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Nacagi v State [2011] FJHC 598; HAM064.2011 (26 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HAM 064 OF 2011

BETWEEN:

JONACANI NACAGI
Applicant

AND:

STATE
Respondent

Mr. S. Babitu for the State
Applicant in Person

Date of Hearing: 15th September 2011
Date of Ruling: 26th September 2011

RULING
[Application for Stay]

[1] The applicant makes an application for permanent stay of proceedings against him in the Lautoka Magistrate's Court (Case No. 655 of 2006) on the grounds of delay.

[2] The applicant is charged below with one charge of Robbery with Violence contrary to Section 293(1) (b) of the Penal Code; one charge of Unlawful use of Motor Vehicle, contrary to Section 292 of the Penal Code, one charge of Obtaining Credit by false pretence contrary to Section 310 of the Penal Code and one charge of Resisting Arrest contrary to Section 247(b) of the Penal Code. He was initially charged with one other co-accused and he first appeared in the Court below on the 17th November, 2006. The delay therefore is four years and ten months.

[3] The legal principles governing stay of proceedings because of delay in this jurisdiction have been well and comprehensively dealt with in rulings from the High Court over the last few years. Goundar J. in Jonacani Nacagi HAM 23 of 2009 canvassed the case law in Fiji, New Zealand and England in considerable detail and from those cases distilled the following three principles:

(i) Is there a breach of right to be tried within a reasonable time.

(ii) If the case is not heard within a reasonable time, regardless of the accused being prejudiced or not due to the delay, there is a breach of right.

(iii) Whether the breach could be remedied by an appropriate remedy without recourse to stay of proceedings, unless the hearing would be unfair or it would be unfair to try the accused at all.

[4] It is accepted now that stay will only be granted in the most exceptional circumstances, and that an enquiry into the conduct of the parties is very relevant. As Lord Bingham said in Dyer v Watson [2002] UKPCDI:

"A defendant cannot properly complain of delay of which he is the author. But procedural time wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively."

It is helpful therefore to examine the chronology of proceedings in the Magistrate Court.

[5] Both the applicant and his co-accused appeared in the Magistrates Court in November and December 2006. A plea was entered on 18 December 2006 and there were then delays while the applicant sought legal aid. Legal aid issues dominated proceedings throughout 2007 until the 1st January 2008 when legal aid Counsel informed the Court that legal aid had been approved. After that the applicant's co-accused entered a plea of guilty and the following appearances focused on his sentence. A trial date was eventually set for the 20th May 2008 when the applicant did not appear. In fact, the next 12 occasions the case was called in Court the applicant made no appearance. The police prosecution informed the Court that they were experiencing problems with service of production orders on the applicant, who was at the time a serving prisoner. In early 2009, the applicant was released from prison and still did not appear for his case, bench warrants being issued and notices of hearing issued. He next appeared in Court on the 5th February 2011. A hearing date has now been fixed for the 4th October, 2011.

[6] It is quite apparent from the record that none of the delays were the fault of the prosecution. They were ready to go to trial as early as the 20th May 2008 but the accused was not produced. It is not the fault of the applicant that he was not produced over a long period of more than 18 months; it was caused by systemic failure. That being so, it does not absolve him for not appearing after he was released from prison. He made no efforts to contact the Court or Police, he knowing full well that the case was afoot.

[7] In the circumstances, I do not find that the delay is exceptional, nor do I find that he has suffered injustice at the hands of the prosecution. A very large part of these delays, when not systematic, are the fault of the applicant himself.

[8] A hearing date has now been set for the 4th October, a date just over a week from now and the applicant will therefore see justice done to his case then.

[9] The application for stay of proceedings is refused.

Paul K. Madigan
JUDGE

At Lautoka
26th September 2011