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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION
CRIMINAL ACTION NO. HAC 011 OF 2001
BETWEEN
THE STATE
AND
TlMOCI SILATOLU
First Accused/ Applicant
and
THE ATTORNEY-GENERAL OF FIJI
Intervener
and
THE HUMAN RIGHTS COMMISSION
Intervener (by leave)
Counsel:
Mr. P. Ridgway for the State
Dr. S. Shameem and Mr. V. Ratuvili for the Human Rights Commission
Ms. Basawaiya and Mr. Y. Singh for the Attorney General
The First Accused/Applicant in person
Dates of Hearing: 5, 7, 9, 12, 14, 15, 16 and 19 August 2002
Date of Decision: 22 August 2002
DECISION OF WILSON J IN RELATION TO AN APPLICATION FOR CONSTITUTIONAL REDRESS REGARDING LEGAL AID
SOME PRELIMINARY MATTERS REQUIRING EMPHASIS
4. The current estimate of the length of the trial proper, as made by the prosecution, is "4 to 6 weeks". The trial is expected to be lengthy, as well as complex.
THE NATURE OF THE APPLICATION
This Court has been hearing an application by the first accused (hereinafter called "the applicant") seeking to enforce an aspect of his constitutional right to a fair trial [s.29 (1) of the Constitution]. First, he seeks to enforce his qualified constitutional right to be given the services of a legal practitioner under a scheme for legal aid [s.28 (1)(d)] (hereinafter called his "right to be given legal representation"). Secondly, he seeks to enforce his constitutional right to equality before the law [s.38(1)] (hereinafter called "his right to equality before the law").
The applicant is a person who considers that certain provisions of Chapter 4 (the "Bill of Rights" Chapter) of the 1997 Constitution of the Republic of the Fiji Islands (hereinafter called "the Constitution") have been or are likely to be contravened in relation to him. He, therefore, applies to the High Court for redress (hereinafter called "constitutional redress").
THE RELEVANT CONSTITUTIONAL PROVISIONS
Section 29(1) of the Constitution (which is found in Chapter 4 -"Bill of Rights") provides:
"29. (1) -Every person charged with an offence has the right to a fair trial before a court of law."
This is one of the access to raw provisions.
Section 28(1)(d) of the Constitution (which is also found in Chapter 4 -"Bill of Rights") provides:
"28. -(1) Every person charged with an offence has the right:
(a) to be presumed innocent until proven guilty according to law;
(b) to be given details in legible writing, in a language that he or she understands, of the nature of and reasons for the charge;
(c) to be given adequate time and facilities to prepare a defence, including, if he or she so requests, a right of access to witness statements;
(d) to defend himself or herself in person or to be represented, at his or her own expense, by a legal practitioner of his or her choice or, if the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid."
These are some of the important rights of charged persons conferred and preserved by Chapter 4 of the Constitution.
Section 38 of the Constitution (which is found in Chapter 4 -"Bill of Rights") provides:
"38 (1) Every person has the right to equality before the law.
(2) A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her:
(a) actual or supposed personal characteristics or circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language economic status, age or disability; or
(b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others; or on any other ground prohibited by this Constitution.
(3) Accordingly, neither a law nor an administrative action taken under a law may directly or indirectly impose a disability or restriction on any person on a prohibited ground.
(4) to (10) -[Not relevant to this application].
These are some of the equality rights which all persons have by virtue of Chapter 4 of the Constitution.
Section 41 of the Constitution (which is, likewise, found in Chapter 4 -"Bill of Rights") provides:
"41. -(1) If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person), then that person (or the other person) may apply to the High Court for redress.
(2) The right to make application to the High Court under subsection (1) is without prejudice to any other action with respect to the matter that the person concerned may have.
(3) The High Court has original jurisdiction:
(a) to hear and determine applications under subsection (1); and
(b) to determine questions that are referred to it under subsection (5); and may make such orders and give such directions as it considers appropriate.
(4) The High Court may exercise its discretion not to grant relief in relation to an application or referral made to it under this section if it considers that an adequate alternative remedy is available to the person concerned.
(5) If in any proceedings in a subordinate court any question arises as to the contravention of any of the provisions of this Chapter, the member presiding in the proceedings may, and must if a party to the proceedings so requests, refer the question to the High Court unless, in the member's opinion (which is final and not subject to appeal), the raising of the question is frivolous or vexations.
(6) When the High Court gives its decision on a question referred to it under this section, the court in which the question arose must dispose of the case in accordance with:
(a) the decision; or
(b) if the decision is the subject of appeal to the Court of Appeal or to the Supreme Court – the decision of the Court of Appeal or Supreme Court, as the case may be.
(7) The Attorney-General may, on behalf of the State, intervene in proceedings before the High Court that relate to a matter concerning a provision of this Chapter.
(8) If proceedings before the High Court relate to a matter concerning a provision of this Chapter, the High Court must not proceed to hear and determine the matter until is satisfied that notice of the matter has been given to the Attorney-General and a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General of the question of intervention in the proceedings.
(9) A notice under subsection (8) is not required to be given to the Attorney-General if the Attorney-General or the State is a party to the proceedings.
(10) The Chief Justice may make rules for the purposes of this section with respect to the practice and procedure of the High Court (including rules with respect to the time within which applications are to be made to the High Court)."
This section deals with the enforcement provisions.
Section 43 of the Constitution (which is included in Chapter 4 – "Bill of Rights") provides:
"43. – (1) The specification in this Chapter of rights and freedoms is not to be construed as denying or limiting other rights and freedoms recognised or conferred by common law, customary law or legislation to the extent that they are not inconsistent with this Chapter.
(2) In interpreting the provisions of this Chapter, the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights set out in this Chapter.
(3) A law that limits a right or freedom set out in this Chapter is not invalid solely because the wording of the law exceeds the limits imposed by this Chapter if the law is reasonably capable of a more restricted interpretation that does not exceed those limits. In that case, the law must be construed in accordance with the more restricted interpretation."
This is one of the interpretation provisions in the Constitution (see also section 3).
THE FORM OF THE APPLICATION
The applicant, who was unrepresented at the time, made his application orally on 5th August 2002.
In the interests of expediting the hearing of the application, the saving of costs and without overlooking, for a moment, the interests of justice, I waived compliance with the High Court (Constitutional Redress) Rules 1998. I would not have done so if I had apprehended any unfairness or likely prejudice to the interests of either the applicant himself or any of the other parties to the application (the prosecution, the Human Rights Commission and the Attorney-General). As previously indicated, the nature of the applicant's claim is for constitutional redress in which he is seeking to enforce his rights to be given legal representation and to equality before the law.
Had the High Court (Constitutional Redress) Rules been complied with and as an examination of the transcript of the several hearings on 22, 24, 29 and 31 July and on 5, 7, 9, 12, 14, 15, 16 and 19 August would reveal, a notice of motion (if in proper form) would have included:
1.1 A DECLARATION that the applicant's right to be given legal representation has hitherto been and continues to be infringed;
1.2 A DECLARATION that the applicant's right to equality before the law has hitherto been and continues to be infringed; and
2. A PRAYER FOR:
2.1 AN INJUNCTION (whether mandatory or otherwise) directed to the State ordering that the applicant "be given the services of a legal practitioner under a scheme for legal aid" or otherwise;
2.2 AN INJUNCTION directed to the State ordering that the applicant, in relation to the matter of him "being given the services of a legal practitioner" for the treason trial, be treated in a manner equal to or proportionate to the legal representation provided to the second accused;
2.3 A TEMPORARY STAY OF PROCEEDINGS in the treason trial (in so far as it affects the applicant) until a legal practitioner has been appointed or assigned [and, perhaps, until such further reasonable time has elapsed to enable such legal practitioner to take instructions from the applicant and to seek and obtain an adjournment of the trial of such reasonable duration as will enable his newly acquired legal practitioner to be ready for the trial proper previously scheduled to commence on 22 July 2002 but now adjourned to a date yet to be fixed].
3. A CLAIM AND PRAYER FOR:
3.1 SUCH OTHER ORDER as may be appropriate.
The claims and prayers set out above and to that general effect, although not referred to in precisely those terms during the several hearings in this matter are, I think, implicit in the extensive dialogue between Bench and Bar, which is recorded in the transcript, and they represent, in my judgment, the relief or remedies which the applicant was claiming.
THE JURISDICTION OF THE HIGH COURT
The High Court has, pursuant to section 120(2) of the Constitution, jurisdiction to hear and determine this application as it arises "under the Constitution" and "it involves its interpretation".
THE ISSUES RAISED
[The second accused, Josefa Nata, apparently being a person who is unable to reasonably afford the cost of legal services, has been provided with legal assistance in the form of the services of two legal practitioners: Ms. P. Narayan, a private legal practitioner assigned by the legal aid authorities to act as counsel, and Mr. A. Wolf, an appropriately qualified employee of the Legal Aid Commission. The applicant, Timoci Silatolu, has not been provided with the services of a legal practitioner under Fiji's legal aid scheme, even though he is a person whom the Legal Aid Commission now accepts (since 14 August 2002) is entitled to "unconditional legal aid" because, according to the Director of Legal Aid, he has "substantial liabilities which exceed (his) assets" indicating that he "may be insolvent" (see Exhibit L25) and because it was impliedly accepted by the Director, in her evidence, that he is "unable to reasonably afford the cost of legal services" because he has "insufficient means to engage the services of a private legal practitioner" (see Exhibit L23) and is, therefore, "an impoverished person" within the meaning of section 6 of the Legal Aid Act 1996.
These circumstances only need to be stated for it to be readily seen that the applicant, who has consistently been concerned that his constitutional rights not be infringed, considers that his right to equality before the law has been or is likely to be contravened in relation to him whilst he remains without the services of a legal practitioner and whilst he faces the prospect of being forced on (to his trial) unrepresented.]
2. Whether the applicant's right to "equality before the law" has been contravened.
[I refer to that part of these Reasons under the heading THE MEANING OF "EQUALITY BEFORE THE LAW"]
3. Whether the applicant considers that his right "to be given the services of a legal practitioner under Fiji's legal aid scheme" has been or is likely to be contravened in relation to him.
[The applicant has consistently and reasonably (in my view) expressed his concern that his qualified right to be given the services of a legal practitioner not be infringed. He has made several applications to the legal aid authorities, at least one of which was pursued (unsuccessfully) to the Legal Aid Commission by way of appeal. On 14 August 2002, when Exhibit L25 was conveyed to the applicant, he maintained that the offer contained therein of "assistance... to the maximum of $4,000 with a lawyer of (his) choice" was "not sufficient... it is a big case" and he asserted that he needed "to prepare" and that he had "witnesses to call" and that he needed "to adduce evidence according to section 28(1)(f) of the Constitution."]
4. Whether the applicant's qualified right "to be given the services of a legal practitioner under a scheme for legal aid" has been contravened.
[It is noted that it is the expressed intention of the people of the Fiji Islands in the Constitution which is the supreme law of the State [section 2(1)], that, in the event of a person charged with an offence not exercising his or her right "to defend himself or herself' and not exercising his or her right "to be represented, at his or her own expense, by a legal practitioner of his or her choice", he or she has the right "to be given the services of a legal practitioner under a scheme for legal aid.
This last-mentioned right is not an absolute one; it is a qualified right in the sense that it is conditional upon it being shown that "the interests of justice so require" it.
It is useful to consider what this conditional right is not. It is not a conditional right to receive a "contribution towards the cost" of legal services obtained by the person charged (see Exhibit L23, the letter dated 2 August 2002 from the Legal Aid Commission to the applicant), whether to be repaid (reimbursed) or not and whether or not such repayment (reimbursement) is to be secured by way of charge or the like. It is not a right to receive legal "assistance.......with a lawyer of (the applicant's) choice" whether subject to a ceiling or not.
It is not a right to have to accept "an offer – take it or leave it – of $4,000 worth of legal fees for a private lawyer of his choice."
Should it be necessary for the High Court of Fiji (pursuant to section 41 of the Constitution) to uphold a charged person's right under section 28(1)(d), in the context of the charged person seeking, because "the interests of justice so require", to be "given the services of a legal practitioner under a scheme of legal aid," it may be a matter of little, if any, concern to this Court how and by what means the services of a legal practitioner are given. That having been said, and as could be expected, the Legal Aid Act 1996 [section 7(1)(a) and (b)] provides some guide as to the giving of the services of a legal practitioner.
Section 7(1) of the Legal Aid Act provides:
"7. (1) The Commission may provide legal assistance by
(a) arranging for the services of private legal practitioners to be made available to legally assisted persons;
(b) making available the services of appropriately qualified employees of the Commission."
(The emphasis is mine)
Section 7 (2) provides:
"7. (2) The Commission may provide legal assistance –
(a) free of charge;
(b) by contributing towards the cost of legal services obtained by legally assisted persons; or
(c) by such other means as the Commission considers appropriate."
There may thus be a distinction between legal assistance by way of the services of a legal practitioner given pursuant to the conditional (or qualified) right to legal aid assistance [under section 28 (1)(d) of the Constitution] and the wider concept of legal assistance that may be provided pursuant to section 7 of the Legal Aid Act itself. Legal assistance under this wider concept may be [pursuant to section 7(2)] by way of a contribution towards the cost of legal services or by way of a "capped" payment (i.e. Subject to a maximum ceiling).
The powers of the High Court to grant redress to a charged person whose rights have been or are likely to be contravened in relation to him or her (section 41 of the Constitution) are wide, and they are certainly wide enough to justify the attachment to an order by way of constitutional redress made thereunder for the purpose of upholding a charged person's legal assistance right under section 28(1)(d), of a condition of reimbursement to recognise and support the purposes and objects of the Legal Aid Act.]
5. Whether "the interests of justice require" that a person charged with treason should be legally represented.
[I refer to that part of my Reasons under the Heading THE MEANING OF "IF THE INTERESTS OF JUSTICE SO REQUIRE"]
6. Whether, if so, the interests of justice require that a person charged with treason should, if not defending himself and if not being represented (at his own expense) by a legal practitioner of his own choice, be given the services of a legal practitioner under a scheme of legal aid.
[I refer to the current position adopted by the Legal Aid Commission (see Exhibit L25) and the evidence of the Director of Legal Aid to that effect that the applicant has not, in fact, been given the services of a legal practitioner under Fiji's legal aid scheme. He has only been offered some financial assistance to the extent of a $4,000 contribution to his legal costs.]
7. Whether an "adequate alternative remedy" (that is to say, alternative to constitutional redress) is available to the applicant.
[I refer to that part of my Reasons under the heading THE MEANING OF "AN ADEQUATE ALTERNATIVE REMEDY."]
THE MEANING OF "EQUALITY BEFORE THE LAW"
There is, of course, the general requirement contained in the Constitution [section 38(1)] that "every person has the right to equality before the law". This constitutional guarantee is to be interpreted in such a way as to "promote the values that underlie a democratic society based on freedom and equality" and "having regard to applicable public international law" [section 43(2)]. Effective means exist to guarantee equality before the law. The purpose of the guarantee is to ensure, firstly, adequate representation in the case; secondly, "equality of arms" to the applicant; and, thirdly, vigilance on behalf of the applicant by the defence to ensure that he receives a fair trial [section 29(1) of the Constitution].
I need neither trace the history of that requirement nor refer to each of the public international instruments that apply in this situation. That has been ably done by Dr Shameem in paragraph 4.1 (at pages 7 to 14) in her written submissions, and I content myself by saying that I am persuaded by her submissions.
Many countries with which Fiji can proudly compare itself have protection for equality rights; for example, the United States of America and Canada both have constitutional protection [see, in relation to the Canadian experience, Wilcox: An Australian Charter of Rights? (Sydney, LBC, 1993, p.159- 177), and the cases cited therein]; New Zealand has the legislative Bill of Rights Act 1990; Hong Kong has its Bill of Rights Ordinance 1991; and the United Kingdom is now subject to scrutiny under what it is known as "the European Convention on Human Rights." Australia has begun to recognise that certain human rights and fundamental freedoms are implied in its Constitution.
In the seminal Australian High Court case of Leeth v. The Commonwealth (1991-1992) 174 CLR 455, Deane and Toohey JJ, though in the minority in the application of the law to the facts of that case, said (at p.485):
"The doctrine of legal equality is in the forefront of (the recognised fundamental constitutional doctrines). It has two distinct but related aspects. The first is the subjection of all persons to the law: 'every man whatever be his rank or condition, is subject to the ordinary law...and amenable to the jurisdiction of the ordinary tribunals' [Dicey, 'Introduction to the Study of the Law of the Constitution'. ed. (1959), p.193]. The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts [see, e.g. Holdsworth, A History Of English Law, (1938), vol. 10, p.649J]. "
(The emphasis is mine).
Gaudron J said (at p.502):
"All are equal before the law. And the concept of equal justice – a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such – is fundamental to the judicial process."
(The emphasis is mine)
Brennan J (as he then was) did not disagree with the basic principle.
In the later Australian High Court case of Kruger v. The Commonwealth (1997) ALJR 991, Toohey J said (at p.1030):
".....a view of Leeth which confines any doctrine of equality to the joint judgement of Deane J and myself does less than justice to the reasons of Brennan J and Gaudron J."
and His Honour went on to state (at p.1031):
"In other words, the quality derives from the very existence of a Constitution brought into existence by the will of the people save to (a limited extent)......."
I am persuaded that the views expressed by Deane and Toohey JJ, when read in conjunction with the views of Brennan J and Gaudron J, represent the law in Fiji at this time. The words of Gaudron J are particularly apt, where Her Honour refers to the concept of equal justice requiring "the like treatment of like persons in like circumstances".
The two accused in this pending trial, not having, up until now, received like treatment in terms of "legal aid" representation, their constitutional right to "equality before the law" has been infringed.
THE MEANING OF "IF THE INTERESTS OF JUSTICE REQUIRE"
The test as to whether "the interests of justice require" the applicant, being a person charged with treason, "to be given the services of a legal practitioner under a scheme for legal aid" in the event of him not "defending himself in person" and not "being represented, at his own expense, by a legal practitioner of his choice" is not that the applicant will sustain actual prejudice, but whether it appears to be:
"plausible in the particular circumstances"
that a lawyer would be of assistance on the facts [Artico v. Italy [1980] ECHR 4; (1980) 3 EHRR 1].
The factors to be taken into account include:
(1) the seriousness of the offence with which the applicant is charged.
[As was stated at the commencement of these Reasons, treason was, in May to July 2000, one of the most serious criminal charges which any person in Fiji could face - see also Boner v. United Kingdom [1994] ECHR 36; (1994) 19 EHRR 246].
(2) the length and complexity of the case;
[Quaranta v. Switzerland (1991) Series A No. 205 at paragraph 34 and Benham v. United Kingdom [1996] ECHR 22; (1996) 22 EHRR 293 at paragraph 64.
In R v. Rowbotham (Ont.) 63 CR (3d) 113 the Court of Appeal of Ontario, Canada, said (at p. 176):
"In our view, a trial judge confronted with an exceptional case where legal aid has been refused who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. As stated above, the finding of legal aid officials that an accused has the means to employ counsel is entitled to the greatest respect. Nevertheless, there may be rare circumstances in which legal aid is denied but the trial judge, after all examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial. In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided. Such a stay is clearly all appropriate remedy under section 24(1} of the Charter. Where the trial judge exercises this power, either legal aid or the Crown will be required to fund counsel if the trial is to proceed."
(The emphasis is mine)]
(3) the potential sentence involved; for example, the loss of liberty or a fortiori the imposition of the death penalty (if applicable).
[Benham v. United Kingdom supra at paragraph 61 and Quaranta v. Switzerland supra at paragraph 32-38].
(4) the inability (if it be so) of the applicant to contribute effectively to his own defence, if he was forced to defend himself in person.
[Granger v. United Kingdom [1990] ECHR 6; (1990) 12 EHRR 469 at paragraph 47]
Most of these factors appear to have been recognised in Boner v. United Kingdom supra in which the European Court of Human Rights said (at paragraphs 43-44):
"It is not the Court's function to indicate the measures to be taken by national authorities to ensure that their appeals system satisfies the requirements of Article 6 (art. 6). Its task is solely to determine whether the system chosen by them in this connection leads to results which, in the cases which come before it, are consistent with the requirements of Article 6 (art. 6) (see, inter alia, the Quaranta v. Switzerland judgment of 24 May 1991, Series A No. 205,p. 15, para. 30).
The situation in a case such as the present, involving a heavy penalty, where an appellant is left to present his own defence unassisted before the highest instance of appeal, is not in conformity with the requirements of Article 6 (art. 6).
Given the nature of the proceedings, the wide powers of the High Court, the limited capacity of an unrepresented appellant to present a legal argument and, above all, the importance of the issue at stake in view of the severity of the sentence, the Court considers that the interests of justice required that the applicant be granted legal aid for representation at the hearing of his appeal."
With all due respect to both Mr. McCoy QC and Mr. Ridgway, both of whom are experienced counsel, and their submissions based upon it, I find little in the decision of the High Court of Namibia in Mwilima v. Republic of Namibia dated 14th December 2001, in, interestingly enough, a treason trial in that African country, which sheds any light on the question of what the phrase "the interests of justice" means. It was quite another matter with R v. Alick Au Shiu-yuen (1991) 1 HKPLR 71 which, I am persuaded by learned prosecuting counsel, sheds much light. In that conspiracy case Saied J, former Chief Justice of Uganda, said, when considering Article 11 of the Hong Kong Bill of Rights Ordinance 1991 (Cap 383), which is in terms similar to Fiji's section 28(1)(d), agreed with the submission made to him "that the case was difficult, complex and lengthy" (see p.75) and characterised his task as one arising "because of the seriousness and complexity of the case" (see p. 79). His Lordship was of the opinion that "the same principles" as had been established in the Canadian case of R v. Rowbotham supra "applied to the position of Alick Au Shui-yuen (see p. 80)."
In the landmark High Court of Australia case of Dietrich v. R [1992] HCA 57; (1992) 177 CLR 292 the thread running through all the judgments of the members of that Court was the right to a fair trial implied in the Australian Constitution and, therefore, the requirement of the common law that the interests of justice be taken fully into account.
The persuasiveness of their Honours' reasoning (and its applicability as part of the law of Fiji, where a fortiori there is not only a constitutional right to a fair trial [section 29(1)] but also a constitutional requirement that "the interests of justice" be considered [section 28(1)(d)]), becomes apparent from an examination of what some members of that Court said, and, in particular, Mason CJ and McHugh J, who said (at p. 311):
"The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely' to be unfair if the accused is forced on unrepresented. For our part, the desirability of all accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crime, the remedy of an adjournment should be granted in order that the representation can be obtained."
and (at p. 315):
"In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with all application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his own her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned postponed or stayed until legal representation is available. If, in those circumstances, an application that a trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial."
Deane J said (at p. 332-334):
In the State Courts of this country and in the Provincial courts of Canada, the weight of authority supports the view that there must be something special or extraordinary in the circumstances of a particular case to found a conclusion that a refusal of a trial judge to adjourn or stay the trial of a person accused of serious crime on the ground of unavailability of legal representation gives rise to a miscarriage of justice. To that extent, the weight of existing authority in those jurisdictions militates against any general proposition to the effect that, at least in the absence of exceptional circumstances, the inability of an indigent accused person to obtain legal representation on a criminal trial on a charge of serious crime will have the consequence that the trial is unfair. With great respect, however, the statements in those cases asserting that legal representation of an indigent person accused of a serious crime is not a prerequisite of a fair trial seem to me to be based either on the mere assertion of unpersuasive propositions such as that it is the function of a trial judge to conduct proceedings in a way which will ensure that an unrepresented accused has a fair trial or on subterranean policy considerations which largely remain unarticulated...
In contrast, the judgments in cases in the Supreme Court of the United States provide powerful and reasoned support for the acceptance of a general proposition to that effect that the inability of a person accused of serious crime to obtain legal representation by reason of lack of means will cause the trial to be an unfair one...
The reasoning in those United States judgments is, in my view, compelling in its analysis of the significance of lack of legal representation by reason of poverty to the law's fundamental requirement that a criminal trial be fair.
Similar reasoning has prevailed in the highest courts of the Common law jurisdictions of the Republic of Ireland and India. It should now be accepted and applied in this Court.
A criminal trial in this country [i.e. in Australia and, I would add, in Fiji also] is essentially an adversarial process. Where the charge is of a serious crime, the prosecution will ordinarily be in the hands of counsel with knowledge and experience of the criminal law and its administration. The substantive criminal law and the rules of procedure and evidence governing the conduct of a criminal trial are, from the viewpoint of an ordinary accused, complicated and obscure. While the prosecution has a duty to act fairly and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented. Thus, it is no part of the function of a prosecutor or trial judge to advise an accused before the commencement of a trial about the legal issues which might arise on the trial, about what evidence will or will not be admissible in relation to them, about what inquiries should be made to ascertain what evidence is available, about what available evidence should be called, about possible defences, about the possible consequences of cross-examination, about the desirability or otherwise of giving sworn evidence or about any of a multitude of other questions which counsel appearing for an accused must consider and in respect of such counsel must advise in the course of the preparation of a criminal trial. Nor is it consistent with the function of a prosecutor or trial judge to conduct, or advise on the conduct of, the case for the defence at the trial. Nor, in the ordinary case, is all accused capable of presenting his own case to the jury as effectively as call a trained lawyer.
An accused is brought involuntarily to the field in which he is required to answer a charge of serious crime. Against hint, the prosecution has available all the resources of government. If an ordinary accused lacks the means to secure legal presentation for himself and such legal presentation is not available from any other source, he will, almost inevitably, be brought to face a trial process for which he will be insufficiently prepared and with which he will be unable effectively to cope. In such a case, the adversarial process is unbalanced and inappropriate and the likelihood is that, regardless of the efforts of the trial judge, the forms and formalities of legal procedures will conceal the substance of oppression. In determining the practical content of the requirement that a criminal trial be fair, regard must be had "to the interests of the Crown acting on behalf of the community as well as to the interests of the accused."
Toohey J said (at p. 353):
"The right to a fair trial is engrained in our legal system. The absence of a fair trial arises most often where procedural irregularities occur, through more and more the extent of media coverage of criminal proceedings prompts applications for a stay of the trial, permanent or otherwise. Clearly enough, the concept of a fair trial is one that is impossible, in advance, to formulate exhaustively or even comprehensive. Only a body of judicial decision gives content to the concept. And when, as in the present appeal, the fairness of a trial is called into question because of the legal representation for an accused, it is not possible to exclude entirely from consideration the role of the State in providing legal aid.
How, relevantly, is the concept of a fair trial to be stated? In its most extreme form the submission of the applicant is that the State must provide legal representation to an indigent accused charged with a serious offence and that, if it does not, any trial that follows is necessarily unfair and any conviction that results must necessarily be set aside. The applicant says further that, to ensure that an accused receives a fair trial, the trial judge should, perhaps must, adjourn the trial if the accused is unable to secure counsel. Put that was, the ground of appeal alters form. It becomes a ground that the trial judge erred in refusing to adjourn until the applicant had secured legal representation."
and further stated (at p. 357), in a passage relied upon by Mr. Ridgway:
"In performance of its duty to conduct a trial fairly, a court may stay proceedings as 'an incident of the general power of a court of justice to ensure fairness.' It may be said that a court call not control the allocation of government funds such as those provided for a legal aid scheme and that a court is not responsible for the fact that an accused appears unrepresented before it. Those assertions are no doubt true. The organization of legal aid is a matter for government. Many considerations enter into the provision of legal aid, not the least of which are the many other demands made on the resources of government. However, once an accused appears before a court, the unavailability of legal representation does become a matter for the court, not because the court can remedy the situation by insisting upon the appointment of counsel, but because the court must then assess whether a fair trial may be had by the accused without legal representation. It cannot be said that the matter is truly beyond the control of the court because it is for the court to decide whether, in all the circumstances, the trial should proceed.
[and, I would add, or whether to make orders for constitutional redress]."
Gaudron J said (at p 373), after expressing her view that the fundamental requirement that a trial be fair is entrenched in Australia's Constitution in the implied requirement that the judicial power be exercised in accordance with the judicial process:
"... most advanced countries proceed on the view that a person accused of a serious offence should be legally represented at his trial. In the United States, constitutional provisions have been construed as comprehending the right of an indigent accused person to have counsel appointed for his defence. Member countries of the European Community are bound by the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides for legal representation in these terms:
'Everyone charged with a criminal offence has the following minimum rights: ...............
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.'
In England, a member country of the European Community, a statutory scheme provides for representation at public expense. And the countries which are parties to the International Covenant on Civil and Political Rights -and they include Australia -have assumed all obligation as specified in Art. 14(3)(d), which is as follows:
'In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:.................
(d)......... to have legal assistance assigned to him, in any case where the interests of justice so require.'"
In applying the law to the facts of this case, it is readily concluded that it is plausible, in the special circumstances of this extraordinary and unusual case in Fiji, that "the interests of justice require" that the applicant succeed in his application, particularly bearing in mind the seriousness of the offence with which he stands charged, the length and complexity of the case, the potential sentence involved, and the inability of the applicant, as a non-legal person, being able to contribute effectively to his defence if he was forced to defend himself in person.
THE MEANING OF "AN ADEQUATE ALTERNATIVE REMEDY"
My own researches have revealed no legal definition of the words "an adequate alternative remedy" [in section 41(4)] and none was referred to me by counsel.
It seems to me that, in circumstances such as have arisen in this case, the onus is on the State to satisfy me that "an adequate alternative remedy" is available to the applicant in the sense of an adequate remedy alternative to (and other than) constitutional redress. An example of an alternative remedy which the Court might deem relevant might be if an offer were to be made by a generous and altruistic patron or philanthropist to pay for the applicant's defence and if it were open to the applicant to accept such an offer.
I am satisfied that no "adequate alternative remedy is available" to the applicant [section 41(4) of the Constitution]. Section 41(2) makes it clear that the applicant's right to apply for constitutional redress is "without prejudice to any other action with respect to the matter that (the applicant) may have." Therefore and with respect, counsel for the Attorney-General could not be right when she said (byway of legal submission) that an adequate alternative remedy (in the form of judicial review) should have been (or should yet be) pursued.
If this Court's decision to uphold the applicant's right to apply to this Court for constitutional redress is seen, notwithstanding section 41 (2), as a misuse of its powers [see Harrikissoon v. Attorney-General of Trinidad and Tobago (1980) AC 265 at p.268] in circumstances in which judicial review may still be an option, then my decision can be corrected or overturned on appeal. But, lest it should be thought that I have misunderstood what Lord Diplock was saying in the passage quoted from the judgment of the Privy Council (at p. 268) and set out in Ms Baswaiya's written submissions (at pages 6 to 7), I should, for completeness and clarity, set out here the passage that immediately follows. It reads:
"..... In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom."
[Compare the wording used in section 41(5)].
I have emphasised the words underlined to highlight the fact that that is not the situation here; there is, in my judgment, nothing frivolous or vexatious about the applicant's application; far from him seeking to avoid the necessity of applying for judicial review, he has already made an application (albeit unsuccessfully) to withdraw funds standing to his credit (see Exhibit L35) and sought a review of decisions of the Director of Legal Aid by way of appeal; any further application for judicial review or the like seems likely, in the circumstances and having regard to the evidence given by the Director, to be doomed to failure. But, in any event, the applicant's right to apply for constitutional redress, unlike the situation in Harrikissoon's case, is, by virtue of section 41(2), "without prejudice" to any application for judicial review or to any appeal.
ULTIMATE FINDINGS
1. I am satisfied:
1.1 that the applicant is not intending to defend himself in person at his trial;
1.2 that the applicant is not intending to be represented, at his own expense, by a legal practitioner of his choice;
2.1 that the applicant is unable to reasonably afford the cost of legal services;
2.2 that the applicant is unable to engage counsel to represent him on his trial;
3. I am further satisfied:
3.1 that the interests of justice require that he be given the services of a legal practitioner under a scheme for legal aid;
3.2 that the applicant's constitutional right to be given legal representation has hitherto been and is likely (in the future) to be contravened in relation to him;
3.3 that the applicant's constitutional right to equality before the law has hitherto been and is likely (in the future) to be contravened in relation to him;
3.4 that, further infringements of his constitutional rights being imminent, the applicant is entitled to constitutional redress;
3.5 that no adequate alternative remedy is available to him;
3.6 that declaratory orders ought to be made;
3.7 that orders by way of mandatory injunction directed to the State ought to be made;
3.8 that an order by way of a temporary stay of proceedings (or an adjournment) in the treason trial ought to be made until those orders by way of mandatory injunction are complied with.
ORDERS AND REMEDIES
Being of the opinion that orders by way of constitutional redress are necessary and appropriate to secure to the applicant the enjoyment of his rights
THIS COURT ORDERS AS FOLLOWS:
AND LIBERTY IS HEREBY RESERVED to all parties TO APPLY for much further or other orders as to this Court seem just and appropriate.
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