IN THE HIGH COURT OF TUVALU

R v Setaga

[2008] TVHC 3

High Court 
Ward CJ
22, 26 May 2008

Constitutional law - Fundamental rights - Right to fair trial - Right to trial within a reasonable time - Criminal proceedings - Delay - Applicant charged with two counts of defilement of a child - Offences alleged to have occurred when applicant was 13 years old - Applicant interviewed by police at time of alleged offences - Charges not put to applicant until five years later - Applicant then 18 years old - Police at fault over delay - Applicant applying for permanent stay of proceedings - Whether continuance of proceedings violating applicant's fundamental right - Whether abuse of process - Whether permanent stay to be granted - Interpretation Act, s 17 - Penal Code, s 14(2) - Convention on the Rights of the Child 1989, art 40(2)(b) - Constitution of Tuvalu 1990, s 22(2).

The applicant was charged with two counts of defilement of a child under 13 years of age. The offences were alleged to have occurred in 2003, when the victim was seven years old and the applicant was 13 years old. Following his interview by police in 2004, the applicant did not hear anything further about the matter until 2008, when the charges were first put to him. The victim was then eleven years old and the applicant was 18 years old. The applicant applied to the High Court for a permanent stay of the proceedings, on the basis that there had been such an unreasonable delay in bringing the matter before the court that it violated the applicant's rights and amounted to an abuse of process. The evidence indicated that the delay was the fault of the police involved in the investigation. Section 22(2), of the Constitution guaranteed the right to a fair trial 'within a reasonable time'. Article 40(2)(b) of the Convention on the Rights of the Child 1989 provided that state parties had to ensure that `every child ... accused of having infringed the penal law has at least the following guarantees: ... (iii) to have the matter determined without delay ...' Section 14(2) of the Penal Code, which dealt with offences allegedly committed by a child, provided that a person under the age of 14 years was not criminally responsible for an act 'unless it is proved that at the time of doing the act ... he had capacity to know that he ought not to do the act'. The issue was whether the court should grant a permanent stay of the proceedings.

HELD: Application allowed. Order that prosecution be stayed and not to proceed without leave of High Court or Court of Appeal.

It had long been recognised, and more recently affirmed in the criminal sphere, that a court had an inherent right to prevent abuse of its processes and could stay proceedings in order to do so. The question in the instant matter was whether the delay was a proper ground for such a stay. Section 22(2) of the Constitution required trial 'within a reasonable time'. Reasonableness in any particular case depended on the nature of the alleged offence, of the proceedings and of the person involved. Whether the delay was `reasonable' had to be evaluated with art 40 of the Convention on the Rights of the Child 1989 in mind: s 17 of the Interpretation Act required the court to prefer a construction of a written law that was consistent with the state's international obligations. Where a child was accused, there was a far greater sense of immediacy. The younger the child at the time of the act in question, the more important was the need for a prompt trial. In the instant matter, the delay was the fault of police. Section 14(2) of the Penal Code required the court to determine whether the applicant had the capacity to know that he should not do what he was doing. That meant knowledge that the act was wrong in a criminal sense. Although there was evidence upon which the court could make such a determination, the effect of the delay was such that the applicant would not be able effectively to make a defence. To allow the prosecution to continue in such circumstances would lead to unfairness and the distinct possibility of injustice and would amount to an abuse of process (see pp 291-294, below). Dicta of Brennan J in Jago v District Court of NSW [1989] HCA 46, (1989) 168 CLR 23 at 54, Barton v R [1980] HCA 48, (1980) 147 CLR 75, R v Oxford City Justices, ex p Smith (1982) 75 Cr App Rep 200 and R v Derby Crown Court, ex p Brooks (1984) 80 Cr App Rep 164 considered.

[Editors' note: Section 22 of the Constitution of Tuvalu 1990, so far as material, is set out at p 290, below.
Article 40 of the Convention on the Rights of the Child 1989, so far as material, is set out at p 290, below.
Section 17 of the Interpretation Act is set out at p 290, below
Section 14 of the Penal Code, so far as material, is set out at p 291, below]

Cases referred to in judgment
Barton v R [1980] HCA 48, (1980) 147 CLR 75, (1980) 32 ALR 449, Aus HC
DPP v Humphrys [1976] 2 All ER 497, [1977] AC 1, [1976] 2 WLR 857, UK HL
Jago v District Court of NSW [1989] HCA 46, (1989) 168 CLR 23, (1989) 87 ALR 577, Aus HC
Mills v Cooper [1967] 2 All ER 100, [1967] 2 QB 459, [1967] 2 WLR 1343, UK QBD
R v Derby Crown Court, ex p Brooks (1984) 80 Cr App Rep 164, UK DC 
R v Oxford CityJustices, ex p Smith (1982) 75 Cr App Rep 200, UK DC
R v Sang [1979] 2 All ER 1222, [1980] AC 402, [1979] 3 WLR 263, UK HL

Legislation referred to in judgment 
Constitution of Tuvalu 1990, s 22(2) 
Interpretation Act, s 17
Penal Code, s 14(2)

Other source referred to in judgment
Convention on the Rights of the Child (New York, 20 December 1989; TS 44 (1992); Cm 1976), Arts 4, 40

Application
The applicant, Sione Setaga, applied to the High Court for a permanent stay of proceedings brought against him, viz two charges of defilement of a child under 13 years of age, on the ground of abuse of process. The Crown opposed the application. The facts are set out in the judgment.

J Grover for the defendant/applicant
S Earl for the prosecution/respondent.

26 May 2008. The following judgment was delivered

WARD CJ.

The defendant has been charged with two counts of defilement of a child under 13 years of age. The offences were alleged to have occurred on 6 and 8 October 2003. Both involved the same victim who was seven years and three months old at the time. The defendant was 13 years and 8 months old.

The case was only committed for trial to the High Court five weeks ago on 15 April 2008. The girl is now eleven years and nine months and the defendant is 18 years and 3 months.

This is an application by the defence to stay the case permanently on the ground that there has been such an unreasonable delay in bringing the matter before the court that it violates the defendant's rights under the Convention on the Rights of the Child and amounts to an abuse of process.

The evidence shows that the defendant was interviewed by the police in the presence of his mother on 13 October 2003 and again briefly on 9 December 2003. A statement was taken from the girl on 10 October 2003 and a later statement to check one aspect of her evidence on 18 April 2005. All eye witnesses had made statements before the end of 2003 and any additional statements from those witnesses had mostly been taken by the end of 2004. It appears that the police also re-interviewed the defendant some time in 2004. This took place on Nukufetau but the statement has not been produced. The defendant heard nothing more about the case until April 2008 when he was asked to go to Funafuti to see a lawyer and met her at the preliminary inquiry on 15 April 2008. It is clear that he has never been formally charged by the police and the first time the charges were put to him was at the preliminary inquiry.

The prosecution has called two police officers who were involved in the investigation of this offence and it is clear that they had encountered no difficulty in the investigation sufficient to explain the delay. The police diary of action shows that, effectively, nothing was done to further the investigation between mid-2005 and early-2008.

Ms Grover for the defendant suggests that the issue is covered by s 22(2) of the Constitution and art 40 of the United Nations Convention on the Rights of the Child.

Section 22(2) provides:

'(2) If a person is charged with a criminal offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law'

Article 40 provides:

'1. States Parties recognise the right of every child ... accused of... having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth ... and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: …

(b) every child ... accused of having infringed the penal law has at least the following guaranties: ...

(iii) to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law...'

The Convention was ratified by Tuvalu in 1995 and, whilst it is clear that Tuvalu has not yet taken the legislative steps required by art 4 to implement the rights recognised by the Convention, the terms of art 40 must be considered to give some guidance of the way the rights of a child are considered by the courts here.

Section 22(2) of the Constitution requires trial 'within a reasonable time'. The meaning of 'reasonable' has not been further defined nor, I would suggest, should it be, but the interpretation in respect of the facts of any particular case must be evaluated with art 40 in mind as required by s 17 of the Interpretation Act:

'17. A construction of a written law which is consistent with the international obligations of Tuvalu is to be preferred to a construction which is not.'

Reasonableness in any particular case depends on the nature of the alleged offence, of the proceedings and of the person involved. Clearly the protection of s 22 of the Constitution applies to everyone charged with a criminal offence and Ms Grover submits that the importance of the Convention is that it makes it clear that, when the accused is a child, special considerations apply which limit the appropriate definition of what is reasonable.

As she points out, the qualification of reasonableness has been omitted from art 40. That provision guarantees trial without delay and emphasises the need for prompt action when the defendant is a child. I accept that the meaning of the term 'reasonable' in the context of a child must be read against the obligations expressed in art 40 with the inevitable conclusion that there must be a far greater sense of immediacy in such a case. The younger the child at the time of the act for which he is to be charged, the more important is the need for prompt trial. That clearly did not occur in this case and, whilst it has been suggested that the delay is the result of consideration of reducing the charge to one of a lesser offence, that is not a sufficient reason for a delay of years; the more so where, as here, the eventual charge was the original and most serious.

The length of the delay is, however, only one factor in the determination of what is reasonable. In some cases even substantial delay will not in itself amount to a breach of the requirements of s 22(2) and the court must look at the effect of the delay on the accused, the complainant and the evidence as a whole. It is important in all such cases to bear in mind the warning by Lord Diplock that the fairness of a trial is not all one-sided: R v Sang [1979] 2 All ER 1222. A similar warning was eloquently expressed by Brennan J in Jago v District Court of NSW [1989] HCA 46, (1989) 168 CLR 23 at 54:

`In the onward march to the unattainable end of perfect justice, the court must not forget those who, though not represented, have a legitimate interest in the court's exercise of its jurisdiction. In the broadening of the notion of abuse of process, however, the interest of the community and the victims of crime in the enforcement of the criminal law seem to have been depreciated, if not overlooked.'

In any criminal trial where the accused is a child at the time of the alleged offence, s 14(2) of the Penal Code is central to the determination of guilt:

`(2) A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.'

The burden is on the prosecution to prove to the criminal standard that the accused had the necessary capacity when he committed the offence. How, Ms Grover asks, can the court assess the capacity of a child from his evidence five years later when the child is a child no longer? Mr Earl suggests that it is matter for the court in the trial and can be deduced by the evidence of the accused's conduct at the time. In the present case, for example, the court can consider the fact that he told the girl not to tell her mother because, if she did, he would not be allowed back to the house. Clearly such matters could be the basis of such an assessment.

However, the problem is not so easily resolved. Whilst the prosecution can produce evidence of what the accused did and how he did it at the time, the defendant is equally entitled to be able to put his defence and to explain his understanding of the act at the time it occurred. In the present case, through no fault of the defendant's making, that explanation can only now be presented to the court by a very different person from the one who did these acts of sexual intercourse. Whilst the court may well be able to evaluate the factual evidence of how he behaved from the evidence called by the prosecution, it will have to assess the defence of a thirteen year old through the words and explanation of a young man. The apparent abandonment of the investigation for four years also means he may have put the memory of the incident behind him in the intervening years during which he has reached a maturity far beyond that of the child who committed the act.

Counsel has advised the court that the defendant will not challenge the events on 6 and 8 October 2003. His defence is that he cannot have had the capacity to appreciate that he should not be doing the act in the sense that it was a crime for s 14(2) is plainly directed to proof of the accused's capacity to form the necessary mens rea. Clearly, the evidence that he warned the girl not to tell her mother could equally point either to realisation that what he did was criminal or that it was something of which the family would not approve. But his recollection of those events is now to be seen through the eyes of a much more mature and, possibly, worldly young man. Had he been tried a year after the sexual intercourse, he would undoubtedly have changed but he would have been able to speak of his behaviour at the time with much more insight. Now it is far too remote, counsel suggests, to be of any significant evidential value.

The questions for the court, therefore, are whether it has a right to stay a prosecution and, if so, whether the delay in this case is a proper ground for so doing.

It has long been recognised that a court has an inherent right to prevent abuse of its process and may stay proceedings in order to do so. It has more recently been accepted that it applies equally in criminal cases. The defence submission is that to continue with a trial after such a long delay amounts to an abuse of process. Authority of what exactly can amount to abuse of process in a criminal case varies in different jurisdictions and, often, within a single jurisdiction. The House of Lords in DPP v Humphrys [1976] 2 All ER 497 has confirmed the statement in the earlier case of Mills v Cooper [1967] 2 All ER 100 that every court undoubtedly has a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.

I cannot accept that the mere fact even of substantial delay is sufficient in itself to earn the epithet abuse of process and would agree with Brennan J in Jago v District Court of NSW (1989) 168 CLR 23 at 54 when he suggests:

`No abuse of process appears merely from delay on the part of the prosecution, either by inadvertence or by negligence, in presenting an indictment. It may be different if the prosecution were to delay deliberately in presenting an indictment in order to prevent an accused from making an effective defence but, even in such a case, the remedy may lie not in permanently staying the proceedings but in bringing them to a conclusion with a direction which nullifies the affect of the tactic.'

Although I would add, with respect, that deliberate delay by the police must include delay through negligence or for no good reason whilst the conduct of the inquiry is solely in their hands.

The Divisional Court in R v Derby Crown Court, ex p Brooks (1984) 80 Cr App Rep 164 accepted the proposition that the decided cases in England of abuse of process in criminal proceedings fell into two categories; those in which the prosecutor can be said to have maintained or misused the rules of procedure and those in which there has been inordinate and inexcusable delay which has actually prejudiced the defendant.

Although Ms. Grover has referred to the fact that the case was revived within days of the defendant’s eighteenth birthday, any suggestion that was sinister is pure speculation and I consider this case is in the second category. 

Even where there is abuse demonstrated, when the complaint is of excessive or inordinate delay the remedy will only be to stay the proceedings permanently 'in the most exceptional circumstances' (DPP v Humphrys [1976] 2 All ER 497 at 511 per Viscount Dilhorne). In the majority of cases where even inordinate delay is demonstrated, the remedy must surely be to give adequate and firm directions to expedite trial. Such a remedy ends the fault without prejudicing either side's right to justice.

In Brooks (1984) 80 Cr App Rep 164 at 168-169 Sir Roger Ormrod summarised the position in England:

‘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 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.’

Earlier he had pointed out that:

'The question ... is whether [the defendant] has been so prejudiced by this delay that justice cannot now be done.'

In R v Oxford City Justices, ex p Smith (1982) 75 Cr App Rep 200 Lord Lane described such abuse of process as arising where the delay by its nature and its length must inevitably lead to prejudice, unfairness and injustice to the accused. Wilson J had earlier suggested, in Barton v R [1980] HCA 48, (1980) 147 CLR 75, that a stay is justified if the defect is so fundamental to the trial process that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences.

In the present case, s 14(2) requires the court to determine whether the accused had the capacity to know he should not do what he was doing. As I have stated, that must mean knowledge that the act was wrong in a criminal sense and not for any other lesser reason. I accept that there is evidence upon which the court could make such a determination but I am satisfied that the effect of the delay is such that the defendant would not be able effectively to make a defence. Without that ability, he is seriously handicapped. Having resulted from the delay, the matter cannot be remedied simply by an order for immediate trial. That is what the prosecution is requesting but the damage has already been done by the passing of time and will not be mended by an order for trial. To allow the prosecution to continue in those circumstances would lead to unfairness and the distinct possibility of injustice and would amount to an abuse of process.

I bear in mind the interests of the girl in this case. She, also, has a right to justice and in most cases that means that the matter should be tried in court. Mr Earl has advised the court that she and her parents want the matter to proceed. I accept that is the case although the evidence of the complainant, if she is to be called, will suffer many of the problems already identified in respect of the defendant and which may also extend to her present wish to see the trial proceed.

However, the delay in this case lay in the hands of the police, not the defendant. If there is a significant risk of injustice, it will apply both to the defendant and the complaint but it is the defendant who is in peril and whose liberty is at stake. To pursue a trial where the ability of the defendant to put his defence is effectively impaired as a result solely of the failure of the prosecuting authorities would be a clear abuse of process.

I order that the prosecution be stayed and marked not to proceed without the leave of this court or of the Court of Appeal.