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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO. AAU 049 of 2016
[In the High Court at Labasa Case No. HAC 53 of 2015]
BETWEEN:
ILAISA CAKAU
Appellant
AND:
STATE
Respondent
Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA
Counsel: Mr. S. Waqainabete for the Appellant
: Dr. A. Jack for the Respondent
Date of Hearing: 07 February 2022
Date of Judgment: 03 March 2022
JUDGMENT
Gamalath, JA
[1] I have read in draft Bandara, JA’s judgment and I am in agreement with the judgment and its conclusions.
Prematilaka, JA
[2] I have read the draft judgment of Bandara, JA and agree with reasons and conclusions, herein.
Bandara, JA
[3] The Appellant who was charged with one count of Rape Contrary to Section 207 (1) and (2) (b) and 3 of the Crimes Act 2009, stood trial before the High Court at Labasa.
Facts and antecedent proceedings
[4] The information read:
“COUNT 1
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
ILAISA CAKAU, between the 1st day of May, 2014 and the 31st day of May, 2014, at Taveuni in the Northern Division, inserted his finger into the vagina of SALLY (the true name withheld), an 11 year old girl.”
[5] The Appellant had raped the victim, who was 11 years of age at the time of the offence, when he inserted his finger into her vagina. Upon his arraignment on the 18th April 2016, the Appellant entered a plea of not guilty and the trial commenced. At the conclusion of the trial the assessors returned a unanimous opinion on of not guilty.
[6] The Learned High Court Judge overturned the ‘not guilty’ opinion of the assessors, convicted the Appellant of the said offence, and sentenced him to a 16 years of imprisonment with a non-parole period of 12 years imprisonment. Being aggrieved by the said conviction the Appellant filed a timely notice of appeal on the 16th April 2016, advancing two grounds of appeal only against the conviction.
[7] On the 24th May 2019, single Judge of Appeal refused leave on both grounds. On the 27th May 2019, a timely renewal notice was filed on behalf of the Appellant. On the 10th June 2021, the Appellant filed an amended renewal notice. In the course of the arguments before the Full Court the defence relied only on the two entirely new grounds of appeals contained in the said “amended renewal notice.”
[8] The State objects to the entertainment of the two completely new grounds, on the basis that; “there is no statutory authority to amend a renewal notice filed under section 35 (3) of the Court of Appeal Act 1949.”
[9] In its written submissions the State further states:
“...if an appellant wishes to pursue entirely new grounds after leave has been refused, he or she must file a fresh notice of appeal, and meet any applicable procedural requirements as set out in the Court of Appeal Act 1949 and the Court of Appeal Rules 1949.”
[10] The said two fresh grounds of appeal read as follows:
“Ground One
THAT the Learned Trial Judge erred in law and in fact when he continuously intervened and interfered with the trial process disabling the Appellant from having his defence fairly heard which further disabled him from having a fair trial.
Ground Two
THAT the Learned Trial Judge’s continuous interference amounted to an apprehension of bias towards the Appellant’s Counsel and by extension towards the Appellant which further resulted in the conviction being unsafe and caused a substantial miscarriage of justice.”
[11] As mentioned earlier the Appellant filed the amended renewal notice on the 10th June 2021, pursuant to section 35 (3) of the Court of Appeal Act which reads:
“35 (3) If the Judge refuses an application on the part of the Appellant to exercise a power under subsection (1) in the Appellant’s favor, the Appellant may have the application determined by the Court as duly constituted for the hearing and determining of appeals under this Act.”
[12] In Rokete v State [2019] FJCA 49; AAU 0009.2014 (7 March 2019) where the Court of Appeal reiterated the observations of the Supreme Court in Tuwai v State [2016] FJSC 35; CAV 0013.2015 (26 August 2016) where it was held that:
“82. It is improper that litigants be allowed to argue their cases on piece meal basis. Once a set of appeal grounds are unsuccessful, they raise another set to test whether that will hold some substance. If stringent rules are not applied where necessary, there will never be an end to litigation and there can be huge disruptions to case management in the appellate court.
[13] In Rokete Court of Appeal observed that:
“[9]...... Grounds 11-13 are the same as 01-03 grounds urged at the leave stage and the rest are completely fresh grounds of appeal. However, I am constrained to reiterate the sentiments expressed by the Supreme Court in Tuwai v State CAV 0013.2015: 26 August 2016 [2016] FJSC 35 with regard to totally new set of grounds of appeal being brought before the Full Court which, I believe, is advanced more in desperation than in conviction. Time and resource of any appellate court are too precious to be sacrificed for such an exercise.”
[14] Rule 37 of the Court of Appeal Act is to the effect that:
“37. In addition and without prejudice to the right of appeal conferred
by this Part..., a judge of the [High Court], at the conclusion of the
hearing by him [or her] of any appeal or case stated from a [Magistrates
Court]in any criminal cause or matter, may reserve, on a case stated by
him [or her], any question of law which seems to him [or her] to be of
general public importance and which may have arisen during such hearing,
for consideration by the Court of Appeal, and shall give his [or her]
judgment subject to the opinion of the Court of Appeal on such point of law.
The Court of Appeal shall have power after hearing the appellant or his [or
her] barrister and solicitor, if he [or she]appears, and the respondent or
his [or her]barrister and solicitor, if he appears, to determine every such question, and shall notify the [High Court] of its decision,
and the judge
shall make such order, conformable with the decision of the Court of Appeal, as may be necessary: Provided that in the event of such
judge dying or departing from [the Republic of] Fiji or being otherwise incapacitated from acting, another judge may make such order.”
[15] In Rokodreu v State [2018] FJCA 209; AAU 0139.2014 (29 November 2018), the Court of Appeal held that, Rule 37 of the Court of Appeal Act, on the ‘Amendment of Notice of Appeal’, would not come to rescue of an appellant, when totally new grounds are sought to be urged before the Full Court but still entertained the new grounds of appeal to ensure that no miscarriage of justice would occur.
[16] In Nasila v State [2019] FJCA 84; AAU 0004.2011 (6 June 2019) Court of Appeal held that:
“[14] ...the most reasonable and fair way to address this issue is to act on the premise that the new grounds of appeal against conviction submitted by the LAC should be considered subject to the guidelines applicable to an application for enlargement of time to file an application for leave to appeal, for they come up for consideration of this court for the first time after the appellant’s conviction. This should be the test when the full court has to consider fresh grounds of appeal after the leave stage. In other words, the appellant has to get through the threshold of extension of time (leave to appeal would automatically be granted if enlargement of time is granted) before this court could consider his appeal proper as far as the two fresh grounds are concerned.
[23] In my view, therefore, the threshold for enlargement of time should logically be higher than that of leave to appeal and in order to obtain enlargement or extension of time the appellant must satisfy this court that his appeal not only has ‘merits’ and would probably succeed but also has a ‘real prospect of success’ (see R v Miller [2002] QCA 56 (1 March 2002) on any of the grounds of appeal. If not, an appeal with a very substantial delay such as this does not deserve to reach the stage of full court hearing.
[24] The test of ‘real prospect of success’ would help achieve the criteria for enlargement of time as set out by the Supreme Court in Rasaku as follows
8 ‘[19] Enlargement of time has generally been permitted by courts only exceptionally, and only in an endeavor to avoid or redress some grave injustice that might otherwise occur from the strict application of rules of court.’
[25] Otherwise, belated and unmeritorious appeals would consume the limited resources of the appellate court at the expense of timely and meritorious appeals which have successfully passed the threshold for leave to appeal and in such cases some of the appellants may be forced to serve the full sentence before their appeals finally reach the full court, as the roll of the court may already be clogged with underserving cases.”
[17] The guidelines applicable to an application for enlargement of time to file an application for leave to appeal is set out in McCaig v Manu [2012] FJSC 18; CBV 0002.2012 (27 August 2012):
“[11] In applications of this kind appellate courts consider five factors to ensure a principled approach to the exercise of a judicial discretion. Those factors are:
(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit, justifying the appellate court’s consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?”
[18] In the instant case principles at paragraphs (iii), (iv) and (v) above are relevant for consideration along with the principle set out in Rokodreu v State (Supra) and Nasila v State (Supra).
Brief summary of evidence
Version of the Prosecution
[19] The victim Sally was born on the 31st March 2004 and was 11 years old at the time of the incident. Sally testified that when she was in class 3 she went to live with the Appellant (the Pastor) and his wife. On one particular night when the victim was sleeping the Appellant came into the room and fondled her breasts.
[20] The next day in the night the Appellant came again to her room and had shone a light on her body. On the third night he went into her room and lay down beside her. On the fourth night the Appellant came in, undressed her, and having spread her legs had unsuccessfully tried to penetrate her with his penis and thereafter had used his hand, to penetrate.
[21] The victim stating in evidence that he “poked my hole in the female part” had demonstrated an upward movement of two fingers. The victim eventually complained to the village headman first and then to her mother about the ongoing sexual assaults. In the course of the cross-examination she said that on the fourth night she was woken when the Appellant was undressing her. He then had laid on her and proceeded to penetrate her with his hand causing injury to her private parts.
[22] At the time when these sexual assaults were occurring the wife of the Appellant was away in Labasa. According to the victim the Appellant “used his hand to sustain injuries”, and “He penetrated with his hand and he caused injuries.”
[23] The mother of the victim was the second witness for the prosecution who testified, that the Appellant Pastor and his wife came to her offering to sponsor Sally’s education if she lived with them. One day the victim had come home and had refused to return to the Appellant’s house. When asked why the victim had eventually told her that the Appellant had fondled her breasts and used two fingers to “insert inside”. Court had observed the witness demonstrating an upward movement of her first two fingers.
Version of the Defence
[24] The Appellant testified before the High Court, that he was a Pastor with the Assembly of God Church. Though the Appellant had four children his wife and he lived alone in the village. The victim had come to live with them on her parent’s request. The Appellant had regarded the victim as one of his natural children and denied all the allegations that she had made against him.
[25] In regard to the allegation on the first night by the victim the Appellant stated in his testimony:
“I want to show that, I am a father and used to take care of children when sleeping. Cold night. I went where children sleeping. I pulled up blankets. She stood up. My hand went up. She think I was touching her breast.”
[26] Regarding the allegations made by the victim of the second night accused had stated, “Not correct my phone has no light”. The alleged incidents that happened during the third and fourth nights were completely denied by the Appellant. The Appellant had testified setting out the motive for the victim to make a false allegation against him stating as follows:
“There is a reason she would lie. In 2013 came to Kocoma. Not accepted as Pastor. They haven’t received Tabua to come and serve. When those incident happened at all arises from fact not wanted in this village and they tried a way to stop this church and letters written to D.O.”
[27] In cross-examination the Appellant had testified in relation to the allegation made against him regarding fondling of the victim’s breasts:
‘Question: On first night – cold pulled blanket up and touched her breasts?
Answer: Yes.
Question: I put it to you that you fondled not touched?
Answer: Just touched.’
Consideration of the Grounds of Appeal advanced before the Full Court
Appeal Ground One
[28] Ground One:
“THAT the Learned Trial Judge erred in law and in fact when he continuously intervened and interfered with the trial process disabling the Appellant from having his defence fairly heard which further disabled him from having a fair trial.”
[29] It is the Appellant’s grievance that the Learned Trial Judge interfered in the trial process from the initial stage of the trial. The defence states in its written submissions, that:
“At least with the commencement of PW-1’s evidence, the trial Judge appears to be interjecting the State Counsel’s line of questioning and even at certain crucial portions appears to be at the helm of the State’s case in running questions prior to the State Counsel.”
“That the Learned Trial Judge goes even to the extent of making suggestive questions to the State Counsel.”
“The defence, it would appear, had also challenged the identification evidence of the complainant as such the defence questioned about the lighting in the room the complainant was supposedly in and the trial Judge cuts in with his probing questions such as “was that in the room you were sleeping in?” which ought to be questions raised by the State, if anything, in re-examination.”
[30] Advancing the above grievance, the defence, both in its written and oral submissions, has drawn our attention to some specific questions raised by the Learned High Court Judge in the course of the trial proceedings in relation to the evidence of PW 1 and PW2. Specific reference needs to be made to the following questions which were highlighted as contentious in the course of the submissions.
[31] Page 644 of the Court proceedings:
“Ms. Elo: Yes, My Lord. Okay, who you residing with at that time?
Ms. Reapi: Uh-the Pastor and his wife, My Lord.
Judge: Pastor and his wife.
Ms. Elo: Can you tell us what class were you in?
Ms. Reapi: In class 3, My Lord.
Judge: Counsel can you ask who is the Pastor?
Ms. Elo: Susana who is the Pastor that you referring to-what’s his name?
Ms. Reapi: Ilaisa Cakau, My Lord.”
[32] Page 645:
“Judge: And what happen then?
Ms. Reapi: I then stood up and went and lay beside Qalo.
Judge: And laid beside.
Ms. Reapi: Qalo.
Clerk: Sir.
Judge: Qalo. Who’s Qalo?
Ms. Reapi: He’s one of the church member, My Lord.
Judge: He’s the what?
Ms. Reapi: He’s a church member.
Ms. Elo: And then what happen Susana?
Ms. Reapi: On the fourth night, My Lord, I was laying down – I was not asleep I was still awake when he came and he was trying
to do something to me, My Lord.
Ms. Elo: Who came and was trying to do something to you?
Ms. Reapi: Pastor, My Lord.
Judge: What he’s trying to do?
Ms. Reapi: My Lord, he cannot penetrate with his penis so he use his hand, My Lord.”
[33] Page 646:
“Judge: What did you do to your female organ?
Ms. Reapi: ‘Pesoa ca’jió mai ‘means, My Lord, poking it.
Judge: He poked.
Ms. Reapi: Yes, My Lord.
Ms. Elo: He poke to what Susana – you said he used his finger to poke.
Judge: He used his hand.
Ms. Elo: His hand I am sorry, My Lord, -can you-
Judge: Hand in Fijian, was it same –
Clerk: Different, Sir.
Judge: Can you tell us exactly what he did –uh-
Ms. Elo: Okay, Susana Pastor use his hand to poke – what did he poke can you – okay can you show us the hand-how did he poke?
Mr. Vakaloloma: I am objecting, My Lord.
Judge: What are you objecting Mr. Vakaloloma.
Mr. Vakaloloma: I am objecting the sign -
Judge: Sorry?
Mr. Vakaloloma: The way the interpreter is using his hand.
Clerk: That’s exactly what the witness is showing.”
[34] Page 647:
“Mr. Vakaloloma: Well, I cannot see from here but I can see what the interpreter is trying that is influencing her, what saying automatically.
Judge: ... What she had Mr. Vakaloloma I saw what she did.
Mr. Vakaloloma: Well I am – the objection is what –
Judge: (Inaudible)
Mr. Vakaloloma: I am not.
Judge: Prosecutor just ask her questions about it, she’s not with her. She wants her to demonstrate she ask her to stand so that everyone can see her.
Mr. Vakaloloma: Yes – also the prosecutor need to put it clearly what her question – what the question is.
Judge: She is certain around the issues, she is asking her direct questions.
Mr. Vakaloloma: Because in her first – there was the first question on the first night at around that – she was using a Fijian word.
Judge: Well, I don’t know.
Mr. Vakaloloma: Yes the Fijian word is ‘vakayamoka’ that what she said.
Judge: Well I don’t know what that means.”
[35] Page 648:
“Mr. Vakaloloma: Yes, because the people are using hands and trying to give her to identify what is been done.
Judge: Oh, we hope that the witness poke and uh – what exactly –
Mr. Vakaloloma: Yes, if she can say what she’s saying.
Judge: She just said he’s poking the – she even then yarn with her first of all.
Mr. Vakaloloma: No, I’m talking-
Judge: Wait, you got your chance to cross examine, now sit down, cross examine when your time comes.
Mr. Vakaloloma: I’m not talking about –
Judge: I’m not arguing with you now, please sit down cross examine her. Carry on Ms. Elo.
Ms. Elo: Thank you My Lord. Susana I am gonna ask you said Pastor penetrated –
Judge: She didn’t say penetration before-
Ms. Elo: He cannot penetrate with his penis – Yes, My Lord, he mentioned it was translated – Susana okay, you said Pastor penetrated using his hand.
Judge: She didn’t say penetrated.
Ms. Elo: My Lord it was translated by –
Judge: She said he cannot penetrated with his penis and-
Ms. Elo: Cannot be penetrated with his penis-
Judge: Use his hand to poke. She didn’t say penetrate.”
[36] Page 652:
“Judge: What everybody understands what dark means Mr. Vakaloloma there’s no light.
Mr. Vakaloloma: I do understand that I am trying to question uh-young girl-
Judge: What you asking is stupid question Mr. Vakaloloma.
Mr. Vakaloloma: It’s not stupid because I do understand.
Judge: There is no light.
Mr. Vakaloloma: Okay, if there is no light now Susana that means your room is dark correct?
Ms. Reapi: Yes, My Lord.
Mr. Vakaloloma: So if it’s dark and somebody standing in your room would be able to identify who that person is?
Judge: Never said he was standing in her room, Mr. Vakaloloma.
Mr. Vakaloloma: Well surely if anyone in your room-
Judge: Stop distorting the evidence, there was nobody standing in her room she never say that.
Mr. Vakaloloma: She said somebody touch her if somebody touch you in a dark would you be able to....”
[37] Page 653:
“Mr. Vakaloloma: Shining the light on you but how did you identify him?
Judge: Only two – two of them inside the house.
Mr. Vakaloloma: That doesn’t say that identification – I am asking for the identification here how did you identify that person.....
Ms. Reapi: Because the house is locked, My Lord, no one can enter.
Judge: And no else is there.
Ms. Reapi: Yes, My Lord.”
[38] Even under an adversarial system a Judge conducting a trial has an inherent right to pose questions to the witnesses in seeking clarification. In regard to the first ground of appeal advanced by the defence, it must be noted that it is the Trial Judge who is vested with the responsibility of safeguarding both the rights of the accused and the interest of the public in the administration of criminal justice. The adversary nature of a judicial proceeding does not relieve the Trial Judge of the inherent obligation of raising his initiative in a just and appropriate manner in matters which may significantly provide a just determination of the trial. Nevertheless in the said process, a Trial Judge should not usurp the functions of a counsel for the prosecution or the defence, affecting the judicial impartiality and compromising the principle that ‘justice should not only be done but should manifestly and undoubtedly be seen to be done.’
[39] However, it is not improper for a Trial Judge to intervene, during the examination-in-chief or cross-examination, for the purpose of moving the proceedings along, so long as it is done in a fair manner. It is proper for a Trial Judge to point out that a particular line of questioning is irrelevant or valueless or repetitious or not serving any meaningful purpose.
The issue of the deprivation of the right to fair trial
[40] The defence in essence alleges that, the impugned conduct of the Trial Judge had disabled the Appellant from having a fair trial.
[41] Right to a fair trial is an unqualified, inalienable, and a non-derogable right, of a person who faces a criminal trial charged with a criminal offence. So much so in Ibrahim and Others v. The United Kingdom (Applications nos. 50541/08, 50571/08,;50573/08 and
40351/09) the European Court of Human Rights held
“There can be no watering down fair trial rights for the sole reason ason that that the individuals in question are suspected for involvement in terrorism.”
Constitutional protection of right to a fair trial
[42] The adversarial system operates within the parameters of constitutional due process, fundamental requirement of which is a fair trial, before an impartial judge. The right to a fair trial has been jealously protected by the Constitution of Fiji, enshrining it in its Bill of Rights, under chapter 2.
[43] Article 15 (1) of the Constitution explicitly states that:
“15.— (1) Every person charged with an offence has the right to a fair trial before
a court of law.”
[44] Towards strengthening the protection of constitutional guarantees, Article 2 (1) provides, that ‘the Constitution is the Supreme Law of the State.’
[45] In the same vein Article 6 (1) of the Constitution, unflinchingly asserts that the chapter containing the Bill of Rights, ‘binds the legislative, executive and judicial branches of government at all levels and every person performing the functions of every public officer.’
[46] The attributes of a fair trial cannot be confined to a particular set of rules, nor can they be conclusively and exhaustively defined.
[47] The Constitution of South Africa under Article 35 (3) sets out some attributes of a fair trial in the following manner:
“(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the
proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k)to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national or international law at th(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
[48] In Ibrahim and Others v. The United Kingdom (Applications nos. ef="h//hudochudoc.echr.coe..coe.int/eng#{%22appno%22:[%2250541/08%22]}" target="_blank">50541/08, 50571/08, 50573/08 and 40351/0351/09) European Court of Human Rights held that:
“The right to a fair trial undticle167; 1 is an unqu unqualifialified right. However, what constitutes a fair trial cannot be
the subject of a single unvarying rule but must depend on the circumstances of the particular case (see O’Halloran and Francis
v. the United Kingdom [GC], nos.;15809/02 160;
[49] In  Dietrich v The Quee Queen [1992] HCA 57; (1992) 177 CLR 292, 300, the High Court of Australia held, that:
“There has been no judicial attempt to list exhaustively the attributes of a fair . Thabecause, in the othe ordinary course of the criminal appellate process, an appellate court ourt is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice.”
What is fair very often depends on the circumstances of the particular case, and notions of fairness are inevitably bound up with
prevailing racial values.
“Right to fair trial - not a one way street”
[50] When it comes to the right to a fair trial, which as a concept has been broadly construed, the following view expressed in the South African case Shaik v State [2007] 2 ACC, 19; 2008 (2) SA 208 (CC) stating that, it is ‘not a one way street’ is worthy of consideration.
“The right to a fair trial requires a substantive, rather than a formal or textual approach. It is clear also that fairness is not a one way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires fairness to the public as represented by the State. It has to instil confidence in the criminal justice system.”
[51] In Ibrahim and Others v. The United Kingdom (supra) it was held that:
“Nevertheless, when determining whether the proceedings as a whole have been fair, the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration.”
[52] In the instant case the Learned High Court Judge had interrupted the prosecuting counsel 16 times with questions during the examination-in-chief of the victim. However, in 14 instances the questions appear to seek mere clarification. On one occasion the Learned High Court Judge admonished the prosecuting counsel for mistaking the victim’s prior testimony and on another in response to an objection raised by the defence counsel.
[53] During the examination-in-chief of the victim’s mother, the judge had interrupted the prosecuting counsel 14 times which again appear to seek mere clarification. During the cross-examination of the victim the judge interrupted the counsel for the defence 39 times. Seven times since the defence counsel misrepresented the victim’s earlier testimony, 10 times since he asked irrelevant, inaudible or incoherent questions, 20 times seeking clarification to answer given by the victim, and once since the defence counsel took issue with interpreters translation of the i-Taukei words. During the cross-examination of the victim’s mother, the Judge interrupted 6 times with questions merely to seek clarification, once to respond to an objection raised by the state counsel, once to admonish the defence counsel for asking an improperly phrased irrelevant question where the witness was not in a position to answer.
[54] During examination-in-chief of the Appellant, the Judge intervened 15 times to ask questions, 9 times of which to seek clarification. During state counsel’s cross-examination the judge intervened to ask questions 31 times seeking clarification and once to admonish state counsel for asking a poorly phrased question. During the re-examination of the Appellant the judge intervened to ask 2 questions again seeking clarification.
The issue of undesirable judicial interventions
[55] In R. v. Mulusi “Time and Time again the judge intervened, got an answer and then askedasked ques questions on that answer. The impression he must have given was that he was cross-examining on the evidence in chief as it was being given. It really was most unfortunate.”
[56] Denning LJ’s in his celebrated judgment in Jo National Coal Boar Board [1957] 2QB 55 stated that:
“A Judge’s part ... is to hearken to the evidence, only lf asking questions of witnesses when it is necessary to clto clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; ... If he drops the mantle of a Judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacess spoke right when he said ... ‘Patience and gravity of hearing is an essential part of justice’; and an over-speaking Judge is no well-tuned cymbal.
[57] In R vlton #160;(CA 113, S6 (1969)1969) it has been held that:
R isIt is wrong for a Judge to descend into the arena and give impression of acting as advocate and often does more harm thad. Wh interventions cans can give ground for quashing a conviction is not only a matter of degredegree but also depends on what the intentions are directed to and what their effect may be.”
[58] When applying the above tests to the issue raised in the present ground of appeal, it clearly appears that none of the impugned questions raised by the Learned High Court Judge had amounted to an improper judicial intervention in the evidence, causing a procedural unfairness that leads to an infringement of an accused person’s right to have a fair trial.
Appeal Ground Two
[59] Appeal Ground two revolves around the same issue of undesirable judicial intervention and interference as set out in ground one, stretching it towards judicial bias or apprehension thereof, towards both the Appellant and his counsel resulting in substantial miscarriage of justice. However, it appears that the assessors had not apprehended any bias against the Appellant or found his counsel’s arguments ineloquent since they unanimously returned a not guilty opinion. Their unanimous opinion does not support the Appellants contention that there was an appearance of bias or that the defence counsel was hindered from effectively arguing his case.
[60] The rule against bias is obviously one of the two pillars of natural justice. The rule against bias in modern times is said to be founded upon Lord Hewart’s celebrated statement in R v Sussex Justices Exp McCarthy [1923] EWHC K.B. 1; [1924] 1 K.B. 256 that, “justice should not only be done, but be seen to be done.” The principle of reasonable apprehension of bias, applies to the judge’s judicial function, that it must be discharged in accordance with the rules of natural justice.
Reasonable apprehension of bias
[61] A definition has been given to the expression of reasonable apprehension of bias by the Supreme Court of Canada in “Committee for Justice and Liberty et al. v. National Energy Board et al. [1978] 1 S.C.R 369, (1976. 3.11) holding that:
“the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining therein the required information......That the test is “would an informed person, viewing the matter realistically and practically and having thought the matter through.......The grounds for this apprehension must, however be substantial. The basic principle is of course that natural justice must be rendered, the requirements of natural justice must depend on the circumstances of the case.”
[62] In Patel v. Fiji Independent Commission Against Corruption [2013] FJSC 7; CAV 0007.2011, it was held that:
“[32] The leading authority in Fiji on the issue of bias is Koya –v- The State (unreported Supreme Court decision CAV 2 of 1997 delivered 26 March 1998). In that decision the Supreme Court discussed two tests that have been developed by the courts to determine whether a judge should disqualify himself on account of bias. The first test is known as the reasonable apprehension of bias test that was applied by the High Court of Australia in Livesey –v- New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 and confirmed in Webb –v- The Queen [1994] HCA 30; (1994) 181 C.L.R. 41. Under this test a judge should disqualify himself from adjudicating a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case. The other test is referred to as the real danger of bias test which had been adopted by the House of Lords in R –v- Gough [1987] AC 646. Although there is some support in the authorities for the proposition that there is not a great deal of difference between the two tests, if it is necessary to identify which test I consider this Court should apply, I consider that the decision in R –v- Gough (supra) should be followed in this jurisdiction. That test was preferred by Fatiaki J (as he then was) in Citizens ' Constitutional Forum –v- The President [2001] 2 FLR 127. This preference for the test adopted in R –v- Gough (supra) is re-inforced by section 22 of the High Court Act Cap 13.”
[63] In Gomila v United States, (146 F. 2d 372, 374 (5th Cir. 1944) it was held that:
“Fairness requires not only an absence of actual bias in the trial of a case, but the absence of even the appearance of bias.”
[64] In United States v De Sisto [1961] USCA2 340; (289 F.2d 833 (2d. Cir. 1961) it was held that:
“Judge must neither usurp the function of counsel nor appear to align himself with any litigant.”
[65] Having regard to the totality of the facts of the present case, and the foregoing principles of common law, I am firmly of the opinion that the Learned High Court Judge’s impugned interventions and interferences, that had taken place in the course of the functions of the counsel of both parties, do not constitute an iota of a reasonable apprehension of bias towards any party. Accordingly, I find that the second ground of appeal is utterly without merit.
[66] For the foregoing reasons I dismiss the appeal.
Orders
Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Mr. Justice W. Bandara
JUSTICE OF APPEAL
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