Nacagi v State [2009] FJHC 171; HAM023.2009 (21 August 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 23 of 2009

BETWEEN:

JONACANI NACAGI
Applicant

AND:

THE STATE
Respondent

Date of Hearing: 14th July 2009
Date of Ruling: 21st August 2009

Counsel: Mr. A. Vakaloloma for Applicant
Mr. J. Singh for State

RULING

Introduction

[1] Jonacani Nacagi (the applicant) applies for a stay of the criminal proceedings against him in the Magistrates’ Court. The application is made pursuant to the inherent and supervisory jurisdiction of the High Court.

Proceedings in the Magistrates’ Court

[2] On 15 April 2004, the applicant, who was serving a sentence of seven years imprisonment, escaped from prison. While at large, he went on a rampage and committed a number of offences within a short span of time:

Case No. 1237/04

Robbery with Violence

Case No. 1283/04

House Breaking Entering and Larceny

Case No. 1284/04

Robbery with Violence

Case No. 1285/04

Shop Breaking Entering and Larceny

Case No. 1286/04

Count 1 – Workshop Breaking Entering and Larceny

Count 2 – Damaging Property

Count 3 – Larceny

Case No. 1287/04

Larceny

Case No. 1288/04

Robbery with Violence

Case No. 1289/04

Count 1 - Escaping from Lawful Custody

Count 2 – Resisting Arrest

Case No. 1291/04

Shop Breaking Entering and Larceny

Case No. 1292/04

Count 1 – House Breaking Entering and Larceny

Count 2 – Larceny

Count 3 – Unlawful Use of Motor Vehicle

Case No. 1293/04

Restaurant Breaking Entering and Larceny

Case No. 1294/04

Count 1 – Burglary

Count 2 – Larceny in Dwelling House

Count 3 – Unlawful Use of Motor Vehicle

Count 4 – Driving a Motor Vehicle Without a Driving Licence

Count 5 – Driving Motor Vehicle in Contravention with Third Party Policy Risk

Case No. 1295/04

Count 1 – Damaging Property

Count 2 – Larceny

Case No. 1298/04

Count 1 – Robbery with Violence

Count 2 – Unlawful Use of Motor Vehicle

Count 3 – Larceny

Count 4 – Driving Motor Vehicle

Count 5 – Driving Motor Vehicle in Contravention with Third Party Policy Risk

Case No. 3054/04

Count 1 – Unlawful Use of Motor Vehicle

Count 2 – Larceny

Case No. 3054/04

Unlawful Use of Motor Vehicle

Case No. 3055/04

Unlawful Use of Motor vehicle

Case No. 3056/04

Count 1 – Unlawful Use of Motor Vehicle

Count 2 – Driving Motor Vehicle without a Driving Licence

Count 3 – Driving Motor Vehicle in Contravention with Third Party Policy Risk

Case No. 3057/04

Count 1 – Unlawful Use of Motor Vehicle

Count 2 – Driving Motor Vehicle without a Driving Licence

Count 3 – Driving Motor Vehicle in Contravention with Third Party policy Risk

Count 4 – Unlawful Use of Motor Vehicle

Count 5 – Driving Motor Vehicle without a Driving Licence

Count 6 – Driving Motor Vehicle in Contravention with Third Party Policy Risk

Case No. 3058/04

Count 1 – Unlawful Use of Motor Vehicle

Count 2 – Driving Motor Vehicle without a Driving Licence

Count 3 – Driving Motor Vehicle in Contravention with Third Party Policy Risk

[3] The applicant was subsequently apprehended. On 26 May 2004, he appeared in the Magistrates’ Court on fresh charges. After three adjournments, on 21 July 2004, the applicant pleaded guilty to the charges. He was represented by counsel from Legal Aid Commission. The learned Magistrate adjourned the case to 4 August 2004 for facts and sentencing.

[4] On 4 August 2004, the applicant’s case was further adjourned to 18 August 2004.

[5] On 18 August 2004, the applicant admitted the facts presented by the prosecution. The case was adjourned to 26 August 2004 for mitigation.

[6] On 26 August 2004, the mitigation was further adjourned to 3 September 2004.

[7] On 3 September 2004, counsel for the applicant presented the mitigation to the court. The case was adjourned to 17 September 2004 for sentencing. There is no record of conviction entered against the applicant.

[8] On 17 September 2004, the sentencing was further adjourned to 20 September 2004.

[9] The case was then not called until 29 January 2009, by which time the applicant had served his sentence and released from prison. The actual date of release was 3 June 2008.

[10] It took more than a month to locate the applicant. On 3 March 2009, the applicant appeared in court with his counsel. Counsel informed the court of the applicant’s intention to apply in the High Court for a stay of proceedings. The sentencing was further deferred.

[11] The application for stay was filed on 21 April 2009.

Grounds for Stay

[12] The applicant seeks stay on the grounds of abuse of process and delay in sentencing him. The applicant says he is prejudiced by the delay in that he had lost an opportunity to serve his sentences concurrently if timely sentenced.

Submissions

[13] Both Mr. Vakaloloma and Mr. Singh filed helpful submissions, citing relevant authorities. I have considered their submissions.

Relevant Principles

[14] It is trite law that a stay of prosecution on the ground of delay is granted in most exceptional circumstances. The English case of R v Derby Crown Court, ex p Brooks (1985) 80 Cr. App. R. 164 provided the guidelines for courts faced with the problem with delay. The court said:

"In our judgment, bearing in mind Viscount Dilhorne’s warning in Director of Public Prosecutions v. Humphrys [1976] 2 ALL ER 497 at 511, [1977] AC 1 at 26), that this power to stop a prosecution should only be used "in most exceptional circumstances," ... the effect of these cases can be summarized in this way. The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused, or to genuine difficulty in effecting service ... The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, for, as Lord Diplock said in Sang [1979] UKHL 3; [1979] 2 All ER 1222 at 1230[1979] UKHL 3; , [1980] AC 402 at 437, "... the fairness of a trial ... is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted"."

[15] In a recent judgment, the High Court of Australia in considering whether combination of delay and lost evidence justified grant of permanent stay, held that a stay of criminal proceedings is an extreme step and should not be granted if any prejudice arising by reason of delay can be addressed by alternative methods like direction to jury (The Queen v Edwards [2009] HCA 20 (21May 2009)).

[16] Separate from the common law, developed constitutional jurisprudence on stay in criminal proceedings, in jurisdictions that gave a constitutional stamp to the right to be tried within a reasonable time. Thus, the power to grant stay in criminal proceedings arises both from the common law and the constitutional law. In Brijan Singh v. The State HAC020 of 2005 & HAM066 of 2007 Shameem J explained the principles for stay in the common law and the constitutional jurisprudence:

"At common law, the High Court has a general and inherent power to protect its processes from abuse. This includes a power to stay a case on the ground of unreasonable delay. The jurisdiction is an exceptional one, and a stay will only be granted where the accused has shown, on a balance of probabilities, that the delay has prejudiced his right to a fair trial and that therefore it would be an abuse of the court’s process to continue with the prosecution. As I said in State v. Peceli Vuniwa & Others HAC 31 of 2005, a stay should only be granted where there are no other available remedies to deal with the complaint such as, for instance the exclusion of evidence, or directions to the jury on the effect of delay on memories. (Attorney-General’s Reference (No.1 of 1990) QB 630.

The questions therefore at common law are:

1. Was the delay unreasonable?

2. Will the delay have the effect of depriving the accused of a fair trial?

3. Are there other available remedies in the trial process in relation to the effect of delay and any prejudice suffered?"

[17] As regards the constitutional test, Shameem J said:

"The test for delay in the Constitution is wider than the common law test. It was outlined by the Court of Appeal in Apaitia Seru, Anthony Frederick Stevens v. The State Crim. App. AAU0041 of 1999S, AAU0042 of 1999S, a case involving a five year delay from charge to trial. The test arises from section 29(1) of the Constitution which provides that every person charged with an offence has the right to a fair trial before a court of law, and section 29(3) of the Constitution which gives to persons charged, the right to a fair trial within a reasonable time. These two rights have been treated, in all countries with a similar Bill of Rights provision, as separate and distinct from each other. The right to trial within a reasonable time was considered in R v. Morin (1992) CR (4th) 1, a decision of the Supreme Court of Canada and Martin v. Tauranga District Court [1995] 2 NZLR 419. In the latter it was held by the New Zealand Court of Appeal, that even where a fair trial was available, a trial could be stayed on the ground of unreasonable delay alone. This is so in cases of systemic post-charge delay as opposed to pre-charge investigation delay. Further, where delay is excessive, it can be presumed that there was prejudice without specific proof of such prejudice."

[18] In a later case of Sahim v. The State MISC Action No. 17 of 2007 (25 March 2008), the Court of Appeal after reviewing the relevant authorities from commonwealth juridictions, outlined the constitutional test for stay on ground of delay:

"The correct approach of the courts must therefore be two-pronged. 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 fairly 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."

[19] In Sahim, the Court of Appeal further observed:

"It must be remembered that delay is often a strategy to avoid justice. The law on stay must not make an abuse of the processes of the courts, a successful strategy under the guise of a human rights shield."

[20] The test in Sahim was referred in Ali & Ors v State Criminal Appeal No. AAU0075 of 2007 (14 April 2008) by the Court of Appeal and followed in Tawake v State [2009] FJHC 35 by the High Court.

[21] Following the decision in Sahim, there is no distinction in the tests for stay in the common law and that in the constitutional law. Sahim is consistent with the decisions of the House of Lords in AG’s Reference (No. 2 of 2001) [2004] 2 AC 72 and of the Privy Council in Boolell v. The State (Mauritius) [2006] UKPC 46 (16 October 2006). These English authorities considered the test for stay in criminal proceedings from the perspective of the international convention right and the constitutional law.

[22] In AG’s Reference (No. 2 of 2001) (supra) Lord Bingham at paragraphs 24 and 25 said:

"24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. 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 the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate 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. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.

25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v. Horseferry Road Magistrates’ Court, Ex p Bennett [1993] UKHL 10; [1994] 1 AC 42, but Mr. Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v. The State [2000] UKPC 30; [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognizable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right."

[23] In Boolell, the Privy Council adopted the principles in AG’s Reference (No. 2 of 2001) and held the constitutional test for delay in Mauritius is:

"(i) If a criminal case is not heard and completed within a reasonable time, that will of itself constitute a breach of section 10(1) of the Constitution, whether or not the defendant has been prejudiced by the delay.

(ii) An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone, unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all."

[24] In determining whether there has been a breach of right of an accused to be tried within a reasonable time, Boolell adopted the principles set out by Lord Bingham of Cornhill in Dyer v. Watson [2002] UKPC D1 to be relevant:

"52. In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.

53. The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognized, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.

54. The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively. The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organize their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted ‘with all due diligence and expedition.’ But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities will make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter."

[25] Based on these authorities, the governing principles for a stay application on the ground of delay either in the common law or the constitutional law are:

1. Is there a breach of right to be tried within a reasonable time; the reasonableness inquiry to be made using Dyer v. Watson approach?

2. If the case is not heard within a reasonable time, regardless of the accused being prejudiced or not due to the delay, there is a breach of right.

3. Whether the breach could be remedied by an appropriate remedy without recourse to stay of the proceedings, unless the hearing would be unfair or it would be unfair to try the accused at all.

Application and Reasoning

[26] Is there a breach of the applicant’s right to be tried within a reasonable time? The right to be tried within a reasonable time is not restricted to the determination of guilt or innocence. The right to be tried within a reasonable time includes the right to be timely sentenced after finding of guilt is made. In principle, the imposition of punishment should not be delayed after a finding of guilt has been made. Delays in sentencing does not only cause anxiety to the offenders but to the victims as well. For this reason, there should be some finality to criminal proceedings. There is no sense of justice if offenders are not punished for the wrong they have done after they have been found guilty in accordance with law. The imposition of punishment gives finality to criminal proceedings and a sense of justice to those who were violated by the offenders.

[27] There is a statutory obligation on the court not to delay the imposition of punishment when an accused pleads guilty. Section 206(2) of the Criminal Procedure Code provides:

"If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary."

[28] It is implicit in the terms of s. 206(2) that if an accused person pleads guilty, the court must convict and sentence without delay, unless there is sufficient cause not to do so.

[29] In the present case, the length of delay is commuted from the date the guilty pleas were entered by the applicant to the date the stay application was filed. The length of delay is four years and nine months. The delay is systematic and cannot be attributed to the applicant. The applicant was remanded in prison after he pleaded guilty. The applicant freely and voluntarily entered the pleas of guilty. The pleas of guilty were unequivocal. Rather than proceeding to convict and sentence him, the Magistrate adjourned the case on numerous occasions without good cause.

[30] This was not a complex case. Well established tariffs and sentencing guidelines existed for the offences the applicant pleaded guilt to. There is no ground to justify the conduct of the Magistrates’ Court in these proceedings.

[31] I find the delay unreasonable. No one should wait for more than four years without being sentenced after finding of guilt is made. The risk of delay is the loss of public confidence in the institution of judiciary. Also, long delays bring the administration of justice into disrepute.

[32] Regrettably, the prosecution did not assist to prevent the delay in the present case. According to the affidavit of Acting ASP Vakacegu Toduadua, the files of the applicant were retrieved from the archives during an internal audit in late 2008 of Suva Police Prosecutors Office. ASP Toduadua offered no explanation why the files of the applicant were placed in the archives, knowing the applicant had not been sentenced.

[33] While I find the prosecution rendered no assistance to the court to prevent the unfortunate situation in this case, there is no suggestion that the prosecution deliberately held back files to use them as "holding charge", that is, a tactic generally used by State agents to ensure that a person remains in custody. I do not find the prosecution acted in bad faith. There is no evidence of prosecutorial misconduct or an abuse of procedure or misuse of a procedure by the State. It was the prosecution who brought to the attention of the court the pending files of the applicant after they were retrieved from the archives. Otherwise, the shelving away of the applicant’s files in the Magistrates’ Court would have remained a mystery.

[34] The primary cause of delay in this case is systematic, that is, fault of the Magistrates’ Court. Once the files disappeared in the court system, the applicant kept quiet and did not at any stage after being released from prison enquire about his pending cases.

[35] Despite the failure of the applicant not asserting his right to be tried within a reasonable time, there is no excuse for the long delay of more than four years caused by the system to sentence him.

[36] Counsel for the State quite properly concedes that the delay in the present case is unreasonable. However, counsel submits that a stay of proceedings is not an appropriate remedy in the present case. Counsel submits that the appropriate remedy in this case is to proceed to sentencing but consideration is to be given to the delay when deciding an appropriate sentence.

[37] The question is what is an appropriate remedy for the breach? If the hearing that determined the guilt of an accused is fair, delay is a matter to be taken into account in the sentence (Boolell v The State (supra)).

[38] In considering an appropriate remedy, proof of actual prejudice is relevant to the fairness of the proceedings and to the accused. A stay is not an appropriate remedy if the accused could be fairly sentenced or the sentencing hearing would be fair.

[39] There is no proof of actual prejudice to the applicant. I find the applicant’s contention that he would have more likely to have received concurrent sentences if sentenced in 2004 quite unrealistic. If an offender commits a new offence after escaping from prison, ordering the later sentence to be served concurrently with the pre existing sentence would be wrong in principle, because such sentence would only encourage the offender to make criminal hay while the sun shines. If the applicant would have been sentenced immediately following the guilty pleas in 2004, he would have been more likely to be sentenced to consecutive sentences. The delay would now operate in favour of the applicant because he would now receive a sentence which if imposed four years ago would have been considered lenient.

[40] The offences the applicant committed are serious. He went on to a rampage after escaping from prison. He attacked his victims using violence and stole from them. He showed a total disregard for the law. There is also a public interest that the applicant be punished for these offences.

[41] Taking all these matters into account, I am not satisfied a stay should be granted.

Result

[42] I make the following declaration and orders:

1. The applicant’s right to be sentenced without unreasonable delay has been breached.

2. The applicant is to be sentenced by the Magistrates’ Court within fourteen days after recording conviction.

3. Considerable weight is to be given to the delay in the sentence of the applicant.

4. Stay of proceedings is refused.

Daniel Goundar
JUDGE

At Suva
21st August 2009

Solicitors:
Messrs. Vakaloloma & Associate for Applicant
Office of the DPP for State