Chand v The State [2009] FJSC 11; CAV0018.2008S (6 March 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0018 OF 2008S
(Fiji Court of Appeal No. AA00056 of 2006S)

BETWEEN:

ASHWIN CHAND
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Ipp, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Wednesday, 11^th February 2009, Suva

Counsel: Petitioner in Person
Mr W. Kurisaqila for the Respondent

Date of Judgment: 6th March, 2009

JUDGMENT OF THE COURT

1 The petitioner applies for special leave to appeal against his conviction on a charge of murder.

2 The trial was heard in the High Court before Govind J. The assessors unanimously held that the petitioner was guilty of murder. The petitioner was sentenced to life imprisonment with a minimum recommended term of 12 years.

3 The petitioner appealed to the Court of Appeal against his conviction. The main ground of appeal was that the appellant should have been given time to instruct counsel of his own choice and that he was prejudiced by lack of representation. The Court of Appeal (Shameem JA, Mataitoga JA, Scutt JA) unanimously dismissed his appeal.

4 The first ground on which the petitioner seeks special leave to appeal is that Govind J erred in not giving the petitioner sufficient time to engage a lawyer of his choice.

5 The appellant was charged with murder on 17 October 2005. On that date the case was called in the Magistrate's Court and the petitioner was told of his right to legal representation and legal aid. The case was transferred to the High Court and called on 28 October 2005. The petitioner said he would instruct counsel of his own choice.

6 On 27 March 2006 Mr Shankar appeared for the petitioner before Govind J on a bail application. The record states:

"Shankar need to prepare for defence. Beaten up by police while in custody."

Bail was refused.

7 On 7 April 2006 Mr Naivalu appeared for the petitioner. The matter at issue on that date was a bail application. The application was adjourned to 26 April. On that date Mr Naivalu informed the Court that "Full disclosures now delivered." The disclosures were apparently delivered to Mr Naivalu. The matter was adjourned to the next day.

8 On 27 April 2006 Mr Naivalu informed Govind J that a voir dire was needed. He submitted that the prosecution case was "weak". Govind J observed that there were "just over 5 weeks to go before trial." His Lordship granted bail.

9 On 7 June 2006 Mr Naivalu was ill and asked for an adjournment of the trial. According to the record, Mr Naivalu said, "Will agree on facts. Will take 2 days. No voir dire." Govind J adjourned the trial to 13 June 2006. Bail was extended.

10 The record reveals that on 13 June 2006 the following occurred:

"Naivalu: My instructions withdrawn, seek leave.

Court: Mr Chand you have dispersed [sic - dispensed] with your Counsel

Acussed: My father will be in country next week, will arrange for Counsel.

Naivalu: I am writing [sic-willing] to represent."

The case was then stood down. On resumption the following, according to the record, occurred:

"Naivalu: accused still does not wish me to represent him."

Accused: I want another lawyer. Will pay him".

Mr Naivalu was given leave to withdraw. The prosecutor said that all his witnesses were present and he was ready to proceed." Govind J recorded:

"Whole thing of accused one [sic-own] making. No reason for discharging Mr Naivalu."

The case was adjourned to 9:30am the next day.

11 On 14 June 2006 the petitioner appeared in person. According to the record, the following occurred:

"Accused: Will defend myself, ask for 2 weeks to study disclosures.

Court: Did you have it earlier. [?]

Accused: No.

Court: Are you challenging the statement to the police. [?]

Accused: Yes"

The petitioner explained that his case was that his statement to the police was not made voluntarily. Govind J noted in his record.

"Stand down for voir dire. Will give accused till 10:30 am to read evidence of witnesses for voir dire."

12 The disclosures contained, amongst other things, the statements of the petitioner, the relevant police statements and his relevant medical evidence, and comprised more than 125 pages.

13 On 14 June 2006, when the voir dire commenced, Govind J explained the meaning and function of the voir dire to the petitioner who said he understood. At 2:00 pm the petitioner again asked for two weeks adjournment to get lawyers. He said he did not know about the law. Govind J told him that he would guide him on the law. The petitioner then said, "It is OK."

14 As the Court of Appeal noted:

"The learned judge ruled the confessions admissible on 19 June 2006. He said that the appellant's versions of police assault were varied and inconsistent, that he had falsely said that he could not understand Hindi, when his evidence had been taken in Hindi and that the injuries found on him on 17 October were inconsistent with any of his accounts. In particular he had told the doctor that the injury under his fingernails was caused by the police stepping on his fingers with their boots. This is not what he had said in his sworn evidence."

15 On 19 June 2006, immediately after Govind J held the confessions admissible, the petitioner said he was ill and asked for an adjournment until 22 June. The doctor attending him was called and was cross-examined. Govind J ordered the trial to proceed on 20 June.

16 The petitioner cross-examined the State witnesses and gave sworn evidence himself. The case was adjourned to 26 June 2006 to enable him to call alibi evidence. On that date, the petitioner's witnesses did not appear. The case was adjourned to 30 June but neither the petitioner nor his witnesses appeared. A bench warrant was issued and the petitioner appeared under arrest on 31 July 2006. He said that he would not call any further witnesses. The petitioner was then convicted.

17 Before the Court of Appeal, the petitioner (who was then legally represented) argued that, at trial, he should have been given time to instruct counsel of his own choice and he was prejudiced by lack of representation.

18 The Court of Appeal found that the petitioner was given more than sufficient time to instruct counsel. The Court observed:

"For at least five weeks before trial he was on bail and represented. When he dispensed with the services of counsel (who had represented him most competently for the bail application) no reasons were given to the Court. However the Court's refusal to give him two weeks to prepare himself for the trial and to instruct alternative counsel might have constituted a violation of his s 28(1)(d) right if it were not for one inescapable fact. That fact is that the trial was not concluded until 10 August 2005. For several weeks the trial was adjourned because the appellant had absconded. There is no indication that at any time during this period of time, did he make any attempt to instruct alternative counsel. Indeed at the hearing of this appeal he would have remained unrepresented if the Legal Aid Commission had not been ordered to represent him. An adjournment by the trial judge to allow him to instruct new counsel would have been to no avail. The history leads us to the inescapable inference that there never would have been any new counsel".

19 The Court of Appeal's reasoning based on what is described as "one inescapable fact" is not persuasive. As we have noted, the petitioner absconded for about five weeks in the middle of the trial. The notion that, while absconding, he should have found and retained alternative counsel is quite unrealistic. The petitioner, during this period, was evading the processes of the law. He would not then be concerned with attempting to find a new lawyer for the trial from which he had fled. His failure to obtain a lawyer in this period is readily understandable (even if the product of reprehensible conduct) and does not support the inference that "there never would have been any new counsel."

20 The Court of Appeal gave other reasons for dismissing the appeal. In particular, it concluded that the petitioner was not prejudiced by representing himself as he had cross-examined each police officer competently.

21 The Court of Appeal rightly pointed out that the difficulties created by the inconsistent versions that the petitioner gave of the alleged assault would not have been overcome simply by the presence of counsel.

22 In his written submissions to this Court, the petitioner, for the first time, stated that he discharged Mr Naivalu "because he refused to run my case in the manner I wanted and according to my instructions. Furthermore he placed on record his unwillingness to proceed with a 'voir dire' which was contrary to my wishes." He also stated that he had not instructed Mr Naivalu to agree facts and that there should be no voir dire. According to the petitioner, on 8 June 2006 Mr Naivalu told him "he had other cases to attend to in the Magistrate's Court and that his tight schedule allowed him only two days towards my matter". The petitioner said it was clear to him that Mr Naivalu was not interested in his case and was not prepared to give it the full weight of his time, expertise and knowledge.

23 It is significant that at trial (and even in the Court of Appeal) the petitioner gave no explanation for terminating the mandate he had given to Mr Naivalu. The allegations the petitioner now makes against Mr Naivalu are serious and the petitioner's delay in making those allegations means that Mr Naivalu has not had the opportunity of refuting them. Furthermore, the fact that the petitioner has made these allegations for the first time in his petition for special leave means that they cannot be tested by hearing evidence from the persons involved in the usual way, that is, under oath and with cross-examination of the parties concerned. Had these assertions been made at the appropriate time, the State could have adduced evidence that might have prevented the petitioner's argument from succeeding. This is sufficient to preclude the petitioner from raising the argument based on his allegations against Mr Naivalu at this stage: Suttor v Gundowda Pty Ltd [1950] HCA0035; [1950] HCA 35; (1950) 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA0033; [1986] HCA 33; (1986) 162 CLR 1 at 8. We would add that in Ledua v The State [2008] FJSC 31 this Court at [35] pointed out that the factual groundwork for raising complaints about lack of representation at trial must be made during the trial itself. Otherwise, this Court generally declines to entertain contested allegations on such matters.

24 Nevertheless, the petitioner is still entitled to argue that his qualified right to legal representation under s.28(1)(d) of the Constitution was infringed when Govind J required him to proceed with the trial without legal representation on 13 June 2006; that is when, on the first day of the trial, he discharged Mr Naivalu.

25 The petitioner had retained Mr Naivalu for more than 10 weeks prior to the trial. His decision to discharge Mr Naivalu prior to the commencement of the trial was his voluntary act, neither explained to the trial judge nor the Court of Appeal. The termination of Mr Naivalu's mandate at that particular stage was a serious matter. An adjournment of the trial would have led to considerable inconvenience and expense and would have prejudiced the due administration of justice. In the absence of any credible reasonable explanation for such an act, Govind J was entirely justified, in accordance with the criteria discussed in Attorney-General v Silatolu [2003] FJCA 12, to refuse to grant an adjournment on the ground that the petitioner was not represented.

26 There remains, however, another aspect of the matter that might also be regarded as an infringement of the petitioner's right to legal representation.

27 This aspect was dealt with by the Court of Appeal as follows:

"The next question is whether the appellant was prejudiced by representing himself. It would have been advisable to give the appellant a short adjournment of two days before the trial within a trial commenced. This is because he told he Court he did not have time to read the disclosure."

28 This issue, however, rather concerns "the right of every man to a fair hearing before he is condemned [which] lies at the root of the tree of justice" (Griffith CJ in Rowe v Australian United Steam [1909] HCA 25; (1909) 9 CLR 1 at 6). This principle is enshrined in s.29 (1) of the Constitution.

29 The question that arises is whether s.29(1) (and the petitioner's right to a fair trial) was infringed on 14 June 2006 when Govind J adjourned the commencement of the voir dire from 9:30 am to 10.30 am and refused the two weeks adjournment that the petitioner had requested to enable him to read the "disclosures."

30 The fairness of Govind J's ruling depends on when the petitioner first received and read the disclosures. If this occurred only at 9:30 am on 14 June 2006, then, having regard to the very many pages involved and the fact that the petitioner is not an educated person, the period of one hour that he was allowed was far too short. Indeed, it would have been too short for counsel.

31 We have noted that it is likely that Mr Naivalu received the disclosures on 7 April 2006. There is no evidence that the petitioner read the disclosures while Mr Naivalu was acting for him and there was no compelling reason for him to have done so.

32 On 13 June 2006, Mr Naivalu informed Govind J that his instructions were withdrawn. We have observed that after further discussion the petitioner said he wanted another lawyer to represent him. The record says nothing about what then happened to the disclosures. There are a number of possibilities. Mr Naivalu may, unthinkingly, have walked off with the disclosures, or left them on the bar table, or given them to the petitioner. What is significant is that the record shows that on 14 June the next day, after the petitioner asked for an adjournment of two weeks to study the disclosures, Govind J asked him: "Did you have it earlier" and the petitioner said, "No". Also, the record shows that Govind J simply gave the petitioner "till 10:30am to read evidence of witnesses for voir dire."

33 The statement by the petitioner that he did not have the disclosures earlier does not appear to have been challenged by the prosecution or questioned by the Judge. On its face, its natural meaning is that the petitioner did not have the disclosures in his possession until shortly before making that statement. The record of the exchange that we have quoted was made by the judge. In our view, the natural meaning of the words has to be accepted. The inference that flows from the natural meaning is reinforced by the Judge's statement, without any qualification, that he gave the petitioner till 10.30 am to read the evidence. It is reasonable to infer that, had Govind J considered that the petitioner had had more time, prior to 14 June 2006, to read the disclosures, he would have said so.

34 It must be assumed that Govind J gave the petitioner only one hour to read some 125 pages to find what material was relevant and then to prepare to deal with the voir dire. This would have been a daunting task for a skilled and experienced advocate; it was an impossible task for an uneducated layman.

35 The voir dire was of critical importance. The confessional material was the principal evidence against the petitioner. It was unfair to require him, unrepresented as he was, to proceed after one hour's adjournment.

36 The Court of Appeal acknowledged that Govind J's refusal to give the petitioner two weeks to prepare himself for the trial might have infringed his constitutional rights. The Court of Appeal considered that those rights were not infringed because an adjournment would have been "to no avail" as "the inescapable inference [was] that there never would have been any new counsel." We have expressed the view that this inference could not be drawn. Had it not drawn that inference, the Court of Appeal, it seems, would have accepted that the petitioner's constitutional rights had been infringed.

37 The Court of Appeal also said that when the trial proper commenced, the petitioner had had a full six days to read the disclosures. That may be correct, but that petitioner was severely prejudiced in the voir dire which led to the confessional material being admitted in the trial. For the reasons we have given, the voir dire was not fairly held.

38 The Court of Appeal was of the opinion that the petitioner cross-examined the police witnesses competently. We disagree, but even if that were to be correct, the petitioner have been able to cross-examine far more effectively if had he been given, say, 48 hours and not one hour to read the disclosures and prepare for the voir dire.

39 The Court of Appeal said that the police evidence was to the effect that the petitioner had the disclosures and was reading them at the police station. The only police evidence in this regard, as counsel for the State accepted, was that on 15 October 2005 a police officer said that he saw the petitioner at the police station "carrying a set of disclosures," Two points can be made. Firstly, as the disclosures were only provided to Mr Naivalu on 7 April 2006, it is unlikely that some 8 months earlier the petitioner had the relevant disclosures in his possession. Secondly the police officer did not say that he saw the petitioner reading the documents he was holding. The Court of Appeal was mistaken in this finding.

40 The petitioner did not receive a fair trial by reason of the refusal of the trial judge to allow him a reasonable time to read the disclosures and to prepare for the voir dire. This has resulted in a serious miscarriage of justice.

41 We would grant the petition, uphold the appeal, set aside the decision of the Court of Appeal and set aside the conviction. We would remit the matter to the High Court for a new trial, subject to the discretion of the Director of Public Prosecutions in this regard.

The Hon justice Kenneth Handley
Judge of the Supreme Court

The Hon Justice David Ipp
Judge of the Supreme Court

The Hon Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
The First Petitioner in Person
Office of the Legal Aid Commission, Suva for the Second and Third Petitioners
Office of the Director of Public Prosecutions, Suva for the Respondent