IN THE HIGH COURT OF FIJI
AT SUVA

Cr. Misc. Case No. HAM 10/07
Criminal Case No. HAC3/07

BETWEEN:

STATE
Prosecutor/
Respondent

AND

MALAKAI TUILOA
Defendant/
Applicant

Appearances:
Prosecutor/Respondent: Mr Elliott and Ms Tabete
Defendant/Applicant: 	Mr HK Nagin

Date of Hearing: 2 June 2008
Date of Ruling:  2 June 2008
Date of Reasons: 3 June 2008

Coram: Scutt, J.

DECISION

1.	Introduction

The Applicant herein, the Defendant Mr Malakai TUILOA, makes application for a stay of these proceedings on the ground of delay. Counsel for Mr Tuiloa put the application on the following bases:

•	The Court should exercise its inherent jurisdiction to control criminal proceedings when the circumstances of those proceedings are unjust or give rise to injustice;

•	The Court should stay the proceedings by reference to section 29(3) of the Constitution;

•	The delay of almost 10 years is not a reasonable time for bringing this matter to trial.

1.1	A previous application for a stay was heard by the High Court in March 2007. The date of hearing was Monday 12 March 2007, the date of decision Friday 23 March 2007, His Lordship Justice Winters refusing that application. 

1.2	Counsel’s reasons for making this further application, so as to distinguish it from the basis upon which Winter, J. refused the stay on that earlier occasion, were that:

•	since that date a further delay of an extra year and some months has occurred;

•	this means that the delay is almost 10 years – namely some nine years and eight months and in that and all the circumstances, a stay should be granted; and 

•	upon the day Winters, J. delivered his decision refusing the application, the Court of Appeal handed down a judgment setting out principles to be applied in stay applications, to which His Lordship would not have had reference at the time.

1.3	Bearing all this in mind, to succeed in this application Mr Tuiloa will have to substantiate it by reference to matters beyond those upon which Winter, J. refused the stay. I therefore address here the two Court of Appeal decisions which have interceded between Winter, J.’s decision and the present status of this proceeding, before looking at the decision delivered by Winters, J. refusing the stay, and the record insofar as it stands after 23 March 2007, the date of that decision.

1.4	Insofar as they are relevant, this application should be considered against the principles set down in the two Court of Appeal decisions, as they must be taken as setting definitively the bases upon which a stay may be granted, or at minimum as giving guidance to the courts in making such a determination.

2.	Court of Appeal Decision – Shameem v. The State

The Court of Appeal decision of 23 March 2007, Mohammed Riaz Shameem v. The State [2007] FJCA 19; AAU0096.2005 (23 March 2007) related to a charge of indecent assault contrary to section 154(1) of the Penal Code, the offence allegedly having been committed on 6 October 1999, with the defendant, Mr Shameem, first appearing before Nadi Magistrates’ Court on 22 October 1999, when he pleaded not guilty.

2.1	Some thirty adjournments then occurred, seventeen prior to the trial’s commencement on 29 January 2003. By that time four years had elapsed since Mr Shameem’s first appearance. After the complainant and a police witness had given evidence, the case was adjourned to 12 February 2003 for the prosecution to summon a further witness. There were three more adjournments until 20 August 2003 when the caution statement was tendered and bench warrants issued for three prosecution witnesses. There were two further adjournments, one on 24 November 2003 (originally a date for hearing), thence to 12 January 2005 for the fixing of a hearing date. There were seven further adjournments until 3 February 2005 when the original magistrate returned to Nadi, having been on duty in Labasa Magistrates’ Court over that period. 

2.2	On 3 February 2005 the magistrate referred the proceeding to the High Court in Lautoka upon application by the defence to have the charge struck out and for the issue of delay to be referred to the High Court under section 41(5) of the Constitution.

2.3	In having the matter heard in the High Court, further delays ensued. These were caused by difficulties in obtaining the Magistrates’ Court record then requests by counsel for further time for the filing of submissions.

2.4	The High Court attributed the delays ‘in the main’ to the actions of the applicant and/or counsel, holding that it was inappropriate to stay the proceedings, notwithstanding the delays. The Court of Appeal demurred, saying that the case ‘shows a shocking failure of the system of trials in the Magistrate’s Court and an equal failure to remedy it in the High Court’, adding that section 29 of the Constitution is part of the Bill of Rights and provides:

29.-	(1)	Every person charged with an offence has the right to a fair trial before a court of law …

(3)	Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time.

2.5	Where ‘the principal reason for the delay is the fault of the accused’, said the Court of Appeal, ‘even a lengthy delay might be accepted as reasonable’:

But that was all too obviously not the situation here. Time after time the magistrate simply adjourned the case for no stated reason. Such action is impossible to justify: at paras[13][14] 

2.6	The Court of Appeal went on to say, amongst other matters:

The right to have a criminal case determined in a reasonable time must be determined by reference to the right of the individual to a fair trial process leading to a just result. In considering any such application the court will consider whether the delay is such that it is likely to prevent a fair trial. That will depend on various factors such as the length of the delay, the reasons for the delay the nature of the charge and the evidence to be called by either side. Where considerable delay occurs in the trial itself, the effect of the court’s ability properly to assess the evidence at the conclusion will also be a relevant factor. In some cases, the delay will be such that the court may consider it has reached the threshold at which it will be ‘presumptively prejudicial’: Apatia Seru’s case and Martin v. Tauranga District Court [1995] 2 NZLR 419: at para [22]

2.7	Noting that in the High Court, the Judge’s order refusing the stay meant a trial which started four years after the offence was set to resume after adjournments in the middle of the evidence, those adjournments being of seven months and sixteen months, the Court of Appeal said:

The judge did not suggest a trial de novo but it is inconceivable that the original magistrate could have carried on with the trial. We have been advised from the bar table that the magistrate has now left Fiji and so such a trial is the only possibility if we should dismiss the appeal: at para [25]

2.8	Finally, ‘… no one can be satisfied that justice had been done because we do not now consider that any trial can be held which will be fair and no lesser remedy than a stay will be just. The appeal is allowed’: at paras [31][32]

3.	Court of Appeal Decision – Mohammed Sharif Sahim v. The State

Subsequent to Shameem v. The State, the Court of Appeal addressed delay in Mohammed Sharif Sahim v. The State (Misc. Action No. 17 of 2007, 25 March 2008). The offences in this case were of obtaining money by false pretences, its being alleged that Mr Sahim obtained more than $60,000 through making false claims of being able to obtain visas enabling clients to migrate to the United States. 

3.1	Mr Sahim’s first appearance in Suva Magistrates’ Court, where he pleaded 'not guilty’, occurred on 27 July 2001. Between July 2001 and March 2003 adjournments occurred repeatedly, without any reason being recorded. From 12 August 2003 up to July 2006 when he made an application in the High Court for constitutional redress, further adjournments occurred without any reason being recorded or, due to illness of the accused, the defence counsel’s being in the High Court, or witnesses had not been summoned, or through the absence of either prosecutor or accused. The Court of Appeal concluded that all parties – the court, the prosecution and the fence, ‘were part of the problem’. 

3.2	The delay did not stop there:

After the application for constitutional redress was made in the High Court, the court record was called for in July, September, November and December 2006. It finally arrived on 18th January 2007. The High Court judge rightly referred to this scenario as appalling and as one which demonstrated the shocking failure of Fiji’s trial system. Ultimately it showed a failure of the court to conduct the trial: at para [4]

3.3	In the High Court, His Lordship observed that in Fiji it is well-settled law, since Apaitia Seru and Anthony Frederick Stevens v. The State (CrimApp AAU0041/42 of 1995S), that where delay was unreasonable, prejudice to the accused could be presumed. The Court of Appeal noted this, along with His Lordship’s further comment vis-à-vis Seru and Stevens, namely:

In holding the delay to be unconstitutional [in Seru and Stevens] their Lordships commented … that the constitutional right was designed to protect 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 as a societal interests in bringing to trial those accused of offending against the law. The right was held to be a qualified right. To be balanced with the victim’s interests. Pre-charge delay is certainly relevant in considering whether a stay should be granted. Any prejudice caused to the accused by the delay is a critical factor however the lack of it does not necessary mean that the application is bound to fail: at para [6]

3.4	However, having found: (a) there had been unreasonable delay in bringing the charges to trial; (b) the cause of delay was primarily a failure of the court system to manage the case to a hearing; (c) the accused and prosecution significantly contributed to the delay, His Lordship declined to grant a stay. Rather, he directed the Chief Magistrate ‘to ensure this trial is heard by a Resident Magistrate within the next 40 days’: at para [7]

3.5	Mr Sahim’s appeal to the Court of Appeal was founded in two grounds:

That his Lordship erred in law and in fact:

•	in failing to grant permanent stay of the proceedings in the Magistrates Court … despite making a finding that the delay caused is unreasonable; and

•	in failing to grant permanent stay in view of the delay caused is unreasonable and thus unfair to continue with the proceedings pursuant to section 29(3) of the Constitution …: para [9]

3.6	Assessing the crux of the appeal as being ‘whether, once systemic delay is found to be unreasonable, a stay of proceedings is inevitable even in the absence of specific prejudice to the accused, the Court of Appeal went on to review and analyse the authorities on delay. These included cases from the United Kingdom (House of Lords and Privy Council), European Court of Justice (on appeal from England, Switzerland, Germany, Austria, France), Canada and Aotearoa/New Zealand and the United States of America.

3.7	Whilst acknowledging that there are differences in how the authorities have dealt with delay, the Court of Appeal concluded that they are ‘not necessarily irreconcilable’. The focus should be, said the Court of Appeal, not only on delay and demonstrated prejudice or prejudice inherent in the delay itself, but also upon the possibility of alternative remedies:

The correct approach of the courts must … be two-pronged. Firstly, is there unreasonable delay and a breach of section 29(3) of the Constitution? In answering this question, prejudice is relevant but not necessary where the delay is found to be otherwise oppressive in all the circumstances. The second question is if there has been a breach what is the remedy? In determining the appropriate remedy, absence of prejudice becomes relevant. Where an accused person is able to be tried fairly without any impairment in the conduct of the defence, the prosecution should not be stayed. Where the issue is raised on appeal, the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence: at para [29]

3.8	Such an approach would, said the Court of Appeal, preserve the purpose of the right embodied in section 29(3) of the Constitution, ‘without the necessity of taking the disproportionate and draconian step of terminating proceedings in each case’. The importance of ensuring the Constitutional right to a speedy trial, yet not permitting this right to be employed as a mechanism for avoiding the justice of the triad process, was emphasised and sought to be preserved through the solution of considering not only the grant of a stay, but the existence of alternatives: at para [30] 

3.9	This led to the Court of Appeal’s conclusion that the High Court had not erred. Rather:

[The] finding that the delay in this case was unreasonable (with which neither appellant nor respondent disagrees) was based on a balancing of all relevant factors, including the absence of specific prejudice. Further, in then deciding which remedy was best-suited to the breach, [His Lordship] chose to make orders to expedite trial. In coming to this conclusion, he was entitled to take into account the gravity of the case, the nature of the charges, the fact that all parties contributed to the delay and the absence of proof that a fear trial was not possible: at para [31]

3.10	The appeal was dismissed and the orders of the High Court were reinstated, so as to direct the Chief Magistrate to ensure hearing of the trial ‘within the next 40 days’: at para [31]

4.	High Court Decision – Winters, J. in State v. Malakai Tuiloa

In his decision, His Lordship set out the timelines, namely the alleged offence being said to have occurred on 21 October 1999, whilst the charges were not laid until 5 June 2006 – some 6 years and 8 months later. He outlined the grounds for a permanent stay as being:

•	The complainant and three other state witnesses are neither credible nor reliable;
•	The Public Service Commission has investigated these allegations and cleared Mr Tuiloa of any responsibility;
•	Mr Tuiloa is unable to obtain a fair trial by reason of adverse media publicity;
•	The delay means he is prejudiced by the absence of witnesses:

o	Mr Hem
o	Mr Rahimtullah
o	Ms Pal
o	An unidentified police officer.

•	The delay means he is prejudiced due to the loss of documents, notably:

o	Original submission to the Director and Tender Board
o	Original Quotation No. 4454
o	Documents relating to the purchase of these hydraulic reels.

•	In combination with the length of delay Mr Tuiloa raises an allegation that records relating to his earlier interview by the unidentified police officer during an investigation sometime in 2000-2001 are now lost. He submits that he cannot therefore receive a fair trial.

•	A stay is the only available remedy for breach of his constitutional right to be tried within a reasonable time.

4.1	His Lordship assumed jurisdiction under the High Court’s inherent powers and section 120(6) of the Constitution which confers on the High Court jurisdiction ‘to supervise any civil or criminal proceedings before a subordinate court’ whereby it ‘may, on an application duly made to it, make such orders, issue such writs and give such directions as it considers appropriate to ensure that justice is duly administered by the subordinate court’. It is these bases upon which Counsel for Mr Tuiloa in the present application said that I should assume jurisdiction and grant the stay.

4.2	Here, I canvass Winter, J.’s decision in some considerable depth because of the need not to traverse the matters already determined in March 2007. Going through His Lordship’s decision, it is apparent that the matters raised before him are again raised in the present application. It is essential to avoid revisiting and determining the very issues upon which His Lordship’s decision rests. In effect to do so would be to appeal against Winter, J.’s decision through this fresh application.

4.3	(A) 	Grounds lacking in merit: His Lordship dismissed a number of the grounds as lacking any merit, including:

•	Credibility of state witnesses – the credibility and reliability of witnesses are inevitably matters resolved at trial and not beforehand: at para [7]
•	Public Service Commission investigation – irrelevant for the purpose of the proceedings at hand, ‘which gain their legitimacy through a completely separate curial process in the criminal courts’: at para [8]
•	Prejudice through adverse media publicity – ‘not really supported by counsel before me’ and ‘Clearly such publicity as there may have been in respect of this matter is now quite stale’ whilst ‘In any event any judicial officer is able to adequately deal with that issue of pretrial publicity by suitable directions’: at para [9]

4.4	The conclusion was, then, that general principles relating to staying proceedings for delay had to be called upon, requiring ‘consideration first of the amount of delay in the context of this particular case and then consideration of any prejudice’: at para [10]

4.5	(B) 	Pre-charge, Police investigation and charge, and Offence to trial delay: First, His Lordship looked at pre-charge delay, then police investigation and charge delay, and finally at offence to trial delay:

(a)	Pre-charge delay: His Lordship noted this was primarily caused by Mr Brodie’s delayed complaint, due to Mr Brodie’s having denied there was any corruption at all, then changing his mind but delaying telling police about the matter until three years and five months after the alleged event. His Lordship said that pre-charge delay ‘may be relevant to a consideration of the overall effect of delay. However, I find a complaint delay of 3 years and 5 months unremarkable in these circumstances’: at para [11]

(b)	Police investigation and charge delay: Following an investigation by police between April 2004 and May 2006 Mr Tuiloa was charged in 2006: ‘The 2 years and 2 months delay attributed to the investigation process is I find adequately explained in the affidavit of Aminiasi Cula, the Investigating Officer, ‘… it would be rare indeed for explained delay in the investigation process to satisfy the necessary tests for the court to stay proceedings: Leweniqila v. The State (Misc Case No HAM 31 of 2004S); Rokoua v. The State (Criminal Appeal No CAV0001/06S): at paras [13][14]

(c)	Offence to Trial Delay: an accused bears a burden of proof that the delay ‘is so extreme that he cannot have a fair trial’ and:

I am not satisfied that the applicant has achieved that standard in this application. I accept the explanations for the delay advanced by the investigating officer in his affidavits. The trial judge will undoubtedly take into consideration the length of delay and its effect on memory: at paras [15][16]

4.6	(C) 	Absence of documents & Absence of police witness: Secondly, His Lordship looked at the absence of documents and absence of a witness – police officer – in this context. Here, the contention was that Mr Tuiloa was at an unknown time in 2000 and 2001 interviewed by a police officer (unidentified) in relation to these identical allegations, and that documents (particulars unable to be provided with any certainty) were seized by police for the investigation and were now lost. It was said that without the police record and those documents Counsel could not possibly prepare an adequate defence for his client. The assumption was that Mr Brodie ‘would have made earlier statements to the place [and Counsel] needs that material and in particular the interviews of Mr Brodie to adequately prepare for trial’: at para [18]

4.7	Winter, J. adjourned the hearing so that further enquiries could be made about any earlier police investigations, leading to a further affidavit (of 6 March 2007) by the Investigating Officer who deposed that ‘quite thorough searching’ had not enabled him to find any official police record of interviews taking place with either Mr Tuiloa or (by inference) Mr Brodie. Enquiries to police officers disclosed no recollection on their part of any previous caution interview of Mr Tuiloa. The Investigating Officer could find no record in the Major Fraud Unit of any earlier complaint about the matter, nor a file relating to an earlier complaint. An additional check at the Central Police Station Registers confirmed no earlier complaint had been made. Mr Tuiloa said under oath that he was ‘interviewed by an unidentified Indian Police Officer sometime between 2000-2001. In this regard, His Lordship said:

I found [Mr Tuiloa’s] allegations in relation to that matter unconvincing. As originally submitted there was little detail in the affidavit in support of the application for stay. The applicant was vague about his earlier interview and lost documents. There was little improvement in his reply. I prefer the evidence of the Investigating Officer. The officer I find made a diligent search and could not uncover any earlier reference to either a complaint or a police interview of the applicant.

Accordingly I am not satisfied on the balance of probabilities that the applicant was caution interviewed on an earlier occasion. I am also not satisfied that documents were taken from the Fisheries Ministry under search warrant at that earlier time in relation to those caution interviews or investigations: at paras [24][25]

4.8	Winter, J. said that this finding resolved the application, but he emphasised again that even were he convinced that Mr Tuiloa was interviewed on an earlier occasion or documents taken ‘that would not necessarily motivate me to grant this application for stay’. His Lordship ‘very much doubted’ the relevance of Mr Tuiloa’s earlier exculpatory statements to either trial preparation or evidence: at para [26]

4.9	One further issue in relation to the documents and earlier investigation matter was touched upon by Winter, J. Noting that as part of the application Counsel emphasised that police during the 2000-2001 investigation ‘must have interviewed Mr Brodie, the complainant’ he observed that Counsel alleged such an interview ‘must contain material consistent with Mr Brodie’s public statements made at the time that there was no corruption in these transactions’. However, as he was not satisfied that such an investigation occurred in 2000 and 2001, His Lordship considered that resolved the question of availability of any information from Mr Brodie. ‘In any event,’ he said, ‘the anticipated content of Mr Brodie’s alleged earlier police statement is highly speculative’. The defence could in any event make ‘full use’ of Mr Brodie’s public statements at the material time denying any corrupt practices. Further, nothing precluded Mr Tuiloa from emphasizing in the trial that he and Mr Brodie were interviewed and documents may have been seized. This was a matter of choice in the context of the trial, for him and his Counsel. For these reasons, said His Lordship, he could ‘see no prejudice to the accused’s fair trial’: at para [27] 

4.10	(D) 	Absence of witnesses: Thirdly, Winter, J. addressed the absence of witnesses. Here, he acknowledged that there may be an abuse of process in continuing a trial in the absence of witnesses and that this might lead to a stay. The court, he said, ‘has to make an assessment of the relevance and impact of the absent witnesses proposed testimony’. The question is ‘whether by reason of the absence of any particular witness the accused will be unable to receive a fair trial’: R. v. Cavanagh [1972] 2 All ER 704; R. v. Shaw [1972] 1 WLR 679; R. v. Leung Chi-Sing CrApp 37/92

4.11	His Lordship did not accept, on the evidence before him, that the witnesses were unavailable to the defence; nor was he convinced ‘about the critical content of any evidence they may provide’. He found their testimony ‘is not sufficiently critical to demand that these proceedings be stopped’ and he was ‘satisfied that [Mr Tuiloa] will receive a fair trial’: at para [33]

4.12	He went on to acknowledge Mr Brodie’s credibility as clearly open to attack – his first publicly saying there was no corruption in the transaction, then changing his mind; and now being having State immunity: ‘Any trial judge would take these matters into account when assessing credibility and making evidential findings’: at para [30]

4.13	The alleged secret commission was paid inside an office by Mr Brodie to Mr Tuiloa, and the ‘introduction of evidence from … witnesses Mr Hem, Mr Rahimtullah and Ms Pal cannot add much to that’. Being in prison, Mr Kunatuba ‘would be available to be produced’. The former Permanent Secretary for the Ministry 'is now known to be living in the Yasawa Islands’: ‘A summons or order can be served on these witnesses and the defence can call them’: at para [31]

4.14	Counsel indicated that Mr Hem interviewed Mr Brodie for the PSC as part of the earlier investigation exonerating Mr Tuiloa, however, was ‘not sure of Mr Hem’s availability’ nor of the availability of the file relating to the PSC investigation. Winter, J. noted: ‘The applicant carries the burden of proof in a stay application’: at para [32]

5.	Delay Post Winter, J.’s Decision in State v. Malakai Tuiloa

Justice Winter’s decision refusing the application for a stay was made on 23 March 2007. The matter next came before His Lordship on Friday 30 March 2007 at 9.30am and was stood down to 2.15pm ‘for fixture’. The defence was said to be available on 16 April 2007. The record says: ‘State can accept Friday’. The estimated time of the trial was ‘one week’, with orders: (i) trial set for 16 April 1 week (standbye) …; (ii) Counsel and witnesses are warned to be ready to proceed on that day; (iii) Accused?? to trial.

5.1	On Monday 16 April 2007 the court record shows that the parties came before Winter, J. at 9.30am and amongst other matters it was noted that both the state and the accused ‘seek adjournment’. Then appears the following:

•	Ct offers 30th April – not suitable to State
•	Ct offers 21 May – not suitable to either Counsel
•	Ct offers 25 June – not suitable to Accused
•	Ct offers 1 July – suitable

For that date, the court record further shows:

Adjournment:

Standbye fixture for today cannot proceed as both counsel assumed preceding fixture would start. Counsel are warned that a standbye fixture is a fixture and can only be abandoned, adjourned, or vacated by the court not by counsel.

H/e as witnesses are now unavailable and as the court has fixtures for next week the fixture s/b is vacated.

Counsel were offered 30 April/2 May/25 June all unavailable. Next available date is the 1st July 20076.

Accordingly:

Orders:

(i)	Standbye fixture vacated; 
(ii)	new fixture 1st July 2007 at 10.00am; 
(iii)	final PTC 25th June at 10.00am; 
(iv)	acc?? PTC ( …) [This is unclear]

5.2	On Monday 14 May 2007 at 9.30am the matter came before Winter, J. The court record shows:

(1)	Counsel called to reconfirm this fixture on the 2nd July 2007 is a standbye to the six week case starting that same time.

(2)	It is likely that case will complete much earlier than expected and so Counsel are warned to be prepared to proceed at 3 days notice at any time in that six week period starting 2 July 2007.

(3)	Witnesses should be summonsed for that date.

5.3	On 26 June 2007 at 9.30am the matter was again before Winter, J.

(1)	Standbye fixture for 2 July vacated as listed trial will proceed on that day.

(2)	There is a chance there may be? at the end of July.

(3)	Accordingly matter will be recalled at the 16rth July 2007 9.30am and witnesses should be warned for that day.

(4)	NOAH to … [issue]. [This is unclear]

5.4	On 16 July 2007 at 9.30am before Winter, J. the following appears on the court record:

(1)	called for back-up review.
(2)	Existing case is continuing.
(3)	Orders (i) Recall on the 30/7/07 at 9.30am

 (ii) BTL
 (iii)? [This is unclear]

5.5	On 30 July 2007 at 9.30am the court record shows that the matter was to be recalled on 10 August 2007 at 9.30am.

5.6	On 10 August 2007 the matter was listed at 11.00am as a standbye callover. There is a note in the record to the effect that submissions were being made in relation to a stay or nolle prosequi and counsel ‘request one month’. Orders were made:

(i)	matter delisted from standbye; 
(ii)	for callover re disposition/nolle on the 14th September 11.00am;
(iii)	… 

5.7	Before Winter, J. on 14 September 2007 at 11.00am the court record indicates:

(1)	DPP wants to proceed.
(2)	But with an amended charge – seeks leave to file an amended charge
(3)	Orders: 

(i)	leave to amend charge granted
(ii)	adjourned for Counsel consultant and then? to the 20th September at 9.30 …

5.8	On 20 September 2007 at 9.30am, before Winter, J:

(1)	amended charges put to accused.
(2)	He understands the charges
(3)	He pleased not guilty to all charges
(4)	Orders 

(i)	File transferred to Shameem J. for call over and determination of trial Judge on the 8th October 2007 9.30 …

5.9	On 5 October 2007 at 9.30am the matter came before Shameem, J. it was noted that it was ready for a trial date. The Court noted the trial set for 11 February before a new judge … ‘only 16 of November 2007 before me’.

5.10	On 16 November 2007 at 9am the matter came before Shameem, J., the court record showing it was to be transferred to Madam Justice Scutt – 11 February for … 25th January 2008 at 9.00am in chambers for PTC.

5.11	Notes on the court record shows that the file first came to me for perusal on 13 January 2008. 

5.12	Albeit the head sheet bears the date ‘3 January 2008 at 9.30am’, the matter was listed before me in Court No. 1 on Friday 18 January 2008, when I made the following Orders:

1.	The parties file and serve a Statement of Agreed Facts on or before 28 February 2008.

2.	On or before 29 May 2008 the Court to advise Counsel of the names of the Assessors.

3.	Trial set down for the week commencing 2 June 2008 on the estimate of 5 days.

5.12	On 2 June 2008 the matter came on before me for trial and the application for stay was made.

5.13	The trial date of 2 June 2008 was set by reason of the commitments of Counsel as advised to the Court, 2 June 2008 being the first available date for both Counsel. When Counsel appeared before me on 18 January 2008, no issue was raised as to delay or the need for a speedy trial. Had it been, then I would have set the date for trial as immediately as possible taking into account only (a) the need for the parties to settle upon agreed facts; (b) notification of assessors – that is, per the orders made on 18 January 2008, but with a much shortened timespan. This could readily have been accommodated: the difficulty lay not with the court but with availability of Counsel. In the event, the statement of agreed facts was not provided to the Court by the due date of 28 February 2008. Having been raised by the Court on 2 June 2008 at the outset of the trial, the parties provided the statement at 2.00pm that day.

6.	The Present Case and Shameem v. The State

The present case is distinguishable from Shameem v. The State. 

6.1	First, however, it is necessary to affirm that the matters going to delay prior to the commencement of the trial and dealt with by Winters, J. in his decision of 23 March 2007 cannot be reagitated now. The only relevance that delays prior to 23 March 2007 can have in a fresh application (rather than an appeal against Winter, J.’s decision) is in the sense that the timeframe up to 23 March 2007 is a backdrop to the timeframe after 23 March 2007. 

6.2	That is, the delay from 23 March to 2 June 2008 cannot be considered in a vacuum, without regard to the earlier delay. However, the Court cannot now reopen the entirety of the matters dealt with by Winters, J. in the original application.

6.3	What the Court should concentrate upon in this fresh application is the period from 23 March 2007 up to 2 June 2008 and the reasons for delays during that period.

6.4	Turning now to Shameem v. The State, the two most significant points in that case were first, that there was a lack of reasons or cogent reasons provided for the delays prior to commencement of the trial, with delays there adding up to some four years from the date of first appearance of the accused, Mr Shameem, in court and his ‘not guilty’ plea. Secondly, the delays in the trial itself were of considerable significance. 

6.5	After the delays in the lead-up to the trial and the setting of the trial date, the trial began – then there were a series of adjournments some involving no further action, one involving tendering of a caution statement and bench warrants for witnesses. Further adjournments occurred for months whilst the presiding Magistrate sat elsewhere, in another court. As the Court of Appeal observed, in the course of the trial itself there were adjournments of seven months and sixteen months. Then delays occurred in the High Court in the hearing of the application for a stay.

6.6	Albeit in the present case there has been a delay between 23 March 2007 and 2 June 2008 – and this period must be addressed carefully for the purpose of considering Mr Tuiloa’s application – there can be no comparison, in my opinion, with what occurred in Shameem v. The State. 

6.7	The recitation of extracts from the court record from 23 March 2007 through to 2 June 2008 indicate in my view that Winters, J. was mindful of the need to progress the commencement of the trial with the greatest rapidity taking into account – as he was obliged to do – the High Court’s workload. This was by no means a case of ‘drift’. To the contrary. 

6.8	His Lordship set the trial on a ‘standby’ basis on a number of occasions making clear that the parties must be ‘at the ready’ for coming on for trial within the stipulated period, so soon as a trial that had been listed and was running over the relevant time concluded. In the event, this did not happen and standby dates had to be vacated on a number of occasions. However, the court record shows a regular indication by Winters, J. of the reasons for vacating the dates and his impressing upon the parties the importance of staying with dates as set or being ready for the dates so that the matter could proceed expeditiously.

6.9	There was then the difficulty that arose, and of which the parties are aware, when Winters, J. retired from the Court. Shameem, J. was unable to conduct the trial due to her involvement when she was Director of Public Prosecutions (DPP). The record shows that there was a need, in the absence of Winters, J., to await the appointment of a new judge. As the parties are also aware, and as the record shows, when he was with the Office of the DPP, His Lordship Justice Goundar (as he now is) was Prosecutor on the record and appeared on a number of occasions. Hence, his appointment to the bench did not alleviate the difficulty in securing a judge to hear this case.

6.10	As I have noted, the delay between 18 January 2008 and 2 June 2008 was not due to any inability on the part of the Court to proceed with the trial, but due to Counsel commitments. As also noted, no matter of delay was raised when the trial date was set for 2 June 2008. The absence of any objection, and the setting of the trial date at the request and taking into account Counsel commitments is relevant to the question whether or not a stay should be granted. It is for the Court to control management of proceedings. As Winters, J. made clear when the parties appeared before him on the date listed for trial after 23 March 2007 (that is, 16 April 2007 ‘standby’), it is not for Counsel to determine upon dates and ‘manage’ the Court timetable.

6.11	At the same time, Counsel for Mr Tuiloa had represented him throughout and had the matter been listed without his Counsel being in a position to appear for him, he would have been disadvantaged or could well have claimed to be so. Alternative Counsel can be found. At the same time, in my view the Court also should properly weigh this against the possible prejudice to an accused person if Counsel familiar with the case and (as here) having consistently represented the accused is confronted with a date for trial which Counsel is unable to accommodate.

7.	The Present Case and Mohammed Sharif Sahim v. The State

Insofar as Mohammed Sharif Sahim v. The State is applicable, the importance here is to focus upon the two-step process set down by the Court of Appeal:

•	Is there an unreasonable delay and breach of section 29(3) of the Constitution, taking into account prejudice as relevant but not necessary where delay is found to be otherwise oppressive in all the circumstances;

•	If there has been a breach, what is the remedy – where absence of prejudice becomes relevant?

7.1	Before moving to those two aspects, however, I return to the facts as to delay in Sahim v. The State. Again, in my opinion, it is proper to distinguish that case from the present. In Sahim v. The State, delays occurred from July 2001 to March 2003 with repeated adjournments without any recorded reason/s. The adjournments from 12 August 2003 to July 2006 occurred without reasons recorded or reasons being illness of the accused, defence counsel in the High Court, witnesses not be in having been summonsed, or absence of prosecutor or accused. In the High Court, delays were caused by failure of the Magistrates’ Court to provide the court record promptly so that the scenario was described as ‘appalling’ and demonstrating ‘the shocking failure of Fiji’s trial system’ with a ‘failure of the court to conduct the trial’.

7.2	There is certainly no reason to be sanguine about the delay from 23 March 2007 to 2 June 2008 in the present case. However, nor do the circumstances here equate with those in Sahim v. The State. There is a clear urgency in the court record kept by Winters, J. throughout the period the matter was before him. When it came before Shameem, J. she was not in a position to progress the matter more than she did, due to the lack of a judge before whom the trial could be listed. As it was, she set it down with promptitude taking into account the projected appointment of a new judge.

7.3	Nonetheless, it must be accepted that Mr Tuiloa’s trial would have better commenced before 2 June 2008 and preferably well before that date and as soon after 23 March 2007 as possible. The court record shows, however, that this is precisely what Winters, J. sought to do.

7.4	His Lordship listed it for Friday 30 March 2007 – that is, a week after his decision refusing the stay. Upon that day, it is clear that his intention was to set the matter down for trial: it was ‘stood down to 2.15pm for fixture’ – to set the trial date. The trial date was set as 16 April 2007 for one week. However, the problem was that this had to be ‘standby’ due to Winter, J.’s timetable and case commitments. On that day, however, it was the parties who ‘sought adjournment’. Then, from 30 April through to 2 July 2007 first the State, then both Counsel, then the Accused were unable to accommodate to the three dates offered by Winters, J. The fourth date offered by him – 2 July 2007 – was ‘suitable’ to the parties and Mr Tuiloa and the matter was set for trial on that date. 

7.5	Winters, J. made a clear record on the court file as to the need to vacate the set date of 16 April 2007 being that both Counsel ‘assumed preceding fixture would start’. Counsel were warned ‘that a standbye fixture is as fixture’. However, as witnesses were not available and Counsel not as it appears prepared to go ahead on that date, the Court had no option but to adjourn the matter to the next suitable date. 

7.6	Even then, the court record shows Winters, J. case managing in order to ensure that the matter could go to trial as soon as possible. Rather than wait until the set date of 2 July 2007, he had the matter called before him on 14 May 2007 to ‘reconfirm this fixture on the 2nd July 2007’. Again His Lordship ‘warned’ Counsel ‘to be prepared to proceed at 3 days notice …’ Witnesses were to be summonsed. 

7.7	Accepting for the present, however, that the delay can properly be classed as ‘unreasonable’ and a breach of section 29(3) of the Constitution:

•	Is there prejudice to Mr Tuiloa in proceeding with the trial?
•	Is the delay oppressive in all the circumstances so that prejudice is not necessarily to be shown?
•	If there is prejudice and/or oppressive delay, what is the remedy?

7.8	The most telling fact here is that there is a delay of some 15 months following the decision of Winters, J. on 23 March 2007 refusing a stay. However, this bald fact must be viewed against the matters set out above, as to the way in which the matter was handled and the reasons for the delay over that period. Similarly, the bold proposition that there is a delay of ‘almost 10 years’ must be seen against a recitation of the dates and what occurred from 1998-1999, the dates relating to the alleged offence/s. 

7.9	I then turn to the matters put forward by Counsel for Mr Tuiloa as supporting the stay as matters now stand.

7.10	It seemed to me that the matters being traversed were those matters which were raised in the application before Winters, J. 

7.11	(a)	Winters, J.’s grounds ‘lacking in merit’: Insofar as those matters listed at para 4.3 (a) above, described by Winters, J. as ‘grounds lacking in merit’, the further delay of some 15 months in my opinion does not render these grounds meritorious. Winters, J.’s assessment remains applicable. Hence, I do not consider that a stay is warranted by reference to:

•	Credibility and reliability of state witnesses (particularly Mr Brodie);
•	The Public Service Commission investigation;
•	Prejudice through adverse media publicity.

7.12	In respect of the latter, the further delay arguably makes the point even less strong, for if it were ‘stale’ back in March 2007, it will be even more stale in June 2008. I accept and apply the reasoning of Winters, J. as still applicable in respect of these matters today.

7.13	(b)	Pre-charge, police investigation & offence to trial delay: The pre-charge delay is not exacerbated by the further 15 months between 23 March 2007 and 2 June 2008. Winters, J’s assessment remains valid here. Similarly, the delay in police investigation and charge is not exacerbated by the delay between 23 March 2007 and 2 June 2008. Again, in my opinion Winters, J.’s assessment applies. In my opinion also, the delay in offence to trial is not sufficient to support a stay. Albeit 15 months more have passed and in that regard it can be argued that memories are 15 months less acute, on the other hand the witnesses have been ‘at the ready’ and aware that the trial is upcoming since they were put on the alert at least from the time Winters, J. pressed Counsel to be ready, to have their witnesses ready, to alert their witnesses to the court dates, and so on. Being ‘alert’ or ‘at the ready’ does not mean that the passage of time has no effect, but in my view being in this alerted state is likely to better maintain memory. In any event, this is a matter that will be taken into consideration and assessors will be reminded of the length of time over which witnesses have had to recall events and of the human reality of the potential fading of memory with time. I also bear in mind that in this case, a number of documents are to be put in evidence. These cannot stand on their own – they will need to be tendered through witnesses whose memories will thereby be tested. However, documents can speak for themselves and insofar as that is concerned, the issue of memory is not as pressing as it would be in cases where there is no documentary evidence and the whole of the evidence is reliant upon witnesses’ memories. I do not consider that the additional 15 months is sufficient to elevate this aspect into one which requires the grant of a stay. .

7.14	(c)	Documents & police witness absence: In my view, the further delay of 15 months between 23 March 2007 and 2 June 2008 does not affect the position vis-à-vis absence of documents and the police witness. I adopt the assessment of Winters, J. in this regard and consider it remains applicable. Now, as then, this can be a matter for Mr Tuiloa and his Counsel to consider in the running of the defence case. As Winters, J. said, the defence can make full use of Mr Brodie’s public statements denying any corrupt practices and his change of mind, and it is equally open to the defence to give evidence that Mr Tuiloa and Mr Brodie were interviewed, with documents being seized as attested to by Mr Tuiloa.

7.15	(d)	Absence of witnesses: The delay between 23 March 2007 and 2 June 2008 has effected a positive change in respect of the absence of witnesses, in that one of the witnesses noted by the defence as a reason for the stay is no longer absent. Ms Pal is on the Prosecution’s witness list and is scheduled to provide evidence from Australia by video link. Hence the delay has resulted in a positive outcome at least in this regard for Mr Tuiloa’s case.

7.16	Generally in regard to the absence of witnesses, Winters, J. addressed this in his decision of 23 March 2007. The delay between then and now does not in my opinion affect this aspect. If the absence of witnesses in Winter, J.’s assessment did not provide a basis for a stay at that time, the additional period of delay cannot give rise to a stay on that basis. Indeed, over the period the defence has had an opportunity to make further enquiries as to the whereabouts of at least some of these persons and to make arrangements for the giving of evidence whether in person or by video link if they are abroad.

7.17	I do not consider that this aspect provides a proper basis for the grant of a stay.

8.	Conclusion

In my opinion, the delay that has occurred in the coming to trial of Mr Tuiloa is not what would be wished. Indeed, most strongly the opposite is the case.

8.1	It is important for the courts to work to a plan which permits of as few delays as possible, with delays kept to a minimum, and where there are delays ensuring so far as possible that these are for cogent reasons. The record must show reasons for adjournments and as the Court of Appeal has emphasised again and again adjournments should not be granted as a matter of course. In the present case, the record is clear. It shows that delays have occurred for various reasons, as set out in above. 

8.2	On balance, it does not appear to me that Mr Tuiloa is prejudiced by the delay or that the delay is so egregious that in and of itself this bespeaks prejudice without the need for showing specific prejudice in or arising out of the matters put forward in support of the stay application.

8.3	True it is, some of the delays ought not to have occurred and it would be better all around, not only for Mr Tuiloa but for the witnesses involved and for the community had the trial gone ahead at a more rapid pace and to a more rapid timetable. 

8.4	However, the remedy is not to stay the proceedings. Rather, it is to commence the trial and to ensure that it proceeds expeditiously to a conclusion. This will better serve the interests of justice for Mr Tuiloa and the community than would the grant of a stay.

8.5	The application is refused.

Orders:

1.	Application for a stay refused.

2.	Trial to proceed on 2 June 2008.

Jocelynne A. Scutt
Judge

Suva
3 June 2008