State v Salauca [2012] FJHC 959; HAM006.2012 (20 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM. 006 OF 2012

BETWEEN:

KELEPI SALAUCA
APPLICANT

AND:

STATE
RESPONDENT

Counsel: Applicant In Person
Ms. T. Leweni for the State

Date of Ruling : 20th March 2012

RULING ON STAY

1. On 10/11/2010 the applicant was charged with Robbery with Violence in the Magistrate's Court Nasinu.
   
2. Applicant applies for a permanent stay of prosecution on the grounds of delay.
   
3. Applicant submitted that justice delayed is justice denied and any further proceedings would weaken his defence. Further he submitted that all his witnesses cannot be located. The complainant has visited him in prison and threatened him, which he finds it an obstruction of justice.
   

The Law

4. 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".

5. 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).
   
6. In case of Director of Public Prosecutions v Jackaran Tokai and others (Trinidad and Tobago) [1996] (12th June 1996) Privy Council Appeal No.53 of 1995 (Judgment delivered on 12th June, 1996).
   

Their Lordships said:

"However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions [1964] A.C.1254, 1304, that:

'generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it'.

Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J. in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23.

In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a Permanent Stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict."

7. The chronology of the events in the Magistrate's Court as submitted by the Respondent are as follows:
   

Court call dates:	Nature of call date:
(1) 10.11.10	First call
(2) 07.02.10	Mention for disclosures
(3) 21.10.10	Mention due to bomb threat
(4) 08.02.11	Mention – Applicant not present. DPP made application for consolidation of charge involving applicant and another. Matter adjourned for DPP to clarify which court granted applicant bail as he is in remand for this matter.
(5) 22.02.11	Mention – Amended charge filed by DPP, applicant not present as he was bailed in another court.
(6) 09.03.11	Mention – Applicant not present, bench warrant issued
(7) 22.03.11	Mention – Bench warrant not executed against applicant, adjourned for execution of bench warrant.
(8) 05.04.11	Mention – Bench warrant still not executed, adjourned for execution of the bench warrant against applicant.
(9) 19.04.11	Mention – Applicant not present, State informed the court that applicant arrested by Valelevu Police Station and so Production Order issued.
(10) 04.05.11	Mention – One RM sitting so matter adjourned.
(11) 18.05.11	Mention – Applicant present
(12) 01.06.11	Mention – Applicant not brought.
(13) 15.06.11	Mention – Resident Magistrate on leave, applicant present.
(14) 01.07.11	Mention – applicant present, clerks workshop so matter adjourned.
(15) 15.07.11	Mention – Applicant complained that victim visiting them in prison and DPP seeking time to reply to bail. DPP to take it up with complainant/victim and matter adjourned for state reply.
(16) 22.07.11	Mention – Applicant present
(17) 05.08.11	Mention – Admission of new lawyers so matter adjourned.
(18) 19.08.11	Mention – State filed a reply to bail application, plea taken and applicant pleaded not guilty. Full disclosures served and matter adjourned for mention to fix a hearing date and bail ruling.
(19) 02.09.11	Mention – Applicant present, RM on sick leave.
(20) 16.09.11	Mention – Applicant present, stating lost disclosures in prison, bail ruling pending. Matter adjourned.
(21) 30.09.11	Mention – RM attending workshop, adjourned for mention.
(22) 14.10.11	Mention – Bail ruling pending.
(23) 28.10.11	Mention – DPP workshop, adjourned for mention.
(24) 11.11.11	Mention to fix hearing date. DPP counsel in High Court trial.
(25) 25.11.11	Mention – DPP in training. Matter adjourned for mention to fix hearing date.
(26) 28.11.11	Mention – Disclosures served again to applicant and matter transferred to RM Seruvatu for bail ruling.
(27) 12.12.11	Mention
(28) 28.12.11	Mention – DPP training.
(29) 11.01.12	Mention
(30) 25.01.12	Mention to set a hearing date. Applicant not ready with Voir dire grounds. Matter set down for hearing on the 21st, 22nd and 23rd March 2012.
(31) 08.02.12	Mention – Applicant not present, in Navua for another matter.
(32) 22.02.12	Mention

8. The applicant had been absent from Court on 6 occasions starting from 08/02/2011 to 19/04/2011 until he was arrested and produced. The delay in the Magistrate's Court is less than 1½ years, out of which the applicant has caused delay by being absent on 6 occasions. However, the delays is minimal.
   
9. Applicant stated that his witness was in remand for 4 months and now cannot be located. If the name of the witness is known, that can be informed to the Magistrate's Court to get the witness to give evidence.
   
10. Although the applicant stated that his witnesses cannot be located, he has not disclosed who those witnesses are (other than the witness who had been in remand), and what evidence they are going to give on his behalf. Applicant has failed to show how he would be prevented a fair trial or how it would cause prejudice to his defence. The visit of the complainant in prison can be dealt with in cross examination of the complainant and that would not cause any prejudice to applicant in his defence. The time period of less than 1½ years cannot be in any manner prejudice to applicant in his defence.
    
11. The trial in the Magistrate's Court is already fixed for 21st March 2012 onwards for 3 days. The applicant has caused part of the delay and this application was heard as soon as possible as the trial is already fixed in the Magistrate's Court and otherwise it would cause further delay.
    
12. I find that no prejudice would cause to applicant due to the above mentioned delay which is minimal and that the applicant can be tried fairly.
    
13. Application for permanent stay is refused.
    

Priyantha Fernando
Judge

At Suva
20th March 2012