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Sinha v State [2011] FJHC 380; HAM056.2011 (13 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO. HAM 056 OF 2011

BETWEEN:

SALENDRA SEN SINHA
Applicant

AND:

STATE
Respondent

Applicant in Person
Ms L. Vateitei for the State

Date of Hearing: 08 July 2011
Date of Ruling: 13 July 2011

RULING
[Re: Stay Application – Delay]

[1] The Court Record shows that on the 17th March 2009, this applicant appeared in the Lautoka Magistrates Court charged with escaping from lawful custody and resisting arrest. The applicant says that part of the Court Record must be missing because he appeared on the 27th January 2009 and the 9th February 2009.

The Magistrates' notes have been faithfully transcribed because his notes commence on the 17th March, 2009 when the charges were read, explained and understood.

[2] The case is still proceeding below and the applicant makes an application for permanent stay on the basis of unreasonable delay.

[3] After the initial appearance on the 17th March 2009 the applicant was not brought up to appear on the next three occasions, and thereafter the next three months were spent in arguments between counsel over jurisdiction. After the jurisdiction ruling on the 17th September 2009, this applicant was not present for twelve occasions when the case was called, he being in remand and he was never brought up. He next was produced on 21st February 2011 whereafter the case had been consistently adjourned until now because of non-appearance of one of his co-accused at trial, Mr. Emori Laqai.

[4] It would appear to be a failure of the system to produce the applicant to Court for this case, although the applicant submits otherwise. He argues that it is not a systemic failure but "a deliberate delay by the State" and that "deliberate non production of the applicant in Court, understaffing, workload or a shortage of resources to bring this matter to trial within a reasonable time is not a justification for delay"; thereby breaching all his fundamental rights to trial within a reasonable time.

[5] While there is absolutely no indication that the State has been willfully delaying progress of this matter, there is a lot of truth in the applicant's assertion that "understaffing, workload and shortage of resources" within the Police Force have contributed to his non-production. For the many times the applicant was not brought up, there was no explanation given, but it is known that in this time he was on trial in Suva for other matters. Admittedly the fault was not on the part of the applicant, nor was it on the part of the prosecution. The delay latterly has been the non-appearance of a co-accused, and this could easily be remedied by severing the trial or proceeding in the co-accused's absence.

[6] Given that stay will only be granted in very exceptional circumstances (see Rahiman [2011] FJHC 298 and Bavaro [2011] FJHC 235) and that the delay (of 2 years 4 months) is not unreasonable, it is difficult for the applicant to show that he has been prejudiced.

[7] Offences of escaping from lawful custody and of resisting arrest are serious abuses and disrespectful of authority. As such they deserve to be aired. The delay occasioned in this case is best remedied by the Magistrate setting an urgent hearing date (with or without the 4th accused) as a matter of priority. To this end the applicant will appear in the Lautoka Magistrates Court on Monday 18th July 2011 at 9.00am for fixture of a hearing date. A production order is issued to that purpose.

[8] The application for stay is refused.

Paul K. Madigan
JUDGE

At Lautoka
13 July 2011