Kalsakau v Republic of Vanuatu [2005] VUSC 149; Constitutional Case 007 of 2005 (18 August 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Constitutional Jurisdiction)

Constitutional Case No. 07 of 2005

BETWEEN:

STEVEN KALSAKAU
Applicant

AND:

REPUBLIC OF VANUATU
Respondent

Mr. Steven Kalsakau (Petitioner) in person
Mr. Sampson Endehipa (Attorney General) for the Respondent
Mr. Hilary Toa (Public Solicitor) for the Interested Party

Date of Hearing: 18 August 2005
Dated of Judgment: 18 August 2005

DECISION ON CONSTITUTIONAL APPLICATION DATED 17 AUGUST 2005

Background

1. Steven Kalsakau is a defendant in Criminal Case No. 12 of 2004. He is charged with the offence of conspiracy to defeat the course of justice.
   
2. Trial in Criminal Case No. 12 of 2004 was due to have commenced on 16^th August 2005. When the Court opened Mr. Kalsakau informed the Court that he has no lawyer to defend him.
   
3. Indigène Lawyers have ceased to act for him as there is a conflict of interest with the firm continuing to represent him. The former Deputy Public Prosecutor has joined Indigène Lawyers. He was heavily involved in Criminal Case No. 12 of 2004.
   
4. The Public Solicitor submitted that he nor his office can act for the Defendant as he had had carriage of the matter when he was appointed as Acting Public Prosecutor.
   
5. At a conference on 17 August 2005, the Public Prosecutor told the Court that in her view there is a conflict of interest for the Public Solicitor to represent the Defendant in Criminal Case No. 12 of 2004.
   

Constitutional Application

6. The Petitioner says that he is a member of Parliament and is a defendant in Criminal Case No. 12 of 2004.
   
7. He further says that:-
   
   • (a) the State Law Office has refused to provide legal assistance to him on the grounds that he has been charged with a criminal offence;
     
   • (b) the Public Solicitor has refused to assist him on the grounds of conflict of interest;
     
   • (c) the lawyer, who is a relative, whom he had engaged earlier, has refused to continue to represent him citing conflict of interest also;
     
   • (d) he cannot meet legal costs estimated at about VT2 million for the trial estimated to run for 5 weeks with about 45 witnesses for the Prosecution.
     
8. The Petitioner cites article 5 (2) (a) of the Constitution that says:-
   

“Everyone charged with an offence shall have a fair hearing ... and be afforded a lawyer if it is a serious offence.”

9. The Offence of conspiracy to pervert the course of justice is a serious offence that carries a maximum penalty of 7 years imprisonment.
   
10. The Petitioner goes on to say that “I have not been afforded a lawyer as enacted by the mother law of the Republic of Vanuatu and as a consequence I contend to the Court that my constitutional rights are infringed.”
    
11. And the Petitioner claims –
    
    • (a) “the (State) to afford (him) a lawyer to avoid a miscarriage of trial”; and
      

(b) the appointed lawyer to be given “sufficient time ... to discover the prosecutions’ documents and evidences.”

12. In his oral submissions the Petitioner basically summarized what has been covered in the written application.
    
13. He went on to say that as a member of Parliament he earns VT200,000 a month. However, 80% of his monthly income is tied up in current commitments. He agreed that he could contribute to the legal costs out of the balance.
    

Submission by the Attorney General

14. The responses to the constitutional application by the Attorney General can be summarized as follows.
    
15. The Petitioner was charged with a criminal offence for actions taken in alleged exercise of his duty as a Minister of State. The submission goes on to say that regardless of the Petitioner's status at that time, criminal proceedings such as these is taken against the individual in his private capacity.
    
16. The Attorney General continued that his functions are limited to advising and representing the President, Prime Minister, Council of Ministers, Ministers, Director Generals and Directors in such a capacity only in civil proceedings where they are a party in a matter where the Government is involved.
    
17. That the Public Solicitor does have a conflict of interest in the matter because of his successful appeal as Acting Public Prosecutor in referring the matter back to the Supreme Court for redress and full trial.
    
18. The Attorney General went on to say that he agrees with the Petitioner that the offence of conspiracy to pervert the course of justice is a serious offence under section 79 of the Penal Code Act. That he agrees that the Petitioner is to be afforded a lawyer to defend him in the criminal matter. That the Court can direct a lawyer to represent the defendant to be consistent with the constitutional requirement and that “the Supreme Court must make the necessary orders to give effect to the Petitioner’s application.”
    

Response to Constitutional Application by the office of the Public Solicitor

19. The Public Solicitor in response to the Petitioner’s Constitutional Application advanced two grounds why the Public Solicitor cannot represent the Petitioner. This can be summarized as follows.
    
20. Firstly, that there is a “pure conflict of interest”. The Public Solicitor, as Acting Public Prosecutor, actively participated in the appeal against the decision to strike out the prosecution case and had the criminal case against the Petitioner and others re-instated for Prosecution before his appointment as the Public Solicitor.
    
21. Further that none of the legal officers in the office have the right of audience before the Supreme Court. The Public Solicitor has a supervisory role over everyone, including the advisor to that office. The terms of engagement of the advisor to the Office of the Public Solicitor further prohibits the advisor from engaging in any such case that is connected with politics. The Petitioner at the time of the alleged offence was a Minister of State and he is a current member of Parliament.
    
22. Secondly, the Petitioner is not a “needy person” under section 5 (1) (a) of the Public Solicitor’s Act [CAP. 177]. He is a member of Parliament and earns a regular income in excess of VT100,000 a month, and therefore has the means to fund a private lawyer of his choice who can fairly represent him.
    

Discussions

23. The Petitioner has applied to this Court to be afforded a lawyer pursuant to Article 5 (1) and (2) (a) of the Constitution. Article 5 (1) of the Constitution states that subject to any restrictions imposed by law on non-citizens, all persons are entitled to the protections of the law. Sub-article (2) (a) goes on to say that –
    

“Protection of the law shall include ... everyone charged with an offence shall ... be afforded a lawyer if it is a serious offence.”

24. Both the Attorney General and the Public Solicitor do not take issue with the Petitioner that the offence of conspiracy to defeat the course of justice, the Petitioner has been charged with in Criminal Case No. 12 of 2004, is a serious offence.
    
25. The Public Solicitor had been involved actively in the criminal matter now back before this Court, as the then Acting Public Prosecutor. Clearly he has a conflict of interest in representing the Petitioner.
    
26. Can another officer in the office of the Public Solicitor represent the Petitioner. The Public Solicitor is the head of the Constitutional Office called the Public Solicitor and has a supervisory role over all legal officers employed in that office. None of the junior legal officers employed currently in that office have been admitted to the Supreme Court. If one were to be appointed he or she would still be supervised to be able to appear before the Supreme Court.
    
27. It has been put to the Court (by the Attorney General and the Public Solicitor) that lawyers in the private sector can be directed by the Court to appear for the Petitioner on a pro bono basis.
    
28. The Attorney General has also come out strongly that the state should not bear the costs of any representation ordered by the Court.
    
29. The Public Solicitor, likewise says the office has no funds to meet the costs of any such representation if the Court were to order that office to represent the Petitioner which is unlikely due to the conflict of interest.
    
30. Article 5 (2) (a) is very clear in its terms. That if a person is charged with a serious offence then that person “shall ... be afforded a lawyer ...” That provision must, in my view, however, be read to mean, that where a person is charged with a serious offence but cannot afford a lawyer, then one must be afforded to him or her. The question of costs must be secondary otherwise the effect of the provision is deflected and becomes of little or no value.
    
31. The Petitioner has agreed that he can contribute to the legal costs from his monthly earning.
    
32. The offence the Petitioner has been charged with is a serious offence. He had engaged a solicitor of his choice to represent him. However, due to perceived conflict of interest, the solicitor has refused to continue to represent him. The Petitioner has told the Court that he has spoken to other lawyers in town and that the advise he had received is –
    
    • (a) costs would add up to VT2 million at the minimum for a 5 weeks trial with about 45 witnesses for the prosecution.
      
    • (b) a deposit of 50% upfront is required to engage a legal practitioner to represent him.
      
33. The Petitioner continued that with his current financial position he cannot meet such a condition. Hence, he has not been able to engage a lawyer from the private sector to assist him.
    
34. Criminal Case No. 12 of 2004 has a long history and is essential for the trial to commence with minimum delay, to ensure there is no mistrial.
    
35. It is my view, that the Public Solicitor or another officer of the office of the Public Solicitor cannot act for the Petitioner in the criminal matter due to current circumstances of that office. However, the Public Solicitor is best placed to assist in finding a solicitor outside that office to represent the Petitioner. I make this observation having section 5 of the Public Solicitor’s Act in mind. That section states that the Public Solicitor is to provide legal assistance to –
    
    • (a) Needy persons; or
      
    • (b) To any person when so directed by the Supreme Court.
      
36. Of course, he nor his office can represent the Petitioner in this matter, but he can find one other legal practitioner to represent the petitioner. It is impossible for the Court to make directions requiring a solicitor to represent the petitioner without relevant information on matters such as conflict of interest, and availability of lawyers.
    
37. The Court therefore makes the following orders.
    

ORDERS

(a) The Public Solicitor must engage a lawyer from outside the Public Solicitors Office to represent the Petitioner in Criminal Case No. 12 of 2004 immediately.

(b) The Petitioner must enter into an agreement immediately with the Public Solicitor about his contribution to the legal costs of running his case.

(c) Conference in Criminal Case No. 12 of 2004 at 4.00 p.m. on 19^th August 2005.

DATED at Port Vila, this 18^th day of August 2005.

H. BULU
Judge.