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R v Penivao [2012] TVHC 5; Criminal Case 02 of 2011 (23 January 2012)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Criminal Jurisdiction

HC. Crim. Case no. 2/11

Between:

R

v

Fatonuga Penivao
Defendant

BEFORE THE CHIEF JUSTICE

E Jogia for prosecution/respondent
I Isala for defendant/applicant

Hearing: 20 January 2012
Judgment: 23 January 2012

Judgment

[1] The defendant/applicant has been charged with rape. The charge was filed on 5 January 2011 but the first the defendant knew of it was 7 November 2011 when he attended the Senior Magistrate's Court in obedience to a summons to attend the preliminary enquiry. The case was committed to the High Court for trial and the defendant was released on bail.

[2] By Notice of Motion filed on 9 January 2012, the defence has applied for a permanent stay of proceedings on the grounds:

1. There has been an unreasonable delay in bringing this matter before the court.

2. The length of time that has passed between the date of the alleged offending and the date that the matter was first brought before a court, is in violation of the accused's right to have the matter determined without delay, a right which is guaranteed by section 22 (2) of the Constitution of Tuvalu.

3. The delay in bringing this matter before the court amounts to an abuse of process.

[3] The remarkable fact behind this application is that the alleged offence occurred on 18 May 2000 and the applicant was interviewed about it the same day. He heard nothing more until he received a summons to attend court on 7 November 2011 and was told, for the first time, of the charge he was facing -- eleven and a half years after the offence and his interview by the police.

[4] The respondent has filed an affidavit sworn by a senior police officer setting out the history of the investigation throughout that period of more than eleven years. I am grateful to him for his careful search through the reports and notes and the frankness of his disclosures. It is not necessary to set them out in extenso. Suffice it to say that statements were recorded from the complainant on the day of the offence and the 25th of May 2000. In the next two months the file appears to have been passed to the Commissioner, a Superintendent and the Officer Commanding Crime Branch. It was then left, apparently totally ignored until December 2004 - a period of four years and four months. In that month, it was forwarded to the Officer Commanding Station and, again, nothing was done for one year and seven months.

[5] In 2007, the file was passed from one officer to another, in the process of which the victim was asked to make a further statement. The following year it appears to have been passed to the Attorney General's Chambers and then sent back to the police in July for further investigation.

[6] Despite the already considerable length of time which had elapsed since the offence, it was not until May 2009 that it was sent to an officer for further investigation.

[7] In August 2010, it was again sent the Attorney General who, on 27 September 2010, advised prosecution. It then took more than three months before the charge was filed and a further ten months for the preliminary enquiry to be heard.

[8] During this overall period the victim was asked to make additional statements and did so in October and December 2007 and May 2009.

[9] Section 22 (2) of the Constitution provides that a person charged with an offence is entitled to a fair hearing within a reasonable time. This Court has set out in previous cases the manner in which such applications should be considered; see R v Setaga [2008] TVHC 3; Mailemua v R [2009] TVHC 4, and it is not necessary to repeat them.

[10] It is made clear in those cases that, in assessing a reasonable time, our courts must consider the total period between charge and trial and is not, as is the case in some jurisdictions, limited to consider delays once charges have been laid. A number of reasons have been considered as relevant to deciding whether there has been abuse of process sufficiently to justify a permanent stay. Each case depends on its own circumstances and the court must balance the opposing interests of the victim and the accused person in obtaining justice but the longer the delay, the stronger becomes the risk of prejudicing the accused person's ability to defend the charge.

[11] In the present case, the delay was inordinate and made all the more serious by the fact that it appears to have been caused almost exclusively by the failure of the police to pursue the matter in a proper manner - or at all for much of the time. The result of their administrative failure is that this defendant is now, nearly twelve years after the event, having to prepare his defence including, possibly finding witnesses who may be abroad or even dead and then asking them to try and recall significant details long since forgotten.

[12] There is no set period after which delay becomes unacceptable. Delay, even extreme delay can, in some cases, be justified. Cases in other jurisdictions have been delayed for very considerable periods because the victim of a sexual offence has been unable to face the prospect of making a complaint and giving evidence at the resulting trial. Many complex fraud cases have not been discovered for years and then taken many more years to investigate. Sometimes defendants have managed to avoid capture for lengthy periods. In this case there is no such justification.

[13] I have no doubt that the bringing of the charge at this stage seriously prejudices the defendant's right to a fair trial and carries such a risk of injustice that it is an abuse of process.

[14] The application is allowed. The prosecution is stayed and the file is to be marked, "Not to be proceeded without leave of this Court or of the Court of Appeal".

Dated 23rd day of January 2012

Hon. Gordon Ward
CHIEF JUSTICE