In re Application by Abhinish Kumar Nand [2008] FJHC 191; HBM015.2008 (3 September 2008)

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IN THE MATTER OF AN APPLICATION by
ABHINISH KUMAR NAND for Constitutional Redress under Section 29(1)(3)
and Section 41 of the 1997 Constitution of the Republic of Fiji

IN THE MATTER OF AN APPLICATION by
ABHINISH KUMAR NAND for the Stay of the Proceeding

Application for permanent stay; Retrial ordered by Court of Appeal; Delay in original trial; Delay in retrial; Reasons for delay; Delay by Prosecution; Delay by Defence; Whether delay ‘unreasonable’; Prejudice to defence in delay; Sufficiency of contention that Defence witnesses cannot be found; Alternative remedy to permanent stay; Applicability of Constitutional redress; Fragmentation of criminal process; Voir dire or trial ‘proper forum’ for issues re witnesses, fairness of retrial, admissibility of evidence and delay; Application an abuse of process or well-founded in the circumstances; Constitution s. 29(1)(3)

Abdul Ahmed Ali, Uma Dutt & Roshni Devi v. The State (Appeal No. AAU0075 of 2007, 14 April 2008)
Abhinesh Kumar Nand v. State (Criminal Appeal No. HBA 020 of 2006, No. 47 of 2006, 3 May 2006)
Attorney-General’s Reference (No. 2 of 2001) [2003] UKHL 68
Barker v. Wingo, Warden [1972] USSC 146; 407 US 514 (1972)
Dhansukh Bhika, Gulabdas Bhika, Manoj Bhika, Jitendra Pratap, Sahsi Rudra Singh and Suliasi Sorovakatini v. The State (Criminal Misc. Case No: HAM 085 of 2008, 18 August 2008)
Martin v. Tauanga District Court [1995] 2 NZLR 419
Mohammed Sharif Sahim v. The State (Misc. Action No. 17 of 2007, 25 March 2008)
Nalawa v. State – Leave to Appeal [2008] FJCA 15; AAU0031.2007 (25 April 2008)
R. v. Askov [1990] 2 SCR 1199
Seru v. State [2003] FJCA 26; AAU0041.99S & AAU0042.99S (30 May 2003).
Shameem v. The State [2007] FJCA 19; AAU0096/05, 23 March 2007)
State v. Malakai Tuiloa (Cr Misc. Case No. HAM 10/07; Criminal Case No. HAC3/07, 2/3 June 2008)
Zimmerman and Steiner v. Switzerland [1983] ECHR 9; (1984) 6 EHRR 17

This is an application for a stay of a retrial ordered by the High Court. The matter came before me for hearing on 31 July 2008. The Magistrates Court file was requested in writing on 14 August 2008 and again in writing on 25 August 2008, with follow up by the High Court Registry in respect of those two written requests, and again on 1 September 2008. The Court Record was received by the High Court in Suva on 27 August 2008 and provided to me on 1 September 2008.

1.1 This delay is unfortunate because there is an evident need for the Court to be able to provide judgment promptly where the very essence of an application is that the Defendant in a criminal matter will be prejudiced by reason of delay in a trial or retrial proceeding.

Mr Abhinesh Kumar Nand, the Applicant, in his Affidavit in Support filed 28 February 2008, states he was charged on 19 August 2002 with the following offence:

LARCENY BY SERVANT: Contrary to Section 274(a)(i) of the Penal Code Cap. 17.

ABHINESH KUMAR NAND /so Raghwa Nand between the 22nd day of December 1997 and 18th day of October 1999 at Lautoka in the Western Division, being employed as a cashier in the liquor department stole $14,661.19 in cash the property of New World Supermarket.

2.1 The Affidavit then sets out the history of the proceedings, commencing with Mr Nand’s first interview by Police on 19 October 1999, then again on 7 August 2001. On both occasions he was interviewed by Detective Cpl Seniloli: Affidavit in Support, para 4

2.2 Mr Nand next recounts the adjournments from the first day of his appearance in the Magistrates Court, Lautoka on 19 August 2002, to the date the trial commenced on 15 November 2005 at 2.10pm. That, he says, was ‘after a lapse of almost seven (7) years since [he] was first interviewed’: Affidavit in Support, para 5(s)

2.3 As to the running of the trial, following the calling of the first witness, the matter was adjourned to 24 January 2006 for continuation of the hearing and on that date, after three prosecution witnesses were called, adjourned for continuation on 17 February 2006. On 17 February 2006 the hearing was completed with the matter adjourned to 6 March for judgment. On 6 March 2006, Mr Nand was sentenced to two years imprisonment: Affidavit in Support, para 5(s)-(v)

2.4 On 22 March 2006, Mr Nand’s Appeal Petition was filed and, after the hearing of the appeal in the High Court, the conviction was quashed and retrial ordered: Abhinesh Kumar Nand v. State (Criminal Appeal No. HBA 020 of 2006, No. 47 of 2006, 3 May 2006)

2.5 Quashing of the conviction was upon the basis that Mr Nand, as an unrepresented accused person, had not had a fair trial. The State conceded the appeal because Mr Nand had given two contradictory statements and a voir dire should have been held to determine the admissibility of the confessional statement. Counsel for the State said the State ‘was conceding on the grounds of fairness’. Counsel for Mr Nand relied upon Macpherson v. R. [1981] HCA 46; (1981) 147 CLR 512 (4 September 1981), saying that there had been no objection when the statements were tendered, but at that time Mr Nand was unrepresented. Macpherson v. R. [1981] HCA 46; (1981) 147 CLR 512 (4 September 1981):

He had to be informed of his rights. Failure by the Learned Trial Magistrate to do so denied [Mr Nand] a fair trial.

2.6 The High Court considered it possible that Mr Nand, being unrepresented at that stage, ‘was quite unaware of his right or of the procedure involved ... [a] tribunal of fact "has a duty to satisfy itself of the voluntariness of the confession and usually must hold a voire-dire for that purpose even if the accused does not object to the evidence or seek a voire-dire"’ (per Gibbs, CJ, Wilson, J. at 524): at 4

2.7 On 8 May 2006, Mr Nand was back before the Lautoka Magistrates Court on a mention date for the retrial. Since that date, a number of delays have occurred. Mr Nand has continued on bail throughout this time. On 6 March 2008 Mr Nand’s Counsel advised the Court that the present stay application had been filed in Lautoka High Court.

2.8 The submissions by Counsel for Mr Nand and for the State approach the application from two different perspectives. The former concentrates upon the principles of grant of stay and the period of delay. The latter focuses upon the principles governing Constitutional redress and the alternative remedy open to Mr Nand obviating the applicability of a permanent stay.

In deliberating on the principle of a speedy trial as set out in the Canadian Charter of Rights and Freedoms, section 11(b) in R. v. Askov [1990] 2 SCR 1199 the Supreme Court of Canada set out succinctly the rights incorporated in that provision. The same rights exist in Fiji in respect of section 29 of the Constitution, which provides:

29. - (1) Every person charged with an offence has the right to a fair trial before a court of law.

(3) Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time ...

Under s. 11(b) of the Charter, any person charged with an offence has the right to be tried within a reasonable time and this right, like other specific s. 11 guarantees, is primarily concerned with an aspect of fundamental justice guaranteed by s. 7. The primary aim of s. 11(b) is to protect the individual’s rights and to protect fundamental justice for the accused. A community or societal interest, however, is implicit in the section in that it ensures, first, that law breakers are brought to trial and dealt with according to the law and, second, that those on trial are treated fairy and justly. A quick resolution of the charges also has important practical benefits, since memories fade with time, and witnesses may move, become ill or die. Victims, too, have a special itnerest6 in having criminal trials take place within a reasonable time, and all members of the community are entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. The failure of the justice system to do so inevitably leads to community frustration with the judicial system and eventually to a feeling of contempt for court procedures: at 2002

2.11 The Court went on to identify a number of factors whereby the delay in bringing an accused to trial should be measured to determine whether it had been unreasonable:

2.12 These factors are consistent with those established by the Supreme Court of the United States in Barker v. Wingo, Warden [1972] USSC 146; 407 US 514 (1972) as applicable under the Sixth Amendment:

2.13 In R. v. Askov [1990] 2 SCR 1199 the Canadian Court went on to say that the longer the delay, ‘the more difficult it should be for a court to excuse it, and very lengthy delays may be such that they cannot be justified for any reason’. Delays attributable to the Crown/State weigh in favour of an accused. This is consistent with what was said by the Court of Appeal in Seru v. State [2003] FJCA 26; AAU0041.99S & AAU0042.99S (30 May 2003).

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 [R. v.] Smith (1989) 52 CCC (3d) 97: ‘It is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’ (p. 105) 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:

2.15 In Seru v. State an application was made by Mr Seru and Mr Stevens, the accused, to the High Court prior to trial asking for the information to be stayed on the ground that their rights under section 29(3) of the Constitution (Amendment) Act 1997 had been infringed. Albeit in the High Court the Judge had referred to various aspects of the administration so far of the accuseds’ case (‘the administration of the case had not been a happy one’ and ‘undoubtedly should have been heard sooner’), in balancing Mr Seru and Mr Stevens’ rights and the public interest, he dismissed the applications. The Prosecution, he said, was not responsible for the delay. However, systemic delay was not addressed. The Court of Appeal said the appeal ought not to be heard by one judge alone, but by a full bench. For various reasons an appeal was not heard and the trial went ahead. Upon conviction, Mr Seru and Mr Stevens argued their appeals should succeed on the ground of delay ‘if no other’.

2.16 The Court of Appeal considered all the matters set out in Martin v. Tauanga District Court [1995] 2 NZLR 419, where it was said that ‘delays approaching a certain threshold ay be regarded as "presumptively prejudicial"’: at 423 The list according to Martin includes:

2.17 Then came the ‘balancing stage’, the Court in Seru v. State [2003] FJCA 26; AAU0041.99S & AAU0042.99S (30 May 2003) saying:

Against the background of our consideration of the relevant factors we come to the critical balancing exercise. A decision to stay a prosecution on the ground of delay is a serious matter. A stay clashes with the interests of the State, representing the general body of citizens, in bringing the case to justice. The more serious the charge the greater the interests of the community in ensuring the case goes to trial. This is particularly relevant to the unusual charge brought against [Mr] Seru. It follows that dismissing a case on this ground after an actual conviction is an even graver step. Assessors have made a finding, confirmed by a Judge, that the accused are guilty of significant offences. In those circumstances no court would set convictions aside lightly. But the fact remains that this country has adopted s29 (3) thus confirming that one of the fundamental rights of all citizens is to have a charge disposed of within a reasonable time. If the court fails to acknowledge unreasonable delay when it occurs, the constitutional right will become a dead letter.

Looking at the sum of the relevant factors discussed above, we are driven to the conclusion that in the circumstances of this case, the delay which occurred between charge and trial was unreasonable. The appeals must succeed on this ground alone. A particular feature of the delay is the time taken over the committal process, but we rely also on the total period involved between the date of charging and the conclusion of the trial: at 7

2.18 Subsequent to Seru v. State, the Court of Appeal again addressed delay in Mohammed Sharif Sahim v. The State (Misc. Action No. 17 of 2007, 25 March 2008). Charges there related to offences of obtaining money by false pretences, its being alleged that Mr Sahim had obtained more than $60,000 by making false claims of his ability to obtain visas for migration to the United States. The appeal against the High Court’s refusal to stay permanently the criminal trial was based in a contention that systemic delay between charge and trial was so great as to breach Mr Sahim’s common law and constitutional rights to a fair trial: s. 29(1)(3)

2.19 Counsel for the Attorney-General and Director of Public Prosecutions agreed the delay was serious, but said it ‘was not such that the court should necessarily hold that there had been an abuse of the process’. The application was opposed by Counsel for the Attorney-General on the basis that alternative remedies were available within the criminal trial process and the Court should refuse to grant a remedy: at para [3]

2.20 Mr Sahim first appeared in Suva Magistrates Court on 27 July 2001, pleading ‘not guilty’ and it was after 31 appearances that in July 2006 his application for constitutional redress was made in the High Court. It was heard in that Court on 26 March 2007.

2.21 As the Court of Appeal said, the crux of the appeal was whether, ‘once systemic delay is found to be unreasonable, a stay of proceedings is inevitable even in the absence of specific prejudice to the accused’. That question, the Court concluded, required a recanvassing of the authorities, which the Court proceeded to do. Reference was made not only to Canadian, United States, Aotearoa/New Zealand and United Kingdom authorities, but to those of the European Court of Justice: at paras [11]-[30]

2.22 Referring then to Seru v. State, the Court observed that prejudice having been presumed because of the length of the delay and history of the case:

What the Court did not address was the availability of alternative remedies in the absence of proof of actual prejudice: at para [28]

Firstly, is there unreasonable delay and a breach of section 29(3) of the Constitution? In answering this question, prejudice is relevant but not necessary where the delay is found to be otherwise oppressive in all the circumstances. The second question is if there has been a breach what is the remedy? In determining the appropriate remedy, absence of prejudice becomes relevant. Where an accused person is able to be tried fairy without any impairment in the conduct of the defence, the prosecution should not be stayed. Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence.

2.25 The Court went on to say that this approach ‘preserves the purpose of the section 29(3) right’ whilst obviating ‘the necessity of taking the disproportionate and draconian step of terminating proceedings in each case’:

It must be remembered that delay is often a strategy to avoid justice. The law on stay must not make an abuse of the process of the courts a successful strategy under the guise of a human rights shield: at para [30]

2.26 The Court of Appeal in Abdul Ahmed Ali, Uma Dutt & Roshni Devi v. The State (Appeal No. AAU0075 of 2007, 14 April 2008) had cause to revisit delay and section 29(3) again in a High Court refusal to grant a permanent stay. The Court said that the history of charges, set out in the first seven pages of the High Court’s ruling, revealed ‘a sorry story of delays both by the State and in prosecuting the case’. One of the accused, Mr Dutt, raised various issues saying amongst them that four of his alibi witnesses had died since the charge was filed: they had, he said, seen him ‘fishing on the high seas’ on the date of the murder of which he stood jointly accused. The first accused, Mr Ali said amongst other matters that his two alibi witnesses had ‘moved on with their lives’ and the delay was caused by the Prosecution. The third accused, Ms Devi, raised a series of issues including that Mr Dutt had elected an oral preliminary inquiry, the Prosecution was the cause of the delay, and that the trial ‘would be prejudicial to her because her co-accused ... made confessions which incriminate[d] her’: at paras [2], [3], [4]

2.27 The Court of Appeal referred to Her Ladyship Judge Shameem’s decision refusing the stay, observing that she had asked herself these questions – ‘How long is too long [a delay]? And ‘What are the relevant criteria for assessing reasonableness?’ She then referred to the Court of Appeal’s judgment in Shameem v. The State [2007] FJCA 19; AAU0096/05, 23 March 2007) and in Ali, Dutt and Devi the Court of Appeal recited with approval that part which Shameem, J. cited:

The right to have a criminal case determined in a reasonable time must be determined by reference to the right of the individual to a fair trial process leading to a just result. In considering any such application the court will consider whether the delay is such as it is likely to prevent a fair trial. That will depend on various factors such as the length of delay, the reasons for the delay, the nature of the charge and the evidence to be called by either to a fair trial process leading to a just result. Whether considerable delay occurs in the trial itself, the effect of the court’s ability properly to access the evidence at the conclusion will also be a relevant factor. In some cases, the delay will be such that the court may consider it has reached the threshold at which it will be ‘presumptively prejudicial’: Apaitia Seru’s case and Martin v. Tuaranga District Court [1995] 2 NZLR 419

2.28 Shameem, J. went on to say that the case before her was one of ‘great seriousness’. None of the delays there, apart from one in the Magistrates Court, had been caused by the Prosecution. A number were caused by the accused, with an election for an oral Preliminary Inquiry, then a change of mind on that point, and change of Counsel. However, many were systemic – including no Judge being located permanently in Labasa for criminal trials ‘for almost four years’, (perhaps) Legal Aid Commission Counsel ‘shifting their position in relation to representing’ the accused, the trial’s being unlikely to proceed until October 2007. The Court Record contradicted a submission by Defence Counsel that the Prosecution was not ready for the Preliminary Inquiry. In all the circumstances, Her Ladyship said she did ‘not consider that a Stay of proceedings will be justified’. The Court of Appeal agreed: at para [28]

2.29 The Court emphasised that it is not the rights of accused persons alone which are at issue in a criminal trial:

The public, represented by the state, has an important right in seeing that justice is done both to accused persons and to the public represented by the State: at para [29]

2.30 After reiterating the statement of the Court of Appeal in Shameem v. The State [2007] FJCA 19; AAU0096/05, 23 March 2007) that delay 'is often a strategy to avoid justice’ and the need for the courts to be alert to the law on stay as being an abuse of process through being employed as a ‘successful strategy under the guise of a human rights shield’, the Court of Appeal dismissed the appeal: at paras [29], [30]

2.31 Last but one, pre-charge delay needs to be addressed as Mr Nand brings it forward as part of the factual basis for a stay. As it was said in and post-charge delay should be taken into account in assessing the merits of an application for a stay on the basis of delay.

2.31 On this, the Court of Appeal said in Mohammed Sharif Sahim v. The State (MISC. Action No. 17 of 2007, 25 March 2008) said:

It has been held in a number of cases that the computation of time ran from the point of charge or, in some circumstances, from the commencement of a police interview during which the suspect is officially told of the allegations. This last approach is consistent with the purpose of the right, that is, to protect the individual from prolonged uncertainty about his or her fate in the criminal justice system (Eckle v. Germany [1982] ECHR 4; (1992) 5 EHRR 1; Howarth v. United Kingdom (2001) 31 EHRR 861): at para [15]

2.32 In this respect, in the list of factors set down in Zimmerman and Steiner v. Switzerland [1983] ECHR 9; (1984) 6 EHRR 17 as relevant to delay has a resonance, namely (amongst other matters) the complexity of the factual or legal issues of the case. These would necessarily lead to some delay in laying a charge. An investigation must be carried out before anyone is charged, and the more complex the factual or legal issues, understandably the longer an investigation may take: at paras [27-[32]

2.33 That an investigation is conducted with due regard to the need for accuracy, research (as necessary), proper resourcing and time is to the benefit of the justice system and persons who may be accused, as well as the public as a whole: skimpy or hurried investigations, or investigations that are deficient, are of little assistance to persons affected by them as accused persons or putative accused persons, or those who are victims and survivors of crime or the institutions of justice. As was said in Sahim v. The State:

In Porter v. Magill [2002] 2 AC 357, the right [to a speedy trial] was recognised as one separate from the general right to a fair trial. It has not always been necessary for the defendant to show resulting prejudice. However, each case depends on its own facts and the jurisprudence suggests that there is a judicial tolerance of longer delay in cases of serious fraud or in cases of multiple charges and voluminous evidence. A four and a half year delay was held not to be unreasonable in UJL, GMR and AKP v. United Kingdom [2001] 33 EHRR 225 a case involving complex fraud charges: at para [16]

2.34 In Dhansukh Bhika, Gulabdas Bhika, Manoj Bhika, Jitendra Pratap, Sahsi Rudra Singh and Suliasi Sorovakatini v. The State (Criminal Misc. Case No: HAM 085 of 2008, 18 August 2008) Shameem, J. reviewed the authorities thoroughly as to delay at each stage and in respect of pre-charge delay pointed out that 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’: at 19

2.35 There is the question of prejudice. Witness availability and the lapse of memory over time are factors frequently raised in stay applications as constituting prejudice. This was addressed in Shameem v. State [2007] FJCA 19; AAU0096.2005 (23 March 2007). There in refusing the application, the High Court had said:

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 [sic] 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: at para [7]

A further consideration is the effect of delay on the appellant’s witnesses. We accept that it was reasonable for the judge to comment on the lack of explanation of the relevance of the defence witnesses who were stated no longer to be available but it was not open to him to conclude that it was impossible to accept that they were material to the case. In such a case, the defence would be wise to provide particulars to support its contention that they were material but it must be remembered that the defence is not obliged to reveal its evidence before calling it in a criminal trial. This meant that the judge should at the least have enquired why such information was not being provided: at para [25]

2.37 In that case a stay was granted with the Magistrates Court file marked ‘not to be resumed except with the leave’ of the Court of Appeal ‘or, if it becomes relevant, of the Supreme Court’: at para [32]

2.38 There, many matters beyond the witness aspect were in issue and accepted by the Court as warranting the stay, including:

... that a trial which had started only four years after the offence was to resume after adjournments in the middle of the evidence of seven months and sixteen months. The judge did not suggest a trial de novo but it is inconceivable that the original magistrate could have carried on with the trial. We have been advised from the bar table that the magistrate has now left Fiji so such a trial is the only possibility if we should dismiss the appeal: at para [24]

2.39 Finally, it is important that the present case involves a retrial. Hence, a factor addition to the general panoply of matters arising in stay applications arises here. Although it is not on all fours with this aspect, reference may be made to State v. Malakai Tuiloa (Cr. Misc. Case No. HAM 10/07; Criminal Case No. HAC3/07, 2/3 June 2008). That was not a retrial. However, two applications for stay were made, the second because of the lapse of time between refusal of grant of a stay in the first instance. The relevance here is that there, upon refusing the stay, it was apparent from the Court Record that His Lordship Justice Winters was endeavouring to progress the case with some rapidity.

2.40 Winters, J. refused the stay on 23 March 2007 and called the matter before him next on 30 March 2007, standing it down to 2.15pm ‘for fixture’. He then endeavoured to have the matter proceed on 16 April 2007, a date suitable to both parties and the Court. In the event, the trial did not go ahead on that day and further delays occurred, adding an additional year and some months.

2.41 In that time, two decisions of the Court of Appeal on delay had been handed down, Counsel for the Defence explicitly referring to one of them as constituting a basis for the fresh stay application: Mohammed Riaz Shameem v. The State [2007] FJCA 19; AAU0096.2005 (23 March 2007); Mohammed Sharif Sahim v. The State (Misc. Action No. 17 of 2007, 25 March 2008)

2.42 On the second application in State v. Malakai Tuiloa the stay was refused.[1] The Court returned to the reasons of Winters, J. to ensure that the fresh application was not, effectively, an appeal, and went on to consider what had occurred in the proceedings from the date of Winters, J.’s decision to the date upon which the trial was now scheduled to commence. The Court Record indicated that delays were due to unavailability of Counsel, sometimes for the Defence, sometimes the Prosecution, once the Accused. Then there was a problem with securing a Judge for Winters, J.’s term expired and the available Judges had to recuse themselves for reasons of their offices prior to coming to the bench.

2.43 What does have a resonance with the present case in addition to this additional delay is that amongst the matters raised by the Defence in support of the fresh stay application (and it had been raised in the earlier stay) was prejudice in respect of availability of witnesses. That is the matter Mr Nand raises in the present application.

2.44 In Malakai Tuiloa v. The State, the Court recounted His Lordship’s determination on the question of witnesses, saying:

His Lordship did not accept, on the evidence before him, that the witnesses were unavailable to the defence; nor was he convinced ‘about the critical content of any evidence they may provide’. He found their testimony ‘is not sufficiently critical to demand that these proceedings be stopped’ and he was ‘satisfied that [Mr Tuiloa] will receive a fair trial’ ...

He went on to acknowledge [the] credibility [of the Prosecution’s principal witness] as clearly open to attack – his first publicly saying there was no corruption on in the transaction, then changing his mind; and no w being given State immunity: ‘Any trial judge would take these matters into account when assessing credibility and making evidential findings’: ... at paras [4.10]-[4.12]

2.45 In the fresh stay application, the Court did not consider that the lapse of time supported the grant of a stay by reference to witness availability. One factor was that a positive change had been effected by the delay for a witness previously absent had been found. After recognising this, however, the Court went on to address the question of witnesses overall, saying that the additional period of delay was not such as to alter the assessment made by Winters, J.

2.46 Ultimately, consistent with the Court of Appeal in R. v. Morin [1992] 1 SCR 771; (1992) 71 CCC (3d) 1, the Court stands to be guided by the following assessment:

2.47 Against this backdrop of the established principles, then, I turn first to the delay itself, and then to submissions made by Counsel for Mr Nand and for the State.

Counsel for Mr Nand points out that the period of delay relevant to a stay ‘is to be measured from the laying of the charge’, but that it also ‘must be viewed against the background of pre-charge delay’: Written Submissions, para B)1

3.1 Consistent with this, the chronology as revealed through the Court Record (pp. 5-14)[2] up to commencement of the trial is as follows:

22 December 1997 - 18 October 1999	Alleged commission of offence
19 October 1999	First Police Interview – Detective Cpl Seniloli
7 August 2001	Second Police Interview – Detective Cpl Seniloli
19 August 2002	Mr Nand Charged
19 August 2002	First Appearance Lautoka Magistrates Court Accused present and represented Prosecution present Charge ‘read explained & understood: Yes’ Magistrates court elected; Plea ‘Not guilty’ Prosecution requests mention date Mention date set for 4 October 2002 All disclosures to be served within seven (7) days
4 October 2002	Counsel for Mr Nand asks for hearing date Mr Nand present Prosecution present Hearing set for 13 December 2002
13 December 2002	Prosecution present Counsel for Mr Nand not present Mr Nand present Adjourned to 20 December 2002 for mention
20 December 2002	Prosecution present Counsel for Mr Nand present Mr Nand present Hearing set for 21 April 2003[3]
22 April 2003	Prosecution Present Counsel for Mr Nand Present Mr Nand present Counsel for Mr Nand says ‘it was inadvertently listed for today’ Prosecution – no objection Hearing set for 25 August 2003
25 August 2003	Prosecution present Mr Nand present Counsel for Mr Nand not present Prosecution – ready for hearing Mr Nand – My counsel not here Stood down
25 August 2003	Reconvened Counsel for Mr Nand asks for adjournment – Court has one hearing today am and one at 2pm[4] Hearing set for 24 November 2003 Witnesses warned – four witnesses for Prosecution present
24 November 2003	Prosecution present Counsel for Mr Nand present Mr Nand present Hearing set for 26 April 2006 (No explanation for adjournment)
26 April 2004	Prosecution present Counsel for Mr Nand present Mr Nand present Six witnesses – ready to proceed[5] Prosecution – problems with exhibits; need extra items to be disclosed - need month to find exhibits, serve further disclosures Adjourned to 28 May 2004 for mention
28 May 2004	Prosecution present Cash register rolls – cannot photocopy Stood down
28 May 2004	12.00noon recommence Prosecution present Counsel for Mr Nand present Mr Nand present Counsel for Mr Nand – wants time to inspect Prosecution – any time he can inspect them Adjourned to 11 June 2004 for mention
11 June 2004	Prosecution present Counsel for Mr Nand present Mr Nand present Counsel for Mr Nand – documents not made available Prosecution – Counsel for Mr Nand wants more time Can go any time and inspect documents Counsel for Mr Nand – wants contact person Prosecution – documents to be available for inspection at Lautoka Police Station at 10.00am Wednesday 16 June 2004 Adjourned for mention 2 July 2004
2 July 2004	Prosecution present (Alternative) Counsel present for Mr Nand ‘instructed to take hearing date’ Prosecution – Officer came from Suva with documents; Counsel did not appear at appointed time; Office contacted but could not speak to him. Whole day trial Adjourned to 10 September for hearing
10 September 2004	Prosecution present Counsel for Mr Nand present Mr Nand present Prosecution says important document not in Prosecutions possession – Rolls for machine he has, but summary of what contained in cash register rolls is at head office of company in Ba Counsel for Mr Nand – no objection Court – Very reluctant to grant adjournment as matter listed for hearing 5 times and two years old. ‘If .. not such a serious charge, adjournment would not be granted’. Prosecution wants mention date so documents can be found and served Adjourned to 15 October 2004 for mention
15 October 2004	Prosecution present Counsel for Mr Nand present Mr Nand present Prosecution – Application for another mention date. Case referred to DPP before proceeding Counsel for Mr Nand – no objection Adjourned to 13 December 2004 for mention
13 December 2004	Prosecution present Mr Nand – no appearance: message ‘can't get here till 10.00am’ Stood down to 10.30am
13 December 2004	10.10am Prosecution present Mr Nand present Prosecution – direction to proceed with case. Wants hearing date Mr Nand – doesn’t know why lawyer isn’t here Adjourned to 21 January 2005 for mention to set hearing date
21 January 2005	Prosecution present Mr Nand present Prosecution – for hearing ask stood down
21 January 2005 9.55am	Prosecution present Counsel for Mr Nand present Mr Nand present Counsel for Mr Nand – will take hearing date; will take one day Adjourned to 11 April 2005 for hearing
11 April 2005	Prosecution present Mr Nand present Prosecution – ask stood down Prosecutor gone to hospital – is sick
11 April 2005	9.40am Counsel for Mr Nand present Challenges confessional statement Dt Sgt Seniloli coming from Suva, but sent message saying on sick leave Counsel for Mr Nand – really to proceed
11 April 2005 10.47	Prosecution present Mr Nand present Prosecution – am sick and investigating officer sick. Sick over weekend; cannot stand – would be able to prosecute sitting down if required Counsel challenging record of interview. Two – first admits, second denied. Not aware record of interview challenged. Ask another hearing date, then can investigation allegations for trial within trial and be ready for that as well. Need two months. Wants to know grounds of challenge Stood down for Counsel for Mr Nand
11 April 2005 [No time stated on Court Record]	Counsel for Mr Nand present Threats assault and incarceration if ‘didn’t come clean’ Two records interview – second extension of first Challenge re first – investigating officer and other officers present Mr Nand does not know names Adjourned to 4 July 2005 to set hearing date
4 July 2005	Prosecution present Mr Nand present – says Counsel is ‘still my lawyer’ Prosecution – all served except station diary; extra statements not served and copy station diary. Asks three weeks Adjourned to 25 July 2005 for mention for service of additional disclosures including station diary and all witness statements
25 July 2005	Prosecution present Mr Nand Present Counsel present for Mr Nand Prosecution – not able to get station diary; displaced; police officer transferred to Suva. Ask one month Adjourned to 19 August 2005 for mention to set hearing date
29 August 2005	Prosecution present Mr Nand present – My lawyer is in Ba. Clerk in Court with dates Prosecution – statement recorded. Can’t locate diary. Will serve on accused now. Whole day trial. Adjourned to 15 November 2005 for hearing
15 November 2005	Prosecution present Mr Nand present Prosecution – for hearing ‘I have most of my witnesses except for two but ready to proceed as long as can have adjournment for final two’
15 November 2005 9.20am	Mr Nand – ‘my lawyer told me yesterday he will be here today’
15 November 2005 10.00am	Counsel for Mr Nand ‘Just receive file from prior solicitors this am and appear in my own right. Have hearing in Nadi today. Could proceed today but the disclosures from previous solicitor are illegible and could not prepare for hearing last night.’ Court: previous solicitors made no application to withdraw. Counsel for Mr Nand – withdrew at 4pm yesterday, gave me file. Is in High Court at Lautoka today. I can still proceed but need to do matter in Nadi Magistrate’s Court and can be back at 11.30am Mr Nand – saw original counsel at 2.30pm yesterday. Did not tell me he would not be representing me today. I believed he would be here today. Court ‘quite unacceptable behaviour’ Stood down
15 November 2005 2.10pm	Hearing commences

4.1 That the authorities state there needs to be leeway given for investigation – and this after all is commonsense – must be taken into account. The offence with which Mr Nand is charged would not come within the boundaries of ‘complex fraud’ or ‘commercial complexity’ envisaged in UJL, GMR and AKP v. United Kingdom (2001) 33 EHRR 225. At the same time, the offence involved money and documentation, including cash register tapes, along with the need for investigation of the system utilised by New World applying to liquor sales, the role and responsibility of cashiers, the system vis-à-vis keys and access to them, and the way the accounting system worked, together with product control, and interviews of relevant personnel. All this is apparent from the Court Record in the lead-up to the trial and in the course of the trial itself.

4.2 Once Mr Nand was charged, the matter was called into the Magistrates Court immediately – on the same day as the charge was laid, namely 19 August 2002.

4.3 Nonetheless, a delay in investigation and charge from 19 December 1999 when it appears the matter was first drawn to the attention of Police, to the date of charge and first Magistrates Court appearance is almost three years. This does not seem to be explicable by reference to complexity of the alleged offence or those other matters of systems investigation, etc. It would thus qualify as ‘unreasonable’.

4.4 As the authorities indicate, however, this would not mean a permanent stay is warranted – at least in the context of the initial trial. At the same time, it must be borne in mind that this is a case of retrial. Having said that the pre-charge delay in this case can be classed ‘unreasonable’, it must be considered together with all matters said to be ‘delay’ in the context of the retrial – including any delays prior to commencement of the trial hearing.

4.5 The Court Record shows delays in the lead up to the trial hearing were a consequence of the conduct of the Prosecution – for example, in relation to the inability to produce the Station Diary, problems with production of documentary evidence, and the referral to the DPP after the matter had been before the Magistrates Court for some time: albeit in respect of the latter, there was an explicit statement of ‘no objection’ by Counsel for Mr Nand, signifying waiver: Court Record, p. 10

4.6 At the same time, the Court Record also shows delays caused by the conduct of the Defence – for example, failure to appear, appearing late, failure to inspect documents at a date and time set by an effective undertaking made by the Prosecution to the Court as to date and time for that inspection. It could be said that the delays caused by the Defence were just as great or even more so than those caused by the Prosecution. In addition, there was no objection by the Defence to delays caused by the Prosecution and at least twice there was an explicit ‘no objection’ stated by Counsel for the Defence in relation to matters that gave rise to delay, including referral to the DPP and need to obtain a summary of the cash register rolls from the head office of New World in Ba: Court Record, pp. 9-10 Both explicit statements of ‘no objection’ and silent acquiescence to delay constitute waiver.

4.7 On the occasion there was some delay through illness on the part of the Prosecution, there was an appearance and the Prosecutor was prepared to commence the trial so long as he were able to be seated: 11 April 2005 On the other hand, on more than one occasion Mr Nand had to advise the Court that he ‘did not know why his lawyer is not here’ or words to that effect: 13 December 2004, 15 November 2005, 17 February 2006[7]

4.8 On 11 April 2005 when the Prosecution advised the Court of his illness and need to conduct the trial from a seated position, Defence Counsel for the first time raised a challenge as to the records of interview – in the first of which Mr Nand admitted the offence and the second of which he denied it. Defence Counsel on that day asked for a two month adjournment to ‘investigate allegations for trial within trial and be ready for that as well’. The Prosecution ‘wanted to know the grounds of challenge’ – understandable in the circumstances.

4.9 This meant that from August/October 2002 to 11 April 2005 (some two and a half years) the matter had been proceeding without the Defence raising the matter of voir dire and records of interview. That the trial did not then go ahead was not due to the Prosecution.

4.10 Then on 4 July 2005 when the matter came on again for mention to set a hearing date, the Prosecution was present, as was Mr Nand, but his Counsel was absent – Mr Nand is recorded as saying Counsel is ‘still my lawyer’: Court Record, p. 12 On that date, the Prosecution remained remiss in still not having provided a copy of the Station diary, albeit ‘all served except’ it and ‘extra statements’. The Prosecution is recorded as asking for three weeks. In the absence of Counsel for Mr Nand, there is no further information as to any request for a voir dire and the matter is adjourned for another mention. This then indicates some fault on both sides, for it was intended that this mention date (4 July 2005) be to set a hearing date. That proved impossible.

4.11 On the next occasion, the fault lies entirely with the Prosecution. Mr Nand and his Counsel are present as is the Prosecution; the problem lies in the still absent Station diary and other documents. At the same time, it cannot go unremarked that again there is no reference to the voir dire.

4.12 As for the setting of the trial date, going right back to 4 October 2002, less than two months after Mr Nand first appeared in the Magistrates Court, Counsel for Mr Nand asked for a hearing date. The hearing was set for 13 December 2002. On that date, Counsel for Mr Nand was not present albeit Mr Nand was, together with the Prosecution. The Court adjourned the matter to 20 December 2002 for mention. On 20 December 2002, all were present and the hearing was set for 21 April 2003 – this could be said to be a failure on the part of the system for which the state must take responsibility. Yet it was the absence of Mr Nand’s Counsel on the original hearing date that led to this hiatus – from December 2002 to April 2003. Inexplicably, on the date set for hearing – 21 April 2003 – the matter was apparently ‘inadvertently listed’ not for that day but for the following day. Had the Defence wished the trial to go ahead with expedition, then Defence Counsel may on 21 April 2003 have asked the Court to list the matter before the Magistrate as it had been intended. It is surprising in the circumstances of the trial’s having been listed for hearing that nothing of this nature appears to have occurred. In any event, on 22 April 2003 there is no suggestion that the trial should go ahead – and the next available date is 25 August 2003.

4.13 Without going through all the appearance dates which speak for themselves in any event, but taking into account the authorities, because of the conduct of the Defence and its role in delays, with no sign of object to any delay whether by the Prosecution or the Court, and where there is not inconsiderable delay on its part vis-à-vis the voir dire suggestion and its apparent falling by the wayside, Mr Nand would have some difficulty in asserting that the delay in the lead-up to the trial was ‘unreasonable’.

4.14 As he is, however, now on (re)trial in mid-2006 in respect of offences dating back almost ten years, with his first and second interviews dating back some seven and five years respectively, the ‘unreasonableness’ of delay overall needs to be considered in the total context. That is, taking these matters into account together with the further delays set out below – in the course of the trial, in respect of any delay in hearing the appeal, and in respect of any delay after the appeal was determined and progress then in the Magistrates Court subsequent to the retrial determination.

The chronology indicates delay in the course of the trial, by reference to the Court Record (pp. 14-29)

15 November 2005	Prosecution present Mr Nand present Prosecution – for hearing ‘I have most of my witnesses except for two but ready to proceed as long as can have adjournment for final two’
15 November 2005 9.20am	Mr Nand – ‘my lawyer told me yesterday he will be here today’
15 November 2005 10.00am	Counsel for Mr Nand ‘Just receive file from prior solicitors this am and appear in my own right. Have hearing in Nadi today. Could proceed today but the disclosures from previous solicitor are illegible and could not prepare for hearing last night. Court: previous solicitors made no application to withdraw. Counsel for Mr Nand – withdrew at 4pm yesterday, gave me file. Is in High Court at Lautoka today. I can still proceed but need to do matter in Nadi Magistrate’s Court and can be back at 11.30am Mr Nand – saw original counsel at 2.30pm yesterday. Did not tell me he would not be representing me today. I believed he would be here today. Court ‘quite unacceptable behaviour’ Stood down
15 November 2005 2.10pm	Hearing commences PW1 – Dhurup Kumar Patel, Manager at New World Supermarket Evidence in Chief, Cross-Examination & Re-examination – Court Record, pp. 14-19
15 November 2005	Prosecution says 3 civilian and 1 police officer witnesses remaining Defence Counsel says ‘May call 1 witness Court: Adjourn to 24/1/2006 for continued hearing Bail to continue Note accused’s counsel to inspect documents and advise if amount agreed or any other issues Two witnesses present (1 civilian, 1 police officer) warned
24 January 2006	Trial recommences Prosecution present Mr Nand Present Counsel for Mr Nand Present Counsel for Mr Nand: This was H. Shah’s brief. He gave to me. Nadi date – fixed for today. Ready for hearing. Need to go to Nadi first. Talked to prosecution yesterday. Prosecution: Call witnesses Rup Narayan Singh – no appearance Witness was warned – ask bench warrant Roselyn Singh – I took 2/3 hours off work to come this morning. Sgt Seniloli – present. Counsel for Mr Nand: I need to go to civil case in Nadi. Court: Roselyn Singh – witness waited whole day last time because you were in Nadi. Not fair to make her wait again. Suggest take her evidence and then have adjournment to this afternoon for police witness. Will stand down so you can ring Nadi. Counsel for Mr Nand: It’s okay. I’ll take the witness now. PW2 – Roselyn Nitu Singh worked at New World Supermarket Lautoka as Head Cashier Evidence in Chief, Cross-examination, Re-Examination (nil) – Court Record, pp. 28-22 Prosecution: I can call police officer on next occasion, if that suits counsel
24 January 2006 9.55am	Court: Bench warrant for witness Rup Narayan Singh. Adjourned to 17/2/06 for mention. Bail to continue. Counsel to inspect documents and advise if amount agreed or any other issues.
17 February 2006	Prosecution present Mr Nand present
17 February 2006 9.15am	Stood down for Mr Nand’s lawyer
17 February 2006 10.30am	Mr Nand: I called my lawyer and he is in Suva PW3 Rup Narayan Singh, Head of Audit Department for New World Evidence in Chief, Cross-examination, Re-Examination (Nil) – Court Record, pp. 22-25 PW4 Et Sgt Seniloli – interviewed Mr Nand Evidence in Chief, Cross-examination (Nil), Re-examination (Nil) – Court Record, pp. 25-27 During this evidence, re first interview/record states that Mr Nand ‘gave interview voluntarily of own free will’ Mr Nand says: This is my interview. No objection to it going into evidence. Also during this evidence, re second interview/record – ‘under caution at police post in English. No threat, promise or inducement held out to accused to give answers. Accused gave answers of own free will .. Prosecution: He denies everything. Is it necessary to read it all? Mr Nand: I wish whole record of interview to be read. Witness reads whole record of interview. Prosecution: Seek to tender. Accused: My record interview. No objection. Evidence in Chief, Cross-examination (Nil, Re-examination (Nil) – Court Record, pp. 25-27 Case for Prosecution Court: Case to answer. Accused given choices and nominates wish to remain silence. Says no other evidence or witnesses. Accused makes statement after Prosecution makes submissions. Court: 1. Adjourned to 6/3/06 Judgment. 2. Bail to continue.
6 March 2006	Prosecution present Mr Nand present Counsel for Mr Nand present, asks stand down for mitigation after judgment delivered
6 March 2006 10.40am	Mitigation from Counsel for Mr Nand Mr Nand’s Mother gives evidence Stood down for sentence Sentence delivered – Court record, p. 28

Taken in totality, it would be extremely difficult to assert that the delays in the trial were due to much more than the conduct of the Defence. The adjournment after a half-day trial on 15 November 2005 to 24 January 2006 is lamentable. This lengthy adjournment appears to be attributable to the Court’s calendar, and so was in that regard not within the control of the Defence (or Prosecution). That is a matter that redounds against the state and ‘for’ Mr Nand.

6.1 However, this is not the whole answer. The Court Record shows the Prosecution’s saying that an adjournment would be requested ‘for the final two’ witnesses. However, that the trial began more than half way through the first day was due to the Defence – the sudden change of Counsel (out of Mr Nand’s control for the Court Record shows he had understood his Counsel was to appear and had not from what he said known of any change of Counsel) brought about the delay.

6.2 Mr Nand’s new Counsel had a hearing in Nadi – which was accommodated by the Court presumably so that Mr Nand could be represented in his trial. Albeit stating he ‘could proceed today’ Mr Nand’s Counsel says he is unprepared and in any event had the matter to attend to in Nadi: ‘I can still proceed but need to do matter in Nadi Magistrate’s Court and can be back at 11.30am.’ After saying it is ‘quite unacceptable behaviour’ the Court stands the matter down to 2.10pm when the trial commences.

6.3 Notably the Court suggests at the end of the half-day’s hearing that the time of the adjournment should be used by Mr Nand’s Counsel ‘to inspect documents and advise if amount agreed or any other issues’. At the end of the day’s hearing on 24 January 2006 the Court continues to make this request: ‘Counsel to inspect documents and advise if amount agreed or any other issues.’

6.4 Albeit Mr Nand’s Counsel who appeared at the hearing on 19 November 2006 was present on that day (19 November 2006) and knew of the adjourned date, on 24 January 2006 he again laments that the brief came to him from another Counsel and states he has a ‘Nadi date – fixed for today’. He then says: ‘Ready for hearing. Need to go to Nadi first. Talked to prosecution yesterday.’

6.5 It can be little wonder that the Court required the matter to proceed. Nonetheless, after indications from the Prosecution that various witnesses were present, Counsel for Mr Nand repeats: ‘I need to go to civil case in Nadi.’

6.6 The Court proceeds with a witness who ‘waited whole day last time because you were in Nadi. Not fair to make her wait again. Suggest take her evidence and then have adjournment to this afternoon for police witness. Will stand down so you can ring Nadi.’ ‘I’ll take the witness now,’ is the response.

6.7 When, at the conclusion of that witness’ evidence, the Prosecution is ready to call the police officer, what suits Counsel takes precedence: Court Record, p. 18 It may be asked why the Magistrate did not simply require the case to continue, albeit standing the matter down so that Counsel for Mr Nand could make arrangements for another member of Counsel to appear in the civil matter in Nadi (which ought to have been done in any event way before the trial resumed). However, even if it is said that this delay is the state’s responsibility for the Court should have continued with the trial, that Counsel for the Defence ‘acquiesced’ in this constitutes waiver. Hence, this cannot be classed as ‘unreasonable delay’.

6.8 At the adjournment date of 17 February 2006 the trial is stood down awaiting appearance of Mr Nand’s Counsel, to recommenced with Mr Nand advising: ‘I called my lawyer and he is in Suva.’ The trial then goes ahead in absence of Mr Nand’s Counsel – and it is this that leads to the retrial. Notably, Mr Nand’s original Counsel had, as recorded, raised the matter of a voir dire vis-à-vis the first record of interview. As also recorded, this then ‘went nowhere’. Mr Nand does not appear to have been well-served.

6.9 On the day of delivery of judgment and sentence, Mr Nand was represented. However, as indicated, it is hardly likely that a Court would say that the delay in the trial could be attributed fairly to other than the conduct of the defence which also, as noted, is what led to the retrial.

6.10 A the same time, this overall must be taken into account in the context of the circumstance now present, namely that this is a retrial. What the Court must look to here, is the impact of the whole of the matters occurring, including the delay in the trial, to determine whether:

The chronology of the retrial appears from the Court Record (pp. 25-34) is as follows:

6 March 2006	Judgment and sentence
22 March 2006	Mr Nand’s Appeal Petition filed
25 April 2006	Hearing of High Court appeal (Lautoka)
3 May 2006	Judgment delivered in High Court appeal
8 May 2006	Magistrates Court (Lautoka) Prosecution present Mr Nand present Counsel for Mr Nand present Prosecution says file is with Director CID and not with Prosecution Adjourned to 13 June 2006 for mention only.
13 June 2006	Prosecution present Mr Nand present Prosecution – have ‘not located our file. It’s in Suva at the police headquarters’. Adjourned to 10 July 2006 for mention only.
10 July 2006 [Nothing in Court Record to indicate whether anything occurred on this date or why it was vacated]
28 August 2006	Prosecution present Mr Nand present Mr Nand’s Counsel present Prosecution and Defence – ‘Ready to take a Hearing date’ Adjourned to 18 September 2006 for mention ‘to get a Hearing in Court 1’.
18 September 2006	Prosecution present Mr Nand present Counsel for Mr Nand present Adjourned to 13 October 2006 for mention only
13 October 2006	Prosecution present Mr Nand present Counsel for Mr Nand present Adjourned to 11 December 2006 for mention only
[11 December 2006 – matter not called on: no reference in Court Book, however see reference in 12 December 2006 entry]
12 December 2006	Prosecution present Mr Nand not present Mr Nand’s Counsel present Court says ‘File not called on 11/12/06’ – the date set for mention Counsel for Mr Nand says he will ‘inform the accused of the next date’ Adjourned to 17 January 2007 for mention only
17 January 2001	Prosecution present Mr Nand present Counsel for Mr Nand present Counsel for Mr Nand says: ‘I did not appear in the first trial. Seek full disclosures.’ Prosecution seeks three weeks for supply of full disclosures Adjourned to 16 February 2007 or mention only
16 February 2007	Prosecution present Mr Nand present Counsel for Mt Nand present Prosecution says ‘will be serving disclosures today’ Adjourned to 12 March 2007 for mention only
12 March 2007	Prosecution present Mr Nand present Counsel for Mr Nand present Counsel for Mr Nand says ‘we have been served with all the disclosures’. Says: ‘Trial within a trial. We have grounds of challenge to the prosecution’. Prosecution says it seeks a mention only date Adjourned to 15 May 2007 for mention only
15 May 2007	Prosecution present Mr Nand present Counsel for Mr Nand present Prosecution says seeking a mention only date. There will be a trial within a trial. There will be recording of statements of the witnesses. Adjourned to 25 July 2007 for mention only
25 July 2007	Prosecution present Mr Nand present Counsel for Mr Nand present Prosecution says: ‘Have not recorded the statements of all witnesses for trial within a trial.’ Adjourned to 14 August 2007 for mention only
14 August 2007	Prosecution present Mr Nand present Counsel for Mr Nand present Prosecution says: ‘Search is still on for station diary and cell book. Witnesses statements will also be disclosed to the defence. Two statements are disclosed today and a diary entry. Adjourned for three weeks for mention only. 7 September 2007 for further disclosures.
7 September 2007	Prosecution present Mr Nand present Mr Nand’s Counsel present Prosecution says ‘seek mention only date as still obtaining witnesses statements and station dairies’ Adjourned to 11 October 2007 for mention only
11 October 2007	Prosecution Present Mr Nand present Prosecution says: ‘Station diary has been located. Statements yet to be taken for trial within a trial.’ Adjourned to 1 November 2007 for mention only
1 November 2007	Prosecution present Mr Nand present Counsel for Mr Nand present Adjourned to 27 November 2007 for mention only
27 November 2007	Prosecution present Mr Nand present Counsel for Mr Nand present Prosecution says: ‘We don’t have station diary’ Adjourned to 15 January 2008 for mention only
15 January 2008	Prosecution present Mr Nand not present Counsel for Mr Nand present Matter adjourned to 24 January 2008 for mention only
24 January 2008	Prosecution present Mr Nand present Counsel for Mr Nand present Counsel for Mr Nand says: ‘Will apply for application for stay to High Court’ Adjourned to 6 March 2008 for mention only
6 March 2008	Prosecution present Mr Nand present Counsel for Mr Nand present Counsel says: Filed stay application in Lautoka High Court and coming up for hearing on 27 March 2008 Adjourned to 22 April 2008 for mention only
22 April 2008	Prosecution present Mr Nand present Counsel for Mr Nand present Counsel for Mr Nand says: ‘Application for stay is for 26 June 2008 (hearing) in Lautoka High Court.’ Adjourned to 26 June for mention only
26 June 2008	Prosecution present Mr Nand present Counsel for Mr Nand present Counsel for Mr Nand: Application for stay made in Lautoka High Court due for Hearing on 31 July 2007. Seek adjournment Adjourned to 22 August 2008 for mention only.

The delay in having the trial commence, particularly as this is a retrial, is extraordinary – from first mention on 8 May 2006 through to 24 January 2008 when the matter of an application for a stay is first raised. The delays commence with the Prosecution’s statement that the file is with the Director CID, not the Prosecution. Then at the next appearance the file has still not been located. Another adjournment for mention.

8.1 On 28 August 2006 both Prosecution and Defence are ‘ready to take a hearing date’. It may have been prudent at this stage for the Court to fix a date by reference to ‘Court 1’ – that is, to stand the matter down so that on that day the parties could be advised of the hearing date, with strictures that the hearing must go ahead on that day. This was not done – merely a ‘mention date’ set ‘to get a Hearing in Court 1’.

8.2 From thence forward, there is no reference to Court 1, or a hearing date. Rather, there are ‘mention only’ dates and another instance where a date is set – 11 December 2006 – but the matter is not called on that day, but the next, with no explanation or reason stated in the Court Record.

8.3 Whilst it is clear that the delays are in vast bulk due to the Prosecution – absence of file, the whereabouts of the station book unknown, delays in provision of various statements, three weeks sought for supply of full disclosures – the Defence does not raise objection to delays and, as noted, the first reference is made when the Court is advised that an application will be made to the High Court in that regard.

8.4 Albeit the first mention is, as noted, 8 May 2006 it is not until 17 January 2001 that there is reference to the seeking of full disclosures by the Defence. It is not until 12 March 2007 that the matter of a trial within a trial is raised – albeit this is the very reason for the appeal’s having been successful and the retrial’s having been granted.

8.5 In assessing delay in the retrial, therefore, albeit as noted it seems extraordinary, this needs to be seen by reference to the authorities. Referring back:

8.6 As I have said, the length of the delay appears extraordinary. Once a retrial was ordered, the Court should have been primed to progress it as expeditiously as possible. The parties should have been ‘at the ready’ to proceed. The Prosecution’s failure to have its documentation – file, station diary, disclosures – immediately available or at least available upon the second mention date was lamentable. At the same time, as observed the Defence could be taking as waiving the speedy trial requirement in not objecting to the delay nor agitating for an early hearing date, and in respect of the delayed approach to the voir dire aspect.

8.7 That the matter, first before the Court for retrial on 8 May 2006 should still be proceeding late in 2008 can be seen as almost inevitably prejudicial to the accused person. Does this mean, however, that a permanent stay is the answer?

Before making a final determination, it is as well to take into account the delay in hearing the application for the stay.

9.1 The Notice of Motion was filed on 26 February 2008, together with the Affidavit in Support.

9.2 The application first came before me on Friday 29 February 2008 and was adjourned to 2.15pm Thursday 27 March 2008 with the following Orders:

9.3 In the event, at the request of the parties the matter came before me on Wednesday 26 March 2008. The Orders of 29 February 2008 had not been complied with, so that the hearing could not go ahead on 27 March 2005. This was the reason for its being called on the day prior. The following Orders were made:

9.4 On that day, I drew to the attention of Counsel the Court of Appeal judgment in Mohammed Sharif Sahim v. The State (Misc. Action No. 17 of 2007, 25 March 2008), providing them with details but not a copy of the judgment as I was not in possession of a sealed copy. On that day I raised explicitly the issue of prejudice as being a necessary component and made reference to the matter of witnesses as a possible basis of prejudice but that it was insufficient simply to assert prejudice.

9.5 On 26 May 2008 the parties were not prepared for the hearing. Counsel for the Defence was advised that a trial in which he was engaged before another Judge was in progress.

9.7 On 23 June 2008 the matter was called on (with advice in advance to the parties) due to the Court’s inability to sit on 27 June 2008. However, at the same time the Orders of 26 March 2008 had still not been complied with. Hence, a hearing on 27 June 2007 would, if proceeded with, have had to proceed in the absence of compliance with those Orders.

9.9 In the event, no Affidavit was filed by the Respondent. Written Submissions were filed by Counsel for the Defence on 30 July 2008.Tose for the Respondent were filed on 28 July 2008. The matter was heard on the listed date of 31 July 2008.

9.10 As noted at the outset of this judgment, the Magistrates Court file was requested in writing on two occasions in August with follow up telephone calls made by the High Court Registry.

9.11 Reasons for the delay up to 31 July 2008 lie with the parties, insofar as the production of material as ordered, the responsibility appears equal. Insofar as the vacating of the 26 May 2008 date, neither party had its material filed and Defence Counsel was jammed in an ongoing trial.

When a retrial is ordered, it is inevitable that it will take place further distant from the date of the alleged offence, the investigation and the date of the charge. If this were to constitute a basis for a stay, no retrial would ever go ahead: all would be subject to permanent stay.

11.1 It cannot be that in the instance of a retrial that one simply takes the date of the charge, or the date of the alleged offences, then measures the period of delay by reference to those or either, and upon the assessment that (as here):

then makes a case that the length of time is inevitably unreasonable, inevitably prejudices the accused person and inevitably warrants a permanent stay.

11.2 Nor can it be said that one simply takes the date from first appearance in respect of the retrial:

with the contention that that period alone is relevant to the application for a stay and, being relatively short, means that a permanent stay is not warranted.

11.3 To do the former would be to ignore the realities of ‘delay’ as an inevitable consequence of an order for a retrial. To do the latter would be to ignore the effect of time and delay upon the possibility of witnesses and the vagaries of memory, to which an accused is entitled to have taken into account.

11.4 In the present case, the appeal was heard promptly and the judgment handed down promptly. There should have been no cause for delay in proceeding with the retrial. It is egregious that the retrial has taken so long and has been such a longdrawn out process. As I have said, however, albeit mainly due to the Prosecution the Defence does not stand immune from a responsibility for the delay and, additionally, according to the Court Record has acquiesced in it.

11.5 In relation to prejudice, insofar as witnesses are concerned, Mr Nand says:

.. the matter is now approximately eight (8) years since I was first interviewed and almost two (2) since I filed my Appeal. Most of the witnesses would by now have forgotten or have not given fair evidence, and as such, I will not get a fair trial. My witnesses cannot be located in order to present and prepare my Defence to the charges against myself.

That since I was released on appeal, I tried to locate my witnesses whom I was unable to locate during my trial in Magistrates Court who were my colleagues working with me a the New World Supermarket due to which I could not prove my innocence. I still could not locate my witnesses and this will cause prejudice to my case as I will not be able to prepare and present my Defence and hence I would be denied a fair trial due to the delay: Affidavit in Support, paras 12, 13

11.6 Always bearing in mind the Court of Appeal’s strictures in Shameem v. State [2007] FJCA 19; AAU0096.2005 (23 March 2007) as to the inability of the Court in the absence of information to dismiss a contention that witnesses are vital and that the inability to locate them is fatal to or crucial in the accused’s case, it seems to me that this can be responded to on a number of planes.

11.7 First, Mr Nand was represented through the preparation for his initial trial, apart from the last day (which gave rise to the successful appeal). As earlier noted, there was a reference by his Counsel on one occasion to the intention ‘may be to call one witness’. That of course can confirm Mr Nand’s plea that he could not locate his witnesses then, and cannot now – apart from (then) the one witness who may have been called but in the event was not – possibly due to Counsel’s absence in Suva on that last day.

11.8 Secondly, the Respondent submits that this along with the other matters raised by Mr Nand as supporting his application for a permanent stay can be ‘dealt with during the criminal trial’: Written Submissions, para 5.20 For Mr Nand, it is said that this does not follow.

11.9 Thirdly, what of the proposition that witness memories will be affected by the delay? This of course may be more likely to affect the Prosecution’s case, for the Prosecution is reliant upon witnesses who will be subjected to cross-examination in any trial and memory can be utilised as a factor militating against the accuracy of their evidence.

11.10 On the other hand, this is a case which is reliant to a substantial degree on documentary evidence. The references to cash register slips and associated documentation throughout the mentions and in the trial evidence makes this clear. For example, Mr Patel’s evidence (in chief, cross-examination and re-examination) is replete with references to documentation or associated materials, including:

11.12 Similarly with the evidence of Roselyn Nitu Singh, in her evidence as to systems and summaries – systems and summaries are subject to documentation and hence not reliant, or substantially reliant, upon the vagaries of memory: Court Record, pp. 20-22

11.13 It may be said that as documentary evidence is a substantial part of the Prosecution’s case, this even more disadvantages Mr Nand in his being unable to locate his witnesses. On the other hand, it assists in the running of a fair trial for Mr Nand in that it remains open to him to challenge the witnesses interpretation of the documentary evidence, upon the basis of delay and hence lapsed memory.

11.14 Fifthly, is the material provided by Mr Nand sufficient to indicate at least to some relevant degree the impact the absence of witnesses will have on his defence? He has provided information, but is it persuasive that the absence of the witnesses will mean an unfair trial, and is it relevant that if he were unable to locate them during his first trial, can ‘delay’ be put forward as a basis upon which he now cannot locate them, so requiring the Court to grant a permanent stay?
This does not appear to me to follow.

11.15 It must also be borne in mind that Mr Nand has suffered in respect of having the charge ‘hanging over his head’ for the whole of the period since he was charged. As was said in Seru v. State [2003] FJCA 26; AAU0041.99S & AAU0042.99S (30 May 2003):

... to have ... charges hanging over one’s head for more than 4 years, with the ultimate spectre of a possible prison sentence, is in itself prejudicial ... As Lamer J. said in Morin (at 33) there may be stigmatization of the accused; loss of privacy; and stress and anxiety from a multitude of factors, including possible disruption of family, social life and work, legal costs, and uncertainty as to the outcome and sanction: at 6-7

11.15 Taking all the facts and circumstances into account, then, and bearing in mind not only the delay in the retrial proceedings but the foundation of delay upon which the Applicant also relies, and notwithstanding the participation of the Defence in the delays, if it is accepted that the delay is unreasonable, then one must look at the alternatives: Mohammed Sharif Sahim v. The State (Misc. Action No. 17 of 2007, 25 March 2008)

11.16 As was said in Attorney-General’s Reference (No. 2 of 2001) [2003] UKHL 68:

The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing, or (b) it would otherwise be unfair to try the defendant. The public interest in this final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and appropriate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing: at para [24], per Lord Bingham

11.17 In Mohammed Sharif Sahim v. The State (Misc. Action No. 17 of 2007, 25 March 2008 the Court of Appeal said the High Court did not err in finding the delay in that case was unreasonable, balancing all relevant factors, including the absence of specific prejudice:

Further, in then deciding which remedy was best-suited to the breach, he chose to make orders to expedite trial. In coming to this conclusion, he was entitled to take into account the gravity of the case, the nature of the charges, the fact that all parties contributed to the delay and the absence of proof that a fair trial was not possible. He did not err in his approach ...: at para [31]

11.18 The Respondent has said that a voir dire was held and the outcome is awaited: Written Submissions, 5.19 On that basis, the Respondent contends that the current application is ‘fragmenting’ the trial process. I am unable to find in the Court Record an indication that a voir dire has been held. This has not played a part in my determination as to the application for a stay.

11.19 So long as Constitutional redress remains open to accused persons, they are entitled to make application for Constitutional redress, so long as this does not constitute an abuse of process.

11.20 In the present case I am not persuaded that a fair trial is not possible. Nor am I persuaded that it would otherwise be unfair to try Mr Nand. Mr Nand is entitled to a fair trial, and to raise all those matters he has raised in this application in the course of it. In that circumstance, it is not appropriate to stay the proceedings. The public interest in this final determination of criminal charges requires that a charge should not be stayed, because the alternative of the retrial’s proceeding with expedition is just and appropriate in all the circumstances.

11.21 Consistent with the Court of Appeal’s direction in Sahim’s case, therefore, the Orders herein are made to ensure expedition of Mr Nand’s retrial.

In the present case, the Respondent did not file an Affidavit albeit provided with the opportunity to do so consistent with Orders made by this Court. In Nalawa v. State – Leave to Appeal [2008] FJCA 15; AAU0031.2007 (25 April 2008), it was said:[8]

As a final matter, in Mungroo v. The Queen [1991] 1 WLR 1351, involving a claim of undue or unreasonable delay under section 10(1) of the Mauritius Constitution, the English Privy Council said that in ‘any future case in which excessive delay is alleged, the prosecution should place before the court an affidavit which sets out the history of the case and the reasons (if any) for the relevant periods of delay’: at 1355, para [E]

In R. v. Haig [1996] 1 NZLR 184 such an affidavit was filed by the Registrar of the Invercargill Court, the court wherein delay was said to have occurred. In considering the matters in the affidavit, the High Court said it was satisfied ‘there was no action on the part of the Crown, justified or otherwise, that caused any delay. Any delays that have been caused in this particular case have been occasioned by problems with Court resources’: at 193: Nalawa v. State – Leave to Appeal [2008] FJCA 15; AAU0031.2007 (25 April 2008): at paras [22], [23]

12.1 In future applications for a permanent stay, it may be prudent for an Affidavit to be provided consistent with the Aotearoa/New Zealand position. This will provide the court considering the application with information which may assist particularly in taking into account and assessing systemic delay.

^[1] It should be made clear that this refusal was a decision made by this Court.
^[2] The chronology covering the running of the trial (Court Record, pp. 14-29) is set out in a subsequent paragraph. Similarly, following the High Court’s determination that Mr Nand should have a retrial (Court Record, pp. 29-34), the retrial chronology is set out separately.
^[3] This is the date set according to the Court Record, p. 6. Again according to the Court Record, the next appearance occurred on 22 April 2003: Court Record, p. 6 Mr Nand’s Counsel’s statement as to ‘inadvertent listing’ is the only explanation for the different dates: Court Record, p. 6
^[4] This is a direct account of what is said in the Court Record. It appears that Counsel for Mr Nand (as the party requesting the adjournment) was the party with ‘one hearing today am and one at 2pm’. However, the Court Record is ambiguous in its stating ‘court [sic] has one hearing today am and one at 2pm’. Hence, I have not interpreted this adjournment as having been the responsibility of the Defence.
^[5] This statement as to ‘six witnesses’ and ‘ready to proceed’ appears to attach to the Prosecution in that the Defence at no stage in the trial or the lead-up proceedings indicates anything beyond the possibility of one witness (‘may call one witness’: Court Record, p. 19). However, it is the Prosecution asking for extra time vis-à-vis exhibits and needing to locate them. Hence, I have interpreted this appearance favourably to Mr Nand in considering the Defence as ready to proceed and the Prosecution being unready for trial.
^[6] See Written Submissions, para B), citing The Queen v. Chiu Te Ken (1993) 2 HKCLR 21
^[7] On one occasion, Mr Nand’s ‘lawyer is in Ba’ but a Clerk was sent for the setting of a hearing date – a practice which may be considered not to be unacceptable as the listed date was ‘for mention’ for the setting of a hearing date – although it may be said that this means the Court is put in a position of being ‘required’ to accede to the dates available in Counsel’s calendar which is or could be an impediment to speed in the trial and hence can be taken into account as a potential delay caused on the part of the Defence.
^[8] Judgment of Scutt, JA.

High Court of Fiji

In re Application by Abhinish Kumar Nand [2008] FJHC 191; HBM015.2008 (3 September 2008)