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Singh v State [2010] FJHC 6; HAM095.2009 (19 January 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM 095/2009

BETWEEN:

JAMES RAVINDRA SINGH
Applicant

AND:

THE STATE
Respondent

Counsel: Applicant in person
Mr. S. Qica for State

Date of Hearing: 4th December 2009
Date of Ruling: 19th January 2010

RULING

[1] The applicant applies for a stay of prosecution on the ground of actual prejudice arising from post charge delay. The actual prejudice alleged by the applicant is that his alibi witnesses are unavailable. His trial is pending in the Magistrates’ Court. The charges are:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

JAMES RAVINDRA SINGH s/o David Ram Singh with others on the 7th day of April 2007 at Nasinu in the Central Division, robbed PRAVEEN CHAND s/o Rohan Shiri Chand of cash $FD9,500.00, $AUD700.00, $NZD25.00, 2 gold bracelets valued $4,600.00, 1 gold chain with pendant valued $1,800.00, 2 gold rings and 1 diamond ring valued $350.00 all to the total value of $18,175.00 and immediately before such robbery used personal violence on the said PRAVEEN CHAND s/o Rohan Shiri Chand.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

JAMES RAVINDRA SINGH s/o David Ram Singh with others on the 7th day of April 2007 at Nasinu in the Central Division robbed SHARDA DEVI d/o Suresh Lal of 1 Nokia mobile phone valued $250.00, 4 pairs gold bangles valued $3,000.00, 5 pairs earrings valued $400.00, 4 pairs necklaces valued $7,000.00, 3 gold chains valued $3,200.00, 1 mangal sutra with pendant valued $1,200.00 and 1 pearl necklace set valued $900.00 all to the total value of $19,550.00 and immediately before such robbery threatened to use personal violence on the said SHARDA DEVI d/o Suresh Lal.

[2] The applicant appeared for arraignment on 16 April 2007 and pleaded not guilty to the charges. After eight adjournments, the case was set for trial on 19 June 2008.

[3] On 19 June 2008, the prosecution withdrew the charges because the complainants failed to appear for the hearing. The applicant was discharged under section 201(2) (b) (ii) of the Criminal Procedure Code. At the time the applicant was a serving prisoner in an unrelated case. Subsequently he pleaded guilty in other pending cases against him and is due to be released from prison in 2011. He contends that his ability to locate his witnesses is impaired by his incarceration.

[4] Following the withdrawal of the charges, the prosecutor contacted the complainants. The complainants indicated to the prosecutor their willingness to proceed with the case.

[5] The prosecutor then directed the police to re-charge the applicant. A discharge under section 202(2) (b) (ii) is not a bar to subsequent proceedings on the same charges.

[6] On 20 June 2008, the prosecutor forwarded the docket to the police to re-charge the applicant.

[7] According to the affidavit of Inspector Rajesh Maharaj, that on 30th June 2008, the investigating officer was instructed to re-charge the applicant. The investigating officer did not comply with this instruction and on 6 March 2009, another police officer, was instructed to re-charge the applicant.

[8] On 28 July 2009, the applicant was re-charged. The charges were filed in court on 4 August 2009. On 20 October 2009, the applicant filed an application for stay.

[9] The post charge delay starts from 14 April 2007, when the applicant was first arrested and charged. The delay from 14 April 2007 to the date the application for stay was made is 2½ years.

[10] It has long been recognized that a court has an inherent power to prevent abuse of process and may stay proceedings. The power applies equally in criminal cases. In England, there are two broad categories of cases in which the power to stay criminal proceedings are recognized: those in which the prosecutor can be said to have maintained or misused the rules of procedure and those in which there has been inordinate and excusable delay which has actually prejudiced the accused (R v Derby Crown, ex p Brooks [1984] 80 Cr App R 164).

[11] In Jonacani Nacagi v. State Criminal Misc. Case No. HAM 23 of 2009, this Court said the relevant questions to be answered are:

1. Is there a breach of right to be tried within a reasonable time?
   
2. Whether the breach could be remedied by an appropriate remedy without recourse to stay of the proceedings, unless the hearing would be unfair or it would be unfair to try the accused at all?
   

[12] What is unreasonable delay depends on a number of factors such as the length of the delay, waiver of time periods, the reasons for the delay, actions of the accused, actions of the prosecution and limits on institutional resources? This list is not exhaustive and other factors can be relevant depending on the circumstances of each case.

[13] The delay in this case can neither be attributed to the applicant nor the court. The delay was caused by the prosecution. The prosecution offered no explanation why the complainants were not present for the trial, causing it to be aborted and the charges withdrawn. Secondly, after discharge, the applicant was not re-charged until after a delay of thirteen months. The explanation offered by the prosecution for the delay in not re-charging the applicant is unsatisfactory.

[14] Mr. Qica for the State accepts that some responsibility for the delay lie with the prosecution but submits that they have not acted in bad faith. I accept that there is no evidence of bad faith on behalf of the prosecution, but negligence on behalf of the prosecution can also cause injustice to an accused. The question is, despite the inordinate delay, whether the applicant could be tried fairly.

[15] The prosecution case is that the alleged robberies took place on 7 April 2007 at around 2pm. There is no direct evidence of the applicant’s involvement in the robberies. The prosecution case against the applicant is based on circumstantial evidence of stolen property found in his possession. In his caution interview, the applicant told the police that at the time of the alleged robberies he was sleeping in his van at a BBQ stall in 9 miles. The stall is owned by one Khan. He says that the cook and the security officer at the stall could confirm his alibi but due to the delay he cannot locate them.

[16] If this was a case where there was some evidence of the applicant being directly involved in the alleged offences, then the evidence of alibi would have been highly relevant to his defence. But that is not the case here. The prosecution case is entirely based on the doctrine of recent possession. When asked to offer an explanation for the alleged stolen property found in his possession, the applicant in his caution interview offered no explanation. The real question at the trial will be whether the evidence of recent possession proves guilt beyond a reasonable doubt taking into account the applicant’s evidence of alibi contained in his caution interview. The applicant is not handicapped by the delay to offer an explanation for the stolen property allegedly found in his possession at the trial, if he so wishes.

[17] Based on these reasons, I am satisfied that the applicant can be tried fairly despite the delay. Considerable weight can be given to the delay in sentencing, if the applicant is convicted of the charges.

[18] The application for stay is refused. The case is remitted to the Magistrates’ Court with an order that the applicant’s trial be held within forty days from the date of this ruling.

Daniel Goundar
Judge

At Suva
19th January 2010