IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Miscellaneous Case No: HAM 248of 2013
Miscellaneous Case No. HAM 249 of 2013
Miscellaneous Case No. HAM 250 of 2013

BETWEEN:

JOELI TAWATATAU

AND:

STATE

Counsel: Applicant In Person
 : Mr. Qalinauci T for the State

Date of Ruling: 17th June 2014

RULING

1.	The applicant, Mr. Joeli Tawatatau had filed three separate applications, HAM 248/2013, HAM 249/2013 and HAM 250/2013, seeking this court's intervention to permanently stay the proceedings of three criminal cases pending against him in the Magistrate's Court, 1039/2011, 1046/2011 and 1047/2011 respectively.

2.	All three applications are based on the following four grounds:

a)	Double jeopardy
b)	Abuse of process
c)	Inordinate delay
d)	Unfair trial.

3.	It was agreed by both the applicant and the Respondent that all three applications can be dealt together as their basis is same. Thus, I will mainly focus on HAM 248/2013 and the Ruling will apply to the two remaining applications, HAM 249/2013 and HAM 250/2013.

4.	The applicant claims that he was assaulted by the police officers during his arrest and as a result he sustained injuries. His claim for 'Double Jeopardy' comes in that context; he cannot be punished twice, once police and then the court. This, on the face of it, does not carry any merit and amounts to a total misconception of the principle of 'Double Jeopardy'. The applicant has misdirected himself on the 1st ground and thus, fails.

5.	The law relating to permanent stay of proceedings in criminal matters has been discussed in several case authorities. This court, in Pratishna Narayan v. State, HAM 207 of 2013 (22nd May 2014), after a careful analysis of both local and overseas decisions of the higher courts, said that an application to stay proceedings permanently in a criminal matter has to be done only in exceptional circumstances when it is proved by the accused on balance of probability that either he cannot have a fair trial or it would be unfair for the court to try him in a given scenario. It was stressed in Pratishna Narayan (supra) that the judicial discretion to stay criminal proceedings has to be exercised sparingly to reach the ultimate objective of a fair trial and that 'fairness' is not only to the accused, but to the prosecution as well.

6.	The remaining three grounds of appeal, Abuse of process, Inordinate delay and unfair trial have been emerged with the delay of almost 2 years from the inception of the Magistrate's court cases.

7.	In common law, it is accepted that though the 'delay' is unjustifiable, if no fault can be attributed to the prosecution, an order for stay of proceedings is rarely been considered and in fact, it is an exception, but not the rule. Further, if there is no prejudice caused to the defence depriving them of having a fair trialor a trial according to the law, a stay will not be granted. The issue of 'delay' has to be addressed with the length of delay, the reason for the delay, whether or not a defendant has asserted his or her right to a speedy trial and the extent of any prejudice to the defendant. [Tevita Nalawa v. State[2010] FJSC 2; CAV 0002.2009 (13th August 2010)]

8.	The Court of Appeal, in the case of Mohammed Sharif Shaim v. State, Misc. Action No. 17 of 2007held that a 5 years delay after the charges been laid down in the Magistrate's Court amounts to an unreasonable delay. But, instead of ordering a stay, the matter was referred back for the trial to be commenced within 40 days. It was held that the governing factor must always be whether an accused can be tried fairly without any impairment in the conduct of his defence and that if that question can be answered affirmatively, the prosecution should not be stayed.

9.	The chronology of events pertaining to Case No. 1039/2011 (HAM 250/13), the oldest pending case amongst the lot, had initiated in Nasinu Magistrate's Court on 29th of September 2011. The applicant been charged with Burglary and Theft, had been served 2nd phase disclosures on 23rd of January 2012. As per the records on 6th of June 2012, the applicant had been served full disclosures and his application for Legal Aid assistance was still pending. Even on 11th of July 2012, the applicant's legal representation issue had been pending. On 4th of February 2013, this matter had been fixed for trial on 30th of September 2013. But, unfortunately the prosecution was not ready on that day as the prosecuting officer was sick. Despite the applicant's claims that the prosecution is giving lame excuses to have the case adjourned and request for an acquittal, the learned Magistrate had accepted that the prosecution has a 'reasonable cause' to move for an adjournment. The hearing had been adjourned to 20th of November 2013. The applicant filed the stay application, HAM 250/2013, in the High Court before the 2nd hearing date.

10.	Nasinu Magistrate's Court No. 1046/2011 (HAM 249/2013) had been initiated on 5th of October 2011. The applicant had been bailed out by the learned Magistrate twice in this case, once on 4th April 2012 and then on 19th of November 2012. But, the applicant could not meet the ordered requirements. Matter had been fixed for hearing on 4th February 2013, when mentioned in court on 19th November 2012. Before 4th February 2013, several adjournments had been taken place for applicant's bail issues, him been produced in other courts and for the DPP to bring down the charges of "Aggravated Robbery" and "Theft of a motor vehicle" to one Receiving Stolen properties. On 4th February 2013, when the prosecution was ready to proceed with the hearing, the applicant wanted to go for a Voir dire hearing and the hearing of the substantive matter had been adjourned to 22nd May 2013. On that day, the applicant's witness was not present in court. Though the prosecution was ready to proceed with the voir dire, the learned Magistrate had adjourned the hearing till 30th July 2013, saying that it is not fair by the accused to proceed without his witness. On 30th July 2013 the hearing did not take place due to the non-availability of the prosecution witnesses. They were issued with Bench warrants and matter was fixed for mention on 30th September 2013. The application for stay (HAM 249/2013), had been filed by the applicant in High Court before the scheduled date.

11.	Suva Magistrate's Court case No. 1047/2011 (HAM 248/2013) is for 'Resisting Arrest'. Initially it was pending before Nasinu Magistrate's Court, but later transferred to Suva over a jurisdictional issue. This case had also initiated on 5th October 2011. On 3rd February 2012, after several mention days from its inception, the applicant had told court that he wants to engage a counsel. Even by 6th June 2012, the plea could not be taken as the applicant had applied for Legal Aid Commission's assistance. The issue of legal representation had not been finalized even till 18th September 2012. The applicant had not been produced before court for several dates and on 18th of September 2013 he had made a representation to the prosecution to withdraw the charge. Then on 10th October 2013 the applicant had moved for a stay of proceedings in this case as well.

12.	The sequence of events pertaining to all three cases, 1039/2011, 1046/2011 and 1047/2011, show that the 'delay' to conclude the matters is been contributed by both the prosecution and the applicant, but mostly by the applicant. Issues such as applicant's legal representation by the Legal Aid Commission, his bail and sudden move for a voir dire inquiry along with the absence of defence witnesses had caused the delay from the applicant's side. Therefore, it is not correct, if not unfair, to say that the delay is due to the sole responsibility of the prosecution. Thus, this court is not inclined to accept the assertion of the applicant, that there is such inordinate delay which would amount to abuse of process and unfair trial.

13.	This court is of the firm opinion that the applicant did not prove on balance of probability that he will be prejudiced or will not have a fair trial if he is to proceed with the trials in the Magistrate's Courts over the alleged delay. In fact, had he proceeded ahead in the ordinary course, these three cases might have been disposed by now. All the grievances of the applicant, especially the assaults to him in the course of the arrest and interview can be dealt with in a voir dire inquiry, as he opted to do once in Case No. 1046/2011 (HAM 249/2013). Hence, the three (3) applications to stay the proceedings of Magistrate's Court (Nasinu) Criminal Nos. 1039/2011, 1046/2011 and 1047/2011 (Suva Magistrate's Court) do not carry any valid appeal ground to be entertained. 

14.	Thus, all three cases will be referred back to the respective Magistrate's Courts. The learned Magistrates who are presiding in the respective courts are hereby ordered to give priority to these cases and conclude before 31st December 2014.

15.	The Ruling of this court applies to all three applications and must convey the same to the respective Magistrate's Courts without any delay. A feedback on the outcome of the cases should be submitted to the High Court Criminal Registry by the respective Magistrate's Court Criminal Registries on or before 31st January 2015.

16.	The three applications, HAM 248/2013, HAM 249/2013 and HAM 250/2013 are dismissed accordingly.

JanakaBandara
Judge

At Suva
Applicant in Person
Office of the Director of Prosecution for State