IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL MISCELLANEOUS JURISDICTION

HIGH COURT MISCELLANEOUS CASE NO: HAM 120 OF 2011
CRIMINAL CASE NO. HAC 16 OF 2010

In the matter of an application for withdrawal of Counsel brought under the inherent jurisdiction of the High Court in criminal matters.

BETWEEN:

GORDON & CHAUDHRY LAWYERS
APPLICANT

AND:

STATE
RESPONDENT

Counsels: Applicant - Mr. Valenitabua
 Respondent- Ms. Puamau S
Date of Hearing: 27/06/2011
Date of Ruling: 29/06/2011 at 9.30am.

RULING

1.	Counsel for the 1st and 2nd Accused persons makes this application on behalf of Gordon and Chaudhry Lawyers for the following orders:

(i)	 Leave be granted to Counsel for the 1st and 2nd Accused to withdraw 
 from these proceedings;

(ii)	 Legal Aid be provided to the 1st and 2nd Accused by the Legal Aid 
 Commission in their defence of this matter; and

(iii)	 Alternatively, the trial date be vacated and a fresh hearing date be 
 set in October, 2011 or any other date thereafter.

2.	In support of the notice of motion, the affidavit of Priya Dharshani Devi a legal clerk attached to Messrs Gordon & Chaudhary lawyers was filed.

3.	In her affidavit Priya Dharshani Devi stated that both accused persons have been called into their office on numerous occasions to impart instructions and pay fees but neither attended to their office to do so.

4.	Further she states that another issue arose last few days. She states that both the deceased persons were well known to a staff member named Anjani Prasad. It has come to light only this week, she stated in her affidavit. She had further stated that Ms. Prasad works for them and this raises issues of conflict. 

5.	A copy of a statement of Anjani Prasad is annexed to the affidavit as 'PDD1'

6.	In her affidavit she has further stated that as a commercial organization, their duty is to fee paying clients. They have already done one case pro bono this year and have another case and that they cannot do this case pro bono as their principal is abroad and Mr. Valenitabua has just joined the firm and is not familiar with the file.

7.	She states that they will still represent the accused persons without payment of fees, but they seek to have the trial date vacated and a fresh date be given in October 2011, so that Mr. Chaudhry can argue this matter as he is busy with his father's matter which is to be argued on 12/09/2011 before Goundar J.

8.	Application for the firm to withdraw as counsel on record for both accused persons was made previously on 20/06/2011 on the basis that their fee was not paid. Ruling was delivered on that application on 23/06/2011 refusing the same for the reasons given.

9.	On the day that ruling was delivered, the same counsel Mr. Valenitabua appearing for the accused persons on the instruction of the same firm, moved for time to prepare for the case. Although the application for withdrawal as counsel for accused was refused, considering the said application by the counsel the court adjourned the trial till 30/06/2011 to enable the counsel to prepare for the case.

10.	Meantime on 27th June 2011 this application was made on the same ground of non payment of fees with further grounds of conflict of interest and lack of instructions.

11.	As mentioned before I have already made a ruling on the application to withdraw as counsel on the basis of non-payment of legal fees and therefore I will now deal with the two new grounds.

12.	In the letter annexed to the affidavit of Priya Darshani Devi, Anjali Devi an accounts clerk of the firm has stated that the two deceased persons in this case were her family friends. Therefore last year she had asked Mr. Chaudhry as to how she could find out the next court date. According to her, Mr. Chaudhry had told her to check with the court. Nowhere in the letter has she stated that Mr. Chaudhry or anyone else of the firm discussed or got instructions from the deceased party, or even that she spoke to Mr. Chaudhry about the matter on behalf of the deceased persons.

13.	Just because one of the employees who is an accounts clerk of the firm was known to the deceased persons, I do not see any conflict of interest issue in this matter. This issue was never raised in court until the previous ruling dated 23/06/2011 was made by this court.

14.	At this stage, just 3 days before the trial date, applicant cannot be allowed to say that they have not received instructions. As mentioned before in my ruling dated 23/06/2011 when Mr. Chaudhry appeared in court on 05/05/2011, 01/06/2011 and on 06/06/2011 for the accused persons in the substantive matter, the court was never informed that he has not got instructions. Even when the previous application for withdrawal, which was refused was made, it was never mentioned that he had no instructions. If he had no instruction he could have told the court before or at least at the time the previous application was made. When the previous application was made and when it was supported in court, Mr. Valenitabua informed court that the only ground they urge was non-payment of fees. No further applications can be allowed to be made on more grounds unless it arose thereafter.

15.	In paragraph 10 of the affidavit of Priya Darshani Devi she has said that it is not fair to act for the accused if fees are not paid, as it could affect the standard and level of representation.

16.	The Supreme Court of Canada in R v Cunningham 2010 sec 10; [2010] ISCR 331 on the same issue in paragraph 40 of the judgment said:

"I am also unpersuaded by the Law Society of British Columbia's point that forcing unwilling counsel to continue may create a conflict between the client's and lawyer's interests. It is argued that where counsel is compelled to work for free, he or she may be tempted to give legal advice which will expedite the process in order to cut counsel's financial losses even though wrapping up a criminal matter as quickly as possible may not be in the best interests of the accused. This argument, however, is inconsistent with the Law Society's position – with which I agree – that the court should presume that lawyers act ethically. There are many situations where counsel's personal or professional interests may be in tension with an individual client's interest, for example where counsel acquires an interesting new file that requires immediate attention, or has vacation plans that conflict with the timing of court proceedings affecting the client. Counsel is obligated to be diligent, thorough and to act in the client's best interest. Similarly, if counsel agrees to be retained pro bono, he or she must act just as professionally as if acting for the client on a paid retainer of the same nature. Where the court requires counsel to continue to represent an accused, counsel must do so competently and diligently. Both the integrity of the profession and the administration of justice require nothing less."

As it was said in the said judgment the Court should presume that lawyers act ethically.

17.	The trial role in this court extends up to August 2012. This was mentioned to the counsels in court, as well as in my ruling dated 23/06/2011 on this issue. Therefore very well knowing that there are no free dates until August 2012 the applicant requests this court to alternatively fix this case for trial in October 2011, which is not possible.

18.	For the above mentioned reasons I refuse the application for withdrawal as counsel for the accused persons. The trial date remains unchanged for the reasons given above and in the Ruling dated 23/6/2011.

Priyantha Fernando
Puisne Judge

29/06/2011