State v Qoli [1997] FJHC 272; HAC0007.1997S (6 August 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 7 OF 1997

THE STATE

V

NEORI TAVAKATURAGA QOLI

Counsel: Mr. Jeremy Auld for The State
Mr. Joseph Maharaj for Accused.

Hearing: 6th August 1997
Decision: 6th August 1997

REASONS FOR DECISION OF PAIN J.

The Accused has been charged with manslaughter. A fixture has been made for Monday next the 11th August 1997.

The prosecutor applied for an adjournment. This was opposed by counsel for the Accused. After hearing submissions I gave my decision refusing the application and said I would give brief reasons in writing. This I now do.

The prosecution seeks an adjournment because the pathologist has left Fiji and is residing in Australia. He says that he is prepared to attend the trial and give evidence if his expenses are paid but is unable to do so until the beginning of next year.

The defence would prefer to have the pathologist as a witness at the trial. However, counsel points out that there is no certainty that the pathologist would attend at a later hearing. He cannot be compelled to do so. Moreover, having regard to the history of this prosecution, further delay would infringe the Accused's fundamental right to have his case heard.

The alleged offence was committed on the 25th April 1993 and the Accused appeared in the Magistrates Court on the following day. Since then the prosecution has had an unfortunate history. The Accused was first charged with murder on the 26th April 1993 and remanded in custody. On 19th July 1993 the charge was reduced to manslaughter and the Accused was granted bail. A Preliminary Inquiry was held on 7th September 1993 and the Accused was committed to the High Court for trial. On 16th May 1994 the prosecution applied for an adjournment of a fixture in the High Court on the ground that several police witnesses were overseas. This was refused by Kepa J. who then discharged the Accused. On 14th March 1996 the Accused again appeared in the Magistrates Court on a charge of murder in respect of the same incident. He was remanded in custody. On 15th August 1996 the charge was reduced to manslaughter and the Accused was granted bail. Following a Preliminary Inquiry on 6th December 1996 the Accused was again committed to this Court for trial. The file was received in this Court on 1st April 1997 and an Information was filed by the Director of Public Prosecutions on 9th May 1997. On 18th June 1997 the present fixture was made for trial on the 11th August 1997.

The principal matters that have influenced the Court to exercise its discretion to refuse the adjournment are:

1. This is the second occasion that the prosecution has applied to adjourn a fixture for the hearing of the case in this Court because of the unavailability of witnesses. The earlier application was refused.

2. There is no guarantee that the pathologist will attend the trial if it is adjourned to next year. The Court is advised that he is prepared to do so but he cannot be compelled to attend from Australia.

3. The Accused has complied with all requirements made of him since he was first charged on 26th April 1993. He has not been responsible for the considerable delay. He may have changed his residence at some time before he was charged on the second occasion. However, the Police had already delayed re-laying the charge against the Accused for 10 months since he was discharged in the High Court and there is no suggestion that the Accused was deliberately evading the further prosecution.

4. The trial is due to take place 4 years and 3 months after the Accused was first charged. If adjourned to next year the delay will be approaching 5 years. This would be inconsistent with the requirement under Section 11(1) of the Constitution for a hearing within a reasonable time.

The total circumstances clearly favour the Accused. The gross unfairness to him of a further adjournment clearly outweighs the disadvantage to the prosecution and any public interest.

For these reasons the application for an adjournment was refused.

Justice D.B. Pain

8th August 1997