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Tikoniyaroi v State [2011] FJCA 47; AAU0043.2005 (29 September 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.AAU 0043/2005
[Lautoka High Court No. HAC 012/2001L]

BETWEEN

PITA TIKONIYAROI
SAMUELA ROGOIVALU
Appellants

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: 2nd and 3rd Appellants appeared in person
Mr S Qica for the Respondent

Date of Hearing: Monday, 5 September 2011
Date of Judgment: Thursday, 29 September 2011

JUDGMENT

William Marshall, JA

1. John Miller was the 1st Appellant in this appeal. Prior to the hearing on 5th September 2011 he applied to withdraw his appeal which was dismissed. I will call him "the former 1st Appellant". He was 1st Defendant at trial where he was represented by counsel Ms Khan. Pita Tikoniyaroi is the 2nd Appellant before this Court and the 2nd Defendant in the Court below. At the time of the incident in the Court below he was unrepresented and he is unrepresented in this court. Samuela Rogoivalu is the 3rd Appellant before this Court. In this Court he was unrepresented. He was represented in the Court below by Counsel Ms Nair.
   
2. I confine myself in this judgment to one issue. I see it as the principal issue in this appeal. In this informal Notice of Appeal dated 9th May 2005 Pita Tikoniyaroi puts the matter thus:
   

"It is respectfully submitted, Sir, that the learned judge was erred in law for proceeding the trial, because his Lordship says on dated 18 May 2004 that he knows the victim."

This was refined by State Counsel Mr A. V. Rayawa on 25th November 2008 into:

"That the learned Trial Judge was tainted with bias and should have recused himself from hearing the case. Judge had indicated in Court at page 29 of the Court Record that he knew the father of the deceased for many years and he knew 2 state witnesses namely James Ash and D. Elisha."

3. An earlier Court of Appeal sat and heard the present appeal. However the abrogation of the Constitution in May 2009 took place before the judgment was delivered. Mataitoga J was not re-appointed. The Supreme Court ordered a retrial before this present Court on these technical grounds. Prior to the earlier Court of Appeal trial the judgment of which has been set aside, all three appellants, with little regard to their informal grounds of appeal were represented by Mr Vosarogo, Counsel who wrote a submission on behalf of all three appellants dated 16th February 2009. His argument was that in respect of D. Elisha alone, the judge should have recused himself; the judge's failure to do so required the appeal court to say that there was a miscarriage of justice requiring a retrial; and that the consent of the Counsel at trial was obscure as to what was being asked of Counsel so that the proceedings were, despite the consent "unsafe" so that a new trial should be ordered.
   
4. The Court of Appeal that has had its judgment and proceedings set aside by the Supreme Court, in its judgment of 24th June 2009 accepted Mr Vosarogo's argument. In respect of Counsel's consent it added a new dimension in that it ruled that that consent of counsel was of no effect unless all three defendants had been personally consulted on the issue and then had given their informed consent. It quashed the convictions and ordered a retrial.
   
5. These materials are all before us in the record. Mr Vosarogo's written submission as amended by the earlier Court of Appeal represents Pita Tikoniyaroi's best case before this Court of Appeal. As stated above Pita Tikoniyaroi is unrepresented before us. Fairness in dealing with his appeal in my view requires that this argument be fully considered. Whatever the result it will or may provide future guidance for Court of First Instance in similar situations.
   
6. The record of the trial at pages 29 and 30 provides the evidence of the incident as follows. The assessors had just been sworn. The 2nd defendant Pita Tikoniyaroi was acting in person. Ms Nair was for Samuela Rogoivalu the 3rd Defendant. Ms N Khan was for John Miller, the 1st Defendant. The incident took place on 18th May 2004.
   

"Informed by court- Witness D. Elisha known to me and also father of the victim. Known many years ago.

Ms Nair – No problem.

Ms Khan – No problem.

Court Also Mr. Ash.

Ms Nair - No problem.

Ms Khan - No problems."

7. The record in its totality assists us to some extent. So far as "witness D. Elisha" is concerned he is not the father of the deceased Lalit Kishore because as is stated in the Particulars of Offence in respect of the murder charge the father of Lalit Kishore is Nand Kishore. It may be assumed that D. Elisha was a prosecution witness giving formal evidence which was uncontroversial as between the State and the three defendants. I say this because D. Elisha was not called as a witness at trial according to the record. His statement was not read into the record. His name is not mentioned at all in the proceedings according to the record. On 12th April 2005 the record shows 14 facts were formally agreed and the four signatures to these "agreed facts" were Prosecuting Counsel, Counsel for the 1st Defendant, Pita Tikoniyaroi the 2nd Defendant who was representing himself and Counsel for the 3rd Defendant. In my opinion it is established on the balance of probabilities from these facts in the record that D. Elisha was a witness whose statement was disclosed to the Defendants but at all times including on 18th May 2004 it was common ground between the prosecution and the three defendants that his evidence was uncontroversial and would be agreed by means of binding formal admission in writing signed by or on behalf of all parties.
   
8. The father of the deceased was Nand Kishore. Apart from the charges his name does not appear on the record. The prosecution witness who identified the body of Lalit Kishore was, according to agreed fact number 8, one Parmod Kumar s/o Ram Sukh. Indeed there is no evidence on whether Nand Kishore is alive or dead. All that is known about Nand Kishore is that he was an acquaintance of Justice Govind in the province of Ba "many years ago".
   
9. James Henry Ash was a Justice of the Peace resided in Ba province. He was also a Small Claims adjudicator. He was called in by the police. It must have been with the consent of Pita Tikoniyaroi. If Pita Tikoniyaroi did not want to see the Justice of the Peace he would not see him. The Justice of the Peace's job was to hear complaints arising from police investigation with the focus, in most cases, of complaint arising from interrogation of suspects. At the trial he would give evidence, if called, (usually on the voiredire). His evidence would not be relevant to the charges or the interrogation process but only in relation to the prisoner's complaints.
   

New evidence in appeals?

10. Since it was enacted first in England in 1907, the criminal appeal statutory framework in Fiji allows new evidence of fact material to the issues at trial but only if stringent conditions are satisfied. The authorities are very clear that it will only in be exceptional circumstances that such new evidence will be admitted.
    
11. In as much as the earlier Court of Appeal sought evidence from Pita Tikoniyaroi the 2nd Appellant, about what had happened in the incident at trial such evidence was not new factual evidence on the issues at trial. It was inadmissible in the appeal. It should not have been considered. It should not have been accepted or acted upon by the earlier Court of Appeal. The record was the only basis for resolving any questions.
    

Does Counsel have to take instructions from the client
on everything arising in the Court of trial?

12. In relation to John Miller, the former 1st Appellant and Samuela Rogoivalu, the 3rd Appellant, the earlier Court of Appeal acted on the basis that their Counsel could not validly answer for them without taking their express instructions. They found that this had not been done. This they ruled amounted to a miscarriage of justice. All three appeals were allowed.
    
13. The reason why the earlier Court of Appeal reasoned as they did is at paragraphs 19 and 20 of their set aside judgment. They said:
    

"19. In Halsbury's Laws of England (4th edition volume 3) at paragraph 1140, the learned Author says this of the duty of counsel in a criminal trial:

"What a barrister defending a client on criminal charge may legitimately do in the course of the defence is nowhere laid down but he is not entitled wantonly or recklessly to attribute to another person the crime with which his client is charged, and he should not make such an imputation unless there are facts or circumstances, or rational inferences to be drawn from them, which at the least raise a not unreasonable suspicion that the suggested person committed the crime.

The client must decide on his plea, his line of defence, and whether or not he is to give evidence himself. Counsel may of course properly advise on these matters, in strong terms if need be, but it is the client who must make the decisions: it is not for counsel to manufacture a line of defence. If the accused person instructs counsel that he is not guilty but decides not to give evidence, it is nevertheless counsel's duty to put the defence before the court to the extent, if necessary, of making positive suggestions to other witnesses."

20. It is implicit in the 2nd paragraph that Counsel must consult with his or her client on any question which might have a vital bearing on the conduct of the trial. This clearly includes a duty to take instructions from a client as to whether he wishes the Trial Judge to continue as the Trial Judge."

14. For my part there is in my opinion a world of difference between the present issue and a counsel running amok without any client instructions on the issue of "wantonly or recklessly" accusing other persons of the crime. It is correct and proper to say that "the client must decide on his plea, his line of defence and whether or not he is to give evidence" but these are quite irrelevant to the present issue. There may be other important matters where consultation between counsel and client is required. I am certain however that many other matters that arise in a trial are routine. Where the counsel is fully and properly instructed and he understands the client's mindset with regard to the conduct of the defence routine matters can be safely left to counsel. The enquiry of the judge in this incident was a routine one which could safely be left to counsel.
    

Apparent bias

15. Before the incident at trial is considered further, some attention should be given to the concept of apparent bias. There must arguably be a real possibility of actual or apparent bias. There was nothing in this case that could remotely be said to be actual bias on 20th April 2004 at the time of the incident or thereafter on the part of Mr Justice Govind. So what could amount arguably to apparent bias on Mr Justice Govind's part at the time of the incident? Or was there nothing at all that could amount to arguable bias?
    
16. I note that the earlier Court of Appeal was not assisted by either Prosecutor or Mr Vosarogo as to the leading authority in Fiji on the matter of differences if any on the test for apparent bias expounded in R v. Gough [1993] UKHL 1; [1993] AC 646 by the House of Lords as against that expounded by the High Court of Australia in Webb v. The Queen (1994) ALJR 582. Counsel are reminded that if they are aware of authorities against their argument, they have a duty to the Court to cite them and distinguish them if they are able to do so. Counsel for the appellants cited Amina Koya v. The State Criminal Appeal No. AAU0011/1996 in the Court of Appeal without citing the authoritative views of the Supreme Court in the same case. Prosecution Counsel did not cite Amina Koya in either Court. The citation in the Supreme Court is Amina Koya v. The State [1998] FJSC2. The passage is:
    

"Subsequently, the New Zealand Court of Appeal, in Auckland Casino Ltd v. Casino Control Authority (1995) 1 NZLR 142, held that it would apply the Gough test. In reaching that conclusion, the Court of Appeal considered that there was little if any practical difference between the two tests, a view with which we agree, at least in their application to the vast majority of cases of apparent bias. That is because there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias."

It is authoritative in Fiji because it is the Supreme Court and because the Court consisted of the respected Sir Timoci Tuivaga and two distinguished jurists. I refer to Lord Cooke of Thorndon and Sir Anthony Mason. Authority is added by the fact that it was Sir Anthony Mason as Chief Justice of Australia who gave the leading judgment in Webb.

17. One of the matters that must be addressed on deciding whether there is arguably a situation of apparent bias are the principles of law distilled from the decided cases on whether relationships of blood, friendship or close business or professional association give rise to situations of apparent bias.
    
18. Since the eighteenth century or earlier the law has been concerned with bias arising from blood relationship. Then on the nineteenth century possible partiality arising from a pecuniary interest that the judge might have in the outcome of a civil suit was considered. Since then it is accepted that if a judge holds shares in a company that may benefit financially from the lawsuit he or she may not sit as judge. Holding shares in a company is an example. If the judge has any pecuniary interest in the outcome he must stand down.
    
19. More recently the common law has considered close personal friendship and decided that it raises the real possibility of apparent bias.
    
20. But it has never been suggested that acquaintance short of close personal friendship with a party or witness raises the issue of bias actual or apparent. As the 5th Edition of Judicial Review of Administrative Action at page 535 written by Lord Woolf and Professor Sydney Jowell and recognised as the leading text states:
    

"Normally close personal friendship will give rise to a real possibility of bias. The English reports are almost wholly destitute of decisions on the point, but there is no reason for doubting that such a rule exists. In Australia the decision of a tribunal was set aside because a member of the tribunal was a personal friend of an applicant's husband.

Members of local tribunals are, of course, often acquainted with the parties who appear before them. A member who is a close friend of a party will normally think it proper not to sit if a quorum can be formed without him. In Gough the fact that a juror was a neighbour of the defendant's brother was held, on the facts of that case, not to have provided a real danger of bias."

21. The administration of criminal justice in common law jurisdictions has always faced up to and dealt with the problem of close knit communities in which justice must be done and must be seen to be done. In such communities the policemen who investigate crime, the judges who try criminal cases, the prosecutors and defenders, the alleged wrongdoers, the victims and their close families and the witnesses, are known to each other. Many are on speaking terms. Many more speak to the same people very frequently in the course of their work or their professional duty. But only close friendship and reasonably close blood and family relationship in the view of the common law raise a question to be asked and answered in respect of possible apparent bias.
    
22. These rules are supported by other institutions of the common law. Only persons, usually lawyers of experience, whose integrity is unquestioned are appointed as judicial officers. The judges and the lawyers and the police all swear to uphold the law and serve the community. What these oaths amount to is what the judge in the United Kingdom swears which is a public oath, "to do right by all manner of people, without fear or favour, affection or ill will".
    
23. Another important support is the adversarial system in criminal cases where the judge presides over a fair trial but the issues are joined between the State and the accused persons. Each side is free to call witnesses, whose evidence is material to the issues. These witnesses have to swear or affirm that they will speak the truth. Each side is free to cross-examine witnesses on all matters that might be relevant to their testimony. This assists whoever has the role at trial of being the tribunal of fact. In serious criminal cases the tribunal of fact is, in Fiji, the judge is assisted by the opinion of assessors.
    
24. It is accepted by the common law that there are situations where the possibility of being in a position of apparent bias must be raised and considered. Sir Stephen Sedley, the distinguished former Justice of Appeal in England in an influential lecture and paper on recusal, summarised in Counsel of May 2011 puts it this way at page 16:
    

"The difficulties occur in cases in which, while recognising that there is a connection which might give rise to an objection, the judge or herself does not consider it sufficient to require recusal. At the same time, by disclosing it and inviting submissions about it the judge has implicitly recognised that others might take a different view."

25. Applying these principles of law to the facts in this case I first of all consider Justice Govind's knowledge of Nand Kishore "many years ago". It is acquaintanceship not close friendship. It ceased "many years ago". Nand Kishore is or was a member of the victim's family. This relationship between Justice Govind and Nand Kishore in my view is not arguably one of "apparent bias". In my view it is not at all arguable that a judge who was merely an acquaintance of a victim's family member "many years ago" is in a position of "apparent bias". To suggest that judges appointed because of their integrity and who have sworn an oath of office, will influence a criminal trial over which they preside in favour of a conviction just because they in the past were acquainted with a member of the family of the victim is bizarre. The common law provides no support at all for any such proposition. Where justice has to be dispensed in a small relatively close community such as in the town and province of Ba, the administration of criminal justice would be undermined if this was to be regarded as being arguably "apparent bias".
    
26. When it comes to D. Elisha who was a prosecution witness and whose evidence was undisputed and on 20th April 2004 likely to be agreed in due course, there can be no question that Justice Govind's acquaintanceship with him could not have raised any arguable case of "apparent bias".
    
27. In respect of James Henry Ash JP the key indicators are acquaintanceship with no evidence of close friendship, and the fact that both Justice Govind and James Henry Ash JP are engaged with different roles within the local judicial system where in common with others working within the local judicial system they are bound to be acquainted.
    
28. As at 20th April 2004 it was likely that James Henry Ash would have a minor role as a witness when Pita Tikoniyaroi contested the admissibility of his statement under caution. His role was minor because he was able to testify only as to what Pita Tikoniyaroi said to him or complained to him when he chose to see a Justice of the Peace around the time of his interrogation.
    
29. James Henry Ash had a duty to give his evidence as a Justice of the Peace without partiality, fear or favour. Like Justice Govind his oath of office had been sworn so that he would act without partiality, fear or favour. In this limited involvement in the trial, in my opinion, there was no way the evidence of Mr Ash could be changed by any action on the part of whoever was the presiding judge. Nor do I think, given that both the witness and the judge were disinterested and had to perform their roles without favouring either the State or Pita Tikoniyaroi, there is any situation where Mr Ash's evidence would be scrutinised and assessed by the judge other than with the same objectivity as he would give to other contested voiredire witnesses.
    
30. Given the key indicators mentioned at paragraph 25 above, my finding is that in respect of James Henry Ash there was no arguable basis on which it could be contended that Justice Govind was in a position of "apparent bias" in respect of his acquaintanceship with James Henry Ash.
    
31. Given these conclusions, Justice Govind need not have raised his acquaintanceship with any of these three persons on 20th April 2004. In my view Mr Justice Govind said what he did out of an abundance of caution. He was not accepting that this was a situation where anyone at all could hold an objective opinion or belief that the underlying facts of his acquaintance with Mr Nand Kishore, Mr Elisha and Mr Ash gave rise to any arguable case that in accord with the authorities he was in a position of apparent bias.
    
32. Justice Govind was not inviting the defendants or their Counsel to do anything other than agree that on the facts of his disclosure, no arguable recusal issue arose. Justice Govind was not inviting submissions for recusal. He was certainly not saying that he, on the relevant fact and law, took the view that he must recuse himself.
    
33. Justice Govind was not inviting the defendants or their Counsel, to waive his recusal. For that to apply the position has to be reached where the Judge has concluded that he is in a position of actual or apparent bias and cannot and will not further hear the case unless the parties waive all objections to him hearing the case.
    
34. I am not surprised that a Judge in Fiji would choose to raise with Defendants and their Counsel peripheral facts of this kind even though on the law there was no arguable case of actual or apparent bias. The facts might become known at later date and their relevance or rather non relevance might be misunderstood innocently or otherwise. Better to obtain the confirmation of the defendants and Counsel that they agree that the facts disclosed cannot support an arguable case of apparent bias.
    
35. However, should such a situation arise in the future the learned judge should explain why he is disclosing these facts and his view that on the law applied to these facts apparent bias on his part is not arguable.
36. In many trials unrepresented defendants have to cope with matters raised during the trial by the trial judge. What if the judge puts such a matter to an unrepresented defendant who fails to respond? In my view the judge must take the view that silence means "I have nothing to say on the matter". Certainly in a peripheral matter where the judge is only acting out of an abundance of caution, that is the only reasonable answer to the question. Otherwise trials would be extended in a way that was not in the interests of justice.
    
37. In response to the case argued by Mr Vosarogo and amended by the earlier Court of Appeal, I hold for the above stated reasons:
    
    1. Justice Govind was raising matters short of the threshold where an enquiry into "apparent bias" and "recusal" was required to be offered.
       
    2. Counsel for John Miller and Samuela Rogoivalu had no duty in the circumstances to consult their clients.
       
    3. Pita Tokoniyaroi did not respond and his position was that he was indifferent to Justice Govind's statement of acquaintanceship with these three persons.
       
38. Before leaving this topic I would note some points and some developments in teh law in which a judge holds a hearing on an application that he recuse himself. To avoid any possible doubt may I clarify that the incident before Justice Govind on 20th April 2004 did not require any hearing on recusal.
    
39. But where a hearing is required Sir Stephen Sedley in the article in Counsel of May 2011 makes a number of well taken and influential points. I will refer to two of them.
    
40. Firstly, any trend for judges who after careful consideration do not think that the facts or connections sought to be used against them justify their recusal, but see recusal as an easier and softer option needs to be resisted. That is because it encourages forum-shopping. As Sir Stephen puts it at page 16 of the article in "Counsel" of May 2011:
    

"The temptation to take the line of least resistance and abandon the case is one that has to be resisted. It is a principle of prime importance that no party may choose its tribunal, whether by insisting on a particular judge or by objecting to one without sufficient cause. So no judge should stand down simply because one side has raised, or has taken advantage of the judge's disclosure of, a possible disqualifying interest."

In a recent criminal appeal preliminary judgment on a recusal application was handed down by the Court of Appeal on 12 September 2011 (Mahendra M. Patel and Tevita P. Mau v. FICAC; Criminal Appeal Nos 39 and 40 of 2011). The three judges in their judgment of the Court stressed the need to avoid forum shopping.

41. The second point relates to who decides whether the objection taken on the basis of a judge having disclosed something or done something is well founded or not. Sir Stephen Sedley on this point at page 16 says:
    

"In a court of three or five judges, this can often be accomplished by letting the other members of the court advise the judge on the challenge. It also, and importantly, enables the judge to state his or her own position, which may not have been fairly or accurately represented in the objection ...

... But the important thing is that the system should not compound one paradox – a judge who is unbiased but might reasonably be thought not to be – with a further paradox: a judge who, in order to decide whether he will be sitting as judge in his own cause, has to sit as judge in his own cause."

In the High Court for this advice to be followed the trial judge would request that a brother or sister judge should sit to hear the recusal application at the commencement of the trial.

42. Not having the judge who a party objects to, becoming a judge in his own cause, on hearing a recusal application is a good reason for departing from the Supreme Court ruling in Rakuita Vakalalabure v. The State Supreme Court Appeal No. CAV0003 of 2004 that a recusal application must be made to the trial judge and decided upon by him or her at the commencement of the trial.
    
43. In the recent appeal recusal application with judgment on 12 September 2011, the judge sought to be recused temporarily stood down from the panel and left the remaining three justices of appeal to decide the issue on contested evidence and to advise him whether or not he should recuse himself. (Mahendra M. Patel and Tevita P. Mau v. FICAC; Criminal Appeal Nos 39 and 40 of 2011). In fact the panel ruled that the judge may sit on the appeal "if he so desires". This avoided the judge in question being a judge in his own cause in assessing factual as well as judgmental matters.
    
44. If contrary to the position on the facts before Govind J a recusal hearing whether by the trial judge or a judge brought in to hear the recusal application, is necessary, the law on actual and apparent bias comes into play as well as the Webb and Gough test set out by Sir Timoci Tuivaga, Lord Cooke of Thorndon and Sir Anthony Mason in their judgment in Amina Koya v. The State (supra). The passage is set out at paragraph 16 above.
    
45. In 1993 Lord Goff in Gough was concerned with apparent differences between Lord Deaning MR in Metropolitan Properties Co (FGC Ltd) v. Lannon [1968] EWCA Civ 5; [1969] 1 QB 577 and Devlin LJ in Reg v. Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2QB 167, at pages 667 and 668 of Reg v. Gough [1993] 2 AC 646.

Lord Goff states:

"The only difference between them seems to have been that, whereas Devlin L.J., spoke of the impression which the court gets from the circumstances, Lord Denning M.R. looked at the circumstances from the point of view of a reasonable man, stating that there must be circumstances from which a reasonable man would think it likely or probably that the justice, or chairman, was biased. Since however the court investigates the actual circumstances, knowledge of such circumstances as are found by the court must be imputed to the reasonable man; and in the result it is difficult to see what difference there is between the impression derived by a reasonable man to whom such knowledge has been imputed, and the impression derived by the court, here personifying the reasonable man."

46. The reason why the Supreme Court comprising Sir Timoci Tuivaga, Lord Cooke of Thorndon and Sir Anthony Mason in Amina Koya v. The State thought "there is little if any difference [ between Gough and Webb ]" is because the Court investigates the actual circumstances and makes findings thereon and then imputes them to the "reasonable and informed observer" as it is described in the Webb test.
    
47. It follows that the word "informed" which qualifies the word "observer" is of vital importance. This Court gave judgment in the bail appeal of Ms Muskan Balaggan on 15 September 2011 (Muskan Balaggan v. The State Miscellaneous Action No.31 of 2001). The question was whether a judge who has refused bail based on prima facie findings that the prosecution evidence is likely to be lead at trial was very strong, must recuse himself from hearing the substantive criminal trial. The answer of the Court of Appeal was that the word "informed" meant that the observer had to be imputed with the Court's knowledge of the common law history as well as the legal nature of bail applications. It was concluded in respect of bail applications that there is no requirement for a trial judge to recuse himself because of prima facie and interlocutory findings made by him as required to decide upon the earlier bail application.
    
48. Suppose the facts declared in the present case had shown that witness D. Elisha was a very close friend and constant companion of Justice Govind. A recusal hearing would be necessary. But the informed observer would be imputed not only with knowledge of the law of bias in respect of close friends and acquaintances, but also the knowledge that his evidence was uncontroversial and likely to be agreed by the prosecutor and the accused persons or their counsel. The informed observer would also be imputed with knowledge of the Judges oath and that it is an answer to the appearance of partiality "save in the sharpest and clearest cases" (Sir Stephen Sedley in "Counsel" May 2011 page 16). Given this imputed information it is likely that Justice Govind would not need to recuse himself in the view of the "informed observer".
    
49. The foregoing with its focus on what does or should happen when a trial judge discloses facts that might lead to consideration of whether he should recuse himself at trial is useful. After consideration of Pita Tikoniyaroi's best argument for acquittal, the only conclusion in my view is that that argument completely fails. But on the facts of this case there is another point, which on consideration of it before the earlier Court of Appeal as well as before this Court, must inevitably lead in short order to an immediate conclusion of failure.
    
50. That is because in March 1998 in the above discussed Supreme Court decision in Amina Koya v. The State the principal point was whether the trial judge should have recused himself. Mr Justice Lyons who presided over the criminal trial of Ms Amina Koya had, while practising in Brisbane as a barrister prior to his appointment in Fiji, had been consulted in the cause of Ms Amina Koya by her barrister Mr I Q A Khan. Mr Lyons had advised on the disclosures with a view to a "no case" submission in the Magistrates Court. He had suggested authorities that should be and were cited by Mr Khan.
    
51. The Supreme Court of Fiji per Sir Timoci Tuivaga, Lord Cooke of Thorndon and Sir Anthony Mason decided that when the High Court trial has taken place and a higher court is hearing the appeal, what the appeal court does is look to the record and if the High Court judge under attack has performed with impeccable fairness and propriety. If the trial judge has so performed there is no case on appeal on the basis of miscarriage of justice arising from non-recusal. The Supreme Court said:
    

"In the present case, we are not concerned with the question whether a judge or juror should be disqualified at the commencement of an action or trial, that is, when the course of the proceeding lies ahead and one is necessarily contemplating the realm of possibilities. Here we are concerned with a trial which has actually taken place and with the question whether there has been a miscarriage of justice on the ground that there was a real danger of bias or a reasonable apprehension or suspicion of bias. In the determination of that ground, the record of the trial, showing how it was conducted by the trial judge, is of fundamental importance. Generally speaking, if the record were to demonstrate that a judge sitting with a jury conducted a trial impeccably, it would be difficult to establish that there was a real danger that the trial was vitiated by apparent bias or that a fair-minded observer, knowing the facts, would reasonably apprehend or suspect that such was the case."

52. This Court is bound to follow the Supreme Court's judgment in Amina Koya. The principle to be applied is that where the trial has take place, and there is an appeal that the High Court Judge who presided should not have sat on account of apparent bias, the only issue is whether a miscarriage of justice has taken place. If the record is examined it shows that the Judge acted fairly and correctly throughout then there is no miscarriage of justice. The judgment of Sriskandarajah JA below examines the trial of the appellants and the record shows that Mr Justice Govind acted correctly throughout including a summing up which was a model of impartiality. This appeal was always doomed to fail on this relatively short and decisive point.
    
53. It would have been Mr Vosarogo's clear duty to cite the Supreme Court's decision in Amina Koya in his case for the Appellants of 16th February 2009. But if we examine that case, there is only reference to the Court of Appeal decision in Amina Koya which was Criminal Appeal No. AAU 0011 of 1996. What is more the Supreme Court judgment clarified authoritatively in Amina Koya the very points that Mr Vosarogo cited in his argument. It is stretching credibility to say that Mr Vosarogo did not know of the Amina Koya decision in the Supreme Court. It is extremely unsatisfactory. The previous Court of Appeal would likely have reached a different decision had the Supreme Court judgment been cited to them.
    
54. The prosecutor in his argument would only have been doing his job properly on behalf of the State if he had cited the Supreme Court decision in Amina Koya. In any event it was clearly his duty to the Court to cite the decision and what I have quoted from it at paragraph 51 above. But after looking carefully at Mr A V Rayawa's argument, I find apparent bias discussed in terms of In Re Pinochet [1999] UKHL 52 and, in the Fiji Court of Appeal, the case of Barbados Mills v. The State 2005 FJCA 6 No. AAU0035 of 2004S. Amina Koya in the Court of Appeal or in the Supreme Court does not get a single mention. It is extremely unsatisfactory.
    
55. I agree with the orders proposed by Sriskandarajah in this case. In respect of his reasons with respect to the other grounds of appeal he has considered and rejected I fully agree and have nothing to add.
    

Kankani T. Chitrasiri, JA

56. I agree with the Judgement and proposed orders of Sriskandarajah JA. I also agree with the decision of William Marshall JA.
    

Sriskandarajah, JA

57. The three Appellants were charged with the offence of murder contrary to section 199 of the Penal Code Cap17. They were also jointly charged with robbery with violence contrary to section 293 (1)(a) of the Penal Code. On 29th of April 2005 in the Lautoka High Court before Govind J and assessors all three Appellants were found guilty as charged of murder and of robbery with violence. For murder each was sentenced to life imprisonment and to a minimum term of 12 years which was to run concurrently with any other sentence they might then be serving. For the robbery the judge imposed a concurrent term of four years imprisonment on each Accused.
    
58. An appeal against the aforesaid judgement was heard on the 3rd of April 2009 and the court announced that the appeal would be upheld and the re-trial of all the Appellants be heard in Lautoka before another judge. The reasons for the judgement were reserved for the 15th of April 2009 and the Appellants were remanded in custody.
    
59. By the abrogation of the Constitution of Fiji by His Excellency the President on the 10th of April 2009 the appointments of all members of the Judiciary were revoked. Out of the two judges Byrne JA and Mataitoga JA who heard the appeal only Byrne JA the presiding Judge was re-appointed on the 25th of May 2009. Byrne, JA on the 24th of June 2009 delivered further reasons for the judgement delivered on 3rd April 2009.
    
60. On 26th July 2009 the state filed a petition for special leave to appeal against the judgement of the Court of Appeal delivered on the 24th of June 2009, on the ground that the appellate proceedings are a nullity as the judgement delivered was not the judgement of a duly constituted court.
    
61. The Supreme Court of the Fiji Islands at Suva in its judgement in Criminal Appeal No.CAV0008/2009 dated 15th April 2011 quashed the decision of the Court of Appeal and further ordered that the appeal before the Court of Appeal is to be re-heard before a different panel comprising three judges.
    
62. The present appeal before this court is a re-hearing of the appeal of the three Appellants who were convicted and sentenced by the decision of the High Court sitting in Lautoka dated 5th of May 2005. Before the appeal was heard John Miller who was the 1st Appellant, through the Director of Legal Aid, informed this court that he does not wish to pursue his appeal in the Court of Appeal. The 2nd and 3rd Appellants Pita Tikoniyaroi and Samuela Rogoivalu appeared in person and informed the court that they are pursuing the appeal.
    

The summary of Grounds of Appeal and the Additional Grounds of Appeal

63. The grounds of appeal in summary are:
    

"1) The proceedings, conviction and therefore sentence is unsafe when the judge failed to recuse himself from hearing the case given the conflict which existed that would lead any conclusion to the proceedings unsafe.

2) That the Learned Trial Judge erred in law by accepting as evidence the confession of the 2nd Appellant which was unlawfully obtained by the police.

3) The Learned Trial Judge erred in law in allowing the medical report of the 2nd Appellant to tender as evidence as it was objected by the 2nd Appellant without calling the medical practitioner.

4) That no malice aforethought was established to convict 3rd Appellant of murder."

Consideration of Grounds of Appeal and Submissions

Ground of Appeal No.1

64. The first ground of appeal is on the issue of fair trial. The Appellants contended that the Learned Trial Judge after declaring that witness D.Elisha known to him and the father of the victim known many years ago would have recuse himself from hearing the case to ensure fair trial to the Accused.
    
65. The Learned Trial Judge after giving his mind to the fact that he knew witness D. Elisha and the father of the victim many years ago decided to hear this case. As a precaution he brought this fact to the notice of the Accused at the beginning of the trial. The 1st and 3rd Accused were represented by counsel. The 2nd Accused appeared in person but granted legal aid. The counsels appearing for the Accused gave their consent for the Learned Judge to hear this case. The 2nd Appellant contended that he has not given proper instruction to his Counsel. In this background the consent given by his counsel is not relevant.
    
66. When the Accused came to know that the Learned Judge knew witnesses D.Elisha, James Henry Ash of Ba and the father of the victim and if they were of the view that this fact causes a conflict of interest or bias that would affect a fair trial to the Accused, they should have made a recusal application. It is trite law that in a recusal application, the application must be made before the judge trying the case; Rakuita Vakalalabure v. The State, Supreme Court, Appeal No CAV0003 of 2004. In this case no such application was made at any stage of the trial even though the Accused came to know this fact at the beginning of the trial. Objection to a decision- maker is generally deemed to have been waived if the party or his legal representative knew of the disqualification and acquiesced in the proceedings by failing to take objection at the earliest practicable opportunity.
    
67. The question is whether in the given circumstances the failure of the Trail Judge to have recused himself on his own motion had tainted the proceedings with an appearance of bias that affect a fair trial to the Accused.
    
68. The principle that no man shall be judge in his own cause is based on this rule against bias and is intended to ensure that decision makers are as independent as is practicable. The rule of bias, which is the same thing as the principle of nemo judex in causa sua potest which means literally that no man shall be a judge in his own cause. But as a rule of natural justice that maxim has wider connotation and prevents any person suspected of being biased from deciding a matter.
    
69. R v. Gough [1993] UKHL 1; [1993] AC 646 the House of Lords considered various tests in relation to an allegation of bias on the part of a juror in a criminal trial. Having carefully considered the authorities, it was held that direct pecuniary or proprietary interest always disqualified the decision- maker. Outside of that category, it was held that the correct test is whether, in the circumstances of the case, the court considers that there appeared to be a "real danger of bias". In such a case, the decision should not stand. This test is similar to that of the "real likelihood of bias" and it was made clear that it refers to the possibility-not probability – of bias. The "reasonable suspicion test" was thus rejected. It was also held that the same test should be applied in all cases of apparent bias (whether concerning justices, members of inferior tribunals, arbitrators, justices' clerks or jurors). It was held too that the "real danger" test should be applied from the point of view of the court, not from that of the "reasonable man". The test in Australia confirmed in Webb v. The Queen [1994] HCA 30; (1994) 68 AL JR 582 at 605 is:
    

"that a judge should not sit to hear a case if in all the circumstances the parties or he might entertain a reasonable apprehension that he might not bring that an impartial and unprejudiced mind to the resolution of the question involved in it".

70. In the present case the issue of bias was raised at the appeal stage as in Amina Begum Koya v. State [1998] CAV0002 of 1997 where the Supreme Court observed:
    

"We are not concern with the question whether a judge or juror should be disqualified at the commencement of an action or trial, that is, when the course of the proceeding lies ahead and one is necessarily contemplating the realm of possibilities. Here we are concern with a trial which has actually taken place and which the question whether there has been a miscarriage of justice on the ground that there was a real danger of bias or a reasonable apprehension or suspicion of bias".

The Supreme Court held:

"In the determination of that ground, the record of the trial, showing how it was conducted by the trial judge, is of fundamental importance. Generally speaking, if the records were to demonstrate that a judge sitting with a jury conducted a trial impeccably, it would be difficult to establish that there was a real danger that the trial was vitiated by apparent bias or a fair-minded observer, knowing the facts, would reasonably apprehend and or suspect that such was the case".

71. As in the above case in the present case too the allegation of bias was raised at the appeal stage therefore this court has the benefit of looking into the record to see how the Learned Judge has conducted the trial. The record shows that the Learned Trial Judge disclosed to the Accused that he knew D. Elisha the father of the victim and James Henry Ash a Justice of the Peace which facts were not known to the Accused. This was to give an opportunity for the three accused to make an appropriate application if they wished. It is a fact that by taking into consideration the nature of Fiji's society by size it is inevitable for the local judges to come to know many people. If judges are to disqualify themselves from hearing cases only because they know certain witnesses then the judicial system cannot function.
    
72. Considering the proceedings from Voir dire to substantive trial there is no material to show that the decision has in fact, been affected or coloured by personal interest or a built-in tendency to support, albeit unwittingly the prosecution. The Appellants have not shown that the Learned Trial Judge had personal interest in the said case or had conducted the trial in a manner supportive of the prosecution or that he was prejudiced towards the Appellants. In the absence of any resemblance of bias in the proceedings or in the order, the complaint of the Appellants that the failure of the Trial Judge to recuse himself from hearing the case had denied the Appellants' right to a fair trial has no merit and it cannot be considered as a ground of appeal against the conviction of the Appellants. Therefore in my view the appeal fails on this ground.
    

Ground of Appeal No. 2

73. The 2nd ground is based on the admission of confession of the 2nd Appellant as evidence which the appellant claimed was unlawfully obtained by the police.
    
74. The Learned Trial Judge in his ruling on voiredire has dealt in detail the evidence of the police officers who arrested the 2nd Appellant and the medical evidence and other evidence in relation to the voluntary nature of the 2nd Appellant's statement. The Learned Judge observed:
    

"I accept the evidence of the police officers who asserted that there was no violence or threats at any time. They gave me the impression of being honest witnesses and their evidence is consistent with the medical evidence."

75. The Trial Judge in his ruling said:
    

"I accept that there was no threat or assault on the Accused to procure his signatures and the answers recorded were given by him. ... ... I also am similarly satisfied that all cautions were administered and the failure to inform him of right to Legal Aid did not result in any unfairness".

76. The Learned Judge's ruling on voiredire that all the disputed statements and admissions are admissible in evidence was arrived at based on finding of facts by the Learned Judge. It would be inappropriate for an Appeal Court to disturb such a finding without having the privilege of hearing the evidence, Pati v. Singh [2003] FJCA 51. Hence, in my view this appeal fails on this ground.
    

Ground of Appeal No.3

77. The 3rd ground is based on the improper admission of the medical report of the 2nd Appellant Pita Tokoniyario in evidence. The contention of the 2nd Appellant is that he had been beaten but the medical report shows no external injuries or tenderness because the doctor wrote down, whatever the police told the doctor.
    
78. The 2nd Appellant was represented by a Legal Aid Counsel at the stage of Voir dire. Counsel informed court that there is no objection for the tendering of the medical report but that she wished to cross-examine the doctor. The court assured her that if the doctor was available to be called for cross-examination he would be called. The court adjourned to facilitate the doctor to be present on the following day. As the doctor was away in Macuata on duty on that day Counsel for the 2nd Appellant did not insist on the doctor's attendance and by consent the medical report was accepted as evidence at voiredire.
    
79. Ms Nair was Counsel for Samuela Rogoivalu at trial. Since the only contested statement under caution was that of Pita Tikoniyaroi, Mr Justice Govind asked her to represent Pita Tikoniyaroi in respect of the voiredire only. Although Samuela Rogoivalu would be present and would continue to be represented by Ms Nair, this part of the trial only actively involved Pita Rogoivalu. Justice Govind delivered his voiredire ruling on 20th May 2004. Justice Govind then informed Pita Tikoniyaroi that he had tried to obtain legal aid counsel for him for the rest of the trial, but had failed. Pita Tikoniyaroi said that if supplied with a copy of the papers and Archbold he would be ready in one month. The hearing of the charges did not resume until 13th April 2005. Pita Tikoniyaroi had agreed with the other Counsel concerning written submissions of fact on 12th April 2005. On that day he applied to cross-examine the interviewing and charging officers. That was agreed to by the Prosecuting Counsel and the Court. When the trial before the assessors resumed on 13th April 2005, Pita Tikoniyaroi defended himself. After the close of the Prosecution case the accused were informed of their rights. The 1st and 3rd Appellants wished to remain silent. Pita Tikoniyaroi wished to give unsworn evidence and to call the doctor who had examined him as a witness. He was informed by the Court that the doctor was not available to give evidence. He then requested that the medical report be taken out. This was done. The proceedings revel that the medical report was not read to the assessors.
    
80. The medical report of the 2nd Appellant Pita Tokoniyario was admitted in evidence in the Voir dire with the consent of the Counsel of the 2nd Appellant. When the 2nd Appellant objected to the medical report in the trial it was removed. It was neither read to the Assessors nor did the judge in his summing up consider the medical report of the 2nd Appellant as part of the evidence. In these circumstances tendering of the medical report in the trial and the withdrawal of the same would not have caused prejudice to the 2nd Appellant. As such, in my opinion, this appeal fails on this ground.
    

Ground of Appeal No. 4

81. The 3rd Appellant challenged that no malice aforethought was established in the trial to convict him of murder. In the medical report on the deceased Lalit Nand Kishore the doctor observed that a towel tightly tied around the mouth of the deceased which was open and tongue pulled backwards. The towel was heavily blood stained and partially obliterating his nose. The cause of death is asphyxia due to suffocation. The doctor also remarked that the lower limbs tied together above ankle with raffia. Both upper limbs tied together at wrist with telephone receiver cord and 2.5 mm wide insulated electrical cord. The deceased had 12mm x 1mm incised wound down to frontal bone and contusion on the right side of the forehead, temple and upper face. This is consistent with attack of Appellants on the deceased head with a stone and when he fell down they tied the legs and hands of the deceased and thereafter tightly tied a towel around the mouth thereby partly obliterating the nose.
    
82. The Learned Judge in his summing up in relation to malice aforethought and "Law for common enterprise" stated:
    

"The expression 'malice aforethought' is a collective name for those mental attitudes which turn the killing of a person into murder. Thus it means the intent, the state of mind that the prosecution must prove that the Accused had at the time they are alleged to have caused the death by their unlawful act.

The necessary intent or state of mind of Accused is established by proving only one of the followings:

1. The Accused intended to cause the death of Lalit Kishore, or
2. The Accused intended to do grievous harm, or serious injury or
3. That the Accused knew that his unlawful act would probably cause death
4. That the Accused know that his unlawful act would probably cause grievous harm.
   

Provided that an Accused had the knowledge that his act would probably cause death or grievous harm it does not matter whether he was indifferent whether Lalit Kishore died or not, nor does it matter that he might even have wished that neither death nor grievous harm were caused.

I think you will know that grievous harm simply means serious injury".

83. In explaining the Law for "common enterprise" the Learned Judge stated as follows:
    

"That the three Accused had pre-planned to rob the deceased and in the early morning of the 14th September, they struck the deceased with a stone and when he fell tied him up and robbed him. The deceased died as a result of their action. It also relies on what is known as law as common purpose.

The law relating to this matter is this. If two or more people agree or plan to commit an offence each one is guilty of the offence no matter who did what."

He has explained this principle with examples.

84. The judge in his conclusion of the summing up stated:
    

"It has been suggested to you that malice aforethought is the main issue. That is basically correct. But here the evidence is slightly different. The evidence adduced by the State is that the deceased was felled by a stone and bleeding from the head before he was tied up. Therefore the questions you have to ask in respect of each Accused on count one are:

(1) Were any or all of the Accused a party to the pre-planning and taking part in the robbery?

As for the 1st and 3rd Accused they have agreed and admitted that they took part, so you find that they did.

In respect of the 2nd Accused if you are not satisfied beyond a reasonable doubt that he was a participant you will advise me that he is not guilty and that is the end of the matter as far as he is concerned.

But if you satisfied beyond reasonable doubt that he also participated, then you will go on to consider the next question against all three.

(2) Did they when they tied him up as they did especially with a towel tightly around his mouth knowing already that he was injured in the head and bleeding, know that either

• (a) That death would occur or
• (b) That grievous harm would result
  

If you are satisfied beyond a reasonable doubt that any or all the Accused had such knowledge of death or serious harm occurring then you will advise me that such Accused is guilty of murder. If you are not satisfied you will advise me that the Accused are guilty of manslaughter."

85. On these directions the Assessors unanimously found all three Accused guilty of Murder and a verdict of guilty of robbery with violence against Accused 2. Accused 1 and 3 have already pleaded guilty of robbery. Justice Govind concurred in the unanimous opinion of the Assessors and convicted each Accused on both counts as charged.
    
86. This ground of appeal was raised by the 3rd Appellant. He was represented by Counsel at the trial. But the Counsel for the 3rd Accused had not brought to the notice of court any defect in the summing up. As a general principle it is Counsel's duty at trial to draw the attention of the Trial Judge to deficiencies in the summing up and that a failure to do so may debar the Accused from taking the point on appeal: Singleton v. French (1986) 5 NSWLR 425,440, per McHugh J; Evans v. R [2007] HCA 59; (2007) 241 ALR 400,459-460 [236], per Heydon J. However, where an Appellate Court is satisfied that, despite Counsel's failure to object to the summing up, an injustice may have occurred at the trial, it may quash the convictions: R v. Glover [1928] NSWStRp 36; (1928) 28 SR (NSW) 482,487, per Street CJ (with whom Ferguson and Campbell JJ concurred). The Learned Judge has covered all the relevant points in his summing up in particular the malice aforethought and "Law as common purpose" therefore no injustice or prejudice had been caused to the 3rd Accused. Hence there is no merit in this ground of appeal.
    
87. For the reasons I have given I consider that the Appellants were lawfully convicted and properly sentenced. I would dismiss this appeal.
    

William Marshall, JA

ORDERS OF THE COURT

88. The Court orders
    

(1) The appeals of Pita Tikoniyaroi and Samuela Rogoivalu be dismissed.

(2) The conviction and sentence in the court below be confirmed.

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

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

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