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State v Dean [2005] FJHC 451; HAA0031.2005 (21 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0031 OF 2005

BETWEEN:

STATE
Appellant

AND:

AHMED RIAZ DEAN
s/o Gulam Ali Dean
Respondent

Counsel: Mr. A. Ravindra-Singh – for State
Respondent – In Person

Date of Hearing & Ruling: 21st October, 2005

EX TEMPORÉ RULING

Introduction

This is an ex temporé ruling given after a brief hearing and as such I reserve the right to perfect the judgment as I see fit once it has been typed.

This is an appeal bought by the State against the discharge without conviction of the respondent Ahmed Riaz Dean s/o Gulam Ali Dean in the Nausori Magistrates Court on the 2nd of February, 2005.

At that time the respondent/accused faced a charge of assault occasioning actual bodily harm contrary to Section 245 of the Penal Code, Cap. 17. The details of that charge and its allegation are that set within a domestic relationship it is said that the accused assaulted his partner.

This, however, is a single issue appeal bought by the State and at the outset of the appeal this afternoon I confirmed with learned State’s counsel that he did not require me to consider the substance of the sentence imposed but rather focus on that single issue which is an allegation that the learned Magistrate displayed a reasonable apprehension of bias and that therefore should have recused himself from hearing the matter as he was a patient of the accused/respondent who was a well known local doctor.

At the conclusion of the State’s submissions I took trouble to inform the unrepresented accused/respondent about the nature of that issue. I explained to him that the State’s case was not that the learned Magistrate was actually biased but that there may be a reasonable apprehension of bias as a result of the patient doctor relationship and that accordingly there should have been a recusal and that I should grant the appeal.

I pause to note that the learned doctor is a thoughtful and intelligent man. He responsibly conceded that he understood the single nature of the appeal bought by the State and indicated to me at the conclusion of my explanation to him that he would prefer to concede the appeal and let the matter proceed to a re-hearing before a neutral judge.

I commend him to taking that responsible decision because it is in line with the best principles of the law. Justice can only be done if there is in fact no bias. It can only be seen to be done if there is no appearance of bias. Actual bias which will almost always be disclaimed is notoriously difficult to prove. In practice the most effective guarantee of the fundamental right to a hearing before an impartial tribunal is not afforded by rules which provide for the disqualification on grounds of actual bias nor by those which provide for automatic disqualification on grounds of personal interest but by that which provides for the disqualification of the judge in the case of a reasonable apprehension of bias (cf Lockabail (UK) Limited v Bayfield Properties Limited [1999] EWCA Civ 3004; [2000] QB 451 at 475.

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 test to be applied in Fiji in determining whether a judge is disqualified by reason of the appearance of bias is an objective one see for example (Koya v The State [1998] FHSC 2, The State v Ratu Jope Seniloli & Others, HAC0028 of 2003S and Webb v The Queen [1994] HCA 30; [1994] 181 CLR 41). The kind of person making this subjective assessment is taken to be fair minded, informed and reasonable. This bystander 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.

I keep in mind that the person being observed is a professional judge whose training, tradition and oath require him to discard the irrelevant, the immaterial and the prejudicial. However, in this case the common ground between the appellant, the accused and the complainant is that the learned Magistrate was a patient of the good doctor. It goes further than that. It is apparent that the learned Magistrate knew both the doctor and his de facto spouse.

In those circumstances a bystander may well indeed as a right minded person go away thinking that it was odd that a judge in that position should come to make a decision about a couple that he knows.

This decision is not meant in any way to be a criticism of the learned Magistrate far from it. The State does not advance this appeal on the basis of actual bias but on the basis of a reasonable apprehension of bias. However, the fact remains that I am persuaded to the objective standard that is necessary that there is a reasonable apprehension of bias in this case and that accordingly the appropriate course is for the matter to be re-tried before a neutral Magistrate. Accordingly in conclusion with the consent of the respondent I grant the State’s appeal. I quash the order made in the court below for discharge without conviction on the 2^nd of February, 2005. I send the matter back for a re-hearing before a neutral Magistrate unknown to either the accused or the complainant.

I pause to record the doctor’s warning that his practice of medicine is extensive and that he is familiar with many Magistrates and accordingly I direct the Registry to consider having this matter heard perhaps before a Magistrate from the West and without in any way suggesting who that might be. It may be prudent to have Magistrate Gowing appointed to the matter as I am quite confident that she will have no knowledge of any of the parties involved.

Accordingly I order Mr. Dean to appear before the Magistrates Court in Suva on the morning of the 7^th of November at 9.00am. He is in the meantime remanded at large.

Gerard Winter
JUDGE

At Suva
21st October, 2005