NATION

Fiji Times Case New Trial Date Set After Sharma Withdrew As Counsel

A new trial date has been set for the Fiji Times sedition case: June 4-8, 2018. The trial which was scheduled to begin before judge Justice Thushara Rajasinghe yesterday, was vacated
12 Dec 2017 11:39
Fiji Times Case New Trial Date Set After Sharma Withdrew As Counsel
Fiji Times, Nailalakai Editor (from left), Anare Ravula, Editor-In-Chief Fred Wesley and Publisher Hank Arts Photo: RONALD KUMAR.

new trial date has been set for the Fiji Times sedition case: June 4-8, 2018.

The trial which was scheduled to begin before judge Justice Thushara Rajasinghe yesterday, was vacated after an application made by defence lawyer Pravesh Sharma who told the court that his instructions had been terminated on Saturday.

Mr Sharma was instructed by former Fiji Times lawyer Feizal Haniff last Thursday December 7 to appear for Fiji Times editor-in-chief Fred Wesley, publisher Hank Arts and the Fiji Times company after Mr Haniff withdrew as lawyer.

In attendance yesterday were Nai Lalakai article writer Josaia Waqabaca, Nai Lalakai editor Anare Ravula, and third and fourth accused Wesley, and Arts.

Also charged alongside them is the newspaper company Fiji Times as the fifth accused. Lawyer Aman Ravindra-Singh appeared as defence counsel for Waqabaca, while Devanesh Sharma appeared on Ravula’s instructions.

High Court Ruling

Before the trial proper, Justice Rajasinghe delivered his ruling on a notice of motion which was filed by Mr Sharma and former Fiji Times lawyer Feizal Haniff last Thursday seeking a pre-trial order to clarify the legal test to be applied for Seditious Intention under Sections 66 (1) (v) and 67 of the Crimes Act.

In his oral submissions, Mr Sharma had invited the court to properly determine the main elements of sedition as it would assist the parties during hearing.

Mr Sharma submitted that the court must adopt the common law test in order to define the seditious intention, adding that proof of intention to promote feelings of ill will and hostility between different classes of the population did not alone establish seditious intention.

In his ruling, Justice Rajasinghe refused the defence proposals and stated that the prosecution had to first establish that Waqabaca had written and submitted an article for publication, in a nature to promote feelings of ill-will and hostility between certain classes of the population in Fiji.

Thereafter, the prosecution has to establish that the article had a seditious tendency to create public disorder or disturbance of law and order, or to subvert the authority of the government.

The court ruled that if the prosecution established the same then it could be presumed that Waqabaca had the seditious intention when he wrote and submitted the alleged article for publication.

Justice Rajasinghe said likewise the prosecution had to establish that Arts along with the newspaper company had published and printed an article of a nature to promote feelings of ill-will and hostility between certain classes of the population of Fiji.

The prosecution then had to establish that the article had a seditious tendency to create public disorder or disturbance of law and order, or to subvert the authority of the government.

He said if this was established than it could be presumed that Arts and Fiji Times had the necessary seditious intention when they allegedly published or printed the article.

Termination of Instructions

The question of fairness was widely debated in court after Mr Sharma submitted that he was appearing on limited instructions to seek an adjournment date in mid-February to allow Wesley, Arts and the company to appoint a new counsel.

Mr Sharma submitted that Mr Haniff was the counsel of choice for the three accused persons for the past 18 months and they were still coming to terms with his withdrawal.

He said they (accused) felt that his instructions were rushed and they did not have the benefit of talking to their senior counsel in New Zealand. He also submitted that the trio had been unfairly prejudiced because their counsel of choice had chosen to step out at the eleventh hour.

Mr Sharma mentioned that he could not seek instructions from Mr Haniff as the former Fiji Times lawyer had been summoned to appear as a State witness.

Justice Rajasinghe stated that from the beginning the court and the prosecution had warned Mr Haniff that there was a possible conflict of interest in his instructions for the three accused. However, Mr Haniff chose to continue as counsel.

He said the option to terminate Mr Sharma was the choice of the three accused’s who should have appointed another lawyer to appear on trial day.

Waqabaca’s lawyer Mr Ravindra-Singh highlighted that he did not have any objections to Mr Sharma’s application.

Ravula’s lawyer Mr Devanesh Sharma submitted that the court had to balance fairness to the state, to the court and the defence.

He did not object to Mr Sharma’s application and stated that the accused persons were entitled to be represented by solicitors of their choice. “My concern is the fairness, where is the limit of the fairness and who has denied the fairness of the three accused,” Justice Rajasinghe questioned defence counsel.

Justice Rajasinghe questioned Mr Sharma if a client could withdraw instructions for their counsel in the last minute to which Mr Sharma responded that it was unusual. He stated that Mr Haniff knew the possible issue of conflict of interest because of his personal involvement in the investigations which only came to light in the last minute.

He also stated that the court had to keep in mind how the issue could have a prejudicial effect on the State, adding that the court had to vacate four trials, three of which involved juvenile rape victims, in order to accommodate the Fiji Times hearing.

Counsel for the second accused submitted that another issue that needed to be addressed was the impact of Justice Rajasinghe’s judgment on the wording of the charges and also the impact of the court’s interpretation of the words on the current charges.

Ravula’s lawyer also stated that since Rajesh Patel was now a state witness the State was yet to serve the defence with any witness statements to prepare their defence.

Assistant Director of Public Prosecution Lee Burney in his response said the criminal justice system could not function if defendants could cause a trial to be vacated at the last minute by terminating instructions at their own jeopardy.

Justice Rajasinghe extended bail for the accused men and adjourned the case to February 9 for mention to finalise Pre-trial issues.

Edited by Mohammed Zulfikar

Feedback: fonua.talei@fijisun.com.fj

Fijisun E-edition
Advertise with fijisun
Subscribe-to-Newspaper
Fiji Sun Instagram
Fiji Plus
Subscribe-to-Newspaper
error: