Bose v State [2015] FJHC 1026; HAM180.2015 (23 December 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

HAM NO. 180 OF 2015

BETWEEN:

ISIMELI BOSE
Petitioner

AND:

STATE
Respondent

Counsel: Mr. Vuataki for the Applicants
Mr. S. Babitu for Respondent

Date of Hearing: 14th of December 2015
Date of Ruling: 23rd of December 2015

RULING

1. The Petitioner filed this Notice of Motion seeking an order that the prosecution of the Petitioner in criminal action No 633/2007 of the Magistrates court in Lautoka be permanently stayed. The Motion states that this application is made pursuant to inherent jurisdiction of this court and Section 14(2) (g) and 15(1) and (3) of the Constitution of the Republic of Fiji. This application is found on the following grounds, inter alia;
   
   1. The Petitioner's right to a fair trial within a reasonable time has been breached,
      
   2. That due to the undue delay it will be difficult to trace former employees of the company who are essential witnesses and this will be prejudicial to the petitioner,
      
   100. Undue delay has been caused as the station diary and cell books could not be produced by the prosecution,
        
   4. That there has been as actual prejudice of loss as an essential witness for the petitioner has passed away,
      
   5. That undue delay has been prejudicial to the petitioner as the petitioner has had to relive the episodes,
      
   6. No voir dire disclosures severed on the petitioner and will be prejudicial,
      
   7. Upon the other grounds deposed in the Affidavit of Isimeli Bose,
      
2. The notice of motion is being supported by an affidavit of the Petitioner, stating the background of this application. The petitioner deposed in his affidavit the chronological background of the proceedings in the Magistrates court and stated that the delay of 8 years for taking this action to the conclusion is unreasonable.
   
3. The learned counsel for the petitioner and the respondent informed the court that they wanted the hearing to be conducted by way of written submissions. I accordingly directed the parties to file their respective written submissions, which they filed as per the directions. Having carefully considered the notice of motion, the affidavit of the petitioner, copy of the record of the proceedings in the Magistrates court and the respective submissions of the parties, I now proceed to pronounce my ruling as follows.
   
4. The Petitioner was initially charged in the Magistrates court on the 18th of September 2007 for one count of "Being a member of unlawful assembly" contrary to Section 86 and 87 of the Penal Code, one count of "Forcible Entry" contrary to Section 99 of the Penal Code and two counts of "Assault Occasioning Actual Bodily Harm" contrary to Section 245 of the Penal Code.
   
5. The matter had been adjourned for several occasions on various grounds including the non appearance of the petitioner, for the Petitioner to get legal representation and to make representation to the Director of Public Prosecution. Finally, the matter was set down for hearing on 9th of December 2010. However, the hearing was not eventuated on the ground that the counsel of the defence was not ready. All the prosecution witnesses were present on that day. The hearing was re-fixed on 24th of March 2011. At that time, the prosecution made an application to vacate the hearing on the ground of non preparation, for which the defence made no objection. The hearing was then fixed on 01st of November 2011. Unfortunately the learned Magistrate had resigned and the hearing was re-fixed on 9th of January 2012. It was the fourth hearing date that allocated for this action. Surprisingly, the new learned magistrate vacated the hearing on the ground that he wanted to study the case. The matter was fixed for hearing on the 16th of April 2012. On that occasion, the learned counsel for the defence was not present and the hearing was vacated.
   
6. The learned counsel for the defence sought further disclosures on the 28th of May 2012, that was after five years of the institution of this action and after six vacated dates of hearing. The hearing was re-fixed on 6th and 7th of December 2012. However, once again it was vacated on the ground that the counsels were attending the Attorney General's conference. The matter was then re-fixed for hearing for the eighth times on 3rd and 4th June 2013, but the magistrate was on leave on that day and the hearing was again vacated.
   
7. In the meantime, the Petitioner filed an application in the High Court seeking an order to stay the proceedings of this matter in the Magistrates court. Justice De Silva refused the said application and directed the learned Magistrate to conclude the hearing within six months of his said order. Once again the matter was fixed for hearing on 11th of August 2014. At that occasion the accused was not present as he was sick. The prosecution withdrew the third and fourth counts against the Petitioner and filed amended charges with one count of "Being a member of unlawful assembly" contrary to Section 86 and 87 of the Penal Code and one count of "Forcible Entry" contrary to Section 99 of the Penal Code.
   
8. The Petitioner has filed grounds for voir dire challenging the admissibility of his caution interview in evidence on 9th of October 2014, that was after seven years of the institution of this action and nine dates of vacated hearings. The matter has been adjourning for the disclosure for the voir dire hearing since then.
   
9. Having briefly discussed the chronological background of this action, I now draw my attention to discuss the applicable law for the application in this nature.
   
10. Lord Lane CJ in Attorney General's reference ( No 1 of 1990) (1992) Q.B 630 at 643-644 has discussed the applicable principles for stay of proceedings on the ground of delay, where his lordship held that;
    

Stay 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 Bernnan J in Jago v District Court of New South Wales (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 action of the defendant himself, should never be the foundation for a stay,

In answering 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 word, 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 where 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 issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the power of the judge to give appropriate direction to the jury before they consider their verdict".

11. In view of the observation of Lord Lane CJ, the Petitioner is required to establish not only the existence of delay but also the existence of serious prejudice due to such delay to the extent that the Petitioner could not have a fair trial.
    
12. The Supreme Court of Fiji in Nalawa v State ( 2010) FJSC 2; CAV002.2009 ( 13 August 2010) having discussed the approaches in common law on the issue of stay of proceedings, held that;
    

The following principles may now be stated as basic to the common law;

1. Even where delay is unjustifiable a permanent stay is the exception and not the rule
   
2. Where there is no fault on the part of the prosecution, very rarely will a stay be granted,
   
3. No stay should be granted in the absence of any serious prejudice to the defence so that no fair trial can be held, and
   
4. On the issue of prejudice, the trial court has processes which can deal with the admissibility of evidence if it can be shown there is prejudice to an accused as a result of delay,
   

13. Justice De Silva has already dealt with the issue of delay and the death of one of the material witnesses for the defence in his ruling delivered on 30th of May 2013. His lordship directed the learned Magistrate to conclude the hearing of this action within five months. Instead of taking a progressive and expedient action in order to take the matter to a conclusion as per the direction given by Justice De Silva, the learned Magistrate had adjourned this matter on two occasions on 3rd of June 2014 and 14th of July 2014 respectively, without even recording the reasons for such. Eventually, the matter was fixed for hearing on 11th of August 2014, where the accused failed to appear as he was sick. The hearing was then vacated and adjourned for voir dire disclosures.
    
14. In view of these reasons discussed above, the main issue is to be determine in this instant application is that the delay of taking the matter to a conclusion as per the direction of Justice De Silva could amount to an unjustifiable delay causing the Petitioner a prejudice in his defence.
    
15. No reasons were given for the two adjournments granted by the learned Magistrate on 3rd of June and 14th of July 2014 respectively. However, the hearing of the matter on 11th of August 2014 was vacated on the ground of the sickness of the Petitioner. I do not find the withdrawal of the two counts from the original charge would adversely affect the defence to proceed the hearing. It is surprising to note that the Petitioner filed grounds for voir dire to challenge the admissibility of the caution interview in evidence only on 9th of October 2014, that was seven years after the institution of the action. It is obvious that the prosecution might need sometime to find disclosers for an incident that took place in seven years ago. Under these circumstances, the Petitioner and the prosecution have to share the responsibility for the delay of taking the matter to its conclusion.
    
16. Having found that the Petitioner has also contributed substantially to the delay of the proceedings, it is my opinion that as per the direction given by the Supreme Court in Nawala v State (supra) the application for permanent stay has no merit.
    
17. Having considered the reasons discussed above, it is my opinion that there is no exceptional circumstances to stay the proceeding of the Magistrate court's Action No 633 of 2007. I accordingly refuse and dismiss this application for permanent stay. I further order the learned trial Magistrate to hear and conclude the trial of this action No 633 of 2007 within five months of this order.
    
18. The Deputy Registrar of the High Court is hereby ordered to serve a copy of this ruling to the Resident Magistrate in Lautoka.

R. D. R. Thushara Rajasinghe
Judge
At Lautoka
23rd of December 2015
Solicitors: Vuaitaki Law for Applicants
Office of the Director of Public Prosecutions