State v Ledua [2011] FJMC 20; CRC 414.2008 (22 February 2011)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 414 /2008

STATE

V

VILIAME LEDUA and two others

Ms. Nanise Tatakele for the Prosecution/DPP
The accused appeared in person

Ruling on permanent stay of proceedings

1] Three accused have been charged for following offences;

Robbery with violence: contrary to Section 293(1) (b) of the Penal; Cade Cap 17
Damaging Property: contrary to section 324 of the Penal Code Cap 17

2] The third accused, Mr. Viliame Ledua has filed papers to this court to stay proceedings mainly on following grounds;

A] Abuse of process

B] denial of a fair trial due to unreasonable delay

3] The accused's contention succinctly is that this case is dragging on for over 2 ½ years without any progress thereby this rights under article 14(1) and (3) (c) of the International Covenants on Civil and Political Rights have been violated. Further he draws this court's attention to section 170(7) of the criminal Procedure Decree 2009.

4] For more clarity, I reproduce the above articles and section. 14(1) of the International Covenants on Civil and Political Rights is "All persons shall be equal before the courts and tribunals. In determination of any criminal charge against him, or of his rights and obligations in a law suits at law, everyone shall be entitled to a fair and public hearing by competent, independent and impartial tribunal established by law...." 14(3) (c) of the International Covenants on Civil and Political Rights is "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality (c) To be tried without undue delay"

5] The section 170(7) of the criminal Procedure Decree 2009 says "A case must not be adjourned to a date later than 12 months after the summons was served on the accused unless the magistrate (for good cause which is to be stated in the record) considers such an adjournment to be required in the interests of justice."

6] This application is lodged under Section 290(7) of the Criminal Procedure Decree 2009. This Part of Decree is relating to Pre-Trials stages and it clearly says

"290. (1) Prior to the trial of any criminal proceeding either party may make application to the court having control of the proceeding for any order necessary to protect the interests of either party or to ensure that a fair trial of all the issues is facilitated, and such applications may relate to —

(f) a challenge to the proceedings on the grounds of the breach of any fundamental human right of the accused person, or any applicable human rights issue; and"

7] Further the third accused asked if this court is not vested to hear this application; it may be transferred to the High Court under Section 191 of the above Decree.

The state oppose to this application on following grounds.

A] Court has no power to transfer this case under section 191 of Criminal Procedure decree 2009 as it applies only to the indictable offences.

B] Court does not have jurisdiction to hear Permanent stay of proceedings.

8] It is noteworthy to take state objections first and deal with it. The section 191 of CPD provides "magistrate may transfer any charges or proceedings to the High Court." One can see this section itself speaks any charges or proceedings can be transferred. It does not say indictable offences categorically. Moreover, it says any proceedings thus it imparts the charges and proceedings. Therefore the State's first objection is untenable and turned down.

9] I now turn to the second objection. To succeed this submission, the State is highly rely on Takiveikata v State [2008] FJHC 315; HAM039.2008 (12 November 2008) case. In paragraph 19 it is clearly articulated "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."

10] Court accepts this notion and therefore it is apparent that this court has no powers to stay proceedings. Now question arises should this court transfer this application to High Court for further adjudication of this application? It is pertinent to say that under section 191 this court has power to transfer this type of application, but this power is discretionary. This case has been delayed for several reasons. The main reason is absconding of some of the accuseds. The third accused also absconded proceedings for some times. Then he was arrested and produced before this court and bailed out with strict bail conditions. It is true that Justice delayed is justice denied.

11] This legal maxim derived from phrase of the Magna Carta, clause 40 of which reads, "To no one will we sell, to no one will we refuse or delay, right or justice." The reason one goes to court is to get justice, and it is apparent "Justice delayed is justice denied". It is plain truth that the delay of justice, not only denies rights of the accused but also the victims in this case. As to the rules of the natural justice, both parties must be heard. In other words, matters to be decided on merits and not on technical points. On merits means to a legal decision based on the facts in evidence and the law pertaining to those facts, in this concept, judge do not consider technical and procedural defences .

12] Whatever time may be consumed by this case, this court is willing to dispense justice of this case on merits. Therefore I am reluctant to exercise my discretion and transfer this case to the High Court.

13] Therefore I uphold the State second objection and dismiss this application.
14] The third accused may file stay proceedings in the High Court.
15] 28 day to appeal.

On 22nd February 2011 at Nasinu

Sumudu Premachandra
Resident Magistrate