State v Vunisa [2000] FJLawRp 47; [2000] 2 FLR 38 (21 August 2000)

[2000] 2 FLR 38

IN THE HIGH COURT OF FIJI

STATE

v

LEPANI VUNISA

High Court Criminal Jurisdiction
Prakash, J
21 August, 2000
HAC0022/95L

Stay of information - rape - whether undue 5 year delays resulted in breach of respondent's constitutional right to fair trial - common law right to trial within a reasonable time - Principles to consider - Penal Code ss149 and 150; Constitution 1997 s29(1) and (3); Fundamental Rights and Freedoms Decree 2000 (Decree 7/00) s10(1) and (3), 24(4)

The delay in proceeding to trial, 5 years after information was laid, could not be attributed wholly to the prosecution or to the accused. The Court had to consider the effect of delay on the applicant's chances of receiving a fair trial.

Held - (1) There is no prejudice caused to the accused having a fair trial. A 5 year delay would not affect the basic testimony of witnesses given the nature of the offence.

(2) Principles to consider in whether delay would affect a fair trial: length of delay, waiver of time periods, reasons for delay, including inherent time requirements, actions of the accused, actions of the prosecutor, limits on institutional resources, other reasons, prejudice to the accused and interests of accused, state and victim.

Matter to proceed to trial expeditiously.

Other cases referred to in judgment

cons R v Michael Desmond Benefield HAC1/88S
cons Jago v District Court (NSW) 168 Aust. Law Rev. 23
cons State v Felix Keith Vusonitokalau Crim Case HAC005/96S
cons State v Peniasi Kata HAC0009/94L
appl R v Morin (1992) 71 CCC (3d) 1
appl Martin v Tauranga District Court [1995] 2 NZLR 419

Ganga P. Shankar for the accused
Linda Fagbenro for the State

21 August, 2000.

RULING

Prakash, J

This is a motion on behalf of the Accused to stay the information against him filed by the State. An affidavit in support has been filed.

The accused is charged with one count of Rape - contrary to Sections 149 and 150 of the Penal Code. He is alleged to have had unlawful carnal knowledge of one Shalini Shammi Lata without her consent. The offence was allegedly committed on 29^th July 1995. The accused was charged on 30/7/95. He first appeared before the Magistrates Court at Ba on 31/07/95. He elected to be tried by the High Court. The paper preliminary inquiry was conducted on 31/10/95.

The accused was committed to trial by the High Court. He appeared in the High Court on 6/2/96. Since then the case has been adjourned for various reasons. The delays cannot be attributed wholly to the Prosecution nor accused.

The Court is grateful for the written submissions by the State and oral arguments by both Counsel on the relevant issues. It is clear from the submissions that the right to a fair trial within a reasonable time is a fundamental right both in the 1997 Constitution and the Fundamental Rights and Freedoms Decree 2000 (Decree No. 7). Both Counsel agreed that it was not relevant for the purpose of determining this motion to consider the purported abrogation of the 1997 Constitution nor the validity of Decree No. 7 of 2000. Since Sections 10(1) and (3) of Decree No. 7 does not offend Sections 29(1) and (3) of the 1997 Constitution, nor international human rights norms the Court does not need to dwell on the issues. Section 24(4) of the Decree reinforces the use of international human rights norms.

Section 29(1) of the 1997 Constitution states:

"Every person charged with an offence has the right to a fair trial before a court of law." Section 29(3) states:

"Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time".

Identical provisions are provided for in the Fundamental Rights and Freedoms Decree 2000 published by the Interim Military Government as Decree No. 7, in Sections 10(1) and (3).

In any case there has been a long standing common law right to trial within a reasonable time. As Lord Woolf suggested in Attorney-General of Hong Kong v Wai-bun [1994] 1 AC 1 in most cases the Bill of Rights test does not differ materially from the English common law test.

It is also clear from the authorities that the issue of delay has to be considered in terms of fairness to the accused, that is, whether he/she may be prejudiced in his trial by the delay, (see for example State v Michael Desmond Benefield Cr. Action No. 1 of 1988 High Court, Suva). It is also clear that undue delay/trial within a reasonable time cannot be defined. It will depend on circumstances of a particular cases (R v B 1 NZLR 385; Jago v District Court (NSW) 168 Aust. Law Rev. 23). As the NZ Court of Appeal had stated, following the Canadian case of R v Morin (1992) 71 CCC (3d) 1:

"The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay ... it is now accepted the factors to be considered in analysing how long is too long may be listed as follows:-

1. the length of the delay

2. waiver of time periods

3. the reasons for the delay, including

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the crown;

(d) limits on institutional resources; and

(e) other reasons for delay and

4. prejudice to the accused (Martin v Tauranoa District Court [1995] 2 NZLR 419 at p.424)."

The above accepted factors were earlier broadly outlined by the Privy Council in Bell v Director of Public Prosecution [1985] AC 937, a case based on the Jamaican Constitution. In this case the Privy Council had also stated:

"The assessment of those factors would necessarily vary from jurisdiction to jurisdiction and case to case. In particular the prevailing system of legal administration and economic, social and cultural conditions had to be taken into account."

In the case of State v Felix Keith Vusonitokalau Cr. Case No. HAC005 of 1996S, Justice Pain stated:

"... there is no fixed period within which a trial may take place. Under our present system some delay is inevitable. An accused is not automatically entitled to bail if the trial is not heard within say 12 months. What is a reasonable period depends upon the particular case and all the prevailing circumstances. It could be a longer or shorter period".

The most recent Fiji High Court case on the issue of delay, that I am ware of, is the case of State v Peniasi Kata Ltk Cr. Case HAC0009 of 1994. In this case Justice Townsley had considered a range of authorities including international conventions to conclude that in that particular case the accused had been grossly prejudiced by the delay. In that case, among other factors, the judge had considered the absence of certain documents concerned with the case as prejudicial to the accused. Justice Townsley had further stated:

"that the authorities concerned with the administration of justice in the Lautoka High Court have not made the resources available to bring this matter to trial, thus breaching the Accused's constitutional right to be brought to trial within a reasonable time. The fact that the authorities have not made resources available to try this Accused is not his problem." (at p.18)

In this aspect of his decision Justice Townsley had relied heavily on the pronouncements of the European Courts based on the European Convention on Human Rights. Whatever is the relevance of European cases, in this case it is clear from a perusal of the chronology in the Court records that the lack of judicial resources was not a significant factor in the delay. There has been a clear lack of commitment by both parties to have this case heard expeditiously.

In this case the particular prejudice that the accused points in his affidavit is stated as follows:

"That I was some distance away when I saw the complainant running away ... an Indian person named Rana was in the farm and he confirmed to me that he saw me some distance away. The said Rana was my very material witness but he has died in March or thereabouts of this year. There is no written statement from him. Some other persons also then present in the cane farm saw me away from the complainant but I do not know their names, and know them by face. These persons can't be traced now."

To say the least the assertions made are very vague in the context of the evidence contained in the depositions. The only evidence of the "complainant running away" is that of the complainant in her Police statement. This is after the alleged incident of rape by the two persons involved. If Rana did see the accused "some distance away" when was this? Before or after the incident?

Further if "there is no written statement from him (Rana)," it is the accused's problem. He should have alerted Police to take a statement from him. I say this in the context of the submissions made by the learned State Counsel in relation to the committal proceedings relating to his case (see pp 16 - 18 of submissions).

The accused was represented by Counsel at the committal proceedings. When the Prosecution had tendered the relevant exhibits and concluded its case Defence counsel stated:

"Content that case be committed without considering the evidence, and will communicate with DPP regarding alibi if necessary".

According to the State Counsel no particulars of alibi witness or witnesses have ever been communicated to the DPP or the Court by the accused. Section 234 of the Criminal Procedure Code provides the basis for any accused adducing evidence in support of an alibi. Notice has to be given within a prescribed period. Under s.234(7) "the prescribed period means the period of fourteen days from the end of the preliminary inquiry before the Magistrate." Even if the Court were to grant leave for the accused to call any alibi witness it is questionable whether the evidence of Rana, as outlined by accused in his affidavit, would materially affect his ease in view of the other evidence contained in the depositions. Further, if other persons were also present who saw him away from the complainant, as asserted by the accused, and he knows them by face it is incumbent upon him to find them since he is facing a serious charge. It is apparent from the material in the depositions that he lives near to Wavuwavu where the alleged offence took place and where he used to graze his cattle. The Court is not convinced that any prejudice will be caused to him by the absence of Rana.

It is also disturbing to note that if Rana died in March or thereabouts why was this motion filed only on 2/08/00.I say this in view of the fact that the trial date of 5 July 2000 was set on 7/02/00. This was a firm date. The Court was ready to proceed on 5/07/00. It was only when the matter was called for review by the court on 29 June 2000 to ascertain the readiness of the parties for trial that the issue of a motion by the Defence was intimated to the Court.

This is a rape case. The Court has to consider the interests of the accused as well as the State and the victim of any crime. As Mason CJ stated in Jago (supra) citing a passage from Moevao v Dept of Labour (1980) NZLR 464:

"It is not the purpose of the Criminal law to punish the guilty at all costs. It is not that the end may justify whatever means may be adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's practices are used fairly by the State and citizen alike .... . It follows that in exercising its inherent jurisdiction the court is proceeding in its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of public interest which is the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's process may lend themselves to oppression and injustice. In essence then, the power to prevent an abuse of process in this context is derived from public interest, first that trial and the processes preceding them are conducted fairly and, secondly that so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed."

Unlike Peniasi Kata's case and Michael Desmond Benefield this case is basically dependent on oral evidence. The delay of 5 years would not affect the basic testimony of the witnesses given the nature of the offence. As regards any memory loss Justice Fatiaki has stated in Benefield (supra) "... memory loss as a result of delay may be likened to a "two-edged sword" which is just as if not more likely to prejudice the prosecution which bears the burden of proof as it does the defendant."

In considering the relevant principles and particular factors relevant to the issue of delay the Court does not find the circumstances of the delays nor the delay of 5 years in this case prejudicial to the accused having a fair trial. The motion is dismissed. It is incumbent upon the parties that this case, which is one of the older cases in the Criminal list in Lautoka, be set for trial expeditiously.

Motion for stay dismissed.

Marie Chan