IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0009 OF 1995

THE STATE

v

WAISALE ROKOTUIWAI

Counsel: The Director of Public Prosecutions
Ms N Shameem for the State
Mr J Cameron for Accused

Hearing: By written submissions
Decision: 21st August 1998

DECISION OF PAIN J ON APPLICATION FOR STAY

This is an application by the defence for orders in the alternative. The substantive application to which the submissions have been directed is for an order that the information filed in this case for a charge of murder be permanently stayed.

This decision was to have been delivered on 15th May 1998 before I left on leave for 2 months. It was postponed because of counsel for the accused’s insistence upon filing a reply to the State’s submissions. Unfortunately the submissions in reply were not given to me promptly on my return from leave and other rostered work has since delayed my final consideration of the application and preparation of this decision.

HISTORY

The history of the proceedings relevant to this application need to be stated.

The accused is charged with murder alleged to have been committed on 16th May 1995. After a Preliminary Inquiry in the Magistrates Court on 10th July 1995 he was committed to this Court for trial. The depositions were received by this Court on 3rd October 1995 and an information was filed by the Director of Public Prosecutions on the 14th November 1995. The case was called on 6 occasions before Pathik J before a trial finally commenced before him on the 4th November 1996.

During the course of the trial a voir dire was held to determine the admissibility of the caution statement of the accused. A ruling was made that the statement should be admitted except for the final questions 100 to 105 and the answers thereto. The trial then continued before the Assessors. Acting Superintendent Emosi Vunisa, the directing officer for the investigation, gave evidence. The handwritten notes of the learned trial Judge show that this witness gave evidence that the accused was verbally interviewed by Sgt Eroni before the caution interview. There is reference to this in his examination-in-chief, cross-examination and re-examination. Acting Sgt Eroni Gadolo, the investigating officer for this case was the next witness called. He gave evidence of his preliminary dealings with the accused. This included details of a verbal interview of the accused in which the accused made certain admissions. Sgt Eroni then gave evidence of his dealings with other witnesses and of searching a taxi. He was then giving evidence of the caution interview when the luncheon break was taken. Upon resumption after lunch, counsel for the accused objected to the evidence of the verbal interview given by Sgt Eroni. No notice of this evidence had ever been given to the defence and it had not been considered on the voir dire.

In subsequent legal argument counsel for the prosecution admitted that there had been a “material irregularity” and applied for a discharge of the assessors and order for a new trial. Alternatively it was submitted that the trial could continue with a direction to the assessors that the evidence of the verbal interview be ignored. Counsel for the accused submitted that it would be unfair for a new trial to be ordered and the State should file a Nolle Prosequi. However, he also suggested that either the trial be completed by allowing the evidence of the verbal interview to stand but the caution statement being excluded or a new trial be ordered subject to payment of costs. The learned trial Judge in a decision delivered on 27th November 1996 concluded that that the “material irregularity” could not be cured and there should be a re-trial. He therefore discharged the assessors and ordered a venire de novo.

The case was next listed for mention in this court before Townsley J on 17th February 1997. A fixture could not be made. The prosecution advised that medical witnesses were overseas and the State was considering whether the charge should be reduced. The accused was present and advised that his counsel was resident in Australia. The case was adjourned for further mention on notice. 

Communications then took place between the prosecution and counsel for the accused in Australia in which a plea of guilty to a lesser charge was canvassed. The correspondence on the court file is rather confusing on this aspect.

The case was again set down for mention before me on 12th September 1997. The prosecutor informed the Court that the State intended to file an amended information for a charge of causing grievous harm. As this was opposed by the defence the case was adjourned to 16th October 1997 to enable counsel to attend from Australia and make submissions.

At the hearing on 16th October 1997 the prosecutor advised that the State intended to proceed on the original charge of murder and no amended information was to be filed. Counsel for the accused applied for costs and advised the Court that the defence intended applying for a stay of the prosecution. Counsel were given leave to file written submissions on the application for costs and the Court directed that a fixture be made for the trial on a date to suit both parties.

By faxed letter dated 29th October 1997 Counsel for the accused advised that he required the application for stay to be heard prior to trial and requested a hearing for that application prior to the legal vacation. However, on 13th November 1997 the Court was advised that counsel for the accused was being admitted to hospital and would be unavailable for two months.

On 20th February 1998 the Court issued a minute to the parties requiring the defence to file a formal application for the order for stay being sought.

On 31st March 1998 the Court delivered judgment on the defence application for costs. Local counsel appeared on behalf of counsel for the accused. He advised that counsel for the accused was still having medical treatment and would not be able to appear in Court for several months. State counsel tendered a letter from counsel for the accused dated 18th March 1998 requesting that the application for stay be disposed of by way of written submissions and advising that he would be in a position to prepare submissions “within the next two or three weeks”. I acceded to the defence request and issued a minute advising that the application and supporting submissions were to be filed within three weeks.

A formal application for stay and submissions in support were not received from counsel for the accused until 29th April 1998 by facsimile transmission. Prosecution submissions were filed on 12th May 1998. The further defence submissions in reply were first filed by facsimile transmission. The original copy was received on 26th May 1998 and made available to me on 15th July 1998.

INTRODUCTION

All papers available on the file have been studied by me. In particular, I have carefully considered and evaluated all written submissions filed by the parties. I have also had regard to the background facts and overall circumstances of this case.

I have come to a clear conclusion on the issues raised by the application but because of my leave and a subsequent trial commitment, I have not had time to prepare an expansive judgment with a comprehensive review of all the authorities. It is imperative that a decision be delivered without further delay, given the nature of the application and the fact that a provisional trial date has been set on the suggestion of defence counsel.

SUBMISSIONS

The grounds of the application for stay are that (singly or cumulatively) a re-trial in all the circumstances would be an abuse of process of the Court, would be unfair to the accused or would bring the administration of justice into disrepute.

Counsel for the appellant filed lengthy written submissions which include reference to numerous decisions of Australian, English and New Zealand courts. Particular emphasis is placed on the decisions of Connelly v DPP [1964] AC 1254, Jago v District Court (NSW) (1989) 168 CLR 23 and Mellifont (1992) 64 A. Crim. R. 75. It is submitted that this Court has inherent power to make any order to prevent an abuse of its process and this includes an order for permanent stay. That power will be exercised to protect the accused from oppression and prejudice but its scope is not limited to those considerations. The Court has a duty to secure a fair trial for an accused. Allied to this is a need to protect the integrity and reputation of the judicial system and administration of justice. Infringement of these requirements are proper considerations for the Court in deciding whether a trial should be terminated. In his submissions, counsel for the accused sets out seven circumstances of this case and submits that, singly or cumulatively, they provide grounds for a stay of this trial in accordance with the established legal principles.

The written submissions of counsel for the State say that there is no statutory basis for the present application but the principles for stay “may be governed by the practice of the English courts, under section 262 of the Criminal Procedure Code”. Reference is made to Connelly v DPP (supra), DPP v Humphrys [1977] AC 1 and other English decisions concerning the stay of proceedings for abuse of process. It is submitted that the principles appear to cover two main categories, namely, where the accused would not receive a fair trial and where it would be unfair for the accused to be tried. In her submissions State Counsel then addresses the grounds relied upon by the Defence and says that on the particular facts of this case there is no abuse of process. The trial was stopped because of evidence given of the verbal interview of the accused. It is submitted that the record will show that the Prosecutor was not aware of the verbal interview and that is why it was not disclosed to the defence. Moreover, the evidence was introduced and continued without objection by the defence. It is further submitted that the prosecution did not manipulate the evidence or misuse the process of the court, the principle of double jeopardy is not applicable because the court never proceeded to verdict, the State has not been responsible for the delay, the defence will have the opportunity to cross-examine the witnesses at the new trial and the evidence from the first trial can be used where necessary. There is no unfairness to the accused that would justify a stay of the proceedings and in the interests of justice the new trial should proceed without further delay.

Written submissions in reply were filed by counsel for the accused. Those submissions go further than a reply to the State’s submissions. In particular a one sentence reference by the State to Tan v Cameron [1992] AC 205 in support of a submission on the question of burden of proof on the applicant seeking a stay, has been seized by defence counsel as an opportunity for new argument and citation of authorities on the violation of a constitutional right to a trial without undue delay. The defence reply also seeks to distinguish some authorities cited by the State and challenges some factual matters.

REASONS

There is no substantial dispute between the parties regarding the legal principles applicable to the present application. Both counsel cite the decision of Connelly v DPP (supra) as confirmed in DPP v Humphrys (supra) as the foundation for the Courts jurisdiction to stay a prosecution for abuse of process. They both then refer to later cases illustrating the further enunciation and application of this principle.

I accept that this Court has inherent jurisdiction to prevent abuse of its process in criminal proceedings. Concurrent with that is a duty (confirmed in the Constitution) to ensure that an accused receives a fair trial. This is made abundantly clear in the cases cited by counsel. The ultimate sanction is the discretion invested in the Court to grant a permanent stay. However, such a stay “should only be employed in exceptional circumstances”. (Attorney-General’s Reference (No.1) of 1990 [1992] Q.B. 630, endorsed by the Privy Council in George Tan Soon Gin v Judge Cameron & Anor [1992] 2 AC 205).

The issue to be determined on this application is whether, in all the circumstances of this case, the Court should exercise its exceptional jurisdiction to stay the prosecution. Counsel for the accused has identified and relies upon seven matters as (singly or cumulatively) justifying a stay. These must now be considered.

1.	Conduct of the First Trial

The defence relies principally on the conduct of the prosecution in leading evidence of the verbal interview of the accused after the voir dire hearing on the admissibility of the caution statement. It is submitted that “the suppression of evidence in relation to verbal admissions was not only disgraceful, as found by the judge at the first trial, but oppressive and vexatious. That alone would be sufficient to justify a permanent stay of proceedings, or a directed acquittal”.

There can be no dispute that the prosecution should not have introduced this new evidence without notice to the defence. The question is whether this amounts “to abuse of process” by the prosecution which now “undermines the possibility of a fair trial” as alleged by the defence. This must be considered in the light of all the circumstances.

I have already given details of what occurred on the resumption of the trial after the voir dire hearing. The evidence of the verbal interview of the accused was first foreshadowed by Sup. Emosi Vunisa in examination-in-chief, cross-examination and re-examination. Det Sgt Eroni Gadolo gave evidence. After referring to general matters he went on to say that the accused was brought to the Police Station and that he “interviewed Waisele verbally in [his] office for about an hour”. He then gave evidence of what the accused said, before going on to give evidence about other matters. All this evidence about the verbal interview was given without objection by defence counsel or intervention by the trial Judge. That evidence does contain some incriminatory comments, particularly admissions by the accused that he “was the one at the scene” and he “kicked and assaulted the deceased that night”. However, these comments added nothing to the admissions made in the caution statement that had already been ruled admissible by the trial Judge.

In all the circumstances I do not see that the conduct of the prosecutor in leading evidence of the verbal interview is an abuse of process that makes a new trial unfair for the accused and justifies a stay. The learned trial Judge had heard the prosecution evidence and was aware of all the facts and circumstances of the trial. After hearing comprehensive submissions he ordered a venire de novo. Counsel for the accused, in very lengthy submissions to the trial Judge, mentioned unfairness, yet submitted to the trial Judge that if the trial could not proceed on his terms then there should be a new trial subject to payment of defence costs. On the view taken by the learned trial Judge, his order for a new trial was understandable and proper. That order ought to be implemented. It may occasion some disadvantage for the parties. It is known that the prosecution now has some difficulties regarding medical witnesses. The defence alleges some disadvantages such as the loss of a “strong” position in the first trial and the opportunity now given to the prosecution to improve its case. However, apart from the pathologist, the same witnesses will be called at the new trial and the defence will be able to cross-examine them. The trial Judge has power to regulate the admissibility of evidence and ensure that all relevant factual issues are placed before the assessors. Any potential disadvantage to the Accused is far outweighed by the public interest that persons properly charged with offences, particularly serious offences, should be brought to trial.

2.	The Charge

Counsel submits that the Police charged the accused with murder as a matter of routine and there was insufficient evidence to support the charge.

The accused was represented by counsel in the Magistrates Court. That counsel consented to the accused being committed for trial on a charge of murder without consideration of the evidence in the depositions.

In my view that evidence, including the admissions by the accused in his caution statement, the evidence of an eye witness and the medical evidence, prima facie shows an unlawful killing justifying a homicide charge. That could be murder or manslaughter depending on proof of intent. These are all matters that will be put in issue at trial.

The Director of Public Prosecutions is responsible for the Information filed in this Court. A charge of murder is common in other cases involving similar facts and that charge, in this case, cannot be categorized as “vexatious and oppressive”.

3.	Improper Purpose

Counsel for the accused bases this submission on a comment by Toohey J in Jago v District Court (supra) that “where proceedings have been instituted for an improper purpose …… no remedy is likely to be appropriate other than a stay of the proceedings”. It is submitted that the decision to proceed on the charge of murder in the absence of the pathologist who performed the post mortem is improper because the State is unable to prove that death was caused by the actions of the accused. The State relies upon the High Court decision of The State v Davendra Singh (Crim. Case 17/96) but no statement has been obtained from another pathologist and, Counsel for the accused points out, that decision is under appeal.

The evidence at the trial is contained in the Judge’s handwritten notes. It is not possible for me to read, consider and review all the medical evidence given. However, the pathologist’s report does show extensive injuries to the face and neck of the deceased which, prima facie, could have been caused by the admitted punching and stomping by the accused. There is, at least, circumstantial evidence that the victim died as a result of the attack by the accused. In that situation, the accused could still be responsible for the death, although intention may be in issue. Counsel for the Accused suggested that the prosecution may alter the presentation of its case on a re-trial. It is not appropriate for me to speculate on that issue on the present application. That would be a matter under the control of the trial Judge on the new trial.

In presenting its case the prosecution is entitled to rely on the decision in The State v Davendra Singh (supra) if it is considered to be good law and has not been overturned. Furthermore, the original trial judge ordered a retrial on the charge of murder. His judgment does not suggest that the evidence was insufficient to support an element of the charge, nor was such a submission made to him.

In all the circumstances the prosecution is entitled to proceed on the charge of murder which has never been adjudicated upon. The charge has not been laid and is not being prosecuted for an improper motive. The State is entitled to have the original charge heard and determined on the basis of the learned Judge’s order for a venire de novo.

4.	Weakness of prosecution case

Under this head counsel for the accused elaborated further on the evidence given by the pathologist at trial. He submits that, under cross-examination, the pathologist “demolished the prosecution case” in respect of the accused causing the death of the deceased.

Again, it is not possible for me to resolve this evidential issue from the first trial. However, the learned trial Judge would have been fully aware of the evidence given. He also considered extensive submissions from both counsel. This Court must now take cognizance of his decision that a new trial was appropriate.

This is a case where the parties should now consider having the evidence given by the pathologist, Dr Alera, read in the new trial. This would overcome the prosecution problem of being unable to call him at trial. More particularly, it would enable the defence to be restored to the same position that it was in when the first trial was stopped.

This possible course is mentioned in the submissions but no specific authority has been cited. I point out that such a common law principle enabling a transcript of the evidence given by a witness at a first trial to be tendered in evidence at a second trial was recognized in R v Hall (1972) 57 Cr Ap R 170. Also the Fiji Court of Appeal in Rosadriwa and Taroga v The State (Criminal Appeal No.1 of 1996 – Decision 11.2.96), when allowing an appeal and ordering a re-trial, directed that “in the event that Dr Alera is not available to give evidence at the re-trial, his evidence at the previous trial is to be read into the record as evidence in the re-trial”. This was duly done on the re-trial.

5.	Accused’s Brother

I do not consider the fact that the accused’s brother was the victim of a homicide in respect of which the perpetrators pleaded guilty to a reduced charge of manslaughter has any relevance to the present application for stay. The Court is concerned with the wide issue of public interest and not with the dissatisfaction of the accused’s family with the sentence imposed in another case.

6.	Avoidance of Costs

Counsel for the Accused submits that, in view of the evidence given at the first trial only a charge of common assault or causing grievous bodily harm is appropriate. It is further submitted that the State has refrained from amending the information to avoid an order for costs in respect of that first trial.

The basic evidence in this case is that the accused, without any cause or justification attacked the very drunken victim. He punched the victim several times on the face. This caused the victim to fall on to the roadway. The accused then stomped on the victim’s head. The victim is alleged to have suffered serious head injuries that are alleged to have caused his death.

It is entirely appropriate for the State to proceed with a homicide charge against the accused. The proposed amendment was because of the unavailability of the pathologist to give evidence at the new trial. However, that was obviated by a decision of this court. The unworthy defence submission that the State has refrained from amending the information to avoid an order for costs is a contumelious imputation against the integrity of the Director of Public Prosecution and her office that is without foundation or merit.

7.	Delay

It is a well recognized common law principle that delay in the prosecution of a change may justify a permanent stay. Likewise the infringement of a Constitutional right to a trial within a reasonable time may justify a permanent stay.

This Court is very mindful of the requirement of the Constitution that a person charged with a criminal offence be tried within a reasonable time. What is reasonable will depend upon the particular circumstances of an individual case. In Savenaca Pe v The State (Crim App No 13 of 1995) the Court of Appeal held that although a delay of 4 years was “hard to justify” it was “not possible to conclude it had resulted in a miscarriage of justice”. The Court referred to Martin v Tauranga District Court (1995) 2 NZLR 419, noting the special circumstances in that case and that the New Zealand Court of Appeal “was not prepared to lay down any general time limit, stressing that regard had to be paid to the reasonable availability of court and judicial resources as well as to factors in the case itself giving rise to the delay”. In England it is recognized that delay giving rise to prejudice and unfairness may amount to abuse of process but a stay will only be imposed in exceptional circumstances (Attorney-General’s Reference No.1 of 1990 (supra).

The defence, in this application has, for the first time, specifically raised objection to the delay in proceeding to trial. It is now over 3 years and since the accused was charged, but a provisional date for the hearing of the venire de novo has been allocated. In his original submissions counsel for the accused submitted that the delay amounted to abuse of process resulting in manifest unfairness to the accused. In his submissions in reply it is argued that the delay is outside the guidelines laid down in the Supreme Court of Canada and the New Zealand Court of Appeal and is an infringement of the accused’s Constitutional rights justifying a stay.

In my view there is no specific guideline period of delay that this Court ought to take cognizance of. That is made clear in the case of Martin v Tauranga District Court (supra) relied upon by the defence. Moreover the cases themselves show that there is no fixed period after which delay becomes unreasonable (eg Martin v Tauranga District Court (supra) 17 months delay unreasonable; R v B 1996 1 NZLR 385 1 year 11 months delay not unreasonable; Savenaca Pe v The State (supra) 4 years delay not unreasonable; Jago v District Court (supra) over 5 years delay not unreasonable; Bell v Director of Public Prosecutions [1985] AC 937 5 years delay unreasonable.)

Whether there has been unreasonable delay or a failure to try a defendant within a reasonable time will depend on a variety of factors. Such matters as the length of the delay, the reasons for the delay, the actions of the defendant, the actions of the prosecutor, availability of legal and judicial resources, the nature of the charge and prejudice to the defendant may be relevant. They are not exhaustive list of considerations. Each case must be considered by the court on its own facts and circumstances, balancing the competing factors to determine whether the delay is unreasonable. If it is, a permanent stay may be the appropriate remedy, but that is not the only redress available [see Martin v Tauranga District Court (supra) and R v B (supra)]

This present case concerns a “re-trial” situation which necessarily adds to the delay. Certainly, the new trial has been ordered because at the first trial, the prosecution introduced new evidence of a verbal confession without any prior notice to the defence. However, that testimony was foreshadowed in earlier evidence and it was admitted without any objection by the defence. Then the departure of the pathologist from Fiji presented difficulties of proof for the prosecutor and it was decided that a lesser charge should be substituted. Further time was needed to allow counsel for the accused to attend from Australia to argue against the State filing an information for a lesser offence. That proved unnecessary because a decision of this Court allowed the prosecution to adduce different medical evidence and proceed on the original charge. The fact that the accused has briefed Australian counsel, a ruling on the defence claim for costs, ill health of counsel for the accused and the determination of this present application for a stay (which was not filed until 29th April 1998) have also contributed to the delay. Although there have been some delays, there has been a generally on-going process of the prosecution and a fixture for the venire de novo has been made.

In all the circumstances of this case, the delay is not unreasonable and does not amount to an infringement of the accused’s Constitutional rights. Nor has it been shown to have caused any material unfairness or prejudice to the accused or to be likely to result in a miscarriage of justice. Despite the delay that has occurred it is reasonable that the new trial should proceed in terms of the Judge’s order.

DECISION

I have considered all the facts and circumstances of this case relevant to the present application. I have dealt with the specific reasons and circumstances relied upon by the defence. In my view, neither singly nor cumulatively do these factors amount to an abuse of process or infringement of the accused’s Constitutional rights justifying a stay of the present prosecution. Nor do they create such unfairness for the accused or bring the administration of justice into such disrepute as to warrant intervention by this Court. There may be some disadvantages for the accused on a re-trial, just as there may be some for the prosecution. However, the learned trial judge was fully apprised of all the circumstances of the first trial and considered it appropriate to order a venire de novo. It is not for this Court to now investigate (if that was feasible) or speculate upon such matters as the quality of the prosecution evidence adduced at the first trial, the cause of death or whether the State will alter its case on re-trial. It is not unfair, oppressive or an abuse of process for the State to continue with a new trial in terms of the Judge’s order. Judicial control at the new trial will ensure fairness for the accused and give him the usual safeguards such as rulings on admissibility of evidence, the power of acquittal at the end of the prosecution case and an appropriate summing up to the Assessors.

I am advised that a date of hearing has been fixed that is convenient for the Court and the parties. It is imperative that the new trial should be heard without delay. For this reason I commend to the parties that they be circumspect in their requirements of the evidence of the first trial that needs to be transcribed from the Judges’ notes and certified.

The applications are refused.

Justice D B Pain

hac.0009d.95s