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Balaggan v State [2011] FJCA 43; Miscellaneous Case 31.2011 (15 September 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI


MISCELLANEOUS CASE NO.31 OF 2011


BETWEEN:


MUSKAN BALAGGAN
Appellant


AND:


THE STATE
Respondent


Coram: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Kankani Chitrasiri, Justice of Appeal
Hon. Justice Sriskandarajah, Justice of Appeal


Counsel: Mr R Chaudhry and Mr S Valenitabua for the Appellant
Ms S Puamau for the Respondent


Date of Hearing: Friday, 9 September 2011


Date of Judgment: Thursday, 15 September 2011


JUDGMENT


William Marshall JA


  1. The Court of Appeal heard an appeal by Ms Muskan Balaggan on 9th September 2011. It was for bail pending trial in the High Court in HAC 49 of 2011. The trial at the time the appeal was lodged was set down for 26th September 2011 before Madigan J in the High Court at Lautoka. That date has been vacated as of 6th September 2011 and HAC 49 and HAC 50 were listed for directions before Mr Justice Goundar at Suva on 12th September 2011. That hearing has been adjourned to 16th September 2011 for the State to respond to another bail application. Whether another bail application whatever the venue can be entertained or adjudicated upon while this judgment is pending I have my doubts. If an applicant is manipulative there is always scope for allegations that new circumstances justify bail being granted where it was earlier refused. As to whether an applicant is manipulative or has any credibility is always a question of fact for the Court on bail applications. Whatever may have been the practise over bail in the early 20th century, the courts must not become a revolving door where multiple successive applications for bail are entertained no matter how hopeless and vexatious they have become. However if there is no power to prevent hopeless or vexatious bail applications one after another being mounted, it may be that the Court has no power to avoid a hearing. But the Court is justified in such circumstances in dealing shortly and summarily in the matter.
  2. There is clearly since No.34 of 1998 a statutory power in the Court of Appeal to hear an appeal with regard to bail pending trial. In the State v. Sitiveni Uluinacuvu and three other cases, Miscellaneous Action No.0008 of 2010 with Ruling delivered on 31st May 2011, I set out the statutory framework including the powers for the senior appeal judge to have bail applications heard in the first instance before the Full Court. When this appeal was presented I used my power to have it heard by the Full Court.
  3. The history of the matter before this Court is complex. Ms Balaggan was arrested at Nadi because in her possession, according to the prosecution case, was a suitcase containing one half kilogram of cocaine. In other jurisdictions, cocaine, is a Class A drug attracting heavy penalties on conviction. In Fiji there is no classification. The maximum penalty is life imprisonment. For "hard" drugs such as heroin or cocaine penalties for criminal offending are likely to be severe in terms of an immediate custodial sentence.
  4. Ms Balaggan made a statement under caution admitting the possession of the cocaine. A judge whether in the High Court or in the Court of Appeal will frequently be addressed on the strength or weakness of the underlying criminal case during a bail application. In his judgment, reasons for his decision have to be given. He may choose to explain why it seems to him that there is a strong prima facie case or a weak prima facie case. Such reasons may relate to flight risk, or to other frequent matters arising in bail applications. Judges and magistrates in common law jurisdictions have always been required to assess the strength and weakness of the underlying criminal case. If they do so and find that it is a strong prima facie prosecution case, it has never been the situation that a judge or magistrate has to recuse himself in respect of hearing the substantive criminal trial on account of apparent bias. The "apparent bias" test stresses that the observer has to be an "informed observer". An informed observer would know the above stated rules. An informed observer would also know that assessments for the purposes of bail application are untested as there is no oral evidence or cross-examination and prior rulings on bail applications do not mean that the judge or magistrate is unable to conduct a fair contested hearing at trial in respect of the substantive underlying criminal charges. Findings of fact on bail applications are necessarily prima facie findings of a tentative nature on limited material. The common law expects judges, who are bound by their judicial oath, to adjudicate on the facts properly and fairly on trial paying no heed to whatever tentative prima facie findings they may have been required to make upon the hearing of an earlier bail application in the same matter.
  5. I set this out because I may have to consider factual issues on appeal in this matter in the future. If as I intend to, I comment on the strength of the prima facie case on the papers in this judgment on this bail application, I will not in so doing be making any case at all for either the State or Ms Balaggan applying for my recusal from hearing an appeal on this matter on account of "apparent bias". The same applies to my fellow judges hearing this appeal.
  6. On the papers my prima facie view of the prosecution case is that it is a strong one for the reasons stated above. In my view this means that Ms Balaggan, who is an Indian national and a transiting visitor to Fiji, is a flight risk particularly when one looks at the issue of likely sentence upon conviction. Perhaps generously the magistrate gave her bail on sureties coming forward, reporting conditions, and surrender of her passport. It was also a condition of bail that she should not commit a criminal offence while on bail.
  7. Although I view the magistrate's decision as generous, it would not have been susceptible to successful review by the prosecution on an application, without more, to remand in custody. The weighing of the presumption of innocence and in favour of bail together with the matter(s) that may count against a grant of bail is the exercise of a judicial discretion and it is not an exact science. It should not be interfered with lightly.
  8. Her lawyer was a surety for her appearance at trial on the substantive drugs charge. While there is no law against this it is an undesirable practise. There may well be a conflict between the lawyer's duty to his client and his duty as a surety. He became her surety on 11th February 2011 after she had been charged on the drugs offence on 29th January 2011.
  9. Instead of quietly awaiting trial on bail there is now important new material weighing against the continuation of bail for Ms Balaggan. On 13th June 2011 Ms Balaggan made a statement to police. She said she was arrested on account of a suitcase containing cocaine forced on to her by an Englishman whilst she was staying in a hotel in Nadi. She then went on to describe a series of rapes and indecent assaults alleged to have been perpetrated by her lawyer and surety. This series of incidents commenced in February 2011 and continued in one form or another until her solicitor left with his wife for Australia on 9th June 2011.
  10. In the course of the first few days of July 2011 Ms Balaggan of her own volition informed the police that the allegations she had made against her lawyer were "falsified". On 8th July 2011 Ms Balaggan was charged by police in Suva in respect of the offence of giving false information to a public servant. She said she understood the charge and that she would tell the Court everything.
  11. Having read the relevant papers including all relevant affidavits and statements, I have formed the prima facie view for the purpose of this bail application that Ms Balaggan is manipulative and has made so many contradictory and inconsistent statements that she lacks any credibility. My prima facie view is that she will say anything without regard to truth or falsity if it will secure her bail or her acquittal on the drug charges at trial.
  12. I am of the opinion that at present time she is a flight risk if granted bail on any conditions. When the prosecution opines that Ms Balaggan will obtain false documents and travel to Australia if granted bail I accept that this is likely to happen given her attempts at manipulating investigative and judicial processes from the time of her arrest until the date of this judgement.
  13. I must consider whether, as Ms Balaggan contends, the hearing by Mr Justice Madigan on 28th July 2011 and the decision to remand in custody was flawed in any way. She contends that the bail application should have been adjourned so that she could be represented. I have no doubt that Ms Balaggan, in person, was invited by Justice Madigan to advance any relevant argument on the applications before the Court.
  14. Mr Justice Madigan made two decisions. Firstly in view of the offence committed by Ms Balaggan while on bail, the balance had shifted in favour of remanding in custody. Secondly he set a date of 12th August 2011 on which he would hear full argument from Ms Balaggan's lawyer and the prosecuting counsel.
  15. It is clear that the duty to decide on bail where the judge has decided to change the previous status quo by remanding in custody or by imposing new conditions is an immediate one. If the presumption in favour of bail has been displaced and the remanding of the person facing trial in custody is now required, it is the judge's duty to act immediately. In such a situation the priority must be given to protecting the forthcoming trial. As I said in the State v. Abdul Sattar, Miscellaneous Action No. 31 of 2010, in which the ruling was handed down on 2nd March 2011:

"In my view whatever the delay this Section 30 application before him was important in order to safeguard the course of justice in Criminal Case HAC 59 of 2010. As section 19(2)(c) says:


"as regard the public interest and the protection of the community".


In my view, therefore, whatever the inadequacies of the application by the State, the priority should have been to protect the High Court Criminal trial".


  1. So long as the unrepresented Ms Balaggan was afforded an opportunity to address the Court on the issues, there can be no valid supervisory criticism of Justice Madigan's hearing and decision of 28th July 2011 in which he revoked bail and remanded Ms Balaggan in custody.
  2. In as much as it is argued that this Court has power to declare the decision of Justice Madigan of 28th July 2011 unlawful on supervisory grounds, in my view the argument is incorrect. It is always possible that a judge or magistrate may make a bail decision for an arbitrary reason such as personal reason unconnected with the case. That would be misconduct in a public office. In such an extreme situation certiorari would lie. But in situations where the judge or magistrate acts in good faith and is required to make an immediate decision, there is no supervisory jurisdiction in a higher court to quash the decision and have it heard.
  3. In any event the legal framework in bail applications provides for further applications even if they are unmeritorious. So whatever is alleged to have gone wrong, can and should be remedied by an immediate renewed application for bail or review of bail.
  4. When Mr Justice Madigan reheard the bail application(s) on 11th August 2011, Ms Balaggan was represented by her lawyer and a full and very fair hearing took place. He decided that all three matters in section 19 of the Bail Act which allow a judge to refuse bail were in play. He said at paragraph 18 of his ruling of 13th August 2011:

"The Court is of the view that apart from breach of bail terms, there are serious misgivings about all three limbs of this legislative proviso."


Justice Madigan then considered carefully "flight risk" and concluded that it existed.


  1. I agree with the reasons of Madigan J given on 13th August 2011 and his decision as of that date. It was appropriate on 13th August 2011 to remand in custody pending trial.
  2. For the reasons that I have set out above in paragraphs 9 through 12, Ms Balaggan should continue to be remanded in custody pending her trial on the drug charge or until further order. This is my view as at the date of this judgment which is 15th September 2011. There have been developments since Justice Madigan's ruling of 13th August 2011. Ms Balaggan has pleaded guilty in the Suva Magistrates Court to the offence of Giving False Information to a Public Servant and is likely to be sentenced on 16th September 2011.
  3. As to when the trial on the drug charge will take place it is a matter for Mr Justice Goundar who is Acting Chief Justice. However I recommend that this trial, if possible, be listed to commence within weeks rather than within months.

Kankani Chitrasiri JA


  1. I agree with the judgment, reasons and proposed orders of William Marshall JA.

Sriskandarajah JA


  1. I also agree with the judgment, reasons and proposed orders of William Marshall JA.

William Marshall JA

ORDER OF THE COURT


  1. The Court orders

.................................................
Hon. Justice William Marshall
Justice of Appeal


.................................................
Hon. Justice Kankani Chitrasiri
Justice of Appeal


.................................................
Hon. Justice Sriskandarajah
Justice of Appeal


SOLICITORS
Gordon & Chaudhry for the Appellant
Office of the DPP for the Respondent


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