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Khan v Director of Public Prosecutions [2004] FJHC 460; HAA0113.2004L (15 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION


CRIMINAL APPEAL NO. HAA0113 OF 2004L


MOSHEEM KHAN
f/n Manzoor Ilahi Khan
Applicant


v.


DIRECTOR OF PUBLIC PROSECUTIONS
1st Respondent


AND


ATTORNEY GENERAL OF FIJI
2nd Respondent


Counsel: Mr. I. Khan for the Applicant
Mr. N. Nand for the State


EXTEMPORE RULING
ON NOTICE OF MOTION FOR STAY


The applicant has applied by Notice of Motion filed on 7th September 2004 for an order that Criminal Case No. 853 of 1999 in the Magistrates Court at Lautoka be stayed.


The Notice of Motion is supported by an affidavit of the applicant sworn on 4th September 2004. The application is made to this court pursuant to the provisions of section 41 of the Constitution. It being alleged there is a breach of section 29 of the Constitution.


The history of the matter appears from the affidavit that on 8th October 1999, the applicant was charged with the offence of act with intent to cause grievous harm, contrary to section 224 of the Penal Code.


The matter was then called at Lautoka Magistrates Court on 13th October 1999 and adjourned to the 7th February 2000. On that day, it was adjourned to the 7th August 2000 as disclosures had not been served. On the 7th August 2000, the matter was adjourned to the 16th November 2000 for hearing and on that day, the matter was adjourned to the 5th February 2001.


On the 5th February 2001, there was no appearance of witnesses for the prosecution and the matter was ultimately adjourned to the 24th May 2001 for hearing. On that day, the complainant was not present and a bench warrant was issued. The matter was then adjourned to the 1st June 2001 when it was dealt with by the Learned Magistrate.


The delay in the Magistrates Court at that time appears to have been from the 8th October 1999 until 1st June 2001. A delay which appears on the face of it to be quite unjustified and probably serves to highlight the propensity of magistrates in particular to adjourn matters, perhaps a little too willingly.


On the 7th June 2001, an appeal was instigated and that appeal came on for hearing before the High Court at Lautoka on the 8th November 2002, almost 18 months later. Judgment was given on that appeal on the 6th December 2002, following which the matter was remitted to the Magistrates Court at Lautoka for rehearing before another magistrate.


The matter then appears to have lurched along in the Magistrates Court until such time as it has been set for hearing on 17th September 2004, a further 18 months delay from the time which the appeal was determined.


The matter is now almost 5 years old and is on this basis that I consider the application.


I have been referred to various authorities by counsel for the accused, with respect to the issue of delay and the granting of a permanent stay, perhaps the most relevant of those authorities is the decision of the Fiji Court of Appeal in Apaitia Seru and 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 section 29(1) and 29(3) of the Constitution of the Republic of 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. (4th) where similar constitutional provisions existed as those that exist in Fiji. That decision and the relevant provisions that come from it were considered by me in the State v Ajipote Koroi and Peniasi Lee – Crim. Appeal No. HAC0003 of 1999L.


In determining the application, it is necessary to look at the following issues:


(1) Length of Delay

The length of delay as I have said is almost 5 years. It is inevitable that there would be some delay in criminal trials of this nature but it would seem that a delay of that magnitude is certainly a delay that should in all the circumstances be considered to be unreasonable.


(2) Waiver of Time Periods


Whilst in the chronology that I have detailed earlier, I have not specifically dealt with the waiver of time periods by the applicant. As the bulk of the delay appeared clearly to be without reason and as a result of court delays and perhaps systemic delays which leads to the next consideration.


(3) Reason for the Delay


Whilst it is clear that in recent times, there has been some delay as to the availability of counsel for the accused/applicant. That does not appear to be significant when one looks at the totality of the 5 year period from the time the applicant first appeared before the Magistrates Court.


(4) 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 but as His Lordship there said and I quote:


“However limited resources cannot 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.”


In this regard, the delays at this court are well known. However, it is probably appropriate to make comment on the delays that seem to be occasioned as a result of judicial inaction from time to time and there is in my opinion, a need for judicial officers in all courts to grant adjournments sparingly to avoid unnecessary delays arising.


(5) Prejudice to the Accused


The applicant, in the affidavit in support of the application, says that witnesses that were present at the scene of the incident cannot be located and that this will cause prejudice to his case. He will not be able to prepare his defence and that he will be therefore be denied a fair trial. Two of the witnesses are named and its said that they have migrated to New Zealand and that their evidence is re-crucial to the case. Clearly, there may well be prejudiced to the applicant in this matter.


The Court of Appeal in Seru, however indicated that prejudice is not essential, that delay is sufficient to result in it not being a fair trial and that mere delay is sufficient to cause a stay to be granted by virtue of section 29(3) of the Constitution.


By virtue of the decision of the Court of Appeal in Seru, applying the principles that are therein addressed, I am of the opinion that the stay sought in the motion with respect to the accused must be granted and accordingly, I order that the trial with respect to the accused be stayed and that the accused be discharged.


JOHN CONNORS
JUDGE


At Lautoka
15 September 2004


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