IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No : HAC 12 of 2005

BETWEEN:

THE STATE

AND:

IMTIAZ ALI
PENIASI TUILASELASE
ALEX RAJENDRA PRASAD
ROHIT CHAND

Counsel: Mr. N. Nand for the State
1st, 2nd and 3rd Accused in Person
Mr. H.A. Shah for 4th Accused

Date of Hearing: Tuesday 19th February, 2008
Date of Ruling: Thursday 20th March, 2008 

RULING

[1]	This is an application for stay of proceedings. 

[2]	On 12th November 2004, the applicants appeared in the Magistrates’ Court at Sigatoka on the following charges:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap.17.

Particulars of Offence
IMTIAZ ALI s/o Mubarak Ali, PENIASI TUILASELASE, ALEX RAJENDRA PRASAD s/o Ram Sundar and ROHIT CHAND s/o Saras Chand with others on the 9th day of November, 2004 at Sigatoka town in the Western Division, robbed GANESH MUNI CHANDRA s/o Hari Chandra of cash $11,307.65, cheques $580,632.61 and Foreign Currencies $1,624.00 to the total of $593,563.26 and immediately before such robbery used personal violence on the said GANESH MUNI CHANDRA, the property of Tappoos Limited.

SECOND COUNT

Statement of Offence
UNLAWFUL USE OF MOTOR VEHICLE:	Contrary to section 292 of Penal Code, Cap. 17.

Particulars of Offence
ALEX RAJENDRA PRASAD s/o Ram Sundar and PENIASI TUILASELASE with others, on the 9th day of November, 2004 at Sigatoka town in the Western Division unlawfully and without the colour of right but not to be guilty of stealing took to their own use motor vehicle registration number DP 920 the property of Tappoos Limited.

[3]	After a few adjournments in the Magistrates’ Court, the matter was transferred to the High Court for trial. On 20th May 2005, the applicants made their first appearances in the High Court at Lautoka. Govind J who is a full time judge based in Lautoka recused himself from hearing the matter because he knows the complainant. The matter was transferred to Connors J. 

[4]	I adopt the chronology provided by the State.

Date 	Adjournments 	
20/5/2005	3/06/05 for mention	
3/6/2005	7/6/05 for mention to be heard by Connors J, B/wt – Acc.2	
7/6/2005	Hearing on 21/6/2005 @ 9.30am	
21/6/2005	Hearing on 01/07/2005 @ 9.30am, Information to be filed	
28/6/2005	Breach Bail Cond., Mention on 01/07/2005, remanded	
1/7/2005	Acc.7 discharged, Acc.2 P.G., the rest P.N.G., Acc.2 Sentence on 04/07/2005, - Remanded, 01/09/05 @ 9.00am for mention for Acc. 1,3,4,5,6.	
04/07/2005	Convicted of each Offence – 9 yrs and 6 months	
1/9/2005	6/10/05 for mention @ 9.30am	
4/10/2005	Trial 20/3/2006 @ 9.30am, 16/11/2005 for mention at 9am	
16/11/2005	16/01/2006 for mention only	
16/1/2006	27/02/2006 for mention only	
27/2/2006	26/04/2006 for mention, all accused say it is O.K. if tried in Suva	
26/4/2006	23/06/2006 for mention, B/wt for Acc.5 cancelled 	
23/6/06	Trial 6/11/2006 – 2 wks, 4/8/2006 for mention only	
8/4/2006	05/10/2006 for mention only	
5/10/2006	18/10/2006 for mention @ 9.30am	
18/10/2006	6/11/2006 for Trial, 19/10/06 [Peniasi] for mention	
19/10/2006	2/11/2006 for mention, remanded	
2/11/2006	3/11/2006 @ 11.30am for mention	
3/11/2006	6/11/06 @ 9.30am for Trial	
6/11/2006	7/11/06 @ 9.30am for mention as cell book not located. Hg date vacated	
7/11/2006	Hg date vacated, 1/12/2006 for mention, cell book located but station diary still missing	
1/12/2006	26/1/2007 for mention	
26/1/2007	27/4/2007 for mention	
27/4/2007	27/6/2007 to fix Hearing date. Judge Govind cannot hear the case as he is closely associated with Tappoos thus arrange for another Judge	
27/6/2007	Voir dire for Acc. 1,3,4. Acc.2 challenging on grounds of delay. Hearing set on 26/09/2007, 27/8/2007 for mention only	
17/8/2007	27/8/2007 for mention and PTC. File may need to go to Mataitoga J.	
27/8/2007	7/9/2007 for mention only before Mataitoga J	
7/9/2007	26/9/2007 for mention only	
26/9/2007	26/10/2007 Trial date to be fixed, all ready for trial	
26/10/2007	2/11/2007 before Goundar J for Hearing to be set	
2/11/2007	16/11/2007 @ 9.30am to fix Hearing date, State to comply with the remaining disc. Requested by 15/11/2007	
16/11/2007	Stood down for Mr. Shah to appear. 10.50 Ms. Lidise for State. Hearing 19/02/2008 @ 9.30am – 2 wks. PTC on 6/12/2007. Stay application to be heard on 6/12/07 @ 9.30am. Application in reply filed by 6/12/07.	
6/12/2007	7/12/2007 for mention only	
7/12/2007	18/01/2008 Hearing of stay application. Trial 19/2/2008.	
18/01/2008	30/01/2008 Hearing of stay application, file submissions by 29/01/2008	
30/01/2008	NOAH for mention on 18/02/2008 for Goundar J.	

[5]	The matter was listed for trial on two occasions. The first hearing date of 6th November 2006 was reluctantly vacated by Connors J on the application by the prosecution. The reason for the vacation of the second hearing date of 26th September 2007 is not clear from the record. Subsequently, Connors J left the bench.

[6]	The matter has now come before me. I have set the matter for hearing on 12th May 2008.

[7]	The accused persons are seeking relief for alleged breach of their Constitutional right to be tried within reasonable time. They also contend that they will not receive a fair trial because some exhibits, namely, station diary, cell book, medical reports, money recovered by police are missing and certain prosecution witnesses are unavailable.

[8]	Mr. Shah, counsel for the 4th accused, on behalf of the other three accused persons, has made helpful submissions and referred to the following authorities: Mosheem Khan v DPP & AG, Criminal Appeal No. HAA 113 of 2004L; State v Armugam & Ors, Criminal Case No. HAC 0013 of 1998L; Ambika Prasad & Viliame Boladuadua, Miscellaneous No. HAM 037 of 2004L; and The State v Ajipote Koroi & Peniasi Lee, Criminal Case No. HAC 003 of 1999L.

[9]	The counsel for the State opposes the application. Mr. Nand submits the delay is not unreasonable and the missing exhibits or witnesses are only prejudicial to the prosecution case, and a fair trial is still possible.

[10]	The applicants allege post charge delay. 

[11]	The leading authority on the post charge delay is Seru & Stephens v The State, Criminal Appeal No. AAU0041 of 1999S and Criminal Appeal No. AAU0042 of 1999S.

[12]	In Seru, the Court of Appeal adopted the relevant considerations enunciated by the Supreme Court of Canada in R v Morin [1992] Cr (4th) 1. The relevant considerations are:

•	The length of delay;
•	Waiver of time periods;
•	The reasons for the delay; and
•	Prejudice to the accused. 

[13]	Seru held that an accused does not necessarily have to show actual prejudice in order to enjoy the Constitutional right to be tried within reasonable trial. Presumptive prejudice will suffice if there has been a systematic delay. In Seru, there was systematic delay of more than 4 years from the date of the charge.

[14]	Following the decision in Seru, the trial courts have been more readily staying criminal proceedings on the ground of presumptive prejudice to the accused where there has been a systematic delay. 

[15]	In Visanti Makarava v State, Action HAM 008 of 2003, a delay of 6 years and 2 months was held to be unreasonable and presumptively prejudicial to the accused.

[16]	In State v Armugam & Ors, Action No. HAC013 of 1998L, the proceedings were stayed because of a delay of 7 years.

[17]	In Prasad & Anr v The State, Miscellaneous Action No. HBM037 of 2004, the charges were stayed because of a delay of 11 years which was held to be presumptively prejudicial to the accused persons.

[18]	In State v Koroi & Lee, Criminal Case No. HAC 0003, a delay of 5 years and 9 months was held to be presumptively prejudicial to the accused persons and a breach of their Constitutional right to be tried within a reasonable time.

[19]	Similarly, in Mosheem Khan v DPP & AG, Criminal Appeal No. HAA 113 of 2004L, 5 years post charge delay was held to be presumptively prejudicial to the accused and the proceedings against him were stayed.

[20]	The State relies on the decision of the Supreme Court in Jonetani Rokua v The State, Criminal Appeal No. CAV001 of 2006S.

[21]	In Rokua (supra), there was a post charge delay of 3 years and 3 months before he was tried. The accused could not point out to any specific prejudice but relied on the decision in Seru to assert breach of his Constitutional right to be tried within a reasonable time. The State justified the delay on the grounds of lack of resources, particularly in the Lautoka High Court during the said period.

[22]	The Supreme Court said:

"Section 29(3) of the Constitution expressly imports the criterion of reasonableness. Regard must be had, in construing the word "reasonableness", to the resources available in this country to the administration of justice. Otherwise, the consequences may be chaotic and the harm to the general community incalculable".

[23]	By the date of hearing of the trial, the length of delay is 3 years and 5 months. The length of delay in the present case is almost the same as in Rokua.

[24]	The delay is attributed neither to the accused persons or the prosecution albeit the prosecution was responsible for the vacation of the first hearing date. The delay is systematic. The question is whether there has been a breach of the Constitutional right to be tried within a reasonable time.

[25]	One of the clearest expositions on the right to a reasonably expeditious trial was by the Privy Council in Boolell v the State (Mauritius) [2006] UKPC 46 (16 October 2006), when their Lordships said:

(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.

[26]	Boolell is a very persuasive decision because Mauritius has a similar Constitutional right to a reasonably expeditious trial as in Fiji. There is also an issue whether the decision in Seru should be revisited in light of the decision in Boolell. However, that is a matter for the higher courts. As the law stands now, Seru is a binding decision on this Court. 

[27]	Apart from the missing exhibits, the applicants were not able to point to any specific prejudice to their defence. In that regard, I accept the State’s submissions that it is the prosecution that carry the burden to prove the guilt beyond reasonable doubt and the missing exhibits are only prejudicial to the prosecution case and not the defence. The prosecution case against the 1st, 3rd and 4th accused is primarily based on their caution statements to the police while the case against the 2nd accused is based on the doctrine of recent possession. 

[28]	I am satisfied that the missing exhibits will not prejudice the applicants to receive a fair trial. 

[29]	The length of delay has not reached to a trigging point of presumptive prejudice to the applicants. I find the delay is not unreasonable. I am satisfied there is no breach of the applicants’ Constitutional right to be tried within reasonable time. 

[30]	The application to stay the proceedings is refused. The hearing of the trial is to proceed on 12th May 2008. 

Daniel Goundar
JUDGE

At Lautoka
Thursday 20th March, 2008

Solicitors:
Office of the Director of Public Prosecutions, Lautoka for the State
In Person for 1st, 2nd and 3rd Accused
H.A. Shah, Lawyers, Lautoka for the 4th Accused