IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0079 OF 2005L

MOHAMMED RIAZ SHAMEEM
s/o Mohammed Shameem

v.

THE STATE

Counsel: Mr. I. Khan for the Appellant
Mr. M. Korovou for the State

Date of Hearing: 26 September 2005
Date of Ruling: 21 October 2005

RULING ON APPEAL

This matter comes before the Court by way of Notice of Motion filed on behalf of the applicant wherein he sought that proceedings commenced against the applicant by the 1st respondent be stayed and that the applicant be discharged.

In support of the Motion, the applicant relies upon his affidavit sworn on the 31st August 2005.

The applicant and respondent have filed written submissions in support of their contentions.

The applicant first appeared before the Nadi Magistrates Court on the 22nd October 1999 to answer a charge of indecent assault which allegedly occurred on the 6th October 1999.

The matter then has an appalling history which culminated in the Learned Magistrate on the 20th November 2002 stating in the court record “12 hearing dates was fixed to accommodate. Defence counsel always adjournment. Hearing to proceed.” The record indicates that on that day the Director of Public Prosecutions did not have their witnesses available and accordingly an adjournment was granted. The record then shows “Court: 29/01/03 – hearing – final”.

The hearing commenced on the 29th January 2003 when the prosecution witnesses were produced and gave their evidence in chief and were cross-examined. For some reason not apparent from the court record, the matter did not continue on the 31st January 2003 but was adjourned for continuation on the 12th February 2003. When it was further adjourned to the 17th March 2003 for mention and then to the 27th March 2003 to fix a hearing date, which was ultimately fixed as the 20th August 2003. On that day, the matter proceeded when the caution interview was tendered and bench warrants were issued for 3 prosecutions witnesses. 

However the bench warrant for PC Seru was cancelled on that day. The matter was then listed for hearing on the 24th November 2003 when the Director of Public Prosecutions was not present and the matter was adjourned to the 12th January 2004 for mention to fix a hearing date. Regrettably by that time, the Learned Magistrate had been transferred from Nadi to Labasa and the matter then appears to have lurched along through 2004 with continued adjournments until such time as arrangements appear to have been made for the Learned Magistrate to return to finalize the matter on the 3rd February 2005 on which date, the present application was foreshadowed and the matter transferred to the High Court for determination of the stay application.

In his affidavit in support of the application, the applicant says that an alleged key witness is deceased and that another key witness has migrated. No evidence is given as to the significance of these witnesses or why their evidence is material. I note from the court record that the offences are allegedly committed in private, when only the complainant and the applicant were present without more evidence being placed before the court, it is impossible to accept that the alleged key witnesses are in fact material to the proceedings.

The Fiji Court of Appeal has considered the issue of stay with respect to delay and the provisions of the Constitution in Apaitia Seru & Anthony Frederick Stephen v The State – Cr. App. AAU 0041 of 1991S and Cr. App. AAU 0042 of 1999S. The Court there gave great consideration to a leading decision of the Supreme Court of Canada in R v Morin (1992) C.A. 4th 1 & 2, a decision referred to as the leading New Zealand authority of Martin v Tauranga District Courts [1995] 2 NZLR 499.

In both cases, the courts were considering provisions similar to those contained in the Constitution of the Fiji Islands.

The Court concludes that the relevant period that is required to be looked at is the period between charge and trial and not the period between the commission of the offence and charge. The Court also concludes that mere delay is sufficient to trigger the relevant provisions without there being necessarily any evidence of actual prejudice. Most relevantly for the present circumstances, the Court said at page 8:

“In the end however, except where the guidelines have been breached by sufficiently wide margin, the outcome will turn on the facts of the individual case.”

Whilst the court here did not issue any guidelines, they did ultimately determine that the delay of more than 4 years between charge and trial is prejudicial but further at page 14 said:

“The more serious the charge, the greater the interest of the community in ensuring the case goes to trial.”

The Court acknowledged the limitations that at time exist in countries such as Fiji where facilities that might be available in more high sophisticated wealthy countries may not in fact be available.

In circumstances of the present case, it is impossible not to have regard to the words of the Learned Magistrate in his record on the 20th November 2002 where he said:

“12 hearing dates was fixed to accommodate. 
Defence counsel always adjournment. Hearing to proceed.

I am of the opinion that from this and other matters, it is apparent that a tactic is developing to delay the prosecution in some instances. Regrettably, the actions of counsel in persistently seeking adjournments is being aided and abetted on many occasions by magistrates. It is absurd to accept that it takes 2 or more years for a matter to proceed to trial through the Magistrates Court.

The Court has a duty to ensure that the interests of justice are met and as was said in Seru “the more serious the charge the greater the interest of the community in ensuring the case goes to trial.”

The prosecution should remain ever vigilant to ensure that prosecutions proceed in a timely manner and that the provisions of the Constitution are met. Should it be that magistrates are not able or willing to give hearings in a timely manner then the Director of Public Prosecutions should draw the High Courts attention to these instances and this Court can intervene in reliance of its revisionary jurisdiction.

In the circumstances of the matter before the Court, I am of the opinion that the delays are in the main occasioned by the actions of the applicant and/or his counsel and accordingly, it follows that I am of the opinion that it is inappropriate for the proceedings in the particular circumstances of this case to be stayed, notwithstanding the delays that have been occasioned since the applicant first came before the Magistrates Court. This view is fortified by the lack of evidence of any necessity to call the witnesses referred to in the applicant’s affidavit.

I note that the matter first came before this Court on the 3rd February 2005 and I consider the delays in this Court to similarly be quite unnecessary and unreasonable in the circumstances.

The matter appears not to have been listed for hearing until the 15th June 2005 and the judge before whom that was listed was apparently ill and the matter was then adjourned to the 12th August 2005 for hearing, which date was vacated at the request of counsel for the applicant due to his lack of availability and it was adjourned for hearing on the 19th September 2005 and further adjourned for the filing of written submissions by the State. In the circumstances for the reasons stated, the application is refused and the Motion is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
21 October 2005