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Patel v Mau [2011] FJCA 41; AAU0039.2011 & AAU0040.2011 (12 September 2011)

IN THE COURT OF APPEAL FIJI ISLANDS
APPELLATE JURISDICTION

Criminal Appeal No. AAU 0039 of 2011 & AAU 0040 of 2011
[High Court Criminal Case No. HAC 89 of 2010]

BETWEEN:

MAHENDRA MOTIBHAI PATEL
1ST APPELLANT

:TEVITA PENI MAU
2ND APPELLANT

AND:

THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION [FICAC]
RESPONDENT

CORAM : Hon. Justice Mr. Kankani Chitrasiri, Justice of Appeal
Hon. Justice Mr. Salesi Temo, Justice of Appeal
Hon. Justice Mr. A. L. Brito Mutunayagam, Justice of Appeal

COUNSEL : Mr. G. O'L. Reynolds Q C and Mr. H. Nagin for the 1st Appellant
Mr. D. Sharma for the 2nd Appellant
Mr. N. Marasinghe and Ms S. Sanmogam for the Respondent

Date of Hearing : Tuesday 30th August 2011

Date of Ruling : Monday, 12th September 2011

RULING
ON APPLICATION FOR RECUSAL

Salesi Temo, JA

1. I agree with the ruling, reasons and proposed Orders of Kankani Chitrasiri JA.
   

A. L. Brito Mutunayagam, JA

2. I agree with the ruling, reasons and proposed Orders of Kankani Chitrasiri JA.
   

Kankani Chitrasiri, JA

3. The Fiji Independent Commission Against Corruption (FICAC) [hereinafter referred to as the respondent] had filed a Notice of Motion dated 5th August 2011 moving this Court that His Lordship Justice William Marshall recuse himself from hearing and determining the appeals bearing numbers AAU 0039/11 and AAU0040/11. The grounds upon which this application was made are as follows:
   
   • (a) THAT, shortly afterwards the delivery of the sentence in High Court Criminal Case No. HAC 89 of 2010 on 14th of April 2011, His Lordship Mr. Justice William Marshall met with the family members and friends of the Appellant Mr. Mahendra Motibhai Patel, who were gathered at the Hotel Holiday Inn in the aftermath of the sentence.
     
   • (b) THAT, the circumstances of His Lordship Mr. Justice William Marshall's meeting with the Appellant Mahendra Motibhai Patel's family and friends, the proximity of the above meeting to the said High Court trial and the partisan manner in which the leave to Appeal & Bail Pending Appeal application AAU 0039/2011 was heard by His Lordship on 2nd May 2011 would cause a reasonably informed observer to consider and/or decide that there is a possibility of apprehended bias or that there is a real danger of bias.
     
   • (c) That His Lordship Justice William Marshall in his Bail Pending Appeal and Leave to Appeal ruling dated 12th May 2011, made directions that the appeals of the appellants be heard in the court of appeal session to be held between 30th August and 30th September 2011. Making such directions by His Lordship showed further evidence of real apprehension of bias towards the appellants.
     
   • (d) That, His Lordship's Court moved until further notice the other FICAC older appeal matters namely Jaswant Kumar v FICAC (AAU 0012/10) and FICAC v Sunil Kumar (AAU/0066/10) which were originally listed for the call over date which was on 13/7/2011 and only the appeals in respect of appellants Mahendra Motibhai Patel and Tevita Peni Mau were taken up in the open court. His Lordship made further directions that the appeals of the appellants should be taken up for hearing on the first day of the court of appeal session, thereby showing further evidence that there is a real apprehension of bias.
     
   • (e) That, His Lordship Justice William Marshall promptly accommodated a request made by the Counsel for the appellant Mahendra Motibhai Patel giving him more time to file written submission as opposed to the time table set by His Lordship himself on 13/7/2011, and did not respond until 22nd July to the letter written by the respondent opposing the request made by the counsel for the applicant and indicated that if necessary further time can be sought from the court only with regard to filing of written submissions in respect of Appellant Tevita Peni Mau. This situation gave further rise to a reasonable apprehension of bias.
     
   • (f) That, His Lordship Justice William Marshall issued a written direction on 21st July 2011, stating that for the hearing of the above appeal there would be a four member panel of Judges including himself. This is contrary to the normal practice of the Court which is that three (3) Judges make up a panel thus showing further evidence of special treatment and apprehension of bias towards the appellants.
     
4. The Law that is applicable in an application of this nature had been discussed in the case of Muir v. Commissioner of Inland Revenue and Others (2007) NZ CA 334 and it had been followed by the High Court of Fiji in the Case of State v. Mahendra Pal Chaudhary Criminal [Misc. Case No. AM160 of 2010.] In the aforesaid New Zealand decision it is stated:
   

"In our view, the correct enquiry is a two stage one.

First Limb

First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the 'bias' ball in the air.

Second Limb

The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case.This standard emphasizes to the challenged Judge that a belief in her own purity will not do, she must consider how others would view her conduct."

5. As stated in the judgments cited hereinbefore, a rigorous examination should be conducted if the actual circumstances or the facts of the issue have a direct bearing to show that the Judge was or may have seen, to be biased. In this instance the alleged circumstances upon which the application has been made are that His Lordship Justice William Marshall met with the family members and friends of the appellant Mr. Mahendra Motibhai Patel at the Holiday Inn hotel on 14th of April 2011. In support of this allegation, affidavits of three personnel along with a few photographs and a Compact Disc (CD) had been annexed to the Notice of Motion.
   
6. Consequently in reply to those affidavits, His Lordship Justice Marshall and Mrs. Aileen Janet Sinclair Marshall also had filed two affidavits describing how it was led for them to be present at the Hotel Holiday Inn on the 14th of April 2011.
   
7. A Bench comprising of three Justices in the Court of Appeal examined the matter, having regard to the criteria laid down in State V. Mahendra Pal Chaudhary (supra) and then viewed the facts complained of rigorously. The Court also looked at the issue with great care since such a matter could have a bearing on the administration of justice of the country as well.
   
8. The presence of His Lordship Justice Marshall in the Holiday Inn hotel on this particular day had not been disputed. Both Justice Marshall and Mrs. Aileen Marshall in their affidavits have stated that after Justice Marshall attending to his usual work in Courts they were in Tapa Bar at the Holiday Inn hotel to have a late light lunch on the 14th April 2011. That is evident by the CCTV camera footage as well.
   
9. In the affidavit of Kolinio Waqa that was filed with the notice of motion by FICAC, he has stated that he, being a personal security officer to the Hon. Attorney General of Fiji who was attending a meeting, was present in the Holiday Inn hotel on the 14th of April 2011. He also stated that he saw, a European gentleman who was supposed to have been seen by him in the CCTV, shaking hands with one of the gentlemen gathered around Mrs. Patel and was also talking to Mrs. Mahendra Patel.
   
10. In the affidavit of Waqa, particularly in paragraph 24, he has stated that the events described in paragraphs 5,6,8,9,10,11,12,13,14,15 and 19 can be positively confirmed through the CCTV footage. This statement in the said affidavit appears to be factually incorrect. In Paragraph 19 of the affidavit where he makes the most serious allegation against Justice Marshall, he had stated that he saw a European gentleman talking to Mrs. Mahendra Motibhai Patel. Nothing appears in the CCTV coverage as to Justice Marshall talking or shaking hands with anyone. Therefore, it is clear that the deponent to the said affidavit namely Kolinio Waqa has stated a falsehood as to the crucial point of the alleged incident.
    
11. Also, it is common knowledge to see many European gentlemen in white shirts carrying black coats in this hotel. Moreover, Kolinio Waqa has not seen Justice Marshall before. In those circumstances, I am not inclined to accept that Justice Marshall was talking to Mrs.Patel or shaking hands with anybody in the hotel as referred to in the said Paragraph 19 of Waqa's affidavit, particularly in the absence of any supportive evidence.
    
12. Furthermore, His Lordship Justice Marshall and Mrs. Marshall have categorically denied that Justice Marshall had ever met Mr. Patel or his wife. Justice Marshall had further stated that he would have had no idea as to the identity of Mr. and Mrs. Patel.
    
13. Accordingly, when evaluating the evidence of Waqa on this important point as opposed to Justice Marshall, I prefer to accept what Justice Marshall and Mrs. Marshall have stated.
    
14. Therefore, having made a rigorous examination of the relevant facts, it is my considered view that the allegations made in Grounds (a) and (b) referred to in the Notice of Motion has not been established.
    
15. The rest of the grounds mentioned in the Notice of Motion filed by FICAC involve the directions made by His Lordship Justice Marshall in exercising his powers vested in him pursuant to the judicial office that he holds. Those directions are:
    

I. Appeals of the appellants to be heard in the session commencing on the 30th of August 2011 of the Court of Appeal;

II. The appeals of the appellants to be taken up on the first day of the Court of Appeal session without making an order to take up the appeals into other cases where the FICAC was the respondent despite all these cases were mentioned in the last call over.

III. Allowing the counsel for the appellant Mahendra Patel without regard to the timetable set by His Lordship himself submissions whereas His Lordship did not respond to the application to file written submissions on behalf of FICAC.

IV. Constituting a bench comprising of four Judges deviating from the normal practice of this court thereby giving special treatment to this particular appeal.

16. It must be noted that all the above directions of Justice Marshall had been made basically in the exercise of his judicial and administrative duties.
    
17. It is necessary to note that each and every case is important not only to the parties to the actions but also to the Judges as well. Therefore directions by the Judges are made only after having due regard to all the circumstances of each case.
    
18. The issue in this case involves public funds of a government undertaking. Such a matter should invariably be given preference over the others. Moreover, the accused in this case are serving a sentence in Prison. The law requires such matters to be taken up expeditiously.
    
19. Learned Counsel for the respondent has referred to an instance where two older cases of FICAC that was mentioned on the same date, had been postponed for a longer date, having fixed this case for the first date of the very next session of the Court of Appeal. However, at the time this matter was argued, it was brought to our notice that the accused in those two other cases had been either released on bail or had served the sentence by that date.
    
20. Therefore, it is clear that no special treatment was given to this matter over the other two cases when fixing it for argument for the first date of this session. Undoubtedly, the reason would have been to take up the appeal of two persons who are serving a sentence, over two other matters where the accused have been sent out of prison. Hence, no element of bias could be seen in fixing the date for hearing by His Lordship.
    
21. I will now examine the matter relating to the nomination of four judges to this Appeal Bench. Even though such a nomination is not being made under normal circumstances, I do not see any illegality in doing so when looking at the relevant provisions in the law of Fiji.
    
22. In this regard I would like to refer to Section 6 of the Court of Appeal Act where reference had been made to the appointment of number of Judges who hear and determine appeals in the Court of Appeal. In the Court of Appeal Act [Cap 12] Section 6(1) and 6(3) stipulates:
    

6. (1) For the purpose of hearing and determining appeals the Court of Appeal shall be summoned in accordance with directions given by the President and the Court shall be duly constituted if it consists of not less than three Judges, but provision may be made by rules of court for the hearing and determining of specified classes of cases by two judges of the Court of Appeal.

(2). . .

(3) In all appeals and applications brought before the Court of Appeal the determination of any question shall be according to the opinion of the majority. If on the hearing of an appeal or application the Court of Appeal is equally divided the appeal or application as the case may be shall be dismissed.

[Emphasis added]

23. Accordingly, it is evident that it is not unlawful to constitute a bench consisting of more than three Judges to a particular Bench. Also, provision is available to remedy the consequences that could take place when the Judges so appointed are equally divided in their decisions. Hence, it is seen that there is nothing wrong in the directive to have a Bench comprising of four Judges to hear an appeal.
    
24. When all the circumstances of this case are considered, it reminds me of the accepted norm that "justice should not only be done but it should also appear to be done". It is the duty of all Judges to bear this in mind when making their decisions. Justice Marshall too may have had in his mind these norms when he made the decisions that have been referred to by the respondent. This is evident particularly when the decision was made to take up the trial without delay. He may have decided so, basically to prevent injustice being caused to the appellants who are awaiting their appeal being heard though the respondent had viewed it as an apprehension of bias.
    
25. Therefore when all the circumstances are taken into consideration, it is clear that a reasonable person who carefully considers every aspect of the case would not think that there is apprehension of bias towards anybody by the directives made by Court. The decision in the case of Auckland Casino Ltd. V. Casino Control Authority [1995] 1 NZLR 149, would support the above proposition, namely to consider and ascertain the facts in a way similar to that of a reasonable person who would observe on an issue at a given time. In that decision it was held thus;
    

"If a reasonable person knowing all the material facts would not consider that there was a real danger of bias, it would seem strained to say that nevertheless he or she would reasonably suspect bias."

26. Learned counsel for the respondent FICAC has referred to many judicial pronouncements on the issue of apprehension of bias highlighting the importance of such a concept when dispensing justice. I have no hesitation in accepting those matters referred to in those submissions. Nevertherless, as I have reasoned out earlier in this decision, the facts in this case, in my view, do not establish bias towards any party by the decisions made by His Lordship Justice William Marshall.
    
27. At this stage, I also should mention that the litigants in a court of law should not be allowed to decide the forum of their choice merely on allegations, particularly when those allegations are incapable of proving apprehension of any bias. In the event the courts do not examine the allegations in the proper manner, it might lead to tighten the hands of Judges in making their decisions without fear or favour. Therefore, Judges should take suitable actions to prevent forum shopping. Also, they should always be slow to recuse themselves when there is no or sufficient cause to do so.
    
28. For the reasons mentioned above, the application of the respondent FICAC dated 5th August 2011, for the recusal of His Lordship Justice Marshall, is refused.
    
29. Having come to the above conclusion, it is now necessary to discuss the directives concerning Justice Marshall sitting on the appeals of the two appellants. When the Notice of Motion was filed by FICAC, His Lordship Justice Marshall on 21st of July 2011 had made 11 directions wherein he, among other things, had also decided to take a decision as to him being a member of the Appeal Bench, depending on the advice of other members of the Court who are hearing the recusal application.
    
30. At the end of the hearing of the recusal application, the three members unanimously came to the conclusion that Justice Marshall is at liberty to sit on the appeal proper, if he so desires.
    
31. Upon deliberations, the three member panel who heard the application for recusal pronounced the ruling dismissing the application, namely to have His Lordship Justice William Marshall be recused from being a member of the panel hearing the appeals bearing Nos. AAU 0039 of 2011 and AAU 0040 of 2011.
    

Kankani Chitrasiri JA

Orders of the Court

32. The orders of this Court are:
    
    • (1) The Recusal Application referred to in the Notice of Motion dated 5th August 2011, filed by the respondent FICAC, is hereby refused.
      
    • (2) We make no order as to the costs of this application.
      

Mr. Justice Kankani Chitrasiri
Justice of Appeal

Mr. Justice Salesi Temo
Justice of Appeal

Mr. Justice A. L. Brito Mutunayagam
Justice of Appeal