Criminal Case no. 2/09

In the High Court of Tuvalu
At Tuvalu

Criminal Jurisdiction

Between:

Tetapo Mailemua
Appellant

V

R
Respondent

BEFORE THE CHIEF JUSTICE

S Kofe for appellant
S Talu for Crown

Hearing: 20 and 22 October 2009
Judgment: 26 October 2009

Judgment

1. Section 22(2) of the Constitution provides:

"(2) If a person is charged with an offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law."

2. The appellant in this case was charged with an offence of assault causing actual harm committed in August, 2004. The charge was first filed in court on Funafuti in November, 2005. It was called in the Senior Magistrate’s court on 24 March 2006 but the summons had not been served as the appellant was on Nanumea. It was adjourned to 17 November 2006 but, again, the appellant was on Nanumea. It was then listed for hearing on Nanumea on 23 July 2008 on which date the People’s Lawyer sought an adjournment so the appellant could obtain legal representation and it was adjourned to 27 January, 2009.

3. At that hearing, defence counsel submitted that the trial was not being heard within a reasonable time and sought to have the action stayed. The learned Senior Magistrate ruled:

"… a reasonable time means that the police must file the charge with the court within reasonable time without unnecessary delay. The court looks at the charge, the offence happened in August 2004 and the charge was filed with the court in November 2005. The timing is reasonable."

4. On the defence giving notice of appeal of that decision, the case was adjourned pending the result of this appeal. The appeal is on the single ground that the Senior Magistrate erred in law in finding that "reasonable time" stated under section 22(2) of the Constitution refers to the time from when the offence took place to the date the charge is filed by the police.

5. I can deal with this very shortly. The wording of section 22(2) clearly refers to the right to a fair hearing within a reasonable time. It cannot be taken as limited to the time the case first reaches the courts but to the time the actual hearing takes place.

6. The appeal must succeed.

7. In such a case it would be sensible for this Court then to consider the question of whether, in this case, the delay was reasonable. However, when considering whether a delay is or is not reasonable, the Court cannot simply consider the length of the delay. It must also take account of any other relevant issues, examples of which have been stated in numerous cases from other jurisdictions. Such matters as the reasons for the delay and whether they were the fault of either party or of the system as administered by the court, any waiver of the time periods and the prejudice to the accused and, to a much lesser extent, the prosecution. See, for example, R v Morin [1992] DLR(4th)(Canada) Martin v Tauranga DC [1995] 2 NZLR 419 (New Zealand) Seru and Stephens v State [2003] FJCA 26 (Fiji) Bell v DPP [1985]AC 937 (Jamaica).

8. When the application is made before the trial as in the present case and is, therefore, for a stay of proceedings, it is important to bear in mind the statements by Lane LCJ in Attorney General’s Reference No 1 of 1990 [1992] 3 AllER 169:

"In principle, … even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can be properly imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay." (Cited by Jiten Singh J in [2005] FJHC74).

9. I return the case to the Senior Magistrate with a direction that he hear the application for a stay, if it is still pursued, and determine whether the time from the arrest of the accused to the date of trial is unreasonable such as to breach the requirements of section 22(2). 

10. The principal reason I cannot deal with this issue at this hearing is that the court must have evidence of the reason for the delay and any prejudice claimed by the defendant. If this application is to be renewed before the Senior Magistrate, counsel should be prepared with evidence and any authorities upon which he intends to rely.

Dated: 26th day of October 2009

Hon. Gordon Ward
CHIEF JUSTICE