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State v Chand [2008] FJHC 77; HAC098.2006 (16 April 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 098 of 2006

BETWEEN:

THE STATE

AND:

SATISH CHAND

Counsel: J. Cokanasiga for the State
S. Sharma for the Accused

Date of Hearing & Ruling: Wednesday 16th April, 2008

RULING

[1] This is an application by the State for an adjournment of the hearing of the trial, which was scheduled to commence at 9.30 am today. The counsel for the accused vigorously opposes the application.

[2] The accused is charged with the murder of his wife on the 11th of September 2006. The criminal information was filed on 7th November 2006. The hearing date was fixed a month ago, that is, on the 20th March 2008.

[3] The reason advanced for an adjournment is that the counsel in-charge of this matter is engaged in another trial in the High Court at Suva. A similar reason was advanced by the State in another matter set for trial this week (see, State v Swadesh Kumar Singh Criminal Case No. HAC 14/01). Swadesh was a retrial ordered by the Supreme Court. I refused an adjournment because no good cause was advanced for an adjournment, the prosecution had not filed subpoenas for the witnesses, the trial date was fixed a month ago, the post charge delay before the commencement of the retrial was 7 years, and that there was no express waiver by the accused of his right to be tried within a reasonable time.

[4] The decision to grant or deny an adjournment is within the trial court’s discretion. The discretion must be exercised judicially so that the rights of the parties are not defeated and that no injustice is done to one or either of the parties (McCahill v State Criminal Appeal No. 43 of 1980, Chand v State Criminal Appeal No. AAU0056 of 1999S).

[5] The relevant factors for consideration are the reason for an adjournment, the rights of the State, the rights of the accused, and the general administration of justice.

[6] The reason advanced by the State for an adjournment, in my view, does not constitute a good cause. The State had an advance notice of the hearing date. If the prosecutor who was assigned this matter was going to be engaged in another matter, then this trial should have been assigned to another available prosecutor. The problem seems to be a lack of coordination in the State prosecution office. The administrative problems in the State prosecution office are not a good ground to adjourn the hearing of the trial.

[7] Mr. Sharma for the accused submits that he has encountered real difficulties with the State prosecution office in terms of agreeing to facts so that the length of the trial could be shortened. He has written numerous correspondences but received no response. He submits that his employment contract with the Legal Aid Commission is coming to an end in July this year. Currently, he is on leave but made himself available for the hearing of the trial as directed by this Court.

[8] Mr Sharma further submits that the accused is not waiving his right to be tried within a reasonable time and that there has already been a post charge delay of 1 year and 7 months.

[9] The State submits that they need a short adjournment. The witnesses have been subpoenaed and the prosecution could proceed with the trial if they are given a short adjournment.

[10] The delay in this case in all circumstances cannot be classed as unreasonable. However, there is a risk that the accused will end up unrepresented if the matter is adjourned for a hearing after July 2008. The accused’s right to legal representation is an important consideration because he is facing a serious charge of murder. The courts prefer that every person charged with murder is represented by counsel.

[11] On the other hand, the State has to be given reasonable opportunity to prepare and present its case. This is particularly so when the case is one of an alleged murder.

[12] For these reasons, the rights of the State and the rights of the accused could well be served if a short adjournment is granted. I will adjourn the hearing of the trial to 21st April 2008 at 10 am in open Court. I order the State to file the agreed facts by 18 February 2008.

[13] The application for costs by the accused is refused. I do not have power to award costs at this stage of the proceedings.

Daniel Goundar
JUDGE

At Lautoka
Wednesday 16th April, 2008

Solicitors
Legal Aid Commission, Lautoka for the Accused.
Office of the Director of Public Prosecutions, Lautoka for the State