IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC004 OF 2004S

THE STATE

V

ABHAY KUMAR SINGH

Mr M. Raza for the Accused
Mr K. Raftery with Mr A. Ravindra Singh for the State

30 and 31 March 2005
Gates J

PRE-TRIAL RULING NO. 2

Defence application for an adjournment of trial; various reasons given; indisposition of senior defence counsel; pretrial matters still not attended to; need for defence expert to examine digital recording device; expert translator; ascertainment of alibi witnesses necessary after late amendment of information which changed dates of 2 of the offences charged; giving of alibi notices and State needing time to check; not to be cured by short adjournment; inconvenience of alternative July dates for counsel for State; adjournment necessary to compensate for disadvantage caused by prosecution and to ensure a fair trial.

[1] 	There should be no publication of this part of the proceedings by the media, nor of this ruling, until the conclusion of the case.

[2] 	After the ruling delivered the day before yesterday denying a permanent stay, Mr Raza made an application for an adjournment of the trial. The application was put off till yesterday, which is a day before the date set for commencement of the trial.

[3] 	There were several reasons for the application. Presently Senior Counsel for the defence Mr Paul Willee QC is indisposed with influenza. There were significant pre-trial matters still to be attended to. Mr Raza for Mr Willee sought a July date.

[4] 	Mr Raza said there was a need to examine the digital recording device, to compare the digital and tape recordings, to obtain an expert translator, and to obtain alibi witnesses. Alibi witnesses were to be found at this late hour since the State had filed an amended information on 8 March 2005 changing the dates of the offences in counts 1 and 2. There had been too little time since the Accused returned from overseas in which to gather such evidence for the new dates alleged. Similarly, as Mr Raftery conceded, there needed to be some time allowed for the State to have those alibis once notified, checked.

[5] 	In the initial discussions with counsel I indicated that the court would require written confirmation from Mr Willee as counsel of choice for the Accused that he would appear for the trial on the dates of adjournment if granted. If this trial came out of the list the next dates would be either 12 or 19 July 2005 for commencement. Even these dates involve the re-scheduling of another case. I also expected, with the exception of the ascertainment of defence alibi witnesses, the giving of alibi notices, the checking of the alibi witnesses by the State, and the defence expert examination of the digital recording device, that all other outstanding pre-trial conference matters would have been resolved by 4pm on 4 April 2005.

[6] 	With both counsels’ consent I fixed the 4 April 2005 at 4pm, as the date for the next pre-trial conference.

[7] 	Mr Raza accepted for his client that he would be able to take advantage of the time till then to resolve the outstanding issues. They were:

(i) 	Clarification of the police record of interview as to what if anything in the document remained to be challenged.

(ii) 	To check and to agree accurate transcripts in Hindustani and English of the conversations captured on the audio tapes.

(iii)	To agree what were to be the disputed issues for the trial within trial, and what matters were not to be challenged.

(iv) 	To have a written indication from the defence expert of the nature of the examination required of the digital recording device or of its recording so that appropriate and secure arrangements could be agreed for the carrying out of necessary tests or examination. These are likely to be carried out whilst the exhibit is still in the custody of the State.

[8] 	Mr Raza said the defence needed “the original copy” for the digital device. I am not sure what this means but this is a matter to be resolved amongst counsel and it should not present a difficulty. The defence expert as well as Mr Willee, according to Mr Raza, will use the services of a Hindi speaker from the University of Melbourne for necessary comparisons of copies.

[9] 	Mr Raftery recognised the need for some accommodation of the defence following the earlier ruling. This was because of the late amendment requiring the consideration of two different alibis for counts 1 and 2 respectively. At the outset of his remarks he hoped a short adjournment to 4 or 5 April might suffice. However this was unlikely to allow enough time for the defence, and the time slot allotted for this case would mean the case would overrun into other trials, civil and criminal, which for various case management reasons have been made priority listings and are not to be dislodged.

[10] 	Mr Raftery said he would not be available from late June to the end of the year. If this is so, though unfortunate, it will mean another senior counsel for the State may have to be briefed.

[11] When Mr Raza listed amongst his reasons time needed for Mr Willee to prepare the case generally, Mr Raftery not unnaturally objected. Mr Willee was instructed in 2004 and by now should be well acquainted with the brief. He had kindly responded to the court’s earlier request for information of his availability and engagement for the trial for the period 28 March to 15 April 2005. General preparation for trial should be complete by now.

[12] 	The case has been marred by unfortunate acrimony between the defence and prosecution teams. Co-operation over professional matters has not been governed by the usual high standards expected of the Bar. That period I hope is ended. The two local counsel and two overseas counsel should now put the tackle of this case in professional order ready for trial.

[13] 	I am prepared to accede to the defence request for an adjournment. The trial is now to commence on Tuesday 19 July 2005 at 9.30 am. I am told it should have a maximum duration of 3 weeks. Indeed I expect it to be close to 2 weeks. I allow the adjournment to compensate the Accused for the late notification of fresh dates of offence to permit the gathering of defence alibi witnesses, the giving of notices, and for the State to make its checks, and to allow expert evidence to be gathered concerning the recorded conversations. Such an adjournment I regard as necessary to ensure a fair trial.

[14] 	I impose two conditions on the defence for the grant of the adjournment. 

( i) 	I expect the active and pro-active authoritative involvement of defence counsel in the resolution of pre-trial conference matters as referred to above, most of which should be resolved by 4 April 2005 at the next PTC.

(ii)	I require Mr Willee as counsel of choice for the Accused to confirm to the court himself that he will be available for the trial from 19 July-5 August 2005. He may do so by fax to Mr Raza for referral to the court on 4 April 2005 at the PTC.

(iii)	

A.H.C.T. GATES
JUDGE

Solicitors for the Accused: Messrs M. Raza & Associates, Suva
Solicitors for the State	: Office of the Director of Public Prosecutions, Suva