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Balaggan v State - Decision [2012] FJHC 961; HAA31.2011 (16 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 31 of 2011

BETWEEN:

MUSKAN BALAGGAN
Appellant

AND:

THE STATE
Respondent

Date of Hearing: 2 March 2012
Date of Decision: 16 March 2012

Counsel: Ms S. Vaniqi for Appellant
Ms T. Leweni for State

DECISION

[1] On 31 January 2011, the appellant was charged with an offence under the Illicit Drugs Act. She was represented by Mr Chaudhry. Mr Chaudhry also acted as her surety in the case. She resided with him at his residence in Suva while on bail awaiting trial.

[2] On 13 June 2011, the appellant lodged a complaint with the Fiji Police Force that she was raped by Mr Chaudhry on numerous occasions between February and April 2011. She gave a statement to D/IP Salaseini Vakatuturagani in which she explicitly described each incident of rape. She signed a declaration that her statement was true.

[3] On 4 July 2011, the appellant swore an affidavit before Mr Marawai, withdrawing her complaint of rape against Mr Chaudhry. Mr Marawai delivered the affidavit to the police. Her affidavit reads:

1. I came to Fiji from Melbourne, Australia in January 2011. When returning to Australia, I was arrested at the airport and questioned and charged for possession drug. I was presented in Court. I was then remanded at Suva Women's Prison. I engaged Rajenra Pal Chaudhary of Gordon & Chaudhry. He bailed me and as I didn't have anyone offered to be my surety. I have no family or relations or friends in Fiji with whom I can stay whilst my case is pending. I have no further monies to afford to rend. Mr Chaudhry and his wife took me into their care and I stayed with them.

2. The DPP informed the Court on 8th March 2011 that they were awaiting weight and analysis results from Australia of the substance I was charged with allegedly being in possession of and it could take between 6 weeks to 6 months. I also made application, through Mr Chaudhry to vary bail so that I could travel to Australia to continue my studies and I had to be in Australia before 11th April 2011 or I would lose my enrolment and visa. This application was unsuccessful.

3. As I couldn't travel to Australia for my studies whilst awaiting trial, I lost my place at the tertiary institute at which I was studying as well as lost my employment at Cadbury Schweppes. I was also missing my fiancé. Since I have been in Fiji I have not been able to see him and our relationship is extremely strained and under pressure. I was scared we will break up as he does not understand how I could have been caught up in such events leading to my arrest and detainment in Fiji. All of these events in my case made me very frustrated. Mr Chaudhry spoke sternly to me when I asked him about my case. I thought that he was not focused on my case. As the days went by I became very stressed out and dejected. The news of my mother being very ill made me depressed and homesick.

4. When Mr Chaudhry left for Australia on 10th June 2011 for holiday with his family, I became very angry that Mr. Chaudhry could go to Australia and take a holiday whilst my case was pending. In my anger and desperation, and upon talking to certain people, I made certain allegations against Mr. Chaudhry in my statement to Police on 14th June 2011. Each and every allegation I made against Mr. Chaudhry on that day is untrue and was made in a state of anger and now with the benefit of hindsight and a settled mental state, I now withdraw all those allegations and my complaint in totality.

5. I have not been influenced by anyone, pressured and offered no promises to withdraw my complaint against Mr Chaudhry and I have consulted Mr Kini Marawai and spoken to him and had this affidavit prepared on my instructions.

6. I further give an undertaking that the allegations as made on 14th June 2011 will not be the bases of any future complaint/s against Mr Chaudhry by me.

[4] Following her withdrawal of complaint, the appellant, on 7 July 2011, was cautioned interviewed in the presence of Mr Marawai. She elected not to offer any explanation for filing a false report against Mr Chaudhry. On 8 July 2011, she was charged with giving false information to a public servant.

[5] On 12 July 2011, the appellant was presented in the Magistrates' Court on the new charge. She was represented by Mr Vakaloloma and was granted fresh bail with a new surety. On 3 August 2011, she appeared in the Magistrates' Court with Mr Vakaloloma. By this time, her bail was revoked in the drugs case by the High Court.

[6] On 4 August 2011, Mr Marawai appeared for the appellant and advised the court that his client was ready to take a plea. Mr Marawai had earlier witnessed the affidavit of the appellant in this case. Plea was taken. The appellant pleaded guilty to the charge. But the State had not prepared the facts and so the case was stood down to the afternoon. In the afternoon, the case was further adjourned upon an application by the State. On 5 August 2011, the appellant admitted the facts tendered by the State. The case was adjourned to 15 September 2011 for mitigation. Meanwhile, the case was called twice in court for review of bail. On 5 September 2011, Mr Marawai informed the court:

"Mr Chaudhry wrote to an employer from Melbourne for a character reference."

[7] On 15 September 2011, Mr Chaudhry appeared in the case by saying:

"I am asking the Court to ask the Accused if she still wants me to appear for her and do Mitigation on her behalf."

[8] The appellant replied:

"I want Mr Chaudhry to appear."

[9] Mr Chaudhry then said:

"I have prepared written submissions. Seek leave to handover a copy to the Court and give one to my learned friend. I will rely entirely on the submission. Wish to highlight few things to the Court by oral submission."

[10] In presenting mitigation on behalf of the appellant, Mr Chaudhry advanced submissions suggesting the appellant acted under coercion to lie about him. The details of the coercion were contained in a statement of the appellant dated 22 July 2011. This statement was witnessed by Sher Bahadur, Commissioner for Oaths. The appellant's statement dated 22 July 2011 contradicts her affidavit dated 4 July 2011. Counsel cannot be naïve about the contradictions.

[11] The case was adjourned to 29 September 2011, after counsel for the State expressed concerns about a potential defence being raised in mitigation. On 29 September 2011, Mr Chaudhry applied to have the appellant's guilty plea vacated. The application to vacate the guilty plea was refused by the learned Magistrate. The appellant was convicted and sentenced to 2 years' imprisonment.

[12] On 12 October 2011, Mr Chaudhry filed an appeal against conviction and sentence. When the case was first called before me, I asked Mr Chaudhry to state for the record that he is representing the appellant without any conflict of interest. Mr Chaudhry immediately withdrew as counsel. After Mr Chaudhry's withdrawal, the appellant engaged Ms Vaniqi as her new counsel. Ms Vaniqi withdrew the appeal against conviction and pursued appeal against sentence only. On 2 March 2011, the appeal was heard.

[13] After considering the court records, there are certain aspects of conduct of counsel appearing for the appellant in the Magistrates' Court that is of concern to this Court. But without knowing the full facts, it is difficult to determine whether the appellant was prejudiced by the conduct of counsel representing her in the Magistrates' Court. To do justice to her appeal, an independent inquiry is necessary to determine if counsel had acted professionally under the Legal Practitioners Decree when representing the appellant in the Magistrates' Court.

[14] Firstly, it appears that counsel played "ducks and drakes" in the court below. Mr Vakaloloma made two appearances and disappeared. Mr Marawai made four appearances in which the appellant pleaded guilty and admitted the facts tendered by the State. He then disappeared without any explanation. Mr Chaudhry then appeared to mitigate and to vacate the appellant's guilty plea. He withdrew when this Court raised the issue of conflict of interest.

[15] Secondly, there is an issue as who was the counsel with instructions from the appellant. The appellant in her sworn statement dated 22 July 2011 said she instructed Mr Marawai to draw her affidavit withdrawing her complaint against Mr Chaudhry. She makes no mention of giving any instructions to Mr Vakaloloma. When Mr Chaudhry appeared, he gave an impression to the court that he will involve himself in the case only with the consent of the appellant. However, Mr Marawai, on an earlier appearance, informed the court that Mr Chaudhry has already involved himself and was seeking a character reference for the appellant from her employer in Melbourne.

[16] Thirdly, there is an issue of Mr Marawai representing the appellant after witnessing her affidavit upon which the charge of giving false information was founded.

[17] Fourthly, there is an issue of Mr Chaudhry representing the appellant in the circumstances of clear conflict of interest.

[18] Finally, there is an appearance of collusion between counsel to achieve a favourable result for Mr Chaudhry at a detriment of having the appellant plead guilty to the charge of giving false information so that any investigation against Mr Chaudhry is deflected.

[19] There is no doubt that these issues can substantially affect the outcome of the appeal. To ensure the appellant receives a just hearing, I will postponed my judgment until there is a determination that counsel representing the appellant in the Magistrates' Court had acted properly in accordance with their duties under the Legal Practitioners Decree.

[20] I direct my decision and the court records of this appeal to be forward to the Chief Registrar for an independent inquiry into the professional conduct of Mr Vakaloloma, Mr Marawai and Mr Chaudhry as legal practitioners under the Legal Practitioners Decree on the issues raised above.

[21] Further hearing of this appeal is postponed until the outcome of the inquiry is forward to this Court. The case will be called on 16 April 2012 to check on the status report of the inquiry.

Daniel Goundar
JUDGE

At Suva
16 March 2012

Solicitors:
Office of the Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State