Naqa v The State [2001] FJHC 108; HAM0025.2001s (16 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM0025 OF 2001S

Between:

SOLOMONE NAQA
SEREMAIA CAKAU
SENITIKI NATEBE
SAMU KONATACI
Applicants

And:

THE STATE
Respondent

Counsel: Mr S. Valenitabua for Applicants
Mr V. Vosarogo for Respondent

Hearing: 9th November 2001
Judgment: 16th November 2001

JUDGMENT

On the 21^st May 199, the Applicants, with others were charged with a number of offences, relating to the alleged obstruction of the road leading to the Monasavu Hydro Electricity Power Station in June, 1998. The charges included charges under the Minor Offences Act, the National Economy Decree 1991 and the Penal Code, and included charges of Obstruction, Unlawful Assembly, Conspiracy to Commit an Unlawful Purpose and Wrongful Confinement of police officers.

The trial has not commenced to date. Two hearing dates were set. The first was vacated because the prosecution had disclosed its case a week before the trial and the defence had insufficient time to read the statements, and the second because the prosecution had not called its witnesses. On the second occasion the prosecution withdrew the charges only to re-file them later. An affidavit filed by the State, of Josaia Waqaivolavola explains the circumstances in which the prosecution had failed to issue summons for its 100 witnesses.

The Applicants now make this application to stay the proceedings in the Magistrates’ Court on three grounds. Firstly, the Applicants say that in re-filing charges after withdrawing them, the prosecution is abusing the process of the court. Secondly, they say that the length of time that has lapsed since the alleged commission of the offence is now unconstitutional and in breach of their right to be tried within a reasonable length of time. Thirdly, they say that they can no longer have a fair trial because of the delay, and that to try them now would be oppressive and unjust. They rely on the affidavit of Solomone Naqa (the First Applicant) which annexes the court record of the proceedings thus far in the Magistrates’ Court.

The State opposes this application on the ground that the delay in the case was not all the fault of the prosecution, that the withdrawal of charges on 26/3/01 was because of the misleading conduct of counsel for the Defence (not Mr Valenitabua) and finally that despite the delay the trial should proceed because the prosecution had behaved properly and the Applicants would be given a fair trial.

The Inherent Jurisdiction of the Court

There is no dispute that the High Court has powers to prevent an abuse of its own processes in a criminal trial (State –v-Waisale Rokotuiwai HAC9/1995, State –v- Ramesh Patel & Visanti Makrava HAC16/98, State –v- Michael Desmond Benefield Criminal Action 1/1988, Jago –v- District Court (NSW) (1989) 168 CLR, Conolly –v- DPP (1964) AC1254. As to the scope of the powers, in R –v- Moke and Lawrence (1996) 1 NZLR 263, the New Zealand Court of Appeal said at p.267:

"Indeed it is both unwise and unnecessary to seek to define the scope of the Court’s inherent jurisdiction. Broad principles governing its exercise is all that this required. The court may invoke its inherent jurisdiction whenever the justice of the case requires. It is a power which may be exercised even in respect of matters which are regulated by statute or by rules of Court, providing, of course, that the exercise of the power does not contravene any statutory provision. The need to do justice is paramount."

The Fiji Court of Appeal in Southwick –v- The State Crm. App. AAU20/96 said, in relation to the High Court’s inherent powers under the Constitution, to review decisions of the Magistrates’ Courts:

"No doubt that section confers an original jurisdiction on the High Court; but it is not an appellate jurisdiction which enables the High Court to consider the merits of a decision of a Magistrates’ court."

Of course, in Southwick the High Court, and the Court of Appeal were considering review of a Magistrate’s decision. In this case, the Applicants seek to stay on the basis of prosecutorial misbehaviour. In that context, the courts have rarely interfered to stay proceedings. As Lord Salmon said in DPP –v- Humphreys (1976) 63 Cr. App. R. 95:

"I respectfully agree with (Lord Dilhorne) that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them, is, in my view, of great constitutional importance and should be jealously preserved."

Examples of prosecutorial abuse of process include laying charges in a private prosecution in order to disrupt a conference (R –v- Horseferry Road ‘Magistrates’ Court ex p. Stephenson The Times January 25 1989), and laying a charge just within the time limited for commencing a prosecution, before a final decision had been made to prosecute and in order to keep the prosecution options open (R –v- Brentford Justice, ex p. Wong (1981) 73 Cr. App. R. 65).

Delay may be a ground for the grant of a stay, particularly where the delay has been caused by a deliberate act of the prosecution or by inefficiency. However where delay has been partly caused by the defendant and the defendant has not been prejudiced by the delay, the continuance of the prosecution is not an abuse of the process (R –v- West London Magistrate, ex parte Anderson (1985) 80 Cr. App. R. 143.) Archbold (2000 Ed at 4:45) states:

"It may be an abuse of the process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable; for example, not due to the complexity of the enquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused, or to genuine difficulty in effecting service. The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution: R –v- Derby Crown Court, ex p. Brooks (1985) 80 Cr. App. R. 164."

I accept that these are the principles applicable to this application. Further, section 29(3) of the Constitution provides that:

"Every person charged with an offence .... has the right to have the case determined within a reasonable time."

Prosecutorial Misconduct

The first ground for this application is that the prosecution abused the process of the court in re-filing charges after the accused persons were discharged on the 26^th of March 2001. The court record shows that on that day, three of the twelve accused persons were absent. One accused was dead and third accused (the fourth Applicant) was on Nukulau Island facing other charges. The prosecution was represented by Mr Waqaivolavola, who said "I am prepared to proceed. I have 100 witnesses. They are not outside the courtroom. I am not ready to proceed. I cannot make out a prima facie case. I apply to withdraw the charge under section 201 (2) (b) (ii) of the Criminal Procedure Code on the ground that I’m unable to make out a prima facie case".

Counsel for the Defence (Mr Ratuvili) did not object to the application and all charges against the accused present in court, were discharged pursuant to section 201 (2) (b) (ii) of the Criminal Procedure Code. A production order was to be served for the third accused, and bench warrants issued for the tenth and thirteen accused.

The court record is silent on the prosecutions’ reasons for not calling their witnesses. The affidavit of Josaia Waqaivolavola is rather informative. In that affidavit, Mr Waqaivolavola says that he was the legal officer responsible for the trial. He said that the case was fixed for hearing on 26^th May 2001, but that a few weeks before that date, he received a telephone call from Mrs Tuituku, a solicitor at Messrs Fa & Co. (the solicitors on the record) requesting consent to an adjournment of the hearing because Mr Fa would be overseas on that date. He agreed to the request "on the basis that the Constitution prescribes that defendants have the right to choose the legal representative of their choice." On the 21^st of March, Messrs. Fa & Co. wrote to the DPP confirming Mr Fa’s unavailability for the trial, and saying that in any event they were still going through all the papers on disclosure. That letter, which was copied to the Senior Court Officer, Magistrates’ Court, reads, inter alia:

"We advise that we will not be ready to proceed on the 26^th of March. We therefore request that the trial date be vacated by consent and if we can set another date for trial."

On the basis of this, the prosecution did not summon its witnesses. On 26^th March, Mr Waqaivolavola told the court that the defence had an application to make. He then states: "However at that time, Mr Fa entered the courtroom and I was confused since I was reliably informed Ms Tuituku and verily believe that Mr Fa was unavailable as he was to be overseas at that time, which was the basis of our not summoning our witnesses." In his minutes of the proceedings before the learned Chief Magistrate, Mr Waqaivolavola states that the Chief Magistrate said: "You should ask for a leave of the court before you consent to the adjournment. In my view, you were gambling on my granting adjournment. Today was set for hearing and prosecution have not been able to make a prima facie case against the accused." At that point Mr Waqaivolavola, realizing that the Chief magistrate was about to acquit the accused persons, applied to withdraw the charges under section 201 (2) (b) of the Criminal Procedure Code. He said "Mr Fa apologized to me later on and said that he had no objection to us recharging again".

According to the affidavit of Solomone Naqa, the charges were re-filed a few days later, on the 2^nd day of May 2001.

The episode does not reflect well on any of the parties. Counsel for the defence appears to have made no attempt before the Chief Magistrate, to have taken the responsibility for the prosecution’s inability to proceed. Counsel for the prosecution appears to have made no attempt to inform the court in advance that he agreed to an adjournment and to check whether the Chief Magistrate would agree to another date. And the Chief Magistrate himself, despite receiving the letter from Messrs. Fa & Co. seeking consent to an adjournment, does not appear to have addressed his mind to the fact that whether or not the prosecution was ready to proceed, the Defence certainly was not, because it was not prepared. I therefore fail to understand why the learned Chief Magistrate continued to ask the prosecutor if he was ready to proceed. He never asked if the defence was ready.

In these circumstances I do not accept the Applicants’ submissions that the prosecutor in the Magistrates’ Court acted in bad faith. Further given Mr Fa’s agreement to the re-filing of charges (and he represented all accused persons at that time), I do not consider the prosecution’s decision to re-file charges to be either an abuse of the process, or oppressive.

Delay

The offences were alleged to have been committed between the 2^nd of July 1998 and the 13^th of July 1998. The first set of charges were laid on the 21^st of May 1999. A perusal of the court record reveals the following chronology of events:

21^st May 1999 All accused present and represented by Mr Fa. DPP for prosecution. Adjourned to 2/7/99 for plea.

2^nd July 1999 No appearance by 1^st and 13^th accused. Mr Fa for all accused. Mr Rabuku for the prosecution. The prosecution asked for time to amend the charges. The defence also asked for 8 weeks to make representations to the DPP of insufficiency of evidence.

8^th September 1999 Mr Fa for the accused. Mr Kurusaqila for prosecution. The 8^th, 11^th, and 12^th accused were absent apparently because of flooding in Naitasiri. Otherwise the Defence confirmed that disclosure had been completed and that they were ready to proceed. Adjourned for mention to 4^th November 1999.

4^th November 1999 Mr Fa for all accused. Two accused persons were absent due to illness. Mr Naigulevu for the prosecution. Plea was taken. The prosecutor said that all disclosure had been done. Mr Fa confirmed this. Adjourned to 10^th to 14^th of April 2000 for hearing.

7^th April 2000 Mr Prasad for accused. No accused present. Prosecution absent. Mr Prasad told the court that disclosure had been served on them on 28^th and 29^th of March, and they needed more time. The Chief Magistrate said that he was concerned that the prosecution had agreed to a hearing date when disclosure had not been completed. He said that the motion and affidavit (presumably to shift the hearing date) had been served on the prosecution. Adjourned to 29th September 2000 for mention.

29th September 2000 Mr Waqaivolavola for the prosecution. Mr Fa for Defence. Adjournment to 4th December 2000 for mention to set hearing date.

4th December 2000 Mr Waqaivolavola for prosecution. Mr Prasad for defence. Adjourned to 26^th March 2001 for hearing. Bench Warrants for Accused 2, 6 and 13 returnable 20/3/2001.

13^th December 2001 Bench Warrants for 2nd and 6th accused cancelled. Adjourned for hearing.

26th March 2001 Charges Withdrawn

From the date of the filing of charges to the present day, 2 years and 6 months have lapsed. The delay in the proceedings is partly the fault of the prosecution (for apparently disclosing further material just before the trial, and well after they had said that disclosure was completed), and partly the fault of the defence for taking 8 weeks to send representations, and for studying disclosure, and for erroneously informing the prosecution that counsel was out of the country, and for stating that they were not ready to proceed because they had not studied the papers (three months after disclosure). I also take into account the fact that most adjournments were for long periods of time, sometimes for 5 months. Such long adjournments contributed to the delay.

In considering whether the delay will now result in an unfair trial and whether there is a breach of section 29 of the Constitution, the issue of who was responsible for the delay must be addressed. I do not consider the delay to be wholly, or even substantially, the fault of the prosecution. It is not apparent what disclosure was effected on the 28^th and 29^th of March 2000, and why one week was not long enough for the defence to peruse what was disclosed. However, even if the further disclosure was substantial, the defence was still not ready by 26^th March 2001 (a year later) when it said – "We are still going through all the police exhibits that have been disclosed to us and we are also preparing witness statements for the defence case. We advise that we will not be ready to proceed on the 26^th of March. " This statement, made a year after disclosure, and two years after charges were laid, is astonishing. And, for the defence to now say that the prosecution is delaying the proceedings thus rendering any trial unfair and oppressive is equally astonishing. Of course counsel in these proceedings is not counsel at the trial, and cannot be held responsible for the conduct of the defence in the Magistrates’ Court. However, I do not find on the material before me that the defence can be absolved of blame for the fact that this case has not proceeded to trial. On the question of whether the Applicants will now be prejudiced by the delay, the State says that they are ready to proceed and that no evidence of prejudice has been presented to the court. Counsel for the Applicants says that one accused is already dead, and witnesses may be dead, or missing as a result of the delay. Neither party provided me with any evidence of the unavailability of witnesses, although there is evidence that the State is in a position to call 100 witnesses. It is for the prosecution to show the court that the Applicants will not be prejudiced. In March of this year, the prosecution was prepared to subpoena all its witnesses. It is conceded by counsel for the Applicants, that the prosecution, on the 26^th of March, were of the view that they had a prima facie case on the basis of the 100 witnesses. In his submissions at the hearing of this application, State Counsel said that an early hearing date could now be negotiated, the charges related to a serious event of public concern, and that the Applicants would not be prejudiced by the delay.

Solomone Naqa, in his affidavit states that he fears that witnesses will forget their evidence because of the delay. Assuming of course that all witnesses give statements, refreshing their memories now occurs as a matter of course in all well-run prosecutions.

In State –v- Michael Desmond Benefield (supra) Fatiaki J considered a delay of 7 years before a trial was listed for hearing in the High Court. The delay was partly caused by extradition proceedings, and partly by a shortage of judges after the coup d’etat of 1987. At page 16 of his judgment, he said:

"the defendant points generally to how a lapse of 7 years must affect the recollection of people. He does not refer to any aspect of the case which might turn critically on the recollection of witnesses such as in the case of R –v- Climo (1987) 7 NSWLR 579 at p.586. In any event memory-loss as a result of delay may be likened to a "two-edged sword" which is just as if not more likely to prejudice the prosecution which bears the burden of proof as it does the defendant."

In R –v- Climo, R –v- Bentley (supra), a delay of eleven years since the alleged offence was held to be in breach of the right to a speedy trial. In that case there was no delay on the part of the defendants, the prosecution failed to explain the delay and the conduct of their defence. The court concluded that it would be impossible to say "with any degree of confidence that the accused would be accorded a fair trial."

In Martin –v- Tauranga District Court (1995) 2 NZLR 419, a date set for trial was unilaterally vacated by the Crown Prosecutor leading to a pre-trial delay of 17 months. Defendants, under the New Zealand Bill of Rights Act 1990, have the right to be tried without undue delay. It was held by the Court of Appeal that a delay of 17 months as a result of the unjustified action of the prosecutor amounted to undue delay. A stay was ordered. The Court cited with approval the following passage from R –v- Morin (1992) 71 CCC (3d) (the Supreme Court of Canada):

"The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in R –v- Smith (1999) 52 CCC (3d) 97, it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable? While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. The length of the delay;
   
2. Waiver of time periods;
   
3. The reasons for the delay including –
   
   1. inherent time requirements for the case;
   2. actions of the accused;
   3. actions of the Crown;
   4. limits on institutional resources;
   5. other reasons for delay; and
      
4. Prejudice to the accused."
   

Applying those principles to this case, I have already found that the delay in this case was caused substantially by the defence and partly by the prosecution. Much of the delay is attributable to the very long adjournments given by the court, presumably for administrative reasons.

As to prejudice, the Applicants do not point to any particular aspect of the evidence which is likely to be particularly affected by the delay. In all the circumstances I do not think that the delay (irrespective of who caused it) has prejudiced the Applicants to the extent that they will be deprived of their right to a fair trial under the Constitution.

Nor do I think that a combination of all the factors referred to by the Applicants, show that the Applicants will be so prejudiced. I do not consider that the prosecution has acted in bad faith, or oppressively, or in abuse of the process of the court.

For these reasons, this application is unsuccessful. The trial must proceed expeditiously in the Magistrates’ Court. As to counsel’s submission that he is not available for a year, he will have to make some difficult decisions to brief out some of his trials, or to seek adjournments in other matters not so urgent, in order to ensure that his clients are not prejudiced by further delay. They may be difficult decisions, but necessary and inevitable in the normal running of a busy criminal practice.

Nazhat Shameem
JUDGE

At Suva
16^th November 2001

HAM002J.01S