IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 202 OF 2014

BETWEEN:

SAULA MALATOLU
Applicant

AND:

STATE
Respondent

Counsel: Applicant in Person 
Ms. S. Kiran for Respondent 

Date of Hearing: 26 March 2015 
Date of Ruling: 30 March 2015

RULING

1.	This is an application for permanent stay of proceedings.

2.	The Applicant was charged before the Magistrate Court of Lautoka with others on one count of Robbery with Violence. 

3.	This is the Applicant's 2nd application for permanent stay of proceedings. In the first application (HAM 432 of 2013), this Court directed the learned Magistrate to give priority to this case and conclude this matter within 3 months from 19.5.2014. Further, both parties were requested to co-operate with the learned Magistrate to conclude this matter within that time frame.
 
4.	Since then the Voir-dire ruling was given on 6th October 2014. Then the Complainant had made an application to withdraw the complaint. The DPP had now decided to proceed with the case. The Magistrate who gave the voir-dire ruling is now transferred. The case to be mentioned on 30.4.2015 before the new Magistrate to fix for hearing.

5.	This application was filed on 22.8.2014 on the following grounds:

(i)	That the learned trial Magistrate failed to conclude the matter within the 3 months as ordered by the High Court

(ii)	That the learned trial Magistrate failed to comply with the directive given to him by the High Court

(iii)	That the state counsel was unable to provide necessary documents to the Applicant which was the main cause of the delay beginning from 21st July to 13th August when the voir-dire hearing commenced

(iv)	That the matter has been drifting in Courts since January 2009. Thus a delay of 5 years to date and still to continue undoubtedly questions the provisions of the Constitution Section 14 (2) (g).

6.	State had filed written submissions. I have carefully considered those.

7.	The principles for stay of prosecution are settled in Fiji. In Mohammed Sharif Sahim v. State[2007] FCA 17/07, the Court of Appeal when reviewing the law on criminal trial delay held that:

"…it was well settled since Apaitia Seru and Anthony Fredrick Stevens v. The State Crim. App. AAU 0041/42 of 1995 S that where the delay was unreasonable, prejudice to the accused could be presumed. This court in that case adopted the approach of the majority of the Supreme Court of Canada in R v. Morgan [1992] 1SCR and New Zealand court of appeal in Martin v. District Court at Tauranga [1995] 2 NZLR 419 that stated:

"The general approach to a determination as to whether the right has been denied is not the application of a mathematical or administrative formula bur rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay. As I noted in Smith (R v Smith (1989) 52 CCC (3D) 97), (I)t is axiomatic that some delay is inevitable. The question is, at which point does the delay become unreasonable? ...While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

(i)	The length of delay
(ii)	Waiver of time periods
(iii)	The reasons for the delay, including

(a)	Inherent time requirements of the case;
(b)	Actions of the accused;
(c)	Actions of the Crown;
(d)	Limits on institutional resources, and
(e)	Other reasons for the delay, and

(iv)	Prejudice to the accused."

8.	In Johnson v State [2010] FJHC 356;HAM 177.2010 (23 August 2010), Hon. Mr. Justice D. Goundar stated:

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

"…It may be abuse of process 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 had 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."

9.	His lordship further quoted Justice Pain's remarks from State v Rokotuiwai [1998] FJHC 196 identifying the factors which needs to be considered in deciding whether delay is reasonable or not:

".. 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."

10.	Hon. Mr. Justice Paul Madigan in Tafizal Rahiman v State [2011] FJHC 298 at paragraph 7 stated that:

"The facts to be considered when assessing whether delay is unreasonable or not are expounded in the Privy Council decision in Flowers v The Queen [2007] WLR 2396. The board held that the Court should take into account:

(i)	The length of delay;
(ii)	The reason for delay;
(iii)	Whether or not the defendant has asserted his rights to a speedy trial; and
(iv)	The extent of prejudice."

Stay in this case was refused even though the delay was 5 years because they were not brought to court which was a system failure and not an unreasonable delay.

11.	The learned Magistrate had complied with the direction given by this Court and had concluded the voir-dire inquiry. When the case was to be taken up for trial the Complainant had made an application to withdraw the case. That was considered by the DPP and decision had been taken to proceed with the trial. Now the case is before a new Magistrate who could hear and conclude this matter without delay.
 
12.	In Nalawa v State CAV 0002/09 (13 August 2010) the Supreme Court of Fiji laid down the following principles may now be stated as basic to common law.

"(i) even where delay is unjustifiable a permanent stay is the exception and not the rule
(ii) where there is no fault on the part of prosecution, very rarely will a stay be granted.
(iii) No stay should be granted in the absence of any serious prejudice to the defence so that no fair trial can be held and;
(v)	On the issue of prejudice, the trial court has process which can deal with the admissibility of evidence if it can be shown there is prejudice to an accused as a result of delay

13.	The Applicant had failed to show on balance of probabilities that due to delay he would suffer serious prejudice to the extent that no trial could be held. 

14.	A stay proceeding is an exceptional remedy, and will only be used if other remedies are not available to deal with the justice of the case. Considering all above, the delay in this case is not unreasonable. 

15.	Applying the above principles, I do not find merit in any of the grounds on which the application for stay is founded. The case is to be mentioned on 30.4.2015 in the Magistrate Court. The application for permanent stay of the prosecution is, accordingly, disallowed and dismissed.

16.	Considering the date of filing of the charge, I direct the learned Magistrate to give priority to this case and conclude this matter within 3 months from 30.4.2015. Further, I request both parties to co-operate with the learned Magistrate to conclude this matter within that time frame. 

17.	Copy of this ruling to be sent to the learned Magistrate.

Sudharshana De Silva
JUDGE

At Lautoka 
30th March 2015 

Solicitors: Applicant in Person 
Office of the Director of Public Prosecutions for Respondent