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Ali v The State [2005] FJHC 164; HAA0133.2004 (22 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0133 OF 2004

BETWEEN:

AIYAZ ALI
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. W. Kuruisaqila – for State

Date of Hearing & Judgment: 22nd July, 2005

EX TEMPORE DECISION

This is an extempore decision given immediately after an application for me to recuse myself and transfer this appeal back to the Lautoka Criminal Court jurisdiction. As it is an extempore decision I reserve the right to recall and perfect the judgment as I see necessary.

Background

The applicant has been before me on 2 appeals throughout the latter part of 2004 and the early part of 2005. One of those appeals HAA0136 of 2004 has been decided. I dismissed the appeal. The same appellant (this applicant) says that as I have already made and passed judgment in Appeal 136/2004 that indicates a degree of pre-determination about him and his second appeal. Therefore he says there is either actual or perceived bias and I should recuse myself.

Threat of Bias to a Fair and Impartial Trial

Counsel for the State has very helpfully referred to a number of decisions amongst those Amina Koya [1998] FJSC 2 and a recent ruling given on the 16th of June in The State v Kaitani & Others by my brother Justice Gates, HAC0044.04S. In my view the fundamental issue was properly stated by Justice Cory in R v S decision of the Canadian Courts 1997 3 SCR 484 at page 523 and 524 in these terms:

“A system of justice if it is to have the respect and confidence of its society must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society.....”.

Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: “the judge was biased”.

The authorities require that a likelihood or a probability of bias must be demonstrated suspicion is not enough. The test to be applied in Fiji in determining whether a judge is disqualified by reason of bias is an objective one (cf Koya supra). It is the apprehension of bias by an impartial but informed observer that concerns the court.

In another decision Johnson v Johnson [2000] 201 CLR 488 at 492 just exactly what kind of a person this fair minded, informed, reasonable observer is and how much he or she knows was the subject of some discussion (cf pages 507-508).

The bystander because this is an objective test is assumed to be reasonable and fair minded and before making a decision important to the parties and the community would ordinarily be taken to be informed of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

It must be remembered that in these applications the person being observed is a professional judge whose training tradition and oath require him or her to discard the irrelevant, the immaterial and the prejudicial. In the same case it was observed that while the bystander is not to be assumed to have a detailed knowledge of the law or the character and ability of a particular judge the reasonableness of any suggested apprehension is bias is to be considered in the context of ordinary judicial practice.

Decision

In 136 of 2004 I took some care to distinguish the facts from this unheard appeal. In 136 of 2004 I found as a matter of fact that Mr. Ali is an extremely intelligent and articulate gentleman well able to acquit himself in court and represent his interests. I found he knew his constitutional rights and exercised them by representing himself adequately. The case under appeal will proceed on an entirely different basis. As such I was able to find against him on 136/2004 but leave the question of the adequacy of time given for legal representation open.

The reason I did that and the reason why I have until now insisted that Mr. Ali’s appeal proceed with his co-accused Mr. Turuva or Mr. Yarolevu is this. In the court at first instance before the hearing started Mr. Yarolevu tendered to the learned Magistrate a piece of green paper on which was a note from the Legal Aid officer for the west. That letter advised the reader that all three had applied for legal aid and that the Legal Aid Commission needed time to consider the application before assigning appropriate counsel. In that regard the Magistrate put the letter to one side and proceeded with the hearing. As such the issue is not adequacy of representation or notification of rights but whether that decision to proceed with the hearing was fair and constitutionally appropriate. That issue is completely different to my assessment Mr. Ali’s intelligence and ability to articulate and represent himself considered in the later appeal. On the one hand the issue is whether or not a prisoner should be given sufficient time to enable Legal Aid to consider an application for legal assistance at trial on the other hand it is a question under the constitution of electing to represent oneself and suffering no prejudice.

Mr. Ali in support of his case apart from relying on a very well crafted written application submitted that there was actual bias because of a decision that I made. It is clear for the reasons I have just detailed that there could not be actual bias. First because I have made no decision in the unheard appeal. Second because the issues under consideration in the two appeals will be completely different. Mr. Ali extends his argument to perceived bias. He said that I had displayed some animosity towards him in the course of hearings when pressed to give examples of that he was unable to do so. For the record I indicate far from having hatred or anger towards Mr. Ali I have the greatest of respect for his intelligence and articulate abilities when he appears in court.

The objective standard of the fair minded observer reasonably informed is important. I find the argument of perceived bias has no merit. Finally I refer to the words of Justice Mason quoted by our own now Chief Justice in Re: Renaud Ex parte C.L.J. [1986] HCA 39; [1886] 60 A.L.J.R. 528 at page 532. He said this:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party ....... In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias of reason by prejudgment and this must be ‘firmly established’ ...... although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of the judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

I find that the applicant has not formally established actual bias or any reasonable apprehension of perceived bias and accordingly my decision is that I will not recuse myself from hearing this appeal.

Transfer

In addition to his application for recusal Mr. Ali makes an application that his proceeding be transferred back to the Lautoka High Court. He has been warned that if he transfers his appeal back to the Lautoka Court he risks considerable delay. He has been warned that it may take several months for his case to be heard. He accepts the risk of that delay and wishes to proceed with his transfer application.

He says to me that the main reason he wants his case transferred to Lautoka is that Lautoka is closer to the point where he says he has several witnesses he wants to call at his appeal. When asked about those witnesses he was not too specific about their identity and address but when pressed gave the names of 4 people in Ba he wished to call. He said two of them will give evidence supporting his alibi and he said 2 of them will give evidence of police brutality at the scene of his apprehension. I pause to reflect that in his trial at first instance. Alibi was not raised but the issue of police brutality was live.

The State on the transfer application quite properly concede that for indigent accused who are incarcerated it is important that they be given every ability to call witnesses if that is what they wish to do. I am concerned that it would be a struggle for these witnesses to come from Ba to Suva to be present at a hearing. Accordingly for those reasons I am satisfied that the transfer of his appeal from Suva to Lautoka is appropriate.

That has some consequences not that least of which is that his appeal will have to be severed from that of Mr. Turuva and Mr. Yarolevu. Accordingly, I will order that firstly Mr. Ali ‘s appeal in this matter be severed from his co-accused and heard separately, secondly I order that his appeal now known as HAA 133 of 2004 in Suva Registry be transferred to the Lautoka Criminal Court for listing before the next available Criminal Court Judge on a date to be advised and thirdly for the purposes of clarity I am now dismissing the application for recusal.

Gerard Winter
JUDGE

At Suva
22nd July, 2005