Waqanivalu v State [2014] FJHC 870; Misc.199.2014 (27 November 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION
CRIMINAL MISCELLANEOUS CASE NO: 199of 2014

BETWEEN:

ASELAI WAQANIVALU
Applicant

AND:

STATE
Respondent

Counsel: Mr. R. Kumar for Applicant
Mr. S. Babitu for Respondent

Date of Hearing: 25 November 2014
Date of Ruling: 27 November 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 Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Decree.
   
3. This application was filed on 15th August 2014. The grounds for application are:
   

(i) Post charge delay and inordinate delay

4. 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 bur 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."

5. 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."

6. His lordship further quoted Justice Pain'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."

7. Hon. Mr. Justice Paul Madigan in TafizalRahiman 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 trail; 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.

8. The State in their submissions has submitted the chronology of events at the Magistrate Court. From 16th November 2010 to 5th June 2012 time was given to applicant to get legal assistance form the Legal Aid Commission. When the case was fixed for hearing on 5thJune 2012 complainant was absent as she accompanied her husband to New Zealand for medical treatment. Then from 6th August 2012 to 17th April 2013 time was moved on behalf of the applicant to make representations to DPP regarding the charge. From 24th April 2013 to 12th May 2014 time moved by both parties to consider whether a voir-dire is needed or not. Now the case is fixed for hearing on 3-4 February 2015.
   
9. Therefore it is clear that although there is delay of 4 years the accused had contributed for the delay.
   
10. The applicant has failed to show on balance of probabilities that due to delay he would suffer serious prejudice to the extent that no trail could be held.
    
11. In Nalawa v StateCAV 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

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

(ii) 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

12. 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.
    
13. 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 now fixed for trial on 3-4 February 2015 in the Magistrate Court. The application for permanent stay of the prosecution is, accordingly, disallowed and dismissed.
    
14. Considering the date of filing of the charge, I direct the learned Magistrate to give priority to this case and conclude this matter within 6 months from 3.2.2015. Further I request both parties to co-operate with the learned Magistrate to conclude this matter within that time frame.
    
15. Copy of this ruling to be send to the learned Magistrate.
    

Sudharshana De Silva
JUDGE

At Lautoka
27th November 2014
Solicitors: Legal Aid Commission for the Applicant
Office of the Director of Public Prosecutions for Respondent