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Nand v State [2010] FJHC 292; HAM102.2010 (11 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL MISCELLANEOUS JURISDICTION

HIGH COURT CRIMINAL MISCELLANEOUS CASE NO: HAM 102 OF 2010

BETWEEN:

SATYA NAND
APPLICANT

AND:

STATE
RESPONDENT

Counsel: Applicant - Mr. Raza
Respondent - Mr. Vodokisolomone

Date of Hearing: 27/07/2010.

Date of Ruling: 11th August, 2010.

RULING ON STAY

[1] The applicant was convicted on 18/4/2007 by the Resident Magistrate in Suva on one count of Assault Occasioning Actual Bodily Harm to one Linesh Kumar, and was given a suspended sentence and a fine of $100.00. He appealed against the said conviction and sentence, where the appeal was allowed and retrial was ordered. Appeal Judgment was delivered on 27/6/2008 by Honourable Justice Shameem and the conviction was quashed. Further it was ordered that the matter must be tried in 2008 to eliminate any further delay.

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

[3] In that he submitted that the prosecution was aware of Justice Shameems' Order and never took steps to prosecute the Applicant in year 2008 as ordered. It was submitted that the accused would not be able to have a fair trial for the reasons of delay.

[4] The chronology of events as submitted by the Applicant which was not disputed by the Respondent (State) are as follows:

Applicant was interviewed on the allegation of Assault on 30/7/ 2002.

[5] Thereafter, on 3rd August 2007 an appeal was filed against the conviction and same was heard on 20/6/2008 and Judgment delivered on 27/6/2008.

[6] Applicant was never served with any Notice of Adjourned Hearing after the decision of Appeal, but was arrested on 29/1/2010 after a lapse of 18 months when he appeared in High Court in another unrelated matter.

[7] Learned Counsel for Applicant submits that the bench warrant issued was illegal as no NOAH was served, and now the matter is listed before the Magistrates Court for Mention on 23/8/2010.

[8] Counsel for State submitted that there had been a misunderstanding on their part and the registry, as to the services of NOAH. Further Counsel submits that the delay was caused by misunderstanding of the court and the prosecution in determining what was the status of the Applicant in terms of whether a NOAH, or a bench warrant, was issued on 10/9/2008, and was executed only on 29/01/2010.

[9] State urges this court to refuse and disallow the stay application by the Applicant, and order that the matter be allowed to proceed to hearing within 60 days.

[10] In that they bring to the notice of Court to the case Mohammed Sharif Sahim vs The State Misc. Action No.: 17 of 2007, of Court of Appeal Fiji, where the Court approved the decision of High Court, that the delay was unreasonable, but instead of ordering a stay, ordered that the trial to commence within 40 days.

[11] The inherent power to stay criminal proceedings to prevent abuse of process has long been recognized in common Law. But it should only be employed in exceptional circumstances (State v Waisale Rokotuiwai HAC 009 of 1995).

[12] In case of Reena Devi v The State Crim. Misc. Case No.: HAM 17 of 2009 Justice Goundar said:

".....the right to a fair trial is protected by common Law. This right operates to safeguard against any conduct of the prosecution that amounts to an abuse of process......"

[13] In R V Oxford City J J p Smith [1982] 75 Cr App R 200, Lord Lane described such abuse of process arising where the delay by its nature, and its length, must inevitably lead to prejudice, unfairness and injustice to an accused.

[14] No doubt the Applicant is charged with a serious offence. I also bear in mind that a person who is charged with a crime should be brought to trial.

[15] Learned Counsel for Applicant submits that the charge had been hanging over
his head for over 8 years and that is a punishment in itself.

[16] In case of Apaitia Seru and another v State, Criminal Appeal No. 41 and 42 of 1996, 16th May 2003, the Court of Appeal citing the case of Bell v Director of Public Prosecutions [1988] AC 937 stated:

.....a Privy Council decision under the Jamaican Constitution recognized the accused's rights may be infringed not withstanding he is unable to point to any specific prejudice.

[17] The State making submissions urged for an order that the matter be allowed to proceed within 60 days. State further submits that the delay was caused by misunderstanding of the court and the prosecution in determining what was the status of the Applicant in terms of whether a NOAH or bench warrant was to be issued.

[18] Prosecution was well aware that no NOAH was served on accused. Further, even after the bench warrant was issued without the NOAH being served, there is no material to show that the prosecution took any effort to arrest the Applicant on the bench warrant. As no NOAH was served on accused, prosecution cannot be allowed to state that the accused should have known about the date of the case or the bench warrant had been issued.

[19] This shows the lackadaisical approach the prosecution has taken with regard to the proceedings when in appeal Justice Shameem had made order that the (re-trial) matter should be tried in 2008 to eliminate any further delay. Disobeying this order, or not showing sufficient interest to follow this order amounts to abuse of process.

[20] Hence I order that the prosecution be permanently stayed.

Priyantha Fernando
Puisne Judge

At Suva
11th August, 2010