State v Stevens [1999] FJHC 143 (16 July 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

BETWEEN:

THE STATE

and

1. ANTHONY F STEVENS
2. APAITIA SERU

Mr Wilkinson for the State
Mr Vuataki for the 1^st Accused
Dr. Ajit Singh and Mr. Bukarau for the 2^nd Accused

JUDGMENT

APPLICATIONS TO STAY PROCEEDINGS ON BEHALF OF MR. ANTHONY STEPHENS (D1) AND MR. APAITIA SERU (D2)

Background:

These two Defendants are before the Court on Charges connected with Fraud and Abuse of Office.

The First Defendant (Mr Stephens) is charged with an Attempt to Obtain Credit by Fraud. The Particulars allege that he attempted to commit this offence between 25^th August and 21^st September 1992.

The second Defendant (Mr Seru) is charged with Aiding and Abetting Mr. Stephens to obtain credit by Fraud. The Particulars allege that this attempt took place on 17^th September 1992. Then as an alternative to the ‘Attempt’ charge with an Abuse of his Office as Attorney-General and Minister of Justice. The Particulars allege that this abuse occurred between 25^th August and 17^th September 1992.

The several charges and the Defendant are closely linked which is why the two are being tried on the same Indictment.

Pleas have yet to be taken on the Charges, but if this Case goes ahead each will have to answer the Charges relating to Offences said to have been committed nearly 7 years ago.

Formal Application to Stay the Court Proceedings:

Each of these Defendants (through their respective Counsel) make identical requests for the hearing of the Charges to be stayed, or stopped.

These Applications are based on the identical grounds that to try these offences now (7 years after they are said to have been committed) would be a breach of the individuals' Constitutional right to a fair trial, and his right to have his case determined within a reasonable time. These rights are constrained in the written 1998 Constitution of the Republic of the Fiji Islands at Sub-Sections 29(1) and 29(3).

Sub-Section 29(1) reads

“every Person charged with an Offence has the right to a fair trial before a Court of Law”.

Sub-Section 29(1) reads

“Every Person charged with an Offence (and every part to a Civil dispute) has the right to have the case determined within a reasonable time”.

The words “reasonable time” used in the Constitution are not defined, nor can they be. What is reasonable or not reasonable must depend on all the facts of the particular case.

Case Chronology:

To say that 7 years has elapsed between the commission dates of the alleged Offences and the start date of the Trial, is certainly enough to make enquiring eyebrows rise. So it is necessary first to examine the chronology (or date sequence) of these Matters. The chronology has been helpfully set out for me in the submission by the Counsel.

I do not need to rehearse all the details dates (which are not in dispute). Sufficient to mention the landmark dates which I consider to be important.

(1) On 17/9/92 there was apparently a Deed of Settlement of money signed – this is the main item referred to in the First and Second Charges of the Indictment, and with which both Mr Stephens and Mr Seru are said to be involved.

I am told

(2) This Deed of Settlement was the subject of a debate in the National Parliament starting on 24^th September 1992.

(3) As a result of a resolution of Parliament a Commission of Inquiry was assembled to enquire into the circumstances of the Deed of Settlement. A former High Court Judge, Sir Ronald Kermode, was appointed to head the Inquiry.

(4) The Report of that Commission of Inquiry was submitted in July 1993.

(5) Police enquiries followed from that Commission Report and each of these Defendants was formally charged in November 1994.

Of course no Court Proceedings could start until there were charges to try: so it is essentially that date (November 1994) which starts the process and from which any time delay starts. The delay can therefore be more correctly stated as close on 5 years (1994 – 1999) (rather than 7 years).

I do not mean to say that 5 years is an acceptable period of delay: on the face of its it is not. But the chronology I have described does set out the accurate delay period.

Mr Wilkinson (for the State) sets out a further list of dates for me to record what happened after the Defendants had been charged:

(6) Defendants appear in the Magistrate’s Court on 14^th December 1994 and then 11 months later (in November 1995) they were apparently committed for trial in the High Court.

However, no depositions (witness Statements) taken by the Magistrate were sent from the Magistrate’s Court with the formal committal document. Without these depositions no Charges could be drafted for the High Court trial.

By the beginning of March 1997 the Paper Depositions had still not arrived from the Magistrate’s Court. It was then, as I understand it in same desperation, a Writ of Mandamus was applied for by way of Judicial Proceedings before a High Court Judge. This writ was in effect an Order served on the Chief Magistrate to deliver the Depositions/Statements required. It was plainly a very unsatisfactory state of affairs, and not resolved until April 1997 (17 moths after the Committal of the two Defendants) when the Deposition Statement were received from the Chief Magistrate.

Charges were filed by the Office of the Director of Public Prosecutions in June 1997. There were then unfortunately further delays in the High Court before the matter could be set down: some delay caused by the shortage of Judges and other delays to accommodate Counsel and to ensure the Defendants had Counsel of their choice. Until we arrive at today and the hearing of these Applications to stop the Proceedings.

Present State of the Matter:

The description of what has happened in the administration of this Case is not a happy one. The Case should, without doubt, have been given the requisite urge to be heard to be heard sooner.

It is not for me to allocate blame, or to criticize: except to say (and this is important) that none of the significant delay periods can be attributed to the fault of the Prosecution or the Defence.

The Decision:

The Defendants now ask me to stop the Case in the face of these lengthy delay which they say are unacceptable. The Prosecutions ask me to dismiss this Application and allow the Case to proceed.

In reaching a decision and making a ruling I have to look at the Case in the round. The provisions of the Constitution to which I have been referred, and which I have recited have been urged upon me in support of the application to stop the Case now. But I have to balance this request or application against the needs and requirements of the Prosecution, who are not to blame for what has happened. I also have to weigh in the balance the Public Interest, or Public Concern, that the allegations made should be properly investigated and tried in this Court.

The Authorities:

I have been referred to a number of Authorities on Cases – Cases heard in the Privy Council, and in other Courts in England and New Zealand relevant to the situation in today’s Case.

I have read them. I will not recite them all now but I have listed them as an Annex to this Judgment so that future reference can be made if required.

I have found the following Cases to be the most relevant and helpful:

(1) Martin v Taurango District Court

(a New Zealand Court of Appeal Case) reproduced at 1995 2 NZLR page 419.

In this Case the Court found that a 17 month delay from Charge to Trial date did amount to undue delay and reversed the Lower Court’s ruling that there should be not stay. However, the delay in this Case directly from the unjustified action of the Prosecutor. And the NZ Court of Appeal were careful to emphasise that a finding of undue delay does not necessarily deprive the Court of jurisdiction to proceed to trial.

(2) Attorney General Reference (No. 1/90)

English Court of Appeal Case reported at 1992 3AER page 169.

This was a Reference by the British Attorney General to the Court of Appeal asking for the Appeal Court’s opinion on the questions of whether proceedings on indictment could be stayed on the grounds of prejudice resulting from delay, even though that delay was not occasioned by any fault of the Prosecution. The English Appeal Court held that the jurisdiction to stay Criminal Proceedings on the grounds of delay was exceptional even when the delay could be said to be unjustifiable, and should rarely be imposed in the absence of any fault on behalf of the Prosecution. Furthermore, a stay or stop should not be imposed unless the Defendant (Appellant) showed on the balance of probabilities that owing to the delay he (or they) would suffer serious prejudice to the extent that not fair trial could be held and that the continuance of the Prosecution amounted to a misuse of process.

(3) Bell v DPP of Jamaica

(Privy Council Case reported in 1985 2 AER p. 585)

Summary and Ruling:

To decide finally whether these criminal proceedings should be stayed is a matter for my discretion. My duty is to balance the rights of the Individual Defendants and the Public Interest.

I have tried to do this in this judgment: aided by the helpful and constructive submissions of Counsel, the various Authorities to which I have been referred, and of course by reference to the written Constitution of Fiji.

In exercising my discretion I have taken particular note that no blame for this delay can be attributed to the Prosecution; that there has been significant public concern highlighted by the fact of a Parliamentary debate followed by a Commission of Inquiry.

I have decided that the Appellant made by each of these Defendants to stay the Proceedings should be dismissed and the Trials is to continue.

[Peter Surman]
HIGH COURT JUDGE

16^TH July 1999