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Narayan v State [2010] FJHC 175; HAM125.2009 (25 May 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM 125 of 2009

BETWEEN:

SALVEEN SANJAY NARAYAN
Applicant

AND:

THE STATE
Respondent

Date of Hearing: 26th April 2010
Date of Decision: 25th May 2010

Counsel: Mr. V. Maharaj for Applicant
Ms S. Puamau for State

DECISION

[1] On 14 December 2005, the applicant was charged with 92 counts of obtaining money by false pretence contrary to section 309(a) of the Penal Code. His trial has been pending in the Magistrates’ Court since that date.

[2] He applies for a stay of prosecution on the ground of delay.

Factual Background

[3] The applicant is a school teacher. The allegations against him arose from incidents where he collected small amounts of monies from various students in the school he was teaching, on the pretext of taking them to a field trip in the third term of the school. Some charges relate to obtaining monies from students on the pretext of providing them assistance with their school projects.

[4] The representations were allegedly made in the first term of the school in 2005. After these incidents were reported to the police by the school principal, the applicant was transferred to another school. He was neither suspended nor terminated from his employment.

Principles
[5] The principles for stay of prosecution are settled.

[6] It has long been recognized that a court has an inherent right to prevent abuse of its process and may stay proceedings in order to do so (Connelly v DPP (1964) A.C. 1254). The circumstances in which abuse of process may arise are varied.

[7] In R v. Derby Crown Court, exp Brooks [1984] 80 Cr. App. R. 164, Sir Roger Ormrod said:

"The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of processes if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the prosecution of or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused or to genuine difficulty in effecting service."

[8] In Leweniqila v The State [2004] FJHC 209 Shameem J held that:

"In considering whether or not the delay is unreasonable, and whether it is in the public interest to grant a stay, relevant factors are the length of the delay, the reasons for the delay and the prejudice to the accused. In relation to delay, there is some delay which will lead to a presumption of prejudice (as there was in Seru and Stephens (supra)). In relation to valid reasons for delay, missing witnesses, a heavy court back-log or lack of resources are relevant. Also relevant, in relation to prejudice, is the length of any pre-trial custody, any anxiety, adverse publicity suffered by the accused and the ability of the accused to prepare his/her defence."

[9] In State v Michael Desmond Benefield (Criminal Action 1/1988), Fatiaki J considered that a delay of 7 years before a trial was listed for hearing in the High Court did not deprive the accused of a fair trial. The delay was partly caused by extradition proceedings, and partly by a shortage of judges after the coup d’etat of 1987. At page 16 of his judgment, he said:

"The defendant points generally to how a lapse of 7 years must affect the recollection of people. He does not refer to any aspect of the case which might turn critically on the recollection of witnesses such as in the case of R –v- Climo (1987) 7 NSWLR 579 at p.586. In any event memory-loss as a result of delay may be likened to a "two-edged sword" which is just as if not more likely to prejudice the prosecution which ears the burden of proof as it does the defendant."

[10] The court must weigh the interests of the accused in having a fair trial against the legitimate expectation of the community that serious crime will be prosecuted at trial. This requires the court to take into account any reasons advanced by the State for the delay in the matter being brought to trial. As Pain J held in State v. Rokotuiwai [1998] FJHC 196:

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

Delay

[11] The State has helpfully referred to a chronology of events in the Magistrates’ Court, which I adopt:

[12] The applicant’s right to a speedy trial commenced from the date he was charged. The total period from the date of charge to the date of this application is four years. Unfortunately, the application could not be heard expeditiously in the High Court due to shortages of judges following the event of 10 April 2009.

[13] As can be seen from the chronology, the post charge delay is systematic. While in the initial stages of the proceedings, the applicant contributed to some delay, he was always ready, whenever the case was listed for trial. He objected to adjournments of trial, but his objections were overruled by the learned Magistrate. To a large extent, the delay was caused by unnecessary adjournments and the failure of the Magistrates’ Court to effectively control its proceedings to avoid delay. The delay is therefore systematic.

[14] However, in order to establish a right of a stay on the basis of delay between the charge and trial, the accused has the burden of proving that the delay is so extreme that he cannot have a fair trial (Attorney-General’s Reference (No. 1 of 1990) (1991) QB 630). 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 and the prejudice must be of a kind that is incapable of being dealt by suitable directions from the trial court (Mohammed Sharif Sahim v. The State Misc. Action No. 17 of 2007). This is the test that is applied in Fiji.

Prejudice

[15] The applicant contends that he is prejudiced by the delay. In para 13 of his affidavit, he states:

"That if the matter is prolonged any further, I would be prejudiced as I intended to call 4 witnesses for my defence. The witnesses, whose names, I cannot disclose at the material time have left school and their whereabouts are not known to me now."

[16] This is not a complicated case. The prosecution case is that the applicant made promises to the complainants with no intention of fulfilling them. The prosecution says that the applicant had intention to defraud when he obtained the monies from the complainants.

[17] According to the court record, the defence has indicated to the Magistrates’ Court that the defence does not dispute the making of representations and obtaining of monies. The defence disputes the intention to defraud. The defence says that the applicant had every intention to fulfill his promises when the monies were obtained but before he could act on his representations the matter was reported to the police by the school principal and he was transferred to another school. The defence further contends that the charges disclose a future promise which is not an offence under the Penal Code.

[18] Both Counsel during their submissions agreed that this is a straight forward case with a narrow issue of intention to defraud and that the trial could be concluded within a day or two.

[19] What was the intention of the applicant at the time he made the representations, of course, is a trial issue. The trial court will have to evaluate all the evidence before making any finding on the relevant intention of the applicant.

[20] The applicant’s affidavit evidence of prejudice, without offering any particulars or relevance of the unavailable witnesses’ testimonies, is of no assistance to the court to make a finding on prejudice. This ground has not been made out at this stage.

[21] I accept the delay to be unreasonable, but, I am not satisfied that a fair trial is no longer possible due to the delay.

[22] Since there has been unreasonable delay but no prejudice shown, the proper remedy is an order that the trial of the applicant take place expeditiously.

Order

[23] The application for stay is refused.

[24] I order that the trial of the applicant be heard and concluded within sixty days from the date of this decision. If there is a failure to hold a trial within the time period ordered by this court and that the failure is no fault of the applicant or his Counsel, then the prosecution is deemed to have been stayed without any further order from this court.

Daniel Goundar
JUDGE

At Suva
25th May 2010

Solicitors:
Messrs. MC Lawyers for the Applicant
Office of the Director of Public Prosecutions for State