Tawake v State [2009] FJHC 35; HAM126D.2008 (6 February 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM 126 of 2008

Between:

ASESELA TAWAKE
Applicant

And:

THE STATE
Respondent

Hearing: 21st of November 2008, 16th of January 2009
Ruling: 6th February 2009

Counsel: Mr. A. Vakaloloma for Applicant
Ms W. George for State

RULING

[1] The Applicant has applied for stay of proceedings in the High Court on the grounds that there has been an abuse of the process, on the basis of prosecutorial misconduct, that there will be an unfair trial, and that there has been a breach of the right to trial within a reasonable time. The supporting affidavit of Asesela Tawake states that the charges he faces of robbery with violence and unlawful use of motor vehicle relate to allegations in December 2000, that the history of the case shows that the delay was caused because production orders were not issued for his court attendance, or because the prosecution was not ready and did not have the file. He states at paragraph 30 that it has taken the DPP’s Office almost 6 years to find a file. He seeks a permanent stay of proceedings.

[2] Both defence and prosecution have filed submissions in relation to this application. The Applicant (the defence) relies on section 29(1) of the Constitution (the right to a fair trial), section 29(3) of the Constitution (the right to trial within a reasonable time) and the inherent powers of the court to protect its processes from abuse. Counsel relies on Connolly v. DPP (1964) AC 1254, Bell v. DPP of Jamaica [1985] 2 ALL ER 585, Barker v. Wingo [1972] USSC 146; (1972) 407 U.S. 514, R v. Askov [1990] 2 SCR 1199, Moevao v. Department of Labour (1980) 1 NZLR 464 and R v. Horseferry Road Magistrates’ Court ex p Bennet [1993] UKHL 10; [1994] AC 42 to submit that a stay is necessary to prevent an abuse of the court’s processes and to ensure protection from an unfair trial.

[3] State counsel in response, set out the chronology of events in the Magistrates’ Court, accepted that the court had inherent powers to stay a prosecution and submitted that such a stay should 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" (Brijan Singh v. State HAC 20 of 2005 & HAM 066 of 2007). The State also relies on the decision of the Court of Appeal in Mohammed Riaz Shameem Crim. App. AAU0096 of 2005 which was that the court must ask whether delay is such that it will prevent a fair trial. The State submits that the reason for much of the delay is the non-appearance of the Applicant and his co-accused, and that the Applicant has not shown any prejudice to him if the trial proceeds. Indeed the case was set for mention before the Chief Magistrate on the 28th of January 2009 and can proceed as soon as this application is heard.

The history of the case

[4] It is correct that the offences are alleged to have been committed in December 2000. The charges were, and are that on the 18th of December 2000, at Samabula, the Applicant, Isireli Laveti, Peni Matairavula, Tevita Poese and Tupou Vuetaki, being armed with firearms robbed money and other items to the total value of $70,099.02 from Morris Hedstrom Superfresh Supermarket. They are also alleged to have unlawfully used the motor vehicle of Thomas Gallop. Tupou Vuetaki was further charged with being in possession of a K2 firearm and 20 rounds of ammunition without a licence. The charges were laid on the 9th of April 2001, and the accused first appeared in the Suva Magistrates’ Court on 9th July 2001. The trial commenced on the 14th of January 2002 and the accused persons were sentenced to varying terms of imprisonment. The Applicant appealed to the High Court against conviction and sentence. His appeal was allowed and a retrial was ordered.

[5] The case was again called in the Suva Magistrates’ Court on the 22nd of November 2002. Only one of the 4 accused was present. The court realized that the Applicant was in custody and ordered that a production order be issued. He appeared on the 22nd of November 2002, the 30th of December 2002 and the 20th of January 2003. He did not appear on the 10th of March 2003 in the morning but appeared in the afternoon to tell the court that he was a serving prisoner. He then made no appearance at all until the 26th of August 2008. On court dates up to the 30th of October 2003, he was absent but the court noted that he was a serving prisoner. There is no court record for the period between the 30th of October 2003 and the 26th of August 2008 when the case was finally called before the Chief Magistrate. The Applicant appeared on bench warrant and said:

"I was committed to prison in 2002 and released in 2004. There was no production order for me. I have applied for refund of my cash bail."

[6] The court told him that he had absconded and had failed to appear in court, in breach of his bail conditions. The Applicant at first said that no production order had been issued, then said that he thought his case had been withdrawn. The plea was then taken and the Applicant waived his right to counsel and elected Magistrates’ Court trial. He pleaded not guilty. He was remanded in custody pending trial.

[7] On that date the prosecutor was a police prosecutor who said that the prosecution would be conducted by the DPP’s Office. No one had appeared from that office. Nor was the prosecution represented on the morning of the 9th of September 2008. The case was stood down and a DPP’s Officer appeared later in the day. On the 23rd of September, the DPP’s Officer who appeared said they had enquired about the case with the police and the police had not responded. The court said that the prosecution was being unhelpful, apparently because the prosecutor did not have the file.

[8] On the 7th of October, the prosecutor still had no police docket and another adjournment was sought. The Applicant continued to be remanded in custody. On the 21st of October 2008, the prosecutor still could not locate the file. By this date the Applicant had applied to the High Court for bail, and was granted it. For several further mentions the Applicant appeared in court. On the 24th of October, his counsel said that he had made a stay application in the High Court. The case was adjourned pending this judgment. Up until the 21st of November 2008, the prosecutor had no police docket and she told me that despite many requests the police had not responded to requests for it. It appears that the prosecution has never been in a position to proceed to trial since August 2008.

The law on stay

[9] The law has shifted from a position that a stay must be granted once delay is held to be unreasonable, to a position that a stay should be granted where the delay is unreasonable and the accused person is unlikely to get a fair trial. This is a case of chronic post-charge systemic delay. At common law, a stay was only ordered when there were no other available remedies available to the accused and when a fair trial was no longer possible. This was the law as set out in Attorney-General’s Reference (No. 1 of 1990) (1991) QB 630. At common law the relevant questions were:

1. Was the delay unreasonable?
   
2. Has the delay deprived the accused of a fair trial?
   
3. Are there other available remedies to alleviate the prejudice?
   

[10] The test under the Constitution was held to be a broader test in Apaitia Seru and Another v. The State Crim. App. AAU0041 of 1999S, AAU0042 of 1999S, a case of a five year post charge delay. The Fiji Court of Appeal in that case found the delay to be unreasonable and said that prejudice to the accused (although not shown by the accused) could be presumed. The court adopted the test 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, that is, that once there is unreasonable delay post-charge, prejudice can be presumed and a stay must be ordered. In computing what is unreasonable, the court should consider the length of the delay, the reasons for the delay and any prejudice to the accused. In considering delay and section 29 of the Constitution, the courts must consider the protected rights in a purposive way. As was said in State v. Peceli Vuniwa and Others Crim. Case HAC 31 of 2005:

"Section 29(3) of the Constitution provides that every person charged with an offence has the right to have the case determined within a reasonable time. This provision is comparable to Article 6 of the European Convention on Human Rights, which entitles a person charged with a criminal offence to "a fair and public hearing within a reasonable time by an independent and impartial tribunal", and to section 25(b) of the New Zealand Bill of Rights Act which provides for a right to be tried "without undue delay." In Martin v. District Court at Tauranga [1995] 2 NZLR 419, the right was held to be a qualified right, to be balanced with the victim’s interests. The remedy is logically a stay. The right, incorporated in legislation and constitutional documents world-wide, and across jurisdictions, protects three separate interests, security, liberty and fairness (A-G Amsterdam "Speedy Criminal Trial – Rights and Remedies" Stanford Law Review (1975) 27 at 525). The scope of this right, and the reasons for it, are similar in most jurisdictions. It is a separate guarantee from the right to a fair trial (Porter v. Magill; Weeks v. Magill [2002] 2 AC 357, H.L.) and a stay of proceedings could be the only logical remedy unless there is a lesser available remedy for a breach of that right."

[11] The most recent decision of the Fiji Court of Appeal on stay is Mohammed Sharif Sahim v. The State Misc Action No. 17 of 2007 (per Byrne, Shameem and Scutt JJ). Judgment was delivered on the 25th of March 2008. In that case the High Court heard an application for constitutional redress brought by an accused person whose trial was delayed for 7 years. He was charged with offences of obtaining money by false pretences. The High Court held that although the delay was unreasonable and was caused by a failure of the court system to manage the case, the accused and the prosecution had contributed significantly to the delay and the appropriate remedy was to order a trial within 40 days. He so ordered.

[12] On appeal to the Court of Appeal the accused argued that once a court found that the delay was unreasonable, a permanent stay was inevitable even in the absence of evidence of prejudice to the accused. The Fiji Court of Appeal reviewed the authorities from other countries in the Commonwealth including Darmalingham v. The State [2009] EWCA Crim 1424; [2002] 2 Cr. App. R. 445, Flowers v. The Queen [2000] 1 WLR and Attorney-General’s Reference (No. 2 of 2001) [2003] UKHL 68, and held that in Fiji the law on stay on the ground of delay can be summarized as follows:

"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 is 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."

[13] That is the current law on stay in Fiji.

This case

[14] The Applicant was in custody from the date he was charged to the date of his first trial. The trial commenced only 3 months after plea and the Applicant was sentenced to 5 years and 6 months imprisonment. At that time, the Applicant was serving another term of imprisonment, a term he served until mid 2004. He appealed against conviction and his appeal succeeded. I heard that appeal and ordered a retrial on the 25th of October 2002.

[15] From the 22nd of November 2002, the Applicant appeared in custody on only 3 occasions. Although his affidavit suggests that the prosecution did not have the file, this is not recorded on the court record. However on the 10th March 2003, a bench warrant was issued for the Applicant in error. He was still a serving prisoner. He continued to serve when the case was called, up until the 30th of October 2003. It appears from the record that his non-appearance was due to a failure by the court to issue a production order.

[16] From the 30th of October 2003, to the 26th of August 2008 there was a long and inexplicable silence. I cannot accept that this silence is in any way the Applicant’s responsibility. It shows a failure on the part of the court to monitor its pending cases, and a failure on the part of the prosecution to ensure that its trials are listed for hearing. Even if the Applicant had enquired at the Registry on his release from prison in mid-2004, would he have received any helpful response? He is certainly not likely to have received any response at all at the DPP’s Office, because it appears that the file has been missing for some years. The delay of over 4 years from the 10th of June 2003 to the 26th of August 2008 was entirely the fault of the Magistrates’ Court and of the DPP’s Office.

[17] From August 2008 it is evident that the learned Chief Magistrate has tried valiantly to bring some order to the case. However, the prosecution told her in error that the Applicant had failed to respect his bail conditions on his release from jail. In fact he was not granted bail in this case until the High Court granted bail in August 2008. Indeed on the 30th of October 2003, the then presiding Magistrate erred when he issued a bench warrant for the Applicant. The Applicant was a serving prisoner and required a production order.

[18] The delay, then, since a retrial was ordered in November 2002, was not attributable in any way to the Applicant. Further the record shows that there will be further delay because the prosecution cannot locate the file and is in no position to proceed without it. The record shows that on the 26th of August 2008, the police prosecutor said that the prosecution was to be conducted by the DPP’s Office and that he had contacted them "several times." When the DPP’s Officer appeared on the 9th of September after the case had to be stood down for her, it was apparent that the DPP’s Office did not have the file. Subsequently on the 23rd of September 2008, she said she had enquired with the police "but they have not responded." Again, the conduct of the two law-enforcement offices is far from impressive. The police file is lost and a further delay is anticipated. Again, none of this was the fault of the Accused. In calculating what is "unreasonable delay" the conduct of the parties is relevant. On the 21st of October 2008, the prosecution said that the police were preparing a duplicate file. In February 2009 there is still no duplicate file.

[19] I consider that the delay from November 2002 to January 2009 is unreasonable. In coming to that conclusion I take into account the nature of the alleged offences, the cause and length of the delay, and the likely prejudice to the Applicant. I also take into account the fact that three of the Applicant’s co-accused have been dealt with by the courts. I note also that the prosecution case during the first trial alleged that the Applicant was the driver of the getaway car and that he waited outside the supermarket for his accomplices to return after the armed robbery. I assume that all the relevant witnesses are still available to give evidence and that the Applicant would dispute the admissibility of his confession to the police.

[20] Despite the seriousness of the case, I find that the delay of 7 years from the order for retrial to be so excessive that the Applicant’s right to a fair trial within a reasonable time has been compromised. I cannot accept that there is any available alternative remedy other than a stay. The prosecution’s conduct is now likely to lead to further delay and any time line for speedy trial is unlikely to be effective when the police file cannot be located. Clearly there is prejudice to the Applicant’s ability to defend himself. Even if a duplicate file is created, the original statements of the witnesses are missing. The court record of the first trial is a record of sworn evidence, not of police statements. The admissibility of the evidence of the first trial will depend on the discretion of the trial court. I consider that the Applicant’s ability to defend himself is prejudiced not only by the unreasonable delay, but also because the file with the witness statements in it, is missing. The facts of this case show a clear case not only of delay but also of prejudice. The two-pronged test in Mohammed Sharif Sahim (supra) is satisfied.

[21] In all these circumstances I consider that a permanent stay is the only available remedy for the clear breach of the Applicant’s right to trial within a reasonable time under section 29(3) of the Constitution.

[22] This application is allowed.

Nazhat Shameem
JUDGE

At Suva
6th February 2009