Nacagi v State [2014] FJCA 54; Misc Action 0040.2011 (17 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

MISC. ACTION NO: 0040 OF 2011
High Court Misc. Action No: HAM064 of 2011

BETWEEN:

JONACANI NACAGI
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Appellant in Person
Mr. M. Delaney for the Respondent

Date of Hearing : 31 March 2014
Date of Ruling : : 17 April 2014

MISC. ACTION NO: 0017 OF 2012
High Court Misc. Action No: HAM064 of 2012

BETWEEN:

JOELI TAWATATAU
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Appellant in Person
Mr. L. Fotofili for the Respondent

Date of Hearing : 27 March 2014
Date of Ruling : : 17 April 2014

MISC. ACTION NO: 0023 OF 2012
High Court Misc. Action No: HAM121 of 2011

BETWEEN:

PENJAMINI TUINAVITI
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Appellant in Person
Ms Prasad for the Respondent

Date of Hearing : 1 April 2014
Date of Ruling : 17 April 2014

RULING

[1] These are three separate appeals that raise a common issue for this Court. All three appellants applied in the High Court for a stay of proceedings in the Magistrates' Court on the ground of post charge delay. The applications were made under the inherent and supervisory jurisdiction of the High Court. All three applications for stay were refused by the High Court. The appellants appeal against the High Court judgments refusing stay of proceedings in the Magistrates' Court. The State submits that a refusal of stay of proceedings is not a final judgment and therefore the appellants have no right of appeal.

[2] I briefly set out the background of each case.

Jonacani Nacagi (Misc. Action No. 40/11)
[3] On 31 October 2006, the appellant was charged with one count each of robbery with violence, unlawful use of motor vehicle, obtaining credit by false pretence and resisting arrest. On 31 November 2006, when the case was called in the Magistrates' Court at Lautoka for an arraignment, the appellant was not present. The court was told that the appellant was a serving prisoner. A production order was issued and the case was adjourned to 17 November 2006. On 17 November 2006, the appellant appeared in court and the case was adjourned for him to seek legal advice. On 18 December 2006, the appellant was arraigned and he pleaded not guilty to the charges.

[4] Thereafter numerous adjournments were granted mainly because of non-appearance of the appellant. It appears that the appellant had numerous cases before different courts and the prosecution was unable to keep a track of his movements. On 15 September 2009, the appellant applied for a stay of the proceedings. That application was heard by the High Court on 15 September 2011, and on 26 September 2011, Madigan J refused the application. By the time Madigan J heard the application for stay, the length of delay was four years and ten months. Madigan J found that a very large part of the delay, when not systematic, was the fault of the appellant. Since a hearing date was already fixed, the learned Judge concluded the delay was not exceptional to grant a stay.

[5] The appeal to this Court was filed on 9 September 2011. The appeal is out of time by about 6 weeks. Since the State has not taken an issue with the delay in filing the appeal, I extend the time for filing to 9 December 2011.

Joeli Tawatatau (Misc. Action No. 0017/12)
[6] On 21 March 2007, the appellant was charged with one count of rape in the Magistrates' Court. On 3 April 2012, he applied for a stay of proceedings. On 6 July 2012, Fernando J refused that application saying the trial date was already fixed and that the appellant could be tried fairly. The learned judge also found that although the delay was systematic, the appellant himself contributed towards some delay. On 20 July 2012, the appellant filed an appeal to this Court. The appeal is within time.

Penijamini Tuinaviti (Misc. Action 23/12)
[7] On 30 March 2010, the appellant was charged with one count of robbery with violence in the Magistrates'Court at Nasinu. Since that date, he has not been tried. On 27 June 2011, he applied for a stay of proceedings. On 23 September 2011, Fernando J refused the application for stay, saying the appellant could be tried fairly despite the delay. On 13 January 2012, this appeal was filed. The appeal is out of time by 2½ months. Since the length of delay is less than 3 months, I extend time of filing to 13 January 2012.

Is there a right of appeal?
[8] The Court of Appeal Act provides for three avenues to bring criminal appeals. Section 21(1) of the Court of Appeal Act applies to an appellant convicted on a trial held before the High Court. The appellants have not been convicted on a trial held before the High Court and therefore section 21(1) is not relevant.

[9] Section 22(1) of the Court of Appeal Act concerns appeals from the High Court in its appellate jurisdiction. The stay applications were not heard by the High Court in its appellate jurisdiction. Section 22 (1) is not relevant.

[10] Section 3(3) of the Court of Appeal Act provides for a right of appeal from the final judgments of the High Court given in the exercise of its original jurisdiction.

[11] The High Court judgments refusing stay were given in its original jurisdiction. The issue is whether the judgments are final. The question whether a refusal of stay in criminal proceedings is a final judgment must be determined by the principles enunciated by the Full Court in Takiveikata v State Criminal Appeal No: AAU0030 of 2004S at pp 4-5:

"The Court noted that two schools of thought had developed as to what constituted a final judgment. These were categorised as "the order approach" and "the application approach". The "order approach" required the classification of an order as interlocutory or final by reference to its effect. If it brought the proceedings to an end it was a final order, if it did not it was an interlocutory order. The "application approach" looked to the application rather than the order actually made as giving identity to the order. The order was treated as final only if the entire cause or matter would be finally determined whichever way the court decided the application.

The Court concluded that it was preferable at least in the criminal jurisdiction for the court to maintain "the order approach."

[12] Applying 'the order approach', the question that must be asked is whether the order refusing stay of prosecution brought the proceedings to an end. The answer is obvious. The order refusing stay has not brought the proceedings to an end, as the trials are pending in the Magistrates' Court. It therefore follows the judgments of the High Court are not final. Of course if stay was granted, the proceedings in the Magistrates' Court would have come to end, and the order granting stay would have been final to give the State a right of appeal under section 3 (3) of the Court of Appeal Act.

Result
[13] For the reasons given, I am satisfied all three appeals are bound to fail because the appellants have no right of appeal.

[14] The appeals are dismissed under section 35(2) of the Court of Appeal Act. Since the appellants have invoked their right to a speedy trial, the State should expedite the trials and the Magistrates' Court should hold the trials without any further delay.

Hon. Justice D. Goundar
JUSTICE OF APPEAL