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Office of the Public Solicitor v Kalsakau [2005] VUCA 13; Constitutional Appeal Case 07 of 2005 (24 August 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Constitutional Appeal Case No. 07 of 2005

BETWEEN:

THE OFFICE OF THE PUBLIC SOLICITOR
Appellant

AND:

STEPHEN KALSAKAU
First Respondent

AND:

THE REPUBLIC OF VANUATU
Second Respondent

Coram: Hon. Chief Justice Lunabek
Hon. Justice Treston

Counsels: Mr. Toa, Public Solicitor, for the Appellant
Mr. Stephen Kalsakau, First Respondent in person
Mr. Sampson Endehipa, Attorney General and Mr. Frederick Loughman for the Second Respondent

Hearing Date: 23 August 2005
Judgment Date: 24 August 2005

JUDGMENT

This is an appeal against the decision and orders made by the primary judge on the 18 August 2005 in relation to a constitutional application filed on 17 August 2005 by the First Respondent, Mr. Stephen Kalsakau.

Mr. Kalsakau was charged with the offence of conspiracy to pervert the course of justice under S.79 of the Penal Code Act [CAP 135]. That is a serious offence.

The First Respondent claimed in his constitutional application that the Second Respondent, the Republic of Vanuatu, should provide him with a lawyer under the provisions of Article 5 (2) (a) of the Constitution and give that lawyer sufficient time to prepare for the trial.

The primary judge in a reasoned decision made the following orders: -

1. The Public Solicitor must engage a lawyer from outside the Public Solicitors Office to represent the Petitioner in Criminal Case No. 12 of 2004 immediately.
   
2. The Petitioner must enter into an agreement immediately with the Public Solicitor about his contribution to the legal costs of running his case.
   

The parties all accept that the correct approach is set out in the submission of the Second Respondent, in that the issue is:-

(1) Whether the Republic of Vanuatu is responsible for affording the First Respondent a lawyer under Article 5 (2) (a) of the Constitution which provides as follows: -

"Protection of the law shall include the following -

(a) everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence."

(2) Whether the First Respondent is a "needy person" under Article 56 of the Constitution and S.5 (2) of the Public Solicitor Act [CAP. 177]

Article 56 is as follows: -

"Parliament shall provide for the office of the Public Solicitor, appointed by the President of the Republic of Vanuatu on the advice of the Judicial Service Commission, whose function shall be to provide legal assistance to needy persons"

Section 5 is as follows: -

"5. (1) The function of the Public Solicitor is to provide legal assistance -

(a) to needy persons; or

(b) to any person when so directed by the Supreme Court.

(2) For the purposes of this section the term "needy person" is to be interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtained legal assistance other than by the Public Solicitor.

(3) Any person aggrieved by a refusal of the Public Solicitor to provide legal assistance may apply to the Supreme Court for a direction."

We agree that Article 5 (2) (a) of the Constitution must be read together with Article 56 [see Kilman v Attorney General [1997] VUSC 3; Civil Case No. 001 of 1997]

The definition of "needy person" is contained in S.5 of the Public Solicitor Act [CAP. 177] and the primary judge, although he adopted a proper and correct approach, did not go far enough in inquiring in specific detail as to the First Respondent's circumstances.

On the appeal we have had the advantage of a detailed sworn statement from the First Respondent as to his monthly income and expenditure and as to his assets and liabilities. An analysis of those is as follows: -

An analysis of those figures reveals that the First Respondent presently has a monthly excess of income over expenditure of VT42, 262. That will increase to VT62, 264 in four months time once the Ifira Company advance is satisfied. In addition he has an equity of VT6, 470, 000 in his house. It would be easy for the First Respondent to raise a loan against his equity to pay for a lawyer and in any event he has an excess of income, as he conceded to the primary judge (see paragraph 31 p.6 of the decision of 18 August 2005). Furthermore he has cash in the bank of VT50, 000 (see First Respondent's sworn statement dated 23 August 2005)

The circumstances of the First Respondent clearly indicate that he is not a needy person, because he has means to meet the probable cost of a lawyer. We accept that the Public Solicitor and his officers and the First Respondent's initial lawyer have legitimate conflicts of interest. The Public Solicitor was acting Public Prosecutor when the appeal against the dismissal of the charges was heard in the Court of Appeal. His initial lawyer was joined in his firm by counsel who had been closely involved in the prosecution when he was employed as Deputy Public Prosecutor. Those facts render this case wholly exceptional and our decision must be limited to these particular circumstances. Alternative legal assistance is available to the First Respondent.

Accordingly the appeal is allowed and the orders of the primary judge are set aside. The First Respondent does not qualify to be afforded a lawyer at the expense of the Republic. It is up to the First Respondent to decide whether he wishes to defend himself in person or whether he wishes to be represented by a lawyer of his choice at his own expense.

It is most unfortunate that the First Respondent only raised this issue on the first day of the allocated trial on 16 August 2005 because he was committed for trial on 6 April 2004. In fairness to the First Respondent, he has had some difficulty with his legal representation since committal but he seems to have left things far too late. The First Respondent must either choose to act for himself or find himself a legal representative with seven day from the date of this judgment. The trial judge must then commence the trial immediately.

There will be no order as to costs.

Dated at Port Vila, this 24th day of August 2005

BY THE COURT

Hon. Chief Justice Lunabek
Hon. Justice Treston