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Nalawa v State [2010] FJSC 2; CAV0002.2009 (13 August 2010)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

[Petition for Special Leave to Appeal on Appeal from the Decision of the Court of
Appeal in Criminal Appeal No. CAV 0002/09]

BETWEEN:

TEVITA NALAWA
(PETITIONER)

AND:

STATE
(RESPONDENT)

CORAM: The Hon. Justice John Byrne, Judge of Supreme Court
The Hon. Justice William Marshall, Judge of Supreme Court
The Hon. Justice Paul Madigan, Judge of Supreme Court

COUNSEL: Petitioner in Person
: Ms N. Wickramasekera for the Respondent

Date of Hearing: 3rd August 2010
Date of Judgment: 13th August 2010

JUDGMENT OF THE COURT

INTRODUCTION

[1] On the 29th of January 2003 the petitioner was charged in the Magistrates' Court of Fiji in Lautoka on two counts. The first count was Indecent Assault contrary to Section 154(1) of the Penal Code Cap. 17 as amended. The second was for Rape contrary to Section 149 and 150 of the Penal Code.

[2] The victim of the offence was just over 10 years of age. She had reported the offences two years after their commission. Although the prosecution sought an early hearing date, the case was first mentioned before a Magistrate on 29th January 2003 but it did not come on for trial until 6th February 2006. The petitioner represented himself at his trial.

[3] On 31st March 2006 the petitioner was convicted by the Magistrates' Court after a contested trial on both charges. On 7th April 2006, he was sentenced to the following:

(a) Count 1 - 1 year's imprisonment

(b) Count 2 - 10 year's imprisonment

The sentences on Counts 1 and 2 were to be served concurrently but subject to a pre-existing term.

[4] On the 7th of April 2006 the petitioner appealed his conviction and sentence on the rape charge only to the High Court. He drafted his own grounds of Appeal to the High Court. In those grounds he made no complaints about any delay in the matter coming on for trial in the Magistrates' Court. His appeal was heard by a Judge sitting in the Appellate Jurisdiction of the High Court on 1st December 2006. The petitioner was represented by counsel at this hearing. It appears from the Court Record that his counsel made no complaint about delay at the hearing of his High Court appeal.

[5] On 2nd February 2007 the High Court Judge allowed his appeal against the conviction and sentence for rape but convicted the petitioner of the offence of defilement of a girl under the age of 13 years, for which the Judge sentenced the petitioner to a term of eight years imprisonment. Under Section 176 of the former Criminal Procedure Code Cap. 21, the offence of defilement is a statutory alternative to the offence of rape.

[6] The offences of rape and defilement of a girl under the age of 13 years both carry the same maximum sentence of life imprisonment. In his sentencing remarks the High Court Judge said that he had discounted the otherwise appropriate sentence by one year "for the lapse of time". The eight year term was directed to be served concurrently to the existing one year prison term for indecent assault and directed to commence on 7th of April 2006.

[7] On 1st June 2007 the petitioner appeared in person before the President of the Court of Appeal seeking leave to appeal to the Court of Appeal against his conviction and sentence for the defilement offence. The President refused leave but advised the petitioner that he could apply to the Full Court of Appeal for leave. The petitioner did this. His application for leave to appeal to the Full Court was approximately one week out of time. It appears from the Court Record that one of the grounds of appeal the petitioner alleged before the President was: "that there had been unreasonable delay and that he did not get a fair trial under Section 29(1) of the former Constitution and as such (the matter) should be permanently stayed".

[8] The remaining grounds of appeal were questions of mixed fact and law. His appeal was made under Sections 22 (1) and 22(1A) of the Court of Appeal Act. These provisions restrict appeals to the Court of Appeal from judgments of the High Court in its appellate jurisdiction "to questions of law only".

[9] The petitioner's application for leave to appeal to the Court of Appeal was heard by the Full Court on the 8th April 2008. The only ground of appeal raised by him which could be classified as purely one of law was the ground concerning delay and an unfair trial.

[10] The Court delivered two judgments, the one by a single judge and the other a joint judgment by the other two judges. One of the judges granted the petitioner leave to appeal on all his grounds of appeal including those of mixed fact and law. The other two judges granted leave only in respect of the ground alleging delay giving rise to an unfair trial. These two judges refused leave to the petitioner to argue on appeal his other grounds which related to alleged lack of corroboration and insufficiencies in medical evidence on the basis that those other grounds were hopeless. The Court of Appeal in its judgment of the 21st of November 2008 agreed with the observation of the majority judgment and dismissed his appeal. The conviction and sentence imposed by the High Court Judge for the offence of defilement of a girl under the age of 13 years was confirmed.

[11] On 30th of December 2008 the petitioner filed an application for special leave to appeal to this Court after the dismissal of his appeal by the Court of Appeal.

GROUNDS OF APPEAL TO THIS COURT

[12] The grounds of appeal by the petitioner for special leave to appeal are as follows:

(i) that there had been unreasonable delay;

(ii) that the learned Judge erred in law in failing to give adequate or proper directions on sentence.

[13] In his submission to this Court the petitioner relies on the following amended grounds of appeal:

(i) the petitioner's trial was delayed unreasonably and unconstitutionally.

(ii) The learned Magistrate erred in law and breached Section 206(c) of the Criminal Procedure Code when he did not proceed to trial after the guilty plea on 29th of January 2003, 20th of June 2003, and 16th of January 2004. Further because at the beginning of his trial on the 6th of Feb 2006 the Court did not take any plea from the petitioner his trial was thus a nullity.

(iii) He was wrongfully convicted for defilement following the setting aside of his conviction of rape.

(iv) The sentence was outside the jurisdictional limits of the Magistrate's Court.

[14] Grounds (ii), (iii) and (iv) were not raised in the Court of Appeal and the petitioner was specifically given a right of appeal by that Court to argue only the issue of delay. Accordingly this Court refuses to consider those grounds.

THE LAW

[15] Under Section 7(2) of the Supreme Court Act 1998 this Court which is the final Appellate Court must not grant special leave to appeal on a criminal matter unless:

(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved or;

(c) a substantial and grave injustice may otherwise occur.

THE ISSUE OF DELAY

[16] The principles regarding delay can be stated as first pre-charge delay and second post-charge systemic delay.

[17] There was a two year delay in the reporting of this case to the police. At Common Law the authorities are to the effect that where a victim delays reporting a case the test is not whether the delay is justified but whether a fair trial was possible.

[18] Whether or not a fair trial was possible in any given case depends on the facts of each case. They include the ability of the defence to run a defence because of the delay. In R. v. J.A.K (1992) CRIM. LR 30, Ognall, J in the Crown Court held that a fair trial would not be possible because the defence was unable to cross-examine the victim about the reasons for the delay due to the fact that such cross-examination would disclose other offences committed by the accused on his daughter. In R.V v. Jenkins (1998) CRIM.L.R 411 a stay was granted because of evidence of contamination of the evidence of two sisters, inconsistencies in their evidence, their ages at the time of the incidents (they were 5 years old), the lack of any reason for the delay, and because it was not a case where the accused lived with the complainants. However, this case must be regarded as exceptional because it has been held that long delays before complaints are made in sexual cases have not led to a pre-charge delay.

[19] R. v. J.A.K and R.v. Jenkins are obviously distinguishable on their facts from those in the instant petition, where, as we have said, the real issue is whether there is systemic delay such as to deprive the petitioner of his right to a fair trial.

THE RIGHT TO A FAIR TRIAL

[20] Most common law jurisdictions recognize the right of an accused person to a fair trial without unreasonable delay. That right is set out in Article 8 of the Universal Declaration of Human Rights to which Fiji is a party and in the International Covenant on Civil Political Rights, Article 9(3). Fiji has not ratified this Covenant but the provisions of it have been incorporated in successive Constitutions in Fiji since 1970.

[21] Although Fiji has not had any Parliament for some years, the existing Government has shown its willingness to respect the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights by its passing of the Crimes Decree, 2009 which incorporates the International Covenant on Civil and Political Rights. The Courts here have shown at all levels their respect for the rights of accused persons to a fair trial, that is a trial according to law. This includes the right to counsel, the right to disclosure, the right to adequate time and facilities in order to prepare a defence, the right to remain silent, and the right to trial without delay. 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.

[22] In the Attorney General's Reference (No.1 of 1990) reported in (1992) CR. APP.R.296, the English Court of Appeal stated that delay due merely to the complexity of the case or contributed to by the actions of a defendant himself should never be the foundation for a stay. The Court said that there should never be a stay unless the defendant showed on the balance of probabilities that due to delay he would suffer serious prejudice to the extent that no fair trial could be held.

[23] In Apaitia Seru v. State (2003) FJ.CA, the question of delay was considered under the 1997 Constitution. The Court held that because there had been a 4 year 10 months delay, prejudice was presumed.

[24] Seru was revisited in Mohammed Sharif Shaim v. State MISC.ACTION No. 17 of 2007, a decision made before the abrogation of the Constitution. The High Court had held that a 5 year delay after charges had been laid in the Suva Magistrates Court was unreasonable. However, instead of ordering a stay, the High Court had ordered that the trial commence within 40 days. The question before the Court of Appeal was whether in accordance with dicta in Seru a stay had to be ordered whenever there was unreasonable delay and despite the absence of proof of specific prejudice. The Court 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.

[25] From the Case Law this Court at the risk of re-affirming well established principles and for the guidance of the courts and the public states the following factors as relevant to any case in which the question of delay affecting a fair trial is an issue:

(i) the length of the delay;

(ii) the reason for the delay;

(iii) whether or not a defendant has asserted his or her right to a speedy trial and

(iv) the extent of any prejudice.

[26] At all times the Court must take into account local circumstances such as Fiji's limited resources, and particularly those available to the administration of Justice.

[27] At paragraph 25 of its judgment the Court of Appeal said that, "There are many previous decisions of this Court which have reviewed the relevant principles concerning delay and the proper application to the facts of the individual case of the terms in Section 29 (3) of the former Constitution". The Court then said: "The collected jurisprudence shows us that there are many different factors to consider when determining if an appellant's case was determined within a reasonable time.

These factors include:

(a) The length of the delay;

(b) The reasons for the delay (including on the part of the accused, the judiciary, the prosecution or legal aid);

(c) The inherent time requirements of the case;

(d) The limitations on institutional resources (including the judiciary, the prosecution and legal aid);

(e) Any waiver by an accused of his rights;

(f) Acquiescence to delay by an accused;

(g) The effect of delay on the fairness of a trial;

(h) Any prejudice to the accused cause by the delay.

[28] The Court then said that the above list was not intended to be exhaustive because each case must be examined in the context of its own particular facts before unreasonableness can be determined. It said: "One must balance all the particular circumstances of a case and then determine firstly whether the length of the delay is unreasonable, and secondly, even if the delay was unreasonable determine whether it affected the fairness of the trial."

[29] We agree with these remarks.

[30] Earlier the Court of Appeal said that the Court Record reflected a sorry chronology of some 45 adjournments before the matter finally came on for trial. It then said: "But the large number of adjournments is somewhat misleading. The reasons stated for the adjournments on the Court Record are more enlightening. There is no doubt that many of the adjournments were simply due to the unavailability at Lautoka of sufficient Magistrates to enable matters to be heard in a timely manner. But many of the adjournments were at the request of the appellant after withdrawal of defence counsel, after the sacking of defence counsel or whilst the appellant sought legal aid on 9th April 2003, 28th April 2003, 13th May 2003, 3rd October 2003, 17th October 2003, 16th January 2004, 22nd November 2004 and 31st January 2005".

[31] When this Court put the above passage to the petitioner he agreed. He also agreed that only on one occasion did he ask for a hearing date (13th January 2006). He also agreed that the Court Record showed that not once did he or legal aid solicitors appearing on occasion for him oppose the matter being further adjourned or complain about delay or breach of his right to be tried within a reasonable time. Just a few of the adjournments were at the request of the prosecution.

[32] This leads this Court to the inescapable conclusion that the petitioner is the cause of his own problems as far as delay is concerned. The Court is satisfied that there are no questions of general legal importance in this case nor a substantial question of principle affecting criminal justice, nor will substantial or grave injustice occur if leave is not granted.

[33] For these reasons the petitioner's application of the 30th of December 2008 for special leave to appeal to this Court is dismissed.

Dated at Suva this 13th day of August 2010.

John E. Byrne
Judge of the Supreme Court

William R. Marshall
Judge of the Supreme Court

Paul K. Madigan
Judge of the Supreme Court