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Gounder v State [2015] FJHC 843; HAM37.2015 (3 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

HAM NO. 37 OF 2015

BETWEEN:

1. PRAGDEESHWAR GOUNDER
2. NAUSHAD ALI
3. RIAZ ALI NUR
4. SAHAMAT ANSAR ALI
Applicants

AND:

STATE
Respondent

Counsel : Mr. D. Naidu for the Applicants
Ms. L. Latu for Respondent

Date of Hearing : 12th of October 2015
Date of Ruling : 3rd of November 2015

RULING

Introduction

1. The Applicants file this Inter-Parte Notice of Motion for stay of proceedings, seeking following orders, inter alia,
   
   1. The Criminal Proceedings in the Ba Magistrate's court case No 548 of 2012 against Pragdeeshwar Gounder, Naushad Ali and Riaz Ali Nur be stated permanently,
      
      1. The passport of the accused namely Pragdeeshwar Gounder, Naushad Ali and Riaz Ali be released forthwith,
         
2. The Notice of Motion is being supported by an affidavit of Pragdeeshwar Gounder, stating the grounds of this application. The Respondent opted not to file any affidavit, but preserved his rights to make submissions during the hearing of this motion. Accordingly, both parties were directed to file their respective written submissions, which they filed as per the direction. This Motion was then set down for hearing on the 12th of May 2015. However, the hearing was not proceeded as the counsel of the Applicant sought an adjournment. Subsequent to few more adjournments, the hearing was finally eventuated on the 12th of October 2015. The learned counsel for the Applicant and the Respondent made their respective arguments and submissions during the course of the hearing. Having carefully considered the respective submissions of the parties and affidavit of the Applicant, I now proceed to pronounce my ruling as follows.
   

Background

3. The three applicants have been jointly and separately charged with 30 counts of Fraudulently Falsification of Credit Sales Account, contrary to Section 307(1) of the Penal Code Act in the Rakiraki Magistrates court. They were initially charged with 144 counts of Fraudulently Falsification of Credit Sales Accounts, Larceny by Servant, Obtaining money by false pretense and Embezzlement under the provisions of Penal Code Act.
   
4. The hearing of the initial 144 counts was commenced before the Resident Magistrate Siddq Faizal Koya in the Tavua Magistrates Court on the 3rd of September 2009 and continued for several dates. Having called 41 witnesses, the Prosecution amended and reduces the charges to 74 counts from 144 counts. The prosecution closed its case on 15th of July 2010. The counsel for the defence then made an application for "No case to answer". Subsequently the matter was adjourned for several occasions for ruling. The learned Magistrate eventually delivered his ruling on "No case to answer" on the 22nd of June 2011. On the same day the defence chose not to call any evidence and exercised their right to remain in silence. The matter was then fixed for the judgment. The matter was once against adjourned for number of occasions for the judgment. In the meantime the learned Resident Magistrate left the bench before delivering the judgment and the matter was listed before a new Resident Magistrate. However, the new Resident Magistrate recused himself from this case and transferred the matter to the Resident Magistrate in Ba. He then allowed a trial de nova pursuant to Section 139 of the Criminal Procedure Decree. Since then the matter has been mentioning in the Magistrate court to fix a hearing date.
   

Submissions of the Parties,

5. Mr. Gounder in his affidavit stated that they were initially charged in 2005 and it has now been ten years without any finality of the charges. He deposed that some of the witnesses, who gave evidence for the prosecution in the earlier trial would have either died or migrated by now. The delay is unreasonable, which prevents the applicants to have a fair trial and present their defence effectively.
   
6. The learned counsel for the Respondent in his submissions emphasised that the delay was systemic and mainly caused by the conduct of the applicants and their counsels. The conduct of Magistrates too has contributed the delay and prosecution alone could not be blame for it.
   

The Law and Analyses

7. Having briefly discussed the chronological background of this action and the submissions of the parties, I now turn onto discuss the applicable legal principles on the issue of stay of proceedings.
   
8. Lord Lane CJ in Attorney General's reference ( No 1 of 1990) (1992) Q.B 630 at 643-644 has discussed the applicable principles for stay of proceedings on the ground of delay, where his lordship held that;
   

Stay 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 Bernnan J in Jago v District Court of New South Wales (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 then 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 action of the defendant himself, should never be the foundation for a stay,

In answering 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 word, 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 where 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 issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the power of the judge to give appropriate direction to the jury before they consider their verdict".

9. In view of the observation of Lord Lane CJ, the Applicants are required to establish not only the existence of delay but also the existence of serious prejudice due to such delay to the extent that the Applicants could not have a fair trial.
   
10. The Supreme Court of Fiji in Nalawa v State [2010] FJSC 2; CAV002.2009 ( 13 August 2010) having discussed the approaches in common law on the issue of stay of proceedings, held that;
    

The following principles may now be stated as basic to the common law;

1. Even where delay is unjustifiable a permanent stay is the exception and not the rule,
   
2. Where there is no fault on the part of the prosecution, very rarely will a stay be granted,
   
3. No stay should be granted in the absence of any serious prejudice to the defence so that no fair trial can be held, and
   
4. On the issue of prejudice, the trial court has processes which can deal with the admissibility of evidence if it can be shown there is prejudice to an accused as a result of delay.
   

11. In view of the affidavit of Mr. Gounder and the submissions of the learned counsel of the Applicant, I find that the contention of the Applicants is founded on the grounds that the delay was caused by the prosecution and many witnesses of the prosecution may have either died or migrated.
    
12. Having carefully pursued the case record in the Magistrate court and the chronology of event tendered by the learned counsel of the prosecution, I find that number of factors have contributed for this protected delay of ten years. In fact, ten years is a long and undue delay in any criminal proceedings. The lackluster attitudes and uninspiring approach of the counsel of both the parties have substantially contributed this protected delay. They have sometimes not appeared in court and have sought extension of time for taking appropriate steps in order to take the matter to its conclusion. The unacceptable generosity given by the learned Resident Magistrate in granting adjournments and not exercising his judicial authority in proper and appropriate manner in order to prevent this delay is another matter of concern in this action. Hence, the prosecution and the defence should share the responsibility for it and should not blame the other.
    
13. I now turn onto the issue of serious prejudice. The Applicants only deposed in his affidavit that the witnesses of the prosecution may have died or migrated. Apart from that, neither the Respondent nor the Applicants provided me any material evidence of the availability or non availability of the witnesses. Hence, I do not find that any serious prejudice has caused to the Applicants.
    
14. Having considered the reasons discussed above, it is my opinion that there is no exceptional circumstances to stay the proceeding of the Magistrate court's Action No 548 of 2012, (269/2005 in Rakiraki Magistrate Court). I accordingly refuse and dismiss this application for permanent stay. I further order the learned Trial Magistrate to hear and conclude the trial of this action No 548 of 2012, (269/2005 in Rakiraki Magistrate Court) within ninety days of this order.
    
15. The Deputy Registrar of the High Court is hereby ordered to serve a copy of this ruling to the Resident Magistrate in Ba.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
3rd of November 2015

Solicitors : Pillai, Naidu & Associates for Applicants
Office of the Director of Public Prosecutions