Yet another blow for the chiken licken idiots in the rfmf illegal regime who with broad strokes paint all fijians as terrorists (when they are projecting their own neurosis onto the population).
We all remember that it was one year ago that the murdering military regime tried to send the 10 accused of the murder of Sakiusa Rabaka on peacekeeping duties despite murder charges having been laid by the DPP against the 10 – 9 soldiers and 1 policeman and served on 26/10/07, they still tried to fly out on 28/10, and then Ballu was arrested on 2 Nov, taking the Rabaka story off the front pages.. (the 10 accused are Patrick Nayacalagilagi, a police officer, and nine soldiers: Talone Lua, Ulaiasi Radike, Etonia Nadura, Ratuinaisa Toutou, Joeli Lesavua, Jona Nareki, Ilaisa Kurimavua and Napolioni Naulia –
Take heart bloggers, the fight is not over, no matter what Budhau, Fiji Forward and other military sock puppets, moles and pimples say!
In your face voceke!!
We still wait for the killers of Rabaka and Verebasaga to be brought to justice – almost 2 years later and we’re still WAITING ….. clock is ticking, tick tock, tick tock
The scales of justice turn slowly, but they do TURN
IN THE HIGH COURT OF FIJI
CRIMINAL MISCELANEOUS CASE No. HAM 039 of 2008
RATU INOKE TAKIVEIKATA(1st accused)
JONE BALEDROKADROKA(2nd Accused)
FEOKO GADEKIBUA(3rd Accused)
BARBADOS MILLS(4th Accused)
SIVANIOLO NAULAGO(5th Accused)
METUISELA MUA(6th Accused)
EPARAMA WAQATAIREWA(7th Accused)
KAMINIELI VOSAVERE(8th Accused)
PAULIASI NAMULO(9th Accused)
BALLU KHAN(10th Accused)
– and –
STATE: Ms A Prasad, Ms N Tikoisuva
ACCUSED 1: Mr A Naco
ACCUSED 2: Mr D Sharma
ACCUSED 3, 4, 7, 8 & 9: Mr F Vosarogo [Legal Aid]
ACCUSED 5: Mr M Raza
ACCUSED 6: Mr T Fa
ACCUSED 10: Mr P Williams, QC; Mr G Leung & Ms K Philips
Date of Hearing: 15 &16 July, 15-19 September, 2008
Date of decision: Wednesday, 12th November 2008, Suva
RULING ON APPLICATION FOR STAY
1 The applicants in this proceeding are facing charges before the High Court which allege that they were participants in three counts of conspiracy to murder.
2 To these charges each of the accused has, on arraignment, pleaded not guilty and, but for this application, would be required to face trial in the High Court in the ordinary way. However, each of the accused has applied to the High Court for a permanent stay of the trial of that information.
3 This is my judgement on the application for a permanent stay.
4 In December 2006, members of the military forces of Fiji assumed components of the executive power of the government of Fiji. Some have referred to those events as a coup d’état. Whether that is a technically correct or politically apt expression is not critical to the issues which the Court has to consider in the instant case. The charges before the court concern events which are alleged to have occurred between September and November 2007. By that time, the commander of the military forces of Fiji, had assumed the office of acting Prime Minister. Also by that time, relevant to these proceedings, there was in place an acting Minister of Finance and an acting Attorney General.
5. The case for the prosecution is that a group of persons which included the accused entered into an agreement to murder the persons who were then, respectively, the acting Prime Minister, the acting Minister of Finance and the acting Attorney General. The prosecution alleges that a military officer, Corporal Kuli managed to infiltrate this group of persons by, amongst other things, pretending to support the course of conduct which was said to be under discussion and which culminated in the charges of conspiracy to murder. At a later stage in this conspiracy, the prosecution alleges that a further military officer, Major Narawa, also infiltrated the group. Again, the case for the prosecution is that Major Narawa did so by leading the alleged conspirators believe that he was on their side. Corporal Kuli and Major Narawa portrayed themselves as military officers (which they were), but ones who were disaffected with the military officers who were then in positions of power in the executive branch of the government of Fiji.
6. The principal source of evidence for the conspiracy comes from the proposed testimony of Cpl Kuli. On the basis of the statements he has supplied, his evidence is that he spoke to the accused and participated in the discussions during which the conspiracy was formulated and, to some extent, refined both as to scope and as to detail. It is no understatement to say that the case for the prosecution hinges on his testimony. In due course, it will be necessary to review components of his proposed testimony as revealed by the three witness statements that he has given. This is because part of the case for the accused in their applications for a stay of proceedings is based on the content of his proposed testimony.
Grounds of the application: overview
7 In very broad terms, the grounds upon which the permanent stay of proceedings is sought are, at least, as follows:
(1) treatment of the accused prior to interception
(2) treatment of the accused on interception
(3) treatment of the accused post interception
(4) unfair and prejudicial publicity
(5) the absence of bona fides in the carrying out of the investigation by, in particular, the military
(6) inadequate disclosure by the State
(7) destruction of material ordinarily disclosable which seriously prejudices a fair trial
There is also an over-arching assertion that the conduct of the military, taken as a whole, is such that it would be improper to hold a trial.
8 Not every accused relies on each of the grounds outlined above. In due course, it will be necessary to refine the statement of the grounds of the application by reference to specific accused.
9 The factual case put by the accused is complex and is not easy to summarise in a paragraph. The essence of it that members of the military and, towards the end of the period under consideration, the police engaged in a concerted campaign to harm the interests of the accused. Prior to the arrest of the accused the case for the accused is that the military sought to harm the ability of certain of the accused in their employment and business interests. Some of the accused were former members of the Fiji military in an elite unit known as the Counter Revolutionary Warfare Unit (CRW) and having served jail terms for various offences of (or akin to) mutiny, tried to rehabilitate their lives. They secured work as security guards with the 10th accused. The 10th accused was a successful businessman who, so he contended, had fallen foul of the military and the military sought to damage him and his business and economic interests. The accused who were formerly members of the CRW unit were harassed by the military. The conduct includes acts which were unlawful and in some cases amounted to the deprivation of the liberty of some accused. Following their arrest, the military and police by a variety of acts including concerted assaults on the 10th accused and to a lesser extent other accused, the publication of comments adverse to the interest of amongst others, the 10th accused and the revelation of certain personal intimate material belonging to the 10th accused and the treatment of him and his spouse/partner amounted to, taken as a whole, a deliberate course of conduct which was so outrageous as to amount to conduct which should result in a stay of these proceedings. Further it is alleged that the investigation and observation of the accused while the conspiracy the subject of the charges was being formulated, was itself so flawed, improper and not undertaken in good faith so as to justify a stay of proceedings. Finally, the case for the accused is that a stay should be granted because of the deliberate destruction of certain evidence which, so the accused say, would assist them in defending themselves against the charges.
10 As I say, this is only a brief summary of the factual case for the accused. I will examine this in detail later in this judgment.
11 I should add one further point at this stage. The fact that some of the accused had been convicted for various offences of (or akin to) mutiny is not something I have held against those accused. It is common ground that these convictions partly informed the bias alleged against the military. The convictions have not in any way affected my assessment of the evidence and the case. These matters were responsibly exposed in the course of argument as necessary background for me to understand the competing contentions.
Burden and standard of proof on application for a stay of proceedings
12 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 of 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.
13 The basis for the cases for the accused and the case for the State was contained, in the main, in affidavits. (There were some statements by counsel from the Bar Table which I accepted.) No oral evidence was called in support of this application. The Court been asked to resolve many of the factual disputes in this case.
14 I made it plain to the parties in the early part of the hearing of this application that I may have difficulty making findings of fact absent oral evidence being called. The reason for that is self-evident. At one stage there were at least intimations that witnesses would be called to give oral evidence. That never eventuated. I make it plain I do not hold the decision not to call oral evidence against any of the Applicants/Accused. That was their right and it was plainly and obviously a deliberate choice. Each of the Applicants/Accused were represented by highly competent counsel and I have no hesitation in proceeding on the assumption that counsel (and thus their respective clients) well appreciated the consequences of the choice to proceed as they did. That was plainly implicit in some of the submissions. The plain fact is that many of the allegations of fact cried out to be tested in cross-examination.
15 An example of this, but by no means the only instance, concerns the allegations of assault made by the 10th accused Mr Khan following his interception by the authorities. (I use “interception” and “authorities” as words intended to be neutral.) This so even in the case of witnesses who said they saw assaults on Mr Khan who were arguably “independent” witnesses. As will become apparent when I examine the evidence on this specific topic, the weight to be attached to these witnesses rather depends on the quality of their observations. How much could they really see? Over what duration?
16 The source of information in relation to the “independent” witnesses came from statements taken by the police. While these statements taken by the police were produced by the State under their disclosure obligations, I did not proceed upon the basis that they were, in effect, statements against the interest of the State. There is no implied assertion by a prosecuting authority that material it produces is true or reliable. Unless the authority expressly asserted truth or reliability, the material is information in the hands of the defence to make of it what they will via the time-honoured and time-tested modes of establishing reliability.
17 Lest anyone suggest it, this was not a case where it was incumbent upon the State to indicate which witnesses it wanted to cross-examine. For the avoidance of doubt, as this case played out, such a suggestion would have been nothing short of absurd. No one could have been in even the slightest doubt that factual issues were well and truly joined. In many respects the stance of the State was simply: prove the factual basis for your case.
18 Some of the issues of fact are broadly common ground or so obviously unchallenged that I could accept them without going further. Some factual matters I have resolved on what I consider to be a common sense or broad-brush approach. Some matters were assumed to be true for the purpose of the application. (The best example of this was the destruction by Cpl Kuli of certain notes. That was, in part, the very basis of part of the application for the stay.) In other areas, for reasons which will shortly appear, I have had to make findings where there was only affidavit evidence. I have evaluated this on the basis that merely because something was said in an affidavit that it was to be accepted unless directly contradicted by other evidence. Affidavits are not pleadings. Affidavits are evidence and my evaluation of what is said in affidavits was informed by the applicable standard of proof.
Principles of Law
Basic starting point
19 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.
The authorities demonstrate that the categories of conduct or set of circumstances (or both) which might justify the imposition of a stay of proceedings are never closed. During the course of this application it was remarked that the facts and circumstances of this case are unique. Nevertheless, the law which governs a stay of proceedings in a criminal case as it applies in Fiji and taken together with the burden and standard of proof which applies is more than adequate to deal with the issues which arise. The explanation for this is that the by its very nature, a stay of proceedings only arises in exceptional or unusual if not unique circumstances and the law as it has developed in Fiji is thus designed to meet such circumstances.
20 It is also common ground that the source of the power of a court such as the High Court of Fiji to make such an order is found within the inherent power of that court to regulate its own process. That process is, of course, devoted to doing justice according to law. The doing of justice through the courts according to the law is one of the critical components of a society which has at its base the rule of law.
21 The concept of a stay of proceedings, by its very nature, might in some respects be seen as inconsistent with the very reason that courts such as the High Court of Fiji exist. Such courts exist to resolve disputes and do justice according to law where that dispute is between one member of the community and another member of the community or between the State and a member of the community. A stay stops that process.
22 In the present case, we are concerned with the jurisdiction of the court being engaged by an information laid before the court to do justice according to law between 10 members of the community and the State in relation to allegations that those 10 members of the community conspired to murder certain persons. The law is that unless there are exceptional circumstances in existence which would justify a stay of proceedings, the community is entitled to expect that the Court will try those accused in accordance with law until a verdict is rendered on that Information. In Connelly v DPP  AC 1254, 1304, Lord Morris observed:
Generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.
As later authorities show, it is not just the prosecutor and the accused who might be said to have an interest in the case. It is also the community.
23 It is generally recognized that Connelly v DPP (above) is the modern starting point for any analysis of the scope of the inherent power of a court superior jurisdiction such as the High Court of Fiji to stay proceedings as an abuse of the process of that court. The exceptional nature of a stay of proceedings is at least implicit in the observations of Lord Morris quoted above. Each of the speeches of members of the House of Lords in Connelly v DPP (above) made the same point about the exceptional nature of the jurisdiction to stay an otherwise regularly instituted and maintained criminal charge before a court. The exceptional nature of the jurisdiction has been recognised in countless of the decisions of courts of high authority of Fiji and of the balance of the common law world and it is not apposite to mention these in detail at the moment.
24 One of the fundamental consequences of the exercise of this jurisdiction by ordering a stay of otherwise regularly brought and maintained proceedings is that the case is never tried. The person who is said to be the victim never receives his or her day in court. Not a word of evidence is heard in what is almost always an open and public setting of a court in accordance with settled rules of procedure and evidence. The community has an obvious and basic interest in seeing such charges tried. In that regard, the community is deprived of seeing those who are otherwise regularly and properly charged, after a proper hearing, either convicted because the court is sure of their guilt or acquitted and discharged where the court is not sure of the guilt of that person.
25 In the instant case, there might be said to be broader considerations than the interests of those who are alleged by the charges to be the intended victims of the alleged conspiracy. If what is said in the depositions is true then, in at least one sense, the community also has an interest as victim. However these concerns are formulated, they are a critical component of the reasons why a stay of proceedings is an exceptional remedy. The remedy operates in complete contradiction to one of the basic imperatives of the criminal law: that regularly brought charges should be tried in accordance with the law.
26 Nevertheless, in a judicial system devoted to the resolution of disputes by doing justice according to law, that system may have to do justice by ordering a stay of proceedings.
27 In Connelly v DPP (above) at page 1296, Lord Reid held that there must “always be a residual discretion to prevent anything which savours of abuse of process.” Lord Morris of Borth-y-Gest held: (page 1301)
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 or practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.
Lord Morris added: (page 1301-1302)
The power (which is inherent in a court’s jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard and accused person from oppression or prejudice.
28 Lord Hodson (page 1335) described the existence of a power as “undoubted”. Lord Devlin would appear to have put the matter more broadly. He held that court had the power subject to statutory rules “to make and enforce the rules or practice in order to ensure that the court process is used fairly and conveniently by both sides”. He made the point the rules of evidence and procedure are a reflection of an attempt to do what was fair and just between prosecutors and the accused. Similarly, Lord Pearce (page 1361) considered that every court of justice had an inherent power to protect itself from the abuse of its own procedure. He held that the pleas of autrefois convict and autrefois acquit did not exhaust that jurisdiction. (Page 1362)
29 The facts of Connelly v DPP are reasonably well known. There was no suggestion whatever that Mr Connelly had anything other than a fair trial when he was ordered to be tried on charges of robbery. It is to be recalled that Mr Connelly had allegedly killed someone during the course of that robbery. He had been previously tried for murder in respect of that killing. According to the practice which then operated in England and Wales, a charge of murder was not tried with other charges in respect of the conduct which accompanied the murder. Thus, in Mr Connelly’s case he faced a charge of murder and the charge of robbery was not included on the indictment. However, the conviction for murder was quashed on appeal. The prosecution then sought to indict him on a charge of robbery which as a result of the practice that then applied in England had been deliberately left off the indictment. The House of Lords held that the indictment of Mr Connelly for robbery was not, in the circumstances, an abuse of process.
30 It is not necessary in these reasons to recite in full the historical development of the law which in certain circumstances permit criminal proceedings to be stayed as an abuse of process.
31 However, it is right to note certain major developments from 1994 onwards. From at least 1994, courts of high authority have held that a stay might be imposed in essentially two circumstances. The first is where it is demonstrated that the accused cannot have a fair trial. That line of thought falls for consideration in this case and I discuss the principles concerning this later in the judgment. The second group of circumstances is less easy to define – especially if the definition is restricted to one sentence. The second category is essentially concerned with conduct on the part of the executive which has an impact on the criminal proceedings and, which is so outrageous – whether that outrageousness is unlawful conduct or otherwise – that for the court to countenance such behaviour would bring the system of justice in to disrepute.
32 The first major development appears in R v Horseferry Road Magistrates, Ex parte Bennett  1 AC 42. There, Bennett was unlawfully brought to the United Kingdom as a result of collusion between the South African and British police to faces charges laid in Britain. The police, as a result of their collusion, side-stepped some of the basic protections that an accused has when he is brought from one country to face criminal charges in another country. The protections are included in the process known as extradition. Bennett did not go through that process. He was simply bundled onto an airplane in South Africa. On arrival in the UK, he was arrested and brought before magistrates to be committed for trial. The House of Lords held by a majority of four to one that in those circumstances an English court should refuse to try the defendant. Lord Griffiths held (at p61-62):
In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
In this regard, see also: R v Mullen  2 Cr App R 290 where it was held that the British authorities, in securing Mullen’s deportation from Zimbabwe, had been guilty of a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts, so that when, many years later, this came to light, his conviction fell to be quashed.
33 In Canada, the Supreme Court imposes a high test under this second heading. The Supreme Court held that a stay proceedings should be imposed:
where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued
See R v O’Connor  4 SCR 411, (1996) 130 DLR (4th) 235 at p 277.
34 One area in which the courts have been asked to consider allegedly shocking conduct in cases involving agents provocateur. In Nottingham City Council v Amin  1 Cr App R 426 Lord Bingham held that it was unobjectionable for a law enforcement officer to provide the opportunity to break the law, an opportunity which the defendant freely takes.
35 In R v Looseley, Attorney-General’s Reference (No 3 of 2000)  1 WLR 2060, the House of Lords dealt with two cases in which, in broad terms, undercover officers obtained drugs from defendants. In each case it was submitted that for the case to proceed would amount to an abuse of process. The question, answered in the affirmative, was whether the English law concerning entrapment was compatible with the European Convention on Human Rights and the guarantee of the right to a fair trial. Lord Nicholls of Birkenhead observed:
Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment … is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts.
36 The real difficulty, consistent with the imperative that a stay of proceedings is an exceptional remedy of last resort was to define what unacceptable entrapment was and what conduct on the part of law enforcement officials was acceptable. Lord Nichols noted:
As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catch-phrase, state-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience, to borrow the language of Lord Steyn in R v Latif  1 WLR 104, 112.
Later in his speech, Lord Nicholls added:
Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn’s formulation [in R v Latif] of a prosecution which would affront the public conscience is substantially to the same effect.
The use of pro-active techniques is more needed and, hence, more appropriate, in some circumstances than others. The secrecy and difficulty of detection, and the manner in which the particular criminal activity is carried on, are relevant considerations.
37 Lord Hoffmann identified the underlying rationale for a stay of proceedings cases and put it at para 40 as follows:
The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths [in Bennett] described the jurisdiction more broadly and, I respectfully think, more accurately, as the jurisdiction to prevent abuse of executive power.
Lord Hoffman made it clear that there is a distinction between active and passive conduct on the part of an informer but that does not always provide the answer. He said:
The need for an authorised and bona fide investigation into suspected criminality is sufficient to show that the question of entrapment cannot be answered simply by asking whether the defendant was given an opportunity to commit the offence of which he freely availed himself. This is important but not enough. The matter is more complicated and other factors have to be taken into account. Likewise, I do not think that even the causal question can be answered by a mechanical application of a distinction between ‘active’ and ‘passive’ conduct on the part of the undercover policeman or informer. In cases in which the offence involves a purchase of goods or services, like liquor or videotapes or a taxi ride, it would be absurd to expect the test purchaser to wait silently for an offer. He will do what an ordinary purchaser would do. Drug dealers can be expected to show some wariness about dealing with a stranger who might be a policeman or informer and therefore some protective colour in dress or manner as well as a certain degree of persistence may be necessary to achieve the objective. And it has been said that undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise. A good deal of active behaviour in the course of an authorised operation may therefore be acceptable without crossing the boundary between causing the offence to be committed and providing an opportunity for the defendant to commit it.
The observations of Lord Hoffman were recently followed in R v Winter  EWCA Crim 3493.
38 Lord Hutton approved the four factors set out in the dissenting judgment of McHugh J Ridgeway v R (1995) 184 CLR 19, 92 as follows:
(1) Whether conduct of the law enforcement authorities induced the offence.
(2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged.
(3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.
(4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.
39 Perhaps most recently, in Panday v Senior Superintendent Wellington Virgil  UKPC 24, the Privy Council held that the key issue was the restraint of the improper exercise of executive power. The issue in that case was whether the decision by the executive to conduct a re-trial ordered by an appellate court abused the process of the courts. (It is critical to note that while an appellate court might order a re-trial in criminal proceedings, it is open to the prosecution – which is part of the executive arm of government – to proceeding with the re-trial.) The advice of the Privy Council reviewed the authorities and concluded:
It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the Court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place. But, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law.
40 In considering the issue of entrapment, it was made plain in R v Jones (Ian)  EWCA Crim 1118 that the precise nature and scope of the offence charged is of considerable importance in determining whether a stay of proceedings is justified. In that case, the essence of what was alleged was that the accused was inciting under-age girls to perform indecent acts upon him. Thus when an under-cover police officer pretended to be such a girl, what was critical was the act of incitement and not the officer’s response.
Discretionary and exceptional remedy
41. The authorities recognise that the power to impose a stay is discretionary, and that a stay “should only be employed in exceptional circumstances”. See: R v Humphrys  1 AC 1; Barton v R (1980) 147 CLR 75; Moevao v Department of Labour  1 NZLR 464; R v Derby Crown Court, ex parte Brooks (1985) 80 Cr App R 164; Attorney-General’s Reference (No 1) of 1990)  QB 630; Jago v District Court (NSW) (1989) 168 CLR 23; Tan Soon Gin v Judge Cameron & Anor  2 AC 205. The power has always been considered a residual one: Connelly v DPP; R v Humphrys  1 AC 1. That carries with it the obvious implication that only when all else fails or no other remedy is realistically available may the court even consider imposing a stay.
42. The exceptional nature of the remedy was recognised in State v Rokotuiwai  FJHC 196; State v Naitini (aka George Speight)  FJHC 1; State v Buksh & Others  FJHC 432; Sahim v State  FJHC 119; State v Pal  FJCA 13.
43 Before the courts may consider imposing a stay, the law requires that Courts consider other remedies: R v Heston-Francois (1984) Cr App R 209; Attorney-General’s Reference (No 1) of 1990)  QB 630; R v O’Connor  4 SCR 411, (1996) 130 DLR (4th) 235; R v Taillefer & R v Duguay  3 SCR 307.
44 The foregoing is not to prohibit the courts from doing justice. Lord Edmund Davis said in R v Humphrys  1 AC 1, 55E that:
While judges should pause long before staying proceedings which on their face are perfectly regular, it would indeed be bad for justice, if in such fortunately rare cases as R v Riebold  1 WLR 674 their hands were tied and they were obliged to allow the further trial to proceed. In my judgment, Connelly established that they are vested with the power to do what the justice of the case clearly demands….
Prejudice to a fair trial
45 Where the fairness of a trial is in jeopardy, there are circumstances in which a stay of proceedings might be granted to protect this right. The right to a fair trial is fundamental. Section 29(1) of the Constitution requires that every person charged with an offence has the right to a fair trial before a court of law.
46 In Attorney-General’s Reference No 1 of 1990  QB 630, Lord Lane CJ held that the power of any court to stay criminal proceedings as an abuse of its process is residual and discretionary. At page 643G Lord Lane said that no stay should be imposed:
… unless the defence 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 words that the continuance of the prosecution amounts to a misuse of the process of the court.
47 In Attorney General’s Reference (No 2 of 2001)  2 AC 72, 85, Lord Bingham observed that it is “axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all”. Lord Bingham has speaking in the context of Article 6 of the European Convention. That requires that the trial process, viewed as a whole, must be fair.
48 However, the right to a fair trial, as section 29 of the Constitution makes plain, does not exist in a vacuum. Section 29 speaks of the right being enjoyed in a “court of law.” That says something about not only the nature of the court but also recognises that such a court will have procedures and remedies for the exercise and safeguarding of that right. A stay of proceedings is one such remedy. It is not, as Attorney-General’s Reference No 1 of 1990 clearly recognises, the only remedy or method of securing the right to a fair trial. The conduct of the trial, the application of the rules of evidence and procedure also have a vital role to play in this regard.
49 Another feature of the right to a fair trial not existing in a vacuum was explained by Lord Steyn in Attorney General’s Reference (No 3 of 1999)  2 AC 91, 118. There, he held that:
the purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.
This, in my judgment, provides a vital understanding of why a stay of proceedings is a residuary, discretionary and exceptional remedy. Thus the injunction in the authorities cited above is look for other means of ensuring a fair trial before taking the step of, in effect, terminating the trial.
50 These are only general remarks about the right to a fair trial. In the course of this judgment I have to return to the content of this right in the context of allegations of deliberate destruction of evidence and the conduct of the investigation generally. There is the further over-arching g