IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

High Court Criminal Miscellaneous No: HAM 238 OF 2010

BETWEEN:

FILIPE BABA
Applicant

AND:

STATE
Respondent

Counsel: For Applicant - In Person.
For Respondent/State - Ms. Katia, P.

Date of Hearing: 25/01/2011 

Date of Ruling: 17/02/2011 at 9.30am

RULING

The applicant Filipe Baba is charged with one count of Aggravated Robbery in High Court Case No. 129/2010. Applicant applies for a permanent stay of prosecution on the ground of abuse of process. In that he submits that there is insufficient evidence to prove the charge against him. Further he submitted that the only evidence against him is the caution interview statement of the co-defendant. 

He submitted that he was acquitted by the Magistrates Court of the charge of theft of the vehicle, alleged to have been used as the getaway vehicle, after the alleged robbery in this case.
The Law

The Power to stay a prosecution arises from the inherent jurisdiction of a court to prevent an abuse of process (Connelly v DPP (1964) A.C. 1254).

In Hui Chi-Ming v R (1992) the Privy Council described abuse of process as something so unfair and wrong that the prosecution should not be allowed to proceed.

In Jago v The District Court of New South Wales (1989) 168 CLR 23 Mason CJ of the High Court of Australia said;

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of a trial can relieve against its unfair consequences".

In Takiveikata v State (2008) FJHC 315; HAM 039.2008 (12 November 2008) court said:

"……..The Law is that unless that there are exceptional circumstances in existence which would justify a stay of proceedings, the community is entitle to expect that the Court will try those accused in accordance with Law until a verdict is rendered on that information".

In R v Derby Crown Court, exp Brooks (1984)80 Cr. App. R. 164, Sir Roger Ormrod said:

"The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of processes if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the prosecution of or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused or to genuine difficulty in effecting service".

In this case the Applicant (accused) submitted that there is insufficient evidence against him.

It will be after due process of Trial the court will decide whether there is sufficient evidence to convict or warrants an acquittal. The alleged insufficiency of evidence cannot be considered at this stage to stay proceedings permanently.

Therefore application is refused.

Priyantha Fernando
JUDGE

At Suva
17th February, 2011.