State v Tovoleisuva [2024] FJHC 298; HAC329.2020 (14 May 2024)

IN THE HIGH COURT OF FIJI AT SUVA

CRIMINAL JURISDICTION

Criminal Case No. HAC 329 of 2020

State -v- Josua Ravula Tovoleisuva

For the State: Ms. N. Shankar

For the Accused: Mr. L. Cati; Mr. E. Navuda and Ms. M. Korobuli

APPLICATION FOR VACATION OF TRIAL

1. The Accused is charged with the following offence on the Information filed on the 24^th day of December 2020:
   

INFORMATION BY THE

DIRECTOR OF PUBLIC PROSECUTION

JOSUA RAVULA TOVOLEISUVA is charged with the following offence:

[COUNT 1]

Statement of Offence

ATTEMPTED MURDER: contrary to section 44 and 237 of the Crimes Act 2009

Particulars of Offence

JOSUA RAVULA TOVOLEISUVA on the 8^th of November 2020 at Nadonumai settlement, Lami in the Central Division, attempted to murder VILIAME TUKANA DOMO.

2. The Accused entered a Not Guilty plea to the Information on the 21^st of January 2021. There were no admissions in his record of interview and the matter was adjourned for pre-trial conference.
   
3. The Trial was originally fixed for July 11^th to 15^th 2022, however the Court vacated this date on the 28^th of February 2022. The new Trial date was fixed for September 19^th to 23 2022.
   
4. The Trial did not proceed on the 19^th of September 2022 as the matter had apparently been called earlier on the 16^th of August 2022 and the matter was adjourned to the 16^th of March 2023.
   
5. On the 16^th of March 2023, the Court fixed a fresh Trial from 15^th to 19^th May 2023.
   
6. On the 15^th of May 2023, the Court again vacated the Trial and adjourned the Trial from 6^th to 17^th May 2024.
   
7. The matter was adjourned for pre-trial conference on the 18^th of March 2024. On that date, the State advised the Court that they were ready to proceed and Defence counsel also advised that they were ready to proceed.
   

The first day of Trial

8. On the 6^th of May, the first day of Trial, State counsel requested that the matter be adjourned to the 7^th of May and Defence counsel consented to the adjournment. The State had prepared and served additional disclosures that same day and Defence counsel sought time to peruse the same.
   
9. On the 7^th of May, Mr. Cati advised the Court that the additional disclosure indicated that there was now a new crime scene. He needed additional time to get fresh instruction from his client considering the additional disclosures served on his client. The Trial was then adjourned to Friday the 10^th of May.
   
10. On the 10^th of May, the State advised that they were ready to proceed and advised that they had now served the medical report of the complainant. When asked by the Court why this had not been disclosed earlier especially as the Accused was facing a charge of Attempted Murder, State counsel informed the Court that the Police officers were pointing the finger at each other and not explaining the reasons for the delay. The matter was adjourned to the 14^th of May 2024.

The application to vacate the Trial.

11. When the matter was called today, State counsel made a formal application to vacate the Trial. She advised the Court that her mother had passed away in the weekend and she was not able to proceed with the Trial.
    
12. In response to the Court’s query, she confirmed that she was the only counsel fully briefed on this matter as sole counsel in carriage. She advised that she did inform learned Defence counsel and her supervisors at the Office of DPP however they were not able to assign this matter to any other counsel on such short notice.
    
13. Defence counsel offered his condolences to State counsel but advised that he was under strict instruction to object to any further adjournments. They were ready to proceed from Day 1 of the Trial, and despite the very later disclosures, he had managed to get proper instructions for Trial. Defence witnesses were available and they were ready to proceed.
    
14. Counsel further submitted that this was a 2020 case and three earlier Trial dates had been vacated and they would object to any further adjournments as this matter needed to be concluded.
    

Analysis

15. The Criminal Procedure Act 2009 gives this Court the authority to adjourn or postpone proceedings at section 223 (1). The relevant section provides:
    

“Power to postpone or adjourn proceedings

223.-(1) If the court considers it necessary or advisable to postpone the commencement of the trial or to adjourn the trial by reason of the absence of witnesses or any other reasonable cause (which shall be recorded in the proceedings), the court may–

1. (a) from time to time postpone or adjourn it on such terms as it thinks fit and for such time as it considers reasonable; and
2. (b) may by warrant remand the accused to some prison or other place of security.”
   
16. The jurisprudence that has developed is clear that the Court will always balance the right of the Accused person to have the charges against him or her determined in a reasonable time, with his/her rights safeguarded and promoted. On the other hand the State represents the public interest in ensuring that criminal offences are prosecuted succesfully within a resonable time.
    
17. In deternming the application to vacate the Trial scheduled for this week, I have set out the chronology of this case from paragraphs 2 to 7 of this Ruling.
    
18. From the records, it is clear that the earlier Trial dates were vacated by the Court and there is no reasons are set out in the record for the vacation of the trial. The current application can be said to be the first formal application to vacate a Trial date.
    
19. This Information was filed in 2020 and the Trial has been fixed four times, with the earlier three Trial dates vacated by the Court without any reasons being recorded for the vacation of the Trial.
    
20. This matter has been before the Court since 2020 and the Accused has been ready to proceed from the first date of this latest Trial, from the 6th of May 2024. The State, on the other hand has appeared unprepared, with disclosures being served as late as day 1 of the Trial resulting in the effective loss of the first week of this Trial.
    
21. In balancing the respective rights of the parties in this matter, I take note of the fact that the Accused is facing a serious charge, he has pleaded not guilty and he is entiled to his day in Court. The State has filed these serious charge and is is also entitled to be given an opportunity to discharge their legal burden of establishing the charge beyond a reasonable doubt.
22. The record is a litany of adjournments and vacations of the Trial dates with no reasons being recorded as stipulated by section 223 (1) of the Criminal Procedure Act. While the Court offers its sincere condolences to State counsel for her loss, neverthless the Court is obliged to consider the rights of the Accused to Trial within a reaonable time and the overall interests of justice in this matter.
    
23. Another pertinent fact is that the Trial diary for 2024 is virtually booked therefore it is likely that any fresh Trial date will be in 2025.
    
24. After considering the above factors, the Court finds that the application to vacate the Trial is refused.
    
25. The Trial is adjourned till tomorrow and the supervisors at the Office of the Director of Public Prosecutions are to assign this matter to another counsel to prosecute the Trial. I note from the record that the Acting DPP, Mr. Rabuku has previously appeared for the Accused in this matter, therefore he will not be involved in this decision.
    
26. This matter is adjourned to 10 am on 15th May 2024 for the Trial.
    

...............................
Hon. Justice U. Ratuvili

cc: Office of the Director of Public Prosecutions
Office of August Legal, Suva.