Fiji Independent Commission Against Corruption v Qarase - Ruling [2012] FJHC 1170; HAC027.09 (21 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 027 of 2009

FIJI INDEPENDENT COMMISSION
AGAINST CORRUPTION

V

LAISENIA QARASE

Counsel : Mr. V. Perera and Ms. Sanmogam for FICAC
Mr. Q. Bale for the Accused

Date of Ruling : 21st June 2012

RULING

1. The Accused is charged with 6 counts of "Abuse of Office" contrary to section 111 of the Penal Code Cap 17 and 3 counts of "Discharge Of Duty With Respect To Property In Which He Has A Private Interest" contrary to section 109 of the Penal Code, Cap 17.
   
2. The application before this Court by the Defence is to vacate the trial date fixed for 3rd July 2012.
   
3. In support of this application, by the affidavit of the accused dated 18th June 2012, it is submitted that the accused person's counsel has informed the Fiji Independent Commission Against Corruption [FICAC] that with his counsel he would start searching for a suitable and affordable Senior Counsel or Queens Counsel. The accused has approached few senior local counsel to represent him and he says that it had been difficult to find a local senior counsel who is sufficiently independent and willing to represent him. He therefore seeks the vacation of the trial date to allow him to find a senior independent counsel.
   
4. FICAC strongly objects to the application stating that they have already incurred lot of expenses on its overseas counsel and the witnesses and also that the accused was already given sufficient time to find a counsel.
   
5. The amended information was filed and was finally settled on 2nd September 2011.
   
6. On 17th October 2011 the accused pleaded not guilty to the charges and on an application by the Defence the trial date already fixed for 31st October 2011 was vacated for the Defence to get ready and a new trial date was fixed for 22nd November 2011.
   
7. On 4th November 2011, the Defence again applied for the vacation of the trial date which was scheduled to commence on 22nd November 2011 stating that the accused wished to retain an overseas counsel who is independent. FICAC had already engaged an overseas counsel, was ready for the trial on 22nd November 2011 and objected to the application. However considering the application by Defence the court vacated the trial date to allow the accused to engage a counsel.
   
8. On 10th February 2012 when the matter was mentioned to fix the trial date, the Defence counsel Mr. Bale informed the Court that they have found two overseas counsel who will be available on 2nd July 2012 for the trial and that they would decide on one of them. With the agreement of both parties the trial was fixed for 3rd July 2012 for 4 weeks. From the previous trial date of 22nd November 2011, the Defence had more than 7 months to engage a counsel for defence.
   
9. The Court has granted the accused more time than he requested on the 4th November 2011 to now see this application is founded on the same grounds. The Defence did not make any reference to the two overseas counsel they said that they have found and are available for this trial date.
   
10. An accused has a right to retain counsel of his choice and be able to adequately present his defence. That is the fundamental part of access to justice and a fair trial. However that this right is neither absolute nor indefinite. (Dunkley v The Queen [1995] 1AC 419). This means that the court and the justice system cannot wait indefinitely until the accused has found a counsel of his choice.
    
11. On this aspect the Court of Appeal in Takiveikata v State Crim. App. No. AAU0030.04S. 16 July 2004 commented:
    

"We accept also that there is ample authority to the effect that the right to counsel of choice is a right which is not unrestricted but must be exercised reasonably having regard to the circumstances and bearing in mind the comments contained in the Canadian case of Hunter et al v Southam 21-11 D.L.R. (4th) 641 which emphasizes the unremitting protection of individual rights enshrined in the Constitution."

12. The accused's right has to be balanced with factors like the need for an expeditious trial, public interest and case management. This is not an exhaustive list.
    
13. The Court must realistically give enough time for the accused to retain a counsel of his choice and a period of over 8 months has been given to the accused after charges were finalized and the accused pleaded not guilty. The time granted was and is sufficient for the accused to engage a counsel and prepare for his defence. It seems that the time has not been used wisely and the court cannot allow any extension of time.
    
14. Delay in a criminal justice system is detrimental to all parties, the prosecution and the defence, and it is this injustice of delay that the court must prevent. A vacation of the next trial date will mean that this court at least will not be able to grant any early fixture as the whole year is fully booked.
    
15. The prosecution will also be prejudiced in that they have found an overseas counsel for the session and witnesses are ready. Overseas counsel do not have their diary free at all times. Adjourning the case will jeopardize the prosecutions position in securing the services of the counsel at a date suitable to the court and the defence.
    
16. To prevent any further delay and the prejudice as a result, I refuse to vacate the hearing date and order that it stands for trial on the same day.
    

Priyantha Fernando
Judge