Lutunatabua v State [2011] FJHC 82; HAM018.2011 (21 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO. HAM 018 OF 2011
(with reference to HAC 61 of 2008)

BETWEEN:

JOSEFA LUTUNATABUA
APPLICANT

AND

STATE
RESPONDENT

Date of Hearing: 16 February 2011
Date of Ruling: 21 February 2011

Applicant in Person
Ms M. Fong for the State

RULING

[1] The appellant applies for a stay of proceedings in a case of robbery with violence before this Court (HAC 61 of 2008); on the grounds of unreasonable delay.

[2] The applicant makes his application by way of handwritten "Motion of Permanent Stay Proceedings" dated 31 January 2010 to the Deputy Registrar of this Court. As part of his "Motion" (sic) he sets out what he regards as his rights to a speedy trial and then sets out seven "grounds of permanent stay" all of which can be crystallized into a single ground of abuse of process on the part of the prosecution.

[3] The State has filed detailed and helpful submissions in reply.

CHRONOLOGY

[4] The case first came to the Magistrates Court in Lautoka on the 2nd November 2007 and on the 21st November 2007 the matter was transferred to this Court, by application of the DPP. For some unknown reason, first call in this Court was not until the 26th August 2008 when the applicant was not present and a bench warrant was issued for his arrest. The case was called eight times thereafter until the 30th July 2009 and at all times the applicant was absent and the bench warrant extended. He was arrested in July 2009 for another matter and was before the Court on this case on the 10th September 2008. He had absented himself for over 12 months when obviously nothing could be done to prepare the case for hearing.

[5] The next four times that the case was called, his co-accused had absented himself and again nothing could be done to advance the case.

[6] When the case was called four times in April and June 2010, the applicant was again absent because he had escaped from Natabua prison.

[7] In August 2010 and September 2010 he was again absent, not being produced to Court from Suva where he was being held. On appearances from November 2010 to the present, he has been claiming that he is waiting for approval for legal aid representation.

THE LAW

[8] As I said in Guston Kean – HAM 7 of 2009 (Suva):

"[10] The law relating to applications to stay proceedings in this jurisdiction is recent and appears to be well settled. On three occasions since 2003 the Fiji Court of Appeal (differently constituted) has crystalised the pertinent principles. In the recent case of Mohammed Sharif Sahim v. The State – Misc. Action 17 of 2007 the Court sets a two pronged test 1] Is the delay unreasonable? 2]. If the answer is yes, can any prejudice caused be remedied? The Court went on to say (At para 30).

"It must be remembered that delay is often a strategy to avoid justice. The law on stay must not make an abuse of the processes of the Court, a successful strategy under the guise of a human rights shield".

These words of the Court with regards to a strategic ploy are highly apposite to the within case.

[11] The factors 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 had asserted his right to a speedy trial, and
4. The extent of any prejudice.
   

In the earlier application for Stay by this same Applicant, Shameem J held that although a four year delay was serious, two and a half years of that time was directly attributable to the Applicant's non appearance. As a result she held that the delay had not been unreasonable.

[12] The Fiji Court of Appeal said in Abdul Ahmed Ali and Others v. The State [2008] FJCA 96 (at para 29)

"it is very easy for accused persons, and we know from experience that a good many of them do so, to consider that theirs are the only rights involved in a criminal trial. This is not so. The public, represented by the State has an important right in seeing that justice is done both to accused persons and to the public represented by the State".

[13] Obviously our system of justice has two competing interests. The rights of the State cannot be ignored. The records show that each and every case referred to here was diligently and timeously prosecuted, and it must not be for a deceitful and manipulative accused to detract from that preparedness."

[9] In his "motion" to the Registrar this applicant says:

"1. The applicant did attend all nominated dates of appearances as required by the Court.

2. The applicant never at any time missed the date required by the Court.

3. I have no previous history of absconding bail or to be served with a bench warrant in this matter."

[10] Such assertions are in every way mendacious. If these lies had been repeated in an affidavit, as indeed they should have been, then the applicant would be leaving himself open to charges of perjury.

[11] The time this case has been before the Courts is now 3 years and 3 months. It would have progressed far more quickly and probably even to trial had this applicant not absented himself and become subject to bench warrant, and had he not escaped from custody in April 2010. Upon re-arrest, he is now being seen to further delay proceedings by having made a late application for legal aid.

[12] In satisfaction of the Flowers test, I find that the length of delay is not inordinate, and the reason for the delay has been mostly on the part of the defence. The prosecution have at all times been ready to proceed. The applicant is not on record as ever asking for a speedy trial and I see no prejudice to him or to his co-accused in the time it has taken to being the case to trial.

[13] This application is frivolous vexatious and an abuse of process and of course it is refused.

Paul K. Madigan
JUDGE

At Lautoka
21 February 2011