Gounder v State [2012] FJHC 1026; HAM198.2011 (18 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Miscellaneous Case No. HAM 198 of 2011
(Magistrate Court Criminal Case No. 577 of 2010)

BETWEEN:

KRISHNA SAMI GOUNDER
APPLICANT

AND:

THE STATE
RESPONDENT

Counsel: Mr. Raza. M for Applicant
Mr. Singh. A for Respondent

Date of Ruling: 18th April 2012

RULING ON STAY

1. The applicant is charged with 18 counts of Larceny by Servant in the Magistrate's Court, Suva.
   
2. In Case No. 378/2008 the applicant was charged and on 16th December 2009 he was discharged from the proceedings. Mr. Raza who appeared for the accused in the Magistrate's Court has raised concerns on the issue of disclosures not being given to defence, as requested.
   
3. Thereafter in Case No. 577 of 2010 the applicant was charged again in the Magistrate's Court on 26/04/2010.
   
4. After the case being called for mention and hearing for several dates, the applicant applies for a permanent stay of proceedings. It is submitted by the applicant that the matter has been continuously adjourned for mention from time to time. The applicant was initially charged, discharged and recharged to allow the prosecution to serve the full disclosures. By letter dated 10/08/2009, specific request was made for disclosure of specific documents; however till date prosecution has failed to serve full disclosures. Further it is stated that, as the disclosures sought go to the root of the defence case, the defence will be highly prejudiced. It is submitted further that the disclosures sought are crucial to the defence case which goes to negate the charges laid against the applicant.
   
5. In response, the Respondent submitted that the complaint that the prosecution has not served adequate disclosures to the defence is misconceived. The regular adjournments in the case was not wholly due to the prosecution not serving adequate disclosures when asked by the court, but also due to the defence counsel not appearing before court on several occasions. The applicant has been given sufficient particulars to meet his defence and he is aware of the prosecution case. It is further submitted that the prosecution has disclosed all the evidence in its possession.
   

The Law

6. 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".

7. 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).
   
8. In Manjula Ali v The State Crim. App. No. HAA023 of 2005S, after considering the local and New Zealand cases court said:
   

"These authorities reinforce existing principles on the prosecution's duty to disclose. The prosecution has a duty to disclose all relevant material but it cannot disclose what it does not have."

9. The applicant in this case complains that the prosecution has failed to disclose some of the documents that he requested. By letter dated 10/08/2009 the lawyers for the applicant requested the following documents from the prosecution.
   
   • (a) Bank Statements for the months of May 2007 till November 2007
   • (b) Copies of all invoices
   • (c) Details of all banking done in Westpac Suva
   • (d) All dated cheques sent to Lautoka by CDP
     
10. It is not disputed that some of the invoices and documents mentioned in the (c) and (d) above were not disclosed. The position of the prosecution is that they have disclosed all documents that are in their possession and what they intend to produce in their case.
    
11. Referring to the case of AJ v The Queen [2011] VSCA 215 (27th July 2011) the counsel for the applicant submitted that the obligation to disclose includes, in an appropriate case, an obligation to make inquiries.
    
12. In AJ v The Queen (supra), the Court referred to what was said in case of R v Garofalo (1999) 2 VR 625 at 637 by Ormiston JA. In case of R v Garofalo (supra), the accused was convicted of attempting to obtain property by deception. Shortly after trial, it was revealed, that the principal prosecution witness had one month before the trial pleaded guilty to various counts of dishonesty and had 28 previous convictions, a considerable number of which were for offences of dishonesty. Had the defence known the said previous convictions, defence could have in cross examination attacked the credibility of the witness. The Court held that the prosecution is under a general duty to make disclosures of the previous convictions of prosecution witnesses. Under those circumstances the Court referring to other cases said:
    

"The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed."

13. In the instant case the documents which the defence (applicant) sought to disclose do not come within the category which the prosecution is obliged to make inquiries and disclose. These documents appear to be relevant to advance the defence case, of which prosecution had no knowledge of. Where it is sought to obtain material from 3rd parties the proper procedure would be for the applicant to apply for a subpoena unless those materials are in the possession of the prosecution or that the prosecution had access to those in the investigation.
    
14. Further the non disclosure of the said documents in this case is not a ground for permanent stay in the given circumstances. If the defence case is hampered by want of the documents, it is for the Judge to explain it to the assessors along with the importance of a fair trial or for the Magistrate to consider the same when delivering his judgment.
    
15. Hence application for stay is refused.
    

Priyantha Fernando
Judge

At Suva
Wednesday 18th April 2012