Mototabua v State [2008] FJSC 53; SC CAV0006.2006S (29 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0006 OF 2006S
(Fiji Court of Appeal No. AAU00 21 of 2006S)

BETWEEN:

ELIKI MOTOTABUA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Tuesday, 26^th February 2008, Suva

Counsel: Petitioner in Person
A Driu for the Respondent

Date of Judgment: Friday, 29^th February 2008, Suva

JUDGMENT OF THE COURT

[1] The petitioner appeared in the Magistrates' Court on 4 February 2003 on two counts of being found in possession of dangerous drugs. He entered pleas of not guilty. Between that date and 6 July 2004 there were six mention dates and four hearing dates that were adjourned. Delays were caused by various factors, including non-appearance of prosecution witnesses, unavailability of a Magistrate, a prosecutor being on leave and an injury to the petitioner.

[2] On 6 July 2004 the petitioner applied for a stay on the ground of unreasonable delay. This was refused in a reserved decision delivered on 1 September 2004. The learned Magistrate found that the delay had not been unreasonable in all the circumstances, and that there was nothing to show that the petitioner had suffered any prejudice.

[3] The petitioner then applied for the Magistrate to disqualify herself from hearing the case. This application was refused with reasons provided on 15 October 2004.

[4] Subsequently, steps were taken to bring the criminal trial to a state of readiness. The reason why it has not yet been heard appears to be the pendency of the appellate litigation referred to below.

[5] The petitioner sought to appeal to the High Court against both decisions of the Magistrate. By letters to the Chief Registrar in October and November 2005 he elaborated on his grounds of appeal. He raised s.29 (3) of the Constitution in support of his appeal against the refusal of a stay.

[6] Both matters were listed for hearing before Winter J on 23 January 2006. In an extempore ruling his Lordship held that the High Court lacked jurisdiction to entertain the appeal. He held that neither an application for stay nor an application to recuse resulted in "orders" within s.308 of the Criminal Procedure Code. Such orders were merely interlocutory.

[7] Having ruled that he did not have jurisdiction to entertain the appeal in either of its limbs, Winters J referred the file back to the Magistrates Court for determination of the substantive matter at the earliest opportunity.

[8] The petitioner obtained leave to appeal to the Court of Appeal limited to the point of law whether the High Court was competent to hear the appeal.

[9] On 14 July 2006, with the respondent having conceded the appeal, the appeal was allowed. The Court of Appeal directed the High Court to hear on the merits the petitioner's appeal against the decision of the Magistrate of 15 October 2004 in refusing to disqualify herself.

[10] The Court of Appeal recognized that the petitioner was also pressing it to dismiss the entire proceedings because of delay. It declined to do so, for the following reasons (at [17] - [20]):

"The judge of the High Court considered that there was no right of appeal against the Magistrate's refusal to stay on the grounds of delay for the same reason as he considered there was no right for appeal against her failure to recuse herself.

Technically, on the liberal Bokini view we have taken on the right of interlocutory appeal, there would be a right of appeal to the High Court from the Magistrate's decision not to grant a stay on the grounds of delay. However, the High Court Judge would have to disallow the appeal because the subject matter was constitutional redress. Application for such redress even in a criminal matter, has to be made to the High Court in its special constitutional jurisdiction. See Singh v. Director of Public Prosecutions, a decision of this Court of 16 July 2004 (AAU0037 of 2003S).

The appellant would have two choices. He can apply to the High Court for constitutional relief based on alleged delay under the special procedure. Alternatively, if convicted, he can include excessive delay as a ground of appeal against conviction.

The appeal is allowed. The High Court is directed to hear on the merits, the appellant's appeal against the decision of the Magistrate of 15 October 2004 refusing to disqualify herself. The High Court has jurisdiction to hear the appeal against refusal to stay, but cannot give relief for the reasons given above."

[11] The petition for special leave to appeal to this Court challenges the Court of Appeal's refusal to stay the entire proceedings, in essence because of breach of the constitutional right to have the criminal case determined with a reasonable time (Constitution, s.29(3)).

[12] The petitioner seeks to argue that the orders of the Supreme Court breached his constitutional rights to a fair trial brought on within a reasonable time.

[13] In our opinion, the petitioner has misconceived the intent of the orders of the Court of Appeal and that Court's reasoning with regard to this issue. Those orders kept alive the petitioner's right, if so advised, to move the High Court in its special constitutional jurisdiction for a stay based upon unreasonable delay. Alternatively the petitioner was informed that he could, if convicted in the Magistrates Court, include excessive delay as a ground of appeal against conviction. Since the Court of Appeal was not seized of an appeal on the merits of the delay issue it is understandable why it did not address them.

[14] We see no error in this reasoning and no matter attracting the grant of special leave.

[15] The petitioner's appeal to the Court of Appeal was limited to challenging the jurisdictional ruling of Winter J. This was the extent of the leave granted. Appropriately so, because the petitioner himself was complaining that the High Court had wrongly declined to entertain his appeal against the rulings of the Magistrate refusing a stay and refusing to recuse herself for the trial.

[16] The State has informed the Court that, following the orders of the Court of Appeal, the matter came on before Winter J. We were informed that Winter J refused an application that he be recused from hearing any matter involving the petitioner and that his Lordship offered to embark upon the hearing of a High Court application for relief based on constitutional grounds referable to the petitioner's claim of unreasonable delay. We were informed that the petitioner declined this offer.

[17] If this accurately summarises what happened before Winter J, it may have the consequence that the petitioner has, by his own actions, precluded the High Court from hearing and determining an application for constitutionally - based relief, or at least made it likely that such application (if pursued) would be refused on discretionary grounds.

[18] Be this as it may, we are only concerned with the question whether to grant special leave to appeal against the orders of the Court of Appeal. These orders are contained in the first two sentences of the last paragraph of the passage extracted at [10] above.

[19] Special leave is refused and the petition is dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Weinberg
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecution, Suva for the Respondent