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State v Koroi [2004] FJHC 361; HAC0003.1999L (10 May 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0003 OF 1999L

THE STATE

v

AJIPOTE KOROI
PENIASI LEE

Counsel for the State: Mr. M. Korovou
Counsel for both Accused: Mr. I. Khan

Date of Hearing & Ruling: 10 May 2004

EXTEMPORE RULING
ON NOTICE OF MOTION FOR A STAY

The accused in this matter applied by Notice of Motion filed on 6^th May 2004 for a stay of the actions brought against them. In support of that Notice of Motion the accused rely upon the affidavit of one of the accused Mr. Koroi. That affidavit details that the accused were first brought before a court on the 5^th of October 1998 and that the trial of the proceedings commenced before the High Court on the 5^th of May 2004, that trial being aborted and the matter being adjourned until today for hearing.

Thus, I think there is a delay of about 5 years and 9 months from the first attendance before the Magistrates Court until today.

It is relevant to look at a chronology of the events and in doing so I ignore the period in which the proceedings were before the Magistrates Court as that covered relatively a very short period, that is, from October 1998 until 1^st February 1999 when the proceedings first came before this court.

The chronology from that point on is as follows: -

1. 1 February 1999 - Proceedings adjourned. Record not available.

2. 3 May 1999 - Proceedings adjourned on the prosecution’s application.
   
3. 2 August 1999 - Proceedings adjourned. Prosecution not able to serve information on the accused.
   
4. 4 October 1999 - Accused represented for the first time by Mr. Khan. There is no appearance of the 1^st accused and proceedings are further adjourned.
   
5. 7 February 2000 - Proceedings adjourned on the application of the prosecution and with the consent of the accused.
   
6. 1 May 2000 - No appearance of the accused, Lee and a bench warrant issues for his apprehension.
   
7. 7 August 2000 - It appears there was no appearance of at least one of the accused and a bench warrant is again referred to in the court notes.
   
8. 2 October 2000 - Again, Mr Khan appeared for each of accused and again reference is made to the issue of a bench warrant.
   
9. 5 February 2001 - Again, Mr Khan appeared and there is reference to a bench warrant.
   
10. 7 May 2001 - Second accused was serving term of imprisonment and a production order was issued for his appearance in court for he not being in attendance on that day.
    
11. 6 August 2001 - Counsel for the accused indicated that there would be a trial within a trial and the proceedings be adjourned.
    
12. 9 October 2001 - Mr. Khan appeared for the accused and the proceedings were adjourned and no reason is noted.
    
13. 25 February 2002 - The prosecution sought a date for trial.
    
14. 1 July 2002 - The matter was set down for trial on 13 November 2002 by consent.
    
15. 11 November 2002 - There is no reason noted as to why the matter was then unable to proceed to trial. Counsel for the accused sought a February date for hearing.
    
16. 3 February 2003 - The matter was adjourned.
    
17. 9 June 2003 - The matter was listed for trial and not reached.
    
18. 11 August 2003 - The matter was adjourned to 21 October 2003 for trial.
    
19. 21 October 2003 - The matter was not reached.
    
20. 5 December 2003 - The matter was adjourned for mention.
    
21. 2 May 2004 - Adjourned to the 5 May for hearing and the to the 2^nd April 2004 for mention.
    
22. 2 April 2004 - The hearing date of the 5^th May 2004 was confirmed.
    
23. 5 May 2004 - The trial commenced and was then aborted and the matter was listed for trial before me today.
    

It is apparent from that chronology that the delay falls into three categories: -

(i) Delay occasioned by the prosecution;
(ii) Delay occasioned by the accused; and
(iii) Delay occasioned by the court.

Counsel for the accused has referred the court to several authorities with respect to the issue of delay and the granting of a permanent stay. Perhaps the most relevant of those authorities is the decision of the Fiji Court of Appeal in Apaitia Seru and Anthony Frederick Stevens v The State – Cr. App. No. AAU0041 of 1999S and Cr. Appeal No. AAU0042 of 1999S.

The Court of Appeal in that case considered the law as it is in this country.

The Court of Appeal considered the provisions of sections 29(1) and 29(3) of the Constitution of the Republic of the Fiji Islands and in considering those provisions the court looked to a leading decision in the Supreme Court of Canada in R v Morin [1992] C.R. (4^th) where similar constitutional provisions existed as those that exist in Fiji.

The court there quoted from the Canadian decision and said and I quote: -

“The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith [R v Smith (1989) 52 CCC (3d) 97], (1) it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?.....While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
   
   • (a) inherent time requirements of the case;
   • (b) actions of the accused;
   • (c) actions of the Crown;
   • (d) limits on institutional resources, and
   • (e) other reasons for delay, and
     

4. prejudice to the accused.”

The Court of Appeal then further quoted Sopinka J. where he said and I quote: -

“The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in the light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s.11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial....The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s.11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.”

As the Court of Appeal noted section 11(b) of the Canadian Charter is in the same terms as section 29(3) of the Fiji Constitution and accordingly the passages that I have quoted and the passages considered by the Fiji Court of Appeal would appear to be relevant to any consideration of an application such as the application now before this court.

The court then went on to consider each of the relevant criteria that had been identified and to which I have referred in the passages that I have quoted.

The first of those issues is the:

Length of Delay.

The length of delay as I have said is approximately 5 years 9 months. It is inevitable that there would be some delay in criminal trials of this nature but it would seem that a delay of that magnitude is certainly a delay that might be considered to be unreasonable.

Waiver of time periods

Whilst in the chronology that I have detailed there is no specific waiver. It is apparent that from time to time the defence consented to adjournments and that from time to time the delay was occasioned by the defence and by one at least of the accused failing to appear.

Reasons for the delay

As I have already said the reasons for the delay are many and varied and perhaps without doing any precise mathematical analysis one could conclude that the delays fail perhaps equally into the categories that I earlier identified, that is, delays at the hands of the prosecution, delays at the hands of the accused and the delays at the hands of the court.

Limited Resources

The resources as identified by Mr. Justice Govind in State v Armugam & Ors - HAC0013 of 1998L are in any country limited. He also there identified that this is more so in less prosperous country such as Fiji in comparison to the more affluent countries such as Australia, New Zealand and the USA. He went on to say and I quote: -

“However limited resources can not be allowed to stand in the way of securing to the citizen a right that is entrenched in the Constitution. Thus there is a constitutional duty on the State to ensure that sufficient resources are made available so that trials can take place within a reasonable time.”

It is trite to note that this court both in its civil and criminal jurisdictions has had a paucity of resources made available by the authorities and that has resulted in insufficient resources being available to facilitate criminal and civil trials taking place within a reasonable time.

Prejudice to the Accused

There is nothing placed before me that indicates to the satisfaction of the court that there is any particular prejudice to the accused that would result in the accused or either of them not having a fair trial. The only evidence of prejudice is the allegation contained in paragraph 7 of the affidavit in support of the Notice of Motion, which states and I quote:

“Our witnesses cannot be located in order to present and prepare our defence to the charges against myself and the 2^nd named applicant.”

There is nothing before the court as to who those witnesses might be as to the relevance of their evidence and as to the reasons why they are unavailable or unable to be located. If it were that prejudice alone were necessary to enable the application to succeed then it must fail but as I have earlier indicated the Court of Appeal in Seru has clearly indicated that prejudice is not essential; that delay sufficient to result it in not being a fair trial is not essential and that mere delay is sufficient to cause a stay to be granted by virtue of section 29(3) of the Constitution.

The charges with which the accused have been charged are indeed serious charges.

The Court of Appeal in Seru again identified that the more serious the charge the greater the interests of the community in ensuring the case goes to trial but the Court of Appeal then said and I quote:

“But the fact remains that this country has adopted s.29(3) thus confirming that one of the fundamental rights of all citizens is to have a charge disposed off within a reasonable time. If the court fails to acknowledge unreasonable delay when it occurs, the constitutional right will become a dead letter.”

Unless the relevant authorities address delays such as have occurred in this instance and provide sufficient resources to ensure that matters come to trial expeditiously then the community interests will not be served. There will be no deterrent to the commission of crime in e society and the system will flounder.

By virtue of the Court of Appeal decision in Seru and applying the principles that are therein expressed, I am of the opinion that the stay sought in the Motion with respect to each of the accused must be granted and accordingly I order that the trial with respect to each of the accused be stayed and that each of the accused be discharged.

JOHN CONNORS
JUDGE

AT LAUTOKA
10 MAY 2004