Malatolu v State [2014] FJHC 316; HAM432.2013 (8 May 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: 432 OF 2013

BETWEEN:

SAULA MALATOLU
Applicant

AND:

STATE
Respondent

Counsel: Applicant in Person
Ms. S. Kiran for Respondent

Date of Hearing: 26 March 2014
Date of Ruling: 8 May 2014

RULING

1. This is an application for permanent stay of proceedings.
   
2. The applicant was charged before the Magistrate Court of Lautoka with others on one count of Robbery with Violence.
   
3. The particulars of the offence are:
   

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293 (1) (b) of the Penal Code, Cap 17.

Particulars of Offence

MOSESE TUINAYAU, SIRELI LILO, SAULA MALATOLU and PAULA NAMUA on the 18th day of January, 2009 at Lautoka in the Western Division robbed PARAS RAM f/n Appal Sami of cash FJD$200.00, AUD$150.00, US$500.00, NZ$50.00, 9 bottles of assorted liquor valued $980.00, assorted jewelleries valued $4,100.00, 3 wrist watches valued $1,000.00, a Nokia mobile phone valued $200.00, a Digicel mobile phone valued $19.00 and an Easytel phone valued $60.00 all to the total value of $7,259.00 and during the time of such robbery the said PARAS RAM f/n Appal Sami was threatened of personal violence.

4. This application was filed on 1st November 2013 on the basis the applicant is grieved and dissatisfied with the undue delay in not having this matter heard and determined within a reasonable time and having given rise to grave and substantial injustice in that he had been placed in a state of uncertainty for too long concerning his fate since 2009.
   
5. On 4th February 2014, the applicant filed grounds;
   
   • (i) That the unreasonable delay will cause the miscarriage of justice and mistrial during the hearing of this matter.
     
   • (ii) That the delay in hearing this matter breaches the fundamental rights enshrined in the International Conventions regarding the trial of case within reasonable time.
     
   • (iii) That the delay in a manifestation of the abuse of process and also prejudice the accused and deny me a fair and appropriate trial.
     
   • (iv) That the trial in this matter will be unsafe as most of the state witnesses either cannot clearly recall the exact events that eventuated on the date in question.
     
   • (v) That the interest of the accused person will not be truly served should the court proceed to trial based entirely on the above stated facts.
     
   • (vi) That the applicant never contributed in any way to the delay in disposing this matter as most of the time the prosecution request for the adjournment of the hearing.
     
   • (vii) That the court has already set this matter for trial on seven occasions but on the particular day nominated, the DPP stated that they are not ready for trial.
     
   • (viii) That the delay is excessive as the matter has been before the court for period of 5 years until to date.
     
6. State had filed two comprehensive written submissions.
   
7. The principles for stay of prosecution are settled in Fiji. In Mohammed Sharif Sahim v. State [2007] FCA 17/07, the Court of Appeal when reviewing the law on criminal trial delay held that:
   

"...it was well settled since Apaitia Seru and Anthony Fredrick Stevens v. The State Crim. App. AAU 0041/42 of 1995 S that where the delay was unreasonable, prejudice to the accused could be presumed. This court in that case adopted the approach of the majority of the Supreme Court of Canada in R v. Morgan [1992] 1SCR and New Zealand court of appeal in Martin v. District Court at Tauranga [1995] 2 NZLR 419 that stated:

" The general approach to a determination as to whether the right has been denied is not the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay. As I noted in Smith (R v Smith (1989) 52 CCC (3D) 97), (I)t is axiomatic that some delay is inevitable. The question is, at which point does the delay become unreasonable? ...While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

(i) The length of delay

(ii) Waiver of time periods

(iii) The reasons for the delay, including

• (a) Inherent time requirements of the case;
  
• (b) Actions of the accused;
  
• (c) Actions of the Crown;
  
• (d) Limits on institutional resources, and
  
• (e) Other reasons for the delay, and
  
• (iv) Prejudice to the accused."
  

8. In Johnson v State [2010] FJHC 356;HAM 177.2010 (23 August 2010), Hon. Mr. Justice D. Goundar stated:
   

"...The circumstances in which abuse of process may arise are varied. In R v Derby Crown Court, exp Brooks [1984] Cr. App. R.164, Sir Roger Ormrod identified two circumstances in which abuse of process may arise:

"...It may be abuse of process 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 had 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."

9. His lordship further quoted Justice Bain's remarks from State v Rokotuiwai [1998] FJHC 196 identifying the factors which needs to be considered in deciding whether delay is reasonable or not:
   

".. The length of the delay, the reasons for the delay, the actions of the defendant, the actions of the prosecutor, availability of legal and judicial resources, the nature of the charge and prejudice to the defendant may be relevant."

10. Hon. Mr. Justice Paul Madigan in Tafizal Rahiman v State [2011] FJHC 298 at paragraph 7 stated that:
    

"The facts to be considered when assessing whether delay is unreasonable or not are expounded in the Privy Council decision in Flowers v The Queen [2007] WLR 2396. The board held that the Court should take into account:

(i) The length of delay;

(ii) The reason for delay;

(iii) Whether or not the defendant has asserted his rights to a speedy trial; and

(iv) The extend of prejudice."

Stay in this case was refused even though the delay was 5 years because they were not brought to Court which was a system failure and not an unreasonable delay.

11. The State in their submissions has submitted chronological history of the events in the Magistrate Court which is reproduced below to understand what happened in this case.
    

CHRONOLOGICAL HISTORY OF EVENT AT THE MAGISTRATES COURT

20/01/2009	3 Accused first brought before RM Mr Rokoika – all Accused bailed in the sum of $800.00.
30/01/2009	4th Accused present in Court.
03/02/2009	First 3 Accused appeared and matter adjourned for the 4th Accused to appear to amalgamate charges.
12/02/2009	All 4 Accused present and both charges amalgamated. All Accused elected MC trial and pleaded not guilty.
26/02/2009	All Accused present, matter adjourned. Applicant told Court that his mother passed away, Court allowed him bail on $500.00 bail bond.
12/03/2009	Accused 2 and 4 further remanded, Accused 1 bail on $300.00 bail bond.
24/03/2009	Full disclosures served. Hearing fixed for 03/06/2009.
07/04/2009	Accused 2 and 4 appeared and further remanded.	Procedure to extend warrant.
21/04/2009	Accused 2 and 4 appeared and further remanded.	Procedure to extend warrant.
05/05/2009	Accused 2 and 4 appeared and further remanded.	Procedure to extend warrant.
19/05/2009	Accused 2 and 4 appeared and further remanded (both accused escaped from police custody whilst being escorted).	Procedure to extend warrant.
02/06/2009	Accused 2 and 4 not present as they escaped from custody. Bench warrant issued.	Accused persons caused delay.
03/06/2009	HEARING vacated as accused 2 and 4 are still on the run. Accused 1 and 3 are on bail.	Accused persons caused the vacation of trial.
08/07/2009	Accused 2 arrested on bench warrant and further remanded in custody.
22/07/2009	Mention only.
31/07/2009	Magistrates unavailable – adjourned. Accused 2 is a serving prisoner.	Court restrains.
18/09/2009	Accused 4 arrested on bench warrant and further remanded.
05/10/2009	All Accused present except Accused 2. Accused 4 made bail application, objected by prosecution and bail was refused.
16/10/2009	All Accused present, matter further adjourned.
30/10/2009	Accused 1 varied his bail conditions.
13/11/2009	Accused 4 further remanded.	Procedure to extend warrant.
11/12/2009	Accused 4's bail application refused.	Procedure to extend warrant.
24/12/2009	All Accused present except Accused 4 so PO was issued.
06/01/2010	Matter adjourned to 20/01/10 – Accused 4 further remanded.	Procedure to extend warrant.
20/01/2010	Accused 2 not present and Accused 4 further remanded. Matter is fixed for hearing on 11/06/2010.
03/02/2010	Accused 4 further remanded.	Procedure to extend warrant.
10/02/2010	Accused 4 further remanded.	Procedure to extend warrant.
22/02/2010	Accused 4 further remanded.	Procedure to extend warrant.
08/03/2010	Accused 4 further remanded. PO for Accused 2 to appear.	Procedure to extend warrant.
19/03/2010	Accused 4 further remanded. Accused 2 told to appear for hearing on 11/06/2010 as he will be released in April.	Procedure to extend warrant.
01/04/2010	Accused 4 further remanded.	Procedure to extend warrant.
09/04/2010	Accused 4 further remanded till 21/04/2010.
21/04/2010	Accused 1 present. Accused 4 further remanded.	Procedure to extend warrant.
05/05/2010	Accused 4 further remanded.	Procedure to extend warrant.
11/06/2010	HEARING vacated only Accused 2 present. Accused 1 and 3 bail revoked and PO issued for Accused 4. Bench warrant against Accused 1 and Accused 3.	Accused persons caused the vacation of trial.
15/06/2010	Accused 1 and 3 appeared on their own but remanded in custody as bail was revoked.
29/06/2010	Accused 1 – 3 present, PO issued for Accused 4.
30/06/2010	Accused 1 and 3 bail in the sum of $2,000.00 bail bond.
16/07/2010	Accused 4 further remanded.	Procedure to extend warrant.
28/07/2010	PO for Accused 3 and 4.
10/08/2010	Accused 3 and 4 further remanded.	Procedure to extend warrant.
23/08/2010	Accused 3 and 4 further remanded. Prosecution made application for bail to be revoked for Accused 2. Ruling on application.	Procedure to extend warrant.
09/09/2010	Only Accused 1 and 3 present, matter adjourned.	Accused caused delay.
16/09/2010	Accused 1, 3 and 4 present. Matter adjourned.
20/09/2010	All present, matter adjourned for mention.
04/10/2010	Only Accused 1 present, matter adjourned.
14/10/2010
25/10/2010	Accused 1 present, other 3 still in remand and not present.
22/11/2010	Accused 1 and 3 present, matter adjourned. Production order handed to escorting officers.
06/12/2010	Accused 1 and 3 present, Accused 3 made bail application. Ruling on 08/12/2010.
08/12/2010	Bail refused for Accused 3.
30/12/2010	Accused 1, 2 and 4 not present. Matter fixed for hearing on 12/04/2011.
12/04/2011	HEARING vacated – RM on leave.	Court caused the vacation of trial.
26/04/2011	RM still on leave.
11/05/2011	RM still on leave.
24/05/2011	Accused 1 not present – bench warrant issued. Accused 2 allowed bail and Accused 3 further remanded. Accused 4 is a serving prisoner. Later Accused 1 appeared and bench warrant was cancelled.
07/06/2011	All Accused present. Matter fixed for hearing 05/12/11 – 08/12/11 – voir dire then trial proper.
05/12/2011	HEARING vacated – all prosecution witness not present. Matter relisted for voir dire from the 23/02/12 – 24/02/12.	Prosecution caused the vacation.
23/02/2012	VOIR DIRE vacated – interviewing officers not present. Adjourned to check on availability of officers.	Prosecution caused the vacation.
08/03/2012	Accused requested for Judges Rules. Adjourned to provide them with JR.
23/04/2012	RM sick. Matter adjourned.
19/06/2012	Matter fixed for voir dire hearing on 14/11/12.
14/11/2012	VOIR DIRE vacated – only Accused 3 present. Bench warrant issued against Accused 1 and production order issued against Accused 2 and 4. Accused 3 yet to file grounds of voir dire.	Accused persons caused the vacation of trial.
03/12/2012	Accused 1 still on bench warrant and Accused 3 is now a serving prisoner. Accused 2 made application for him to be discharged as hearing has been served 5 times but did not proceed. Prosecution objected stating that the delay was because the Accused do not appear. Accused 3 filed his grounds of voir dire.
06/12/2012	Accused 1 appeared on bench warrant and the same was cancelled.
17/12/2012	Cyclone Evan.
11/02/2013	RM sick – Accused 1 – 3 present, Accused 4 not present.
17/04/2013	Accused 1 – 3 present, Accused 4 not present. Matter adjourned for voir dire hearing on 22/05/13.
22/05/2013	Accused 4 not present, Accused 1 not challenging caution interview so excused. VOIR DIRE vacated for non appearance of Accused 4.	Accused person caused the vacation of trial.
24/06/2013	Accused 4 still not present. Matter adjourned. Accused want new set of disclosures.
05/07/2013	Accused want new set of disclosures. Accused 4 has filed representation to DPP's office for Nolle Prosequi.
30/09/2013	RM sitting in Nadi Court.
07/10/2013	RM sitting in Nadi Court.
02/12/2013	RM sitting in Nadi Court.
03/03/2014

12. Therefore it is clear that although there is delay of 5 years the co-accused had contributed to the delay in most of the instances. Once the Magistrate was on leave. The state was not ready for trial twice as the witnesses were not present.
    
13. In Nalawa v State CAV 0002/09 (13 August 2010) the Supreme Court of Fiji laid down the following principles may now be stated as basic to common law.
    

"(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 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 fair trial can be held and;

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

14. The applicant had failed to show on balance of probabilities that due to delay he would suffer serious prejudice to the extent that no trial could be held.
    
15. A stay proceeding is an exceptional remedy, and will only be used if other remedies are not available to deal with the justice of the case. Considering all above, the delay in this case is not unreasonable. The applicant had filed his voir-dire grounds only in 2012 after 3 years of the commencement of the trial.
    
16. Applying the above principles, I do not find merit in any of the grounds on which the application for stay is founded. The case is to be mentioned on 19.5.2014 in the Magistrate Court. The application for permanent stay of the prosecution is, accordingly, disallowed and dismissed.
    
17. Considering the date of filing of the charge, I direct the learned Magistrate to give priority to this case and conclude this matter within 3 months from 19.5.2014. Further, I request both parties to co-operate with the learned Magistrate to conclude this matter within that time frame.
    
18. Copy of this ruling to be send to the learned Magistrate.
    

Sudharshana De Silva
JUDGE

At Lautoka
8th May 2014

Solicitors: Applicant in person
Office of the Director of Public Prosecutions for Respondent