Sharma v State [2010] FJHC 425; HAM034.2010 (15 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO. HAM 034 OF 2010

BETWEEN:

RAJESH DEO SHARMA
APPLICANT

AND

THE STATE
RESPONDENT

Dates of Hearing: 11 June, 6 September and 31 August 2010
Date of Ruling: 15 September 2010

Counsel: Mr. T. Terere for the Applicant
Mr. J. Singh for the Respondent.

RULING

[1] The applicant has been charged with murder on the 24th January 2008 at Rakiraki. He has pleaded not guilty throughout and the matter was set for trial hearing in this Court to commence on the 15th June last.

[2] On the 9th June Counsel for the applicant appeared and applied by way of Notice of Motion and Affidavit first to vacate the trial date and secondly to stay the proceedings permanently on the basis that full and necessary disclosures have not been made to the defence.

[3] At the hearing on the 11th June 2010, Counsel for the State consented to the trial date being vacated, he frankly admitting that documents to be disclosed were missing and feared irretrievably lost.

[4] None of the documents yet being disclosed, the applicant persists in his application for stay on the basis that non-disclosure seriously prejudices his defence at trial and he would then be denied his right to a fair trial.

BACKGROUND

[5] The applicant was arrested on the 11th February 2008 at Navosa. The officers arresting him were from Keiyasi, Rakiraki and Lautoka. He was interviewed under caution and formally charged. The transcript of both events contain confessions which he claims were obtained by force, oppression and duress. He submits that his head was held under water,he was slapped, he was punched on his face, kicked and was rendered unconscious at least 3 times. He was stripped to his underpants and locked in a cell. He was taken to Lautoka Magistrates Court on the 13th February and later that day taken to Lautoka Hospital where he was medically examined.

[6] His first appearance in this Court was on the 15th February 2008 before my brother Govind J., who on viewing the injuries to his face immediately ordered that he be escorted to Lautoka Police Station to make a formal complaint of police brutality. This the applicant did on the 29th February, 2008 in some detail and providing names of individual police officers.

[7] On the 16th March 2009, the Legal Aid Commission ("LAC") wrote to the DPP requesting copies of:

(i) Keyasi Police Post diary and cell book - 11 and 12 February 2008;

(ii) Lautoka Police Station diary – 12 February 2008;

(iii) Rakiraki Police Station diary and cell book 12 and 13 February 2008.

These were required in order to prepare for a trial within the trial over admissibility of the confessions made.

[8] A follow up request was sent on the 9th April 2009.

[9] On the 27th April 2009, LAC wrote to the Lautoka Police Station requesting copies of all statements and reports which had come into being following the complaint of police brutality by the applicant. With no reply received, a follow up letter was sent on 6th July 2009. A reminder was sent to the Lautoka Police Station on 23 February 2010 and then again on the 7th June 2010.

[10] Quite astonishingly on that day, 7 June 2010, the Police wrote to the DPP's office in Lautoka saying that the applicant had indeed made a report of assault but there was found to be "insufficient evidence towards this complaint". It would appear that nothing whatsoever was done to investigate the complaint and there were, therefore, no statements or medical reports to disclose.

[11] Apart from the suspicious absence of materials relating to an investigation of Mr. Sharma's complaint of assault, there then remained the request for Police records at the time of arrest; that is the Keiyasi, Lautoka and Rakiraki diaries and cell books. The applicant confirms that he has been served with relevant disclosures pertaining to the Rakiraki Police Station, but there are still outstanding and undisclosed police registers from Keiyasi and from Lautoka.

[12] Stay applications being made so frequently now in Fiji, the law is well settled. The principles involve either (i) manipulation or abuse of the Court process by the prosecution or (ii) prejudice and unfairness to the defendant in the conduct of his defence (see R v Derby Crown Court, exp Brooks (1984) 80 Cr App. R. 164 and Moevao v Department of Labour (1980), NZLR 463, (NZCA)).

[13] There is not one iota of evidence that the prosecution in this case has abused its powers and manipulated the Court's processes in not disclosing the Police records.

[14] There is common ground that this application is not based on delay, the applicant having waived his right to rely on delay when seeking (successfully) to vacate his trial date of 15 June 2010.

[15] Given that grants of stay are to be exercised only in the most rare of circumstances (R v Edwards [2009] HC 20), this Court is of the view that the application is misconceived.

[16] The documents sought to be disclosed are the diaries and cell books of Keiyasi Police Station and of Lautoka Police Station. It is difficult to imagine circumstances in which these could be used to further the prosecution case against the applicant. The only reason the applicant might want the documents is surely to bolster his claims of abuse and improprieties at the hands of the Police. To that extent he is not prevented from being tried fairly. The availabilty or non-availability of the documents will become in due course a trial matter. As in any other trial, his trial will commence with a voir dire examining the admissibility of this confessions. On the evidence as it now stands, and without the supporting documents from the two Police Stations; it is difficult to envisage the State succeeding in having the incriminating documents held to be admissibile; but then that is not a matter for this Court. There will presumably be evidence on both sides to be considered.

[17] The State has not acted male fides. They have obviously been as frustrated in this saga as have the Defence. In the full knowledge of their continuing duty to disclose they have learned that the registers sought to be disclosed no longer exist. That raises a further point of suspicion which the applicant may well be able to add to his "arsenal of reasonable doubt" in the voir dire proceedings. The authorities can no longer cover up improprieties by "losing" documents and they must realize that abuse of suspects will not assist them in securing convictions.

[18] This Court is not of course presuming the result of any voir dire proceedings however the facts must be viewed realistically. The applicant in making this application for stay could be said to be pre-empting his voir dire proceedings. The absence of the Police records will be highly relevant in those proceedings and it is not now for him to found a stay application on their non-disclosure.

[19] The application for stay is refused.

Paul K. Madigan
Judge

At Lautoka
15 September 2010