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Balaggan v State [2016] FJSC 47; CAV0022.2016 (4 November 2016)

IN THE SUPREME COURT OF FIJI
[APPELLATE CRIMINAL JURISDICTION]


Criminal Petition No. CAV 0022 of 2016
[On Appeal from AAU 048 of 2012]


BETWEEN


MUSKAN BALAGGAN


Petitioner


AND


THE STATE


Respondent


Coram : Hon. Mr. Justice Sathyaa Hettige, Judge of the Supreme Court

Hon. Mr. Justice Brian Keith, Judge of the Supreme Court

Hon. Mr. Justice Kankani T.Chitrasiri, Judge of the Supreme Court


Counsel: Mr. S. Nandan for the Petitioner

Mr. S. Vodokisolomone for the Respondent


Date of Hearing: 14 October 2016


Date of Judgment: 4 November 2016


JUDGMENT

Sathyaa Hettige, J


  1. The petitioner was jointly charged with one Elton Xhemali with one count of “Attempted Exportation of Illicit Drug” namely cocaine, contrary to sections 9 and 4 of the Illicit Drugs Control Act 2004. The petitioner was also charged with one count of unlawful possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Control Act of 2004.
  2. After trial in the High Court which lasted from 21st May to 31st May 2012 the assessors returned a unanimous opinion of guilty of the charges which was accepted by the learned trial Judge and the petitioner was convicted as charged on 1st June 2012 and was sentenced to a term of 11 years and 6 months on each count with a non-parole period of 9 years which was made concurrent to each other on 4th June 2012 but consecutively to a sentence of 18 months’ imprisonment the petitioner was serving for an offence which she has committed while being on bail for the drugs offence.
  3. Being aggrieved by the decision of the High Court dated 4th June 2012 Ms Balaggan, the petitioner filed a Notice of Appeal seeking leave to appeal against the conviction and sentence to the Court of Appeal on 27th June 2012 on 29 grounds of appeal. The petitioner further filed an amended Notice of Appeal in the Court of Appeal on the 30th June 2012.
  4. The single Judge of the Court of Appeal after hearing, on 4th December 2014, leave to appeal was granted on some of the grounds of appeal against the conviction and leave to appeal was granted against the sentence.
  5. The Full Court of Appeal on 27th May 2016 after hearing came to the conclusion that the petitioner’s arguments were basically confined to the issue of right to the counsel and refusal of adjournment and having considered all the arguments of the counsel the Court held that the appeal grounds lacked merit and the appeal was dismissed.
  6. The petitioner is seeking special leave to appeal against the decision of the Court of Appeal dated 27th May 2016 from the Supreme Court. The petitioner’s leave application dated 27th June 2016 is based on the following grounds of appeal.

The principal grounds of appeal are as follows:


(i) That the Court of Appeal erred in law in failing to hold that there was a miscarriage of justice when:

(a) The learned trial Judge had erred by not adopting section 14(2)(d) of the Constitution of Fiji and/the common law that preceded the Constitution, in that your petitioner had a right to be represented by counsel and/or a legal aid lawyer provided, as the charge was serious and issues were complex; and such failure led to a miscarriage of justice;


(b) The learned trial Judge erred in his interpretation of section 214(9) of the Criminal Procedure Decree 2009 when he did not allow your petitioner adjournment to consider her objection and preparation of her defence and/or the learned trial Judge failed to exercise his discretion in a judicial manner when refusing the appellant an adjournment to engage a counsel;


(c) The learned trial Judge failed to assist your petitioner with provision of a lawyer and/or legal aid as the learned Judge by exercise of his discretion had inferred that the counsel engaged was incompetent to represent the appellant;


(ii) The Court of Appeal erred in law in failing to hold that the learned trial Judge had erred in law when:
  1. It appears on a careful reading the above grounds of appeal, the principle grievance and the major issue of the petitioner is as to the right of the petitioner to be legally represented at the trial and in view of the Court of Appeal decision the right to counsel has been affected and led to an unfair trial.
  2. However, before dealing with the main ground of appeal on lack of legal representation that was argued at the hearing of this application it is relevant to consider the brief facts of this case.

BACKGROUND FACTS


  1. The petitioner and Xhemali had been staying at Hexagon Hotel as guests in Nadi. Xhemali had checked in on 12th January 2011 and the petitioner had checked in on 24th January 2011. When the petitioner had checked in Xhemali had paid for her room for nights in advance and wanted a room for the petitioner next to his room. No such room had been available. On 26th January 2011 the petitioner had been seen in Xhemali’s room prior to checking out. On that day both the petitioner and Xhemali had come to the front desk to check out and when they checked out both the petitioner and Xhemali were together and the petitioner paid the balance of her bill with her credit card. When they left the hotel that evening they did so at the same time in different taxis.

The petitioner and Xhemali checked in separately that day at the Nadi International Airport for a flight bound for Melbourne which was to depart at 6.25pm. The petitioner was the last passenger to check in with one bag. A search had been done of the two bags of both. The petitioner opened the bag which she had checked in. A powdery substance which had formed crystal-like deposits had been noticed on the clothes inside the bag of the petitioner and the clothes had been unusually stiff. When she was asked about the contents she had stated that that the bag belonged to Healy who had denied knowing anything about the bag. The police had thereafter taken photographs of the contents of the petitioner’s bag. Thereafter the petitioner was escorted from the airport to the Border Police Station and both the petitioner and Xhemali were detained and arrested. When the clothes in the petitioner’s bag were chemically tested in Australia the deposits on the clothes were found to be cocaine. The quantity of cocaine was found to consist of 521.6 grams of pure cocaine.


The petitioner was interviewed under caution several times by the police after the arrest and she admitted that she had known that clothes in her bag had been soaked with chemicals which could be converted into drugs.


GROUND OF APPEAL ON RIGHT TO COUNSEL


  1. The main ground of appeal which concerns the issue on right to counsel and the failure of the trial Judge to grant an adjournment to the petitioner can be dealt with together as both issues are identical. The same grounds of appeal had been argued and discussed in the Court of Appeal in paragraphs 10 to 13 of its Judgment. It appears from the contents in those paragraphs that the Court of Appeal has carefully considered the relevant and existing judgments on the issue of right to counsel in Fiji which are very useful to determine the issue before this court. The courts in Fiji have accepted and recognized the right to counsel in cases involving serious charges. However, it is important to state that the right to counsel is not an absolute right.
  2. The petitioner relies on the Constitutional provisions contained in section 14 (2)(d) of the Constitution of 2013 which provides for the right to counsel. It was the contention of the respondent that at the time of the trial in the High Court the present Constitution had not been promulgated and therefore it was not imperative for the petitioner to be granted Legal Aid assistance if the petitioner did not choose to instruct them as counsel of choice.
  3. It is relevant to refer to a Court of Appeal judgment cited by the respondent counsel wherein the issue as to whether an accused person is prejudiced by the lack of legal representation was discussed in detail. The Court of Appeal in Jope Ramalasou v State Criminal Appeal No. AAU0085/07 observed as follows:

“This court has on several occasions explained the practical limits on the right to counsel. The right to counsel is not absolute. Where an accused person is indigent, the right to be provided with representation under the Legal Aid Scheme must depend on the interests of justice. Although, as this court observed in Asesela Drothi v State Cr. App. AAU1/05, 24 March 2006:


It is preferable to that anyone facing a serious charge should be able to be represented by counsel. Unfortunately the limited resources of the State and the financial circumstances of many defendants mean they are unrepresented. In such circumstances the trial court should ensure that the defendant has been allowed reasonable time to instruct counsel. Whenever an accused is unrepresented the court should explain the procedure sufficiently for the accused to be able to conduct his defence.


The question for this court is whether there is a possibility that he was adversely prejudiced by his lack of representation. In the present case, the record shows that he was given adequate time to find counsel, he was advised correctly of his rights by the trial Judge and conducted his case competently.”


  1. It is to be noted that however, the courts in Fiji have shown their respect for the accused persons’ rights to have a fair trial. In Nalawa v State [2010] FJSC 2; CAV0002.2009 (13 August 2010) Court recognized the rights of the accused persons to represent them as when is said as follows:

“... The courts here have shown at all levels their respect for the rights of accused persons to a fair trial that is a trial according to law. This includes the right to counsel, right to disclosure, right to adequate time and facilities in order to prepare a defence, the right to remain silent, and the right to trial without delay ...” (emphasis added)


  1. In Balelala v State [2004] FJCA 49; AAU0003.2004S (11 November 2004) the Court of Appeal said although it is desirable for the accused to have legal representation this right is not absolute. The absence of counsel is not necessarily fatal to a conviction which is obtained after a trial which is fairly conducted (Seremaia Balelala v State) (supra) 2010).

The question is whether the trial miscarried as a result of the appellant being unrepresented. In Samuela Ledua v The State Criminal Appeal CAV004 as alleged by the petitioner. Esala Tabaloa v The State Criminal Appeal No. AAU0058/08 (15 July 2010).


  1. I would like to carefully examine what the court said with regard to a fair trial when the appellant is unrepresented. In Ledua v State (2008) FJSC 31; CAV0004.2007 (17 October 2008); the court when dealing with the point on right to counsel and fair trial observed as follows:

“The independent constitutional right to a fair criminal trial (s 29(1) means issues of fairness in procedure require separate consideration. Nevertheless, the terms in s28(1) (d) and the non-applicability of Dietrich’s Case in this country mean that a trial is not necessarily unfair for want of legal representation. A trial may be fair or unfair whether or not the accused was legally represented. Fairness to an unrepresented accused will impose certain burdens on a trial judge that are generally well known and do not call to be addressed in this appeal.” (emphasis added)


  1. In Esala Tabaloa v State case (supra) the court observed in paragraph 9 of the judgment that:

“On the 13th May 2008, the trial commenced before Shameem J. The appellant did not seek any further adjournment to engage counsel. He did not complain that he was incapable of conducting his own case without assistance from counsel. In opening remarks to the assessors the learned Judge highlighted the appellant was represented and that the court had a duty to assist him. We discern from the court record that the trial was conducted fairly. The trial Judge was an experienced judicial officer. The trial procedures were explained to the appellant. The appellant was given an opportunity to cross examine the prosecution witnesses and call his own witnesses in his defense. Wherever possible the learned Judge assisted the appellant in cross examination of the prosecution witnesses and with his defence. The appellant of course, may have advanced his defence better, if he was represented. However, from the manner the trial was conducted and regard to the evidence against the appellant which we will highlight later in our Judgment, we are satisfied that the trial did not miscarry due to the appellant being unrepresented. This ground of appeal fails.”


  1. In view of the observations made by court in the above cases referred to in Paragraphs 15, 16 and 17 of my Judgment and the manner in which the trial Judge had explained the rights to the petitioner after he decided to proceed with the trial the petitioner decided at the end of the prosecution case, not to give evidence. The petitioner stated to court that she understood her rights and she would remain silent and further she will not call any witnesses. (Please see the proceedings at page 388 of the Court of Appeal case record, Volume 2)
  2. It can be seen on a perusal of the proceedings of the court record that the petitioner has cross examine the prosecution witnesses at length. In view of the position it cannot be said that the trial miscarried and the petitioner did not have a fair trial. Therefore I conclude that there was no miscarriage of justice caused to the petitioner as the trial was conducted fairly in the Trial Court and the petitioner’s trial was fair.
  3. It must be stated that the trial Judge has given ample opportunity to the petitioner to secure a counsel of her own choice but the petitioner did not want to get the services of another counsel except Mr. Chaudhary who had been disqualified by the court.
  4. It can be seen from court Supreme Court record (State submissions at page 175) when the petitioner made an application for further adjournment to secure counsel on the date of the trial Goundar J has ruled as follows:

“(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 to 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 she 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.”


  1. On a reading of the above it is obviously clear that the trial Judge did not deny the petitioner of her right to counsel but ruled that she has been given adequate time to engage counsel.

DISQUALIFICATION OF MR. CHAUDHARY


  1. It is also pertinent to mention as to why Mr. Chaudhary was disqualified from appearing for the petitioner. Mr. Chaudhary being the counsel who had been appearing for the petitioner from 8th March 2011 had acted as surety for the petitioner when she was granted bail. After that, the petitioner moved into his house where he lived with his wife and young son. A few months later she complained to the police that she was raped and was sexually abused by Mr. Chaudhary. After about three weeks she withdrew her complaint. The police charged the petitioner with the offence of making a false information to a public servant. She pleaded guilty to the charge and was sentenced to 2 years imprisonment. When the petitioner was sentenced for the drug offence she had been serving that sentence. Goundar J expressed his concern about Mr. Chaudhary’s continuance of appearing for the petitioner and ruled on 16 March 2012 that Mr. Chaudhary should be disqualified from representing the petitioner as there was a conflict of interests. From that time the petitioner was advised to engage a new counsel to represent her.

LEGAL AID ASSISTANCE


  1. We observe that there is no reference or any indication that the petitioner made an effort to get Legal Aid assistance to represent her at the trial. In fact it can be seen that she had sufficient time to engage a counsel. It is stated in paragraph 8 of the Ruling given by the single Judge dated 4th December 2014 that the petitioner had a period of 9 weeks after Mr. Chaudhary was disqualified till the next trial date to engage a counsel. But the petitioner appears to have not made use of the time given to her by court.
  2. On 16th April 2012 the court record purports to state that one Mr. J.P. appeared for the 1st accused (the petitioner) which appears to be incorrect. The following proceedings in Court Record show that the petitioner did not engage a counsel at that time. (Court Record Pp. 276 and 277)

“1st Accused: I don’t want to engage any other lawyer. I am appealing against your recusal decision to the Court of Appeal.


Court: You have any disclosures?


1st Accused: I don’t have my disclosures. I returned the disclosures to Mr. Chaudhary.


Court: State will provide the accused with a spare copy of disclosures. Accused given ample opportunity to engage counsel. Co-accused is objecting delay. Trial within trial will commence on 26/04/2012 at Lautoka High Court. P.O. Box, Lautoka High Court.”


At page 279 of the Court Record it is stated in the proceedings as follows:


“Accused: I managed to speak to Mr. Singh. I am not ready yet.


Court: The accused has been given ample opportunity to instruct counsel. She has demonstrated to this court that she has an ability to instruct counsel. The voire dire hearing was set on 27/02/12- that is about 2 months ago. Delay is a concern for this court. Adjournment is refused. The court will assist the accused with the procedures and explain her rights.


Court: Voire dire procedures explained to the accused,

Right to cross examination explained to the accused.”


  1. Originally the voire dire hearing had been fixed for 27th February 2012. The voire dire hearing was later set down to 16th April 2012, however, the voire dire hearing was further put off for 26th April 2012 at Lautoka High Court on which day Mr. J. Singh was representing the petitioner with limited instructions. However, Mr. Singh too withdrew as counsel from representing the petitioner.
  2. The voire dire hearing was held as scheduled and the petitioner represented herself. After the voire dire hearing on 1st May 2012 trial Judge held that the caution interview statement and the charge statement were admissible. The proceedings contained in the record of the Court Record show that the petitioner has ably cross-examined the prosecution witnesses at the voire dire hearing. The learned trial Judge pronounced the ruling stating that the caution interview statement and the charge statement were admissible and could be led in evidence.

GROUND 2 ON AMENDMENT OF INFORMATION


  1. State Counsel moved for an amendment of the Information in terms of the provisions of Criminal Procedure Decree 2009 to renaming of the statement of the offence charge in the Information. By the Amendment the State moved to file the Amended Information charging both accused jointly for attempted exportation of illicit drugs in count 1 and the petitioner was charged with possession of 521.6 grams of pure cocaine. As there was no material change to the Particulars of Offence the trial Judge allowed the application for amendment of the Information by exercising judicial discretion of court. The learned trial Judge noted that the amendment sought by the prosecution did not substantially change the allegation the petitioner had to meet. However, the learned Judge adjourned the case to the afternoon as the petitioner sought adjournment to consider the effect of the amendment. I do not find any error in allowing the amendment of the Information by exercising its judicial discretion.
  2. In Eliki Mototabua v State [2011] FJSC 10; CAV0005.09 (12 August 2011) the Supreme Court endorsed the decision by the High Court at Lautoka in Sada Siwan v State HAA050.2008L dated 29th August 2008 and observed as follows:

“... An order made pursuant to section 201 (2) (b) is clearly discretionary. The law in relation to an appeal against the exercise of discretion is settled. The discretion will be reviewed on appeal, if the trial courts act on a wrong principle, or mistakes the facts, or is influenced by extraneous considerations or fails to take account of relevant considerations. In addition, if it should appear that on the facts the order made is unreasonable or plainly unjust, even if the nature of the error is not discoverable, the order will be reviewed (House v the King (1936) HCA40; 1936 55 CLR 499. Evans v Bartram (1937 AC 473). Failure to give weight or sufficient weight to the relevant consideration will also vitiate the exercise of a judicial discretion but only if that failure is central to the exercise of the discretion. (Charles Osenton & Co. v Johnston (1942) AC 130.”


and I refuse the ground of appeal urged by the petitioner on failure of the trial Judge to grant any adjournment on the amendment of the Information.


  1. The argument of the petitioner is that the trial Judge did not exercise the judicial discretion judiciously and he was wrong when the trial Judge refused the petitioner’s application for an adjournment to consider the subsequent amendment of the Information and by allowing the hearing to proceed with without legal representation. This point was raised in ground of appeal no. 2 in the Court of Appeal which had been discussed and dealt with sufficiently.
  2. The next issue is whether the petitioner failed to inform the trial Judge, when she asked for an adjournment what steps she took to retain a new counsel. This matter was raised at the hearing of this application. The petitioner failed to inform the trial Judge what active efforts she made to retain a new counsel. The learned Counsel for the petitioner submitted that the petitioner applied for legal assistance to the Indian High Commission, but however, no offer of assistance was made by the Indian High Commission. The letter that had been sent by the Indian High Commission was made available to court but that letter was on a different subject about funding the analysis of drugs and not on a request for legal representation. It is obviously clear that the petitioner did not show any material to establish the fact that she made active efforts to retain a new counsel except for the fact that she got assistance from the law clerks in the disqualified counsel’s firm to make applications for adjournment and recusal. The petitioner’s preference appears to have been to secure the services of a law clerk. In these circumstances, the petitioner has no basis for complaint before this court about infringement of her rights.

GROUND 3


  1. This ground of appeal is on the fact that the learned trial Judge erred in not assisting the petitioner with provision of a lawyer and or Legal Aid and thereby the petitioner did not have a fair trial. It can be seen from the case record that the petitioner was reluctant to engage a new lawyer and insisted on the services of Mr. Chaudhary who was disqualified.
  2. It is the petitioner who should have applied for Legal Aid. There is no material or indication that she applied for Legal Aid. I observe that in this case that there is no question about the petitioner being ignorant of her right to seek Legal Aid.
  3. In Samuela Ledua v State (supra) the observed in paragraph 35 as follows:

“Quite often this court has been presented with arguments by convicted petitioners raising complaints about lack of representation at trial for the first time on appeal to the Court of Appeal or this court. This is most unsatisfactory and when we have generally declined to entertain contested allegations on such matters when the factual ground work has not been laid in the trial court....”


  1. It is a well established principle of law that the constitutional right to a counsel the petitioner complains of does not give an absolute right. The lack of legal representation is not necessarily fatal to a conviction. (Seremaia Balelala v State (supra).)
  2. In these circumstances I conclude that the above ground of appeal has no merit and should fail.

SENTENCE APPEAL


  1. The petitioner complains that the sentence imposed on the petitioner was harsh and excessive and court did not consider her young age and failed to give any order of prospects of rehabilitation. All 3 grounds of appeal on sentence can be dealt with together.
  2. It was submitted by counsel for the respondent in the written submissions that there is no guideline or tariff for possession of drugs like cocaine, heroin and methamphetamine. It is relevant to refer to and follow tariff in sentences imposed by the High Court in similar cases.

In State v Bravo [2008] FJHC 145.2007L (12 August 2008) the High Court sentenced the accused to 8 years for importation and possession of 2.1 kilograms of cocaine.


In State v Lata (2013) FJHC 136 HAC83.2010 (25 March 2013) the High Court sentenced the accused to 18 years with a non-parole period of 16 years for being in possession of 1990.4 grams of cocaine. In that case learned High Court Judge fixed the tariff at 15-20 years before adopting a starting point of 17 years. The court further observed that:


“As discussed above there is no tariff set out for these types of cases. Considering the sentencing principle in some jurisdictions, death sentence is mandatory. Some jurisdiction gives an option between death sentence and life imprisonment. Considering our tariff in similar sentence cases I am of the view when there is a possession, trafficking of commercial quantity the tariff should be between 15 years and to 20 years. Considering the quantity of possession of cocaine (1990.4 grams) I commence your sentence at 17 years imprisonment.”


  1. The learned trial Judge when sentencing the petitioner said that:

“(16) Under the Illicit Drugs Control Act 2004, the maximum penalty for an attempt to export cocaine is 14 years imprisonment or a fine of $500,000.00 or both. Sentencing guideline cases from other jurisdictions are not helpful because they have different sentencing regimes. But one principle is common in the English, Australian and New Zealand cases, that is, those who deal in hard drugs in substantial quantities must expect to be punished harshly.”


In paragraph 17 of the sentence ruling the Judge said:


“(17) When sentencing drug-smugglers, regard must be made to the circumstances that exists in Fiji. Fiji does not have a sophisticated intelligence service to detect drug-smuggling. Our border security measures are not put to deal with sophisticated drug-smuggling. Unless there is a tip off, it is easy to sneak in and out, hard drugs. In all cases, the hard drugs were for overseas market. So Fiji is just being used by the drug-smugglers as a transit point for reasons I have mentioned. Any punishment for dealing in hard drug must therefore reflect the vulnerability of Fiji becoming a hub for the international drug-smugglers.”


  1. It is to be noted that the sentencing court in this case has considered the young age of the petitioner in paragraph (20) of the sentence ruling but the court said the personal circumstances of the petitioner are secondary and a more deterrent approach had to be taken by the court and therefore I am of the view that the grounds of appeal on sentence urged by the petitioner do not satisfy the threshold leave criteria in section 7(2) of the Supreme Court Act 1998.

CONCLUSION


  1. It is to be noted that there is sufficient evidence in the caution interview statement and the evidence given by the prosecution witnesses together with the drug analysis evidence against the petitioner. Furthermore I observe that she has not been prejudiced by the lack of legal representation as alleged by the petitioner as she efficiently conducted her defence at the voire dire hearing and trial proper. Accordingly we conclude that the Court of Appeal has not fallen into any error in dismissing the petitioner’s appeal.
  2. For the reasons set out above, I am inclined to conclude that there is no question of general legal importance involved in this matter, nor is there any substantial question of principle affecting the administration of criminal justice. We also conclude that there is no substantial or grave injustice that would otherwise, occur.

Keith, J


Introduction


  1. Most defendants facing serious charges in the High Court are legally represented. But a few are not. The petitioner, Muskan Balaggan, is an example of a defendant who was not represented by a lawyer at her trial. She comes from the Punjab and was 22 years old at the time of her trial (and only 20 at the time of the events to which her trial related). She had asked for an adjournment of her trial to enable herself to be legally represented, but that application was refused on the basis (a) that she had previously told the trial judge that she had wanted only a particular lawyer to represent her (even though before that the trial judge had ruled that he could not do so), and (b) that she had had ample time to find another lawyer to represent her. She claims that the refusal of the adjournment was not a proper exercise of the judge’s discretion, but that in any event as a result of being unrepresented she was denied a fair trial.

The history of the proceedings


  1. By the time her trial began, Ms Balaggan faced two charges. In count 1, she and her co-defendant, Elton Xhemali, were charged with the attempted exportation of illicit drugs, namely 521.6 gms of pure cocaine, from Fiji to Australia. In count 2, she alone was charged with the unlawful possession of those drugs. The offences were alleged to have been committed at Nadi International Airport on 26 January 2011. Both she and Xhemali pleaded not guilty. Their trial in the High Court in Suva began on 21 May 2012. Ms Balaggan was unrepresented, but Xhemali was represented by a lawyer. Both she and Xhemali were convicted, and on 4 June 2012 Ms Balaggan was sentenced to 11½ years’ imprisonment on each count, with a non-parole period of 9 years, to be served concurrently with each other, but consecutively to a sentence which the trial judge, Goundar J, believed to have been one of 18 months’ imprisonment which she was then serving for an offence which she had committed while on bail for the drugs offences.
  2. Ms Balaggan applied for leave to appeal against her conviction and sentence. By then she was legally represented, and her grounds of appeal were drafted by her lawyers. On 4 December 2014 she was given leave to appeal against both her conviction and sentence on some, but not all, of her grounds of appeal. Her appeal was heard on 10 May 2016, but it was dismissed on 27 May 2016. We have not been told why it took so long for her application for leave to appeal to the Supreme Court to be considered, or why it took so long for her appeal then to be heard, but for all we know there may have been good reasons for that. One of them was that it took some time for the single judge in the Court of Appeal to decide whether Ms Balaggan should be granted leave to appeal. At all events, she now applies to the Supreme Court for special leave to appeal against the dismissal by the Court of Appeal of her appeal to the Court of Appeal.

The facts


  1. Apart from the evidence of police officers, the evidence called by the prosecution was not significantly challenged by Ms Balaggan at her trial. She and Xhemali had been staying at a hotel in Nadi. Xhemali had checked in on 12 January 2011, and Ms Balaggan had checked in on 24 January 2011. When Ms Balaggan had checked in, Xhemali had paid for her room for two nights in advance, and although he had asked for a room next to his for her, no such room had been available. On 26 January 2011, Ms Balaggan and Xhemali checked out. Prior to checking out, Ms Balaggan had been seen in Xhemali’s room, and when they checked out, they did so together, and Ms Balaggan paid the balance of the bill with her credit card. When they left the hotel that afternoon, they did so at the same time though in different taxis. Records of the mobile phones registered in the names of Ms Balaggan and Xhemali showed contact between the two mobile phones while Ms Balaggan and Xhemali were in Fiji.
  2. Ms Balaggan and Xhemali checked in separately that day at Nadi International Airport for a flight bound for Melbourne which was due to depart at 6.25 pm. They were told that their bags were to be searched, and Ms Balaggan opened the bag which she had checked in. A powdery substance which had formed crystal-like deposits was noticed on the clothes inside the bag. When she was asked about that, she claimed that the bag belonged to Xhemali. For his part, Xhemali denied knowing anything about the bag. Ms Balaggan and Xhemali were arrested, and the clothes in Ms Balaggan’s bag were chemically tested. The deposits on the clothes were found to consist of 521.6 gms of pure cocaine.
  3. Ms Balaggan was interviewed under caution a number of times by police officers following her arrest. She admitted that she had known that the clothing in her bag had been infused with chemicals which could be converted into drugs. She claimed that a drug dealer who she named had forced her to come to Fiji and take a suitcase to Melbourne. She had refused to do that, and the man had then raped her and threatened to kill her parents, her boyfriend and other members of her family. When she had arrived in Fiji, she had refused to take the suitcase to Melbourne, but she had done so because Xhemali had beaten her up and sexually assaulted her. She made a statement along these lines when she was charged.
  4. Ms Balaggan did not give evidence at her trial. Her cross-examination of the hotel staff was limited to whether the woman seen in Xhemali’s room had been her, though she never actually put it to the hotel staff that it had not been her. Her cross-examination of the airport staff was limited to her claim that she had not opened the bag in which the cocaine had been found because she did not have the key to it, but that a police officer had opened it. Her main cross-examination was reserved for the police officers. She suggested to them that she had never said what they had attributed to her in the interviews and the charge statement, and that she had only signed the records of the interviews and the charge statement as accurate following threats made against her by the police. Although, therefore, she was disavowing that she had told the police that she had acted under duress, Goundar J left the defence of duress for the assessors to consider. The assessors unanimously expressed the opinion that she was guilty on both the charges she faced, and having considered their opinion, Goundar J gave judgment convicting her on both charges.

The grounds of appeal against conviction


  1. The grounds of appeal against conviction are put in a number of ways in Ms Balaggan’s petition for special leave, but in view of how they were developed by Mr. Nandan for Ms Balaggan in the course of his oral submissions, they boil down to two core arguments. First, in the particular circumstances of the case, Goundar J should have allowed Ms Balaggan’s application for an adjournment to enable her to engage a lawyer to represent her. The grant or refusal of an adjournment is an exercise of judicial discretion, and although he did not say so in so many words, Mr. Nandan accepted that Ms Balaggan therefore had to show that Goundar J exercised that discretion in a way which was not reasonably open to him. Secondly, whatever the merits of the application for an adjournment, the fact remained that Ms Balaggan – a relatively young woman in a foreign country – was unrepresented at her trial on what on any view were very serious charges. The danger of her not having been able to do justice to her case was such that her conviction amounted to a real risk of a miscarriage of justice.
  2. In order to address the first of these arguments, the course which the proceedings took is critical, and I trust that I will be forgiven for going into it in some detail. The source for what follows is the court record unless otherwise stated.

The course which the proceedings took


  1. Initial stages. Ms Balaggan’s case was first listed for mention in the High Court on 8 March 2011. She was represented by Rajendra Chaudhary of Messrs. Gordon & Chaudhary. On all but four of the 15 occasions when her case was listed for mention in the High Court up to and including 16 March 2012, Mr. Chaudhary represented her. On two of those four occasions, she was represented by Mr. Chaudhary’s partner. On 20 July 2011, the date for the trial was fixed for 26 September 2011, but the trial date was subsequently vacated. It is not apparent why that was, but three weeks or so before the original trial date, the trial judge recused himself, and Goundar J was assigned to the case. On 27 February 2012, a new date was fixed for the trial. It would start on 21 May 2012 with a time estimate of two weeks. There was an objection to the admissibility of the interviews under caution, and the voir dire to determine their admissibility was fixed for 26 April 2012 with a time estimate of two days.
  2. The disqualification of Mr. Chaudhary. At a hearing on 9 March 2012, Goundar J expressed his concern about Mr. Chaudhary continuing to represent Ms Balaggan. The reason for that is not material to the present case, but the judgment of the Supreme Court in subsequent disciplinary proceedings which Mr. Chaudhary faced (The Chief Registrar v Rajendra Chaudhary, Civil Petition No: CBV 0002/2015) sets out what happened. In short, Mr. Chaudhary had acted as surety for Ms Balaggan when she was granted bail and she moved into his home where he lived with his wife and young son. A few months later, she complained to the police that Mr. Chaudhary had raped her and sexually abused her. About three weeks after that, she retracted that complaint. The original complaint which she had made to the police resulted in her being charged with the offence of giving false information to a public servant. She was to plead guilty to that charge, and on 29 September 2011 she was sentenced to 2 years’ imprisonment. That was the sentence which she was serving when she was sentenced for the drugs offences. Goundar J was, as I have said, under the impression that the sentence for that offence had been 18 months’ imprisonment.

53. Goundar J took the view that in these circumstances Mr. Chaudhary’s duty to his client might conflict with his own interests. He asked for submissions on whether he should disqualify Mr. Chaudhary from continuing to represent Ms Balaggan. Having heard those submissions, Goundar J ruled on 16 March 2012 that Mr. Chaudhary should be disqualified from representing Ms Balaggan. Ms Balaggan was subsequently to tell Goundar J that she would be appealing against that decision, though the question whether Goundar J had the power to disqualify Mr. Chaudhary, and if so, whether that was a proper exercise of his discretion, was neither raised in Ms Balaggan’s appeal against her conviction to the Court of Appeal, nor in her petition for special leave to appeal to the Supreme Court. It is therefore inappropriate for me to say anything more about it, save to record the obvious fact that from that time Ms Balaggan had to engage a new lawyer if she was to be represented at her trial.


  1. The next hearing. The next hearing took place on 16 April 2012. That was 10 days before the voir dire was due to begin. The court record purports to show that Ms Balaggan was represented by “Mr. J P” at the hearing, but that was almost certainly an error in the transcription of Goundar J’s notes, because the rest of his note shows that she was unrepresented, so that “Mr. J P” is likely to have been an incorrect transcription of “IP”, ie in person.
  2. The court record of what happened on that occasion reads as follows:

“[Ms Balaggan]: I don’t want to engage any other lawyer. I am appealing against your recusal decision to the Court of Appeal.


Court: You have any disclosures?

[Ms Balaggan]: I don’t have my disclosures. I returned the disclosures to Mr Chaudhary.


Court: State will provide the accused with a spare copy of disclosures. Accused given ample opportunity to engage counsel. Co-accused is objecting delay. Trial within trial will commence on 26/4/12 at Lautoka High Court. PO Box, Lautoka High Court.”


Two points should be noted. First, the reference to “your recusal decision” was a reference to an application which Mr. Chaudhary had told Goundar J he would be making for Goundar J to recuse himself. Having said that, it is plain from the context that the decision which Ms Balaggan said she was appealing was Goundar J’s decision to disqualify Mr. Chaudhary. No decision on the application for Goundar J to recuse himself had yet been made. Secondly, the court record was not a complete record of everything which was said. There had obviously been talk of either the date for the voir dire or the trial date being vacated and of Xhemali’s lawyer objecting to that course for the judge to have said what he did. That will be important when I return later to what Ms Balaggan says she told Goundar J on that occasion, but if Goundar J’s note of what Ms Balaggan told him is accurate, that explains why she was not represented either at the voir dire or at her trial. The only lawyer she wanted to represent her was Mr. Chaudhary. Whether that carried with it the implication that if he could not represent her, she would be representing herself is another matter.


  1. The events of 26 April 2012. The next hearing was on 26 April 2012, the day the voir dire was due to start. Ms Balaggan was represented by Jasveel Singh. He told Goundar J that he had been instructed only that morning, and he was not instructed to represent Ms Balaggan on the voir dire. His instructions were limited to representing her on the application for Goundar J to recuse himself, and since he had appeared for her, albeit on one occasion only, in the proceedings relating to the false information she had given, he was unsure whether the conflict of interest which Goundar J had found in respect of Mr. Chaudhary also applied to him. However, he proceeded with the application relying on only one of the grounds drafted by Mr. Chaudhary. Goundar J refused the application, regarding it as so unmeritorious that that he ordered Mr. Singh to pay wasted costs which he fixed at $200.00.

57. Following that ruling, Ms Balaggan asked to speak to Mr. Singh. The court record then reads:


“[Ms Balaggan]: I managed to speak to Mr. Singh. I am not ready yet.


Court: The accused has been given ample opportunity to instruct counsel. She has demonstrated to this court that she has an ability to instruct counsel. The voire [sic] dire hearing was set on 27/02/12 – that is about 2 months ago. Delay is a concern for this court. Adjournment is refused. The court will assist the accused with the procedures and explain her rights.”


The voir dire then proceeded with Ms Balaggan representing herself.


58. Subsequent events. The voir dire continued over the next few days, and on 1 May 2012 Goundar J ruled that the records of the interviews and the charge statement were admissible. When the case was next listed on 14 May 2012, Ms Balaggan again told the judge that she was not ready for trial and needed time to engage counsel. Although the court record does not mention it, Goundar J presumably confirmed that the trial would go ahead on the due date. At a further hearing on 17 May 2012, Ms Balaggan told Goundar J that she had filed applications for Goundar J to recuse himself, for the trial date to be vacated and for a permanent stay of the proceedings. She said that they had been prepared for her by someone in Mr. Chaudhary’s firm. Goundar J noted all that, but said that the trial would commence on 21 May 2012 as planned.


  1. The events of 21 May 2012. When the court convened on 21 May 2012, Ms Balaggan handed up written submissions in support of the three applications she had told Goundar J she was making, together with an affidavit in support. The written submissions no longer exist, and copies of them were not made. However, we have a copy of the affidavit. It was sworn on 11 May 2012 and was drafted, so we have been told, by a legal clerk who was a friend of Ms Balaggan. When it came to her application for the trial to be adjourned so that she could get a lawyer to represent her, she did not say very much. She only said that she had “had considerable difficulty finding counsel from prison”, and that she had “not sat idle but [had] made active efforts to find alternative counsel but to no avail.” She did not say what those “active efforts” had been. It said that her appeal against the disqualification of Mr. Chaudhary was due to be heard by the Court of Appeal on 11 May 2012, but we have ascertained that the appeal was not entertained as the single judge of the Court of Appeal took the view that an interlocutory appeal in a criminal case was inappropriate.
  2. The application for an adjournment was strongly opposed by the State. The State was ready for trial. Relevant witnesses were at court, and other witnesses were due to come that weekend from Australia. Their air fares had been paid. In the event, Goundar J refused to adjourn the trial. He said:

“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 [to] 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.


Balaggan has been given ample opportunity to engage counsel. She elected not to engage counsel for her trial. The fact that [she] 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.”


We asked Mr. Nandan about the case in which Ms Balaggan had instructed Ms Vaniqi because there was no reference in the court record to Goundar J having been told that. Mr. Nandan was unable to help.


  1. The court record shows that after Goundar J had ruled that the trial was to go ahead that day, Ms Balaggan said:

“I have spoken to the Indian High Commission. They [are] willing to help me.”


She then handed up a letter to her from the High Commission of India dated 18 May 2012, which was headed “Subject: Testing of Evidence” and read:


“This is to acknowledge receipt of your letter dated 17.05.2012, regarding testing of evidence against you, at your expense.


This is to inform you that the High Commission of India, Suva is in the process of getting in touch with the concerned authorities in India, and collecting the necessary information. We [will] revert to you when we receive the same.”


This was a reference to an application which Ms Balaggan was making for the drugs which had been seized to be analysed at her own expense. It looks as if she was asking the High Commission to fund the analysis for her. It looks from the Court record as if she was using that request to persuade Goundar J to grant her an adjournment after all. The court record then said:


“Ruling delivered. Application for independent testing refused.”


I have assumed that what the judge actually decided was that it was not appropriate for the case to be adjourned to allow the drugs to be analysed independently.


  1. The new information. Ms Balaggan had initially been charged with possession of illicit drugs. That charge was later dropped and a new charge of engaging in the transportation of illicit drugs was substituted for it. On the day the trial was due to begin, and after Goundar J had ruled that the trial would go ahead that day, the State applied to amend the information. In respect of Ms Balaggan, it resurrected the original charge of possession of illicit drugs, and substituted for the charge of transporting illicit drugs a charge of attempting to export illicit drugs. The court record shows that Ms Balaggan claimed not to understand the effect of the amendment. Goundar J allowed the amendment. He noted that the amendment did not “substantially” change the allegations which Ms Balaggan had to meet, and to the extent that she needed time to consider the effect of the amendment, he adjourned the case to the afternoon. That was when the trial proceeded without Ms Balaggan being represented.

The first core argument: the refusal of an adjournment


  1. As I have said, the first core argument is that Goundar J was wrong to have refused Ms Balaggan’s application for an adjournment so that she could engage new counsel. This was not an argument advanced to the Court of Appeal. The argument advanced to the Court of Appeal – it was ground 2 in the re-amended grounds of appeal – was that Goundar J should have granted an adjournment on the basis that there had been a late amendment to the charges Ms Balaggan faced. It was not suggested that Goundar J should have granted her an adjournment so that she could be legally represented. Her lack of legal representation was only relied on in support of what became Mr. Nandan’s second core argument, namely that she might not having been able to do justice to her case without legal representation, and her conviction amounted to a real risk of a miscarriage of justice. The first core argument was relied on for the first time in the petition for special leave. Mr. Vodokisolomone for the State did not object to that, and although the Supreme Court is usually very reluctant to consider new grounds raised for the first time on an appeal to it, I think that we ought to consider it.
  2. At first blush, this core argument is hopeless. If what Ms Ballagan told Goundar J on 16 April 2012 is anything to go by, she was telling Goundar J that she only wanted Mr. Chaudhary to represent her. There is the suspicion that she thought that if she did not engage another lawyer to represent her, the court might relent and allow Mr. Chaudhary to represent her after all. If there came a time when she had been trying to instruct another lawyer – as she claimed she did – she did not give any details of the steps she had taken to do that in the obvious place for that to be done, namely in the affidavit she swore on 11 May 2012. On this material, it is entirely understandable that Goundar J was as sceptical as he was of her wish to find another lawyer to represent her at her impending trial (bearing in mind that she had managed to engage Mr. Singh to represent her on her application for Goundar J to recuse himself and to engage Ms Vaniqi on another matter), as well as her professed attempts to do so. His finding that the fact that she was unrepresented was of her own making was really the only conclusion he could have come to on the material he had.
  3. Mr. Nandan’s key point in support of his first core argument is that when Goundar J saw in Ms Balaggan’s affidavit that she was claiming that she had made “active efforts” to find another lawyer to represent her at her trial, he should have asked her what those efforts had been. I do not agree. It was for her to spell out the efforts she had made, especially as it would have been apparent to Goundar J that her affidavit had been drafted and typed with legal help. Moreover, even if Goundar J should have asked her what exactly she had done to find alternative representation, the fact that he did not do that would only have been significant if she would then have told him all the steps she had taken to get another lawyer. If it had been apparent from what she would have told Goundar J that those efforts had been sporadic and half-hearted, the fact that Goundar J did not ask her that would have made no difference to his ultimate decision not to vacate the trial.
  4. It was for that reason that we asked Mr. Nandan what Ms Balaggan would have said to Goundar J had he asked her what she had done since 16 March 2012 when Mr. Chaudhary was disqualified to get legal representation for her trial. Mr. Nandan took Ms Balaggan’s instructions, and what follows is what we were told. She had tried to find another lawyer to represent her since the date on which Mr. Chaudhary had been disqualified. She was in custody, of course, but she had managed to see Davenesh Sharma (the senior partner of a firm and a lawyer of some renown). She had also spoken on the phone, but not seen, two other lawyers, Wasu Pillai and Laisa Ligalevu. Ms Balaggan had not had the funds to engage any of them. She had also seen H A Shah at court on the day the voir dire commenced, but he had told her that he could not take on her case without an adjournment to give him time to prepare her defence. By then, though, she had applied to the High Commission of India for legal assistance. It was because she was hoping that the High Commission would fund her defence that she never applied for legal aid. However, by the time her trial began, no offer of assistance had come from the High Commission because if it was to fund her legal costs, authority was needed from the Indian Foreign Ministry and that had not yet been obtained. When we asked Mr. Nandan why she had told Goundar J on 16 April 2012 that she only wanted Mr. Chaudhary to represent her if she had indeed been actively looking for another lawyer to instruct, he told us that his instructions from her were that she had not actually told Goundar J that she only wanted Mr. Chaudhary to represent her. What she had in fact told him was that she had tried to find another lawyer but to no avail, so she wanted Mr. Chaudhary to represent her.
  5. I confess to being more than a little sceptical about all that. The letter from the High Commission which she showed Goundar J was on a different topic altogether. It was not about funding her legal representation but about funding the analysis of the drugs. It would be surprising to say the least if Goundar J had got the wrong end of the stick so badly on 16 April 2012. And I would have expected the legal clerk who helped her with her affidavit to have included at least some of her account of what she had done in the affidavit. Indeed, it is unsatisfactory for all this information to have been relayed to us from the Bar Table rather than on affidavit – though to be fair to Mr. Nandan he had not expected to have been allowed to place this information before the Supreme Court at all. But the question is not so much whether Mr. Nandan’s instructions from Ms Balaggan are true, but (a) whether Goundar J would have vacated the trial to enable her to be represented if her affidavit

and (b) whether, if Goundar J would still have refused to vacate the trial in those circumstances, that would have amounted to the exercise of his discretion in a way which was not reasonably open to him.


  1. The first of those questions is impossible to answer. It presupposes that Ms Balaggan would have been able to get the supporting documents which were needed, and it would be a matter of complete speculation if we – or anyone else – tried to second guess what Goundar J would have done. The most we can do is to look at the consequence of Goundar J refusing to vacate the trial – namely the fact that Ms Balaggan would be unrepresented at her trial – and consider whether her right to a fair trial was thereby infringed. That brings us to Mr. Nandan’s second core point: the danger of her not having been able to do justice to her case was such that her conviction amounted to a real risk of a miscarriage of justice if she was convicted.

The second core argument: the risk of a miscarriage of justice


  1. Three features of the case struck me immediately. First, Ms Balaggan decided to challenge the admissibility of the records of her interviews and the charge statement in the voir dire. Secondly, she decided to maintain that challenge in the course of the trial. Thirdly, she elected not to give evidence in her trial. In my opinion, these three decisions were tactical disasters. The irrefutable evidence of her links with Xhemali, and the strong evidence that she had been in possession of the bag in which the cocaine had been found, meant that her only viable defence to the charges – unless she was going to make the implausible claim that she had not known what was inside her bag – was that she had been acting under duress when she tried to take the bag to Australia. After all, that was what had been attributed to her by the police. Indeed, when she addressed the court at the conclusion of the evidence, she explained that her defence was that she had been forced to take the suitcase. So since that was to be her defence to the charges, one might have expected her to want the records of her interviews and the charge statement to go before the assessors. In the event, Goundar J ruled that they were admissible, and that ruling was an advantage to her, not a disadvantage.
  2. That advantage was diminished when in the course of the trial in front of the assessors she continued to maintain in her cross-examination of the police officers that she had not said to the police what they had attributed to her, and that they had forced her to sign the records and the statement as accurately recording what had been said. The overwhelming likelihood is that the assessors did not believe her, and that would have made it less likely that they would think it possible that she had been acting under duress when she tried to take the bag containing the cocaine to Australia.
  3. Finally, I am sure that any competent lawyer – indeed, even an incompetent one – would have advised Ms Balaggan that she had little option but to give evidence. Once the cocaine had been found in a bag in her possession, she was inevitably going to be convicted unless she had an explanation for its presence there consistent with innocence. In view of what the records of her interviews had said, and what she was going to tell the court in her closing speech her defence was, the obvious thing for her to do was to go into the witness box and tell the assessors about the pressure she had been put under by Xhemali and the drug dealer who had recruited her to take the cocaine to Australia. By electing not to give evidence, she did not explain how the presence of the cocaine in her bag was consistent with her innocence. She sealed her own fate. It is as simple as that. It is difficult to see what was left for the assessors to consider.
  4. None of these points were taken by Mr. Nandan. He focused on the fact that Ms Balaggan had to cross-examine the forensic analyst called by the prosecution without the benefit of a report from her setting out what her evidence was going to be, and that the photographs produced by the analyst had not previously been disclosed to her. These disadvantages pale into insignificance when set against the disadvantages I have identified, and although Mr. Nandan did not rely on them, they are, in my view, so fundamental to whether Ms Balaggan was disadvantaged by the lack of legal representation that the Supreme Court cannot ignore them.
  5. We have had cited to us many cases which have addressed the extent to which defendants facing serious criminal charges have a right to legal representation. These cases included the famous case in the High Court of Australia of Dietrich v R [1992] HCA 57; (1992) 64 A Crim R 176, even though in Ledua v The State [2008] FJSC 31, the Supreme Court held that Dietrich did not apply in Fiji because the common law had no application where the defendant’s constitutional right to representation was under consideration. For my part, I do not think that the outcome to this case turns on what the Constitution says about a defendant’s right to legal representation or how the courts have interpreted that right over the years. I accept entirely, as was said in Ledua at [34], that the right to legal representation is not absolute, but I prefer to consider whether Ms Balaggan’s right to a fair trial – not so much under section 29(1) of the 1997 Constitution (which had been abrogated by the time of the trial) or under section 15(1) of the present Constitution (which had not been promulgated by then) but under the common law – was infringed. That turns on whether, to use the language of the Court of Appeal in Asesela Drotini v The State, Criminal Appeal No: AAU 0001/2005 at [11], and cited with approval in Jope Ramalasou v The State, Criminal Appeal No: AAU 0085/2007 at [9], “there is a possibility that [the defendant] was adversely prejudiced by his lack of representation”. In my opinion, there was such a possibility in the very particular, and almost unique, circumstances of this case. Those circumstances were that

Even though she may well have been at fault in not having found a lawyer to represent her in time for the trial, the combination of these circumstances lead me to conclude that the danger of her not having been able to do justice to her case was such that her conviction amounted to a real risk of a miscarriage of injustice.


  1. I note Chitrasiri J’s concern about defendants in the future “playing the system” in reliance on my judgment. That is, in effect, a “floodgates” argument, namely that unscrupulous lawyers might advise their clients to be unrepresented at their trial, or that unscrupulous defendants might decide for their own self-serving reasons not to be represented at their trial, so that they can later argue at the appeal stage that the absence of legal representation created a real risk that their conviction amounted to a miscarriage of justice. The consequence is said to be that cases will drag on, and the prosecution at the subsequent trial may be disadvantaged by the unavailability of witnesses.
  2. I do not think that this is a realistic concern. I say that for three reasons. First, you should not underestimate the wisdom of judges. They are very sensitive to litigants and their lawyers trying to manipulate them. They are alive to the tricks which unscrupulous litigants and lawyers can get up to. Our system proceeds on the assumption that judges will not let the wool be pulled over their eyes. Secondly, courts tend to resist floodgates arguments except in plain cases. The reason is obvious. It is difficult to forecast accurately what the wider consequences will be of a particular decision. In any event, if the justice of a particular case demands that it be decided in a particular way, it would be monumentally unfair to the litigant concerned for it to be decided in another way simply because the court fears how its decision is likely to be used in the future. Thirdly – and this is the real answer to Chitrasiri J’s concern in the present case – this case turns on what I have already described as its own “very particular, and almost unique” set of facts. It is extremely unlikely that the combination of circumstances which cumulatively resulted in Ms Balaggan’s lack of representation resulting in there having been a real risk of a miscarriage of justice in her case will be repeated. My decision in this case is very much on its own facts, and for that reason could hardly be used as a springboard for other appeals. In that connection, I note that neither Hettige J nor Chitrasiri J have thought it appropriate to engage with the cumulative effect of the reasons which have made me think that this case is so unusual.
  3. Chitrasiri J’s other concern – and it is one which Hettige J has as well – is that Ms Balaggan was told by the trial judge what her rights were. She therefore knew, both at the beginning of the voir dire and in the trial proper, that the decision whether to give evidence or not was hers, and hers alone. She cannot, they say, now rely on the erroneous decisions she made then as the basis of a new appeal. The answer, with respect, is that this puts the cart before the horse. It was because she was unrepresented that she made such poor choices at her trial.

Conclusion


  1. For these reasons, I would have granted Ms. Balaggan special leave to appeal against her conviction because if her conviction was allowed to stand a substantial and grave injustice might occur. In accordance with the Supreme Court’s usual practice, I would have treated the hearing of her application for special leave as the hearing of the appeal. I would have allowed her appeal against her conviction, I would have quashed her conviction, and I would have ordered that she be retried. However, since Hettige J and Chitrasiri J take a different view about the outcome of this petition for special leave to appeal, the orders of the court must be the ones which they propose. I should add by way of postscript that nothing I have said reflects badly in any way on Goundar J. He made the only decision open to him in the circumstances. He was not to blame for the course which the trial was to take.


Chitrasiri, J


  1. I have had the opportunity of reading both draft judgments of Hettige J and Keith J in which the final conclusions are contrary to each other. Having looked at both the judgments carefully, I wish to mention that I agree with the findings of Hettige J. He has decided to refuse special leave of the Supreme Court for this appeal since it does not contain the threshold requirement referred to in Section 7(2) of the Supreme Court Act 1998.
  2. Both Hettige and Keith JJ in their judgments have narrated the sequence of events that had taken place up to the filing of this appeal. They also have clearly mentioned the grounds of appeal urged by the accused-petitioner. Hence, I do not intend repeating those in my judgment. Therefore, I will straightaway look at the main issue namely, whether the trial miscarried as a result of the appellant being unrepresented since 16th April 2012.
  3. On 16th April 2012 the accused-petitioner has informed Court that she did not want to engage any lawyer other than Mr. Chaudhary. By then Mr. Chaudhary had been disqualified from appearing for the accused-petitioner. Material found in the case record shows that the accused-petitioner was aware of such disqualification at least a month before. (vide at page 308 – Judge’s notes on 15.03.2011) The accused-petitioner then had said that she managed to speak to Mr. Singh too. The Court, also having considered the objections raised by the co-accused, as to the delay in taking up the matter, had refused the application for an adjournment and decided to take up the voir dire inquiry on the following day having given her another opportunity to retain a counsel, at least to retain Mr. Singh to whom she has already spoken to. Accordingly, the voir dire inquiry was commenced on the 26th April 2012. Moreover, the learned High Court Judge before adjourning the matter for 26.04.2012 had explained to her the procedure in conducting a voir dire inquiry and also her right to cross examine the witnesses. On 26th April 2012, the inquiry was held without the accused being represented. Now the issue before this court is whether or not any miscarriage of justice had been caused to the accused-petitioner due to her being unrepresented.
  4. As clearly seen in the High Court record, the accused-petitioner, in no uncertain terms had indicated to court that she wished, not to engage any lawyer other than Mr. Chaudhary who had been disqualified from appearing for her by then. When such a statement comes from the mouth of an accused, any presiding judge will have no option than to proceed with the matter without the assistance of a counsel for the accused. More importantly, in this instance the other accused was complaining as to the delay as well.
  5. In his judgment, Keith J who inclines to allow the appeal too has clearly stated that the trial judge was not to be blamed for the course which the trial was to take in this instance. Therefore, I do not think it is necessary to consider the correctness of the decision of the learned High Court Judge in proceeding with the matter without the petitioner being represented. His concern, as I understood, is whether the accused-petitioner had a fair trial without a lawyer, even if she was to blame for being without a lawyer.
  6. Having accepted the fact that the procedure adopted by the learned High Court Judge was correct, with all due respect to Keith J, I am unable to understand why another opportunity is afforded to the petitioner to face the same charge. Authorities cited by Hettige J show that the right to representation is not an absolute right (Seremaia Balelala v State [2004 FJCA 49]). In this jurisdiction, I have seen many convicted persons arguing their own cases satisfactorily on their own, without any legal assistance being obtained. I am sure there may have been many instances where they were successful in those matters. This particular petitioner, she being a foreign national who had travelled widely should have the capacity to understand the consequences when she said that she is not going to retain a counsel at a time she was to face a serious charge punishable with imprisonment. In the circumstances, I do not think that she was prejudiced by not having legal representation.
  7. The point, Keith J was trying to make is that if the petitioner was advised properly, she could have elected to give evidence having come to the witness box and explained the situation under which she gave the statement to the police under caution. In such a situation, it is necessary to note that the petitioner had been receiving legal advice from the time she was arrested in relation to this offence. Indeed, the petitioner had been represented in this case many times before, since 04th March 2011 when the two accused were produced in the High Court. She had even made a false complaint against her lawyer and finally she pleaded guilty to that charge. Hence, it is not incorrect to state that her decision not to give evidence in this instance would have been pursuant to the advice given by persons who are knowledgeable in law. Therefore, I am unable to agree that the reason for the petitioner’s failure to give evidence was her inability to retain a Counsel.
  8. Next point that comes to mind is that the litigants may tend to abuse the process of court if an appeal is allowed under those circumstances. Supposing an accused needs to drag on a case for various reasons; such as concealing evidence or to avoid witnesses coming to court, then he/she may not retain a counsel purposely, in order to obtain an order for re-trial in an appeal. If an appellate court decides to have a re-trial under such circumstances, then by the time the case is taken up for the second time, the evidence or the witnesses that was available originally may not be available for the purpose of proceeding with the case for the second time. Moreover, if such a decision is made by this Apex Court, that would become authoritative and will bind even the Court of Appeal. Certainly, such methodology will lead to abuse of the judicial process. Also, it will definitely be an opening of flood gates for accused persons to make such applications in the appellate courts to drag on cases and thereby paving way to acquittals, may be for non availability of evidence though once convicted for the same offence earlier.
  9. When looking at the facts and circumstances of the matter, the delay that may be caused by having a trial de-novo would probably affect seriously, the administration of justice as important witnesses have to come again to Fiji from Australia to give evidence for the second time. It may be very expensive, tedious and difficult task to have them here for the second time which may even take a very long period of time. The alleged offence being a grave crime carrying serious punishments, it is essential to see the end of litigation without delay. Therefore, it is not incorrect to state that such a cause of action would cause serious miscarriage of justice to the justice system rather than the prejudice that may cause, if any, to the accused-appellant.
  10. It is also necessary to mention that the very same issue had been considered by three judges in the Court of Appeal. Neither of them had thought it fit to make an order for re-trial.
  11. I have also looked for the authorities to ascertain whether there is any decision to support the proposition suggested by Keith J. but I could find none other than the Australian decision in Dietrich Vs. R [1992] HCA 57; [1992 (64) A Crim R 176]. Hettige J. has referred to the case of Ledua Vs. State [2008 FJSC] in which the aforesaid decision in Australia also had been discussed. In the case of Ledua it was held thus:

“a trial is not necessarily unfair for want of legal representation. A trial may be fair or unfair whether or not the accused was legally represented. Fairness to an unrepresented accused will impose certain burdens on a trial judge that are generally well known.”


In the case at hand, no one can find fault with the manner in which the trial judge had conducted the trial. Accordingly, I am inclined to state that there was no miscarriage of justice caused to the petitioner for not having legal representation for the voir dire inquiry held in this connection.


  1. Finally, I wish to place on record that the procedural law that governs conducting legal proceedings is as important as the substantive law. If a deviation is made from accepted procedure in proceeding with cases then it may lead to chaos in the system. [Fernando vs. Sybil Fernando, as per Dr. Amarasinghe, J , (1997) (3) Sri Lanka Law Report p1]
  2. Having made those comments, I agree with Hettige J that this Court should refuse special leave for this application. The decision of the Court of Appeal is to be affirmed. Since, the decision is to refuse the leave to appeal considering the main ground of appeal, it is not necessary for me to address the issue on sentencing.
  3. We therefore make the following orders:
    1. Application for special leave is refused.
    2. The Judgment of the Court of Appeal dated 27 May 2016 is affirmed.

.....................................................
Hon. Mr. Justice Sathyaa Hettige
Justice of the Supreme Court


....................................................
Hon. Mr. Justice Brian Keith
Justice of the Supreme Court


....................................................
Hon. Mr. Justice Kankani Chitrasiri
Justice of the Supreme Court


Solicitors for Petitioner: Reddy & Nandan Lawyers
Solicitors for Respondent: Office of the Director of Public Prosecutions


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