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Prasad v The State [2002] FJHC 236; HAM0043D.2002S (28 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. ACTION NO. HAM0043.2002

BETWEEN:

BHAWANI PRASAD

AND:

THE STATE

Counsel for the Applicant: T. Fa & Associates
Counsel for the Respondent: B. Solanki for the State

Date of Decision: 28 November 2002
Time of Decision: 9.00 a.m.

DECISION

On the 30th of August, I delivered a judgment in this case, allowing the State=s appeal against acquittal, and ordering a retrial in the Magistrates Court. The Applicant has appealed against that decision by notice of appeal to the Court of Appeal, and applies for stay of my order for retrial.

The grounds for the application are that the appeal has merit and is bound to succeed, the appeal will be frustrated if there is a retrial before the Court of Appeal is able to hear the matter and that the Applicant will be prejudiced because he will be interdicted once he is retried. Further, the Applicant, in his affidavit in support of the application says that the complainant in the case, Mr Umesh Mani has withdrawn his complaint on condition that the Applicant also withdraws his complaint against the complainant. A letter signed by Umesh Mani is annexed to the affidavit.

The State opposes the application, saying that the appeal has no merit, that the appeal is not confined to matters of law (as required by section 22 (1) of the Court of Appeal Act Cap. 12) and that police procedures did not require interdiction for the duration of the trial only, but that interdiction was affected once charges were laid. Counsel also submitted that the complainant=s offer to withdraw his complaint was conditional, and that there is no evidence before me that the condition has been complied with by the Applicant.

There is no statutory power given to the High Court to stay its own decisions, pending a second appeal to the Court of Appeal. However, I accept that I do have inherent powers to regulate the processes of the court and therefore to stay execution of my own orders.

These powers must be discretionary and the paramount principle is any prejudice to the parties if stay is or is not granted. The principle includes a consideration of the merits of the appeal, whether the appeal will be rendered nugatory if stay is not granted and any other circumstances relevant to the facts of the particular case.

I was told by both counsel that no hearing date has yet been assigned for retrial and that the case will be called for mention on the 29th of November 2002. No hearing date has been assigned for the appeal in the Court of Appeal and it is unlikely that the appeal will be heard before February next year. It has not been suggested that the Magistrates Court will fix a hearing date before February of next year.

As to possible prejudice if the appeal succeeds there is a chance, that the Applicant will be retried before his appeal is heard. If this eventuates counsel has the right to make an application before the presiding Magistrate to adjourn the hearing until the Court of Appeal hears the case. This may of course lead to considerable delay. I note that the offences were allegedly committed in October 2001 and that a further delay is unlikely to assist the Applicant or the Respondent. Indeed, delay is usually prejudicial to the accused and often leads to loss of memory and inaccuracies in the evidence.

Further, although the Applicant says that he thinks he will be interdicted once the retrial commences, this belief appears to be based on a mere conversation at the Nabua Police Station (overheard by ASP Goundar and related to the Applicant) and not on any official notification. Clearly he is not presently interdicted, despite the order for retrial and there is no reliable information given to me that interdiction will result from the retrial. Thus, the submission is therefore not compelling.

On a balance of these factors, I consider that proceeding to retrial is less prejudicial to the Applicant (particularly because it will prevent further delay) than ordering a stay of the proceedings.

As to the complainants position, he states in his letter annexed to the Applicant=s affidavit, that he is willing to withdraw his complaint, if the Applicant=s wife withdraws hers against the complainant. The Applicant is silent on his willingness (or his wife=s willingness) to comply with that condition. In the circumstances, the complainant=s position does not assist him. If both parties withdraw their complaints, the Director of Public Prosecutions may decide not to proceed to retrial anyway. However that is a matter for him.

Finally, in relation to the merits of the appeal, I note that counsel said that a further ground (in addition to bias) would be added to the grounds of appeal in the Court of Appeal and that is that a retrial is not possible after an acquittal under section 319 (1) (b) of the Criminal Procedure Code. I accept that the Applicant may have an arguable case in the Court of Appeal but for the reasons given above, in relation to the prejudice to the parties if retrial were to commence before the appeal is heard, I find that there are no good grounds for stay of the order for retrial.

This application is refused.

Nazhat Shameem
JUDGE

At Suva
28th November 2002