Bavoro v State [2011] FJHC 235; HAM236.2010 (27 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

High Court Criminal Miscellaneous No. HAM 236 of 2010

BETWEEN:

SAMUELA BAVORO
APPLICANT

AND:

STATE
RESPONDENT

Counsel: For Applicant - Mr Vakaloloma, A.
For Respondent/State - Mrs Ratakele, N.

Date of Hearing: 14th April, 2011.
Date of Ruling: 27th April, 2011

RULING

The applicant was charged with the offences of unlawful use of motor vehicle and shop breaking and larceny in the Magistrates Court, Nausori.

Applicant applies for a permanent stay of proceedings on the ground of delay. It was submitted on behalf of the applicant that the prosecution as well as the court process has caused the delay and that therefore this case has been hanging on the applicants' head for years.

On behalf of the Respondent (State) it was submitted that the delay was contributed by the accused (applicant) and also by the co-accused in this case.

The chronology of events in the Magistrates Court submitted by the Respondent which was admitted by the Applicant at the hearing of this application are as follows:

(a) On the 2nd of November 2005 matter was first called before Magistrate

Ravono at Nausori Magistrates Court where the applicant and others were remanded in custody. The four accused person in this are as follows; Tomasi Bainivalu [Acc 1], Samuela Bavoro [Applicant], Alifereti Smith [Acc 3], Nino Stephen [Acc 4].

(b) Matter was called again on the 23rd of November 2005 where a hearing

date was fixed by the court on the 27th of February 2006.

(c) Matter was called on the 27th of February for hearing and Co-accused

Alifereti Smith failed to turn up and matter could not proceed. Matter adjourned to the 8th of March 2006 for hearing.

(d) On 8/3/06 Counsel for accused 4 failed to turn up and matter was

adjourned to 3/04/06 for mention.

(e) On 03/07/06 all accused persons were present in court without legal aid

counsel. Matter was adjourned.

(f) On 25/09/06 matter was adjourned to 29/01/07 for accused two

[applicant] to appeal to legal aid against the non-approval of his application.

(g) On 29/01/07 matter was called and a hearing date cannot be set as the

applicants appeal to legal aid for representation has yet to be finalized. Legal Aid Commission has confirmed that there is no board at the moment the council will sit in early April 2007. Matter was adjourned to 09/04/07 to confirm legal representation of the applicant.

(h) NOAH was granted and prepared and services to all accused including

applicant was done. All accused except accused No.3 appeared in court on the 2/05/07. On that date defense counsel had informed the court that they will challenge the admissibility of the caution interview statement of the accused persons.

(i) On 29/03/07 NOAH's were prepared by the court

to be served to accused person.

(j) 1/06/07 NOAH cannot be served to accused 3 Alifereti Smith as he

cannot be located in the village. Matter was adjourned to 23/07/07 for mention to fix hearing date. Matter was called again on the 23/07/07 and a hearing date was fixed on the 31/07/07.

(k) On the 31/07/07 hearing commences at the Nausori Magistrates Court

with Magistrate Vani Ravono presiding. Mrs Ravono reiterated that hearing cannot complete today and matter was adjourned to the 17/08/07 for continuation.

(l) On 3/09/07 matter was called and adjourned for continuation hearing

[trial within a trial] 12/10/07.

(m) Matter was called before Magistrate Amani and adjourned again for

continuation on 13/02/08. On 13/02/08 Accused one was not present and matter was adjourned to 04/03/08 to fix a hearing date.

(n) On 04/03/08 mention for legal representation for accused one and

accused two [applicant]. Date fixed for hearing on 1/7/08.

(o) On 01/07/08 voir dire hearing commenced and was adjourned to the

18/08/08 for continuation. On 18/07/08 matter was called accused one and the applicant were not present but arrived at 2.00pm, both smelt of liquor and causing problems in the judicial complex. Both accused remanded. On 28/07/08 matter was called and both accused 1 and applicant were released on bail.

(p) On 28/7/08 ruling on voir dire was delivered by her worship Mrs Ravono

and caution interview statement was allowed to be admitted as evidence in this case. Matter was adjourned for defence to call its witnesses on the 13/08/08. On that date trial continues for defence case and matter was adjourned for 28 days for both parties to file closing submissions. On 16/09/08 applicant asked for further 7 days to file his submission but Mrs Ravono refused to give further time for filing of submission.

(q) On 22/09/08 both accused one and the applicant failed to turn up and

bench warrant was ordered for the two accused persons. At 2.00pm Accused No. 1 was taken in by police and brought to court in the afternoon.

(r) On 29/09/08 both Accused No. 1 and Accused No.2 [applicant] were

not present when case was called. At 11.40am both arrived at the Court complex. On 3/11/08 matter was adjourned for judgment on notice. Applicant was not present and a NOAH was ordered to be served to him.

(s) In January early 2009 Mrs Ravono was transferred to Suva Magistrates

Court and on 15/04/09 Court file was taken to Suva Court. On 15/04/09 to 15/05/09 matter was called before Mrs Ravono. All accused persons did not appear, Bench warrant for all accused persons issued.

(t) On 17/07/09 NOAH was issued for accused persons and matter was

transferred back to Nausori Court. On 19/08/09 matter was called in Nausori Magistrates Court accused 1 and 2 not present. On 30/09/09 matter was called for mention and production order was issued for accused 1 and a NOAH for accused 2.

(u) Matter was adjourned again to the 15/2/10 judgment and to update on

the PC's of the applicant and other accused persons.

(v) Judgment was not delivered by Mrs Ravono. Her worship was no longer

sitting as a Nausori Magistrate. Mr Lakshman took over as Nausori

Magistrate and ordered a trial de Novo and has set 21/04/10 for

mention in this case.

(w) On 28/6/10 Legal Aid counsel appears for accused 3 and asks for PTC.

Case was adjourned to the 12/0/10 for PTC. Trial date was again fixed

on 20/10/10 but was again adjourned for mention to fix hearing date

on 26/11/10.

(x) The applicant was also on Bench warrant on the 28/06/10 and

information received later on he was remanded in Labasa Prison for

another matter.

(y) Matter was called on 3/12/10 for mention and only accused No.3 was

present. Matter was adjourned to 11/10/11 for hearing.

(z) The applicant has filed his formal stay applications for proceedings

against him and filed on the 17th March 2011 on the grounds of delay by the court systems in this case.

The Law

In R v Derby Crown Court, exp Brooks [1984] 80 Cr. App. R. 164, Sir Roger Ormrod 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".

The inherent power to stay criminal proceedings to prevent abuse of process has long been recognized in common Law. But it should only be employed in exceptional circumstances (State v Waisale Rokotuiwai HAC 009 of 1995).

In case of Director of Public Prosecutions v Jackaran Tokai and others (Trinidad and Tobago)[1996] (12th June 1996) Privy Council Appeal No.53 of 1995 (Judgment delivered on 12th June, 1996).

Their Lordships said:

"However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions [1964] A.C.1254,1304, that:

'generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it'.

Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J. in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23.

In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a Permanent Stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant 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. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict."

In this case the applicant was first produced before the Nausori Magistrates Court on 2nd November 2005 and therefore the delay is more than five years.

When you peruse the chronology of events the delay has been mostly caused by the accused applicant and the co-accused.

There had been certain amount of delay due to the Magistrate no longer sitting after 15/2/10, which was beyond the control of the court. As it was said in case of Brennan J in Jago v District Court of New South Wales (Supra), delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for stay.

Mere delay cannot be considered as abuse of process. The applicant has failed to satisfy court that the delay has caused prejudice his defence or that the applicant cannot be tried fairly.

Therefore the application for permanent stay is refused.

The learned Magistrate is directed to hear and determine this case expeditiously.

Registrar is directed to forward a copy of this ruling forthwith to the Magistrate, Nausori.

Priyantha Fernando
JUDGE

At Suva
27th April, 2011.