Attorney-General v Roy [2015] KICA 7; Criminal Case 06 of 2015 (19 August 2015)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No. 6 of 2015

BETWEEN

ATTORNEY-GENERAL
APPELLANT

AND

SUBASH CHANDRA ROY
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JA

Counsel: Waimauri Nawaia for appellant
Kiata Kabure for respondent

Date of Hearing: 14 August 2015
Date of Judgment: 19 August 2015

JUDGMENT OF THE COURT

[1] We are delivering judgment in this appeal along with our judgment in Attorney-General v Li and Areke (Criminal Appeal 5 of 2015) which also concerns the granting by the High Court of a permanent stay of a criminal proceeding. Because we have dealt in that judgment with the relevant legal principles, we need not repeat them here. We correct the record concerning the naming of the appellant.

[2] The present respondent was charged with carrying on a business without a valid certificate of registration as required by s.16 of the Foreign Investment Act 1985. The alleged offending was during 2011 and 2012. After an investigation in 2012 the charge was filed on 13 October 2013. There is said to have been an undue delay from when statements were first taken from prosecution witnesses in 2012 to the date of charging. There was also post-charge delay from 13 October 2013 to the respondent's first appearance on 23 March 2015 – a period of 17 months.

[3] The High Court Judge gave what he described as a short ruling on the stay application on 29 April 2015. He said it had not been explained why the prosecution did not register the case for one year and three months after the statements were taken. Then, he said the prosecution had "abandoned their case" until the respondent received a summons for his first appearance this year.

[4] No reason had been adduced for the "inordinate delay". Zehurikize J pointed out that the respondent had been kept out of business since July 2012. The failure to start the prosecution for "more than two years and some five months or so without any sound reason" offended the Court's sense of justice and propriety and continued prosecution was an "uncalled for hardship" on the respondent. Zehurikize J therefore ordered a stay of proceedings.

[5] The Attorney-General's appeal was brought out of time by about a week. This is not a good look in a proposed appeal that is about the consequences of delay by organs of the State. But counsel was overseas at the time, the delay in filing the appeal was short and the respondent's counsel responsible conceded that his client had suffered no prejudice in that respect. We therefore grant leave to appeal out of time.

[6] It will be apparent from our judgment in Attorney-General v Li and Areke that the appeal must succeed. The constitutional guarantee of trial within a reasonable time does not extend to pre-charging delay. Although the delay between the investigation and the filing of the charge was quite lengthy it was not extreme. No prejudice has been caused because of the fading of memory. The primary evidence will be documentary. Nor is it suggested any defence witness is unavailable to give evidence. A fair trial remains possible.

[7] The failure of the Court system to progress the case speedily to trial, in particular the delay for one year and five months before the first appearance, does amount to a breach of the guarantee of trial within a reasonable time in s.10 of the Constitution. But the issuance of a stay of proceedings was not a proportionate remedy.

[8] As we did in Li and Areke, we quash the High Court's order for a stay. We give the respondent redress by our finding that there has been a breach of s.10. We also order that his case must now be speedily progressed to trial. If necessary, the High Court should set a timetable for this to happen. In the event of any conviction it will be for the High Court, in light of all the then circumstances, to determine whether a modest reduction in sentence should be given for the s.10 breach. It is a matter for the High Court to make that assessment and to decide whether any reduction at all is warranted.

____________________________
Paterson JA

____________________________
Blanchard JA

____________________________
Handley JA