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Kean v State [2008] FJHC 203; HAM70.2008 (5 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Cr. Misc. Case No: HAM 70 of 2008

BETWEEN:

GUSTON KEAN
Applicant

AND:

THE STATE
Respondent

Hearing: 28th August 2008
Judgment: 5th September 2008

Counsel: Mr. V. Vosarogo & Ms A. Lekenaua for Applicant
Ms P. Madanavosa for State

JUDGMENT

The Applicant was charged on the 21st of May 2004, with the larceny of two car speakers. The date of the alleged offence is the 20th of May 2004. He first appeared in the Nausori Magistrates’ Court on the 21st of May 2004. Bail was refused and the Applicant was remanded for 14 days.

On the 2nd of June 2004, counsel for the Applicant tendered a statement of withdrawal of complaint from the complainant, one Aiyub Ali. Bail was then granted, the court noting that the DPP should "review charge for withdrawal." There were then many adjournments until the Applicant applied for permanent stay of the matter in the High Court. The next mention date in the Nausori Magistrates’ Court is the 30th of September 2008. The Applicant was unrepresented in the High Court initially, and I accepted his letter of application in lieu of a notice of motion and affidavit. In his letter dated 1st July 2008, the Applicant said that the grounds for his application are that the case has been dragging on since 2004, that the prosecution case is weak because there was no confession, recent possession or identification parade, and that his right to a fair trial was prejudiced by the delay.

In the High Court he was represented by the Legal Aid Commission at the hearing of this application. Counsel made submissions that it was an abuse of the process to delay the prosecution for four years, that the ultimate test is that of fairness and whether the accused will suffer serious prejudice to the extent that no fair trial can be held (per Lane L.J. in Attorney-General’s Reference No. 2 of 2001; R v. J (2001) EWCA Crim. 1568, and that even in the absence of proof of prejudice, such prejudice could be assumed in this case.

The State objects to stay, saying that in the absence of proof of prejudice, the court could entertain other remedies such as timetabling orders, bail and mitigation of sentence. The State also filed the affidavit of Vereimi Qaravanacolo, police officer. The affidavit states that the prosecution has a strong case against the Applicant on the basis of identification by recognition by a neighbor, and that there was no need for an identification parade because the witness knows the Applicant well. It sets out the chronology of events in the Nausori Magistrates’ Court, and states that the case had only had three hearing dates. On two of these occasions the Applicant had failed to appear and a bench warrant had been issued. The delay therefore has largely been caused by the Applicant himself.

The court record of the proceedings shows that after bail was granted on the 2nd of June 2004, the Applicant did appear in court on the 7th of July 2004 when the case was called for mention. However on the next court date, the 3rd of August 2004, he did not appear and a bench warrant was issued. He next appeared in court on the 26th of September 2007. He told the court that he had been remanded in custody since 2006, and that in 2005 he had been looking after his sickly father. He gave no explanation for his absence in 2004. He was then remanded in custody. A hearing date was set for the 8th of November 2007.

On the 8th of November, the court was told that the Applicant was in custody ordered by the High Court, and that he could not appear in the Nausori Magistrates’ Court. He appeared next on the 12th of November 2007 and asked for bail. It was refused.

He did not appear until the 14th of December 2007 because he was in custody and production orders had not been served. No hearing date was set because the Applicant told the court that he was either in the Lautoka High Court or the Suva High Court. On the 11th of January 2008 the Applicant did not appear but was represented by counsel. By the 4th of March 2008 the court was told that the Applicant was a serving prisoner and a production order was issued. On the 19th of May 2008 the Applicant did not appear because he was in the Suva High Court. Nor did he appear on the 2nd of June 2008 and no reason was given to the court. On the 23rd June 2008, the Applicant asked for stay. Simultaneously his counsel asked for a hearing date. On the 21st of July 2008, counsel for Legal Aid said "Instruction that Legal Aid will not file stay proceedings." However, the Applicant said "Have filed application myself in the High Court." The learned Magistrate then adjourned to the 30th of September 2008.

It is apparent from this chronology that the Applicant was the cause of the delay in 2004 and 2005. His father may have been sick in 2005, but this in no way explains the Applicant’s failure to contact the court at any time in 2004 and 2005. Other than his assertion that he was serving from 2006, I have no information confirming the length of time he has been incarcerated. After 2007 when the bench warrant was executed his failure to appear in the Nausori Magistrates’ Court was not his fault. He was a serving prisoner by 2007, and expected to appear in several courts on the same day. Nevertheless I put the delay of 2½ years decisively at the Applicant’s door.

The law on stay in criminal proceedings was recently summarized in Mohammed Sharif Sahim v. The State Misc. Action No. 17 of 2007, an appeal in the Fiji Court of Appeal (per Byrne JA, Shameem JA and Scutt JA). In that case the High Court had found a five year delay after charges were laid in the Suva Magistrates’ Court, to be unreasonable but instead of ordering a stay, ordered that the trial commence within 40 days. That order was effectively stayed by an appeal to the Court of Appeal. The court reviewed the law on stay and in particular considered the question of whether a stay must be ordered where there is unreasonable delay but no proof of specific prejudice.

The court held at paragraph 29:

"The correct approach of the courts must therefore be two-pronged. Firstly, is there unreasonable delay, and a breach of section 29(3) of the Constitution? In answering this question, prejudice is relevant but not necessary where the delay is found to be otherwise oppressive in all the circumstances. The second question is if there has been a breach, what is the remedy? In determining the appropriate remedy, absence of prejudice becomes relevant. Where an accused person is able to be tried fairly without any impairment in the conduct of the defence, the prosecution should not be stayed. Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence."

And at paragraph 30:

"It must be remembered that delay is often a strategy to avoid justice. The law on stay must not make an abuse of the processes of the courts, a successful strategy under the guise of a human rights shield."

The first step is therefore to ask whether the delay is unreasonable. In Flowers v. The Queen [2007] 1 WLR 2396, the Privy Council held that in computing the delay and the impact of it, the courts should take into account:

1. The length of the delay;

2. The reason for the delay;

3. Whether or not the defendant had asserted his right to speedy trial;

4. The extent of any prejudice.

In this case the four year post-charge delay is a serious delay. However, 2½ years of it was caused by the Applicant’s non-appearance. The remaining time was caused by the court’s failure to ensure that production orders were properly served and executed, and that the Applicant was not in several courts at the same time. The delay from 2006 (and I am not told of the exact date of his remand in 2006 although the affidavit of Vereimi Qaravanacolo states that he was remanded at Natabua Prison from 22nd March 2006) to June 2008 was caused by the administration of the courts. I do not find that any of the delay was attributable to the prosecution.

Nor do I find that the Applicant at any time protested about the delay or asked for an early hearing date. Indeed, when his counsel was ready to take a hearing date, and specifically said that no application for stay would be made, the Applicant proceeded with this application anyway.

Nor have I been pointed to any specific prejudice suffered by the Applicant. Although proof of prejudice is not essential to a finding that the delay has been unreasonable, it is still a relevant factor.

I consider that the delay in this case has not been unreasonable because the Applicant has himself largely been the author of it. Now that the Magistrates’ Court is ready to set a hearing date, the best course of action would be to proceed to trial as quickly as possible. It must be remembered that the right of the prosecution to present its evidence in a court of law is an important public interest right. If the Applicant is convicted, the court can no doubt take the delay into account as a mitigating factor.

For these reasons, I find that there is no breach of section 29(3) of the Constitution, and that there has been no unreasonable delay. It follows that it is unnecessary to make orders. Nevertheless, I hope that the Magistrates’ Court can prioritise this case and give it an early hearing date.

Nazhat Shameem
JUDGE

At Suva
5th September 2008