Samshood v State [2021] FJHC 226; HAM04.2021 (27 May 2021)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO: HAM 04 of 2021

MOHAMMED SAMSHOOD

V
STATE

Counsel : Mr. Amrit Sen for the Applicant

Ms. Amelia Vavadakua for the Respondent

Hearing : 31 March 2021

Ruling : 27 May 2021

RULING

Introduction

[1] This is an application made by the Applicant for a permanent stay of criminal proceedings in Magistrate’s Court Labasa Criminal Case No. 439 of 2012.

[2] As per the Amended Charge filed by the State in the Magistrate’s Court of Labasa, on 7 July 2020, the Applicant is charged with Conspiracy to Defeat Justice and Interfere with Witnesses, contrary to Section 190 (d) of the Crimes Act No. 44 of 2009 (Crimes Act). The Amended Charge Sheet reads as follows:

Statement of Offence

Conspiracy to Defeat Justice and Interfere with Witnesses: Contrary to Section 190 (d) of the Crimes Act 2009.

Particulars of Offence

MOHAMMED SAMSHOOD, between the 21^st day of December 2011 and the 3^rd day of July 2012, at Labasa, in the Northern Division, after defaulting in his loan repayments to Credit Corporation, obstructed the legal processes concerning repossessions of the chattels held as security for that loan by Credit Corporation by involving himself in the tempering and dismantling of the said securities held under that loan namely D4 Bulldozer registration number DM 155, Caterpillar Grader Registration Number ED 883, D6 Caterpillar Registration number EW 807, Toyota Land cruiser Pickup Registration Number EU 222, Toyota Hilux Van registration number EG 628, Toyota Hilux 4 x 4 Registration number FB 673, Caterpillar Plant Registration number FB 704, Caterpillar registration number EU 521, KATO excavation registration number FR 080, Caterpillar Bulldozer registration number FR 081, D6 Bulldozer Registration number EG 418, Caterpillar loader registration number FB 235, Komatsu Towed Roller Registration number DA 315, Nissan Tray truck registration number CO 109/DSL 004, and Caterpillar loader registration number FJ 498.

[3] The Applicant pleaded not guilty to the Amended Charge, and the matter is now said to be fixed for trial on 2 June and 3 June 2021.

[4] By way of a Notice of Motion, filed on 16 February 2021, the Applicant seeks the following order from this Court:

“That the proceedings in the Magistrate’s Court (Labasa) Criminal Case No. 439 of 2012 against the Applicant be permanently stayed and the bail bond paid in the sum of $5000.00 be returned.”

Affidavit Filed by the Applicant in Support of his Notice of Motion

[5] The Notice of Motion is supported by an Affidavit deposed to by the Applicant. Therein, the Applicant, inter-alia, deposes as follows:

1. That on 11 August 2012, he was initially charged for the offence of Theft contrary to Section 291 of the Crimes Act.

2. That one of his bail conditions was to pay a bail bond in the sum of $5,000.00.

3. That since 2012, his case has been pending at the Labasa Magistrate’s Court.

4. That after charging him, the prosecution obtained numerous adjournments.

5. That pursuant to the said charge, the Respondent seized all his chattels, most of which were disposed by them at their discretion.

6. That there was no application made to the Magistrate’s Court for disposal of his chattels pursuant to Section 159 of the Criminal Procedure Act No. 43 of 2009 (Criminal Procedure Act).

7. That on or about February 2020, the prosecution advised Court that it will amend the charge and that the Amended Charge was filed on 7 July 2020, some 5 months later, without any leave of Court.

8. That the particulars of the offence allege that I obstructed the legal processes which is totally misconceived by the State and lacks particulars.

9. That legal proceedings had been instituted by Credit Corporation Limited to recover monies from me in High Court Civil Action No. 13 of 2012, which has been dismissed, and Suva High Court Civil Action No. HBC 28 of 2016 (Labasa High Court Civil Action No. HBC 40 of 2018), which is still pending in the High Court of Labasa.

10. That the Amended Charge alleges that the Credit Corporation is holding securities which is totally misconceived by the State.

11. That he verily believes that the Amended Charge is a nullity in law.

12. That the manner in which the proceedings are being undertaken by the Learned Resident Magistrate is highly prejudicial and that the application made by his Counsel are not considered by the Learned Resident Magistrate.

13. That the delay in these proceedings has caused him prejudice and he is seeking a stay of the proceedings.

14. That it is obvious from the Court proceedings that he has been improperly prosecuted by the State to help Credit Corporation Limited to recover monies which is not due to them.

15. That the claim of the Credit Corporation and the Charge is premised upon certain Bills of Sales. That the Credit Corporation had provided to him certain credit facilities and had obtained by way of security Bills of Sales over the motor vehicles/chattels, which were executed on 30 December 2011 and stamped on 20 March 2012, and which have been listed in the Affidavit.

16. That pursuant to Section 7 of the Bills of Sale Act (Chapter 225 of the Laws of Fiji), the Credit Corporation was required to register the said Bills of Sales with the Registrar of Deeds within 21 days of execution. The said Bills of Sales were registered contrary to the Bills of Sale Act rendering the same unenforceable, void and fraudulent. That the Registrar of Titles improperly allowed the registration of the said Bills of Sales contrary to Section 7 of the Bills of Sale Act and therefore that the entire Bills of Sales are null and void, unenforceable and fraudulent.

17. That he has filed proceedings in the Labasa High Court in Civil Action No. HBC 40 of 2018, seeking a declaration. The matter has already been heard and awaiting Judgment.

18. Therefore, the Applicant moves that the proceedings in the Magistrate’s Court Labasa Criminal Case No. 439 of 2012 against him be permanently stayed and the bail bond in the sum of $5,000.00 to be returned to him.

Affidavit Filed by the Respondent in Opposition to the Notice of Motion

[6] On 19 March 2021, Sergeant 2794 Sanjeet Lal, an Officer based at the Fraud Unit of the Labasa Police Station, filed an Affidavit in Opposition to this application. Therein, Sergeant Sanjeet Lal, inter-alia, deposes as follows:

1. That he is the Investigating Officer in this matter. He was appointed the Investigating Officer for this matter, after Sheeraz Dil, Senior Lending Officer from Credit Corporation, Suva personally came to the Labasa Police Station to report that the Applicant had been involved in the alleged tempering, grinding and changing chassis numbers and serial numbers of the alleged chattels named in the particulars of offence in the Amended Charge Sheet.

2. That the Applicant was initially charged with the offence of Theft.

3. That the Applicant applied for loan facilities from Credit Corporation and had several accounts which were then consolidated into one main account to assist the Applicant in the repayment of his loan to Credit Corporation as he was having problems with repayment.

4. That thereafter, on 21 December 2011, the Credit Corporation made an Offer Letter to the Applicant, consolidating his account with the condition that the Applicant allows certain chattels that were listed in the particulars of offence to be under Bills of Sales to Credit Corporation.

5. That Credit Corporation financed the purchase of the said chattels that were to be then kept under Bills of Sales and Third Part Bills of Sales.

6. That the Applicant allegedly agreed to the terms stated in the said Offer Letter and signed the acknowledgment on 30 December 2011.

7. That those chattels were listed in a Schedule that was attached to the Offer Letter referred to above that had been allegedly received by the Applicant. That thereafter, the Applicant accepted the offer of Credit Corporation and offered the chattels, which have been listed in the Affidavit, to be placed under Bills of Sales and Third Part Bills of Sales.

8. That the Applicant agreed to have the chattels placed under Bills of Sales as security for the loan he borrowed from Credit Corporation.

9. That the Applicant was expected as part of the Loan Agreement mentioned above, to repay Credit Corporation a total of about $923, 232.58, with interest, for a period of 60 months with a monthly instalment of $15, 387.21.

10. That in the Bills of Sales, the Applicant had allegedly accepted that should he default in his repayments, that Credit Corporation would exercise the powers of entry and seizure of the said chattels.

11. That the Applicant allegedly defaulted in his repayments and the Credit Corporation had to exercise the rights that they had agreed upon in the Offer Letter, the Bills of Sales and the Third Party Bill of Sale.

12. That when Credit Corporation tried to execute the legal processes, which involved them exercising their rights under the Agreements and the Bills of Sales to try and repossess and recover the financial loss caused by the Applicant when he failed to repay his loan, they could not do so as the Applicant had allegedly arranged for the grinding away of chassis numbers of the chattels, engine numbers of the chattels, dismantling of the chattels to the extent that the chattels could not be recognized.

13. That the Applicant had been informing the Magistrate’s Court on numerous occasions that the Bills of Sales were not registered within the stipulated time which has resulted in many request for adjournments.

14. That the Applicant filed the Civil Action No. HBC 40 of 2018 and has been using that pending Civil Action as a reason for the charges in this case to be dismissed by the Learned Magistrate.

15. It was subsequent to the Applicant filing the aforesaid Civil Action that the charges in the case were amended.

16. That a substantial number of trial dates were set in the matter and the deponent himself had executed Summons for the State witnesses to be present and that they were in fact present on numerous occasions. However, the trial had to be adjourned as the Applicant had either changed his Counsel, or his Counsel was said to be in Suva or on certain occasions, more than 2 Counsel from different law firms were engaged by the Applicant or the Applicant himself was sick. Therefore, that the Applicant himself has caused substantial amount of delay in this matter.

17. That due to the delay in this matter being taken up for trial, 2 of the State witnesses have passed away.

18. That there is strong evidence implicating the Applicant in the alleged criminal activity of defacing the chattels that were under the Bills of Sales. This was not a case where the Applicant merely defaulted in repayments to Credit Corporation. He went further to ensure that Credit Corporation could not recover their losses by allegedly tempering and dismantling and disfiguring the chattels held as security for his loan.

[7] On 26 March 2021, the Applicant filed an Affidavit in Reply to the aforesaid Affidavit in Opposition.

[8] This application was taken up for hearing on 31 March 2021. Both Counsel for the Applicant and the Respondent were heard. The parties also filed written submissions, and referred to case authorities, which I have had the benefit of perusing.

Legal Provisions

[9] Stay of proceedings in a criminal trial is a legal remedy which has its origins in the common law jurisdiction as an extension of the inherent power of the Court to control its proceedings and thereby ensuring a fair trial to both the prosecution and the defence. Its common law origins can be traced back to the case of Connelly v. Director of Public Prosecutions [1964] AC 1254 at 1301, where Lord Morris stated:

”There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of process and to defeat any attempted thwarting of its process....”

[10] The term “abuse of process” used in this judgment has been further elaborated on by subsequent authorities to define and identify two specific types of abuse of process. In R v. Derby Crown Court, exp Brooks [1984] 80 Cr. App. R. 164, Sir Roger Ormrod said:

"The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of processes 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 has 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."

[11] It is accepted law in Fiji that the High Court has the inherent jurisdiction to stay proceedings following common law tradition. In State v. Waisale Rokotuiwai [1998] FJHC 196; HAC 09d of 1995S (21 August 1998); Justice D.B. Pain held as follows;

“It is submitted that this Court has inherent power to make any order to prevent an abuse of its process and this includes an order for permanent stay. That power will be exercised to protect the accused from oppression and prejudice but its scope is not limited to those considerations. The Court has a duty to secure a fair trial for an accused. Allied to this is a need to protect the integrity and reputation of the judicial system and administration of justice. Infringement of these requirements are proper considerations for the Court in deciding whether a trial should be terminated.”

.....................

“I accept that this Court has inherent jurisdiction to prevent abuse of its process in criminal proceedings. Concurrent with that is a duty (confirmed in the Constitution) to ensure that an accused receives a fair trial. This is made abundantly clear in the cases cited by counsel. The ultimate sanction is the discretion invested in the Court to grant a permanent stay. However, such a stay “should only be employed in exceptional circumstances”. (Attorney-General’s Reference (No.1) of 1990 [1992] Q.B. 630, endorsed by the Privy Council in George Tan Soon Gin v. Judge Cameron & Anor [1992] 2 AC 205.”

[12] This position was further reiterated in Ratu Inoke Takiveikata and 9 others v. State [2008] FJHC 315; HAM 39 of 2008 (12 November 2008); where Justice Andrew Bruce held that;

“It is common ground that the High Court of Fiji, being a superior court of record, has an inherent jurisdiction to stay proceedings which are determined by the Court to be an abuse of the process of the court. Generally speaking, the circumstances in which this court might consider the imposition of a stay of proceedings are:

“(1) Circumstances are such that a fair trial of the proceedings cannot be had; or

(2) There has been conduct established on the part of the executive which is so wrong that it would be an affront to the conscience of the court to allow proceedings brought against that background to proceed."

[13] It was further held in this case that the burden of proof in such instances is on the Applicant and the standard of proof which must be attained is proof to the civil standard (on a balance of probabilities).

“Before a stay of proceedings could be considered, there must be a factual basis for that consideration. It is common ground that the accused bear the burden of proof of establishing the facts which might justify the intervention of this court by way of stay procee. It is also common gmon ground that the standard of proof which must be attained is proof to the civil standard. The facts muststabl by evidence which is admissible under the law.”

[14]>[14] This position was followed by Justice Priyantha Fernando in the cases of Bavoro v. State [2011] FJHC 235; HAM 236 of 2010 (27 April 2011); and Salauca v. State [2012] FJHC 959; HAM 6 of 2012 (20 March 2012).

[15] In the case of Ganesh Chand v. FICAC; HAM 65 of 2016 (16 December 2016) (Unreported); His Lordship Justice Achala Wengappuli made reference to the following cases from New Zealand and Australia, which dealt with stay of proceedings and the doctrine of abuse of process as follows:

“In Moevao v. Department of Labour [1980] 1 NZLR 464, the New Zealand Court of Appeal offered a further clarification to the applicability of the doctrine of abuse of process at p. 470 ;

“....it cannot be too much emphasised that the inherent power to #160;a prosecution stem stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite cleat the case is truly one ofne of abuse of process and not meree involving elng elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of&#.

“In the the neighneighbouring Australian jurisdiction, another dimension was added to the considerations that are to be taken into account, when granting a stay of proceedings with the pronouncement of the judgment in Jago v. The District Court of New South Wales [[1989] HCA 46; 1989] 168 CLR 23 (12 October 1989). The High Court of Australia held:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences..."

“In the same judgment the term "abuse of process" received additional treatment by the High Court as it was held:

"An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amount to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process".

[16] It was held by Justice Fernando in the case of Tuisolia & Another v. Director of Public Prosecutions [2010] FJHC 254; HAM 125 of 2010; HAC 19 of 2010 (19 July 2010); that an example of a circumstance where the process of a criminal trial will be incapable of serving the purpose it is intended to serve would be where the proceedings are such that "they can clearly be seen to be foredoomed to fail" following Walton v. Gardiner [1933] 177 CLR 378.

[17] However, Justice Wengappuli stated in Ganesh Chand v. FICAC (supra) “Although the Courts would grant a stay in proceedings where it can clearly be seen that the prosecution is foredoomed to fail, a weak case for prosecution need not be stayed.” He quoted Lord Justice Brooke who said in Ebrahim, R (on the application of) v. Feltham Magistrate's Court [2001] EWHC Admin 130, at 133 that:

"It must be remembered that it is a commonplace in criminal trials for a defendant to rely on "holes" in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his. "

[18] His Lordship Justice Wengappuli further stated in Ganesh Chand v. FICAC (supra): “In a rare but deserving situation, even if a strong case is available to the prosecution, Courts have intervened and stayed prosecutions.” His Lordship cited State v. Sat Narayan Pal [2008] FJCA 117; [2009] 1 LRC 164 (8 February 2008); as one such instance. In that case, the Court of Appeal followed the judgement of R v. Horseferry Road Magistrates' Court, ex p Bennett [1993] 3 LRC 94, where the House of Lords clearly laid down the criterion for such intervention when it held that;

“... it was unconscionable for the courts to allow a prosecution, however well substantiated, to go ahead in circumstances where gross breaches or a gross breach of fundamental rights and the system of justice had occurred.”

[19] However, it must be reiterated that, it is common factor in all jurisdictions to have considerations limiting the granting of stays. In R v. Jewitt 1985 CanLII 47 (SCC), the Supreme Court of Canada held that the power to stay criminal proceedings should be exercised only in clearest cases where compelling an accused to stand trial would undermine the community’s sense of fair trial and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings (As per Justice Wengappuli in Ganesh Chand v. FICAC (supra)).

Analysis

[20] In the instant application the primary grounds taken up by the Applicant seeking a permanent stay of the criminal proceedings in Magistrate’s Court Labasa Criminal Case No. 439 of 2012, are the following:

1. Unreasonable Delay.

2. Prejudice caused thereby.

3. That the Amended Charge is defective and as such a nullity.

[21] It is clear that Grounds 1 and 2 above are interconnected. Thus the two grounds would be discussed together.

[22] I concede that this is matter where proceedings were instituted in the Magistrate’s Court of Labasa in the year 2012 (specifically on 11 August 2012). I have perused the Court Record and found that this matter had been called on 56 occasions, from 11 August 2012 to 9 February 2021 (In his written submissions the Counsel for the Applicant states that there were 62 appearances made by the Applicant during this period).

[23] The Applicant submits that the delay in the proceedings was not caused by the Applicant, but was solely caused by the prosecution or the Magistrate’s Court itself. This Court cannot agree with this contention. When perusing the Court Record of the Magistrate’s Court of Labasa it is apparent that on several occasions adjournments had been sought by the Applicant or his Counsel citing various reasons.

[24] After proceedings were initially instituted, several mention dates went by, and the matter was fixed for hearing for the first time on 7, 9 and 10 July 2014. However, when the matter was taken up on 7 July 2014, Court was informed that there is a possibility to settle the matter and as such the trial was vacated and a mention date fixed.

[25] Thereafter, several mention dates again went by. However, no settlement had been reached between the parties. The matter was next fixed for hearing on 11 and 12 October 2017. However, hearing could not be taken up on both these dates due to various issues being raised by the prosecution and the defence.

[26] The matter was next fixed for hearing from 24-28 September 2018. However, on 24 September 2018, the hearing was vacated once again.

[27] The matter was next fixed for hearing from 19-20 September 2019. The Court Record clearly depicts that on 19 September 2019, the prosecution was ready for the hearing, with their witnesses also being present in Court. However, the Counsel for the Applicant had applied for a vacation of the hearing dates. The Learned Resident Magistrate had duly considered the application and permitted the hearing dates to be vacated. However, she had imposed costs on the Applicant in the sum of $400.00 to be payable to the State, within 90 days.

[28] On 10 February 2020, the prosecution advised Court that it is considering amending the charge. Accordingly, the Amended Charge was filed on 7 July 2020 and the matter was fixed for hearing on 2 September 2020. However, the hearing could not take place even on the said day as the Counsel for the Applicant raised objections that the Amended Charge that was filed was defective.

[29] Therefore, it is unreasonable for the Applicant to claim that the delay in the proceedings was not caused by him, but was solely caused by the prosecution or the Magistrate’s Court itself. As can be observed from an examination of the Court record of the Magistrate’s Court, on numerous occasions adjournments had been sought by the Applicant or his Counsel citing various reasons. Therefore, it is my opinion that the Applicant is also responsible for the delay caused in this matter and cannot complain of any prejudice caused thereby.

[30] The Applicant contends that the Amended Charge filed against him in the Magistrate’s Court is defective and as such a nullity. The Amended Charge filed against the Applicant is one under Section 190 (d) of the Crimes Act. For ease of reference Section 190 of the Crimes Act, which is broadly titled Conspiracy to Defeat Justice and Interfere with Witnesses, is reproduced below:

190. A person commits a summary offence if he or she —

(a) conspires with any other person to knowingly and maliciously accuse any person falsely of any crime; or

(b) conspires to do anything to obstruct, prevent, pervert or defeat the course of justice; or

(c) in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from appearing and giving evidence, or endeavours to do so; or

(d) obstructs or in any way interferes with or knowingly prevents the execution of any legal process (civil or criminal); or

(e) in any way obstructs, prevents, perverts or defeats, or attempts to obstruct, prevent, pervert or defeat, the course of justice.

Penalty — Imprisonment for 5 years.

[Emphasis is mine].

[31] The Counsel for the Applicant contends that this charge is defective since the Applicant has been charged by himself for a charge of ‘conspiracy’. However, what must be borne in mind is that Section 190 of the Crimes Act [with the exception of maybe sub section (a)], does not refer to the term conspiracy as envisaged in Section 49 of the Crimes Act.

[32] The offence at Section 190 of the Crimes Act is broadly defined or titled Conspiracy to Defeat Justice and Interfere with Witnesses. This is exactly what is stated in the ‘Statement of Offence’ under which the Applicant has been charged. However, the specific offence the Applicant is charged with in terms of Section 190 (d) is one of obstructing or in any way interfering with or knowingly preventing the execution of any legal process (civil or criminal), the details of which have been adequately set out in the ‘Particulars of Offence’. It must be emphasized that the offence stipulated in Section 190 (d) of the Crimes Act must be clearly distinguished from ‘conspiracy’ as envisaged in Section 49 of the Crimes Act.

[33] Therefore, it is my opinion that the Amended Charge filed against the Applicant in the Magistrate’s Court of Labasa is not defective.

[34] The Counsel for the Applicant contends that no leave of Court had been obtained by the prosecution prior to filing the Amended Charge in the Magistrate’s Court. However, I find on a perusal of the Court Record of the Magistrate’s Court of Labasa that this issue had been raised before the Learned Resident Magistrate, on 2 September 2020, and only thereafter the Amended Charges were put to the Applicant.

[35] For all the aforesaid reasons, I find that the Notice of Motion filed by the Applicant seeking a permanent stay of proceedings of the Magistrate’s Court Labasa Criminal Case No. 439 of 2012 is without merit.

[36] I have deliberately made no mention of the Civil Action filed by the Applicant against the Credit Corporation in this Ruling, since there is insufficient material placed before me regarding the aforesaid Civil Action. In any event, this matter is now sub-judice.

[37] I urge the prosecution and the defence (the Applicant) to refrain from seeking any further adjournments when the matter is taken up in the Magistrate’s Court of Labasa and thereby to ensure that this matter is disposed of without any further delay.

Conclusion

[38] This application for a permanent stay of proceedings of the Magistrate’s Court Labasa Criminal Case No. 439 of 2012 is dismissed.

[39] I make no order for costs.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 27^th Day of May 2021

Solicitors for the Applicant : Maqbool & Company, Barristers & Solicitors, Labasa.

Solicitors for the Respondent : Office of the Director of Public Prosecutions, Labasa.