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State v Tanaburenisau - Ruling No 2 [2005] FJHC 727; HAC044.2004S (15 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC044 OF 2004S

THE STATE

V

ATONIO TANABURENISAU and 4 Others

Gates J

Ms M. Waqavonovono for Legal Aid Commission
Accused 3 and 4 in person
Ms A. Prasad for the State

14, 15 April 2005

RULING NO. 2

Representation sought for two Accused for trial; 3 others already had counsel; single offence against each of taking an engagement in the nature of an oath to commit a capital offence, section 5(b) Public Order Act Cap 20, read with section 50 of the Penal Code; maximum sentence life imprisonment; application for Legal Aid refused: applications said to lack merit; Accused indigent; consideration by court whether to make order for counsel to be paid out of State funds in interests of fair trial section 29(1); interests of justice; equality before the law; whether trial would miscarry; not an absolute right; issues to be considered; seriousness of charge; length and complexity of trial; maximum sentence; inability of Accused to conduct their defence; Fiji’s limited resources.

[1] Levani Tonitonivanua [Accused 3] and Viliame Sausauwai [Accused 4] face trial on an information, amended on 11 March 2004, which alleges in a single separate count against each that each took an engagement in the nature of an oath to commit a capital offence. This is an offence contrary to section 5(b) of the Public Order Act Cap 20 read with section 50 of the Penal Code Cap 17 [as it was at 20 May 2000, the date of the offence]. The offence carries a maximum sentence upon conviction of life imprisonment.

[2] In the remaining counts of the information, 3 other Accused are separately and similarly charged. Each of those 3 have instructed counsel for the trial.

[3] Accused 3 and 4 applied for legal aid which was declined. Accordingly I ordered that the question of whether the court should order that the cost of their defence be met by the State be argued before me yesterday. The Legal Aid Commission, the Attorney-General and the Director of Public Prosecutions were invited to attend and to make submissions on whether it were appropriate to make such an order.

[4] No counsel appeared for the Attorney-General. However I did hear submissions from Ms Waqavonovono for the Legal Aid Commission and from Ms Prasad for the Director of Public Prosecutions. Those were of much assistance.

[5] The relevant Constitutional safeguards are contained in section 28(1)(d) and section 29(1). Section 28(1)(d) provides that "Every person charged with an offence has the right:

"(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;

[6] Section 29(1) provides:

" 29. (1) Every person charged with an offence has the right to a fair trial before a court of law."

[7] The Criminal Procedure Code acknowledges the right of any person accused of an offence before any criminal court to be defended by a barrister or solicitor (now termed legal practitioners) [section 188 CPC]. The code does not provide a right to have one’s defence paid for by the State.

[8] Both of these accused have expressed a wish, in spite of the rejection of their application by the Legal Aid Commission, to be represented by counsel.

[9] Ms Waqavonovono informed me that the Accused have not gone on to seek remedies through the internal appellate path laid down in such matters. I explained to Ms Waqavonovono that the trial had been set for 26 May 2005 and this did not allow sufficient time for such procedures to be exhausted and then for counsel, if granted, to be properly instructed and prepared. Court commitments for the other counsel as well as for the court make it undesirable to put cases off too readily.

[10] Will the trial miscarry if these two Accused are unrepresented? Will they lose their constitutional right to a fair trial if they have no counsel? Even if such a right does not insist upon their being given counsel, nonetheless is it in the interests of justice that each be given the services of a legal practitioner for this particular trial, the right under section 28(1)(d)? Lastly, by having no counsel provided to them, are they denied their right to equality before the law [section 38(1)]?

[11] It is clear also that there is no common law right to be provided with counsel at public expense. But it is the court’s duty to ensure that any trial is conducted in a manner fair to both or to all of the parties to the litigation. The right to a fair trial has been described as "a central pillar of our criminal justice system" and "a fundamental element": Dietrich v The Queen [1992] 177 CLR292 at p.298, 299.

[12] This is not an application under the provisions of the High Court (Constitutional Redress) Rules or one where the remedies of section 41 of the Constitution are sought.

[13] The right "to be given the services of a legal practitioner under a scheme for legal aid" has been said often enough not to be an absolute right. Many jurisdictions overseas have well advanced systems which are able to offer legal aid to those indigent Accused who seek it. This is not the case in Fiji where money and resources presently allocated to the Legal Aid office are meagre and rudimentary.

[14] Brennan J (Dietrich at p.322) was of the view that many trials of unrepresented persons did not result in a miscarriage of justice. It is obvious that unfairness will not be found where an Accused, whether indigent or not, declines assistance from counsel and chooses to conduct his own defence. Nor will it be found where counsel is offered but the Accused wishes to retain someone else whom he cannot afford; similarly if he has been the author of his own misfortune and failed to avail himself of procedures to obtain counsel. Generally, the courts will extend a good deal of indulgence to an Accused to guide him towards proper representation. If all fails however, the resultant trial will not necessarily be considered unfair for lack of representation.

[15] In Dietrich’s case the applicant had made clear at the commencement of his trial for importing heroin into Australia that he was not emotionally or mentally fit to conduct his own trial. He had said "I’m not legally minded" and "I don’t understand the system... I’ve no idea". These latter objections were not as compelling as his mental state.

[16] The difficulty for the prosecution and the judge in a trial of an unrepresented Accused was put by Deane J (Dietrich p.334-5):

"A criminal trial in this country 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 (63). 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 which such counsel must advise in the course of the preparation of a criminal trial. Nor is it consistent with the function of 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 an accused capable of presenting his own case to the jury as effectively as can a trained lawyer."

[17] The Legal Aid Commission have formed the view that the defence cases lacked merit. That is an opinion that has bearing on the approach the Commission necessarily might follow in its difficult task of apportioning scarce resources. However, it cannot form part of the trial judge’s thought processes and is irrelevant to my consideration of the issue. In Dietrich the appellate court considered on the evidence a conviction was not inevitable.

[18] The applicants here lack means. Apart from observations on the merits, Ms Waqavonovono has not informed me of any other disqualification. She referred to The State v Timoci Silatolu (unreported) HAC011.01S, 22 August 2002. In that case Wilson J made a variety of orders including that the State provide funds for the provision of counsel and that there be a temporary stay until one were appointed.

[19] The judge also found that the applicant’s right to be given legal representation had been contravened, as also his right to equality before the law. He had faced a treason charge for which the then penalty was death. The trial was expected to take 4 to 6 weeks and be complex.

[20] There are four matters to be considered here, the first of which is the seriousness of the charge. Treason is clearly more serious than the charges facing these Accused. Of the same charges in Ratu Jope Seniloli and 4 Others v The State (unreported) Crim. App. No. AAU0041.04S, 11 November 2004 the Court of Appeal said (at p.26):

"These were very serious offences. They took place at a time of profound disturbance and armed challenge of the legitimate government. The insurgents were holding a number of innocent people hostage and no one could be sure of their ultimate safety."

[21] There is no denying the seriousness of the charges to the Accused and to the people of Fiji. The sentencing tariff is in the range 12 months to 6 years imprisonment.

[22] The next consideration is the length and complexity of the trial. This trial could extend over 3 to 4 weeks. The Court of Appeal did not consider this type of case particularly complex (Seniloli at p.23) "the issues were clear and the events giving rise to the case were notorious". Indeed the elements of proof for the case are straightforward, and the facts are likely to be of the same order.

[23] The third consideration is the maximum sentence applicable to such an offence. This is life imprisonment, and the court in Seniloli observed (at p.28):

"Imprisonment is the only appropriate sentence for offences of this kind and the court had no alternative but to pass condign sentences."

It must be remembered that these can only be preliminary observations for the purposes of this application and ruling prior to the hearing of any evidence or possible mitigation.

[24] Lastly, the inability of the Accused to contribute to his own defence is to be considered. I have no evidence of any articulateness or otherwise on the part of the Accused. No doubt each would benefit from the assistance of counsel. Ms Waqavonovono submitted the law and the facts were not complicated. Ms Prasad for the State said it would be "quite a simple trial".

Conclusion

[25] This application has to be considered to some extent in the light of Fiji’s resources. This is not to underestimate the assistance that could be rendered by counsel to the Accused and to the court, a factor of importance recognised by Gaudron J in Dietrich (at p.372):

"an importance which is not only recognized in our legal system but in those of other advanced countries. There are, of course, special problems with developing and third world countries"

[26] In S v Radman; S v Mthwana [1992] 1 SALR 343 the Appellate Division of the Supreme Court of South Africa held that legal representation was not essential for a fair trial. The court reasoned that it was impractical for the courts to oblige the State to provide counsel to indigent Accused when such an obligation would result in an intolerable burden on the organization and financial status of the legal aid system. To that I would add "and to the State itself" representing the taxpayer.

[27] No doubt legal aid will grow and be extended to a greater number of litigants in Fiji. This is a matter of expenditure for Parliament to decide when raising and allocating monies.

[28] I do not find the constitutional rights of the two Accused will be denied if no order is made for the State to pay for their defence. The Accused must now obtain counsel if they can without such assistance, or defend themselves on this information.

A.H.C.T. GATES
JUDGE

Ms M. Waqavonovono for Legal Aid Commission
Accused 3 and 4 in person
Solicitors for the State : Office of the Director of Public Prosecutions, Suva