State v Balaggan [2012] FJHC 949; HAC49.2011 (16 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 49 of 2011

STATE

v.

MUSKAN BALAGGAN

Hearing: 15 March 2012
Ruling: 16 March 2012

Counsel: Ms I. Whippy for State
Mr. R. Chaudhry for Accused

RULING

[1] On 13 June 2011, the accused lodged a complaint with the Fiji Police Force that she was raped by Mr Chaudhry on numerous occasions while he was acting as her counsel and surety in this case. On 4 July 2011, she retracted her complaint, saying the allegation of rape was false. She was charged with giving false information to a public servant. On 4 August 2011, she pleaded guilty to the charge and was sentenced to 2 years' imprisonment by the Magistrates' Court.

[2] Meanwhile, Mr Chaudhry continued to represent the accused in this case. It is against the background of false allegation of rape that the accused made against counsel, the Court of its own motion heard an application for Mr Chaudhry's disqualification as counsel for the accused in this case. The basic facts are part of the court records and are not disputed by the accused in her affidavit.

[3] I make it plain that this is not an inquiry of professional misconduct by counsel under the Legal Practitioners Decree. This application is being considered under the inherent jurisdiction of this Court, to secure a fair trial for the accused. A fair trial is the cornerstone of our justice system. It goes without saying that not only must justice be done but it must be seen to be done. The appearance of a just trial is essential if the public confidence in the system of justice is to be maintained.

Inherent jurisdiction to disqualify counsel

[4] In State v Alifereti [2008] FJHC 61; HAC18.2005S (2 April 2008), Mataitoga J, after considering English, Canadian, New Zealand and Australian cases, affirmed this Court's inherent jurisdiction to restrain a legal practitioner appearing for a particular party in a criminal case. The inherent jurisdiction of the Court is invoked to ensure the due administration of justice and to protect the integrity of the judicial process, and not to punish the lawyer.

[5] The test that applies to an application for disqualification of a legal practitioner appearing for a particular party is an objective test. In Grimwade v Meagher [1995] VicRp 28; (1995) 1 VR 446, Mandie J said at 452:

"The objective test to be applied in the context of this case is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause."

[6] Alifereti and Grimwade concerned former prosecutors representing litigants they had earlier prosecuted. There are of course other examples of lawyers being restrained for appearing for a particular litigant. The facts of this case are different. I could not find any cases from other jurisdiction on disqualification of counsel on the facts similar to this case. The most likely reason for lack of case authority is, in other jurisdictions, counsel choose not to continue representation once clients falsely accuse them of rape.

[7] Mr Chaudhry justifies his representation of the accused for two main reasons. First, he submits that he does not have a conflict of interest to represent the accused in this case. Second, he relies on the choice of the accused to retain him as counsel despite the false allegation of rape made against him by her. The motive for making the false allegation is irrelevant for the purpose of this application. Nor there has to be a finding of a conflict of interest to disqualify Mr Chaudhry. The question is whether false allegation of rape against counsel by his client is sufficient ground for disqualification.

Right to counsel of choice

[8] I accept that the right to counsel of choice is a strong factor in favour of the accused to retain Mr Chaudhry for trial in this case. However, 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 right to counsel of one's own choosing (Eliki Mototabua v. The State CAV004 of 2005S).

[9] In State v. Takiveikata Cr. Case HAC005.04S (22 July 2004) Gates J (as he then was) held that the right of counsel of choice must be balanced against other competing interests that exists in the criminal justice system. Some of these competing rights are the right to be tried within a reasonable time, the rights of other litigants awaiting trials, and above all, the right to a fair trial. Regard must be made to the overall interests of justice.

Should counsel of choice be disqualified?

[10] Based on the disclosures filed in Court, a possible defence that the accused may run, depending on the evidence adduced at trial, is duress founded on threats of rape and violence against her by the co-accused and another person who she says was complicit in the alleged offence. At the hearing of the State's application for a joint trial, Mr Chaudhry informed the Court that there is also a possibility of a cut throat defence being run at trial.

[11] It appears to me that there is a real possibility that allegation of rape will resurface in the trial either to found a defence of duress or to run a cut throat defence. When a fair-minded person is informed of all these matters, he or she would apprehend a real risk that Mr Chaudhry would lack the objectivity required of counsel in order to perform his duty to his client and to the Court. This is because he himself was a victim of false allegation of rape by the accused. Furthermore, the accused is entitled to explore all her possible defences objectively, without fear of causing embarrassment to Mr Chaudhry. If Mr Chaudhry continues to represent the accused, the possibility of the trial to miscarry is real.

[12] The accused has demonstrated to this Court that she has an ability to engage different counsel. In her other case in the Magistrates' Court, Mr Vakaloloma and Mr Marawai represented her on separate occasions. A third counsel, Ms Vaniqi represented her on her appeal against sentence to the High Court.

[13] The trial is scheduled to commence on 21 May 2012. The accused has nearly nine weeks before the commencement of trial to instruct a new counsel if Mr Chaudhry is disqualified. So the risk of the accused becoming handicapped in receiving a fair trial due to lack of legal representation is minimum at this stage.

[14] After balancing all these matters, I am satisfied that Mr Chaudhry's disqualification is necessary to ensure a fair trial for the accused and to maintain public confidence in the administration of the criminal justice system.

Result

[15] I make the following orders:

Mr Chaudhry is disqualified from representing the accused effective from today;

Mr Chaudhry must return all disclosures he received in this case to the accused by 3pm today.

Daniel Goundar
JUDGE

At Suva
16 March 2012

Solicitors:
Gordon & Chaudhry for Accused
Office of the Director of Public Prosecutions for State