Prasad v State [2012] FJHC 1422; HAM174.2012 (21 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANOUS JURISDICTION

CRIMINAL CASE NO. HAM 174 OF 2012

BETWEEN:

DINESH PRASAD
[Applicant]

AND:

STATE
[Respondent]

COUNSELS: Mr. Iqbal Khan for the Applicant
Mr T. Qalinauci for the Respondent

Date of Ruling: 21st November 2012

RULING

[1] This is an application to Stay Proceedings filed by the Accused Applicant above named.

[2] The Applicant is charged before the Magistrate of Lautoka on the following charge.

Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to Section 313 of Penal Code Cap 17.

Particulars of Offence

DINESH PRASAD s/o Chandrika Prasad between August 2004 to February 2005 at Lautoka in the Western Division received a total of $14,984.00 of welding rods and assorted nut with bolts, knowing the same to have been stolen, the property of Industrial Supplies, Lautoka.

[3] The Applicant complaints to the Court that two witnesses were dead hence he is unable to defend himself.

[4] One witness is Inspector Goundar, who is a Prosecution witness and the investigating officer. The other witness is an employee of the Accused.

[5] There is no specific legal provision available in the Criminal Procedure Decree.

[6] Considering the previous decisions of our Courts and similar jurisdictions it comes within the powers of inherent jurisdiction of the Court.

[7] The power to stay a prosecution by a superior court is derived from the English common law. In Connelly v DPP [1964] 2 All ER 401 at 406 Lord Reid said '...there must always be a residual discretion to prevent anything which savours of abuse of process.' The bounds of that discretion were later laid down by Lord Salmon in DPP v Humphrys [1976] 2 All ER 497 at 527-528:

"... a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene."

[8] More recently, in Moti v The Queen [2011] HCA 50 (7 December 2011) the High Court of Australia summarized the governing principles at paragraph 10:

"Both submissions were advanced under the rubric of "abuse of process" and sought to engage the well-established rule that in both civil and criminal proceedings "Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process." As four members of this Court said in Batistatos v Roads and Traffic Authority (NSW) "what amounts to abuse of court process is insusceptible of a formulation comprising closed categories." In Ridgeway v The Queen, Gaudron J stated that the power extended to proceedings that are "instituted for an improper purpose", "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment." In Williams v Spautz the plurality distinguished between "abuse of process in the sense of proceedings instituted and maintained for an improper purpose" and "abuse of process that precluded a fair trial." In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute."

[9] The question before the Court is was there a undue delay which caused injustice to this Applicant.

[10] From the 6th April 2005 to 17th August 2012 the case was mentioned (including Hearing dates) for more than 63 days. On a mere perusal, I find both parties had not co-operated to take up the case for trial. The Prosecution moved about 3 days and the defence had moved more than 15 days which including vacating the trial date for more than 6 times.

[11] This matter comes within the inherent jurisdiction of the Court hence the Court should be extremely careful of exercising those powers.

[12] Considering the decided cases I find the matter does not shock the conscious of the Court.

[13] After carefully considering all materials before the Court I find the application for Stay Proceeding is frivolous and vexatious hence I refuse the application.

[14] Considering the date of filing the charge, I direct the Learned Magistrate to give priority to this case and conclude this matter within 3 months. Further I request both parties to co-operate with the Learned Magistrate to conclude this matter within the stipulated time.

[15] Copy of this Order to be sent to the Learned Magistrate.

S. Thurairaja
Judge
At Lautoka

21st November 2012
Solicitors: Messrs Iqbal Khan & Associates for the Applicant
The Office of the Director of Public Prosecution for the Respondent