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Sorovanalagi v State [2011] FJHC 460; HAM119.2011 (23 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL MISCELLANEOUS NO: HAM 119 OF 2011

BETWEEN:

ALIPATE SOROVANALAGI
APPLICANT

AND:

STATE
RESPONDENT

Counsel: Applicant in Person
Mr. Y. Prasad for Respondent

Date of Hearing: 02 August 2011

Date of Ruling: 23 August 2011

RULING

[1] The applicant, Alipate Sorovanalagi, is charged with the offences of Robbery with Violence and Unlawful Use of Motor Vehicle in the Magistrate's Court at Nausori.

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

[3] Applicant submitted that the offence was alleged to have been committed on the 26th April, 2004 and that the prosecution has not brought the case to hearing up to now.

[4] Therefore the applicant is urging the Court to stay proceedings or to order a quick hearing date in the Magistrates Court.

[5] Applicant further submitted that he was late to Court only on 5 days and he was not present in Court only on 3 hearing dates. He also submitted that his main witness was his mother and that she passed away. He further submitted that this case has been delayed for about 7 years and that the quality of the witnesses recollection of what happened is questionable.

[6] The chronology of the events in the Magistrates Court as submitted by the applicant is as follows:

28. April 04 – Filed
    

1. 28 April 04 – File Charge

2. 12 May 04 – Mention. Accused 1 Present, Accused 2 Present, Accused 3 Present, Accused 4 Present [with Mr Simione of Nawaikula & Co.).

3. 26 May 04 – Mention. Accused 1 Present [With Mr Qereqeretabua], Accused 2 Present, Accused 3 Present [with Mr Qereqeretabua], Accused 4 Present.

4. 9 June 04 – Mention. Accused 1 Present [with Mr Qereqeretabua], Accused 2 Present, Accused 3 Present [with Mr Qereqeretabua], Accused 4 present.

5. 22 July 04 – Mention. Accused Absent, Accused 2 Present, Accused 3 Present, Accused 4 Absent. Later at 10.00 am Accused 1 Present, Accused 4 Present – Bench Warrant Cancelled.

6. 6 Sept.04 – Mention. Accused 1 Present, Accused 2 Present, Accused 3 Present, Accused 4 Present.

7. 21 Sept.04 – Mention. Accused 1 Present, Accused 2 Present [with Mr Qereqeretabua, Accused 3 Absent, Accused 4 Present [with Mr Nawaikula withdraws].

8. 5 October 04 – Mention Accused 3 [arrested on bench warrant].

9. 29 November 04 – Mention. Accused 1 Absent, Accused 2 Absent

[Mr. Qereqeretabua], Accused 3 Absent, Accused 4 Present. Later at 10.45 am – Accused 1 Present [bench warrant cancelled].

10. 7 February 05 – Mention. Accused 1 Absent [bench warrant issued], Accused 2 Present [Mr. Ram Chandra], Accused 3 Absent [bench warrant issued],

Accused 4 absent [bench warrant issued].

Later Accused 1 Present, Accused 2 Present, Accused 3 Present.

11. 7 March 05 – Mention Accused 1 Present, Accused 2 Absent, Accused 3 Present, Accused 4 Present.

12. 30 March 05 – Mention. Accused 1 Present, Accused 2 Absent, Accused 3 Present, Accused 4 Present.

13. 24 May 05 – Mention. Accused 1 Present, Accused 2 Absent, Accused 3 Absent, Accused 4 Absent, bench warrant to Accused 2,3,4.

Later at 10.30 am Accused 3 and 4 present & bench warrant cancelled for Accused 3 & 4.

14. 4 July 05 – Mention – Accused 1 Present, Accused 2 Absent, Accused 3 Absent, Accused 4 Present, bench warrant to Accused 2 and 3.

15. 6 July 05 – Mention. Accused 3 Present, Accused bench warrant cancelled.

16. 1st August 05 – Mention. Accused 1 Absent, Accused 2 Absent, Accused 3 Absent, Accused 4 Present, Nadi bench warrant to Accused 1,2,3.

17. 5 August 05 – Accused 3 Present bench warrant cancelled 13/9/05 Hearing.

18. 13 Sept.05 – Hearing. Accused 1 Present, Accused 2 Absent, Accused 3 Present, Accused 4 Absent, bench warrant to cancel for Accused 1 & 3, bench warrant to cancel for Accused 2 & 4.

19. 22 Nov. 05 – Hearing. Accused 1 Absent, Accused 2 Absent, Accused 3 Present [Mr Iqbal Khan], Accused 4 Absent.

Later at 10.30 am: Accused 1 Present, bench warrant cancelled.

20. 22 Dec.05 – Mention. Accused 1 Absent, Accused 2 Absent, Accused 3 Present, Accused 4 Absent.

Later at 11.00 am: Accused 1 Present.

21. 21.3.06 – Hearing. Accused 1 Absent, Accused 2 Absent, Accused 3 Absent, Accused 4 Absent, bench warrant to Accused 1, 2, 3 & 4.

Later at 10.30am: Accused 1 Present, Accused 3 Present [bench warrant cancelled] Accused 2 & 4 Absent.

22. 22.5.06 – Mention. Accused 1 Present, Accused 2 Absent, Accused 3 Absent, Accused 4 Absent.

23. 24.5.06 – Accused 3 Present.

24. 20.6.06 – Mention. Accused 1 Present, Accused 2 Absent, Accused 3 Present, Accused 4 Absent.

25. 22 August 06 – Hearing. Accused 1 Present, Accused 2 Absent, Accused 3 Present, Accused 4 Absent.

26. 4 Sept.06 – Mention. Accused 1 Present, Accused 2 Absent, Accused 3 Present, Accused 4 Absent.

27. 1 Nov. 06 – Hearing. Accused 1 Absent, Accused 2 Absent, Accused 3 Present, Accused 4 Absent.

28. 30 Nov. 06 – Mention. Accused 1 Present, Accused 2 Non appearance, Accused 3 Present, Accused 4 Non Appearance.

29. 8 Jan 07 – Mention. Accused 1 Present, Accused 2 Non Appearance, Accused 3 Present, Accused 4 non Appearance.

30. 13 March 07 – Hearing. Accused 1 Present, Accused 2 Non Appearance, Accused 3 Non Appearance, Accused 4 Non Appearance.

31. 16 April 07 – Mention. Accused 1 Present, Accused 2 Discharged, Accused 3 Non Appearance, Accused 4 Discharged.

32. 11 July 07 – Hearing. Accused 1 Present, Accused 2 Discharged, Accused 3 Non Appearance, Accused 4 Discharged.

33. 13 Sept.07 – Hearing. Accused 1 Non Appearance, Accused 2 Dealt with, Accused 3 [Present Mr Maraiwai for Mr Iqbal Khan] Accused 4 Dealt with. Later at 11 am: Accused 1 Non Appearance, Accused 2 dealt with, Accused 4 Mr Maraiwai for Mr Iqbal Khan, Accused 4 dealt with.

34. 1 October 07 – Mention. Accused 1 Present, Accused 2 Dealt with, Accused 3 Present, Accused 4 Dealt with.

35. 22 Oct. -7 – Mention. Accused 1 Present, Accused 2 dealt with, Accused 3 Present, Accused 4 dealt with.

36. 5 Nov. 07 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

37. 22 Nov.07 – Mention. Accused 1 Not present, Accused 2 D/W, Accused 3 Not present, Accused 4 D/W.

Later 10.00am: Accused 1 and Accused 3 Present.

38. 7 Jan.08 – Mention. Accused 1 Present, Accused 2 Dealt with, Accused 3 Present, Accused 4 Dealt with.

39. 27 March 08 – Hearing Accused 1 Present, Accused 2 Dealt with, Accused 3 Present, Accused 4 Dealt with.

40. 14.4.08 – Mention. Accused 1 Present, Accused 2 D/W, Accused 3 Not Present, Accused 4 D/W.

41. 15/4/08 – Accused 3 Present on bench warrant.

42. 24 April 08 – Mention. Accused 1 5/5/08, Accused 2 DW, Accused 3 bailed by the High Court to appear in Nausori on 5/5/08, Accused 4 DW.

43. 5/5/08 – Mention. Accused 1 Present, Accused 2 DW. Accused 3 Present, Accused 4 DW.

44. 2/6/08 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

45. 9/6/08 - Mention. Accused 1 Absent, Accused 2 DW, Accused 3 Absent, Accused 4 DW. Later 9.30 am: Accused 1 Present, Accused 3 Present.

46. 7/7/08 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

47. 14/7/08 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

48. 12/11/08 – Hearing. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

49. 5/1/09 – Mention. Accused 1 Present, Accused 2 Dealt with, Accused 3 Present, Accused 4 Dealt with.

50. 19/1/09 – Mention. Accused 1 Present, Accused 2 Not Present, Accused 3 Present, Accused 4 Not Present.

51. 16 – 17/4/09 – Hearing. Accused 1 Present, Accused 2 Not Present, Accused 3 Present, Accused 4 Not Present.

52. 4/5/09 - MENTION.

53. 12/6/09 – Mention. Accused 1 Present, Accused 2 Not Present, Accused 3 Present, Accused 4 Not Present.

54. 31/08/09 – Mention – Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

55. 7/9/09 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

56. 14 – 15/12/09 – Hearing. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

57. 8/6/10 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

58. 5/7/10 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

59. 23/7/10 – Accused 1 Present, Accused 2 Not Present, Accused 3 Present, Accused 4 Not Present.

60. 25/8/10 – Mention. Accused 1 Present, Accused 2 Not Present, Accused 3 present, Accused 4 Not present.

61. 8/11/10 – Mention. Accused 1 Present, Accused 2 Present, Accused 3 Present, Accused 4.

62. 11/2/11 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Not present, Accused 4 DW.

63. 11/4/11 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

64. 30/5/11 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

65. 14/6/11 – Mention. Accused 1 Present, Accused 2 DW, Accused 3 Present, Accused 4 DW.

66. 22/7/11 – MENTION.

The Law on stay proceeding is settled

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".

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

In the case of Director of Public Prosecutions v Jackaran Tokai and others (Trinidad and Tobago) [1996] (12th June 1996) Privy Council Appeal No.53 of 1995 (Judgment delivered on 12th June, 1996).

Their Lordships said:

"However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions [1964] A.C.1254,1304, that:

'generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it'.

Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J. in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23.

In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a Permanent Stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict."

[7] When peruse the chronology of events in this case, it is noted that most delays were caused by one or the other of the accused persons not attending court on numbers of days where bench warrant was issued on them.

[8] Applicant has failed to show that the prosecution has manipulated or misused the powers of Court so as to deprive the applicant of a protection provided by law or to take unfair advantage of a technicality.

[9] Although the applicant says that his main witness, his mother passed away, he has not mentioned what her evidence was going to be and how would it cause prejudice in his defense.

[10] The Magistrate would ensure that he would give careful consideration to all the relevant factual issues arising from the delay when considering the evidence.

[11] I find that no prejudice would cause to the applicant due to the delay caused already, and that the applicant can be tried fairly.

[12] However considering the delay I direct the Magistrate to hear and determine this case expeditiously.

[13] Application for permanent stay is refused.

Dated at Suva this 23rd day of August 2011.

Priyantha Fernando
JUDGE