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Kean v State [2012] FJHC 1028; Criminal Case 136.2011 (20 April 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL [MISCELLANEOUS] JURISDICTION

HIGH COURT CASE NO: 136 OF 2011
M/C LAUTOKA NO: 140 OF 2007

BETWEEN:

GUSTON KEAN
APPLICANT

AND:

STATE
RESPONDENT

Before: Priyantha Nāwāna J.
Applicant in person
Ms Shelyn Kiran, State Counsel, for Respondent

RULING
[On an Application for Stay of Proceedings]

1. The applicant is charged before the Magistrate's Court at Lautoka for having committed the offence of 'Robbery with Violence' punishable under section 293 (1) (b) of the Penal Code. The charge was sequel to an alleged act of robbery committed by the applicant with a few others unknown to the prosecution on one Suresh Chauhan on 12 February 2007 at Lautoka. The value of the property alleged to have been robbed, totaled up to $ 39,950.00.
   
2. The case against the applicant has been pending before the Magistrate's Court from 23 February 2007, as the proceedings remained adjourned from time to time due to applications made both by the prosecution and by the applicant. Perusal of the record shows that both parties have equally been responsible for adjournments of the proceedings resulting in delay. There is nothing to indicate that any of such applications had ever been made unjustifiably. Instead, each and every application appears to have been made for the reasons recorded; and, the adjournments had been granted by the learned Magistrate upon consideration of the matters objectively at relevant points of time.
   
3. On 06 January 2011, the case was fixed for trial from 24-25 May 2011. However, as two of the prosecution witnesses were not available, the learned Magistrate vacated the hearing and adjourned the case to be mentioned on 07 June 2011.
   
4. The two absented witnesses appeared in court before the execution of the warrants, the date of which was not recorded by the learned Magistrate. It does not seem to me to be wrong to assume that the two witnesses appeared on the same date after the adjournment, as the minutes cancelling the warrants were made by the learned Magistrate under the date of 24 May 2011.
   
5. On 07 June 2011, hearing was re-fixed for 12 September 2011.
   
6. On 12 September 2011, as the matter stood ready to be taken-up for trial before the learned Magistrate, the applicant sought an adjournment of the trial on the basis of an application to the High Court to stay the proceedings. The learned Magistrate granted the adjournment.
   
7. The undated application of the applicant for 'permanent stay of the proceedings' was submitted to this court on 26 August 2011 after trial into the matter was fixed for 12 September 2011 on 07 June 2011.
   
8. The applicant in his application for permanent stay relies on:
   
   1. Post-charge delay;
   2. Inordinate delay;
   3. Abuse of process; and,
   4. Prosecutorial misconduct.
      
9. The application for permanent stay of the proceedings was inquired into by this court on 02 March 2012 having afforded opportunities for the prosecution and the applicant to file written-submissions and to make oral submissions. Both parties, having made oral submissions, relied on their written-submissions as well.
   
10. The principles governing permanent stay of proceedings are settled and uniform as expounded in R v. Derby Crown Court, ex parte Brooks [1984] 80 Cr. App. R. 164, and applied in Fiji where it was held:
    

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 process if either:

(a) the prosecution [has] manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the 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 preparation 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.

11. Power to stop a prosecution should only be used in most exceptional circumstances [Director of Public Prosecutions v Humphrys (1976) 63 Cr. App. R. 95, 107; R. v Oxford City Justices, Ex parte Smith (1982) 75 Cr. App. R. 200, 204]. The ultimate objective of the exercise of this power is to ensure that there should be a fair trial according to law, which involves fairness both to the accused and to the prosecution. Lord Diplock stated in R v SANG [1979] UKHL 3; (1979) 69 Cr. App. R. 282, 290 that:
    

...the fairness of a trial... is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. ...

12. Unless the delay has prejudiced an accused in regard to the preparation of his case, lengthy inquiries as to the reasons for the delay become unnecessary; and, court should not exercise its discretionary power of stopping a prosecution in favour of an accused in those circumstances.
    
13. Justice Byrne in Mohammed Shariff Sahim v The State [FCA Misc. Action No 17/2007; Decided on 25 March 2008], held that:
    

The correct approach of the courts [in dealing with applications for stay] must therefore be two-pronged. Firstly, is there unreasonable delay and a breach of [common law right]? In answering this question, prejudice is relevant but not necessary where the delay is found to be otherwise oppressive in all the circumstances. The second question is if there has been a breach what is the remedy? In determining the appropriate remedy, absence of prejudice becomes relevant. Where an accused person is able to be tried fairly without any impairment in the conduct of the defence, the prosecution should not be stayed. Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence.

14. Upon consideration of the matters in this case, I am unable to conclude that either of the criteria laid down in Derby's case (supra) is in favour of the applicant to allow the application for permanent stay of the proceedings. Instead, I hold, upon an examination of the grounds advanced by the applicant, that such grounds did not legitimately make the applicant entitled to stop the prosecution at a time when the case was ready to be taken-up for hearing on 12 September 2011. The applicant, in the circumstances, has only chosen to abuse the process by seeking a 'permanent stay' from this court for the collateral purpose of bringing proceedings to an abrupt end; and, has contributed to the self-same delay that he is complaining of.
    

15. Applying the above principles, I do not find merit in any of the grounds on which the application for 'stay' is founded. The application for 'permanent stay' of the prosecution is, accordingly, disallowed and dismissed. Learned Magistrate, Lautoka, is directed to conclude the hearing into this case early by affording priority.

Priyantha Nāwāna
Judge
High Court
Lautoka
20 April 2012