Devi v State [2010] FJHC 132; HAM017.2009 (16 April 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 17 of 2009

BETWEEN:

REENA DEVI
Applicant

AND:

THE STATE
Respondent

Hearing: 22nd February 2010
Judgment: 16th April 2010

Counsel: Mr. T. Lee for Accused
Mr. S. Qica for State

JUDGMENT

[1] The applicant is charged with murder of her newly born baby. The offence was alleged to have occurred on 10 April 2003. The applicant was charged on 9 July 2009, that is, after 6 years and 3 months from the date of the alleged offence.

[2] This is an application by the defence to stay the case permanently on the ground that there has been an unreasonable delay in bringing the charge before the court that it violates the applicant’s rights under the International Convention on Civil and Political Rights and amounts to an abuse of process.

[3] The evidence shows that the applicant was interviewed by the police on 23 June 2003. Statements of material witnesses were obtained before the applicant’s interview. These witnesses were the relatives of the applicant who lived with her at the time of the alleged offence. The post mortem report of the deceased infant and the doctor’s statement were made available to the police before the caution interview of the applicant.

[4] After the caution interview, the applicant heard nothing about the case until 9 July 2009 when she was charged with murder.

[5] The State has filed an affidavit of Josefa Tosokiwai, Clerical Officer, Office of the Director of Public Prosecutions, to explain the delay in charging the applicant. Mr. Tosokiwai states in his affidavit:

"That on 11th November 2003 police forwarded relevant docket to our office which we received on 13th November 2003.

That on 26th July 2004, relevant docket was sent back to police with instructions for further investigations.

That in September 2004, relevant docket was sent back to our office.

That after receiving docket, nothing was done on file until June 2009 where State Counsel Mr. Korovou rendered an opinion on 12th June 2009.

That on 18th June 2009, the then Acting DPP [Mr Rabuku] then considered the opinion and on 25th June 2009 police were advised to charge the applicant.

That the applicant was formally charged on 9th July 2009 at Labasa Magistrate Court and matter was transferred thereafter to the High Court."

[6] The State accepts that the delay is unreasonable and that it is attributed to them, but submits the offence is serious and it is in the public interest to try the applicant.

[7] It is clear from the evidence that the police had encountered no difficulty in the investigation of this offence. The evidence shows that after the police docket was received by the Office of Director of Public Prosecutions in September 2004, nothing was done to charge the applicant.

[8] Mr. Lee for the applicant submits that the issue is covered by Article 14 of the International Convention on Civil and Political Rights (ICCPR) in the absence of constitutional protections for an accused in a criminal proceeding. Counsel relies on Article 14 (3):

"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;"

[9] The applicant in particular relies on Article 14 (3) (c) – the right to be tried without undue delay. The hurdle in placing a reliance on the ICCPR is that Fiji has not ratified it. By not ratifying the ICCPR, Fiji as a State is not bound by its terms. However, the matter does not rest there.

[10] This application can be fairly dealt under common law. The right to a fair trial is protected by common law. This right operates to safeguard against any conduct of the prosecution that amounts to an abuse of process. If the court finds an abuse of process on behalf of the prosecution then the proceeding can be permanently stayed.

[11] The power to stay a prosecution arises from the inherent jurisdiction of a court to prevent an abuse of process (Connelly v. DPP (1964) A.C. 1254).

[12] Brennan J in Jago v District Court of NSW [1989] HCA 46; [1989] 168 CLR 23 said:

"No abuse of process appears merely from delay on the prosecution, either by inadvertence or by negligence, in presenting an indictment. It may be different if the prosecution was to delay deliberately in presenting an indictment in order to prevent an accused from making an effective defence but, even in such a case, the remedy may lie not in permanently staying the proceedings but in bringing them to a conclusion with a direction which nullifies the affect of the tactic."

[13] In R v. Derby Crown Court, ex p Brooks [1984] 80 Cr. App. R. 164, Sir Roger Omrod said:

"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 processes 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 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 prosecution of 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."

[14] Earlier in the judgment Sir Omrod pointed out that:

"The question ...is whether the defendant has been so prejudiced by this delay that justice cannot now be done."

[15] In R v Oxford City JJ, ex p Smith [1982] 75 Cr App R 200, Lord Lane described such abuse of process arising where the delay by its nature and its length must inevitably lead to prejudice, unfairness and injustice to an accused.

[16] It was held in Barton v The Queen [1980] HCA 48; [1980] 147 CLR 75 that a stay is justified if the defect is so fundamental to the trial process that nothing the trial court can do in the conduct of the trial can relieve against its unfair consequences.

[17] The applicant no doubt is charged with a serious offence of murder. Like in any murder case, the court will have to determine the state of mind of the applicant at the time she allegedly killed her baby. Immediately after the alleged incident, the applicant was medically examined by a general practitioner at Labasa Hospital. According to the history related to the doctor by the applicant, she did not know anything about the baby. She told the doctor that she went to the toilet and passed blood clots only. The doctor in his report wrote that the applicant was confused, uncooperative and reluctant to answer questions. This finding of the doctor although is not conclusive but gives an insight of the applicant’s state of mind at the time of the alleged offence. In her caution interview, the applicant said when the baby was born she did not know what had happened to her brain.

[18] In a case where the accused is charged with murder of a newly born baby, there always exist a possibility that the accused is not guilty of murder but guilty of infanticide contrary to section 205 of the Penal Code. In other words, infanticide is an alternative to murder but the offence is generally punishable by a non custodial sentence, unlike murder which carries a mandatory life imprisonment. However, an accused can only rely on infanticide if there is some evidence to show that the balance of her mind was disturbed by reason of not having fully recovered from the effect of child birth.

[19] The applicant is an indigent person. She was married at a young age in 1998. Her first child was prematurely born in 1999. The child died after birth. In April 2000 she gave birth to another child. The second child survived. Within two years she was pregnant and in April 2003 the incident subject of the charge occurred. Despite these social factors that could have caused the balance of the applicant’s mind to be disturbed when she delivered her baby in April 2003, the law at the time did not recognize social circumstances of women to be relevant to the offence of infanticide.

[20] I accept that there is some evidence upon which the court could make a determination of infanticide but I am satisfied that the effect of the delay is such that the applicant would not be able effectively to make a case for infanticide. If the prosecution would have charged the applicant immediately after the alleged incident, the court could have ordered for a psychiatric report on the applicant’s state of mind and she would have had the benefit of expert evidence to raise infanticide as an alternative to murder. The delay caused by the prosecution has deprived the applicant from obtaining crucial evidence and the applicant is now seriously handicapped to raise infanticide as an alternative to murder. In this regard, I note that the prosecution has maintained the murder charge and has not indicated any intention to reduce the charge to infanticide. This may be due to the fact that the there is no medical evidence to show that the applicant’s balance of mind was affected by child birth. I am satisfied that no other order of the court can remedy the situation. To allow the prosecution to continue in these circumstances would lead to unfairness and distinct possibility of injustice and would lead to an abuse of process.

[21] I bear in mind that murder is a serious offence and it is in the public interest that those charged with serious offences should be prosecuted. However, the delay of more than six years taken to charge the applicant lay in the hands of the prosecution, not the applicant. If there is a significant risk of injustice, it will apply both to the prosecution and the defence but it is the applicant who is in peril and whose liberty is at stake. To pursue a trial where the ability of the applicant to put a case of infanticide as an alternative to murder is effectively impaired as a result solely of the failure of the prosecution to timely charge her would be a clear case of abuse of process. I arrive at this conclusion on the special circumstances of the case.

[22] I order that the prosecution be permanently stayed.

[23] The application is allowed.

Daniel Goundar
JUDGE

At Labasa
16th April 2010

Solicitors:

Office of the Legal Aid Commission for Accused
Office of the Director of Public Prosecutions for State