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Chetty v State [2025] FJHC 271; HAM 10 of 2025 (9 May 2025)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


MISCELLANEOUS CASE NO: HAM 10 of 2025
[CONSOLIDATED WITH MISCELLANEOUS CASE NO: HAM 23 of 2025]


1. SANJEEV CHETTY
2. KEVIN KARNESH KUMAR


V


STATE


Counsel : Ms. Arthi Swamy for the 1st Applicant
Mr. Salvin Nand for the 2nd Applicant
Ms. Rukalesi Uce with Ms. Saini Naibe for the Respondent


Date of Hearing : 11 April 2025
Date of Ruling : 9 May 2025


RULING


Introduction

[1] This is an application made by the two Applicants for a permanent stay of the criminal proceedings instituted against them in the Magistrate’s Court of Nadi. The 1st Applicant is the 2nd Accused; while the 2nd Applicant is the 1st Accused in Nadi Magistrate’s Court Criminal Case No: 899 of 2018.

[2] It must be stated at the very outset that proceedings were initially instituted against the 1st Applicant (2nd Accused) under Nadi Magistrate’s Court Criminal Case No: 899 of 2018; and proceedings were initially instituted against the 2nd Applicant (1st Accused) under Nadi Magistrate’s Court Criminal Case No: 907 of 2018. Subsequently, the two matters had been consolidated with the case number remaining as Nadi Magistrate’s Court Criminal Case No: 899 of 2018.

[3] As per the Consolidated Charge filed by the Director of Public Prosecutions (DPP) in the substantive matter, the two Applicants are charged with one count of Money Laundering, contrary to Section 69(2) (a) and (3) (a) of the Proceeds of Crimes Act No. 27 of 1997 (Proceeds of Crimes Act), as amended by the Proceeds of Crimes (Amendment) Act No. 7 of 2005 and Proceeds of Crimes (Amendment) Act No. 61 of 2012.

The full details of the Consolidated Charge reads as follows:

Statement of Offence

MONEY LAUNDERING: Contrary to Section 69(2)(a) and (3)(a) of the Proceeds of Crimes Act 1997, as amended by the Proceeds of Crimes (Amendment) Act 7 of 2005 and Proceeds of Crimes (Amendment) Act 61 of 2012.

Particulars of Offence

KEVIN KARNESH KUMAR & SANJEEV CHETTY, between the 27th day of October 2015 and 15th day of December 2017, at Nadi, in the Western Division, engaged directly or indirectly in transactions involving $241,955.05 FJD that were the proceeds of crime knowing or ought to have reasonably known that the money is derived from some form of criminal activity.

[4] On 28 January 2025, the 1st Applicant, Sanjeev Chetty, filed a Notice of Motion, seeking the following Orders from this Court:

(a) That the hearing of the Applicant’s/Accused’s Criminal Case No. 899 of 2018 at Magistrate’s Court, Nadi be permanently stayed.

(b) That the time of service of this Motion be abridged.

[5] The Notice of Motion is supported by an Affidavit deposed to by the 1st Applicant on the 27 January 2025. The 1st Applicant states that the application is made in terms of Sections 15(1), 15(3) and 44 of the Constitution of the Republic of Fiji 2013 (Constitution) and pursuant to the Inherent Jurisdiction of Court.

[6] The said application bearing Criminal Miscellaneous Case No. HAM 10 of 2025, was first called in Court on 5 February 2025. Having heard Counsel on behalf of the 1st Applicant and Counsel on behalf of the State, this Court was of the opinion that a temporary stay of proceedings of this matter was necessary until the final determination of this permanent stay application. A temporary stay of proceedings would prevent any prejudice that may be caused to the 1st Applicant. Accordingly, this Court made order temporarily staying the proceedings in Magistrate’s Court, Nadi, Criminal Case No. 899 of 2018, until the final determination of the permanent stay application filed before this Court. Court fixed the matter for 10 February 2025 for mention and further orders.

[7] Subsequently, on 7 February 2025, the 2nd Applicant, Kevin Karnesh Kumar, filed a Notice of Motion, seeking the following Orders from this Court:

(a) That the hearing of the Applicant’s/Accused’s Criminal Case No. 899 of 2018 at Magistrate’s Court, Nadi be permanently stayed.

(b) That the time of service of this Motion be abridged.

[8] The Notice of Motion is supported by an Affidavit deposed to by the 2nd Applicant on the same day. The 2nd Applicant states that the application is made in terms of Sections 15(1) and 44 of the Constitution and pursuant to the Inherent Jurisdiction of Court.

[9] The said application bearing Criminal Miscellaneous Case No. HAM 23 of 2025, was first called in Court on 10 February 2025. Since the 2nd Applicant was charged jointly with the 1st Applicant, an application was made by the parties to consolidate Criminal Miscellaneous Case No. HAM 23 of 2025, together with Criminal Miscellaneous Case No. HAM 10 of 2025. The application for consolidation was permitted by this Court. This Court made order that the consolidated case number would remain as Criminal Miscellaneous Case No. HAM 10 of 2025.

The Affidavit of Sanjeev Chetty in Support of his Notice of Motion

[10] In the Affidavit in Support of his Notice of Motion the 1st Applicant, inter-alia, deposes as follows:

  1. THAT he is jointly charged with Kevin Karnesh Kumar for the offence of Money Laundering, contrary to Section 69(2) (a) and (3) (a) of the Proceeds of Crimes Act, as amended by the Proceeds of Crimes (Amendment) Act No. 7 of 2005 and Proceeds of Crimes (Amendment) Act No. 61 of 2012.
  2. THAT he first appeared in the Nadi Magistrate’s Court on 31 July 2018 and pleaded not guilty to the charge against him and since then his matter has been pending before the Nadi Magistrate’s Court.
  3. THAT his matter has not been heard since the last 7 years from the time of the filing of Charge Sheet.
  4. THAT he has suffered mentally as a result of many appearances in Court and continues to suffer. That the delay has adversely affected the lives of his family members including his children.
  5. THAT his family has moved to Australia for his wife’s and children’s educational purposes and he cannot travel to visit them. Due to the pending matter, he cannot leave the country to reside with his family in Australia. He has annexed to the Affidavit marked as Exhibit A – copies of the letters of Offer and Acceptance, dated 2 November 2023, for his two children Kashvi Aarshi Chetty and Kapish Ram Chetty, to pursue higher studies in Australia. He has also annexed to the Affidavit marked as Exhibit B – copies of the student’s Visas (granted on 30 April 2024) for his wife Geetika Vikashni Reddy and his two children Kashvi Aarshi Chetty and Kapish Ram Chetty.
  6. THAT on 14 July 2020, the Respondent advised the Court that they will not rely on his Caution Interview and that they will only rely on the Charge Statement made by him. Thereafter, on 20 August 2020, his Solicitors filed the Grounds for Voir Dire challenging the Charge Statement. A copy of the Voir Dire Grounds is annexed to the Affidavit as Exhibit C.
  7. THAT his Solicitors also made representations to the Respondent (Office of the DPP) to reconsider their position regarding the charge against him. A copy of the representation made to the Office of the DPP on 30 August 2022, is annexed to the Affidavit as Exhibit D.
  8. THAT from 2020 till 2022, the matter was adjourned on several occasions due to the fact that the Respondent was considering the representations made by him.
  9. THAT sometime in the year 2022, the Respondent advised the Nadi Magistrate’s Court and his Solicitors that they do not agree with the representations made by him and that the State will proceed against him and will be relying on his Charge Statement.
  10. THAT thereafter, the Respondent provided the disclosures in respect of himself and his co-accused and the matter was listed for mention to fix a hearing date. All this time, the Respondent did not make any initiative to have the matter dealt with quickly.
  11. THAT thereafter, on 24 May 2023, the Respondent advised the Court that they do not intend to rely on his Charge Statement and that they will only proceed with the Voir Dire Hearing against the 1st Accused (2nd Applicant). This hearing proceeded and Ruling was delivered on 26 May 2023. A copy of the Ruling made by Resident Magistrate Mr. J. M. Boseiwaqa is annexed to the Affidavit as Exhibit E.
  12. THAT thereafter, the matter was set for trial proper on 28 November 2024.
  13. THAT on 28 November 2024, the Respondent made an application before the Court to vacate the trial date on the basis that they are now changing their previous position and that they wish to rely on the Charge Statement made by him. A copy of his Charge Statement is annexed to the Affidavit as Exhibit F.
  14. THAT by the conduct of the Respondent, the matter has been further delayed and has caused further prejudice to him.
  15. THAT the matter has been pending in the Magistrate’s Court of Nadi for the past 7 years and that the Respondent is still not able to decide on their conduct of the matter and what actions they wish to take to finalize the matter within a reasonable time. The Respondent has been changing their stance on the issue of admissibility of his Charge Statement, due to which the matter has been delayed over the years and that he has been suffering due to the said delay.
  16. THAT he verily believes that the memory of most of the witnesses may be adversely affected due to the delay of 7 years. He understands that the allegation against him is a serious one. Hence, he believes that proper evidence would be required from the witnesses.
  17. THAT he has been advised that most of the defence witnesses have either migrated and/or have passed away. These include Gary Snodgrass, who was General Manager during his employment at Musket Cove Resort. Since the said Gary Snodgrass was on a work permit visa, he has now returned to his country and the deponent has no knowledge of his current whereabouts. Another witness Ansul Ameet Prasad has now passed away.
  18. THAT the above witnesses were his work colleagues and had all the knowledge of his dealings with the complaint company.
  19. THAT a crucial Prosecution witness, Carol Ann Smith, who was the Director of the Company at the relevant time had passed away. He submits that her evidence would have assisted his defence.
  20. THAT due to the non-availability or migration of the said witnesses, this trial cannot proceed as it would not assist him in the preparation of his defence.
  21. THAT in the absence of the above mentioned witnesses, namely Gary Snodgrass, Carol Ann Smith and Ansul Ameet Prasad, he will not be able to have a fair trial and that this will cause a substantial miscarriage of justice to him.
  22. THAT this matter commenced in 2018, which is over 7 years now, and as such it would be difficult for him to prepare for his defence. He states that he finds it very difficult to have a recollection of the events which transpired over 7 years ago as his memory has faded with the passage of time.
  23. He reiterates that he will not be able to have a fair trial in terms of Section 15 (1) of the Constitution due to the non-availability of the aforesaid witnesses.
  24. He further states that since the matter has not been concluded for over 7 years, it is contrary to Section 15 (3) of the Constitution which stipulates that every person charged with an offence has the right to have the case determined within a reasonable time.
  25. For the aforesaid reasons, the 1st Applicant urges that the criminal proceedings instituted against him in the Magistrate’s Court of Nadi be permanently stayed.

The Affidavit of Kevin Karnesh Kumar in Support of his Notice of Motion

[11] In the Affidavit in Support of his Notice of Motion the 2nd Applicant, inter-alia, deposes as follows:

  1. THAT he is making this application for a permanent stay of proceedings on the grounds that his right to a fair trial within a reasonable time, as guaranteed under Section 14(2)(g) of the Constitution has been infringed.
  2. THAT he is jointly charged with Sanjeev Chetty for the offence of Money Laundering, contrary to Section 69(2) (a) and (3) (a) of the Proceeds of Crimes Act, as amended by the Proceeds of Crimes (Amendment) Act No. 7 of 2005 and Proceeds of Crimes (Amendment) Act No. 61 of 2012.
  3. THAT he has been attending all Court appearances since his initial Court appearance dated 31 July 2018. He states that since then he has been attending to Court regularly on all scheduled Court dates and has consistently expressed his readiness for trial. No trial date had been fixed in this matter until the 6 and 7 February 2025. However, on that day, the Respondent was not ready and the matter was adjourned to 31 March 2025.
  4. THAT the matter has not been heard for the past 7 years since the filing of the Charge Sheet.
  5. THAT the primary cause for the delays is the Prosecution’s failure to complete the Voir Dire Hearing of the 1st Applicant (2nd Accused). The DPP has repeatedly adjourned proceedings due to unpreparedness, logistical failures or unavailability of witnesses/resources.
  6. THAT the Prosecution’s inability to proceed with the Voir Dire Hearing of the 1st Applicant (2nd Accused) has rendered his case stagnant, as the Court insists on joint proceedings.
  7. THAT he through his Counsel has completed his Voir Dire Hearing and that the DPP states they are not going to rely on the Caution Interview, only when the Court is about to fix the hearing date.
  8. THAT the prolonged delay in the conclusion of the proceedings, has caused him significant prejudice, including psychological and emotional distress due to unresolved charges hanging over him for years.
  9. THAT the unresolved allegations have harmed his standing in the community and his professional life.
  10. THAT he may fail in presenting a full defence due to evidence in the matter being lost, witness’s memories having faded and key witnesses who no longer may be available.
  11. THAT the delay is the result of the Prosecution’s failure to advance the case. He submits that he has acted diligently and co-operated with the Court at all times.
  12. THAT he has been advised by his Counsel that under the provisions of Section 14(2)(g) of the Constitution, he has the right to begin the trial and conclude it without unreasonable delay.
  13. THAT on many occasions his Counsel formally requested the DPP to expedite the Voir Dire Hearing for the 1st Applicant (2nd Accused) and fix a trial date. Unfortunately, these requests were ignored or met with indefinite postponements.
  14. THAT no valid justification has been provided by the DPP for the failure to proceed in the matter.
  15. THAT a permanent stay of proceedings is the only appropriate remedy to prevent further abuse of process and to protect his Constitutional rights.
  16. THAT continuing the proceedings would irreparably undermine public confidence in the administration of justice.
  17. Accordingly, the 2nd Applicant urges Court to grant orders in terms of the Notice of Motion filed.

[12] Despite of time being granted to the State, the State failed to file any Affidavits in Opposition to the Affidavits in Support of the Notices of Motion filed by the 1st Applicant or the 2nd Applicant.

The Hearing

[13] This application was taken up for hearing before me on 11 April 2025. Counsel for both the Applicants and the State were heard. All parties also filed comprehensive written submissions, and referred to case authorities, which I have had the benefit of perusing.

Legal Provisions

[14] Stay of proceedings in a criminal trial is a legal remedy which has its origins in the common law jurisdiction as an extension of the inherent power of the Court to control its proceedings and thereby ensuring a fair trial to both the prosecution and the defence. Its common law origins can be traced back to the case of Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301, where Lord Morris stated:

”There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of process and to defeat any attempted thwarting of its process....”

[15] The term “abuse of process” used in this judgment has been further elaborated on by the subsequent authorities to identify and demarcate two specific areas of concern. 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."

[16] It is accepted law in Fiji that the High Court has the inherent jurisdiction to stay proceedings following common law tradition. In State v Waisale Rokotuiwai [1998] FJHC 196; HAC 09d of 1995S (21 August 1998); Justice D.B. Pain held as follows;

“It is submitted that this Court has inherent power to make any order to prevent an abuse of its process and this includes an order for permanent stay. That power will be exercised to protect the accused from oppression and prejudice but its scope is not limited to those considerations. The Court has a duty to secure a fair trial for an accused. Allied to this is a need to protect the integrity and reputation of the judicial system and administration of justice. Infringement of these requirements are proper considerations for the Court in deciding whether a trial should be terminated.”

.....................

“I accept that this Court has inherent jurisdiction to prevent abuse of its process in criminal proceedings. Concurrent with that is a duty (confirmed in the Constitution) to ensure that an accused receives a fair trial. This is made abundantly clear in the cases cited by counsel. The ultimate sanction is the discretion invested in the Court to grant a permanent stay. However, such a stay “should only be employed in exceptional circumstances”. (Attorney-General’s Reference (No.1) of 1990 [1992] Q.B. 630, endorsed by the Privy Council in George Tan Soon Gin v Judge Cameron & Anor [1992] 2 AC 205.”

[17] This position was further reiterated in Ratu Inoke Takiveikata and 9 others v State [2008] FJHC 315; HAM 39 of 2008 (12 November 2008); where Justice Andrew Bruce held that;

“It is common ground that the High Court of Fiji, being a superior court of record, has an inherent jurisdiction to stay proceedings which are determined by the Court to be an abuse of the process of the court. Generally speaking, the circumstances in which this court might consider the imposition of a stay of proceedings are:


“(1) Circumstances are such that a fair trial of the proceedings cannot be had; or

(2) There has been conduct established on the part of the executive which is so wrong that it would be an affront to the conscience of the court to allow proceedings brought against that background to proceed."


[18] It was further held in this case that the burden of proof in such instances is on the Applicant and the standard of proof which must be attained is proof to the civil standard (on a balance of probabilities).

“Before a stay of proceedings could be considered, there must be a factual basis for that consideration. It is common ground that the accused bear the burden of proof of establishing the facts which might justify the intervention of this court by way of stay proceedings. It is also common ground that the standard of proof which must be attained is proof to the civil standard. The facts must be established by evidence which is admissible under the law.”


[19] This position was followed by Justice Priyantha Fernando in the cases of Bavoro v State [2011] FJHC 235; HAM 236 of 2010 (27 April 2011); and Salauca v State [2012] FJHC 959; HAM 6 of 2012 (20 March 2012).


[20] In the case of Ganesh Chand v FICAC; HAM 65 of 2016 (16 December 2016) (Unreported); His Lordship Justice Achala Wengappuli made reference to the following cases from New Zealand and Australia, which dealt with stay of proceedings and the doctrine of abuse of process as follows:

“In Moevao v Department of Labour [1980] 1 NZLR 464, the New Zealand Court of Appeal offered a further clarification to the applicability of the doctrine of abuse of process at p. 470 ;

“....it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of”.

“In the neighbouring Australian jurisdiction, another dimension was added to the considerations that are to be taken into account, when granting a stay of proceedings with the pronouncement of the judgment in Jago v. The District Court of New South Wales [[1989] HCA 46; 1989] 168 CLR 23. The High Court of Australia held:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences..."

“In the same judgment the term "abuse of process" received additional treatment by the High Court as it was held:

"An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amount to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process".

[21] It was held by Justice Fernando in the case of Tuisolia v Director of Public Prosecutions [2010] FJHC 254; HAM 125 of 2010; HAC 19 of 2010 (19 July 2010); that an example of a circumstance where the process of a criminal trial will be incapable of serving the purpose it is intended to serve would be where the proceedings are such that "they can clearly be seen to be foredoomed to fail" following Walton v Gardiner [1933] 177 CLR 378.

[22] However, Justice Wengappuli stated in Ganesh Chand v FICAC (supra) “Although the Courts would grant a stay in proceedings where it can clearly be seen that the prosecution is foredoomed to fail, a weak case for prosecution need not be stayed.” He quoted Lord Justice Brooke who said in Ebrahim, R (on the application of) v Feltham Magistrate's Court [2001] EWHC Admin 130, at 133 that:

"It must be remembered that it is a commonplace in criminal trials for a defendant to rely on "holes" in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his. "

[23] His Lordship Justice Wengappuli further stated in Ganesh Chand v FICAC (supra): “In a rare but deserving situation, even if a strong case is available to the prosecution, Courts have intervened and stayed prosecutions.” His Lordship cited State v Sat Narayan Pal [2008] FJCA 117; [2009] 1 LRC 164 (8 February 2008); as one such instance. In that case, the Court of Appeal followed the judgement of R v Horseferry Road Magistrates' Court, ex p Bennett [1993] 3 LRC 94, where the House of Lords clearly laid down the criterion for such intervention when it held that;

“... it was unconscionable for the courts to allow a prosecution, however well substantiated, to go ahead in circumstances where gross breaches or a gross breach of fundamental rights and the system of justice had occurred.”

[24] However, it must be reiterated that, it is common factor in all jurisdictions to have considerations limiting the granting of stays. In R v Jewitt 1985 CanLII 47 (SCC), the Supreme Court of Canada held that the power to stay criminal proceedings should be exercised only in clearest cases where compelling an accused to stand trial would undermine the community’s sense of fair trial and decency and to prevent the abuse of a Court’s process through oppressive or vexatious proceedings (As per Justice Wengappuli in Ganesh Chand v FICAC (supra)).

[25] His Lordship Justice Madigan in Karunaratne v State [2015] FJHC 849; HAM 150.2015 (4 November 2015) held:

“[10] Stay of Proceedings in criminal matters is granted in the rarest of circumstances where there has been undue delay in bringing proceedings against a party, or alternatively where there is undue delay in the conduct of proceedings already brought. Additionally and more importantly it is an inherent power of the High Court in cases of clear and obvious miscarriages of justice and/or abuse of process cases.

[11] To bring such an application before this Court is in itself an abuse of process. While this Court does have supervisory powers over proceedings in a lower Court, it will not intervene in proceedings already in train below, merely on the submission that the charge cannot be made out. The accused (the applicant herein) has the right to challenge the charge in a submission of no case at the end of the prosecution case and should he not succeed in such an application then he has the right to appeal in accordance with our appellate rules and legislation.

[12] It would be wrong for this Court to stay proceedings in the absence of delay and abuse of process, given that the accused/applicant has perfectly legitimate alternative avenues of redress and this court refuses to do so.

[13] The application for stay on the grounds of abuse of process is dismissed.”

[26] In the case of (Ronald Rakesh) Nand & 2 Others v State [2016] FJHC 272; HAM 171.2015 (15 April 2016); His Lordship Justice Aluthge held that even a 10 years delay in the conclusion of the case, given the circumstances of that particular case, was not an abuse of process, and refused an application for permanent stay of the proceedings in the Magistrate’s Court of Lautoka.

[27] This Court has previously outlined the principles relating to permanent stay applications in (Mohammed) Samshood v State [2021] FJHC 226; HAM 04.2021 (27 May 2021); and (Bradley Robert) Dawson v State [2024] FJHC 573; HAM 205.2024 (25 September 2024). In both the said cases the granting of a permanent stay of the proceedings was refused.

[28] Section 15 (1) of the Constitution provides that: “Every person charged with an offence has the right to a fair trial before a court of law.”

[29] Section 15 (3) of the Constitution stipulates that: “Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time.”

[30] In addition, in terms of Section 14(2) (g) of the Constitution: “Every person charged with an offence has the right- to have the trial begin and conclude without unreasonable delay.”

Analysis

[31] It is trite law that the High Court of Fiji, being a Superior Court of Record, has an inherent jurisdiction to stay proceedings which are determined by the Court to be an abuse of the process of the Court. Generally, the grounds on which a stay of proceedings maybe granted is where a fair trial cannot be guaranteed or where there has been conduct established on the part of the Prosecution which is so wrong that it would be an affront to the conscience of the Court to allow proceedings brought against that background to proceed.

[32] The primary basis on which the two Applicants have filed this application for permanent stay of the proceedings in the Magistrate’s Court of Nadi, is that there has been a delay of nearly 7 years and as such a fair trial cannot be guaranteed to them.

[33] For this Court to grant a stay of proceedings on the basis of delay, this Court has to be satisfied that the delay is unreasonable or unjustifiable. It has been held that stay of proceedings in criminal matters is granted in the rarest of circumstances where there has been undue delay in bringing proceedings against a party, or alternatively where there is undue delay in the conduct of proceedings already brought.

[34] To decide on this factor, it is imperative for this Court to go into the chronology of events which took place in the Magistrate’s Court of Nadi. The chronology of events can be determined from the Magistrate’s Court Case Record.

[35] The 1st Applicant was first produced in the Nadi Magistrate’s Court on 30 July 2018 and was granted bail on the following day [This was for the charge of Theft, contrary to Section 291 (1) of the Crimes Act No. 44 of 2009 (Crimes Act)]. The 2nd Applicant was first produced in the Magistrate’s Court on 31 July 2018.

[36] On 14 May 2019, the DPP had indicated to Court that they intend to consolidate the 1st Applicant’s case with that of the 2nd Applicant. On 19 July 2019, the DPP had moved to file Consolidated Charge Sheet in respect of the two Applicants and moved that the matter be transferred to the High Court. However, on 10 December 2019, the Consolidated Charge Sheet had been filed in the Magistrate’s Court of Nadi. The two Applicants were charged with one count of Money Laundering.

[37] On 13 March 2020, the charge had been put to both Applicants and they had pleaded not guilty to the charge.

[38] It should be mentioned that on seven occasions between the 30 July 2018 and 13 March 2020, the matter had to be adjourned due to the non-availability of the Resident Magistrate [Namely on 12 December 2018, 11 March 2019, 28 June 2019, 15 July 2019, 11 October 2019, 23 January 2020 and 20 February 2020]. Furthermore, on 27 March 2020 and 26 May 2020, the matter had to be adjourned due to the Court’s not functioning as a result of COVID 19.

[39] On 3 July 2020, the Counsel for the 1st Applicant (2nd Accused) had submitted to Court that they seek an adjournment since the Counsel wish to withdraw from the case. However, on the next day, 14 July 2020, the Counsel had submitted that they will not be withdrawing as Counsel for the 1st Applicant. Since the DPP had informed Court that they would not be relying on the Caution Interview Statement made by the 1st Applicant, but only the Charge Statement made by him, Counsel sought time to file Voir Dire Grounds challenging the Charge Statement made by the 1st Applicant. It is also recorded on the 14 July 2020, that the Counsel for the 2nd Applicant (1st Accused) have already filed their Voir Dire Grounds.

[40] On 18 September 2020, the Counsel for the 1st Applicant had been granted further time (until 25 September 2020) to file their Voir Dire Grounds.

[41] On 16 October 2020, it is recorded that the State had filed and served Voir Dire Disclosures on the Defence and the matter had been adjourned for 18 December 2020. However, the matter had not been called on the said day. Instead the matter had been called on 21 December 2020 and adjourned to 17 February 2021, due to Tropical Cyclone Yasa.

[42] On 17 February 2021, the matter was fixed for the 22 June 2021 for Voir Dire Hearing.

[43] However, the Voir Dire Hearing could not take place on the scheduled date due to the Court’s not functioning as a result of COVID 19. The matter had been refixed for 17 August 2021. However, even on the said day the matter had to be adjourned due to the same reason.

[44] On 1 February 2022, the matter had been refixed for trial for the 11 August 2022 (should be for Voir Dire Hearing). However, on 11 August 2022, the Trial had to be vacated since Counsel for the 1st Applicant (2nd Accused) had informed that they had just received partial disclosures for the Voir Dire. The matter had then been adjourned to 30 September 2022 for mention.

[45] On 30 August 2022, representations had been made by the Counsel for the 1st Applicant to the Office of the DPP to reconsider their position regarding the charge against him. A copy of the representation made to the Office of the DPP on 30 August 2022, is annexed to the Affidavit filed by the 1st Applicant as Exhibit D.

[46] Therefore, it is factually incorrect for the 1st Applicant to state in his Affidavit that from 2020 till 2022, the matter was adjourned on several occasions due to the fact that the Respondent was considering the representations made by him. It is clear that the representations to the ODPP was made by the 1st Applicant only on 30 August 2022.

[47] On 30 September 2022, the matter had been fixed for 2 December 2022 for Voir Dire Hearing. The Counsel for the 1st Applicant had submitted to Court that they are awaiting the DPP’s response in respect of the representation made.

[48] However, on 2 December 2022, it is recorded that the Learned Resident Magistrate is attending a Conference and therefore the matter was adjourned to 17 January 2023. On 17 January 2023, the Resident Magistrate was on leave and therefore the matter was adjourned to 15 February 2023.

[49] On 15 February 2023, the Learned Resident Magistrate had refixed the matter for the 24 May 2023 for Voir Dire Hearing.

[50] On 24 May 2023, the Learned State Counsel had informed Court that the DPP would not be relying on the Charge Statement made by 1st Applicant. As such, the matter had proceeded for Voir Dire Hearing in respect of the Caution Interview Statement made by the 2nd Applicant. Further Voir Dire Hearing had been fixed for 26 May 2023.

[51] However, on 26 May 2023, the further hearing could not continue. This was due to the fact that the Court had to rule on an objection raised by the Counsel for the 2nd Applicant Mr. Nand. During the cross-examination of the first Prosecution witness, Mr. Nand had noticed that one Police Officer (Sergeant Sharan-the Prosecutor) was recording the proceedings without the leave of Court. He had immediately raised his objection to this and asked the Court to dismiss the Voir Dire Hearing as this was prejudicial to the 2nd Applicant’s case.

[52] The Learned Resident Magistrate had made his Ruling on the 26 May 2023. He had made order for the Prosecutor to delete the recording forthwith in the presence of the Court Clerk. He had made further order for the Defence to continue with the cross-examination of the first Prosecution witness. The matter had been adjourned for 13 June 2023.

[53] It has been erroneously stated by the 1st Applicant in his Affidavit that the Voir Dire Hearing had proceeded and Ruling was delivered on 26 May 2023. The copy of the Ruling made by the Resident Magistrate, which is annexed to the Affidavit as Exhibit E, is in fact the Ruling made by him in respect of the objection taken up by Mr. Nand.

[54] Further Voir Dire Hearing had continued on 13 June 2023 and the Hearing had been concluded on the said day. The parties had been granted 21 days to file their written submissions and the matter had been adjourned to the 18 August 2023.

[55] The matter had been called on 18 August 2023. It is recorded that the 2nd Applicant (1st Accused) had filed written submissions on that day. The matter had then been adjourned to 11 October 2023.

[56] On 11 October 2023, Counsel for the State had submitted that the Prosecution will rely on the Court Record (and will not be filing any written submissions). The matter had then been adjourned for Voir Dire Ruling.

[57] After many days of adjournment, the Voir Dire Ruling had been delivered on 26 July 2024. The Learned Resident Magistrate had held that the Caution Interview Statement made by the 2nd Applicant was inadmissible. The matter had then been adjourned to 16 August 2024 to fix a date for Trial Proper.

[58] On 16 August 2024, the new Magistrate who took carriage of the matter, had fixed the matter for the 28 and 29 November 2024 for Trial Proper.

[59] On 28 November 2024, the Learned State Counsel who appeared in Court had submitted that the carriage of the file has now passed to a new Officer. State Counsel had also informed that the new Officer in carriage now wishes to rely on the Charge Statement made by 1st Applicant. As such, the Trial had to be vacated and the matter was adjourned for mention on 14 January 2025.

[60] On the 14 January 2025, Court had been informed that the 1st Applicant would be making an application for permanent stay of the proceedings.

[61] This is the stage at which the permanent stay application was filed before the High Court. As stated earlier, the said application was first called in Court on 5 February 2025. Having heard Counsel on behalf of the 1st Applicant and Counsel on behalf of the State, this Court was of the opinion that a temporary stay of proceedings of this matter was necessary until the final determination of this permanent stay application. A temporary stay of proceedings would prevent any prejudice that may be caused to the 1st Applicant.

[62] Accordingly, this Court made order temporarily staying the proceedings in Magistrate’s Court, Nadi, Criminal Case No. 899 of 2018, until the final determination of the permanent stay application filed before this Court. Court fixed the matter for 10 February 2025 for mention and further orders.

[63] On 10 February 2025, Learned State Counsel submitted to Court that having re-considered the matter, the State has decided that they would no longer be relying on the Charge Statement of the 1st Applicant. However, Counsel for the 1st Applicant submitted that they have been instructed by the 1st Applicant to continue with this permanent stay application. Subsequently the 2nd Applicant also filed an application seeking a permanent stay of the proceedings. Both applications were consolidated and heard together.

[64] It is very clear that the reason the 1st Applicant filed this application seeking a permanent stay of the proceedings was due to the fact that the State had gone back on their word with regard to the Charge Statement of the 1st Applicant. On 24 May 2023, the Learned State Counsel had informed the Magistrate’s Court that the DPP would not be relying on the Charge Statement made by 1st Applicant. However, on 28 November 2024, the State Counsel had submitted that the State would be relying on the Charge Statement.

[65] This was clearly an unreasonable application made by the State. That is the very reason this Court granted a temporary stay of the proceedings. However, the State Counsel has now given an undertaking to Court that the State would no longer be relying on the Charge Statement of the 1st Applicant.

[66] As stated before, for this Court to grant a stay of proceedings on the basis of delay, Court has to be satisfied that the delay is unreasonable or unjustifiable. Having examined the chronology of events that took place in the Magistrate’s Court of Nadi, it cannot be held that the delay in the conclusion of this matter is attributable to the Prosecution alone. There has been a systematic delay in the proceedings before the Magistrate’s Court. The facts of this case clearly does not amount to an abuse of process by the Prosecution.

[67] Furthermore, it is factually incorrect for the Applicants to state in their Affidavits that this matter has not been heard since the last 7 years from the time of the filing of Charge Sheet. It is manifest that the Voir Dire Hearing in respect of the 2nd Applicant was taken up and Ruling made by the Learned Magistrate on 26 July 2024.

[68] For the aforesaid reasons, I am of the opinion that this application seeking a permanent stay of the proceedings is without merit.

FINAL ORDERS

[69] In light of the above, the final orders of this Court are as follows:

  1. This application for a permanent stay of criminal proceedings in Nadi Magistrate’s Court Criminal Case No: 899 of 2018 is dismissed.
  2. The temporary stay of proceedings made by this Court on 5 February 2025, is vacated.
  3. The matter is referred back to the Magistrate’s Court of Nadi to be heard before the new Resident Magistrate who is now in carriage of this matter.
  4. The Resident Magistrate hearing the matter is directed to hear and dispose of this matter expeditiously. Court directs that this matter be heard and disposed of within six months from today and not later than the 30 November 2025.
  5. All parties to co-operate with the Learned Magistrate in the conclusion of the matter.
  6. I make no order for costs.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI


AT LAUTOKA
Dated this 9th Day of May 2025


Solicitors for the 1st Applicant : Messrs Patel & Sharma, Barristers & Solicitors, Nadi.
Solicitors for the 2nd Applicant : Nand Lawyers, Barristers & Solicitors, Lautoka.
Solicitors for the Respondent : Office of the Director of Public Prosecutions, Lautoka.

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