Boila v State [2019] FJHC 791; HAM136.2019 (31 July 2019)

IN THE HIGH COURT OF FIJI AT SUVA

In the matter of an application for a permanent stay of proceedings

[CRIMINAL MISCELLANEOUS JURISDICTION]

SENIJIELI BOILA

Applicant
CASE NO: HAM. 136 of 2019
[MC SUVA CASE NO: CF 978 of 2013]

Vs.

STATE

Respondent

Counsel : Applicant in person
Mr. R. Kumar for the Respondent
Hearing on : 18 July 2019
Ruling on : 31 July 2019

RULING ON APPLICATION FOR STAY OF PROCEEDINGS

1. The applicant seeks a permanent stay of the proceedings in Magistrates Court Suva Criminal Case No. CF 978 of 2013.
   
2. The applicant is a serving prisoner. When inquired on 17/05/19, he said that he is serving a 10 year prison term and 05 years of that sentence is remaining to be served.
   
3. The case in question is in fact heard by the Magistrates Court under extended jurisdiction where the applicant is charged with one count of aggravated robbery and one count of theft.
   
4. At the outset, I consider it appropriate to make three observations.
   
5. First, the proceedings in the Magistrate Court in the case at hand should have been conducted on the High Court File with the High Court case number as the case is heard by the Magistrate Court under extended jurisdiction. That would have been a constant reminder to all parties who deal with the case including the Learned Magistrate that the case is in fact a High Court case and therefore should be given priority.
   
6. Secondly, based on statistics maintained by the statistics division of the Judicial Department, as at 30/08/18 there were around 15,116 criminal cases before the Magistrate Courts throughout Fiji and out of those cases around 1,400 were cases on extended jurisdiction. It should be noted that the aforementioned extended jurisdiction cases included around 3 cases of aggravated robbery which were pending since 2008, 07 cases since 2010, 14 cases since 2011, 20 cases since 2012 and 26 cases since 2013. The instant case is obviously one of those 26 cases pending since 2013.
   
7. The third observation is on the charges. According to the information provided by the respondent, the applicant is charged before the Magistrates Court with three others on a consolidated charge sheet and the applicant is charged with two offences. The two charges against the applicant reads as follows;
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311 (1) (a) (b) of the Crimes Decree Number 44 of 2009.

Particulars of Offence

MAHEN LAL, PETER COASTA, JEKESONI VULI, SENIJIELI BOILA AND JONETANI TAWAKE on the 20^th May 2013 at Wainadoi, Navua in the Southern Division being armed and forcefully, stole from therein one .22 rifle valued at $1,500.00, $1,700.00 in cash and Assorted jewelleries valued at $2,000.00 to the total value of $5,200.00, the property of AZAM ALI.

SECOND COUNT

Statement of Offence

THEFT OF MOTOR VEHICLE: contrary to section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PETER COASTA, JEKESONI VULI, SENIJIELI BOILA AND JONETANI TAWAKE, on the 20^th May 2013 at Wainadoi, Navua in the Southern Division stole a motor vehicle Nissan X-Trail registration HA 032 valued at $75,000.00, the property of AZAM ALI.

8. It appears that the motor vehicle which is referred to in the second count of theft valued at $75,000 was in fact stolen in the same transaction where the items stated in the aggravated robbery charge were stolen. If force was used to steal the items included in the first count, it is difficult to comprehend the logic in the State’s assertion that force was not used in stealing the said motor vehicle. In fact, on the face of it, it appears that the total value of the property stolen in the alleged aggravated robbery is $80,240.
   
9. Now I turn to the case presented by the applicant before this court. In his notice of motion, the applicant says that he is seeking a permanent stay based on the following grounds;
   1. Inordinate delay
   2. Right to a fair trial
   100. Abuse of process
        
10. The applicant has stated in the accompanying affidavit that;

I Senijieli Boila (applicant) on the above mentioned matter make oath and say as follows:

THAT: I am the applicant on the above matter

THAT: I was charged for an offence of aggravated robbery and produced in court on the 19^th day of May 2013.

THAT: It has been almost 6 years now and this case is still pending before the magistrate court.

THAT: The prosecution has failed in their obligation to dispose this matter within a reasonable time.

THAT: My right to be heard within a reasonable time has been violated.

THAT: The applicant will be prejudiced in not having a fair trial according to law if this case proceeds.

THAT: The applicant is seeking your honourable courts undoubted discretion in permanently staying the proceedings on the above matter due to the unreasonable delay.

11. In the case of Johnson v State [2010] FJHC 356; HAM 177.2010 (23 August 2010), Goundar J said;

"...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.””

12. In the case of State v Rokotuiwai [1998] FJHC 196, Pain J said thus;

Whether there has been unreasonable delay or a failure to try a defendant within a reasonable time will depend on a variety of factors. Such matters as 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. They are not exhaustive list of considerations. Each case must be considered by the court on its own facts and circumstances, balancing the competing factors to determine whether the delay is unreasonable. If it is, a permanent stay may be the appropriate remedy, but that is not the only redress available [see Martin v Tauranga District Court (supra) and R v B (supra)]

13. The Supreme Court in the case of Nalawa v State [2010] FJSC 2; CAV0002.2009 (13 August 2010) had laid down the following principles in relation to the granting of stay orders;

(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 the 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;

(iv) 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.

[22] In the Attorney General's Reference (No.1 of 1990) reported in (1992) CR. APP.R.296, the English Court of Appeal stated that delay due merely to the complexity of the case or contributed to by the actions of a defendant himself should never be the foundation for a stay. The Court said that there should never be a stay unless the defendant showed on the balance of probabilities that due to delay he would suffer serious prejudice to the extent that no fair trial could be held.

14. In Nalawa (supra) the court further held that;

[25] From the Case Law this Court at the risk of re-affirming well established principles and for the guidance of the courts and the public states the following factors as relevant to any case in which the question of delay affecting a fair trial is an issue:

(i) the length of the delay;

(ii) the reason for the delay;

(iii) whether or not a defendant has asserted his or her right to a speedy trial; and

(iv) the extent of any prejudice.

[26] At all times the Court must take into account local circumstances such as Fiji's limited resources, and particularly those available to the administration of Justice.

15. A permanent stay is granted under the inherent jurisdiction of the court and it is a discretionary remedy. Therefore, an applicant in a stay application should establish the necessary factual circumstances and convince the court that it is a fit and proper case for the court to exercise its discretion in order invoke the inherent jurisdiction and grant the permanent stay sought by the applicant.
16. Given the scarcity of the facts stated in the affidavit filed by the applicant in support of the application, it is manifestly clear that the applicant has not discharged the burden of establishing any one of the three grounds he has outlined in his motion seeking the permanent stay. Though the applicant filed a detailed written submission in response to the written submission filed on behalf of the respondent, those submissions are not supported by the facts deposed to in the aforementioned affidavit.
    
17. Based on the facts stated in the said affidavit, it is nevertheless clear that the applicant was first produced before the magistrate court based on the relevant charges in May 2013 and therefore his case is pending for more than 06 years. Therefore, there is a delay. The question is whether that delay is unreasonable or unjustifiable. As explained in the case authorities cited above, the length of delay alone cannot be considered to arrive at the conclusion that, that delay is unreasonable or unjustifiable. The length of delay should be considered together with factors such as the reasons for the delay, the actions of the accused, the actions of the prosecutor, availability of legal and judicial resources, the nature of the charge and prejudice to the defendant [see Rokotuiwai (supra)].
    
18. The respondent has taken steps to file a comprehensive submission where a detailed narration regarding the progress of the case in question from the date the applicant was first produced in court has been provided. The effort taken in compiling the said submission should be commended despite the fact that the proper procedure to submit facts in a case of this nature is through an affidavit. Facts cannot be submitted by way of written submissions. However, it should also be noted that in this case it was not necessary for the respondent to submit the said facts in that manner as the onus is on the applicant to establish his case.
    
19. Nevertheless, having perused the said written submission filed on behalf of the respondent, I have noted that the actions of the (four) accused jointly charged in the case at hand including the applicant and the actions of both counsel for the prosecution and the defence have contributed to the delay in the case.
20. The reason to attribute the delay to the actions of the prosecution and defence lawyers as mentioned above stems essentially from the ruling attached to the written submission by the counsel for the respondent in relation to an application for an adjournment dated 26/10/15. According to this ruling, the case was initially fixed for voir dire hearing on 21 and 22 July 2013. This hearing was vacated due to the magistrate being on leave. The voir dire hearing was fixed for the second time from 04 to 05 May 2015. This hearing was vacated by the Learned Magistrate on the application of one of the defence counsel who was from the Legal Aid Commission (not the counsel for the applicant) based on the fact that he has to attend a matter before the High Court on the said dates. The hearing was then again fixed from 02 to 05 November 2015. This time the prosecutor made an application to vacate the hearing for the reason that she has to appear in a trial before the High Court during the said dates and the Learned Magistrate had allowed that application.
    
21. Given the fact that the case in question is also a High Court case and because the case was pending before the courts for 02 years when the aforementioned first application was made, the Legal Aid Commission on the first occasion and then the Office of the Director of Public Prosecution should not have made those applications for adjournment based on the aforementioned reason. The relevant Learned Magistrates should also have been more restrained in entertaining the said applications.
    
22. Having considered the material available before this court and given the number of cases pending before the magistrate court, especially the cases on extended jurisdiction and the length of time those cases are pending before the said courts I do not find the delay in the case at hand to be unreasonable or unjustifiable to the extent that an order for permanent stay should be granted especially where the responsibility for that delay cannot be attributed substantially if not entirely to the prosecution.
    
23. In the circumstances, the applicant had failed to establish a valid basis for this court to grant an order for permanent stay of the proceedings of the case in question. Nevertheless, I consider it appropriate to make an order to have the hearing of the relevant case expedited. The counsel for the respondent has submitted that the voir dire in the said case now stands fixed for hearing from 29 to 31 October 2019. Considering all the circumstances, I would order the case to be concluded before 31/03/2020.
    
24. I wish to add that in my view, it would be prudent for the Chief Magistrate and the Learned Magistrates to take appropriate measures to see that the cases pending before their courts for a considerable period of time are identified and then disposed of expeditiously, so that future applications of this nature could be averted.
    
25. Thirty (30) days to appeal to the Court of Appeal.
    

Orders;

1. This application for a permanent stay is refused; and
2. The Learned Magistrate assigned with the High Court case relevant to MC Case No. CF 978 of 2013 is hereby directed to expedite the hearing of the said case and to take steps accordingly to have the case concluded before 31/03/2020.
   

Vinsent S. Perera
JUDGE

Solicitors;

Applicant in Person

Office of the Director of Public Prosecutions for the State