IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 8 of 2012

The State

v

(1) Apete Vereti
(2) Semisi Nasike
(3) Mere Samisoni

For the State: Mr. Crossman, Ms. Yang and Mr. Korovou
For Accused 1: Present
For Accused 2: Present
For Accused 3: Mr. Williams; Ms. Phillips and Ms. Vaniqi

Hearing of the Motion: 28th June 2013
Ruling on the Motion: 6th August 2013

RULING ON APPLICATION FOR PERMANENT STAY

This is the ruling on an application filed by the Third Accused (hereinafter the Applicant) on the 18th of March 2013 seeking an order permanently staying the proceedings against her upon the grounds of abuse of process by the State in particular: -

(a)	Persistent failure to provide the defence with full and appropriate disclosure;
(b)	Inordinate delay by the State causing prejudice and undue expense to the Applicant; and
(c)	Consequential to the abuse of process by the State, damage to the Applicant's health and business interest.

The Motion is supported by the Affidavit of the Applicant Mere Tuisalalo Samisoni deposed on the 13th of February 2013.

The application is opposed and the State filed the Affidavit of Detective Corporal 2247 Petero Tupici in opposition. The Affidavit was deposed on the 27th of May and filed on the 29th of May 2013.

The factual basis for the application

The Applicant has set out two reasons for her current application namely: -

(a)	Persistent disregard for her counsel's request for disclosures in writing and which have been appended as Annexures in her Affidavit. Her grounds are that these documents are in the possession and custody of the State and ought to have been disclosed on request. Her contention is that the persistent refusal to disclose these documents constitutes an abuse of process and will affect the fair trial of this matter.

(b)	The second ground is that the persistent delay due to the non disclosure is having an adverse impact on her health as well as on her business interests. She has appended letters from the Suva private Hospital as evidence of her current state of health. 

She has deposed that the delay is also having an adverse impact on her intention to stand in the upcoming elections and is having an adverse effect on her quality of life. 

The State's response

In his affidavit in response, DC Petero Tupici answers each allegation directly and confirms that as far as the State is concerned, there has been full disclosure and they are now ready to have the plea taken and to fix a trial date on the charge before the Court.

Preliminary issue

At the hearing of the Motion both parties conceded that there was a live issue that ought to be considered first before the Court could address its mind to the Motion before the Court. The issue is this – does a Magistrate sitting on a criminal case have an inherent power to make an order permanently staying criminal proceedings?

Submissions of the Applicant

The Applicant submits that all Courts have an inherent authority to protect their own proceedings from abuse and that the State's conduct in prosecuting this matter up to now is tantamount to abuse and the proceedings should be permanently stayed.

The Applicant submits that the current practice of referring such applications to the High Court is not based on any law and the authorities on the same are at best in conflict. The Applicant relies on the Court of Appeal decision of The State –v- Nata where the Court declared that a Magistrate's Court in Fiji has the inherent power to control its proceedings including the power to make a suppression order. 

In the written submissions the Applicant submits that the other comparative jurisdictions in the Commonwealth confer their summary Courts with the inherent jurisdiction to grant appropriate remedies for abuse of process. The Applicant further submits that it is appropriate that the same Court deal with any abuse of process before it rather than having the same issue being decided by a Court which is remote from the disputing parties and which may not have an appreciation of the behaviour of both parties.

The Applicant relies on the authority of State –v- Nata AAU0010 of 1995 which was a decision of the Fiji Court of Appeal and a High Court decision by Justice Gerard Winter in the case of Sahim –v- The State [2007] FJHC 119. 

In the Nata case, the Fiji Court of Appeal confirmed that Magistrates did have an inherent jurisdiction to regulate the proceedings in their Courts and this included the authority set out at section 46 of the Magistrate's Court which linked this authority to the current practice for the time being observed in England in the County Courts and other Courts of summary jurisdiction. 

In the Sahim case, Justice Winter made a finding that a Magistrate in exercising his authority has ancillary powers to entertain an application for abuse of its processes. In doing so he observed that such applications would be ideally heard by the same Court as it was seized of all the relevant facts pertinent to the abuse and could arrive at a decision that would be appropriate for each individual case.

The Applicant therefore submits that the Affidavit evidence together with the history of the handling of this case by the State is sufficient to satisfy this Court that the Motion is meritorious and ought to be granted. The submission of the Applicant is that the conduct of the State has been egregious and oppressive and this abuse can only be remedied by an order permanently staying these proceedings as to continue with the current case will be adding to the injustice already suffered by the Applicant.

The submissions for the Respondent

The Respondent submits that a Magistrate's powers are prescribed by statute including the Magistrate's Court Act and the Crimes Decree, the Criminal Procedure Decree and Sentencing and Penalties Decree, amongst other laws. These enactments do not invest a Magistrate with any inherent jurisdiction to grant a permanent stay of proceedings in criminal proceedings. It is submitted that this authority is invested only in the superior Courts especially the High Court by virtue of section 202 (2) of the Criminal Procedure Decree.

The Respondent maintains that a Magistrate has no inherent jurisdiction to permanently stay proceedings. In this instance the Respondent was put on notice that the Applicant would be making an application for the charges to be dismissed for lack of disclosures and for delay. The application that is before the Court is instead an application for stay and the Respondent maintains that this is the wrong forum for such an application. 

The Respondent submits that the Magistrate may terminate proceedings and dismiss a charge subject to the statutory provisions at section 166, 171, 169 and 178 of the Criminal Procedure Decree but there is no express provision giving a Magistrate an inherent jurisdiction to order a stay.

The Respondent therefore submits that this Court does not have the jurisdiction to grant the remedies sought in the Motion.

In answer to the Applicant's ground of non disclosure the Respondent submits that they have disclosed all the documents that they have in their possession that relates to the charge. The Respondent submits that the disclosures that are now being requested do not support the charge and will not be relied on, or are not in the Respondent's possession. The Respondent relies on the Affidavit of Detective Corporal Tupici in answer to the Applicant's contention that there has been persistent non disclosure. 

In answer to the ground of delay as submitted by the Applicant the Respondent has not solely been responsible for the delay rather it has been the Applicant with her numerous interlocutory applications for bail variation that has also contributed to the delay in these proceedings. The Respondent has fully disclosed its evidence to the Applicant and the next step now is for the plea to be taken and the matter to proceed to the trial. The Respondent submits that the leading authorities do not prescribe a time period for what constitutes delay in legal proceedings. The decision is made on a case by case basis.

 In this case the Respondent submits that the delay is not solely attributable to the Respondent and the Applicant must take responsibility for part of the delay as well. The Respondent further submits that this application in itself amounts to an abuse of process as the Applicant is contributing to the delay in these proceedings by filing an unmeritorious application.

The Respondent contends that the delay, if any, does not automatically mean that there is prejudice to the Applicant. The Respondent contends that the delay is both on the part of the Applicant as well as the Respondent therefore the Applicant ought not to benefit from a situation in which she has contributed.

In relation to the Applicant's health and the adverse effect on her commercial interests by the delay in these proceedings, the Respondent disputes that there is any link between the two. The Respondent contends that the symptoms that have been recorded in the various medical reports do not establish a clear connection between these symptoms and the current charges being faced by the Applicant. The Respondent notes that the Applicant is a person of advanced years therefore the ailments complained of could be attributed to her age rather than to any extrinsic factors such as an ongoing trial.

The Applicant has alleged harassment however there are no details of the type of harassment endured and there is also no evidence of how this alleged harassment has curtailed the Applicant's right to a fair trial.

In conclusion the Respondent maintains that a Magistrate's Court has no inherent jurisdiction to order a permanent stay of proceedings. 

The Respondent further submits even if the Court were to find that a Magistrate's Court has an inherent jurisdiction to provide the remedy sought, the Respondent contends that the Applicant has failed to demonstrate any proper grounds for the permanent stay to be granted therefore the Motion before the Court must be dismissed.

Analysis

The power to permanently stay proceedings is a power normally exercised by the High Court in its inherent jurisdiction. It is a power that is to be exercised only in very rare circumstances and where the Applicant can obviously not be able to have a fair trial due to the State's conduct of the case.

One of the two local cases that have been cited by the Applicant is the case of Sahim –v- The State [2007] FJHC 119.

 In relation to stay applications in Fiji Justice Winter (as he then was) had this to say: -

"[59] A slavish adherence to the stay remedy is not necessary or desirable in Fiji when there are alternatives that offer a proportionate and just remedy for unreasonable delay. This is in keeping with the proper use of the courts powers to stay or strike out proceedings. The prima facie duty of a court is to try a person who is charged before it with an offence which the court has the power to try. Therefore the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. (C.f. Lord Lowry in R v. Horseferry Road Magistrates' Court, ex p Bennett  at 74). (Emphasis added)

[60] In the final analysis it comes back to judicial technique in finding both a balance between the competing societal and personal interests involved and a remedy involving a proportional response to the breach of that right. A flexible approach to remedy rather than a rigid adherence to an automatic stay offer the best result for the state and the accused. A flexible approach will better promote an adherence to the right as Judges will more readily find and denounce as unreasonable any real delay in the trial of an accused.

[61] Some of the remedies that may be available are:

(i) A declaration. Rishworth et al, in The New Zealand Bill of Rights (Oxford 2003) note that a declaration has the salutary effect of condemning the Crown's deviation from the required standards of conduct. Not only is there greater symbolic effect, but a declaration may be more likely to bring a matter to the attention of Parliament as well as the public, thereby promoting political accountability for the breach as a result.

(ii) Timetabling orders to expedite the process of trial and to bring a fixture on at a reasonable time.

(iii) Release from pre-trial confinement on strict bail terms until trial.

(iv) Dismissal without prejudice; if the anxiety accompanying public accusation is sufficiently extensive.

(v) Comfort orders, such as name, identity and details of allegation suppression until trial. This to allow the innocent but anxious accused and his or her family to get on with life while the prosecution continues its efforts to bring the matter to trial. Where the investigation or prosecution has been extensively delayed or mismanaged, thereby delaying the trial through no fault of the accused then costs orders to accompany a declaration.

(vi) Trial direction to the assessors that delay is a factor for consideration.

(vii) Sentence mitigation and reduction of penalty as delay has caused an accused to be on strict bail terms at the pleasure of the state awaiting trial.

(viii) The payment of compensation to an acquitted defendant.

(ix) If unfairness is established after trial then the quashing of any conviction."

The above authority supports the notion that this remedy of permanently staying proceedings is a remedy of last resort and to be granted only in exceptional cases where there is obviously no chance of an Accused person receiving a fair trial due to the abuse of the Court's processes by the State. A Court must always examine other appropriate remedies in order to ensure that a charge that is properly proffered in Court is properly heard and disposed. 

In this case whilst the Court pronounced that a Magistrate does have ancillary powers to regulate abuse of its processes – the Court did not specifically state that these ancillary powers included the right to permanently stay proceedings – a remedy which hitherto had only been exercised by the High Court.

The various case authorities that have been provided by the Applicant indeed point to jurisprudence within the Commonwealth where summary courts have terminated proceedings due to abuse of their processes by parties before it. These authorities are consistent in that this remedy is a remedy of last resort to be resorted to only when there is no other way in which the abuse may be remedied in order to have a fair trial.

Both parties concede that the Magistrate's Court is a creature of statute with its jurisdiction entirely prescribed in law. It is also conceded that each Court has an inherent jurisdiction to protect its processes from abuse. Where the parties diverge is on the question of whether the Magistrates in Fiji do have the power to order a permanent stay in situations of abuse of process. 

The Applicant contends that the State has persistently refused to provide disclosures despite numerous requests and correspondence requesting the same. This has resulted in the current application before the Court as the Applicant will not be able to properly answer the charge against her without full disclosure.

The Respondent contends that they have provided full disclosure of the documents that are currently in their possession and a plea needs to be taken so that the matter can take its own course.

Blackstone's Criminal Practice 2011 provides that "failure on the part of prosecution to make proper disclosure might result, in appropriate circumstances, in a defence application to stay proceedings as abuse of process or in a successful appeal."(Para. D9.17)

In this case the Respondent contends that it has fully disclosed the evidence as it relates to the charge and there is nothing further to disclose unless new documents come within their possession and they will disclose the same to the Applicant. The Court therefore finds that there is full disclosure and any document that has not been disclosed may not be relied on by the Respondent at the trial of this matter.

In relation to delay – from a perusal of the records there are only two reasons for the delay in moving this mater from when it first appeared in Court on the 2nd of January 2012 to date. 

There have been numerous adjournments for disclosure and also the bail conditions, especially for the Applicant have been varied from time to time and this has required Motions and hearings. Both parties to this application must take their share of responsibility for the delay. The delay has not been inordinate and this ground is not made out.

The third limb of this application is that the ongoing delay has affected the health and commercial interests of the Applicant as well as her future plans since there is no resolution to this case. The Applicant has provided evidence of her ailments and medical treatments however there is no comparative evidence of what her health was like in say 2011, prior to being charged for this offence. These are matters of fact that need to be substantiated by evidence. 

By the same token she also contends that the delay in these proceedings has adversely affected her commercial interests. This again is an assertion of a fact that requires evidence but there is no evidence of the health of her commercial interests in 2011 as opposed to now and how any change in the same can be linked to these proceedings. The Applicant has not been able to link these proceedings to the current state of her commercial interests. This ground is also not made out.

At the hearing of this Motion the Court was posed with two questions: -

1.	Does this Court have the jurisdiction have the jurisdiction to grant a permanent stay of proceedings?
2.	If so – has the Applicant been able to satisfy this Court that the abuse of processes that she alleges on the part of the Respondent – been made out?

In answer to the first question posed – the Court's position is that unless there is a definitive and clear pronouncement from the superior Courts to the contrary, the Magistrate's Court in Fiji will not grant orders permanently staying proceedings as we are a creature of statute and such a power is an inherent power which is not vested in the Magistrate's Court.

Since the answer to the first question has been in the negative, the second point becomes moot. However for the sake of completeness – the Court finds that the Applicant has not been able to establish an abuse of the Court's processes by the Respondent in any event.

The Motion is therefore refused and the parties will meet their own costs.

Usaia Ratuvili
Chief Magistrate

6th August 2013