IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0043 of 2004S

STATE

v.

URAIA RADULE;
JOSEFA MAVOA; and
MATEO TALEA

Counsel: Mr. D. Toganivalu for State
Ms B. Malimali for all Accused

Hearing: 3rd August 2005
Ruling: 9th August 2005

INTERIM RULING

The trial of all three accused on one count of murder and another of robbery with violence, is due to commence on the 26th of September 2005. The 1st Accused is represented by counsel, but the Legal Aid Commission has refused legal aid for the 2nd and 3rd Accused. The refusal is based, not on the ground that the accused have the means to instruct their own counsel, but on lack of funds. Indeed, the Commission concedes that neither accused has the means to brief counsel of his own choice.

The result is that neither accused is represented. I asked counsel from the DPP’s office and from the Legal Aid Commission to make submissions to me about the potential prejudice to the accused if we proceeded to trial without legal representation for them, and if there was such potential prejudice, what remedies are available to me to prevent such prejudice.

Counsel for the Commission made very comprehensive submissions to me both in writing and orally from which I have gained much assistance. State counsel agrees with her submissions.

Counsel said firstly that the Commission could only represent one accused person because there was a conflict between his defence and that of the other two accused persons. Secondly, the Commission lack the financial and human resources to provide representation for the remaining two accused either by using in-house solicitors or by briefing-out.

However, she concedes that there is a right to representation under section 28(1)(d) of the Constitution and that, where the interests of justice so require, the State must provide the service of a legal practitioner under a scheme for legal aid. In Timoci Silatolu v. State Fiji Court of Appeal No. 1 of 2002S held that the interests of justice included a consideration of the inability of the accused to contribute effectively to his own defence, the seriousness, length and complexity of the case. She agreed that in this case, all these factors could be decided in favour of the two accused and agreed also that in the Silatolu case, the Court of Appeal held that the High Court had powers to direct the Legal Aid Commission to provide legal assistance in order to give effect to section 28(1)(d). However, she said that the Commission was unable to abide by any such directive because it had no funds at all to comply. Failing such an order, the High Court had no other remedy other than to stay the trial until funds could be found.

This is a case which will require an assessment of a number of legal issues. The confessions will be challenged and there will be a trial within a trial. There is conflict between the defences of the 1st Accused and the other two accused. One or other of the accused may decide to give evidence and without legal representation, the accused persons may not be properly advised as to their wisest choice. Joint enterprise is likely to be an issue. Malice aforethought will certainly be an issue. This is not a simple case, and if the accused persons are convicted, the mandatory sentence is life imprisonment. Clearly there is a high risk of prejudice without legal representation, especially when the 1st Accused is represented and whose defence conflicts with that of the 2nd and 3rd. It would therefore be unsafe to proceed without counsel when there is potentially a breach of section 28(1)(d) of the Constitution.

In State v. Atonio Tanaburenisau & 4 others HAC0044.04S the Legal Aid Commission had refused legal aid for two accused persons charged with taking unlawful oaths purporting to commit them to acts of treason. Having considered the Court of Appeal decision in Silatolu Gates J found that there would not necessarily be a breach of section 28(1)(d) of the Constitution because the issues in that case were not complex and it was not in the interests of justice that the Commission be ordered to provide representation.

In this case, I consider that it would be unwise to proceed without legal representation for all accused. I am told that there is no conflict in the defences of the 2nd and 3rd Accused and that one legal practitioner could represent both. At the hearing of this matter, I asked counsel if the Commission might be in a position to approach lawyers to appear pro bono esse. She said that it was a possibility. I consider that before making any definite orders in the case either to order the Commission to find funds to represent the two accused, or to stay the trial indefinitely until funds are available, I would like that option to be explored. Clearly, it is not in dispute that the accused should be represented. The only issue is what order is most appropriate to provide a remedy for the breach of section 28(1)(d) of the Constitution.

I therefore request the Legal Aid Commission to explore the possibility of requesting lawyers from the private bar to represent the accused free of charge. I adjourn the matter to the 30th of August 2005 at 9.30am in open court for a report on progress in the matter.

Nazhat Shameem
JUDGE

At Suva
9th August 2005