IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

HAM NO. 198 OF 2015

BETWEEN :

SAULA MALATOLU
Petitioner

AND :

STATE
Respondent

Counsel : The Applicant in Person
Ms. S. Kiran for Respondent

Date of Hearing : 17th of February 2016
Date of Ruling : 3rd of March 2016

RULING ON STAY OF PROCEEDINGS
Introduction

1.	The Applicant filed this application seeking an order to permanently stay the proceeding in the Magistrates' Court action number 158 of 2008. The application is founded on four main grounds, inter alia; 

i.	 Post charge delay and or inordinate delay, 
ii.	 Abuse of process, 
iii.	Prosecutorial misconduct, 
iv.	Unfair trial, 

2.	The Applicant and the Respondent appeared in court on 20th of January 2016 and both parties agreed to conduct the hearing by way of written submissions. Hence, I directed the parties to file their respective written submissions, which they filed accordingly. Having carefully considered the respective written submissions of the parties and the copy of the record of the proceedings in the Magistrates' Court, I now proceed to pronounce my ruling as follows. 

Background 

3.	The Applicant with three other persons were charged in the Magistrates Court for one count of "Robbery with Violence" contrary to Section 293(1) (a) of the Penal Code. The matter was first called in the Magistrates' Court on the 28th of February 2008. The four accused persons pleaded not guilty and the matter was adjourned till 3rd of March 2008 for mention. The Applicant was granted bail on the 28th of February 2008. Meanwhile, the Applicant was sentenced for another matter and was imprisoned. The matter was finally set down for hearing on 14th of October 2008. However, the prosecution sought an adjournment due to the unavailability of one of the interviewing officers. The adjournment was granted and the hearing was vacated. Thereafter, the matter had been adjourned on numerous occasions. The copy of the record of the proceedings in the Magistrates Courts reflects that the non- appearance of the four accused person in unison has led to the adjournment of the case on many occasions. 

4.	Meanwhile, the third accused person had pleaded guilty for the offence, hence on the 9th of June 2010, he had been sentenced for six (6) years and nine (9) months imprisonment. The hearing of the remaining accused had been adjourned till 14th of July 2010. The hearing had been vacated once again on the ground that the learned Magistrate was on sick leave. Subsequently the matter was adjourned on several occasions to fix a hearing date. The matter was called again on 16th of September 2010, where only the Applicant was produced and two other accused person were not present. The learned Magistrate had remanded the Applicant and issued a bench warrant against the first and fourth accused persons. He had adjourned the matter till 28th of September 2010. Thereafter, the matter had not been mentioned in the court and had lost track. After four years and seven months of abeyance, the matter had resurfaced on 20th of April 2015 and mentioned in the Magistrates' court. Since then, the matter had been adjourned on several occasions for the execution of "the notice of adjournment of hearing" on the first and second accused persons. 

5.	Having briefly outlined the chronological background of the proceedings in the Magistrates' court, I now draw my attention to the submissions made by the parties during the course of hearing. 

6.	Taking into account the submissions made by the Applicant, it appears that his application for stay of proceeding is mainly founded on the ground of delay. Although, the Applicant discussed the issue of abuse of process and unfair trial, his main argument is founded on the delay. Accordingly, I now draw my attention to discuss the applicable law on the issue of delay in respect of staying of proceedings. 

The Law

7.	Section 15 (3) of the Constitution of Fiji states that; 

"every person charged with an offence has the right to have the case determined within a reasonable time". 

8.	The approach of the jurisdiction of Fiji on the issue of stay of proceedings on the ground of delay has been developed in parallel with the approaches adopted in main common law jurisdictions. Fiji had initially adopted an approach more similar to the approach in the jurisdictions of New Zealand and Canada, however, it has lately changed and adopted the approach of the courts in England. 

9.	The Fiji Court of Appeal in Apaitia Seru v State ( 2003) FJCA 26; AAU0041.99S & AAU0042.99S ( 30 May 2003) having adopted the principles enunciated in leading authorities in the jurisdictions of Canada and New Zealand, found that the unreasonable delay is in itself prejudicial to the defendant. The Fiji Court of Appeal in Seru ( supra) held that; 

"We take the view however that the delays are of an order where the presence of prejudice may be inferred. In any event we agree with Casey J (Martin at 430) that if prejudice or its absence is regarded as the dominating factor, the purpose behind s29(3) of ensuring the speedy disposal of charges is deflected. Likewise Bell v Director of Public Prosecutions [1985] AC 937, a Privy Council decision under the Jamaican Constitution, recognised the accused's rights may be infringed notwithstanding he is unable to point to any specific prejudice.

In any case, prejudice is not limited to fair trial considerations. Any defended prosecution necessarily takes time for its proper disposal but to have serious, high profile charges hanging over one's head for more than 4 years, with the ultimate spectre of a possible prison sentence, is in itself prejudicial. These considerations apply even more strongly to a person such as Seru who had occupied a prominent public position. As Lamer J said in Morin (at 33) there may be stigmatisation of the accused; loss of privacy; and stress and anxiety from a multitude of factors, including possible disruption of family, social life and work, legal costs, and uncertainty as to the outcome and sanction" 

10.	The approach adopted in England prior to the enactment of Human Rights Act in 1998 has concisely discussed in Attorney General's reference ( No 1 of 1990) (1992) Q.B 630 at 643-644, where Lord Lane CJ held that; 

"Stay imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Bernnan J in Jago v District Court of New South Wales (1989) 168 C.L.R.23. In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the action of the defendant himself, should never be the foundation for a stay, 

In answering to the second question posed by the Attorney- General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held; in other word, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so where it can properly be described as serious, the following matters should be borne in mind; first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence, secondly, the trial process itself, which should ensure that all relevant issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the power of the judge to give appropriate direction to the jury before they consider their verdict". 

11.	Lord Lane CJ having carefully considered the competitive nature of the interests of public and the interests of the accused person in criminal proceedings found that the proceedings should be stayed on the ground of delay only in the most exceptional circumstances. If there are evidence that the accused is so prejudiced in the conduct of his defence and that a fair trial is no longer possible, then the remedy of stay is available. Other forms of hardship created by delay could be considered as a mitigating factor. 

12.	The enactment of the Human Right Act in 1998 has not significantly changed the approach enunciated by Lord Lance in Attorney General's reference ( supra) . Lord Bingham of Cornhill in Attorney General's Reference No 2 of 2001 ( 2003) UKHL 68) expounded the approach of the courts in England on the issue of stay of proceedings on the ground of delay in an inclusive manner, where his lordship found that; 

"If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can be longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of condition (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. 

 If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgment of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.

13.	In conclusion, Lord Bingham of Cornhill goes on to state that; 

"Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6 (1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant" 

14.	In light with the above mentioned judicial precedents in England, the Fiji Court of Appeal in Mohammed Sharif Sahim v State ( Misc Action No 17 of 2007) has decided to revisit the principle enunciated in Seru v State (supra). Having comparatively reviewed the approaches of the jurisdictions of New Zealand, Canada, England and European Court of Human Rights, the Fiji Court of Appeal found that the governing principle in an application of this nature must always is to consider whether an accused person can be tried fairly without any impairment in the conduct of his defence. If the court finds an affirmative conclusion for that question, the prosecution should not be stayed on the ground of delay only. The Fiji Court of Appeal held that; 

In an earlier decision of this court, of Seru and Stephens, prejudice was presumed because of the length of delay and the history of the case. What the court did not address was the availability of alternative remedies in the absence of proof of actual prejudice.

The correct approach of the court must therefore be two pronged. Firstly, is there unreasonable delay and a breach of Section 29 (3) of the Constitution? In answering this question, prejudice is relevant but not necessary where the delay is found to be otherwise oppressive in all the circumstances. The second question is if there has been a breach what is the remedy? In determining the appropriate remedy, absence of prejudice becomes relevant. Where an accused person is able to be tried fairly without any impairment in the conduct of the defence, the prosecution should not be stayed. Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence"

15.	The Fiji Court of Appeal in Mohammed Sharif Sahim ( supra) went further and held that the above stated approach would preserve the rights stipulated under Section 29 (3) of the Constitution ( Presently Section 15 (3) of the Constitution of 2013) without taking an excessive and an exorbitant step of terminating the proceedings in criminal actions. 

16.	The Supreme Court of Fiji in Nalawa v State ( 2010) FJSC 2; CAV0002.2009 ( 13 August 2010) upheld the approach enunciated in Mohammed Sharif ( Supra) and found that; 

"That right has been expressed in numerous cases at Common Law and the following principles may now be stated as basic to the Common Law; 

i)	 Even where delay is unjustifiable a permanent stay is the exception and not the rule, 
ii)	 Where there is no fault on the part of the prosecution, very rarely will a stay be granted, 
iii)	No stay should be granted in the absence of any serious prejudice to the defence so that no fair trial can be held, and
iv)	 On the issue of prejudice, the trial court has processes which can deal with the admissibility of evidence if it can be shown there is prejudice to an accused as a result of delay, 

Analyses 

17.	Taking the chronological background of this instant case into consideration, the stages of the proceedings can be divided into two main phases. The first phase as the pre-disappearance period and the second phase as the post - disappearance period. 

18.	According to the chronological background, it appears that the delay of the pre -disappearance period was predominately due to the non-attendance of the four accused person in unison on regular basis. Although the four accused were granted bail at the initial stages of the proceedings, few of them including the Applicant were later imprisoned for some other offences committed. The prison authority has continuously failed to adhere the production orders of the court in producing the accused. 

19.	The contribution of the prosecution for the delay during the first phase of the proceeding is marginal. Apart from seeking an adjournment for the hearing on 14th of October 2008, the Prosecution had not sought adjournment on regular basis. 

20.	Any substantive reasons or explanation that had attributed to the disappearance of the matter from the system was not given. Moreover, neither the prosecution nor the accused persons made an attempt to call the matter in open court during this period. If they had done so, the matter would have been brought to the attention of the learned Magistrate. It is unfortunate that none of the staff members or the statistician at the registry was aware of this matter. 

21.	In the post- disappearance period, the matter had to adjourn on number of occasions due to non-execution of notices of adjournment on the first and fourth accused person. 

22.	Accordingly, it is my opinion that number of reasons have contributed to the delay of taking this matter to its conclusion. Inter alia non-attendance of the four accused person in unison on regular basis and poor case management in the registry are the two main contributory factors for this delay of nearly eight years. Ipso facto, it is my opinion that the delay is undoubtedly unjustifiable. 

23.	However, in view of the principle enunciated in Mohammed Sharif Sahim (supra) and Nalawa (supra) the governing factor in staying of the proceeding is not the delay, but whether an accused person can be tried fairly without any impairment in the conduct of his defence. 

24.	The Applicant has not provided any evidence to satisfy the court that a fair trial is no longer possible due to this unjustifiable delay. The Applicant has merely stated that he will be prejudiced if the matter is proceeded with the trial irrespective of this unjustifiable delay, which is not sufficient for an application of this nature. It is the onus of the party who seeks such remedy to satisfy the court on balance of probability that a fair hearing is no longer possible due to the long delay. In the absence of such evidence, it is my opinion that there is no prejudice caused by the delay that prevents the accused to have a fair hearing. 

25.	The Applicant was charged with one count of Robbery with Violence, contrary to Section 293 (1) (a) of the Penal Code, which carries a maximum penalty of life imprisonment. Had the Applicant been tried without any delay and found guilty, by now he would have already served a substantial portion of his possible imprisonment. However, that fact alone does not constitute an exceptional reason to stay the proceedings. This fact is more appropriate for the mitigation in sentencing if the Applicant is found guilty subsequent to the hearing. 

26.	Bearing in mind the interest of public in criminal proceedings and the interest of the Applicant, it is my opinion that an expedient hearing would be an appropriate remedy for this unjustifiable delay. Hence, I refuse this application to stay of proceedings and dismiss it accordingly. 

27.	Though I am mindful of the fact that the cause list of the Magistrates' court is full of other prioritised cases, I still find that highest priority should be given to this instant matter as there has been an inordinate delay. Hence, I direct the learned Magistrate to conclude the hearing of this matter within sixty (60) days of this order. 

28.	Further I direct the Deputy Registrar to serve a copy of this ruling to the relevant Learned Magistrate of Lautoka and to the Hon Chief Magistrate for their information forthwith. 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
3rd of March 2016

Solicitors : The Applicant 
Office of the Director of Public Prosecutions for Respondent