Vakaloloma & Associates v Fiji Independent Commission Against Corruption (FICAC) [2017] FJHC 75; HAM17.2017 (8 February 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO: HAM 17 of 2017

BETWEEN : VAKALOLOMA & ASSOCIATES
APPLICANT

AND : FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION (“FICAC”)
RESPONDENT

Counsel : Mr. A. Vakaloloma for the Applicant
: Mr. Aslam for FICAC
Date of Ruling : 08^th February 2017
______________________________________________________________________________

RULING
[Of Withdrawal of Counsel]

______________________________________________________________________________

Introduction

1. The Vakaloloma & Associates (hereafter referred as the Applicant) files this Notice of Motion, seeking following orders inter alia;
   
   1. That the accused’s counsel Mr. Aseri Vakaloloma of Vakaloloma & Associates seeks to withdraw as counsel representing the following accused persons in this case, namely,
      
      1. Ana Laqere,
      2. Laisa Halafi,
   3. That, Mr. Vakaloloma of Vakaloloma & Associates to continue representation of Kiniviliame Taviraki, accused No 10 and Amelia Vunisea accused No 4 in this proceedings,
      
2. The Notice of Motion is being supported by an affidavit of Elena Ratukalou, stating the grounds of this application. The Respondent then filed an affidavit of Catherine Rodan, in opposition to this application. The Applicant then filed an affidavit of Edwin Wainiqolo, in reply to the opposition of the Respondent. The learned counsel for the Applicant informed the court that he wishes to file written submissions and would not make any oral submissions. The learned Counsel for the Respondent informed the court that the Respondent would rely on the affidavit of Catherine Rodan.
   
3. Having carefully considered the respective affidavits of the parties and the written submissions filed by the Applicant, I now proceed to pronounce my ruling as follows.
   
4. This application to withdraw as counsel is founded on two grounds. The first ground is the non-payment of professional fees by the two accused persons, namely Ana Laqere (hereafter referred as the first accused) and Laisa Halafi (hereafter referred as the fourth accused). The second ground is the deteriorating health condition of Mr. Aseri Vakaloloma.
   

The Law and Analysis

5. The Privy Council in Dunkley and another v R ( [1995] 1 All ER 279 at ) held that;
   

“The trial judge should only permit withdrawal if he is satisfied that the defendant will not suffer significant prejudice thereby. If notwithstanding his efforts counsel withdraws the judge must consider whether, and if so for how long, the trial should be adjourned to enable the defendant to try and obtain alternative representation”

6. The Practice Direction No 1 of 2011 on Withdrawal of Counsel in Criminal Proceedings issued by the Hon Chief Justice has stipulated the instances where the counsel may seek to withdraw, where it states that;
   

“Occasionally counsel is obliged to withdraw from a case. This may be because instructions have been withdrawn, counsel no longer feel able to represent the client satisfactorily, or considers there to be a conflict of interest, or conflict with his or her duty to the court in continuing to appear for the client, or that counsel is physically incapacitated from appearing. This is not an exhaustive list of instances, for there are likely to be other and proper reasons for seeking withdrawal.”

7. The Practice Direction has further discussed about the appropriate stage of the proceedings for a counsel to withdraw, where it states that;
   

“At the interlocutory stages leave may more readily be obtained. At the commencement of a trial or during a trial, leave may not so easily be granted.”

Ground I

8. I now turn onto to the first ground, that is the non-payment of the professional fees by the first and fourth accused.
   
9. The Applicant states that he has been appearing for the two accused from the inception of the proceedings, on the basis that the two accused will settle the required professional fees in time. However, neither of them managed to settle their respective fees, leaving the Applicant with no option, but to file this application to withdraw as counsel.
   
10. The Respondent objects, stating that this matter involves with complicated issues and many documents, that makes very difficult for a new lawyer to come in at this stage of the proceedings and represent the two accused effectively.
11. The Practice Direction 1 of 2011, has stipulated the instances where the court is unlikely to permit the counsel to withdraw, where it states that;
    
    4. Where the counsel would be in breach of his or her duty to the client,
    5. Were, though for valid reasons, the application to withdraw is made at the last minute, which would cause postponement of trail, 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.
    6. To enable counsel to undertake an alternative commitment whether of a public or private nature,
    7. Where counsel’s fee in whole or in part has not been paid”
       
12. Accordingly, the late applications of this nature, that could possibly cause delay of the proceedings and waste the time and cost of the stakeholders to the proceedings, are unlikely to succeed. Moreover, the Practice Direction has stated that the court is unlikely to permit the counsel to withdraw on the ground of non-payment of the counsel’s fee.
    
13. The first and fourth accused together with other six accused have been charged with ten counts of Abuse of Office, thirty-five counts of Causing a Loss, and two counts of Obtaining a Financial Advantage. The prosecution has already served the counsel of the accused persons, including the Applicant with nearly twenty folders of documents as disclosures. It appears that this matter involves with complicated factual and legal issues and would possibly require a lengthy hearing. The hearing was scheduled to commence on the 16th of January 2016 and expected to last for nearly three and half months. However, the hearing was not commenced as scheduled due to the application made by the prosecution to amend the information and provide further disclosure. The defence did not object, and was agreed to engage in further pre-trial conference in order to specify the main scope of the hearing. The prosecution and the defence agreed to commence the hearing immediately after the finalization of all the pre-trial issues. Accordingly, the parties have tentatively agreed to commence the hearing on the 13th of February 2017.
14. While the prosecution and other defence counsel are engaged in pre-trial matters in order to commence the hearing, the Applicant filed this Notice of Motion on the 26th of January 2017.
    
15. In view of the nature of the charges and the involvement of lengthy documentation, I find it is very difficult for a new lawyer to take over the first and fourth accused at this stage of the proceedings. The Applicant has been involved from the inception of this matter and well acquainted with the proceedings and issues involved in it. Hence, the withdrawal of the Applicant in representing the first and fourth accused undoubtedly requires a long adjournment in order to arrange a new lawyer for the two accused. Taking into consideration of the busy schedule of this court, I do not find this matter could be taken up for trial again in the year 2017 if the hearing is vacated and postponed due to the withdrawal of the counsel. On the other hand, such a long adjournment of the hearing certainly prejudices the rights of the accused, especially of their right to have expedient and fair trial.
    
16. Prematilaka JA in Nadim v State ( 2015) FJCA 130; AAU0080.2011 ( 2 October 2015) held that the ground of non-payment of fee is not an acceptable ground for the court to allow the counsel to effect a last minute withdrawal. His Lordship held that;
    

“The reason adduced for the last minute withdrawal was the non-payment of fees. It appears that the agreement on fees itself had been signed belatedly on the 06 June 2011. The matter of fees should have been attended to well before the counsel got entrenched in the proceedings of the case before court to a point of no return. Lack of due diligence appears to have taken place down the line at some point of time. The failure on the part of the Appellants to settle the agreed fees was not an acceptable ground for the court to allow the counsel to effect a last minute withdrawal.

Therefore, I cannot find fault with the refusal of the High Court Judge to permit the withdrawal of counsel on the basis that non-payment of fees is not an acceptable ground and the application itself had been belatedly made. The undue waste of time of court and the long postponement of the trial that could have most likely resulted from the withdrawal are also valid reasons to justify the refusal which is in compliance with the Practice Direction No.1 of 2011 dated 06 April 2011 issued by His Lordship the Chief Justice.”

17. In view of the above reasons and judicial precedent enunciated by the Fiji Court of Appeal in Nadim v Sate (supra), I find the first ground advanced by the Applicant has no merit.
    

Ground II

18. I shall now draw my attention to the second ground, that is the deteriorating health condition of the Applicant. The Applicant claims that he has been diagnosed with uncontrolled diabetic and high blood pressure, that conditions have eventually affected his eye sight. He tendered a copy of a sick sheet in Form 62 in order to support his claim on deteriorating health condition.
    
19. Though, the applicant claims that his deteriorating health condition prevents him to represent the first and fourth accused, he is still representing the third and seventh accused in the hearing. The Applicant has not made any application for adjournment of the scheduled hearing on the ground of his deteriorating health conditions in respect of the third and seventh accused. Accordingly, it appears that the Applicant’s claim on his deteriorating health condition is self-contradictory.
    
20. Be that as it may, the medical report tendered by the Applicant has no mention about his deteriorating eye condition as it only states the Applicant is suffering from ill-health and unfit for 9 to 14 days. The Doctor has not given any indication of such uncontrolled diabetic, high blood pressure or deteriorating condition of eye sights as claim by the Applicant.
    
21. In the absence of the any material to establish his claim of deteriorating health condition that prevents him to represent the first and fourth accused, I do not find any merit in the second ground advanced by the Applicant.
    
22. Section 51 of the Legal Practitioners Decree 2009 has specifically identified the professional status of the lawyer in court, where it states that;
    

“Every person practising as a practitioner and being the holder of a current practising certificate shall be deemed to be an officer of the Court.”

23. Officer of the court has an obligation to promote justice and effective administration of justice. Hence, every lawyer has an utmost and noble duty towards the court of law. This fundamental and noble duty towards the court, defines the role and duty of the lawyer. However, a lawyer's duties are not carried out in a vacuum. While facing financial and competitive pressures, lawyers must fulfill and balance their duties to the client, opposing counsel, the administration of justice and society. Accordingly, I do not find the refusal of this application, would prejudicially affect the rights of the two accused in this proceedings.
    
24. In conclusion, I refuse this Notice of Motion and dismiss it accordingly.
    

R.D.R.T. Ragasinghe

Judge

At Suva
08^th February 2017

At Suva
Vakaloloma & Associates for the Applicant
Office of the Fiji Independent Commission Against Corruption for Respondent