Sinha v State [2013] FJHC 562; HAM355.2013 (25 October 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO. HAM 355 OF 2013

BETWEEN:

SALENDRA SEN SINHA
Applicant

AND:

STATE
Respondent

Applicant in person
Ms. S. Kiran for State

Date of Hearing : 22 October, 2013
Date of Ruling : 25 October, 2013

RULING

[1] The applicant applies for a stay of proceedings in the Magistrates Court on one count of abduction contrary to section 251 of the Penal Code, Cap 17. The applicant is charged with one other as follows:

Statement of Offence

Abduction: Contrary to section 251 of the Penal Code, Cap 17

Particulars of Offence

Salendra Sen Sinha and Lomani Derenalagi on the 10th day of July 2008 at Tavua in the Western Division abducted Police Constable No. 3316, Vishwa Baran with intent to cause the said PC 3316 to be secretly and wrongfully confined.

[2] This is the applicant's third application for stay, in respect of these proceedings. This Court refused his first application on the 13th July 2011 (HAM 70/2011), then saying that the remedy for the delay could be in a priority listing for hearing in the Court below. Unfortunately, more than 2 years later, this has not happened.

[3] The applicant made a second stay application on the 18th June 2012 but it was withdrawn when the Court noted that proceedings below were afoot in preliminary voir dire proceedings.

[4] This instant third application prays that with the elapse of 2 years and three months since this Court ordered that the matter be heard with priority in the Court below, the Courts order has been effectively ignored. He submits that has been prejudiced in having a weak case hanging over his head which has been an unfair influence on the Court of Appeal's decision whether to grant him bail pending appeal in the case for which he is a serving prisoner.

[5] The State submits in very thorough and helpful written submissions filed by Ms. Kiran that the reasons for delay since the Court's order cannot be placed at the feet of any one party. Equally to blame for the delay is the Court, the prosecution and the defence. When fixed for trial in December 2012, Cyclone Evan forced the courts to close and the matter further adjourned. On two occasions the accused asked for time to get private Counsel, on two occasions the accused had asked for time to get new disclosures after his had been "taken". On two further occasions the applicant was not brought up for hearing, production orders having gone "missing". There was a delay of about 2 months awaiting a ruling on the voir dire proceedings from the Magistrate.

[6] Given that the delay now occasioned to this matter is not entirely the fault of the prosecution, but more a systemic delay, then the authorities dictate that is not an "exceptional circumstance" that would warrant a stay of proceedings.

[7] In any event trial dates have now been set for 2nd and 3rd December, 2013.

[8] In this Court's ruling on the applicant's first application (HAM 70/2011), the relevant authorities were traversed, the leading authority being that of Flowers [2007] EWHC 614, [2007] WLR 2396, a decision of the Privy Council where it was held that the essential criterion for deciding on such an application is prejudice occasioned to the applicant and whether any steps can be taken to alleviate that prejudice.

[9] The prejudice claimed by the applicant (para 4, supra) revolves around his application for bail pending appeal of a sentence passed on him for fraud.

[10] It is not for this Court in an application such as this to make comment on the chances of success of his appeal or even his application for bail pending appeal. Considerations of matters that would influence those decisions rest with that Court alone. The applicant's actions in bringing suspicion on himself for this alleged offence are actions he must live with until the matter is determined.

[11] The abduction being one of a Police Officer, the allegation is serious and it is in the public interest that it be heard. It is now set for trial within six weeks and for that reason the application is refused.

[12] The prosecution must make every endeavour to prosecute the case on those dates, including ensuring that production orders are served and acknowledged.

Paul K. Madigan
Judge

At Lautoka
25 October 2013