State v Buksh [2005] FJHC 432; HAC0010Z.2005S (22 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC0010 of 2005S

STATE

v.

SHAKIR RIAZ BUKSH
JITOKO METUI
[ARE AEMAI]
PAULIASI DELAIBATIKI
TEVITA KOTOIRAKIRAKI

Hearing: 18th November 2005
Ruling: 22nd November 2005

Counsel: Mr. P. Bulamainaivalu for State
Dr. J. Cameron for 1st & 5th Accused
Mr. G. O’Driscoll for 2nd Accused
Ms B. Malimali for 3rd & 4th Accused

RULING

Defence counsel make several applications in this case, arising from the rather unusual turn of events which have followed after the escape from custody, and apprehension of, the 3^rd Accused, Are Aemai. The first, which I accept, is that Ms Malimali can no longer continue as counsel in this case after her withdrawal as counsel for the 3^rd Accused. The second is, that the prosecution should be either temporarily or permanently stayed for abuse of the process, on the ground that the grant of State immunity to the 3^rd Accused following his apprehension, would result in unfairness to the other accused. The third is that the trial is likely to be unfair to the 1^st and 5^th Accused on the ground that the prosecution has failed to particularise the basis of their prosecution.

The case history

Each of the five accused persons, is charged with the murder of Ashok Kumar on the 7^th of January 2005 at Samabula. The basis of the prosecution case, as State counsel has declared from the earliest pre-trial conference hearing, is that the 2^nd Accused actually caused the death of the deceased, by tying a ligature around his neck, with malice aforethought, and that the other accused persons are prosecuted with him, for murder on the basis of the law of joint enterprise. Counsel for the 1^st and 5^th Accused has made representations to the DPP indicating willingness to plead to the lesser charge of robbery with violence, but the State has chosen to proceed with the murder charge.

All counsel have declared the positions of their clients at the outset. The 1^st and 5^th Accused will not dispute their presence during the incident but will deny any knowledge of the murder, or any foresight of the murder. They will say that the murder was not a probable consequence of the robbery.

The 2^nd Accused will not dispute presence at the scene, or the tying of the ligature. He will dispute causation and malice aforethought. The 3^rd and 4^th Accused initially disputed their presence at the scene. They both indicated their intention to call alibi evidence. They therefore both disputed the admissibility and truth of their police interviews and the trial commenced with a trial within a trial to determine admissibility. However on the morning of the trial, the 3^rd Accused absented himself by escaping from police custody. The State filed a new Information excluding the 3^rd Accused and the trial proceeded on that basis. The assessors were sworn in, and were excused for the trial within a trial. In the middle of the trial within a trial, the 3^rd Accused was apprehended. He spoke to Ms Malimali, who also represented the 4^th Accused, and said that he no longer disputed his interview, no longer disputed his presence at the scene, but did dispute a joint enterprise and that the murder was a probable consequence of the planned robbery. He offered himself as a State witness. The State agreed to grant him immunity from prosecution in return for a plea to robbery with violence. Simultaneously Ms Malimali informed the court that the defences run by the 3^rd and 4^th Accused were now conflicting and that she could not represent the 3^rd Accused any further. I agreed that their defences were in conflict, because the 3^rd Accused had named the 4^th Accused as one of the persons involved in the incident. I granted her leave to withdraw as counsel for the 3^rd Accused.

At the end of the trial within a trial, I ruled that the 4^th Accused’s admissions were admissible and were given voluntarily. Ms Malimali then applied to withdraw as counsel for the 4^th Accused, saying that she could not, in all conscience, cross-examine the 3^rd Accused as a witness when she was formerly his lawyer.

I called for submissions from all counsel at the stage of the trial. All counsel agree that Ms Malimali cannot, as a matter of professional ethics, continue as counsel in this case. My attention was drawn to the case of Fordham v. The Legal Practitioners Complaints Committee (1998) High Court of Australia, 22 October 1998, which is authority for the proposition that a legal practitioner should not be in a position whereby he or she must cross-examine a former client in a matter in which he/she has received instructions from that client. The conflict is obvious. There is a real possibility of the 4^th Accused’s defence being prejudiced by his counsel’s dilemma. Ms Malimali was given leave to withdraw.

The 3^rd and 4^th Accused are now unrepresented. Although the 3^rd Accused is no longer, strictly speaking, an accused in the case before me, it is desirable that he be given legal advice before he accepts the State’s offer of conditional immunity. In the case of the 4^th Accused, he is now unrepresented through no fault of his own. This will not be a simple case (if there is any such a thing as a simple case). I will be hearing submissions on joint enterprise, probable consequence, causation and malice aforethought. One or more of the accused, may give sworn evidence and the other accused persons may cross-examine. The question of the status of a witness who is given immunity will arise. It is clearly desirable that the 4^th Accused is represented, to prevent the risk of prejudice. An adjournment to allow him to obtain the services of counsel, is the only logical step to take at this stage.

Abuse of the Process

Counsel for the 1^st and 5^th Accused however, submits that the trial be permanently stayed on the ground that it would be an abuse of the process to continue with it. He says that not only is it unclear why his clients have been charged, but that the grant of immunity to a man who has given several inconsistent stories about his involvement in this case is so unreasonable, that the DPP’s decision to grant him immunity must be an abuse of the prosecution process.

In relation to the alleged lack of clarity in the State’s position in relation to the 1^st and 5^th Accused, I cannot agree with counsel that the accused persons are prejudiced by the nature of the disclosure. Both the 1^st and 5^th Accused admitted, to the police, their involvement in a robbery on the deceased. The 1^st Accused in his statement (which he will not dispute) said that he arranged to meet with the 2^nd Accused on the 6^th of January 2005, in order to rob the deceased’s shop with him. It was always contemplated, that the deceased would be in the shop at the time of the robbery, and that it would be the 2^nd Accused’s responsibility “to hold the owner of the shop” to allow a search to be conducted. Later he told the 2^nd Accused, to cover the deceased’s eyes with a scarf. He also said that saw the 2^nd Accused punching the deceased. Whether the tying of the face, and the punching are probable consequences both in an objective and subjective sense, must surely be a matter for the assessors, or for the trial court having heard all the prosecution evidence. I see no lack of clarity in the prosecution position at this stage of the trial in relation to the 1^st Accused.

The 5^th Accused in his statement (the contents of which he does not dispute either) admitted that on the 7^th of January 2005, between 5am and 6am, he was waiting outside the deceased’s shop with the 2^nd, 3^rd and 4^th Accused, to rob the deceased. The details of the plan had been told to him by the 2^nd Accused, who also told them that an Indian boy had discussed the plan with him previously. The way in which the interview continued could be read as implying a consent to the plan. They all went to the shop. At Q45, the 5^th Accused’s answer was: “Upon arrival Jitoko then showed us the shop and we separated in twos to wait for the Indian man according to the plan.” That plan, according to his answer at Q46 was: “For myself and Are to wait for Pau and Jitoko after they had tied the Indian man then for us to run into the shop.”

There is an admission therefore of a plan to inflict some sort of force, and that all the accused excluding the 1^st Accused was party to the plan. Whether the death of the deceased, who was the anticipated victim of the alleged robbery with violence, was a probable consequence of the “plan” is a question of fact for the assessors. I cannot accept therefore, in relation to the 5^th Accused that there is a lack of clarity in the disclosed prosecution case. Certainly there are no grounds to order a temporary stay of proceedings on the ground of insufficient disclosure.

The next issue raised by defence counsel, is abuse of the process on the part of the prosecution. The common law on a judicial stay of proceedings for abuse of process developed to protect persons from being prosecuted in circumstances where “it would be seriously unjust to do so.” (Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 AC 396). An abuse of the process is “something so unfair and wrong that the courts should not allow a prosecutor to proceed with what is in all other respects a regular proceeding.” The two main grounds for the exercise of a stay are, firstly where the accused would not receive a fair trial and secondly where it would be unfair for the accused to be tried at all. This second ground would include cases where the prosecution has manipulated or misused a process of the court to deprive the accused of a protection provided by the law, or to take unfair advantage of a technicality (R v. Derby Crown Court ex parte Brooks, 80 Cr. App. R. 164). Also included are cases where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place (R v. Mullen [2009] EWCA Crim 483; [1999] 2 Cr. App. R. 143). An example of the latter was the case of R v. Horseferry Road Magistrates’ Court ex p Bennet [1993] UKHL 10; [1994] 1 AC 42. In that case the accused had been taken to Britain as a result of collaboration between British and foreign government authorities, in disregard of extradition procedures. If the accused had been taken to Britain as a result of extradition proceedings, he would certainly have received a fair trial. Indeed it was not suggested, despite the offending collaboration, that the accused would not receive a fair trial. Nevertheless, the House of Lords held that the court had the power to interfere with the prosecution because the judiciary accepted a responsibility for the maintenance of the rule of law which included a check on executive action and the refusal to tolerate conduct which threatened basic human rights or the rule of law (per Griffiths L.J).

Where the complaint is of prosecution misconduct, such as late or no disclosure, the defence must show, on a balance of probabilities (R v. Telford JJ ex p Badhan [1991] 2 QB 78, 93 Cr. App. R. 171) that it is not possible for the accused to have a fair trial. Further, a stay will not be granted where the trial itself has a process which may deal with the complaint. Thus matters such as complaints of the improper obtaining of evidence, or the tampering with evidence would not normally amount to an abuse of the court’s process, because these are trial issues. (Attorney-General’s Reference (No. 1 of 1990) [1992] QB 630).

The matter complained of in this trial, is the granting of immunity to the 3^rd Accused. Counsel says that the 3^rd Accused is so unreliable a witness that no reasonable prosecutor would consider granting him State immunity. State counsel says that the decision is one for the DPP, that all counsel may cross-examine the 3^rd Accused, and that the decision to grant the 3^rd Accused immunity was based on a concern that Ms Malimali was in a position of conflict, that the 3^rd Accused was unrepresented and that he would probably be granted an adjournment to brief counsel. This then would result in delay which would affect the remaining accused person, all of whom had a right to a trial within a reasonable time.

It is not suggested that the State has deliberately manipulated the court’s process for some dishonest or improper motive. What is alleged is unreasonableness.

I am not persuaded that this is a suitable case for a stay of proceedings. If the State has chosen to grant immunity to an accused person in exchange for a reduction of the charge, each counsel will have the opportunity to cross-examine him. The assessors can draw their own conclusions. This surely is a trial issue, and I see no resulting prejudice to the other accused. To suggest that the State should continue to prosecute the 3^rd Accused with murder, or to suggest that immunity should instead be granted to the 1^st or 5^th Accused, would be tantamount to a direct interference with the DPP’s discretion to prosecute. In the absence of evidence that the DPP is in some way deliberately manipulating or abusing the court process, such interference cannot be justified.

In Hui Chui-Ming v. R [1992] 1 AC 34, the Privy Council considered a prosecutorial decision to prosecute a secondary party for murder, when the principal offender had been convicted of manslaughter and pleas of guilty to manslaughter had been accepted from other secondary offenders. The court held that this decision was not oppressive nor an abuse of the process of the court. The appellant had chosen to run a defence which, if it had succeeded, would have resulted in an acquittal rather than conviction for manslaughter.

Examples of improper prosecution conduct, which have led to stays include a decision to recharge the accused on charges which were fundamentally the same as charges for which another court had found no case to answer (R v. Horsham JJ ex p Reeves 75 Cr. App. R. 236) and a decision by the prosecution in R v. Lincoln Magistrates’ Court ex parte Wickes Building Supplies Ltd, The Times August 6 1993, to deliberately accumulate Informations at a time when the law in relation to Sunday trading was uncertain because of a challenge in the European Court of Justice, and when there was no possibility of immediate conviction so that the Sunday trading was in effect stayed until further notice. In R v. Brentford JJ ex parte Wong 73 Cr. App. R. 65, a prosecutor before reaching a final decision to prosecute, laid a charge just within the statutory time limit, so he could keep his options open. This was held to be a manipulation of the court’s process especially when the accused was not summoned for several months thereafter.

On a consideration of the principles of the common law on judicial stay of prosecutions, I consider that there is no manipulation of the court process by the prosecution. Indeed, it appears that the prosecution’s primary concern is delay and ensuring that all accused are represented. These are concerns shared by the court, and no doubt by the defence. If the decision to grant immunity is an unwise one, as submitted by defence counsel, then the prosecution must deal with that alleged lack of wisdom, within the trial process itself. I see no prejudice to the other accused.

However, an adjournment is now inevitable, because the 4^th Accused is, in effect unrepresented. Fortunately, no evidence has been led before the assessors, so the delay in proceeding to trial will not jeopardize their ability to remember the evidence. Subject to counsels’ availability, I am able to continue with this trial on the 18^th of January 2006. In the meantime, every effort will be made by the court to obtain the services of a lawyer for the 4^th Accused.

The application for stay and for more details of the charge are refused. The trial is adjourned.

Nazhat Shameem
JUDGE

At Suva
22^nd November 2005