Tabaloa v State [2010] FJHC 433; HAM052.2010 (9 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL MISC. NO. HAM 052 OF 2010

BETWEEN:

1. ESALA TABALOA
2. KAMINIELI DONU
Applicants

AND:

STATE
Respondent

Applicants in Person
Ms N. Tikoisuva for the State

Date of Hearing: 02 September 2010
Date of Ruling: 09 September 2010

RULING

[1] On the 28th June 2007, the Applicants together with one other were charged in the Magistrates Court at Lautoka with (a) unlawful use of a motor vehicle contrary to section 292 of the Penal Code, and (b) shop breaking entering and larceny, contrary to section 300(a) of the Penal Code. The case against them has still not been concluded.

[2] Each of the applicants applies for a permanent stay of proceedings in the matter. The first applicant pleads undue delay and insufficiency of evidence, the second applicant pleading undue delay and unfair investigation procedures.

The Law

[3] The principles for stay on the grounds of delay are well settled. It was said in R v Derby Crown Court, exp Brooks [1984] 80 Cr. App. R, 164 (Sir Roger Ormrod):

"The power to stop a prosecution arises only when it is 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."

[4] In Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Mason CJ in the High Court of Australia said:

"to justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial Judge can do in the conduct of the trial can relieve against its unfair consequences."

[5] In a more recent case in the High Court of Australia in R v Edwards [2009] HC 20, the Court described stay of criminal proceedings as an extreme step that should be taken only if it is not possible to hold a fair trial.

[6] In Attorney General's Reference No. 1 of 1990 [1992] QB 630, Lord Lane CJ said, at page 643G:

"no stay should be imposed "unless the defence shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held. In other words that the continuance of the prosecution amounts to a misuse of the process of the Court."

[7] The position is most succinctly set out in Shameem J's ruling in Brijan Singh v State – HAC 20/05 and HAM 66/07 where she said that the questions to be judicially posed were:

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?
   

The Delay

[8] There can be no doubt that the progress of this trial has been long, tortuous and unnecessarily prolonged. In large part it has been victim to the uncertainties and inactivity in our judiciary occasioned by the constitutional event in April 2009, when Courts were not sitting for some time and when Magistrates left the Courts and were replaced with others.

[9] In the 38 months between first appearance and today, 7 months were spent dealing with the applicants' own difficulties with legal representation. The second applicant pleaded guilty on the 25th June 2008 and the trial against the first applicant commenced only to be aborted when he suddenly decided to challenge his interview under caution. Of some concern is the fact that between the 7th August 2008 and 30 June 2009 the matter was adjourned 18 times without any note in the record as to the reasons for the adjournment. Blame for such a practice cannot be laid at the foot of any one particular Magistrate, because the case has been handled by at least six different Magistrates at various stages, however to adjourn a case repeatedly for no stated reason is a practice which seems to be prevalent and it is a practice to be deprecated.

[10] The record however shows nothing on the part of the prosecution to consciously delay matters; the delays having been for various reasons beyond their control.

[11] In the case of the first applicant, he submits and the State concedes that the case against him is very weak and unsubstantiated however it is not for this Court to determine that and find the application meritworthy on that basis. There is nothing on the record which even suggests, let alone passes the test of balance of probabilities, that he has been prejudiced by the delays. It will be after due process in the Court below which will determine if the case against him is sufficiently weak to warrant acquittal of the charges.

[12] His application for stay is refused.

[13] The second applicant has pleaded guilty not once but twice during the proceedings and the present Magistrate has ruled that his plea was unequivocal and voluntary. It is indeed rather shocking that since he first entered a plea on 25th June 2008, he has never been sentenced. Despite that, he cannot be said (as he claims) to be prejudiced in his trial; there will be no trial; he merely awaits sentence, which will have to take into account of course the time he has spent in custody awaiting sentence. He has been denied bail because of his history of escaping from lawful custody and breach of earlier bail terms.

[14] His application for stay is also refused.

Orders

[15] In recognition of Shameem J's exhortary dicta in Brijan Singh to explore alternative remedies, I make the following declaration and orders:

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

2. The trial of the first applicant is to proceed without delay and as a matter of priority in the Lautoka Magistrates Court.

3. The sentence of the second applicant be addressed without delay and as a matter of priority and that considerable weight be given to the time spent in custody awaiting sentence.

4. Both applications to stay proceedings are refused.

Paul K. Madigan
Judge

At Lautoka
09 September 2010