IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 76 OF 2006

BETWEEN:

SITIVENI LIGAMAMADA RABUKA
Applicant

AND:

STATE
Respondent

Counsel: 	Mr. P. Maiden SC
Mr. P. Sharma
Ms Tamanikaiwaimaro
	for the Applicant	
	Mr. M. Tedeschi QC
Mr. R. Gibson
Mr. A. Ravindra-Singh	for the State	

Date of Hearing: 6th and 7th November, 2006
Date of Decision: 9th November, 2006

DECISION 
Introduction
1. 	The accused was engaged in the .Army as a Regular Officer between 1968 and 1991. After leading two military coups in 1987, he took Command of the Fiji Military Forces and attained the rank of Major General. He left the Army to become first Deputy Prime Minister and then Prime Minister of Fiji, a position he held until his coalition was defeated in the general elections of 1999. Throughout this time he was embroiled in the political and constitutional struggle for indigenous rights that culminated in his government introducing the current Constitution in 1997.
2. 	It was while in command of the Army that he formed the counter revolutionary warfare squadron. This was a special services unit with the task of preventing any illegal takeover of government. The unit was subsequently renamed the 1st Meridian Squadron.
3. 	On the 19th of May 2000 a coup occurred in Fiji under the leadership of now convicted traitor George Speight. He ran his coup, took over Parliament and held members of Parliament hostage using members of this special services unit. The coup ended with Speight arrested, the country under martial law and the Army including some coup supporters returned to quarters.
4. 	Later that year on the 2nd of November rebel elements of the same squadron attempted a military takeover of the Queen Elizabeth Barracks to execute the removal of their Commander. This trial is not directly concerned with that mutiny it merely sets the scene of these allegations. It is said that Sitiveni Rabuka on two occasions over this time incited Colonel Seruvakula to mutinous acts first in July and then November of the year 2000. The particulars are that:
	(a) On or about the 4th day of July, 2000 at Suva in the Central Division, advisedly attempted to incite a person serving in the Military Forces of Fiji, namely Lieutenant Colonel Viliame Seruvakula, to commit a mutinous act, namely to join in combination with other persons subject to service law in executing the removal of the Commander of the Fiji Military Forces, COMMODORE VOREQE BAINIMARAMA.'
	(b) On or about the 2nd day of November, 2000 at Suva in the Central Division, advisedly attempted to incite a person serving in the Military Forces of Fiji, namely Lieutenant Colonel Viliame Seruvakula, to commit at act of mutiny, namely to join in combination with other persons engaged in the removal of the Commander of the Fiji Military Forces, COMMODORE VOREQE BAINIMARAMA.
5. 	Mr. Rabuka applies to have these charges against him dismissed or permanently stayed as they are an abuse of process. His grounds for dismissal or stay of these Charges are:
	(a) The State did not act as expeditiously as reasonably possible to lay the two Charges and the Information, and there is undue delay between the commission of the alleged offences and the laying of the Charges and the Information:
	(b) The State has failed to provide full particulars of the Charges and/or has provided them late;
	(c) The State has failed to provide full disclosure and/or has provided disclosure late;
	(d) Jurisdiction;
	(e) Double jeopardy;
	(f) Adverse Publicity.
6. 	At hearing the applicant withdrew grounds (d) and (e). He barely supported grounds (b) and (c)
7. 	The essential dates are:
	1. A statement implicating the accused was taken from Niko Bukarau on the l0th of November 2000.
	2. The accused made his own detailed witness statement about the coup and subsequent events on the 29th November 2000.
	3. The statement of the main witness, Viliame Seruvakula was taken on 24 July 2003. Although this was not specifically in relation to these charges. The witness was interviewed generally about his role as a Commander of the 3rd Infantry Battalion during and after the 2000 coup. In that extensive interview he first mentioned these telephone calls with the accused.
	4. The Applicant was first interviewed about the charges on 31 July 2004.
	5. The file was sent to the DPP for consultation on the 12th September 2005.
	6. The file was returned from the DPP with a request for further investigation on the 5th December 2005.
	7. The file was returned to the DPP for prosecution advice on the 6th February 2006.
	8. Prosecution advice was received by the investigator from the DPP in late February early March 2006.
	9. The accused went overseas for medical treatment on the 23rd March 2006 and returned to Fiji on 5th May 2006.
	10. The initial charge was laid on the l2th of May 2006.
	11. An information relating to the two offences was laid in the High Court on 29 June 2006.
	12. The State alleges that the Applicant committed the first offence on or about 4 July 2000. The charge was laid approximately 5 years and 10 months after the alleged offence occurred.
	13. The State alleges that the Applicant committed the second offence on or about 2nd November 2000. The charge was laid in the High Court approximately 5 years and 7 months after the alleged offence occurred.
8. 	The applicant personally filed an affidavit in support of the grounds advanced.
9. 	He first compares the timeline of his charges with those of George Speight, the coup ringleaders and members of the unlawful administration. The last of these being charged in 2003.
10. 	He complains he was charged 3 years later.
11. 	He claims prejudice claiming it is "virtually impossible for him to recall what I did or what I said on the two days I allegedly committed the offences." He otherwise denies the allegations and says his bare denials may have been better supported if he were charged earlier.
12. 	He says that potential witnesses are unavailable to him. In particular the late President Ratu Sir Kamisese Mara, with whom he had conversations at the time of the coup, and the late Colonel Ulaiasi Vatu and Chaplin Mesake Tuima who could have supported his version of events surrounding a church service for the 1st Meridian Squadron he attended just before the coup of 19th May 2000.
13. 	In support of his grounds on failure to disclose and provide particulars he complains about delays in supplying information containing details about the charges and uncertainty over particulars of the charge.
14. 	Concerning adverse publicity he claims his high profile, Colonel Seruvakula's interviews in the media and a recent broadcast detailing the charges must mean he cannot he fairly tried.
State
15. 	The State's evidence is from Superintendent Waisea Tabakau. He details the timeline of post coup investigations and prosecutions. He also attempts to explain the delay in charging the accused.
16. 	He was placed in charge of the Treason Investigation Unit (TIU) set up to investigate the attempted coup by George Speight and subsequent events including the mutiny at the Queen Elizabeth II Barracks. He was unchallenged in his assertion that this was the biggest ever investigation in the nation's history.
	He deposes the following facts in support of that opinion:
•	Immediately after the attempted coup 354 people were arrested. Many were prosecuted for unlawful assembly type offences.
•	28 were investigated in much closer detail initially including the group comprising the traitor Speight and other ring leaders. This resulted in 13 being charged with treason.
•	The Treason Investigation Unit has since investigated a large variety of incidents resulting in charges against 2284 people. All but 209 of those have been dealt with to date.
•	Much time has been spent trying to discover the whereabouts of absconding accused. Initially 222 failed to appear in court. By November 2003 that number had reduced to 157. That number is now reduced to 6, 2 are overseas. The remaining 4 have not been located.
17. 	The Superintendent explained the prosecution priorities in this way:
•	The Unit concentrated on prosecuting George Speight and the ringleaders first. Speight pleaded guilty to treason on the 18th of May 2002. Ten of his colleagues pleaded guilty the following day.
•	Ratu Timoci Silatolu and Joe Nata maintained not guilty pleas. They were sentenced on the 27th of June 2003.
•	The second tier of investigations relating to members of the illegal interim administration saw 11 of those prosecuted. Their trials commenced after the conclusion of the Silatolu and Nata trials. Each case in 2004 and 2005 lasted approximately 2 months.
18. 	The deponent said it was in the course of a general interview with Lieutenant Colonel Seruvakula that first mention was made of the subject telephone calls. There was however, much other information contained in this statement taken in New Zealand on the 24th of July 2003 that had to be followed up before the Rabuka allegations could be substantiated and an investigation commenced. The Superintendent explained that it was impossible to process the investigation in relation to Mr. Rabuka between July 2003 and July2004 because the staff of the Unit was reduced to 4 investigators.
19. 	In examination in chief he produced an exhibit (A.1) that details the movements of the investigation docket during the relevant period.
20. 	Under cross-examination he explained the relevance of several prosecution files that dealt with different aspects of coup offending. He emphasized that those files were not specifically created to deal with these charges or this accused but were prepared in relation to quite separate matters and only drawn into this investigation after this docket (34/04) was created on the 26th of July 2004 immediately before the accused's interview.
21. 	He said the file was forwarded to the CID for opinion from the DPP on the 2nd of August 2004 in relation to a possible appointment of Mr. Rabuka overseas as a representative of the Fijian Government but was collected by him again on the 4th of October 2004.
22. 	The witness emphasized that while the unit began to devote time to investigating the accused's role in possibly inciting mutiny they were not able to do so to the exclusion of all other investigations that were continuing at the same time. He said that on this file the police had collected or prepared the evidence of 64 witnesses to be called at trial as well as conducting searches looking for corroborative material, analyzing telephone logs and other enquiries.
23. 	He confirmed the file was sent to the DPP's Office on the 12th of September for consultation and that as a result further investigations were directed in December 2005.
24. 	Finally, prosecution advice was received in late February/early March. He confirmed under cross-examination that charges were not filed immediately as the accused wanted to go overseas for medical treatment. Mr. Rabuka returned to Fiji on the 5th of May 2006 and shortly thereafter the initial charges were filed.
The Law 
25. 	The State appropriately concedes that the High Court has an inherent power to Stay criminal proceedings for delay. I accept the difference in Fiji between pre-charge and post-charge delay applications. In Seru v The State [2003] FJCA 26, the court noted this important distinction.
	Next we note that subs (1) of section 29 provides that every person charged with an offence has the right to a fair trial before a court of law. Thus as stated in the leading New Zealand authority Martin v Tanranga District Court [1995] 2 NZLR 419 (again a decision of a full court) the right to a fair trial and the right to have any charge determined within a reasonable time are treated as distinct. See Martin at 420 (Cooke P). 426 (Richardson J), and 429 (Casey J). That a fair trial may be available notwithstanding the lapse of time does not exclude the possibility that the delay after charge is such that the prosecution ought to be stayed. See Martin at 430, per Casey J. This is emphasised by the many cases under the corresponding provisions in New Zealand where charges have been brought years after the event, most commonly alleged offences of a sexual nature where the complainant only felt able to report the matter to the authorities long afterwards. In many such instances applications to stay on grounds of breach of the fair trial right have been dismissed, notwithstanding delays of an order which if occurring after the charge, undoubtedly would have led to the case being stayed See for example R v O [1999] 1 NZLR 347 where 14 years elapsed between the last of the offending and the date of charge.
26. 	In Seru charges were laid in November 1994 in relation to alleged offending two years earlier on the 17th of September 1992. Committal to the High Court did not occur until April 1997. The trial was held between July and September 1999. The Court of Appeal observed that the delay was systemic and found the court did not hear the case in a reasonable time.
27. 	In doing so the court adopted the approach taken by a majority of the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and the New Zealand courts in Martin (supra) to determine what was unreasonable delay.
28. 	In holding the delay to be unacceptable their lordships commented (at page 9) that the interests which the constitutional right was designed to protect comprised both individual and societal rights. The former were the right to security of the person, the right to liberty, and the right to a fair trial. The latter, was that prompt trials enhanced the confidence of the public in the judicial system and that there was a societal interest in bringing to trial those accused of offending against the law. The right to trial without delay is not an absolute one and must be weighed against the attainment of justice. Their lordships then went on to adopt the Canadian approach described by Sopinka J in Morin at 12-13:
	The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay ... It is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable? While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analysing how long is too long may be listed as follows;
	1. The length of the delay:
2. Waiver of time periods;
	3. The reasons for the delay including ‑ 
	(a) inherent time requirements of the case;
	(b) actions of the accused;
	(c) actions of the Crown;
	(d) limits on institutional resources, and
	(e) other reasons for delay.
	4. Prejudice to the accused.
29. 	In another judgement, two of the judges in Morin, Lamer and Wilson JJ, took the view that a finding that the right to trial without undue delay has been infringed goes to the jurisdiction of any Court to put the accused on trial or to continue with the charges against him [see Rahey v The Queen (1987) 33 CCC (3d) 289, 306]. In my view that is too strict. While there is no reason to refuse a stay in a case where the delay was of the prosecution's making or where the delay is systemic it must always be remembered that a stay is not the only remedy available and is never automatically applied.
30. 	The Supreme Court in a judgment delivered on the 19th October [Jonetani Rokoua v State Crim. App. No. CAV0001/2006S] discussing delay commented upon the caution to be exercised when construing the Fijian constitution alongside the constitutional rights jurisprudence of other more developed nations. Their lordships observed that Fiji is not comparable to a western (European) country and so foreign decisions will only ever aid interpretation not supplant it. However, in my view, the courts of Fiji cannot ignore the "regard" that must be had to public international law in the interpretation of all our rights detailed in Chapter 4. [see s.43(2)] and trusted common law principles.
31. 	When considering delay in the context of the criterion of reasonableness contained in Section 29(3) of the constitution, the court went on to say, this had to be read with regard to the resources available in Fiji for the administration of Justice. This observation in my view while apt to the interpretation of this particular subsection is however limited to those provisions that are not absolute and are therefore clearly derogable. That must surely be so if proper "regard" is to he had to public international law.
32. 	Further, in my view, great caution must be exercised in reading down fair and speedy trial rights on an affordability argument. The risk is that a focus on the availability of resources as the sole yardstick of reasonableness will inevitably lead to the acceptance of otherwise intolerable delays. These rights are in the constitution to be recognized. Clarity in these cases comes from recognition of delay for what it is and the application of judicial technique to find appropriate remedies for it not artificial interpretation or restriction of these rights to avoid an unpleasant consequence.
33. 	In the United Kingdom there have been developments in delay jurisprudence along these lines. In the British courts the right to a speedy trial is given legislative recognition by incorporation of EU Convention rights through their Human Rights Act.
34. 	In Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72 the Attorney General for England and Wales sought clarification from the English Court of Appeal as to whether a permanent stay of proceedings was the required result where the speedy trial right had been breached. The question was referred to the House of Lords. For the majority Lord Bingham of Cornhill while acknowledging the "powerful argument" that if a public authority causes or permits unreasonable delay to occur then a stay might be appropriate nonetheless rejected stay as the only remedy. In a country such as Fiji with limited Criminal Justice resources and scarce hearing time his Lordships reasons with respect seem relevant.
35. 	Lord Bingham at 89:
	The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless
	(a) there can no longer be a fair hearing or
	(b) it would otherwise be unfair to try the defendant.
	The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.
36. 	In order to establish a right to a stay on the basis of delay between the offence and trial, the accused has the burden of proving that the delay is so extreme that he cannot have a fair trial. Delay in itself is not a sufficient basis. The remedy of a stay of proceedings on the ground of delay can be invoked only where issues of prejudice arise. Therefore it is not appropriate to stay or dismiss criminal proceedings unless there can no longer be a fair hearing or it would otherwise be unfair to try the defendant. The prejudice must be of a kind that is incapable of being dealt with by suitable directions from the trial judge.
37. 	The issue was re-visited two weeks ago by the Privy Council in Boolell v The State (Mauritius) [2006] UKPC 46 (16 October 2006). The appellant Prakash Boolell was on the 24th of March 2003 convicted by the Intermediate Court of Mauritius on an information containing one count of swindling and sentenced to 6 months imprisonment.
38. 	His appeal to the Supreme Court of Mauritius was dismissed on the 26th of May 2004. He appealed as of right to the Judicial Committee of the Privy Council against the judgment of the Supreme Court.
39. 	The charge arose out of a transaction entered into by the appellant, a barrister, on the l2th of September 1990. There was an extended curial history of the case following a similar pattern whereby hearings would be commenced and then have to be adjourned or vacated as the appellant barrister made a number of applications in the course of trial some without notice to the prosecution or the court many of them redundant or vexatious.
40. 	However, despite delay caused by his litigation technique there were also systemic delays in hearing the case due largely to an under resourced justice system. For example, on no occasion during trial was evidence taken on successive days and on the only two occasions when the case was listed on successive days the proceedings were merely mentions. The Privy Council was informed that the intermediate court in Mauritius was not geared to hearing a case of any length 
41. 	Section 10(1) of the Constitution of Mauritius, contains a guarantee in familiar terms that where a person is charged with a criminal offence "the case should be afforded a fair hearing within a reasonable time by an independent and impartial court established by law".
42. 	Their Lordships considered that the following proposition should he regarded as correct in the law of Mauritius:
	(i) If a criminal case is not heard and completed within a reasonable time, that will of itself constitute a breach of section 10(1) of the Constitution, whether or not the defendant has been prejudiced by the delay.
	(ii) An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone unless
	(a) the hearing was unfair or
	(b) it was unfair to try the defendant at all.
43. 	Although relating more to our section 29(3) rights I nonetheless respectfully adopt their Lordships reasoning and in particular their approval of Lord Bingham's judgment in Attorney General's Reference (No 2 of 2001) (supra) to the effect that stay is an extraordinary remedy in a criminal trial available in extremely limited circumstances.
44. 	In New Zealand Her Honour Justice Winkelman discussed these very issues in Du v District Court and the Attorney-General HC AK CIV 2005-404-355 [2005] NZHC 276 (23 November 2005). At the end of the judgement her honour noted competing academic commentary on the issue and referred to the Dean of the Auckland law School in an article entitled: 'Affirming the Nation's Fundamental Values the Bill of Rights on Trial Without Undue Delay' (1995) 1 HRLP 56, 62-63, where Prof. Rishworth said that the logic of the Canadian approach, that a stay seems to be a minimum remedy, is compelling nonetheless:
	"… the very seriousness of this remedy will inevitably lead to greater tolerance of delay in order to avoid the granting of stays in all but the most deserving of cases."
45. 	I am satisfied that in Fiji we can comfortably follow the reasoning of Lord Bingham to which I have earlier referred and the reasoning of Winkelmen J. The Court does not further contravene the right in continuing the proceedings after a breach of it has been found since the breach consists in the delay which has accrued and not in the prospective hearing.
46. 	In this way shockingly long delays that are clearly unreasonable and violate the right might be properly recognized rather than ignored simply because of the undesirability of turning criminals loose. In Du Winkelmen J quoted the American Professor Amsterdam from his article: "Speedy Criminal Trial: Rights and Remedies" (1975) 27 Stan L Rev 525 at 535-536:
	The primary form of judicial relief against denial of a speedy trial should be to expedite the trial not to abort it… If the sole wrong done by the delay is "undue and oppressive incarceration prior to trial" the remedy ought to be release from pre-trial confinement; if prolongation of the anxiety and other vicissitudes "accompanying public accusation" is sufficiently extensive, the remedy ought to be dismissal without prejudice, and it is only when delay gives rise to "possibilities [of impairment of] the ability of an accused to defend himself or when a powerful sanction is needed to compel prosecutorial obedience to norms of speedy trial which judges cannot otherwise enforce, that dismissal of a prosecution is warranted.
47. 	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. (See Lord Lowry in R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 at 74)
48. 	Even where the applicant succeeds in convincing the court there has been delay and incurable prejudice a flexible approach to remedy rather than a rigid adherence to an automatic right to dismiss or stay a case offer the best result for the State and the accused. A flexible approach will better promote on adherence to the right as Judges will more readily and denounce any real delay in the trial of an accused.
49. 	Some of the remedies that may be available are:
	1. A declaration Rishworth et al, in The New Zealand Bill of Rights (Oxford, 2003) noted 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.
	2. Timetabling orders to expedite the process of trial and to bring a fixture on at a reasonable time.
	3. Release from pre-trial confinement on strict bail terms until trial.
	4. Dismissal without prejudice; if the anxiety accompanying public accusation is sufficiently extensive.
	5. 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.
	6. 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.
	7. Trial directions to the assessors that delay is a factor for consideration.
	8. 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.
	9. The payment of compensation to an acquitted defendant.
	10. If unfairness is established after trial then the quashing of any conviction.
Consideration
Particulars
50. 	This matter is fully considered in R v Churchill [1965] 2 ALL ER 793 and 1965 49 CR APP R 317 by Thesiger J who had before him an application for particulars of overt acts in an alleged conspiracy. His honour at page 322 in commenting on the application which was made after counsel for the Crown had opened for 1 1/2 days said:
	"...... he was satisfied that the opening speech, together with the depositions convey sufficient particulars to enable the defendants to meet the charge against them"
51. 	On the particular facts of the case and after hearing the opening he considered the case could proceed in fairness to the defendants as:
	"...having regard to the fact that they have been acquainted with what was in the depositions for quite a considerable time and that the prosecution had made quite clear the way in which it is alleged each particular accused was a party to of the two conspiracies charged separately in two separate counts" Ibid, 323).
52. 	In my view the object of particulars is to enable an accused to know fairly what charge he has to meet. That object may be served by the particulars already given or from other material such as the original investigation statements themselves, correspondence between Prosecution and defence, or indeed the opening address of the prosecutor.
53. 	In my view in this case all the defence has to do is to read and digest the investigated material, the exhibits, correspondence from the Director's Office and the assurance given by senior counsel during the course of these proceedings to know precisely the case they have to meet.
54. 	At this hearing it became clear (in respect of the first count) there may be some need for further particulars in respect of the exact date on which the telephone conversation between the accused and Colonel Seruvakula occurred. However, I observe first that this date is not an essential ingredient of the charge and secondly the supply of an alternate date will not alter the nature of the charge. Any prejudice caused by an amendment to the information at this time can be cured by providing a short adjournment. A stay cannot be justified.
Adverse Publicity
55. 	In respect of this ground I prefer the submissions of learned counsel for the Prosecution (paragraphs 13 and 18). The fact that the accused, to use the words of his counsel, is "notorious" will not prevent him receiving a fair trial.
56. 	I reject the argument that somehow notoriety may provide some basis for immunity from prosecution. That cannot be so as it would offend the Republic's basic constitutional principle of equal justice for all.
57. 	In Regina v Bell [2002] NSWCCA 2, the New South Wales Court of Criminal Appeal faced a situation where the accused had been charged with multiple acts of sexual abuse of young boys. There had been extensive media publicity given to the accused's alleged activities during a Police Royal Commission. The court said:
	"The Criminal Justice System, of which a trial by jury is an integral part often has to function in circumstances of intense publicity, potentially prejudicial to an accused person. Various mechanisms including, where necessary, proceedings for contempt of court are available to protect the integrity of the system. Ultimately, however it is the capacity of jurors properly instructed by trial judges to decide cases by reference to legally admissible evidence and legally relevant arguments and not otherwise that is the foundation of the system".
58. 	In Hinch v A-G (Vic) [1987] 164 CLR 15 at 74 Justice Toohey observed that in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.
59. 	His honour in an unrelated decision together with Mason CJ [R v Glennon (1992) 173 CLR 592 at 603] observed that the possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility that proceeds on the footing that the jury acting in conformity with the instructions given to them by the trial judge will render a true verdict in accordance with the evidence.
60. 	I am satisfied that any trial publicity, notoriety, sympathy or prejudice either for or against the accused can properly be dealt with by suitable directions to the assessors. A stay cannot be justified.
Delay
61. 	It is clear from the evidence that the investigation of these charges meandered through the Treason Investigation Unit.
62. 	However, I am satisfied that the affidavit of Superintendent Tabakau satisfactorily explains that slow pace. His unit faced a truly unique task in investigating the coup and mutiny of 2000. That task required him to rank in triage fashion those cases that were more important than others. Logic would dictate that the traitor Speight and his ringleaders would be first prosecuted followed by the members of the administration that took unlawful oaths. Then in point of time those that may have been involved in the mutiny at the Queen Elizabeth Barracks on the 2nd of November 2000.
63. 	I am satisfied that it was not until July 2003 that the importance of the alleged communication between the accused and Colonel Seruvakula was drawn to the attention of the unit. It is reasonable to assume that it would take some time to verify the serious allegations made by Colonel Seruvakula before proceeding to formally interview the accused. This was undertaken on the 31st of July 2004. Logically there then had to be further enquiries made about the accused's statement before charges could be laid.
64. 	I accept during 2003 and 2004 various prosecutions were continuing against a variety of offenders in various Magistrates Courts for lesser offences of public disorder, unlawful assembly and wrongful confinement and that accordingly it was impossible to devote an officer's full time to investigate Mr. Rabuka's matters.
65. 	The delays are explained by the limited resources available to the investigators, the degree of attention that needed to be paid to the interview of witnesses and collection of appropriate evidence and the unit's obligations to other on-going investigations and trials. In respect of that matter I note that the second raft of trials against those charged for actions relating to the illegal administration started with Ratu Timoci Silatolu and Joe Nata's trials and sentences. These trials commenced on the 27th of June 2003 and concluded in 2005.
66. 	I am not satisfied the applicant has established intolerable delay. Although the ultimate accusations are not particularly complex they did involve an intricate factual matrix that no doubt had to be pieced together from reluctant witnesses. The inherent time requirements of the case, workload of the unit and investigation priorities adequately explain the length of time it took to charge the accused. Further, while the events themselves may have happened in 2000 the allegations did not surface until 2003 and even then only as part of wider enquiries.
67. 	I am not satisfied that the applicant has demonstrated significant and incurable prejudice. He first cast his mind back to these coup matters when he made a statement on the 29th of November 2000. This is a statement in which he specifically mentions his conversation with Colonel Seruvakula in November of that year. I find his explanations in both this early statement and in his caution interview quite detailed as to time, place, circumstance and his role in these events.
68. 	The prosecution will no doubt bring evidence of motive to incite the mutinous acts but equally the accused in my view will have ample opportunity to refute that motive from available and cogent evidence about his role during the coup as a negotiator and peace maker. In my view, time has not altered much the nature of the charge or likely defence.
69. 	I accept the State's contention that the unavailability of evidence by death or less during the course of time is not necessarily indicative or impossible prejudice.
70. 	I could at this point simply refuse the application. However, to do so would not fully meet the arguments advanced.
71. 	Even if I were to find that there was both intolerable delay and incurable prejudice such as to constitute a breach of Section 29(1) or to engage the inherent powers of the court I would not accept that stay in this instance is the only effective remedy.
72. 	In performing the balancing exercise between the interests of this applicant and society I would find it imperative that this criminal trial on these charges proceed. These are allegations concerning the serious charge of inciting mutinous acts in a post conflict State. The public interest in having these charges brought to trial would in my view outweigh the personal interests of the accused in achieving a stay especially when more proportionate remedies than stay are available.
73. 	I am satisfied that appropriate directions to the assessors to take pre-charge delay into account when assessing the evidence would in any event ameliorate any prejudice he may have suffered.
Conclusion 
74. 	The application is dismissed and I rule that the trial against Sitiveni Rabuka proceed commencing with an opening address from the State on Friday morning at 10.00am.
Gerard Winter
JUDGE

At Suva
Thursday 9th November, 2006