Trial in the arms and prevention of terrorism case starts today |06 July 2023
Supreme Court rejects three-month adjournment application
The Supreme Court has rejected an application made on Tuesday by Counsel for Laura and Mukesh Valabhji, for a three-month adjournment to allow the couple to have access to legal fees, following an order granted by the Court to release funds in their Singapore accounts.
Yesterday, Chief Justice Rony Govinden who is presiding over the case, refused the application filed by counsel France Bonte who had argued on Tuesday that the funds had not been obtained since the court’s ruling to release the funds and this had hindered the accused’s right to access to legal representation, as they have not been able to pay counsel from the global firm Kobre & Kim.
In refusing to grant the application the Chief Justice acknowledged that the right to legal representation enshrined in section 19(2)(d) of Seychelles’ Constitution is a fundamental aspect in a criminal justice system, just as the right to a fair trial and equality before the law.
He stated that access to legal representation flows from two fundamental principles: first, the principle that an accused person is entitled to a fair trial, and secondly, the principle of equality before the law. A short-change on these principles would mean that the trial will not be fair.
He stated that fairness however was an issue to be decided by the trial judge having regard to the circumstances of each individual case.
In this case, he said the Court looked at the facts of the case, which included the length of time since it started, which was more than a year and a half ago.
He also noted that the trial dates were fixed more than a month, and that on June 23, 2023 the Court informed the first two accused to be present on the date of the trial with all their counsels.
CJ stated that counsel Varun Zaiwalla made a plea for adjournment only on July 3, 2023 on the ground that the 1st and 2nd accused preferred counsels would not be able to attend due to lack of instructions, and thus having not prepared for the trial for lack of such instructions.
Counsel for the Republic replied citing the Republic’s opposition to the application.
Having considered the submissions of both parties and in light of the whole facts and circumstances of the case, these being: the funding of counsels; the lack of instructions; and the constraints caused by other professional engagements of counsels, CJ Govinden stated he would have to exercise a proper discretion, balancing the accused’s need for a fair trial against the interests of the Republic in enhancing and protecting the ends of justice, particularly bearing in mind that there are other co-accused whose right to be tried within a reasonable time is involved in the case. The Chief Justice further stated that the right to afford an accused this discretion must be exercised judicially, having regards to the importance of legal representation, the gravity of the charge, possible penalty, the complexity of the case and the impact of delays on the fairness of the trial.
The first accused was allowed access to monies by order of the Court and Mr Zaiwalla has been appearing for the two accused since April 1, 2023.
In reaching his decision the Chief Justice stated that considerations were made on the following; they had been previously warned to be quick in their preparations, they had repeatedly applied for waivers, and the Court stated that this tardiness has led the Court to believe that they have not been diligent in ensuring that the counsels are present before the trial.
CJ also noted that the Court tried to accommodate them and all seven counsels sorted their calendars so that trial dates could be secured to make way for this hearing, which is scheduled to be heard over the period of three months.
Within this case, the couple has brought preliminary motions, which have been determined by the courts, further protracting the setting of trial dates.
When balancing all the inconveniences to be caused, the Chief Justice concluded it clearly favours those present and ready to proceed and hear this case.
To adjourn the trial would result in the next trial dates moved probably to next year.
The Chief Justice was of the view that Mr Lewis, being a very senior counsel with many junior could make one available for the present purposes.
The Court further took into consideration the other accused persons, one being in custody and who has also been awaiting trial dates so they can present their defences.
The Court stated that their rights to a fair hearing within a reasonable time should also be taken into consideration, which this court in balancing the various interests involved has considered.
The Court reiterated that fairness is not only to the first and second accused but fairness to all accused in this case.
The co-accused are Leslie Benoiton, Leopold Payet and Frank Marie.
Another consideration for the Court was the need to see to it that serious cases are disposed of expeditiously, especially since this case involved recovery of explosives, grenades and war arms which are currently being stored, these pose a danger to national security.
In conclusion, the Court stated that having considered the accused’s right to representation, the gravity of the charges, the possible penalties, the complexity of the case, the court was of the opinion that no injustice would be caused to the two accused if the motion to adjourn is not granted.
The trial will proceed today at 9.30am as previously fixed.