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Johnson v State [2010] FJHC 356; HAM177.2010 (23 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM177 of 2010

BETWEEN:

RAYMOND JOHNSON
Applicant

AND:

THE STATE
Respondent

Hearing: 18th August 2010
Ruling: 23rd August 2010

Counsel: Applicant in person
Mr. L. Fotofili for State

RULING

[1] The applicant applies for a stay of prosecution on the ground of delay. The application was filed on 17 August 2010, the day of trial.

Principles

[2] 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) AC 1254). The circumstances in which abuse of process may arise are varied. In R v Derby Crown Court, exp Brooks [1984] 80 Cr. App. R. 164, Sir Roger Ormrod identified two circumstances in which abuse of process may arise:

".... 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."

[3] In considering whether the delay is unjustifiable or unreasonable, the court must weigh a number of factors. In State v Rokotuiwai [1998] FJHC 196 Pain J identified a variety of factors to be considered, such 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."

[4] Further Pain J said:

"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 Tauranga District Court (supra) and R v B (supra)."

Applicant's Submissions

[5] The applicant filed written submissions. The submissions, in the words of the applicant, are:

"That the case has been before the court system for over 2 years now. The prosecution cannot proceed with the hearing of this matter for reasons that the complainant who are key witnesses in this case are not attending the hearing dates. Obviously it is the duty of the court to protect its process from being abused likewise to protect and safeguard the interests of the accused person. For this reason I hereby ask that the proceedings of this case be permanently stayed for the interest of justice.

Interest of the Accused

That as a result in a lapse of more than 2 years, I've lost contact with some of my witnesses. At present I have no knowledge of their whereabouts. Even if they are available and produced in court, are they still able to recall all the particular incidents that happened more than 2 years back?

The right to a fair trial

Even though our Constitution has been abrogated yet I feel under the European Convention of Human Rights this right does exist and is valid. In fact it is the duty of the court to safeguard and protect this right from being violated. In my view fair trials means today it would be most unfair that the courts adjourn the hearing of this matter to some other date. In order to protect and safeguard my right to have this matter determined within a reasonable time and the right to a fair trial I hereby ask that your court allow the proceedings of this matter be permanently stayed accordingly."

State's Response

[6] The State opposes the application. Counsel for the State filed a chronology of the proceedings to explain the delay, which I adopt:

30-06-08: The Applicant first appeared in the Nasinu Magistrate Court and elected a High Court trial. The Magistrate Court remanded the Applicant in custody and the matter was adjourned for the State to provide disclosures.

17-07-08: The Magistrate Court at Nasinu formally transferred the case to the High Court and remanded the Applicant in custody.

18-07-08: The Case was first called in the High Court whereby the Applicant appeared in custody and now represented by the late Mr. John Semisi. The Applicant applied for bail and the State sought time to reply. The matter was adjourned to 21-07-08 therefore.

21-07-08: The matter was recalled in the High Court and the State made no objection to bail. The Applicant was bailed thereafter.

01-08-08: The matter was called in the High Court and adjourned for the State to file Information and Disclosures. The Applicant was present but his counsel (who was not feeling well) was absent.

15-08-08: The State was ordered to file Information and Disclosures by the end of the day (which was completed) and the matter was adjourned to 05-09-08 for plea and to set a hearing date.

05-09-08: Counsel for the Applicant Mr. John Semisi sought further time in order for the Applicant to take his plea, despite being provided with disclosures by the State 2 weeks earlier. The matter was then adjourned to 19-09-08.

19-09-08: All parties appeared and the matter was then set for trial to commence from 21-09-09 for 2 weeks. 24-11-08 was fixed as a pretrial conference (PTC) date.

19-02-09: The Applicant appeared without his counsel (who was engaged at the Fiji Institute of Technology) and there was no reply to the draft agreed facts supplied to Mr. John Semisi. The draft agreed facts was submitted by the State to Mr. John Semisi on 16-02-09. The matter was again adjourned for PTC to 19-03-09.

19-03-09: Mr. John Semisi had not discussed the proposed agreed facts with the Applicant and sought further time to finalize this. The matter was adjourned to 18-05-09.

13-08-09: It is unclear what happened in the mention dates prior to 13-08-09 but on 13-08-09, no reply regarding the proposed agreed facts had been received by the State. The matter was adjourned to 28-08-09 for PTC.

28-08-09: The Applicant appeared in person as his counsel had passed away and stated that he will find another lawyer. Matter was adjourned to 14-09-09 to confirm legal representation.

14-09-09: The matter was further adjourned and there was no confirmation yet on whether the Applicant was going to be represented or not.

18-09-09: The matter was adjourned for the Applicant to resolve his issue of legal representation.

22-09-09: The State filed its motion and supporting affidavit to vacate the hearing date that was to have commenced from 21-09-09. The application by the State was granted. The matter was again set for trial to commence from 16-08-10 for 2 weeks. No further PTC date was fixed as the Applicant was on bail.

06-08-10: The matter was re-called in the High Court whereby the Applicant appeared in custody as he was recently charged in another matter before the High Court too HAC 138 of 2010. The Applicant advised the court that he does not have his set of disclosures and time was given to the State to provide him with another set.

09-08-10: The Applicant was provided with another full set of disclosures and further remanded for mention on 16-08-10 and for trial proper to commence on 17-08-10.

16-08-10: The State advised the court of its intention to apply for a vacation of the trial date set to commence from 17-08-10.

17-08-10: The State filed its notice of motion and supporting affidavit to have the trial adjourned at least until 24-08-10. The Applicant filed his application for stay in reply.

Whether the delay is unreasonable or unjustified?

[7] As can be seen from the chronology, the delay from the date of the charge to the date the case was scheduled for trial in August 2010 is two years. After the applicant was charged, three months were taken by the prosecution to attend to pre-trial matters such as filing information and serving disclosures. The applicant was represented by counsel and was on bail during these periods. After all pre-trial matters were concluded, the case was set for trial on 21 September 2009. On 28 August 2009, the case was called and the court was advised of the death of the applicant's counsel.

[8] On 22 September 2009, the case was called for trial. However, the trial did not commence because the prosecution applied for an adjournment on the ground that the complainants were overseas. The court granted an adjournment and set the case for trial on 16 August 2010.

[9] From the date the adjournment was granted to the date of the second trial, the delay is one year. This delay of one year is solely attributed to the prosecution because they applied for an adjournment of trial to secure attendance of the complainants from overseas. The prosecution was granted an adjournment because they showed good cause.

[10] While I accept that there is some delay caused by the prosecution, the burden lies with the applicant to prove that it is so extreme that he cannot have a fair trial (AG's Reference (No. 1 of 1990) (1991) QB 630). Stay of prosecution will only be granted on the ground of delay if there is prejudice 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).

[11] In principle the court must weigh the interests of the accused in having a fair trial against the legitimate expectation of the community that those who commit serious crime are prosecuted. When an accused is prejudiced in having a fair trial by the delay, the proceedings can be stayed if there is no alternative remedy for the prejudice.

[12] The prejudice relied on by the applicant is the unavailability of witnesses or a possibility of fade memories of available witnesses.

[13] However, the applicant has not provided particulars of his missing witnesses. Without offering the relevance of the unavailable witnesses' testimonies, I am unable to make a finding on prejudice that the applicant will suffer at trial.

[14] On 9 August 2010 when the court offered the applicant assistance to secure attendance of his witnesses, he informed the court that he will be calling four witnesses and that he does not require subpoenas. He did not suggest that his witnesses were unavailable. In this regard, there is some force in the State's submissions that the raising of the issue of unavailable witnesses so late is a recent invention by the applicant to avoid trial, albeit, I make no such finding.

[15] As far as prejudice arising from the possibility of fading memory of the available witnesses is concerned, an appropriate remedy is a direction to the assessors on the effect of delay on the witnesses' testimonies. In my view, a possibility that the witnesses' memories may have faded over a period of time alone cannot justify taking the extreme step of staying a prosecution.

[16] For the reasons given, the ground for stay has not been made out. There is nothing before the court to show that a fair trial cannot be held due to the post charge delay of two years.

Result

[17] The application for stay is refused.

Daniel Goundar
JUDGE

At Suva
23rd August 2010

Solicitors:
Applicant in person
Office of the Director of Public Prosecutions for State