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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CASE NUMBER: HBM 40 of 2016
BETWEEN:
SOLOMONI QURAI
Applicant
AND:
THE DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
AND:
THE ATTORNEY GENERAL OF FIJI
Second Respondent
AND:
THE SOLICITOR GENERAL OF FIJI
Third Respondent
Appearances: Mr. J. Savou for the Applicant.
Mr. S. Vodokisolomoni for1st Respondent.
Mr. J. Sherani for the 2nd Respondent.
Date of Judgment: 07th April 2016
JUDGMENT
(Constitutional Redress Application: section 44 (1) of the CF)
1. On 29th January 2016, the accused had lodged an application for constitutional redress which was received by the High Court Registry on the same day 12.05pm. The papers were not filed and issued until 16 February 2016.
2. In essence the accused initially sought that his appeal case against the State which had not been allocated a date since the filing of the same in the Court of Appeal on 1 May 2015 be determined without unreasonable delay.
3. At the same time, before his application for Constitutional redress was filed and issued, the Court of Appeal Registry, on the same date as the lodgment of the application for constitutional redress, assigned the appeal case a number of AAU 0050 of 2015 and listed the matter for call over on 17 March 2016.
4. This Court then informed the accused of the development and also indicated to him that since his case has been listed in Court, he could now appear in the Court of Appeal and request for an early hearing date. He was informed that he has an alternative remedy available to him which may make his application futile: section 44(4) of the Constitution of Fiji (“CF”).
5. The applicant informed the Court that he was not aware that his case has been listed in Court of Appeal, but that he wished to proceed with his application on a redefined basis in that he wanted the Court to make a declaration on whether he has a right to have his appeal tried within a “reasonable time” under section 14(2) (g) of the CF.
6. The issue therefore before the Court is not an interpretation of any particular section of the Constitution but should properly be framed as:
1 Whether the applicant has a right to have his appeal tried within a reasonable time?
2. What is reasonable time within the meaning of the CF?
3. What is the remedy that the applicant is entitled to (if any) from this Court?
7. The applicant submitted that section 14(2) (g) of the CF states that “every person charged with an offence has the right to have the trial begin and conclude without unreasonable delay”. He argued that the term “trial” extends to his appeal as well and stated that he has a right to have his appeal in the Court of Appeal determined within a reasonable time.
8. In his submission, the counsel for the applicant only confined the argument to the word “trial” and stated that he cannot forcefully submit that the right extends to appeal proceedings. The focus of the counsel was more on the word “trial” whilst the applicant’s concern is on his right under the CF.
9. The Counsel for the 2nd and 3rd respondents, on the other hand, stated that the applicant is out of time in bringing this application in that he should have made an application within 60 days from the date when the matter at issue first arose as required by Rule 3(2) of the High Court (Constitutional) Redress Rules 2015.
10. The Counsel for the 2nd and 3rdrespondents further submitted that the applicant has an alternative remedy in that his case has been assigned a date in the Court of Appeal being 17 March 2016 and since his case is listed in Court, his concerns for the delay can be addressed there.
11. It was also submitted that the accused person has not expressed any concerns to the Court of Appeal regarding the delay in his appeal. All these constitute his application to be an abuse of the process of the Court.
12. Having briefly identified the nature of the applications and the objections, I must proceed to determine the issues that I have outlined. It was submitted by the counsel for the 1st Respondent that when the case was called in the Court of Appeal on 17th March 2016, it was adjourned for appellants written submissions to be filed within 4 weeks, 1st respondent to file submissions within a month thereafter and a hearing date will be fixed on notice.
13. The first issue is whether the accused person has a right to have his appeal determined within a “reasonable time”. To determine this issue I will make specific references to two provisions in the CF that has an impact on the right to fair
trial and case.
14. The two provisions are sections 14(2) (g) and 15 (3) of the CF. The sections read as follows:
“14(2)(g) Every person charged with an offence has the right to have a trial begun and conclude without unreasonable delay”
“15 (3) Every person charged with an offence ...has the right to have the case determined within a reasonable time”.
15. Section 14(2) (g) specifically used the term “trial” and s. 15 uses the term “case”. I will first of all deal with section 14(2) (g). In order to interpret the issue of a right to fair trial, one cannot look at either section in isolation. One of the aspects of fair trial is to have the same tried without undue delay or in other words within a reasonable time or without unreasonable delay. These three distinct terms have no difference in its meanings.
16. Section 14(2)(g) is a similar provision to that of Article 14 of the International Covenant on Civil and Political Rights, 1966 (“ICCPR”) and Article 6 of the European Convention on Human Rights, 1950 (“ECHR”).
17. Article 14 (3) (c) of the ICCPR states that in determination of a criminal charge against a person, he is entitled to be tried without undue delay. This Article, similar to our section 14(2)(g) of the CF makes reference to trial but the discussion below will show that the term trial is not to be used in its literal sense. It has to be assigned a broader meaning. I will discuss this is detail but I must say that most countries law on fair trial has been heavily influenced by the rights enshrined in the ICCPR and it is legitimate that the interpretation of this Article is used to determine the correct meaning of the word trial in our Constitution.
18. Article 6 of the ECHR states that in determination of any criminal charge against a person, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
19. What it means to be tried “without undue delay”: In General Comment No. 13, the Human Rights Committee stated that the right to be tried without undue delay is a guarantee that “relates not only to the time by which a trial should commence, but also the time by which it should end and judgment rendered; all stages must take place ‘without undue delay’.
20. To make this right effective, a procedure must be available in order to ensure that the trial will proceed ‘without undue delay’, both at the first instance and on appeal: United Nations Compilation of General Comments, p. 124, para. 10. This view has been further emphasized in the Committee’s jurisprudence, according to which Article 14(3)(c)and (5) “are to be read together, so that the right to review of conviction and sentence must be made available without delay”: Communications No: 210/1986 and 225/1987, E. Pratt and I. Morgan v. Jamiaca (Views adopted on 6 April 1989), in UN doc. GAOR, A/44/40, p. 229, para. 13.3.
21. In the case of Pratt and Morgan (supra), the authors were unable to proceed to appeal to the Privy Council because it took the Court of Appeal almost three years and nine months to issue a written judgment. The Committee did not accept the explanation of the State party that this delay “was attributable to an oversight and that the authors should have asserted their right to receive earlier the written judgment”; on the contrary, it considered that the responsibility for this delay lay with the judicial authorities, a responsibility that “is neither dependent on a request for production by the counsel in a trial nor is non-fulfillment of this responsibility excused by the absence of a request from the accused. In reaching its conclusion that this delay violated both article 14(3) (c) and (5), the Committee stated that “it matters not in the event that the Privy Council affirmed the conviction of the authors”, since “in all cases, and especially in capital cases, accused persons are entitled to trial and appeal without undue delay, whatever the outcome of those judicial proceedings turns out to be”.
22. The other international law which states that the right to a fair trial includes a right to have the appeals and reviews heard without undue delay are UN Human Rights Committee, CCPR General Comment 32 (2007), para 35; Deweer V. Belgium [1980] ECHR 1, para 42; Taright, Touadi, Remli and Yousfi v. Algeria, HRC Communication 1085/2002, UN Doc CCPR/C/86/D/1085/2002 (2006), para 8.5; Rouse v the Phillippines, HRC Communication 1089/2002, UN Doc CCPR/C/84/D/1089/2002 (2005), para 7.4; and Sobraj v. Nepal, HRC Communication 1870/2009, UN Doc CCPR/C/99/D/1870/2009 (2010), para 7.4.
23. Section 7(1)(b) of the Constitution of Fiji states that when interpreting the bill of rights provisions, the Court may, if relevant, consider international law, applicable to the protection of the rights and freedoms. In this case since the parties are not sure whether the word trial extends to appeal, reference has to be made to the international law above to ascertain whether the accused person has a right to have his appeal tried within a reasonable time. Pursuant to this section, Fiji does not need to ratify the Conventions to rely on the same. It can consider the Conventions to determine the true meaning and extent of the rights of the people.
24. From the above papers/discussions and cases before the European Human Rights Committee, I find that the accused persons have an effective right to have his trial conducted within a reasonable time and that the right has to extend to the right to have his appeal determined within a reasonable time. That right is not limited to trials only or else the whole purpose of providing that right will become meaningless. I would perhaps highlight an example. If an accused is convicted for 3 years and the appeal court does not call his case in court for almost half of the period he is sentenced for, and if he is not enlarged on bail pending appeal, the purpose of providing him with a right to appeal becomes meaningless. He has to bear with the trial judge’s findings without being given a meaningful opportunity to question the correctness of the decision.
25. I then come to section 15(3) of the Constitution of Fiji which does not use the term ‘trial’ but uses the term ‘case’. This section very clearly states that a person charged with an offence has a right to have his case determined within a reasonable time. The term trial is not even used in section 15 which means that until there is a final verdict in a case the right is a continuing one and only stops when the accused accepts the decision to be final or has not exercised his right to appeal.
26. Section 15 then in essence fortifies my view that the word “trial” cannot be limited to the proceedings in the original instance but extends to appeals and reviews if the right is opted for.
27. Now I go to the submissions made by both the counsel for the respondents that the applicant ought to have asked from the Court of Appeal Registry for an early date. The case of Pratt (supra) makes it clear that non-fulfillment of that obligation cannot be excused on the ground that the applicant did not ask for his case to be called. Since the applicant had filed the appeal, the onus is on the Court to provide a date for him to attend Court. The applicant has submitted that he made several attempts to check with the registry followed by letters regarding the delay but to no avail. He has not got even a call over date for 10 months and then he has made this application for constitutional redress. He cannot do much as the applicant is an inmate in the prison. After filing his appeal the onus is on the Court of Appeal Registry to carry out the task and inform him of the Court date.
28. I must also deal with the objections of the counsel for the 2nd and 3rd respondent that the application is out of time in that it should have been filed within 60 days from the time he lodged his appeal.
29. I find this submission most astonishing and naive. The 60 day period in the Rules basically means that the time runs from the date on which the cause of action arose. If the cause of action runs from the time of filing the appeal, then the appeal must be heard on the day it is filed for the applicant to raise the issue of undue delay within 60 days. It is untenable that all appeals be heard on the same day it is filed. The spirit of the CF and the Conventions are to avoid undue delay. It is axiomatic that there would be some delay. There are lot of procedural matters to be complied with, some of which are very essential to the principle of natural justice like service of the appeal papers, the need for the other party to engage a competent counsel and to prepare and argues the case. None of these can be ensured if the appeal is to be heard on the same day.
30. The 60 day period stated in the rules does not apply to cases where a person asserts that his matter has been unreasonably delayed.
This can be raised any time after sufficient time has lapsed within which the Court is expected to have heard the case. The 60 day
rule applies to cases where there is direct breach of the right for example a person has been deprived of freedom of movement on
a particular date and time. In the present case, it cannot be said that this matter should have been heard on a particular date for
the time period to start running from that date.
31. There is no statutory requirement that the appeal be heard in 60 days or realistically possible to ask the same to take place.
What constitutes reasonable time within which a matter must be heard is a matter for assessment in each particular case: UN Human Rights Committee CCPR General Comment 32 (2007), para 35; Obermeier v. Austria [1990] ECHR 15, para 72; and Angelucci v. Italy [1991] ECHR 6, para 15 (under the heading “as to the law”).
32. What is reasonable time cannot be calculated by any mathematical or administrative formula. The Court has to determine the same by balancing the rights enunciated in the Constitution and the factors which led to the delay or those that have actually caused the same. The factors that are normally considered in analyzing how long is too long may be listed as follows:
33. The State has to show the reasons why the matter was not being called in Court for a period of 10 months and why an early date cannot be fixed. I reiterate that nothing has been raised in the Court by the State. The Counsel for the 2nd and 3rd respondents stated that they cannot provide any reasons because they cannot question the Court of Appeal.
34. The Counsel fails to realize that the Constitutional right provided by the State must be honoured by the State. It is for the State to show why the rights cannot be provided. It is not good enough a reason to assert that the Court of Appeal cannot be questioned. What the counsel could have done was to have extricated in an affidavit why it took about 10 months for the matter to even be listed in Court for mention.
35. Since no reasons have been provided, it is only safe to say that the delay of 10 months to at least call the matter in Court has not been sufficiently explained. I am sure that there are reasons (whether proper or otherwise) why the Court of Appeal will not list a matter in Court for 10 months. These reasons would have been apparent if the Counsel for the 2nd and 3rd respondents made an effort to liaise with the Court of Appeal Registry.
36. Since I have made a finding that the applicant has a right to have his appeal tried within a reasonable time and that the reasons why his matter had not been listed in Court for 10 months has not been sufficiently explained, I proceed to decide the remedy available to the applicant in this Court.
37. The applicant has already been given a Court date now in the Court of Appeal. Since he is before the Court, he has an adequate alternative remedy available to him to make an application to the Court of Appeal for an early hearing date based on his rights under CF and the declaratory orders of this Court. This does not mean that any essential procedure to ensure a fair hearing of appeal can be compromised.
38. It would be improper for this Court to make any directions regarding the conduct of the case and the fixing of any dates as this may compromise the independence of the Court before which the matter currently is. The presiding Judge in Court of Appeal will be in a best position to weigh all the factors I have identified to consider when the matter should be listed for hearing.
39. In the final analysis:
(i) I declare that pursuant to the CF, theapplicant has a right to have his appeal tried within a reasonable time.
(ii) I order that any such application for a hearing date should properly be made in the Court of Appeal for its proper consideration.
So declared and ordered.
Priyantha Fernando
Judge
07.04.2016
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