Rahiman v State [2011] FJHC 298; HAM045.2011 (25 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CR. MISC. NO. HAM 045 OF 2011

BETWEEN:

TAFIZUL RAHIMAN
s/o Hafizul Rahiman
Applicant

AND:

STATE
Respondent

Mr. T. Terere (L.A.C.) for the Applicant
Ms L. Vateitei for the State

Date of Hearing : 5 April, 12 and 13 May 2011
Date of Ruling : 25 May 2011

RULING
[Application for Stay]

[1] The applicant applies for a permanent stay of proceedings in Criminal Case No. 621 of 2006 in the Magistrates Court at Nadi. The application is based on undue delay in those proceedings.

[2] The applicant first appeared in the Nadi Magistrates Court along with two co-accused on the 13th June 2006, nearly 5 years ago. All three accused pleaded not guilty to the following charge.

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) the Penal Code, Cap.17.

Particulars of Offence

HAZRAT MOHAMMED, s/o Mohammed Rauf, JACK FRASER and TAFIZUL RAHEMAN with others on the 22nd day of May, 2006 at Nadi in the Western Division robbed TONI VESIKARA of cash $40,264.92 and immediately before the time of such robbery did use personal violence to said TONI VESIKARA.

[3] The Court record shows a very sorry state of affairs over the next few years with all of the accused absenting themselves in different combinations or singly in turn when the case was called before the Magistrate. From the 6th June 2008 this applicant become a serving prisoner serving a life imprisonment term and his attendance for this matter was demanded by the issue of production orders. More often than not he was not brought up for his hearing. Ever since the 11th September 2009 this applicant has not been produced in Court on the seven occasions that the case was called. The case in the Nadi Court is still afoot and it was to be called again on the 23rd May inst.

[4] The applicant prays that the delay is inordinate and he is prejudiced in his defence because he is relying on the defence of alibi and his witnesses will be difficult to trace.

LAW

[5] The classic principles with regard to stay were set out in R v Derby Crown Court, ex parte Brooks [1984] 80 Cr. App. R. 164 where 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 process 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 probabilities 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 enquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused or to genuine difficulty in effecting service."

[6] As Goundar J. said in Osea Volavola – HAM 258 of 2010:

"When delay is raised as a ground of stay, the court must weigh the interests of the accused in having a fair trial against the legitimate expectation of the community that serious crime will be prosecuted at trial. This requires the Court to take into account any reasons advanced by the State for the delay in the matter being brought to trial."

[7] The facts to be considered when assessing whether delay is unreasonable or not are expounded in the Privy Council decision in Flowers v The Queen [2007] WLR 2396. The Board held that the Court should take into account:

1. The length of the delay;
2. The reason for the delay;
3. Whether or not the defendant has asserted his right to a speedy trial; and
4. The extent of any prejudice.
   

DISCUSSION

[8] The delays in this case are not attributable to any one party and they seem in the main to be systemic. The three accused were never brought up to Court together when their case was called. Both the second accused and this applicant are serving life imprisonment and should be able to be produced on demand. That, sadly has not been the case. The first accused is on bench warrant and has been since the 28th November 2008.

[9] There is nothing on the record to show that this applicant (the third accused below) has been moving for a speedy trial. His claims of being prejudiced in not being able to locate his alibi witnesses appear to be based on supposition rather than fact.

[10] The rights of the State to prosecute this serious crime outweigh the "possibility" that the applicant may not find his witnesses. Given the reasons for delay (system failure) the delay is not inordinate, and the impasse can be corrected by the Magistrate proceeding to a speedy trial against the second and third accused alone.

[11] The first accused has been on bench warrant for two and a half years and it is unlikely that the Police will locate him now.

[12] The application for stay of proceedings is refused and the case is sent back to the Nadi Magistrate with the following orders:

1. Production orders be issued to produce the second and third accused before him.
   
2. That this case be given priority for hearing and that an earliest possible hearing date be allocated to it.
   
3. That the trial proceeds without the first accused.
   

Paul K. Madigan
JUDGE
At Lautoka
25 May 2011