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Rabuka v State [2006] FJHC 166; Criminal Miscellaneous Case HAM 76 of 2006 (9 November 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL MISC. CASE NO.: HAM 76 OF 2006


BETWEEN:


SITIVENI LIGAMAMADA RABUKA
Applicant


AND:


STATE
Respondent


Counsel:
Mr. P. Maiden SC
Mr. P. Sharma
Ms Tamanikaiwaimaro
for the Applicant

Mr. M. Tedeschi QC
Mr. R. Gibson
Mr. A. Ravindra-Singh
for the State

Date of Hearing: 6th and 7th November, 2006

Date of Decision: 9th November, 2006


DECISION

Introduction

  1. The accused was engaged in the .Army as a Regular Officer between 1968 and 1991. After leading two military coups in 1987, he took Command of the Fiji Military Forces and attained the rank of Major General. He left the Army to become first Deputy Prime Minister and then Prime Minister of Fiji, a position he held until his coalition was defeated in the general elections of 1999. Throughout this time he was embroiled in the political and constitutional struggle for indigenous rights that culminated in his government introducing the current Constitution in 1997.
  2. It was while in command of the Army that he formed the counter revolutionary warfare squadron. This was a special services unit with the task of preventing any illegal takeover of government. The unit was subsequently renamed the 1st Meridian Squadron.
  3. On the 19th of May 2000 a coup occurred in Fiji under the leadership of now convicted traitor George Speight. He ran his coup, took over Parliament and held members of Parliament hostage using members of this special services unit. The coup ended with Speight arrested, the country under martial law and the Army including some coup supporters returned to quarters.
  4. Later that year on the 2nd of November rebel elements of the same squadron attempted a military takeover of the Queen Elizabeth Barracks to execute the removal of their Commander. This trial is not directly concerned with that mutiny it merely sets the scene of these allegations. It is said that Sitiveni Rabuka on two occasions over this time incited Colonel Seruvakula to mutinous acts first in July and then November of the year 2000. The particulars are that:
  5. Mr. Rabuka applies to have these charges against him dismissed or permanently stayed as they are an abuse of process. His grounds for dismissal or stay of these Charges are:
  6. At hearing the applicant withdrew grounds (d) and (e). He barely supported grounds (b) and (c)
  7. The essential dates are:
  8. The applicant personally filed an affidavit in support of the grounds advanced.
  9. He first compares the timeline of his charges with those of George Speight, the coup ringleaders and members of the unlawful administration. The last of these being charged in 2003.
  10. He complains he was charged 3 years later.
  11. He claims prejudice claiming it is "virtually impossible for him to recall what I did or what I said on the two days I allegedly committed the offences." He otherwise denies the allegations and says his bare denials may have been better supported if he were charged earlier.
  12. He says that potential witnesses are unavailable to him. In particular the late President Ratu Sir Kamisese Mara, with whom he had conversations at the time of the coup, and the late Colonel Ulaiasi Vatu and Chaplin Mesake Tuima who could have supported his version of events surrounding a church service for the 1st Meridian Squadron he attended just before the coup of 19th May 2000.
  13. In support of his grounds on failure to disclose and provide particulars he complains about delays in supplying information containing details about the charges and uncertainty over particulars of the charge.
  14. Concerning adverse publicity he claims his high profile, Colonel Seruvakula's interviews in the media and a recent broadcast detailing the charges must mean he cannot he fairly tried.

State

  1. The State's evidence is from Superintendent Waisea Tabakau. He details the timeline of post coup investigations and prosecutions. He also attempts to explain the delay in charging the accused.
  2. He was placed in charge of the Treason Investigation Unit (TIU) set up to investigate the attempted coup by George Speight and subsequent events including the mutiny at the Queen Elizabeth II Barracks. He was unchallenged in his assertion that this was the biggest ever investigation in the nation's history.
He deposes the following facts in support of that opinion:
  1. The Superintendent explained the prosecution priorities in this way:
  2. The deponent said it was in the course of a general interview with Lieutenant Colonel Seruvakula that first mention was made of the subject telephone calls. There was however, much other information contained in this statement taken in New Zealand on the 24th of July 2003 that had to be followed up before the Rabuka allegations could be substantiated and an investigation commenced. The Superintendent explained that it was impossible to process the investigation in relation to Mr. Rabuka between July 2003 and July2004 because the staff of the Unit was reduced to 4 investigators.
  3. In examination in chief he produced an exhibit (A.1) that details the movements of the investigation docket during the relevant period.
  4. Under cross-examination he explained the relevance of several prosecution files that dealt with different aspects of coup offending. He emphasized that those files were not specifically created to deal with these charges or this accused but were prepared in relation to quite separate matters and only drawn into this investigation after this docket (34/04) was created on the 26th of July 2004 immediately before the accused's interview.
  5. He said the file was forwarded to the CID for opinion from the DPP on the 2nd of August 2004 in relation to a possible appointment of Mr. Rabuka overseas as a representative of the Fijian Government but was collected by him again on the 4th of October 2004.
  6. The witness emphasized that while the unit began to devote time to investigating the accused's role in possibly inciting mutiny they were not able to do so to the exclusion of all other investigations that were continuing at the same time. He said that on this file the police had collected or prepared the evidence of 64 witnesses to be called at trial as well as conducting searches looking for corroborative material, analyzing telephone logs and other enquiries.
  7. He confirmed the file was sent to the DPP's Office on the 12th of September for consultation and that as a result further investigations were directed in December 2005.
  8. Finally, prosecution advice was received in late February/early March. He confirmed under cross-examination that charges were not filed immediately as the accused wanted to go overseas for medical treatment. Mr. Rabuka returned to Fiji on the 5th of May 2006 and shortly thereafter the initial charges were filed.

The Law

  1. The State appropriately concedes that the High Court has an inherent power to Stay criminal proceedings for delay. I accept the difference in Fiji between pre-charge and post-charge delay applications. In Seru v The State [2003] FJCA 26, the court noted this important distinction.
  2. In Seru charges were laid in November 1994 in relation to alleged offending two years earlier on the 17th of September 1992. Committal to the High Court did not occur until April 1997. The trial was held between July and September 1999. The Court of Appeal observed that the delay was systemic and found the court did not hear the case in a reasonable time.
  3. In doing so the court adopted the approach taken by a majority of the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and the New Zealand courts in Martin (supra) to determine what was unreasonable delay.
  4. In holding the delay to be unacceptable their lordships commented (at page 9) that the interests which the constitutional right was designed to protect comprised both individual and societal rights. The former were the right to security of the person, the right to liberty, and the right to a fair trial. The latter, was that prompt trials enhanced the confidence of the public in the judicial system and that there was a societal interest in bringing to trial those accused of offending against the law. The right to trial without delay is not an absolute one and must be weighed against the attainment of justice. Their lordships then went on to adopt the Canadian approach described by Sopinka J in Morin at 12-13:

2. Waiver of time periods;

3. The reasons for the delay including -
4. Prejudice to the accused.
  1. In another judgement, two of the judges in Morin, Lamer and Wilson JJ, took the view that a finding that the right to trial without undue delay has been infringed goes to the jurisdiction of any Court to put the accused on trial or to continue with the charges against him [see Rahey v The Queen (1987) 33 CCC (3d) 289, 306]. In my view that is too strict. While there is no reason to refuse a stay in a case where the delay was of the prosecution's making or where the delay is systemic it must always be remembered that a stay is not the only remedy available and is never automatically applied.
  2. The Supreme Court in a judgment delivered on the 19th October [Jonetani Rokoua v State Crim. App. No. CAV0001/2006S] discussing delay commented upon the caution to be exercised when construing the Fijian constitution alongside the constitutional rights jurisprudence of other more developed nations. Their lordships observed that Fiji is not comparable to a western (European) country and so foreign decisions will only ever aid interpretation not supplant it. However, in my view, the courts of Fiji cannot ignore the "regard" that must be had to public international law in the interpretation of all our rights detailed in Chapter 4. [see s.43(2)] and trusted common law principles.
  3. When considering delay in the context of the criterion of reasonableness contained in Section 29(3) of the constitution, the court went on to say, this had to be read with regard to the resources available in Fiji for the administration of Justice. This observation in my view while apt to the interpretation of this particular subsection is however limited to those provisions that are not absolute and are therefore clearly derogable. That must surely be so if proper "regard" is to he had to public international law.
  4. Further, in my view, great caution must be exercised in reading down fair and speedy trial rights on an affordability argument. The risk is that a focus on the availability of resources as the sole yardstick of reasonableness will inevitably lead to the acceptance of otherwise intolerable delays. These rights are in the constitution to be recognized. Clarity in these cases comes from recognition of delay for what it is and the application of judicial technique to find appropriate remedies for it not artificial interpretation or restriction of these rights to avoid an unpleasant consequence.
  5. In the United Kingdom there have been developments in delay jurisprudence along these lines. In the British courts the right to a speedy trial is given legislative recognition by incorporation of EU Convention rights through their Human Rights Act.
  6. In Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72 the Attorney General for England and Wales sought clarification from the English Court of Appeal as to whether a permanent stay of proceedings was the required result where the speedy trial right had been breached. The question was referred to the House of Lords. For the majority Lord Bingham of Cornhill while acknowledging the "powerful argument" that if a public authority causes or permits unreasonable delay to occur then a stay might be appropriate nonetheless rejected stay as the only remedy. In a country such as Fiji with limited Criminal Justice resources and scarce hearing time his Lordships reasons with respect seem relevant.
  7. Lord Bingham at 89:
  8. In order to establish a right to a stay on the basis of delay between the offence and trial, the accused has the burden of proving that the delay is so extreme that he cannot have a fair trial. Delay in itself is not a sufficient basis. The remedy of a stay of proceedings on the ground of delay can be invoked only where issues of prejudice arise. Therefore it is not appropriate to stay or dismiss criminal proceedings unless there can no longer be a fair hearing or it would otherwise be unfair to try the defendant. The prejudice must be of a kind that is incapable of being dealt with by suitable directions from the trial judge.
  9. The issue was re-visited two weeks ago by the Privy Council in Boolell v The State (Mauritius) [2006] UKPC 46 (16 October 2006). The appellant Prakash Boolell was on the 24th of March 2003 convicted by the Intermediate Court of Mauritius on an information containing one count of swindling and sentenced to 6 months imprisonment.
  10. His appeal to the Supreme Court of Mauritius was dismissed on the 26th of May 2004. He appealed as of right to the Judicial Committee of the Privy Council against the judgment of the Supreme Court.
  11. The charge arose out of a transaction entered into by the appellant, a barrister, on the l2th of September 1990. There was an extended curial history of the case following a similar pattern whereby hearings would be commenced and then have to be adjourned or vacated as the appellant barrister made a number of applications in the course of trial some without notice to the prosecution or the court many of them redundant or vexatious.
  12. However, despite delay caused by his litigation technique there were also systemic delays in hearing the case due largely to an under resourced justice system. For example, on no occasion during trial was evidence taken on successive days and on the only two occasions when the case was listed on successive days the proceedings were merely mentions. The Privy Council was informed that the intermediate court in Mauritius was not geared to hearing a case of any length
  13. Section 10(1) of the Constitution of Mauritius, contains a guarantee in familiar terms that where a person is charged with a criminal offence "the case should be afforded a fair hearing within a reasonable time by an independent and impartial court established by law".
  14. Their Lordships considered that the following proposition should he regarded as correct in the law of Mauritius:
  15. Although relating more to our section 29(3) rights I nonetheless respectfully adopt their Lordships reasoning and in particular their approval of Lord Bingham's judgment in Attorney General's Reference (No 2 of 2001) (supra) to the effect that stay is an extraordinary remedy in a criminal trial available in extremely limited circumstances.
  16. In New Zealand Her Honour Justice Winkelman discussed these very issues in Du v District Court and the Attorney-General HC AK CIV 2005-404-355 [2005] NZHC 276 (23 November 2005). At the end of the judgement her honour noted competing academic commentary on the issue and referred to the Dean of the Auckland law School in an article entitled: 'Affirming the Nation's Fundamental Values the Bill of Rights on Trial Without Undue Delay' (1995) 1 HRLP 56, 62-63, where Prof. Rishworth said that the logic of the Canadian approach, that a stay seems to be a minimum remedy, is compelling nonetheless:
  17. I am satisfied that in Fiji we can comfortably follow the reasoning of Lord Bingham to which I have earlier referred and the reasoning of Winkelmen J. The Court does not further contravene the right in continuing the proceedings after a breach of it has been found since the breach consists in the delay which has accrued and not in the prospective hearing.
  18. In this way shockingly long delays that are clearly unreasonable and violate the right might be properly recognized rather than ignored simply because of the undesirability of turning criminals loose. In Du Winkelmen J quoted the American Professor Amsterdam from his article: "Speedy Criminal Trial: Rights and Remedies" (1975) 27 Stan L Rev 525 at 535-536:
  19. The prima facie duty of a court is to try a person who is charged before it with an offence which the court has the power to try. Therefore the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. (See Lord Lowry in R v Horseferry Road Magistrates' Court, ex p Bennett [1993] UKHL 10; [1994] 1 AC 42 at 74)
  20. Even where the applicant succeeds in convincing the court there has been delay and incurable prejudice a flexible approach to remedy rather than a rigid adherence to an automatic right to dismiss or stay a case offer the best result for the State and the accused. A flexible approach will better promote on adherence to the right as Judges will more readily and denounce any real delay in the trial of an accused.
  21. Some of the remedies that may be available are:

Consideration

Particulars

  1. This matter is fully considered in R v Churchill [1965] 2 ALL ER 793 and 1965 49 CR APP R 317 by Thesiger J who had before him an application for particulars of overt acts in an alleged conspiracy. His honour at page 322 in commenting on the application which was made after counsel for the Crown had opened for 1 1/2 days said:
  2. On the particular facts of the case and after hearing the opening he considered the case could proceed in fairness to the defendants as:
  3. In my view the object of particulars is to enable an accused to know fairly what charge he has to meet. That object may be served by the particulars already given or from other material such as the original investigation statements themselves, correspondence between Prosecution and defence, or indeed the opening address of the prosecutor.
  4. In my view in this case all the defence has to do is to read and digest the investigated material, the exhibits, correspondence from the Director's Office and the assurance given by senior counsel during the course of these proceedings to know precisely the case they have to meet.
  5. At this hearing it became clear (in respect of the first count) there may be some need for further particulars in respect of the exact date on which the telephone conversation between the accused and Colonel Seruvakula occurred. However, I observe first that this date is not an essential ingredient of the charge and secondly the supply of an alternate date will not alter the nature of the charge. Any prejudice caused by an amendment to the information at this time can be cured by providing a short adjournment. A stay cannot be justified.

Adverse Publicity

  1. In respect of this ground I prefer the submissions of learned counsel for the Prosecution (paragraphs 13 and 18). The fact that the accused, to use the words of his counsel, is "notorious" will not prevent him receiving a fair trial.
  2. I reject the argument that somehow notoriety may provide some basis for immunity from prosecution. That cannot be so as it would offend the Republic's basic constitutional principle of equal justice for all.
  3. In Regina v Bell [2002] NSWCCA 2, the New South Wales Court of Criminal Appeal faced a situation where the accused had been charged with multiple acts of sexual abuse of young boys. There had been extensive media publicity given to the accused's alleged activities during a Police Royal Commission. The court said:
  4. In Hinch v A-G (Vic) [1987] HCA 56; [1987] 164 CLR 15 at 74 Justice Toohey observed that in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.
  5. His honour in an unrelated decision together with Mason CJ [R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603] observed that the possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility that proceeds on the footing that the jury acting in conformity with the instructions given to them by the trial judge will render a true verdict in accordance with the evidence.
  6. I am satisfied that any trial publicity, notoriety, sympathy or prejudice either for or against the accused can properly be dealt with by suitable directions to the assessors. A stay cannot be justified.

Delay

  1. It is clear from the evidence that the investigation of these charges meandered through the Treason Investigation Unit.
  2. However, I am satisfied that the affidavit of Superintendent Tabakau satisfactorily explains that slow pace. His unit faced a truly unique task in investigating the coup and mutiny of 2000. That task required him to rank in triage fashion those cases that were more important than others. Logic would dictate that the traitor Speight and his ringleaders would be first prosecuted followed by the members of the administration that took unlawful oaths. Then in point of time those that may have been involved in the mutiny at the Queen Elizabeth Barracks on the 2nd of November 2000.
  3. I am satisfied that it was not until July 2003 that the importance of the alleged communication between the accused and Colonel Seruvakula was drawn to the attention of the unit. It is reasonable to assume that it would take some time to verify the serious allegations made by Colonel Seruvakula before proceeding to formally interview the accused. This was undertaken on the 31st of July 2004. Logically there then had to be further enquiries made about the accused's statement before charges could be laid.
  4. I accept during 2003 and 2004 various prosecutions were continuing against a variety of offenders in various Magistrates Courts for lesser offences of public disorder, unlawful assembly and wrongful confinement and that accordingly it was impossible to devote an officer's full time to investigate Mr. Rabuka's matters.
  5. The delays are explained by the limited resources available to the investigators, the degree of attention that needed to be paid to the interview of witnesses and collection of appropriate evidence and the unit's obligations to other on-going investigations and trials. In respect of that matter I note that the second raft of trials against those charged for actions relating to the illegal administration started with Ratu Timoci Silatolu and Joe Nata's trials and sentences. These trials commenced on the 27th of June 2003 and concluded in 2005.
  6. I am not satisfied the applicant has established intolerable delay. Although the ultimate accusations are not particularly complex they did involve an intricate factual matrix that no doubt had to be pieced together from reluctant witnesses. The inherent time requirements of the case, workload of the unit and investigation priorities adequately explain the length of time it took to charge the accused. Further, while the events themselves may have happened in 2000 the allegations did not surface until 2003 and even then only as part of wider enquiries.
  7. I am not satisfied that the applicant has demonstrated significant and incurable prejudice. He first cast his mind back to these coup matters when he made a statement on the 29th of November 2000. This is a statement in which he specifically mentions his conversation with Colonel Seruvakula in November of that year. I find his explanations in both this early statement and in his caution interview quite detailed as to time, place, circumstance and his role in these events.
  8. The prosecution will no doubt bring evidence of motive to incite the mutinous acts but equally the accused in my view will have ample opportunity to refute that motive from available and cogent evidence about his role during the coup as a negotiator and peace maker. In my view, time has not altered much the nature of the charge or likely defence.
  9. I accept the State's contention that the unavailability of evidence by death or less during the course of time is not necessarily indicative or impossible prejudice.
  10. I could at this point simply refuse the application. However, to do so would not fully meet the arguments advanced.
  11. Even if I were to find that there was both intolerable delay and incurable prejudice such as to constitute a breach of Section 29(1) or to engage the inherent powers of the court I would not accept that stay in this instance is the only effective remedy.
  12. In performing the balancing exercise between the interests of this applicant and society I would find it imperative that this criminal trial on these charges proceed. These are allegations concerning the serious charge of inciting mutinous acts in a post conflict State. The public interest in having these charges brought to trial would in my view outweigh the personal interests of the accused in achieving a stay especially when more proportionate remedies than stay are available.
  13. I am satisfied that appropriate directions to the assessors to take pre-charge delay into account when assessing the evidence would in any event ameliorate any prejudice he may have suffered.

Conclusion

  1. The application is dismissed and I rule that the trial against Sitiveni Rabuka proceed commencing with an opening address from the State on Friday morning at 10.00am.

Gerard Winter
JUDGE


At Suva
Thursday 9th November, 2006

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