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State v Prasad [2011] FJHC 211; CRC 024.2010 (28 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 024 OF 2010

STATE

vs

1. ANAND KUMAR PRASAD f/n Alfred Shiri Prasad
2. REENAL PRANEEL CHANDRA f/n Rajendra Chandra
3. REENAL RAJNEIL CHANDRA f/n Rajendra Chandra
4. DEO NARAYAN SINGH f/n Ram Brij Singh
5. SHIRLEY SANGEETA CHAND f/n Alfred S. Prasad
6. ATISHMA KIRTI SINGH f/n Niranjan Singh
   

Ms N. Tikoisuva and Mr. W. Pillay for the State
1st and 4th Accused in Person
2nd Accused absent
Mr. H.A. Shah for 3rd and 6th Accused
Mr. I. Khan for the 5th Accused

Date of Hearing: 28 March 2011
Date of Ruling: 28 March 2011

RECUSAL RULING

[1] Counsel for the 5th Accused makes application for me to recuse myself from presiding over the within trial against all six accused. The basis is of his application is of apparent bias.

[2] In July and September 2010 I heard an application from the State against each of these accused along with five other respondents for forfeiture orders over various items of property held by them. This application was by way of civil proceedings. The outcome of the application was a decision by me, on the balance of probabilities that all of the property sought to be forfeited was "tainted property" in terms of the Proceeds of Crime (Amendment) Act No. 7 of 2004.

[3] Mr. Khan submits that such a finding means that I have prejudged this matter and that I approach this criminal trial with obvious bias and that "justice will not be seen to be done".

[4] The findings that I made on September 10th 2010 have no bearing whatever on these proceedings. The finding was by way of civil proceedings on a civil burden, and does not represent a finding of fact beyond reasonable doubt on the issues contained in this information. It will be for the assessors to make findings of fact after hearing the evidence, and it will be only if those opinions are perverse that the Court would perhaps intervene.

[5] In the civil proceedings, this applicant took 2 different stands on the State's forfeiture application. On some matters, she "took issue" on others she "categorically denied". The Court found on the balance of probabilities that the property she was in possession of was "tainted". This was not a finding that she had with the necessary criminal intent come into that property fraudulently. That is a finding of fact for the assessors.

[6] Mr. Khan submits that because I have said in paragraph of 31 of my civil judgment that "being satisfied beyond reasonable doubt that all of the subject property was obtained by illegal activities", I have applied the wrong test and inadvertently strayed into the criminal arena, thereby prejudging this case.

[7] A careful reading of the civil judgment however will show that for each individual item sought to be forfeited, I have made a finding on the balance of probabilities yet the finding referred to in paragraph 31 is a "catch-all" finding and it has nothing to do with the findings of fact needing to be made in this criminal case.

LAW

[8] As Mr. Khan very correctly submits, the test for disqualification is the perception of reasonable apprehension of bias. The test is an objective one and was laid down in Koya [1998] FHSC 2 and Ratu Jope Seniloli and Others – HAC 28 of 2003. The kind of person making this objective assessment is taken to be fair-minded, informed and reasonable. However, that being so, the application for recusal is one that has often been abused. An exercise in "judge shopping". However, I do not think for one minute that is the purpose of Mr. Khan's application.

[9] It is of course relevant that any judicial officer, despite "perceptions", is able to divorce himself from other matters he may have dealt with on another occasion. As was said in Vakauta v Kelly [1989] 67 CLR 568:

"a professional judge who has taken a judicial oath and who has experience in all types of cases is trained to "discard the irrelevant, the immaterial and the prejudicial."

[10] Goundar J. made some very pertinent comments recently in Mahendra Pal Chandhry v State (HAM 160 of 2010), at paragraph 26:

"In criminal cases, judges have to make pre-trial rulings and decisions during the trial. Not all rulings may be favourable to the accused. The mere fact that a judge has ruled against the interest of an accused is not a ground for disqualification. To do so would set a dangerous precedent because as soon as a judge made an unfavourable decision, he or she is disqualified from trying the accused and no case would ever be heard. The result will be contrary to the public interest to see all those who are charged with criminal offences are tried in accordance with the law."

CONCLUSION

The present application for recusal is misconceived and is refused. The criminal trial will continue before me.

Paul K. Madigan
JUDGE

At Lautoka
28 March 2011