State v Khanna [2004] FJHC 451; HAC0003.2003L (16 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA0003 OF 2003L

THE STATE

V

RAKESH KHANNA
s/o Sanmogam

Mr. N. Nand for the State
Mr. M.K. Sahu Khan for the accused

Date of Hearing and Ruling: 16 August 2004

RULING ON STAY APPLICATION

The accused in this matter applied by way of Notice of Motion filed on 10 August 2004 for stay of the action brought against him. In support of that Notice of Motion, the accused relies upon his affidavit sworn on 7 August 2004. That affidavit details of the accused was first brought before a court on 16 August 1997, 7 years ago today.

The chronology of events is set out in the record of the Magistrate’s Court, Ba. I think it necessary to properly consider the application to detail the chronology.

16 August 1997 - Prosecution asked accused be remanded in custody.

29 August 1997 - Remanded.

12 September 1997 - Prosecution request for further remand.

16 September 1997 - Prosecution seek leave to file amended charge.

30 September 1997 - Adjourned for mention.

14 October 1997 - Adjourned for Oral P.I.

9 December 1997 - Papers not served. Adjourned.

20 January 1998 - Disclosure served. Adjourned.

13 February 1998 - Adjourned for P.I. hearing.

8 May 1998 - Adjourned. Prosecution request for Oral P.I.

18 September 1998 - Adjourned. Prosecution request. Doctor left the

country.

3 November 1998 - Adjourned. Mention date sought by prosecution for

Oral P.I.

28 December 1998 - Adjourned for Oral P.I.

17 May 1999 - Adjourned. Prosecution request. Case being handled

by DPP.

28 May 1999 - Adjourned for Oral P.I.

30 August 1999 - Adjourned. Prosecution request. Dr. Cardona in

Labasa.

20 September 1999 - Adjourned for mention.

27 September 1999 - Adjourned. Prosecution request. Dr. Balaidina ill.

5 November 1999 - Adjourned for Oral P.I.

25 January 2000 - Adjourned. Prosecution request for Oral P.I.

23 May 2000 - Adjourned for mention by consent.

19 September 2000 - Adjourned for hearing of P.I.

1 December 2000 - Adjourned part heard for mention.

8 December 2000 - Adjourned for continued hearing for P.I.

25 January 2001 - Prosecution seek further mention date.

27 May 2001 - Prosecution seek adjournment for hearing.

12 June 2001 - Prosecution seek adjournment for hearing.

25 September 2001 - Prosecution seek adjournment as pathologist has

resigned.

20 November 2001 - Prosecution seek adjournment. Counsel unavailable.

5 March 2002 - Defence seek adjournment due to death in the

family.

11 June 2002 - Defence seek adjournment due to being unwell.

24 June 2002 - Hearing continues.

2 July 2002 - Matter adjourned for mention for compliance with

s.226(4) of the CPC.

8 July 2002 - Compliance with s.226 (4) of the CPC. Accused

committed to the High Court on 11 November 2002.

29 April 2003 - Copy record forwarded from Magistrate’s Court to High Court and the matter has remained in the High Court awaiting a hearing since that time.

The chronology shows that a period of 6 years was taken for this matter to proceed through the Magistrate’s Court in Ba. The delays are dominantly at the request of the prosecution or in the last instance at the hand of the court in preparing the court record and furnishing it to this court.

I have been referred by counsel for the applicant and for the respondent to various authorities, perhaps no authority is more significant than the decision of the Fiji Court of Appeal in Apaitia Seru & Anthony Frederick Stevens v The State – Crim. Appeal No. AAU0041 of 1999S and Crim. Appeal No. AAU0042 of 1999S.

The Court of Appeal in that case considered the law as it is in this country.

The Court of Appeal considered the provisions of sections 29(1) and 29(3) of the Constitution of the Republic of the Fiji Islands and in considering those provisions, the court looked to a leading decision in the Supreme Court of Canada in R v Morin [1992] C.R. (4^th) where similar constitutional provisions existed as those that exist in Fiji. The court then quoted from the Canadian decision and said:

“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 Smith [R v Smith (1989) 52 CCC (3d) 97], (1) 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
   
   • (a) inherent time requirements of the case;
   • (b) actions of the accused;
   • (c) actions of the Crown;
   • (d) limits on institutional resources, and
   • (e) other reasons for delay, and
     
4. prejudice to the accused.”
   

The Court of Appeal then further quoted Sopinka J. in that case where he said:

“The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in the light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable.”

As the Court of Appeal noted section 11(b) of the Canadian Charter is in the same terms as section 29(3) of the Fiji Constitution and accordingly the passages that I have quoted and the passages considered by the Fiji Court of Appeal would appear to be relevant to any consideration of an application such as the application now before this me.

The court then went on to consider each of the relevant criteria that had been identified and to which I have referred in the passages that I have quoted.

The first of those issues is the:

Length of Delay

The length of delay as I have said is 7 years today, 6 years of which was delay in the Magistrate’s Court, Ba. It is inevitable that there would be some delay in criminal trials of this nature both in the Magistrates Courts and in this Court but it would seem that a delay of the magnitude that has occurred in this matter is a delay which might well be considered to be unreasonable.

Waiver of time periods

Whilst in the chronology that I have detailed there is no specific waiver. There are adjournments however by consent from time to time and as I have indicated, the chronology shows that on at least 2 occasions, the adjournments were at the hand of the defence.

Reasons for the delay

The reason for the delay was not on all occasions spelt out in the court record and do appear to fall into a limited number of categories being either the absence of counsel, the absence of the pathologist, the pathologist then having left the country and the unavailability of doctors.

Limited Resources

The resources as identified by Mr. Justice Govind in State v Armugam & Ors - HAC0013 of 1998L are in any country limited. He also there identified that this is more so in less prosperous country such as Fiji in comparison to the more affluent countries such as Australia, New Zealand and the USA. In Armugam, His Lordship when on to say:

“However limited resources can not be allowed to stand in the way of securing to the citizen a right that is entrenched in the Constitution. Thus there is a constitutional duty on the State to ensure that sufficient resources are made available so that trials can take place within a reasonable time.”

Prejudice to the Accused

It is suggested that prejudice would flow to the accused by the unavailability of the pathologist who has now left the country and the absence of the investigating officer who is on duty in the Solomon Islands.

There is nothing however that is being placed before me to indicate that there is any particular prejudice that will necessarily flow from these absences apart from a conflict that appears to arise with respect to fractures not identified by the treating doctor but identified by the pathologist.

If it were that prejudice alone, were necessary to enable the application to succeed then would require far more serious consideration then otherwise does.

As I have said, the Court of Appeal in Seru has clearly indicated that prejudice is not essential; that delay is sufficient to result it in not being a fair trial. Mere delay is sufficient to cause a stay to be granted by virtue of the provisions of section 29(3) of the Constitution of the Fiji Islands.

The charge with which the accused has been charged is very serious.

The Court of Appeal in Seru again identified that the more serious the charge the greater the interests of the community in ensuring the case goes to trial but the Court of Appeal then said:

“But the fact remains that this country has adopted s.29(3) thus confirming that one of the fundamental rights of all citizens is to have a charge disposed off within a reasonable time. If the court fails to acknowledge unreasonable delay when it occurs, the constitutional right will become a dead letter.”

By virtue of the decision of the Court of Appeal, I am of the opinion that I have no alternate, notwithstanding the serious nature of the charge, but to grant the stay sought in the Motion. In doing so, I note that delays of this type must be addressed. If not addressed and if allowed to continue then serious charges such as exist in this matter, would be allowed not to come to trial, justice will not be done and the system of law enforcement will collapse.

Notwithstanding that view as I have said, I have no choice but to grant the orders sought in the Motion and accordingly I order the trial be stayed.

JOHN CONNORS
JUDGE

AT LAUTOKA
16 AUGUST 2004