IN THE HIGH COURT OF TUVALU 2025

CRIMINAL CASE NO.1/24

BETWEEN
REGINA	 			
PROSECUTION

AND

MAMOE SILIVA			
ACCUSED/APPLICANT

Before 		Hon Justice   Sir John Muria

Hearing		2 June 2025
Dated of Judgement:  10 June 2025

Ms M Ako for Prosecution
Ms N Tusipese for Accused

J U D G E M E N T

Muria J:	The applicant’s application is for a stay of proceedings.  He was charged with one count of attempted murder, one count of assault causing actual bodily harm, one count of physical abuse and one count of psychological abused.  The victim is his wife who is the complainant.

Brief background

2.	The applicant pleaded not guilty to the attempted murder charge.  He pleaded guilty to the other three charges and had been convicted and sentenced on those three counts.  The facts giving rise to all the charges including the attempted murder arose from one incident which occurred between 8:30 am and 10:00 am on the morning of 19th November 2020.  The trial date on the charge of attempted murder has yet to be fixed.

	Grounds for application
3.	Ms Tusipese of Counsel for the applicant relied on three grounds for the application, namely:
a)	Unreasonable and inordinate delay in bringing the case before the Court.
b)	Prejudicial effect on the accused’s ability to make an effective defence on the charge of attempted murder;
c)	The delay in bringing the case to the court is an abuse of process and violates the applicant’s right to fair trial.

4.	Counsel submitted any of the grounds or a combination of them would meet the legal threshold for a permanent stay of proceedings.

	Issue
5.	The main issue for the court to determine is whether in the circumstances of this case the proceedings in relation to the trial of the applicant on the charge of attempted murder should be permanently stayed.  This application is brought, despite the fact that the accused had pleaded guilty and sentenced on the other charges and that all the charges arose out of the one incident which occurred on 19th November 2020. 

	Submissions and determination
6.	Counsel for the applicant submitted that the incident took place almost 5 years ago.  The applicant had been in custody for 4 years until the case was brought to the High Court.  He had been dealt with on the 3 counts to which he pleaded guilty and he is yet to be dealt with on the attempted murder charge to which he has pleaded not guilty.  The delay in this case is inordinate delay and it is unreasonable.

7.	Additionally Counsel submitted that the delay would be prejudicial to the applicant in his ability to mount a proper and effective defence to the remaining charge of attempted murder.  This, Counsel further added, is because two of the applicants’ witnesses had died in 2023 long before the prosecution brought the case to the High Court.  This is, despite the fact that the Preliminary Inquiry (PI) was conducted in Senior Magistrate’s Court in September 2021.

8.	The submission on behalf of the prosecution is that this case is not appropriate for a stay of proceedings.  Ms Ako of Counsel for the prosecution submitted that there is no abuse of process in this case and that the prosecution had done everything according to law in bringing the case to the Court.

9.	Counsel also submitted that it is in the public interest that this case be continued to trial and that the right to fair trial must be accorded to both the accused and prosecution.

10.	In the written submission filed on behalf of the prosecution on 28th May 2025, much of it is devoted to blaming the Judiciary for the delay following the conclusion of the Preliminary Inquiry proceedings before the Senior Magistrate.  This complaint is without merit.

11.	The law on stay of proceedings had been expressed in many decisions of the Courts on the subject.  In R –v- Setaga [2008] TVHC 13; [2009] 2 LRC 287 (26 May 2008), this Court held that a court has inherent power to stay proceedings in order to prevent abuse of its process where there is a long delay before trial or continuing with a trial. The Court stated as follows:
“It has long been recognized 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.

12.	The Court, however, went on to add that even substantial delay alone is not sufficient to amount to abuse of process.  The length of the delay is, however, only one factor to be considered in determining what is reasonable so as to comply with section 22(2) of the Constitution which requires that a person charged with a criminal offence must be given a fair hearing “within a reasonable time” by an independent and impartial court established by law.

13.	The burden is on the applicant to show on the balance of probability, as stated in Robu –v- Regina [2006] SBCA 14; CA-CRAC 024 of 2005 (25 October 2006) that:
“the delay complained of has resulted or will result in his suffering serious prejudice to the extent that he has or will not receive a fair trial.  In other words the continuation of the proceedings amount to an abuse of the process of the Court.”

14.	Ms Tusipese of Counsel for the applicant referred to the case of R –v- Penivao [2012] TVHC 5 where the Court held that a delay of 10-12 years in the prosecution of the case against accused was unjustified and prejudicial to the defence case resulting in a stay of the prosecution.  The delay in that case was between the time the accused was charged and the trial.

15.	I feel it is also to be noted that the right to “a fair hearing within a reasonable time” arises from the time the accused is charged with a criminal offence which is the import of section 22(2) of the Constitution.  The point was established in many jurisdictions including the European Court of Human Rights Ecke –v- Germany  (1982) 5 ECHR 1 where the court held that the “reasonable time” starts when a person is “substantially affected” by the criminal process which usually starts when the accused is charged or formally notified of the proceedings.

16.	In Australian case of Jago –v- District Court of NSW & Ors [1989] 168 CLR 23, the accused was charged and tried, but the trial was repeatedly delayed for 10 years.  The accused’s application for stay was refused by the High Curt of Australia holding that unreasonable delay in itself is not sufficient to justify a permanent stay of criminal proceedings.  The accused had failed to prove by evidence of any specific prejudice to him.

17.	In the case of Martin –v- Tauranga District Court [1995] 2 NZLR 419 (CA) held that the right to a hearing within reasonable time starts when the person is charged, and not from the date of the arrest unless the arrest coincides with the charge.  Thereafter the Court will take into account the length of the delay, what are the reasons for the delay, what prejudice the accused will suffer, and whether there is delay by the accused in asserting his right.  There was a delay of about 32 months between the charge and trial which the accused said, breached his right to fair hearing within a reasonable time and sought a stay of proceedings.  The Court held that a stay is discretionary and used only when the delay is shown to be clearly unjustified and prejudicial.  The Court found that the delay was due to systemic failures on the part of the Inland Revenue Department and the prosecution.

18.	In the present case, although the applicant committed the offence on 19 November 2020, he was only arrested and taken into custody on 11 January 2021 after his discharged from hospital.  He was charged on 6 April 2021 with one count of attempted murder for the purpose of bringing him before the Senior Magistrate for committal hearing for trial in the High Court.  Following a Preliminary Inquiry, the applicant was committed on 10 September 2021 to stand trial in the High Court.  He was released on bail 30 September 2021 but he was taken back to custody in September 2022 after breaching his bail conditions.  

19.	  On 12 September 2024, the Attorney General filed the Information pursuant to section 232 of the Criminal Procedure Code formally charging the applicant for attempted murder and for the applicant to be tried in the High Court which has the jurisdiction to try the applicant for the crime of attempted murder.  This is crucial because the “reasonable time” clock began to run from the time the accused was formally charged to the date of trial as established by cases referred earlier.

20.	Although the Information by the Attorney General was filed on 12 September 2024 it was not served on the applicant until sometime in February 2025, some five months later.  The first hearing before the High Court was on 22 February 2025 for mention.  The arraignment hearing was on 3 March 2025 at which time the applicant pleaded not guilty to the charge of attempted murder and pleaded guilty to one count of assault causing actual bodily harm, one account of physical abuse and one count of psychological abuse.  The applicant was sentenced on 14 March 2025 on the three counts to which he pleaded guilty.  He is now on bail pending his trial on the attempted murder charge.

21.	Applying the principles stated in the cases referred earlier, including R-v-Faleni [2023] TVHC 2; Criminal case 1 of 2022 (4 April 2022) the court is firmly of the view that there is no substantive delay in this case so to justify a stay of prosecution.  The delay of five months between the filing of the formal Information (charge) by the Attorney General and service of the charge on applicant or the first hearing in the High Court on 22 February 2025 cannot be said to be a substantive or inordinate delay amounting to a breach of section 22(2) of the Constitution nor can it be sufficient “to earn the epithet abuse of process” as stated in R –v- Setaga and R –v- Faleni.  I find that there is no serious delay in this case from the time the applicant was formally charged with the offence of attempted murder to the first hearing on 22 February 2025.

22.	Having found that there is no substantial delay it is unnecessary to consider the other points raised but the applicant in this case, except to say that on 3 March 2025 the applicant filed his list of witnesses which included the names of the two deceased, Lotofaga and Tagisial Mamoe.  The two deceased witnesses died in 2023 and to include their names as witnesses in the list of witnesses for trial in 2025 smacks of misrepresentation or deliberately misleading.  Secondly, it has not been demonstrated by the applicant how the death of the two witnesses materially affects his ability to mount a full defence.  Thirdly, the applicant and the defence knew the two deceased witnesses before their death, yet no affidavit or statement obtained from them showing the importance of their evidence in the applicant’s defence.  To simply assert that their evidence would assist in the applicant’s defence of provocation is not enough.

23.	In passing I simply wish to state that the written submission by the prosecution that the Senior Magistrate should have followed sections 34, 35 and 36 of the Magistrates Court Act to transfer the case to the High Court is without merit.  The procedure to follow after the Preliminary Inquiry was conducted is set out under the Criminal Procedure Code (CPC), Part VII, and not the provisions of the Magistrates Court Act.  Following the procedure under the CPC, the Attorney General, in this case, properly filed the Information under section 232 of the CPC.

24.	The facts and the circumstances of this case simply do not give rise to a substantive delay or abuse of process or prejudice to the applicant to justify a grant of a stay of proceedings.  The application for a stay is refused. 

Hon. Justice Sir John Muria
High Court of Tuvalu