IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0065 & 66 OF 2005

BETWEEN:

STATE
Applicant

AND:

BRIAN SINGH
SASHI SHALENDRA PAL
Respondent

Counsel: Mr. Daniel Goundar – for State
Mr. D. Sharma – for 1st Respondent
Mr. M. Raza – for 2nd Respondent

Date of Hearing: 19th September, 2005
Date of Ruling: 22nd September, 2005

RULING

Introduction

This is an application by the Director of Public Prosecutions that the hearing date for this trial, the 24th of October 2005, be vacated and the proceedings be adjourned pending a decision on a State’s appeal in an unrelated but allegedly comparable matter of State vs George Shiu Raj and Another, Criminal Case No. HAC0019.2005.

Alternatively it is an application that I recuse myself from hearing the case.

The applications are opposed.

Background

I gave a ‘no case’ ruling in the matter of the State vs George Shiu Raj and Sashi Shalendra Pal in Criminal Case No. HAC0019.2005. (‘Raj’). That decision is attached.

The ruling was to the effect that it was not a false pretence for a Minister entitled to a business class reservation to take his entitlement, travel in a lower class and keep the cash difference between the classes of travel.

It must, however, be remembered that my decision in that matter was on a no case application. The Raj decision is reliant on the particular facts of that case and tied to the evidence (or lack of it), admissions of agreed fact and particular case concessions (including a concession that an acquittal against Mr. Raj should result in a similar finding against Mr. Pal the second accused in this matter).

State’s Application

The State submits that pursuant to powers described for the Court in Section 283 of the Criminal Procedure Code there is a wide discretion to grant adjournment for any “reasonable cause”.

In this particular instance the Director of Public Prosecution advances that reasonable cause as being to ensure his obligation to prosecute a crime is adequately protected by allowing the Court of Appeal to rule on an earlier adverse finding in an unrelated case.

Counsel submits that the two cases are similar though not exactly the same. Accordingly it is argued that the state of the law described by me in Raj will influence the outcome in this particular case. The State submits that if I were to rule or direct the assessors in a similar way on the law as I did in Raj that may lead to an unjust not guilty verdict as the Court of Appeal may later declare the Raj ruling invalid. 

Counsel argues that the present fixture should be vacated and the case adjourned. He emphasizes there will only be a short adjournment required as the Court of Appeal would be urged to deal with my ruling during its November session (9 November to 25 November 2005). Accordingly it is argued that such a short adjournment does not affect either accused’s constitutional rights or prejudice them in any way.

As far as the recusal application is concerned counsel refers to my earlier decision of Yuen Yei Ha and The State, Misc. Case No. HAM0018 of 2005. He adopts that decision as correctly stating the law on recusal and submits that while the State does not allege actual bias there must be apprehended bias such that a reasonable and informed bystander would think it not right for me to sit on the Singh case having earlier made the Raj ruling.

Counsel for Mr. Singh submits that his client’s constitutional rights to a speedy trial will be affected by this application. He submits that his client is ready to proceed and wants this long outstanding matter disposed off. He advises the Court and I accept that Mr. Singh has lost his job as a result these allegations; had to face the shame and condemnation of being charged and the expense of preparation for trial. He further submits that his client has been unable to apply for a job. He emphasizes that Mr. Singh has lived under restrictive conditions for bail that have prevented his ability to travel or move freely about the nation. He submits that this application if granted creates “great prejudice” against Mr. Singh. 

In answer to the State’s assertion that there will only be a short adjournment counsel submits that it is far from certain that the Court of Appeal will hear this matter in November. He is concerned that if the appeal is unsuccessful his client will have wasted more time. He observes that the appeal could go either way and that in principle the determination of an appeal in an unrelated but similar matter should not affect his client’s constitutional right to trial within a reasonable time. Counsel is concerned that this application sets a dangerous precedent. He observes that a far better course of action for the Director of Public Prosecutions to follow would be to withdraw the charges resulting in a dismissal without prejudice to relay.

Mr. Raza for Mr. Pal adopts the earlier submissions of his learned friend Mr. Sharma. He, however, emphasizes the extreme and dangerous ground the Director of Public Prosecution treads when making this application.

He submits that this application will open the floodgates for any party in the future to make a similar application to the court to stay proceedings pending appeal on an adverse ruling in a comparable but unrelated criminal action. He observes what would the State’s position have been if the roles were reversed and Mr. Raj had been convicted. He quite correctly observes that they would hardly be likely to accede to a request from a separate accused in unrelated proceedings to have an adjournment pending the decision of the Court of Appeal against the Raj conviction. Well, he argues, why should the Court favour the State’s position now by granting an identical application for adjournment.

Learned counsel observes that it is most unfortunate the Director of Public Prosecutions would not take the proper decision to have the charges withdrawn without prejudice to relaying them.

Decision – Adjournment

The Constitution provides that every person charged with an offence has the right to be presumed innocent until proven guilty according to law, not to be found guilty in respect of an act or admission unless it constituted an offence at the time it occurred and to be tried within a reasonable time. 

These rights are absolute and plainly worded. They are well supported by commonly understood international law and jurisprudence. 

The State is asking me to exercise a discretion to adjourn proceedings as they claim there is uncertainty as to the exact state of the law relevant to the case in question or more strongly that my earlier ruling was wrong and will infect this case. That can however only be so where the pending appeal is on a question of law in an unrelated but comparable case. 

I am not convinced that the same issues are at play as between these two cases. This application was not fully supported by affidavit evidence. Apart from a short precis of assumed similarities there was little substantial detail or cogent argument. Counsel did not particularize the essential difference between a Ministerial “entitlement” and a Chief Executive Officer’s “permission” to take travel in business class. The guidelines governing both are completely different. They are contained in completely separate Government documents. The nature of the relationship between a Minister and his entitlements and an employee and his permission to travel has yet to be fully explored. This much is certain, the necessary detail for me to reach a finding that the same issue will arise in two comparable trials is completely absent in this application.

This lacuna in the application, when taken in combination with counsels responsible concession that the two cases are not exactly the same, is sufficient in my view to move the application away from those rare ‘special circumstance’ cases where adjournment is granted pending the outcome of an appeal on questions of law for comparable cases. 

In any event while in some cases it would be appropriate for a case to be adjourned pending the outcome of the so called “test case” on appeal to a higher court I am not convinced this is such a situation. The case under appeal involved very ordinary and established legal principle. It raised no uncertain or new or bold principles. The Raj appeal will not be a ‘Test Case’.

Unless there are circumstances that warrant deferring a trial for a limited period to enable particular assistance to be given by an appeal decision and unless there are cogent grounds such as the avoidance of a lengthy hearing, then in the ordinary course in my view the court should dispose of the matters before it. 

The clear principle is that when an adjournment is sought because the state of the law is uncertain the court has a discretion to adjourn but must deal with cases in accordance with the existing state of the law. It will only be in rare circumstances that an effective stay of pending criminal trials will be justified. There is no such cogent argument here.

In effect the State is submitting that any party receiving an adverse ruling in similar but unrelated proceedings should be entitled to an adjournment pending the outcome of an appeal. I accept Mr. Raza’s submission that this is an extremely dangerous principle for the Director of Public Prosecutions to advance.

If I were to grant this application a prosecutor could then be faced with similar applications for adjournment of cases solely for the purpose of testing a judge’s ruling by a higher court. I would have thought it was the duty of the prosecutor to oppose such a course and not promote such a tenuous precedent.

The safer course in these circumstances is for the prosecution to withdraw the charges without prejudice to them being relayed.

That course is provided for in the Criminal Procedure Code. It is not an uncommon tool used by prosecutors to protect their prosecutorial discretion as a dismissal in those circumstances is not a discharge and does not amount to an acquittal. The charge can be relayed again (cf Daemar v Gilliand [1988] 1 NZLR 61).

Moreover my earlier Raj ruling was in relation to a “no case” application. That decision was made on the law applicable to those facts and was of necessity case specific.

This application has been sparsely bought and is woefully short of appropriate cogent argument. The very fundamental difference between travel by Ministers and Chief Executive Officers is completely overlooked. I cannot be certain that what happened in the Raj case to a Minister using his entitlement will raise the same issues in the instant case of a Chief Executive Officer, an employee, abusing a permission to travel.

I would have expected that if the State wanted to properly advance this application they would have at least supplied me with a copy of the Raj appeal papers accompanied by a proper explanation as to how the detail between the two cases bore comparison. I would have expected the State would demonstrate why their case on appeal had strength and why the similarities between the two cases may impact on the subject proceeding.

No such material was placed before me in support of the application.

That leads me to the inference that this is not much more than a thinly disguised exercise in judge shopping. That the application is supported by an alternative argument for recusal, supports such a view.

Judge shopping is completely inimical to the due administration of justice. The principles of the rule of law and the independence of the judiciary are challenged when any party seeks a particular judge to hear its case. The court will set its face against such intervention.

Recusal

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 a judge in the case of a reasonable apprehension of bias (cf Lockabail (UK) Limited v Bayfield Properties Limited [2000] QB 451 of 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 (Koya v The State [1998] FHSC 2, The State v Ratu Jope Seniloli & Others, HAC0028 of 2003S, ruling of Shameem J and on appeal FCA AAU 0041/2004S at pages 7 and 9 Webb v The Queen [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.

It must be remembered 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 (Vakauta v Kelly [1989] 1 67 CLR 568 at 584 per Toohey J). The bystander is not to be assumed to have a detailed knowledge of the law or the character and ability of a particular judge but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.

The applicant complains that because I gave an adverse ruling on a “no case” submission in an unrelated matter that I should recuse myself as right minded people may go away thinking “the judge was biased” if I were to sit in judgment on a comparable case.

I disagree.

I do not accept the cases are comparable. At least in the absence of detailed argument it would be irresponsible of me to leap to that conclusion.

More importantly, I have been entrusted with this case by the ordinary procedures and practices of the court and it would encourage a procedural abuse for me to automatically disqualify myself merely because I have been requested by one party to do so on the grounds of a possible appearance of pre-judgment or bias resulting from an unfavourable decision.

If it were otherwise then most tribunals would have to disqualify themselves after a finding against one of the parties involved in litigation. That cannot be so. A professional judicial officer must be free to both make adverse findings and give reasons in one case and then subsequently hear an unrelated but comparable matter.

In my view no recusal application should prevail unless it is based on a substantial ground of apprehension of bias otherwise the system would disintegrate to a stage where for practical purposes individual parties could influence the composition of their bench and therefore call the administration of justice into disrepute.

I echo again the words of Mason J quoted by our own Chief Justice found in Re: Renaud: Ex Parte C.L.J. [1886] 60 A.L.J.R. 528 at 532:

“ …… In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of 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.” 

In my humble opinion this application completely lacked any merit.

Conclusion

The application for adjournment of the fixture set for the 24th of October 2005 is refused. The application that I recuse myself from hearing the matter of Brian Singh and Sashi Shalendra Pal under Criminal Miscellaneous HAM 65/2005 is refused.

The trial will proceed on the 24th of October, 2005.

The applications were unnecessary and poorly supported. It was always open to the Director of Public Prosecutions to withdraw these charges without prejudice to them being relayed rather than adopt this more robust, unnecessary and inefficient course. The respondents have been put to the expense of arguing the matter they are entitled to costs which I reserve for further argument after completion of the trial. 

Gerard Winter
JUDGE

At Suva
22nd September, 2005