Regina v. Setaga
The High Court of Tuvalu, Criminal Jurisdiction
26 May 2008
Constitution, section 22(2).
Penal Code, section 14(2) and section 17.
A thirteen year old boy, D, allegedly committed a sexual offence against a 7 year old girl. D was interviewed by the authorities, a statement was taken from the victim, and eye witness statements were all taken within 3 months of the alleged offence. For 3 years, no further investigations took place, and D was not charged until 5 years after the investigation began. When D was charged, he was 18 and the victim was 11. D did not deny that he had carried out the sexual act, but he denied that he was legally responsible.
Issue and resolution:
Juvenile justice. The Court did not allow the prosecution to continue, as the delay would prevent D from adequately defending himself and the delay was the fault of the police rather than D (the prosecution would amount to "an abuse of process").
The Constitution requires a trial to be held "within a reasonable time", which should be defined consistently with the CRC and take into account the age of the offender. The younger a child is, the more important it is that a trial be held soon after the offence is committed. It is rare that a delay in a prosecution would require a trial to be stopped rather than expedited, but in this case, D would be unable to properly defend himself against the allegations. More specifically, the evidence collected at the time of the investigation did not conclusively prove that D was guilty. To defend himself against the allegations, D would have to be able to present evidence of how he was and what he thought as a thirteen year old, and that would now be impossible.
Excerpts citing the CRC and other relevant human rights instruments:
"The Convention was ratified by Tuvalu in 1995 and, whilst it is clear that Tuvalu has not yet taken the legislative steps required by article 4 to implement the rights recognised by the Convention, the terms of article 40 must be considered to give some guidance of the way the rights of a child are considered by the courts here.
Section 22(2) of the Constitution requires trial 'within a reasonable time'. The meaning of 'reasonable' has not been further defined nor, I would suggest, should it be, but the interpretation in respect of the facts of any particular case must be evaluated with article 40 in mind as required by section 17 of the Interpretation Act"
CRIN believes this decision is consistent with the CRC as Article 40 of the Convention requires that children in conflict with the law have the right to have proceedings resolved "without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law." Undoubtedly, a five-year delay in the prosecution of an alleged child offender is unreasonable and would in any case call into question the fairness of a hearing on the matter.
Regina v Setaga  TVHC 3; Criminal Case 02 of 2008 (26 May 2008)
Link to Full Judgment:
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