IN THE HIGH COURT OF TUVALU 2023

CRIMINAL CASE NO. 1/22

BETWEEN
SIOLILO FALENI
APPLICANT

AND
REGINA
RESPONDENT

Before	 Hon Judge Sir John Muria
Hearing	 21st March 2022

Ms L Kofe for Applicant
Ms E Saamu for Respondent

JUDGEMENT
Muria J:  	This is an application by the applicant (accused) for stay of proceedings in relation to the prosecution of a murder charge brought against him. The respondent (Prosecution) opposed the application.
2. The applicant was arrested on 15th July 2020 at Nukufetau Island in connection with the death of the deceased, Iosua Lupi. He was taken into police custody at Nukufetau and later transferred to Funafuti where he was placed in custody in the Funafuti Prison. The applicant applied for bail on 31st July 2020, but his application was refused by the High Court for reasons of his safety.
3. On 2nd December 2020, the applicant was charged, with one count of Murder contrary to section 193 of the Penal Code and in the alternative, one count of Manslaughter. As authorised by the High Court, the Senior Magistrate heard a renewed application for bail by the applicant on 15th December 2020. The Senior Magistrate refused bail.
4. The applicant appealed to the High Court on 8th January 2021, against the refusal of bail. The ACJ recused himself from hearing the appeal since he had already refused the applicant's bail application previously. The applicant continued to remain in custody while waiting for his appeal against the refusal of bail to be dealt with.
5. With the arrival of the Resident Judge of the High Court in late November 2021, the applicant's appeal against the Senior Magistrate's Court's refusal of bail was heard by the High Court. The applicant's appeal was dismissed on 24th December 2021. The applicant, however, renewed his application for bail to the High Court, which granted his bail with conditions. The applicant was released on bail on 24th December 2021.
6. For the purpose of this application, it would also be useful to set out further chronology of events showing the conduct of the case by the parties. I set out the following:
	a) Committal hearing or Preliminary Inquiry (Short Form) was done in or bout 7th May 2021. The applicant was committed by Senior Magistrate Court to be tried in the High Court for murder. The applicant continued to be remanded in custody.
	b) Bail granted to the applicant on 24th December 2021 by the High Court.
	c) On 8th June 2022 the Court enquired as to the position of the case against the accused. The Court listed the matter for 21st June 2022 to have the partied come to court to explain the position of the case.
	d) On 21st June 2022 Counsel for the applicant advised the Court that the applicant and her Counsel had not been served with any charge yet. Counsel standing in for Counsel handling the prosecution case told the Court that she had no information to offer as Counsel in-charge of the prosecution case was away in the outer islands.
	e) As of 21st June 2022, no Information (charge) had bee laid against the applicant was required by section 232, to be served on the applicant as required by section 234, CPC.
	f) On 24th June 2022, the Attorney General prepared and filed the Information charging the accused with one Court of Murder, contrary to section 193 of the Penal Code and one alternative count of Manslaughter, contrary to section 192 of the Penal Code.
	g) Despite the Information being filed on 24th June 2022, the applicant had not been served with a copy of the Information.
	h) On 1st December 2022, the Court instructed the Acting Registrar of the High Court to ascertain from the parties the progress in the case and to list the case for mention on 13th December 2022. The Acting Registrar emailed the parties on 10th December 2022 notifying them of the hearing on 13th December 2022. As of 1st December 2022, there is no evidence before the Court to show that the applicant had been served with the charges filed by the Attorney General on 24th June 2022.
	i) On 13th December 2022, only Counsel and his client, the applicant appeared in Court. There was no appearance for the prosecution from the Attorney General's Office and no explanation was given for the absence. As the High Court was going on Court vacation shortly, on 16th December 2022, the case was listed for 31st January 2023 with the intimation from the Court that the case would be struck out if no cause was shown why it should not be struck out. Notice of the hearing was given to the parties on 19th January 2023.
	j) On 31st January 2023, both parties were present. The applicant intended to pursue his case for striking out. The prosecution, however, told the Court that they were not ready. The case was adjourned to 27th February 2023.
	k) The case did not proceed on 27th February 2023, only the applicant and his Counsel were present. However, Counsel for the prosecution came late.
	l) Counsel for the applicant, informed the Court that, the applicant would not be pursuing his striking out application, but would apply for a stay of proceedings instead. The prosecutors were served with the applicant's application. The application was listed for 21st March 2023. This is that application.
7. The chronology of events from July 2020 to November 2021shows, apart from the PI hearing in May 2021 before the Senior Magistrate, that attention given to this case by the prosecution had been scant. The Court accepts that the unavailability of a Judge on the ground to deal with the applicant's appeal against the Senior Magistrate's Court decision refusing bail, contributed to the delay in taking further steps in the case. However after the appeal against the Senior Magistrate Court decision refusing bail was dealt with by the High Court in December 2021, no Information had been drawn up, signed and filed in the High Court by the Attorney General pursuant to section 232(1) of the Criminal Procedure Code.
8. As we have seen the Information was not filed until 24th June 2022, and only after the Court queried the progress of the case. This was more than one (1) year after the Senior Magistrate conducted the Short Form PI. Then the Information was not served on the applicant until about 13th, December 2022 which was almost six (6) months after it was filed in Court.
9. To add salt to the inquiry, when the case was fixed for hearing the prosecution failed to appear at the member of those hearings. It was only after the Court threatened to strike out the case for non-appearance by the prosecution that Counsel for the prosecution appeared. In fairness to the present Counsel for the prosecution, she has only taken carriage of the case just recently. But I have to say that the lax attitude toward prosecution of any criminal case, and more especially, where the accused has been, held in custody, is not acceptable. Such a lax approach to criminal prosecution runs counter to the protected right of the accused to speedy trial or trial within reasonable time, as well to the public interest that those who commit crimes should be brought to justice without delay.
10. The Court feels that it is necessary to highlight the seemingly lax prosecutorial approach taken by those in-charge of the prosecution in this case. While laxity in the prosecutorial conduct of the prosecution authority is arguably not a ground in itself for a stay of prosecution, it is one of the factors that the court can take into account to effect its overriding duty of promoting justice and to prevent injustice which, in an exceptional case, may lead the Court to stop a prosecution which if not done, would lead to an abuse of the Court's process. The use of this exceptional power of the Court is highlighted in Environment Agency-v­ Stanford [1998] 6 WLUK 534; [1998] EWHC Admin 690; [1998] C.O.D 373. Included in the basket of exceptional circumstances, is the salient principle that the decision of whether or not to prosecute is for the prosecutor. Thus the Court will therefore be very cautious in exercising its power to stay prosecution.
11. Initially the applicant intended to apply to strike out the case for delay in prosecuting the case against him. The applicant changed his plan and now seeks a stay of proceedings for basically the same reasons which are:
	i. There has been an unreasonable and inordinate delay in bringing this matter before the Court.
	ii. There has been an abuse of process, as the Accused has not been properly charged.
12. The applicant relied on his affidavit sworn to and filed on 13th March 2023 in support of his application. In his affidavit, the applicant deposed to, inter alia, the following.
	"3. The incident happened on the 14th July 2023 on Nukufetau Island.
	4. I was detained by the Police Officers as they said that I am the suspect in the murder of IOSUA LUPI.
	5. I was brought to Funafuti on the 18th July 2020 and was detained for about a year and 5 months, in prison.
	6. During my detention in prison, I have always prayed for the day I finally get to prove to a Court that I did not commit these offenses.
	7. Till to date, there still has not been any trial date set for my case, and the waiting has been eating me alive.
	8. The long wait has deprived me of job opportunities, the ability to provide for my family and many other opportunities and entitlements an innocent man must enjoy.
	9. The long wait has instilled fear in me to participate in social activities of our island community, thus my daily routine is to stay home.
	10. The long wait for trial has also labelled me as a convict and a murderer in the eyes of the community, thus I have restricted my movements to within our house and to the Office of People's Lawyer.
	11. The experience is an ordeal that I am going through for more than 2 years now.
	12. I pray that this Honourable Court grants an order of stay proceedings against the Respondent and end this traumatizing ordeal for me."
13. Having read the applicant's affidavit, three complaints stand out. First, following his arrest the applicant had been detained in custody for one year five months, without being brought to trial. Secondly, the delay in bringing him before the Court has affected his life, in particular, the opportunities to find work in order to support his family, the inabilities to participate in community activities he carried the stigma of a convict and a murderer which severely restricted his movement to his house all the time, except when he attended to his lawyer's office. Thirdly, the applicant feels that the experience he was put through for two years has been an ordeal that traumatises his life.
14. Serious as they are, the concerns raised by the applicant must show in the circumstances of the case, that it would offend the Court's sense of justice and undermine public confidence of the criminal justice system if the case is allowed to continue. On the other hand, the Court cannot lose sight of the countervailing consideration of the public interest in ensuring that those charged with serious crimes, such as murder, must be tried.
15. Ms Kofe for the applicant pressed the argument that section 22 of the Constitution guarantees the right of the applicant to a trial "within a reasonable time" and the inactions in the part of the prosecution in this case, violates the right of the applicant under section 22. Counsel further submits that the violation of section 22 amounts to an abuse of process and urges the Court to stop the prosecution of the case against the applicant.
16. Ms Saamu of Counsel for the prosecution in her submission admits that there has been unreasonable delay in bringing the case before the High Court. However, Counsel says that despite the delay, the process itself now put before the Court is reasonable and lawful. As such, Counsel submits that there is no abuse of process of the Court in this case.
17. The real issue in this application is whether the actions or inactions taken by the prosecution in this case amount to unreasonable delay, such that it amounts to an abuse of the Court's process. In this regard the Court will look at effect of the delay on the part of the prosecution in having the case against the applicant brought before the Court, the nature of the case and the factual circumstances as disclosed before the Court, and then decide whether they amount to unreasonable delay as envisaged under section 22 of the Constitution. If so, then the Court, can exercise its discretion and order a permanent stay of proceeding.
18. Counsel for the applicant referred the Court to the Tuvaluan case of Mailemua -v- R [2009] TVHC 4 and the Canadian case of R-v- Jewitt [1985] 2 SCR 128. To these two cases, I would add the case of R-v­ Setaga [2008] TVHC 3; [2009] 2 LRC 287. The two Tuvaluan cases of R­ v- Setaga and R -v- Mailemua are in point in the present case. Both cases established the principle that when considering whether the delay is reasonable or not, the length of delay is only one factor. The Court has to consider other factors as well such as "the reasons for the delay and whether they were the fault of either party or of the system administered by the Court, any waiver of the time period and prejudice to the accused and to a much lesser extent, the prosecution:" R -v- Mailemua.
19. In R-v- Setaga the Court went further to establish that even substantial delay is not sufficient in itself to establish abuse of process. The Court must also be satisfied that the effect of the delay. "in such that the defendant would not be able effectively to make a defence. Without that ability, he is handicapped. Having resulted from the delay, the matter cannot be remedied simply by an order for immediate trial."
20. The evidence in R -v- Setaga was that the accused was alleged to have committed the offences of defilement of a girl under thirteen years of age in 2003 when he was thirteen years old and the victim was eleven years old. When the case was brought to Court five years later, in 2008, the accused was eihteen years old. The delay in that case was, not only substantial, but effectively disabled the accused to make a defence to the case brought against him. The Court, in ordering a stay of proceedings, found that:
	"To pursue a trial where the ability of the defendant to put his defence is effectively unpaired as a result solely of the failure of the prosecuting authorities would be a clear abuse of process."
21. In R -v- Jewitt, the Court was concerned with the issues of whether the trial judge has discretion under common law to order a stay of proceedings for abuse of process and whether such order of stay of proceedings is a "judgment or verdict of acquittal of a trial Court," from which the Crown may appeal to the Court of Appeal. Both issues were answered in the affirmative by the Supreme Court of Canada.
22. Each case is determined on its own facts. In the present case, can it be confidently said that the inactions or delay on the part of the prosecution in bringing the case against the applicant amount to unreasonable delay and whether, if there is unreasonable delay, it would impair the applicant's defence and therefore it would amount to an abuse of process?
The applicant's affidavit, referred to earlier in this judgment, shows substantially the reasons why he is not happy with the delay on the part of the prosecution in bringing the case to the Court.
Those reasons are far from demonstrating that for the prosecution to pursue the case against the applicant would prejudice him in his defence.
23. It must say, however, that a delay for almost three (3) years on the part of the prosecution authorities in bringing this case to Court, is substantial and unacceptable, and does not tell well of those in-charge of prosecuting a serious crime such as murder. This is not a case of the accused absconding, resulting in having to locate the accused to be brought to Court. The accused has, for almost three (3) years, been in the prosecuting authorities' custody and after being released from custody, has been living at their 'door-steps' every day. Such a practice in the criminal justice system is bordering on negligence and indiscipline, risking bringing disrepute to the criminal justice system in Tuvalu. Thankfully the power to stay cannot to be used to discipline prosecuting authorities for their indisciplined Conduct in prosecuting a criminal case. R-v-Crown Court ex parte 94 Cr.App.R.382 QBD Belsham (1992)
24. Having said that, I find, however, that the substantial delay in this case is insufficient "to earn the epithet abuse of process" as stated in R -v­ Setaga. There is no prejudice to the applicant's defence and justice can still be done should the prosecution pursue the trial of the applicant on the charges brought against him.
25. The result is that the application for stay of proceedings is refused.
26. In the circumstances, the proper course of action to take is to direct that the trial of applicant must be expedited. I shall hear Counsel as to the suitable date for trial.
Dated on the 4th day of April 2023.
Sir John Muria
Judge
12/4/23