enquired from Balaggan how she managed to file legal documents when she is unrepresented and is in custody on remand. Balaggan informed the court that an employee of her former counsel's law firm, namely Gordon & Chaudhry was assisting her to draft the documents. The Court was further informed that this employee was not a legal practitioner.

[3] The disclosure by Balaggan that her former counsel was still engaged after an order from this Court disqualifying him from representing her raised serious concerns regarding the conduct of counsel concerned. If there is any truth in what Balaggan told this Court, the legal practitioner concerned might be in violation of the order of this Court. The Court cannot turn a blind eye when the legal practitioners disregard court orders. But to avoid disruptions to the trial that is scheduled to commence this morning, I will deal with the issue of potential contempt by the legal practitioner concerned after the conclusion of the trial. Meanwhile, I order the clerk of court to forward a copy of the court transcripts and all documents filed in court by Balaggan after her counsel was disqualified to the Legal Practitioners Unit for an investigation.

[4] The first order Balaggan seeks is my disqualification. In her affidavit she outlines the circumstances which she says give rise to an apprehension of bias. The circumstances arose in the trial within trial that was conducted to determine the admissibility of her caution statements at the High Court, Lautoka on 26 April 2012.

[5] I do not find it necessary to outline those circumstances in my ruling. Most of what she alleges is out of context and is not a true reflection of the court record.

[6] The test for disqualification is whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. (Chaudhry v State HAM160 of 2010).

[7] The trial within trial was conducted in an open court. The proceedings were audio recorded. There is nothing in Balaggan's affidavit that would give an informed and reasonable observer of the proceedings to perceive bias against the judge. If anything, the informed observed after learning how Balaggan conducts herself before the Court will apprehend that she is engaged in forum shopping by making repeated applications for disqualification. No valid ground exists for my disqualification and the application is refused.

[8] Balaggan seeks to vacate the trial to engage counsel. After the Court disqualified Balaggan's counsel, she was advised to instruct new counsel. Balaggan insisted that she be represented by her former counsel and elected not instruct a new counsel for trial. Surely she has an ability to engage new counsel. She instructed Ms Vaniqi to represent her in an appeal in an unrelated case. She instructed Mr Jasveel Singh to seek my disqualification before the commencement of the trial within trial.

[9] Balaggan has been given ample opportunity to engage counsel. She elected not to engage counsel for her trial. The fact that is unrepresented is her own making. I also have to bear in mind the interests of the co-accused who has been waiting in custody on remand since 26 January 2011 for trial. After taking into account all these factors and the overall interests of justice, I refuse to grant an adjournment.

[10] Balaggan seeks a stay of the proceedings if the disqualification and an adjournment are refused. Stay of criminal proceedings is an extreme step to take only if there is nothing the trial judge can do to avert an unfair trial arising from lack of legal representation (Dietrich v The Queen [1992] HCA 57; [1992] 177 CLR 292).

[11] In the present case, Balaggan is unrepresented by her own making. While appearing in person, she filed numerous applications in legal forms demonstrating considerable knowledge of the law. She conducted her own trial within trial. She effectively cross-examined the prosecution witnesses in the trial within trial. There is nothing before the Court to suggest that her trial will be unfair due to her being unrepresented. In these circumstances, I am not willing to take the extreme step of staying her prosecution.

[12] The applications are refused. I order the trial to commence without any further delay.

Daniel Goundar
JUDGE

At Suva
21 May 2012

Solicitors:
Applicant in person
Office of the Director of Public Prosecutions for State