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State v Benu [2003] FJHC 153; HAA0041D.2003S (31 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0041 OF 2003S

Between:

STATE
Appellant

And:

LASARUSA BENU & OTHERS
Respondents

Counsel: Mr. P. Ridgeway for State
Respondents in Persons

Hearing: 24th October 2003
Ruling: 31st October 2003

RULING

This matter is set down for hearing on the 31st of October 2003. The hearing of the appeal was adjourned from the 3rd of October 2003 to allow the Respondents to apply for legal aid. On the 24th of October when the matter was set for mention to check on progress in relation to representation, the 6th Respondent, on behalf of all the Respondents requested that I disqualify myself from hearing this appeal on the ground that only a Fijian magistrate should hear the matter. This is my decision in respect of that application.

This is an appeal by the State against the acquittal of all the Respondents on 10 charges of robbery with violence, wounding with intent, larceny of cattle and larceny of root crops. All the offences were alleged to have been committed on or after the 19th of May 2000, and in all cases the alleged victims were Indo-Fijians of the settlement of Muanaweni. The prosecution, in the course of the trial, led evidence of attacks on a number of Indo-Fijian farmers, and of the stealing of their cattle and crops for transportation to Parliament where the then government was held hostage. The Respondents were acquitted on all charges on the 4th of February 2003.

On the 24th of October in this court, the 6th Respondent said as follows:

“This case should be heard before another judge .... This is because this happened at Muanaweni ... A civil judge should hear this case ... I want a non-Indian to hear this. I also want a non-European to hear it.”

The other Respondents agreed. They said that they wanted a Fijian judge to hear the appeal. State counsel said that the courts should not give in to considerations of race or ethnicity in the allocation of work and that the fact that the application was made was shameful.

Of course, at this stage the Respondents are unrepresented by counsel. I am certain that counsel would never have made this application because the law on bias (both actual and perceived) is well-known to all who practise in the courts. However because the Respondents are unrepresented lay persons, I have decided to set out the law in relation to bias simply, so that they understand the issues.

Every litigant has the right to an independent and impartial court. Section 29(1) of the Constitution provides that every person charged with an offence has the right to a fair trial before a court of law. Kirby P in S & M Repairs Pty. Ltd. –v- Caltex Oil (Australia) Pty. Ltd. (1988) 12 NSWLR 358 said at 373:

“The entitlement to a judge who is manifestly impartial is not simply a private right which may be waived. It inheres in the public as well as to the individual litigant. It is not for the individual litigant to waive the public’s rights.”

The test for bias has either been whether a reasonable and informed person would think that there was a real danger of bias or whether a reasonable and informed observer would reasonably apprehend or suspect bias. The Supreme Court in Amina Koya –v- The State Cr. App. No. CAV0002.1997 said that there was little difference between the two tests. The same conclusion was reached by the English Court of Appeal in In re Medicaments and Related Classes of Goods (No. 2) [2000] EWCA Civ 350; (2001) 1 WLR 700. What are the kind of facts which might lead to a reasonable apprehension, or of real danger of bias?

In Reg –v- A Resident Magistrate ex parte Taniela Veitata 23 FLR 172, a magistrate who had heard a trade disputes prosecution against a defendant and found him guilty was asked to disqualify himself from hearing another trial under the Trade Disputes Act against the same defendant. Mishra ACJ relying on the English test for bias in Metropolitan Properties Ltd. –v- Lannon [1968] EWCA Civ 5; (1969) 1 QB 577, asked himself whether the facts gave rise to a real likelihood of bias. He held that there was no suggestion that the magistrate was hostile or appeared to be hostile towards the defendant and that prior knowledge of the defendant’s character and antecedents did not disqualify the bench.

In Ratu Ovini Bokini –v- The State Crim. App. No. AAU0001 of 1999S a reasonable suspicion of bias against the prosecution was held to exist when a magistrate detained the prosecutor during committal proceedings. In Amina Begum Koya (supra) a judge who had allegedly discussed the case with a solicitor as counsel, prior to his appointment as a judge, was held not to have given grounds for a reasonable suspicion of bias. Knowledge of the defendant’s previous convictions was held not to give rise to a reasonable suspicion of bias in Ramesh Chand –v- The State Crim. App. No 6 of 2000. In Re: Cao Juan Wen Misc. App. No. HBM0073 of 2002S knowledge of previous judicial review applications by the same litigant was held not to give rise to a reasonable suspicion of bias. A financial interest in the outcome of a case must lead to disclosure of that interest, and disqualification of the judge.

To my knowledge, the mere fact that a judge or magistrate comes from a particular racial group has never been the subject of an application for disqualification. This is not surprising. Fiji’s judiciary is racially mixed and all magistrates and judges are expected to hear cases “without fear or favour, affection or ill-will” in respect of all racial, cultural and religious groups in Fiji. If the defendants are able to request a Fijian judge to hear a case about a dispute between an Indian and a Fijian, is the prosecution able to apply for an Indian judge? In a rape case, can the defendant demand a male judge? Can the prosecution demand a female judge? Can a Methodist object to a Roman Catholic judge? In this case, in the Magistrates’ Court, could the prosecution have objected to the Fijian magistrate hearing the case on the ground of his race?

The implications of the Respondents’ application for a judge of their own race are extremely serious. The issues raised are less about the impartiality of the tribunal, and more about attempts to secure a particular judge. The application raises the issue of the ability of the parties to “shop” for a particular type of judge. There is no room in Fiji, or in any civilised country for forum-shopping. The application clearly does not reveal any facts which might lead to a reasonable suspicion of bias. The Respondent makes an application, which if successful, would disqualify all our High Court judges save one, and our entire Court of Appeal and Supreme Court bench. Further, the application is irrational in itself. If an Indian judge is disqualified in a dispute between Indians and Fijians, how is it that a Fijian judge is not disqualified?

As State counsel said in his submissions, there can be no room in our justice system for forum shopping on the basis of ethnicity. There is always a strong argument on any bench for the sensitivity of all members of the bench to issues of race, religion, gender and disability. However it can never be a ground for apprehended bias, that the judge is male, or female, or Indian or Fijian or European. If the way in which proceedings are conducted, reveals perceived bias, then that is another matter. Racial background on its own is not a ground for the disqualification of a court, even when the case is about offences committed by members of one ethnic group against another.

As I have said, I have set out the reasons for my decision in some detail because I believe that the application was made out of ignorance of the concept of judicial impartiality. However, it must be said that members of the judiciary of a free and democratic country are expected to administer justice fairly and courteously. Their conduct must be above criticism, and must not give rise to suspicions of bias. And lastly, they must not allow their courts to become platforms for racial slurs, sexist remarks and insulting conduct. Our justice system must reflect not only society’s current standards of ethical conduct, but also the standards that our society aspires to in the future. In our justice system the allocation of work to judges based on the ethnicity of the judges, is unacceptable and unethical.

The application for disqualification fails and is dismissed.

Nazhat Shameem
JUDGE

At Suva
31st October 2003