Bhika v State [2008] FJHC 179; HAM85D.2008S (18 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM 085 of 2008

Between:

DHANSUKH BHIKA
GULABDAS BHIKA
MANOJ BHIKA
JITENDRA PRATAP
SASHI RUDRA SINGH
SULIASI SOROVAKATINI
Applicants

And:

THE STATE
Respondent

Hearing: 8th August 2008
Ruling: 18th August 2008

Counsel: Mr. S. Maiden SC for Parshotam & Co. for 1st & 2nd Accused
Mr. J. Watts SC for 5th Accused
Mr. M. Raza for 6th Accused
Mr. A. Elliot & Mr. A. Rayawa for State

RULING ON STAY

On the 5th of August 2008, the Director of Public Prosecutions filed amended Information against Dhansukh Bhika, Gulabdas Bhika, Manoj Bhika, Jitendra Pratap, Sashi Rudra Singh and Suliasi Sorovakatini. The Information alleges that the 1st, 2nd, 3rd, 4th, 5th and 6th Accused all conspired to obtain money from the Government of Fiji by false pretences and with intent to defraud. Count 2 alleges that the 6th Accused corruptly received air travel on account of acts done by him in the discharge of his office. On Count 3, it is alleged that the 1st and 3rd Accused corruptly gave the 6th Accused the benefit in relation to count 2. On Count 4, it is alleged that the 6th Accused corruptly received $6,638.00 for air travel to and from Australia, on account of acts done by him in the discharge of the duties of his office. On Count 5, it is alleged that the 1st and 3rd Accused corruptly gave the 6th Accused the benefit alleged on Count 4.

On Count 6, it is alleged that the 6th Accused corruptly received travellers cheques worth $10,000 on accounts of acts done by him in the discharge of the duties of his office. On Count 7, it is alleged that the 1st and 3rd Accused gave the 6th Accused this benefit. On Count 8, it is alleged that the 6th Accused corruptly received building supplies on account of acts done by him in the discharge of the duties of his office. On Count 9, it is alleged that the 1st and 3rd Accused corruptly gave him this benefit. On Count 10, the 6th Accused is alleged to have received payments to workers at his home on account of acts done by him in the discharge of the duties of his office.

On Count 11, the 1st and 3rd Accused are alleged to have corruptly made those payments on Count 10.

On the 7th of August 2008, after a history of requesting further participants of the charges, counsel for the 1st, 2nd and 5th Accused made an application, under section 29(1) and (3) of the Constitution and in the inherent jurisdiction of the court, for permanent stay of the prosecution. There are two applications, made by counsel for the 1st and 2nd Accused, and by counsel for the 5th Accused. They are however made on similar grounds and I am treating them as one application for the purposes of this ruling. However I am aware that the evidential basis of the two, is different. The 5th Accused is charged only with conspiracy. He does not feature in the substantive counts of corruption. The 1st Accused features in both the conspiracy and the substantive counts 3, 5, 7, 9 and 11. The 2nd Accused features only in the conspiracy count.

The grounds set out in the affidavit of Anuleshni Neelum Neelta (principal of the law firm Neelta Law and solicitor of the 5th Accused) and in the affidavit of Satish Ratilal Parshotam (principal of Parshotam & Co. and solicitor for the 1st and 2nd Accused) can be summarized as follows:

1. The charges laid by the prosecution are confusing and lack particulars. As a result, it is impossible to adequately prepare for the defence of the Accused.
   
2. The Information fails to sever the 3rd and 4th Accused both of whom have left the jurisdiction of the court. It is alleged that non-severance is prejudicial to the remaining Accused.
   
3. There has been prejudicial publicity about the "agriculture scam" which unfairly lays blame for it on the Accused thereby deflecting attention from the activities of the then Interim Government.
   
4. That the 1st Accused has been subjected to investigations and prosecution by the Commissioner of Inland Revenue as a result of which he was prosecuted, and acquitted.
   
5. There is prejudice as a result of delay. The events relate to matters in 2000 and 2001.
   
6. The 1st Accused has been summoned as a witness in another case relating to the Ministry of Agriculture currently before Hon. Justice Mataitoga, which is an abuse of the process.
   
7. In relation to the 5th Accused, the Director of Public Prosecutions made overtures to him suggesting that he could become State witness, and then unfairly charged him on the 1st of November 2007.
   
8. That on the 18th of July 2008 the State gave an undertaking that particulars of the charges would be provided to the accused persons by 25th July 2008, but no such particulars were forthcoming.
   
9. That instead of providing particulars the State amended the charges.
   
10. That without particulars of fraud or false pretences the disclosed material fails to disclose the offences charged.
    
11. That the prosecution of the 5th Accused is an abuse of the process.
    

No affidavit was filed in response by the State but the stay application was heard on the 8th of August 2008 on the basis of oral submissions.

The submissions

Counsel for the 1st and 2nd Accused submitted that the conduct of the prosecution made it impossible to adequately prepare a defence, that it was wrong in law to charge the Accused with a conspiracy charge and substantive charges in the same Information and that the conduct of the prosecution amounted to an abuse of the process. Counsel for the 5th Accused supported the submissions of counsel for the 1st and 2nd Accused, and added further that because his client was charged only with conspiracy, the evidence led on the other counts would prejudice the 5th Accused. He further submitted that the prosecution should elect which count they wished to proceed with.

Counsel for the State submitted that the charges in the amended Information of the 5th Accused was in substance the same as the previous Informations but had merely been a "tidied up" version of it, that he agreed that counsel for the defence were entitled to better particulars of the alleged conspiracy on Count 1, that he was in the process of compiling such particulars and that the remedy was not a permanent stay, but an adjournment to enable him to provide such particulars.

The law

The common law power to stay criminal proceedings for abuse of the process (other than for unreasonable delay), is an inherent power, exercised to protect the administration of justice from manipulation and abuse by the law enforcement authorities. In State v. Waisale Rokotuiwai HAC 0009 of 1995, Pain J summarized the principles thus:

"I accept that this Court has inherent jurisdiction to prevent abuse of its process in criminal proceedings. Concurrent with that is a duty (confirmed in the Constitution) to ensure that an accused receives a fair trial. This is made abundantly clear in the cases cited by counsel. The ultimate sanction is the discretion invested in the court to grant a permanent stay. However, such a stay "should only be employed in exceptional circumstances." (Attorney General’s Reference (No. 1 of 1990) [1992] QB 630 endorsed by the Privy Council in George Tan Soon Gin v. Judge Cameron & Anor. [1992] 2 AC 205."

In R v. Looseley; A-G’s Reference (No. 3 of 2000) [2002] Cr. App. R. 29, a case of alleged abuse of the process in a case of entrapment, Lord Nicholls of Birkenhead said this of the jurisdiction:

"every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the State do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the State."

And in S v. Ebrahim [1991] ZASCA 3; (1991) (2) S.A. 553, the South African Court of Appeal said that;

"the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system. The state was bound by these rules and had to come with clean hands, as it were when it was itself a party to the proceedings and this requirement was clearly satisfied."

The principle is intended to "protect the courts and their proceedings, and to maintain public confidence in the administration of justice (per Gaudron J in Ridgeway [1994-95] 184 CLR).

The remedy was held in Sat Narayan Pal HAC 002.04 (per Gates J). Sat Narayan Pal AAU0036/2006 (in the Court of Appeal) to be one of permanent stay of proceedings. In that case Gates J found that the instigator of the video recording of a conversation between the accused and the instigator’s son, had acted in bad faith. Proceedings were permanently stayed. On appeal by the Director of Public Prosecutions who submitted that the remedy should instead have been the exclusion of the recording, the Court of Appeal held that the trial judge did not err and that "what occurred in this case was unconscionable and a gross abuse of process. The State should not be a party to such an abuse, and nor should the courts allow such conduct to found a prosecution or be part of the criminal justice system."

In Reg v. Horseferry Road Ct; Ex parte Bennet [1993] UKHL 10; [1994] 1 AC 42, the House of Lords considered an abuse of the process in a case where a man charged with serious offences was transported from South Africa to the United Kingdom without following extradition procedures and with an intention to avoid such proceedings. The House of Lords permanently stayed the prosecution, holding that it was unconscionable for the courts to countenance a prosecution where there had been gross breaches of fundamental rights.

The jurisdiction is however fraught with danger. The decision to prosecute is an executive one, made by the independent office of the DPP. The DPP is not just independent of the other executive institutions of government but is also independent of the courts. The DPP’s decisions are only reviewable by the courts where he or she acts in bad faith or for an improper motive. Generally, the courts do not trespass into the territory of the prosecutorial discretion. To do so would undermine the court’s own impartiality and independence in that it would force the judiciary into the partisan arena of deciding who should or should not be prosecuted.

For this reason alone, the stay jurisdiction for abuse of the process, must be exercised with care, bearing in mind that the rights of the accused can usually be effectively protected by decisions to exclude unlawfully obtained evidence, decisions to order further disclosure, or decisions to adjourn to ensure legal representation.

Where however the law enforcement agencies, or any party whose conduct led to the prosecution, have conducted themselves in a way which has abused the processes of the court, and where the court finds that to allow the prosecution to continue would be to undermine the credibility of the administration of justice, then an order for permanent stay must be the only remedy. The exercise of the discretion requires a two-step process.

The Information

The first ground of the application is that the conspiracy charge is wrongly included in the Information with the substantive corruption charges. It is quite correct that in law, the prosecution is required to opt for either the conspiracy or the substantive charge on the information. So, for instance, it would be undesirable to charge an accused person with both a conspiracy to murder and with murder.

Counsel for the 5th Accused referred me to the decision of the English Court of Criminal Appeal in Reg. v. Griffiths and Others [1966] 1 QB 589. In that case, a supplier of lime and his employee were charged with conspiring with seven farmers to defraud the Ministry of Agriculture, Fisheries and Food by inducing the payment of excessive sums of money by the submission of fraudulent claims. They were also charged with fraudulently obtaining money from the Ministry. On appeal, the convictions were quashed, the court holding that conspiracy charges should be tried separately to substantive counts and that the prosecution should not charge persons with conspiracy at all, in the absence of evidence from which a jury could infer that the accuseds’ minds went beyond an intention to commit the substantive offences, to an agreement to do an unlawful act. The court went on to find that the prosecution case was confusing and that evidence in any event could not have supported the conspiracy charge.

The decision itself is unarguable. However, I find that it has little relevance to this case before me. Firstly the conspiracy charge names all the accused persons, and alleges that they were involved in a conspiracy to obtain money by false pretences. There are no substantive charges of false pretences, so there can be no possible confusion as to what inferences can be drawn in relation to Count 1 as opposed to the other counts. This is not a "rolled up" conspiracy charge in relation to the other counts. It stands alone, and the evidence led to show there was an agreement to obtain by false pretences would be circumstantial and distinct from the evidence of corrupt dealings on Counts 2 to 11. Counsel for the prosecution advised me from the Bar table that the evidence of an agreement to effect an unlawful purpose would be circumstantial.

Secondly, if the State alleges that the acts of corrupt practices on Counts 2 to 11, are acts done in furtherance of the conspiracy on Count 1, then although there is some evidential link between these counts and Count 1, such evidence would have been admissible anyway on Count 1, as evidence of acts in furtherance of the conspiracy. Lastly, even if evidence is led of a conspiracy on count 1, which is also relevant on Counts 2 to 11 in relation to the 1st, 3rd and 6th Accused, that cannot be prejudicial to these three accused because that evidence would have been led anyway, with or without the conspiracy count.

In principle therefore, the Information is not defective. Nor is the prosecution prevented from prosecuting conspiracy with corrupt practices as the offences are set out in the Information.

Counsel for the 5th Accused submits also that his client was prosecuted without any evidence at all. Counsel for the prosecution disputes that, saying that the evidence will disclose a circumstantial case of a conspiracy to which the 5th Accused was a party. This is not an application to quash the Information and it is an inappropriate use of the stay jurisdiction to suggest insufficiency of evidence. Counsel for the 5th Accused may either file a motion to quash the Information, or await the close of the prosecution case to raise a no case submission.

The next ground for stay, raised by both counsel for the defence, is that of insufficient particulars. Counsel submit that there is not only a failure to respect section 29 of the Constitution, but that the prosecution’s conduct in repeatedly failing to provide particulars, amounts to an abuse of the process.

Neither counsel referred me to any authorities to support their submissions. However it is clear from the documents annexed to the affidavits of Anuleshni Neelta and Satish Ratilal Parshotam, that requests for particulars were made almost as soon as the Accused were charged. In particular after the Information had been amended on the 19th of March 2008, counsel for the 1st, 2nd, 3rd, and 4th Accused wrote to the DPP saying: "The amended Information does not provide adequate particulars, and in some respects, no relevant particulars at all. Absent the provision of proper particulars, our clients are entitled to a stay of proceedings." That Information also alleged a conspiracy to obtain by false pretences. The letter from Parshotam & Co., listed the particulars requested.

There then began an exchange of letters with the DPP’s Office, with the prosecution promising further disclosure in some areas, but refusing to particularize charges in others, and with the defence continuing to ask for particulars. In a letter dated the 4th of July 2008 the defence wrote to the DPP’s Office saying that if particulars were not provided, a permanent stay would be sought. In the course of the exchange of the correspondence, defence counsel expressed disapproval of the service of a summons to witness served on the 1st Accused in relation to a related but separate trial, currently underway in the Suva High Court before Mataitoga J. The expressed fear was that of a risk of self-incrimination.

In response an email was sent by the DPP’s Office to counsel for the defence, deprecating the tone and contents of the correspondence and advising counsel that the nature of any evidence given by the 1st Accused was unrelated to his own trial.

There were further requests for particulars, on the 28th of July 2008, on the 31st of July 2008 and the 5th of August 2008. On the 4th of August 2008, Mr. Elliot for the DPP informed counsel that the Information would be amended because in his view the existing Information was bad for duplicity. On the 5th of August, the second amended Information was filed.

Counsel for the DPP candidly agreed at the hearing of this application that the defence had a right to particulars, and that he was working on preparing them. He tendered an example, in chart form. He said that the second amended Information was in substance no different to the earlier charges and that all that had been done was a "tidy-up."

In the correspondence counsel for the 1st and 2nd Accused referred to a number of authorities to substantiate their request for further particulars. Chang Hang Kiu and Others v. Sir Francis Piggot and Another; In re Lai Hing Firm (Bankrupts) [1909] AC 312 was a case of perjury arising from bankruptcy proceedings in Hong Kong. The appellants appealed against their committal to prison on the grounds that they had not been informed by the Chief Justice (who had committed them) what statements had constituted the perjury and that they had not been heard before sentence was passed. On appeal the Privy Council held that the Ordinance creating the offence did not require the specific allegations of perjury to be formulated and this ground failed. The appeal was allowed on the second ground which is irrelevant to this application. This authority does not assist counsel for the defence.

Also referred to in the same letter to the DPP, requesting particulars was Stanton v. Abernathy and Another (1990) 19 NSWLR 656. In that case the appellant was charged with giving evidence which was false in "certain material particulars", contrary to the State Drug Crime Commission Act 1985. The prosecution provided particulars of the subject matter of the false evidence, but not as to the particular evidence which was allegedly known to be false. On appeal to the NSW Court of Appeal, it was held inter alia, that the information was duplicitous because the prosecution alleged falsity of several pieces of evidence in a single offence, and then failed to particularize the evidence alleged to be false. The court found the information to be defective for duplicity and lack of information, but held that the remedy was not the dismissing of the information, but was the making of orders to direct the furnishing of particulars and the amending of the charge.

In S v. The Queen [1989] 168 CLR, the indictment charged the defendant on three counts of carnal knowledge of his daughter. They were "rolled up" counts covering periods of 12 months each. The evidence led did not link the acts with the specified periods. The defendant was convicted. On appeal to the High Court the court held that where any specific act or acts had not been identified in the indictment, the prosecution could not lead evidence of several offences over a period of time, and invite the jury to convict on any one of them. This decision is one commonly referred to as the Australian decision which disapproves of the "rolled-up" count approach or the "sample count" approach. It is not followed in Fiji, Fiji’s courts preferring the English and New Zealand approach of permitting sample counts (see Sikeli Koro v. State [2002] HAA 0048/02L in which S v. The Queen was considered and not followed).

These authorities do not assist the defence in this case. I have been given no decision which requires the prosecution to provide the basis of its charges, and particulars of its case against each accused, in all cases.

The law in Fiji is governed by section 119 of the Criminal Procedure code, and section 28(1)(b) and (c) of the Constitution. Section 119 provides:

"Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged."

The scope of this section in relation to an offence of corrupt practices, was discussed by the Court of Appeal in Chandra Shekhar & Bimal Shankar v. State [2005] AAU0056/04. The Court held that the charge should be as informative as is reasonably practicable and that in that case, the appellants had no doubt as to the nature of the allegations they faced. In State v. Brijan Singh [2007] AAU0097/05S, the Court of Appeal said that "the purpose of the particulars of offence is to indicate to the person accused of the offence the nature of the case the State intends to present. It does not need to set out the whole evidence and it is sufficient if it indicates how the case will be presented." (my emphasis)

In Gagaj Rafoek Rioji [2002] HAA060/01S, a decision of this court, it was held that on a sedition charge, the prosecution should have particularized the sedition alleged and the particular act or speech alleged to be seditious in the wording of the charge. However in that case the respondent was not prejudiced by lack of particularity because such lack of prejudice was apparent from the way the defence was presented.

Finally in Sikeli Koro v. State (supra) where the prosecution laid multiple counts over a long period of time and where there was a lack of particularity of the alleged offending over a 10 year period, it was held that a lack of particularity did not prejudice the appellant because he was given reasonable information about the nature of the allegations. The decision was applied in Dip Chand v. State [2008] HAC 138/05L (per Govind J).

This then, is the law on the obligation to provide sufficient particulars in the Information or charge, in Fiji. Section 119 of the Criminal Procedure Code must be read together with section 28(1)(c) of the Constitution, which provides that the defence should have adequate facilities to prepare a defence. What is "reasonable information" to satisfy both section 119 and section 28(1)(b) of the Constitution (which requires disclosure of the reasons for the charge) depends on the circumstances of each case. Where the issue is raised before the trial then the remedy is (in the absence of a deliberate manipulation of proceedings) to order an amendment of charges. I am unable to find any authority which suggests that a stay is the appropriate remedy. It would be a different situation where the prosecution deliberately gave false particulars, or refused to allow access to evidence (R v. El-Treki Archbold News 826 October 2000 3-4). The remedy after the trial is completed, and it is found that a lack of particularity or disclosure prejudiced a fair trial, is the quashing of the conviction. Thus in R v. Maame Osei-Bonsu 22 June 2000, COACD 99/6732/74, the English Court of Appeal overturned a conviction for assault. At the trial, the defence had applied at the end of the prosecution case to stay proceedings as an abuse of process. Before trial, the defence had sought names and addresses of witnesses not to be called by the Crown. They were not disclosed, nor were police notebooks and relevant computer records. The court held that the failure to disclose led to an unfair trial, Lord Justice Otton saying:

"The conduct of the Crown’s case here through the CPS and the police has been quite deplorable. They did not give the defence a fair crack of the whip before the trial by not taking any or appropriate action on the civil request advanced by the defence team. That should have been done and we are very disturbed that the attitude of the prosecution seems to have been so lamentably slack on that occasion ..... the conduct here is so bad that we feel that it would be quite wrong to allow this conviction to stand."

Similarly where there had been non-disclosure by the prosecution that informers in a fraud case had acted with the encouragement of H.M. Customs to trap the defendants, the convictions were quashed, the Court of Appeal finding the prosecution "tainted beyond redemption." (R v. Early and Others [2002] EWCA Crim. 1904 [2003] 1 Cr. App. R. 19).

Of course, these decisions are really about abuse of the process due to lack of disclosure, rather than lack of particularity in the charges, but they are indicative of the importance placed by the courts on prosecution fairness and on the need to ensure the defence is able to adequately prepare for trial.

In this case, and for the purposes of this application, a determination as to whether the charge on Count 1 requires further details, is really unnecessary because the prosecution has agreed to provide such particulars. This is presumably on the ground that the time frame on Count 1 is a broad one, the evidence will be circumstantial and the prosecution considers it fair to inform the defence of the basis of the charge. In the circumstances, there is no substance to the allegation that the prosecution is deliberately manipulating or abusing the process of the court.

It is regrettable that the Information has been amended twice, and that the last such amendment is only a month before the trial date. However, having perused all the Informations and charges filed, I consider that the alterations do not entirely transform the nature of the case. From the correspondence between counsel, it is apparent to me that defence counsel are not completely in the dark about the nature of the case. Their requests for particulars show a clear understanding of the nature of the case.

However I accept that because the particulars are currently being compiled by the prosecution, the trial cannot proceed as scheduled on the 1st of September 2008. Both parties need to prepare their cases in an organized way before presenting their cases to the assessors.

In relation to the failure to provide particulars, I find firstly that the law in Fiji requires particulars in the charge which are necessary to give reasonable information to the defence about the charge, that the prosecution is currently working on the provision of additional information, that although regrettably delayed in the provision of such information the prosecution has not acted in bad faith or in abuse of the process, and that therefore the remedy is not to grant a stay but to adjourn the trial to allow those particulars to be served.

The 3rd and 4th Accused

The defence has failed to show me how the defence of the 1st, 2nd and 5th Accused will be prejudiced by non-severance of the Information. In any event the prosecution has declared its intention to either sever or extradite. This ground has no merit at all. Clearly section 28(2) of the Constitution prohibits a trial of the 3rd and 4th Accused in their absence.

Publicity

No evidence of the adverse publicity has been tendered. Although prejudicial pre-trial publicity may lead to a stay where the accused is shown to be prejudiced and where a fair trial is not possible at any location within the jurisdiction, this is exceptional a step to take.

In McCann Cullen and Shanahan (1991) 92 Cr. App. R. 239 it was held by the English Court of Appeal that the test was whether the media coverage at trial "had created a real risk of prejudice against the defendants" (per Beldam LJ at 251). In R v. Thompson and Venables (1993) All ER, Morland J applied the following test in the case often referred to as the "James Bulger case:

"No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the extent and nature of the pre-trial publicity he will suffer serious prejudice to the extent that no fair trial can be held."

The defence has failed to disclose any media coverage at all. There are no newspaper cuttings, or video footage which show that any pre-trial publicity has caused serious prejudice to any of the accused. There have been previous trials connected to the so-called "agriculture scam" but I have not been told that in any of those cases, these accused or any one of them were implicated or named.

This ground also fails.

Previous prosecutions, delay and overtures of immunity

The affidavit of Satish Ratilal Parshotam annexes the judgment of Mr. Ajmal Khan, resident magistrate, acquitting the 1st Accused of offences connected to the Income Tax Act. The defence submits that the 1st Accused’s acquittal prevented prosecution on the Information before me, and that the prosecution is therefore an abuse of the process. There was also an overlap of the documents seized for the purposes of both prosecutions.

However, a perusal of the judgment (Criminal Case No. 848 of 2005) shows that the 1st Accused was charged with 10 counts of tax evasion in relation to an alleged failure to declare income. The evidence disclosed alleged discrepancies in director’s personal accounts, and alleged false private claims as business expenses. The Accused was acquitted on the basis that original ledgers had not been tendered to show how general expenses had been paid, that no or little weight could be put on the evidence without original tax returns, that there were objections to each item and there was confusion about the 1st Accused’s name. I am unable to see how this decision in any way prevented the prosecution of the 1st Accused for conspiracy to obtain by false pretences, or for corrupt practices. Even if the same documents are used in both trials, the issues relevant to this trial are quite distinct.

The defence also raises delay. The authorities take a different approach to the type of delay disclosed in any case. Pre-charge delay is unlikely to lead to a permanent stay, especially in serious fraud cases which are notoriously difficult to investigate and prosecute.

In this case charges were first laid on 22nd May 2007 and called in the Suva Magistrates’ Court. The principal charge was then conspiracy to commit a misdemeanor namely fraudulently causing or procuring the payment of money by false pretence. The allegations were in relation to events in 2000 and 2001. The case was transferred to the High court on the 27th of July 2007. The hearing was to commence on the 1st of September 2008. There has been post-charge delay of one year and 4 months.

The right to a speedy trial is an old right, acknowledged even in the Magna Carta in the 13th Century: "we will not deny or defer to any man either justice or right." (4 Halsbury’s Statutes (2nd) 263.) In Fiji, the issue of delay and the basis of a stay application on the ground of delay, was recently considered by the Court of Appeal in Mohammed Sharif Sahim v. The State Misc. Act No. 17 of 2007. In that case the court considered whether, once systemic post-charge delay was found to be unreasonable, a stay of proceedings was inevitable even in the absence of specific prejudice to the accused. After holding that the purposes of the right were to protect parties from excessive procedural delays, and to protect the justice system from an undermining of its effectiveness and credibility (H v. France [1989] ECHR 17; (1990) 12 EHRR 74), the Court of Appeal held that the correct approach of the courts is two-pronged. Firstly is there unreasonable delay and a breach of section 29(3) of the Constitution? Secondly, what is the remedy? In determining the appropriate remedy, proceedings should not be stayed in the absence of evidence of specific prejudice.

In Isireli Leweniqila v. The State HAM 031 of 2004S, the offence was committed in May 2000. Charges were laid in May 2003. Information was filed in February 2004. The complaint in that case, was of pre-charge delay. Stay was refused, the court relying on the Court of Appeal decision of Apaitia Seru and Anthony Frederick Stevens v. State AAU00041 of 1999S, to find that stays on the basis of pre-charge delay were exceptional. In Attorney-General’s Reference (No. 2 of 2001) [2009] UKPC 41; (2002) 1 Cr. App. R. 24, it was held that even where there was substantial pre-charge delay, a stay should only be granted if it was impossible for the defendant to be given a fair trial. In R v. Dutton (1994) Crim. L.R., there were substantial pre-arrest delays because of the death of witnesses, and loss of evidence. It was held that in such a case, the burden was on the defence to show serious prejudice, and that a stay should be exceptional even where the delay was unjustified.

In this case, I am not persuaded that the Accused persons are in any way prejudiced by the pre-charge delay. Nor am I persuaded that a delay of 1 year and 4 months since the charges were laid, is an unreasonable delay for the purposes of section 29(3) of the Constitution.

Counsel for the 5th Accused suggests that the prosecution has reneged on previous overtures to the 5th Accused to make him State witness. There is no doubt at all, that where the State makes promises then reneges on those promises, a stay order can be granted. That was the position of this court in Peceli Vuniwa v. State HAC 31 of 2005. However in that case the Director of Public Prosecutions had specifically agreed not to proceed on certain counts in return for a guilty plea on others. No such promise or undertaking has been made to the 5th Accused in this case.

The affidavit of Anuleshni Neelum Neelta annexes a letter to Diven Prasad Lawyers, from the DPP, dated the 10th of October 2007. That letter states:

"We have been advised by the police that they are in the process of recording a plain statement from Mr. Singh in view of granting him immunity from prosecution provided he becomes State witness and makes himself available in the trial against the directors of Suncourt Hardware Ltd. However, it appears from your letter that Mr. Singh prefers to be charged instead.

We have considered Mr. Singh’s caution statement to the police. We are of the view that there is sufficient evidence to charge Mr. Singh as a co-conspirator, which means that Mr. Singh will not be able to travel to New Zealand....."

This was not an offer of immunity. On the 16th of October 2007, Diven Prasad Lawyers wrote to Director CID, saying that the 5th Accused had been barred from leaving Fiji as a result of the investigation, and that:

"Our client has not been criminally charged and there is no indication by the Fiji Police or the Director of Public Prosecutions that he will be charged. Our client advises that the State would probably want him as a witness only."

On the 22nd of October 2007, Diven Prasad Lawyers wrote to the DPP saying:

"We refer to your letter of 10th October 2007 and advise that our client is willing to be a State witness ...."

Again, there was no offer of immunity from the DPP and on the 1st of Octmber 2007, he was charged with conspiracy. It appears that thereafter the police did try to obtain a further statement from him, but on the 9th of July 2008, G.P. Lala & co. (who then represented the 5th Accused) advised the DPP that the 5th Accused was not willing to make such a statement.

Clearly there were some overtures for immunity, but at no time was there a formal offer. In the circumstances, I find no evidence of misconduct by the prosecution. Clearly by the 9th of July 2008, the 5th Accused was not prepared to discuss the possibility of immunity.

In all cases, where the courts have found an abuse of the process on the basis of prosecutorial breaches of promises, they have found firstly that there was a promise made by the prosecution. In Chu Piu Wing v. Attorney-General (1984) HKLR 411, the Hong Kong Court of Appeal found that the Independent Commission Against Corruption had promised a witness he would not be required to give evidence. In Att-General of Trinidad & Tobago v. Phillip [1994] 3 WLR 1134 the prosecution had re-prosecuted after a grant of a pardon, and an order for habeas corpus made, and in R v. Croydon JJ ex p Dean (1994) 98 Cr. App. R. 76 DC the prosecution had made a promise to a 17 year old boy that he would not be prosecuted if he assisted the police. Staughton LJ in Dean (at p.206) said:

"the prosecution of a person who has received a promise, undertaking or representation from police that he will not be prosecuted is capable of being an abuse of the process."

In this case, there were only discussions about immunity. There was no promise (either implied or direct) and no breach of it. I do not consider the conduct of the prosecution to be reprehensible in the circumstances.

Conclusion

The defence has failed to show any or sufficient grounds to justify the exercise of the inherent jurisdiction of this court, to stay proceedings. The remaining issues raised, that the Information is not supported by the evidence, and that the 1st Accused should not be required to give evidence in a related trial against other Accused are misconceived. The question of sufficiency of evidence should be raised after the provision of the particulars promised by Mr. Elliot either in a motion to quash Information under section 275 of the Criminal Procedure Code, or in the course of submissions that there is no case for the accused to answer. The submissions in the course of this application is premature.

In order to grant an application for a stay of a prosecution, the defence must show that the prosecution should not be permitted to continue in the interest of the administration of justice. It is an exceptional remedy, designed to protect the integrity of the criminal justice system from "unjust maneuvers which undermine the credibility of the judicial system" (Reg v. Horseferry Rd Ct; Ex parte Bennet [1993] UKHL 10; [1994] 1 AC 42; R v. Shaheed [2002] 2 NZLR 377; State v. Sat Narayan Pal (supra).)

In this case I am not persuaded that the grounds raised by the defence either individually or collectively, require such an exceptional step to be taken.

This application is refused. However the parties must be given further time to prepare for trial and the trial date is vacated. A new trial date will be set with the concurrence of counsel.

Nazhat Shameem
JUDGE

At Suva
18th August 2008