Ali v State [2012] FJHC 1294; HAM25.2012 (24 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Miscellaneous Case No: HAM 25 of 2012

BETWEEN:

YASIN ALI
Applicant

AND:

THE STATE
Respondent

BEFORE: Hon. Mr. Justice P.K. Madigan

Counsel: Applicant in person
Ms P. Madanavosa for State

Date of Hearing: 16th July & 17th August 2012

Date of Judgment: 24th August 2012

JUDGMENT

1. The applicant makes application for a permanent stay of proceedings in the Magistrate's Court at Suva, (being Criminal Case No. 1651 of 2005) on the grounds of delay.
   
2. The applicant has filed and relies on a simple home-made written submission in support of his application. The State was ordered to file written submissions by the 15th August 2012 in response. They failed to do so. The lack of assistance from the State suggests that they have no interest in defending this application as well as making the assessment of the true factual situation difficult for the Court. In the absence of submissions to the contrary, this Court must rely on the chronology provided by the applicant along with a woefully inadequate Court record of proceedings below.
   
3. The applicant was charged with rape of a minor in 2005. It went to trial hearing in 2007 when he was acquitted. The State appealed the acquittal. Winter J allowed the appeal but in doing so reduced the charge of rape to one of defilement. He adjourned sentence for the defilement conviction but left the bench before handing down sentence. In January 2008 Shameem J sentenced the applicant to three years imprisonment for defilement. The applicant appealed the conviction and sentence to the Fiji Court of Appeal. In June 2008 the Court of Appeal allowed the appeal but sent the case back to the Magistrate's Court for the applicant to be tried for rape, de novo. On the date of hearing for the retrial (22 October 2008) the State asked that the hearing to be vacated because the victim was in examination. A new hearing date was set for 24 November 2008. On that day the State asked for a new hearing date, they saying that they had lost the exhibits. The retrial proceeded to hearing on 11 February 2009, and continued on 3 March 2009. The abrogation of the Constitution (on 9 April 2009) intervened between trial and judgment. The Magistrate then left the bench. The matter came before the lower court again in November 2011 for trial de novo before the Chief Magistrate. This application then intervened.
   
4. In the case of Tevita Nalawa CAV002/09 the Supreme Court after analyzing cases at common law stated the basic principles can be stated as follows:
   
   • (i) even where delay is unjustifiable a permanent stay is the exception and not the rule;
     

(ii) where there is no fault on the part of the prosecution, very rarely will a stay be granted;

(iii) no stay should be granted in the absence of any serious prejudice to the defence so that no trial can be held; and

(iv) on the issue of prejudice, the trial court has processes which can deal with the admissibility of evidence if it can be shown there is prejudice to an accused as a result of delay.

5. In the case of Mohammed Sharif Shaim Misc. A.17 of 2007 the Court held that even if a delay was shown to be unreasonable the governing factor must always be whether an accused can be tried fairly without any impairment in the conduct of his defence and that if that question can be answered affirmatively, the prosecution should not be stayed.
   
6. Although this matter has been "progressing" since 2005, those 7 years have been spent in various appeals by both parties. The State had appealed an acquittal which took time, although it was successful. The accused appealed a finding of guilt for the lesser charge of defilement, after he had been delayed by the departure of the Judge dealing with his case. The Court of Appeal has sent the case back to the Magistrate's Court where it was unfortunately victim to the abrogation and loss of some of the Magistrates. A retrial de novo, post abrogation, has been delayed by the State not being ready to prosecute, after all these years.
   
7. In taking into account the appeals from both sides, in reality the proceedings below date only from 21st September 2011 when the retrial first came back to the court below. There was nothing improper or abusive in that process. After numerous mentions, mostly for the State to "consider the charge" the within application brought progress to a halt.
   
8. Although the applicant says that he is prejudiced by the delay by "having no documents, no police records"; I understand him to mean by that disclosures, which the State will no doubt provide him a copy of .
   
9. The applicant's perceived prejudice being satisfied and there not being too much time since the commencement of retrial proceedings, this application must and does fail and I make the following orders:
   

(i) the case of 1651/2005 be called in the Magistrate's Court at Suva on 31 August next and a trial date fixed with the utmost priority;

(ii) the State to make full disclosure of materials for this applicant;

(iii) that all due expedition be given to having this trial completed;

(iv) that a production order be issued to bring up the applicant/accused on 31 August next.

Paul K. Madigan
JUDGE

At Suva
24th August 2012