Naidu v FICAC [2010] FJHC 159; HAM003.2010 (10 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAM 003 OF 2010

BETWEEN:

SHIU KUMAR NAIDU
APPLICANT

AND:

FICAC
RESPONDENT

Counsel: For the Applicant - Mr. Sen
For Respondent - Mr. Marasinghe N

Ruling

The accused applicant and Mahabir Singh are charged in the Magistrates Court Labasa on sixteen counts of Extortion by Public Officers contrary to section 107 of the Penal Code Chap. 17 out of which eleven counts are against the applicant.

The applicant applies for a stay of prosecution on the ground of prejudice arising from post charge delay.

The prejudice alleged by the applicant is that his witnesses namely Kemueli who was the supervisor and Tevita Rasiga who was the Divisional Engineer both have passed away and that he doesn’t know the whereabouts of Jim Turaga.

I have carefully considered the application and the submission made by counsel for both parties.

What is unreasonable delay depends on a number of factors such as the length of delay, waiver of time periods, the reasons for the delay and prejudice to the accused R v Morin [1992] ISLR 771.

Originally charges against the applicant were brought on 15/9/2008 and consolidated charges were brought on 3.8.2009 against the applicant and another. This stay application was filed on 19/2/2009 just 5 days before the case was to be tried on 24th February 2010.

Therefore the delay from the date the accused applicant was charged from the 1st charge sheet is about 1 year and five months and from the date of the present charge sheet it is 6 months. I find the delay therefore is not substantial.

Waiver of time period

There is no record of any waiver of time periods.

However no record is before court to show that the applicant asked for a speedy trial except on 10th December 2009 when responded moved for a mention date as mentioned in the affidavit in support of the submission in reply by the respondent. There again the case was adjourned till 24/2/2010 only for less than 3 months from that day. This stay application was filed just before that trial date.

Reason for delay

It is submitted that FICAC received the complaint on 17/4/2008 charges were filed in Magistrates Court on 15/9/2008. It appears investigations had been completed within a reasonable period. There is no record for the court to see the number of postponements but it is submitted by the respondent that on 23rd July 2009 they made the application to consolidate the charges which was allowed by court and consolidated charges were filed on 3/8/2009. This court cannot see any undue delay or abuse of process.

Prejudice to accused

It is contended on behalf of the applicant that his witnesses Kemueli who was the supervisor and Tevita Rasiga who was the Divisional Engineer both passed away and that the applicant does not know the whereabouts of Jim Turaga.

The charges against the applicant in the Magistrates Court are that the applicant as an Acting Supervisor Water Works on numerous occasions accepted rewards from one Bankaran Gopal for the performance of his duties.

On behalf of the applicant no where it is submitted as to what evidence he was going to lead through those witness who are dead in his defence or at least what his defence is. Applicant has failed to satisfy court as to what evidence those witnesses were to give or what or how this is going to get prejudiced by not having those witnesses.

Since the date of filing charges, except on 10th December 2009, applicant has not made any effort to get a speedy trial or make any complaint against delay until the last moment this application was made few days before the trial date causing further delay.

In the above premise I am satisfied that the applicant can be tried fairly and that there is no sufficient grounds shown to stay the prosecution in the Magistrates Court.

Hence Application for stay is refused. Trial to proceed in the Magistrates Court.

Priyantha Fernando
Puisne Judge

At Labasa
10 May 2010