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Chand v State [2012] FJMC 40; Criminal Case1654.2009 (15 March 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI

MAGISTRATES COURT CRIMINAL CASE NO; 1654 of 2009

BETWEEN:

UMESH CHAND
APPLICANT

AND:

THE STATE
RESPONDENT

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Mr. Devanesh Sharma for the Applicant,
Ms. Seini K Puamau for the Respondent.

Date of Ruling: 19th day of March 2012.

RULING

Introduction:

1. The Applicant/ 2nd Accused filed this notice of motion together with an affidavit in support seeking following orders inter alia
   
   1. That his worship Magistrate R.D.R. Thushara Rajasinghe recuse him from this case,
      
   2. That all maters be stayed pending a decision on this issue,

Upon the grounds that, there is a perceived bias on the part of the Learned Magistrate.

2. The Applicant precisely stated the grounds on which he made this application in his affidavit in support as follows,
   
   1. I was initially charged on my own in Criminal case no. 1682 of 2008.
      
   2. The State made an application to consolidate my charges with that of Mohan Chand [Criminal case No. 1681 of 2008].
      
   3. I, through my Counsels opposed this application as I could foresee severe prejudice to me if the charges were going to be consolidated.
      
   4. From the outset I could see from Mohan Chand's caution interview statement that he was trying to frame me for the offence. By being charged jointly and with one accused who was caught red handed in the theft trying to blame I was concerned that I would also be implicated by virtue of Mohan Chand's attempts to blame me for the theft. It is not easy to defend a case where one accused is trying his best to blame another.
      
   5. Our objection to the consolidation was opposed by the DPP who wanted the two cases consolidated to suit their own purpose and agenda because they wanted to run a conspiracy charge.
   6. The Learned Magistrate who had conduct of the matter at the time made a decision to consolidate the charge.
      
   7. On the day this matter was set down for trial Mohan Chand pleaded guilty.
      
   8. My trial started and witnesses were called to give evidence. The matter is currently part heard.
      
   9. Mohan Chand mitigated before this Honorable Court and naturally I or my Counsel had no locus to be present at the Mitigation or object to any maters that he raised in mitigation.
      
   10. Taking into account that my case was yet to be heard and no decision had been made that the State would be careful about the manner in which they submitted the facts to ensure that there were no adverse findings or allegations made against me.
       
   11. Whilst I am not aware of the facts that the Prosecution submitted I am advised by my Solicitor that upon reading the Sentence, a copy of which is exhibited to this Affidavit and marked as Annexure "A" it is obvious that State also pushed the idea that I was the fellow conspirator with Mohan Chand. This is borne out by paragraph 5 of the Sentence where his Worship accepted as a fact that Mohan Chand "had conspired with another". By virtue of the fact that this fact was accepted by the Court and I am the "another" referred to in the Sentence, it appears to me that this fact that Mohan Chand had conspired with another to commit the crime and not acted alone has already been accepted by the Court and now is part of the factual basis of the Sentence delivered by the Court in State v Mohan Chand.
       
   12. I also note from paragraph 7 of the Sentence that the Counsel for Mohan Chand, in the absence of me and my Counsel took the opportunity to claim that I was the ring leader and instigator of the crime. He said that I had complete influence over Mohan Chand. He also submitted that I was the sole beneficiary of the crime. I was not present in Court to defend myself from these lies and falsehoods. The Counsel for Mohan Chand was not stopped from making these submissions by the Court and neither did the State step in to prevent such submissions being made since the case against me was still pending and such submissions were grossly prejudicial against me, especially so being made in my absence. I am advised and believe that it is the duty of the Prosecution to ensure fairness at all material times. Mohan Chand was given free rein to blame me for his crime.
       
   13. At paragraph 18 of the Sentence his Worship sets out his views about the crime in question. The Learned Magistrate took the crime in question. The Learned Magistrate took the view that this was a premeditated and well calculated white collar crime. The Learned Magistrate came to his findings not by listening to evidence at trial but by the submissions made by the State and Mohan Chand's Counsel.
       
   14. At paragraph 19 of the Sentence his Worship then goes on to say that one of the mitigating factors that he had taken into account was the fact that Mohan Chand had committed the offence through the influence, instigation, direction and participation of his boss. In order to regard this as a mitigating factor his Worship would have had to accept such a mitigating factor as being truthful, otherwise his Worship would have discarded this fact.
       
   15. Mohan Chand was given a discount in his sentence as a result of the mitigating factors that the Court considered.
       
   16. I am extremely worried that if his Worship had accepted Mohan Chand's allegations against me in mitigation and used this as a factual basis to give him a discount in the sentence he receive, then it is apparent to me and I say to any reasonable bystander that his Worship believed Mohan Chand and has made a finding that I was the person who instigated the crime.
       
   17. I believe that I will not be able to get a fair trial having regards to all of the circumstances.
       
   18. I want to strongly say that I do not believe that there is any actual bias on the part of his Worship, I believe that by the collective action of Mohan Chand's Counsel, the State and the Court there is now a perceived bias that I may not get a fair trial.
       
   19. I therefore humbly ask that his Worship recuse himself from this case.
       

Background

3. The first accused person was charged with one count of Larceny by Servant Contrary to Section 274(a) (1) of the Penal Code Act, and one count of "Giving False information to a Public Servant" contrary to section 143 (a) of the Penal Code Act as the second count. Both the first accused and the applicant were charged for one count of " Conspiracy to Commit a felony" contrary to section 385 of the Penal code Act as the third count.
   
4. Prior to the commencement of the hearing the first accused person indicated his wiliness to change his plea, and accordingly he pleaded guilty for all three counts. Subsequent to his pleas of guilty the prosecution read out the summery of facts in respect of each of these three counts. The learned counsel for the first accused then tendered his mitigation submission for my perusal and consideration. The Prosecution tendered its sentencing submission. Having perused the summery of facts, mitigation submissions and the sentencing submissions, I proceeded with the sentence in which I sentenced the first accused person for a period of 18 months imprisonment period for each of these three counts to be served concurrently.
   

Affidavits and Submissions of the Applicant and the Respondent:

5. The Applicant specifically stated that he does not believe that there is any actual bias on the part of the learned Magistrate but he believes that by the collective action of the counsel of the first accused person, the state and the court, there is now a perceived bias that he may not get a fair trial.
   
6. The state objected for this application of recusal and filed its objection in an affidavit of Detective Sergeant Isoa Natui. The affidavit of DS Natui is mainly concerned about the investigation part of this alleged crime and stated that he is unaware of the main averments which are relating to this application and hence denied the same. In addition to that DS Natui stated that the prosecution objects to this application for recusal since there had been no prejudice caused to the applicant in any way and this application will only delay the trial. DS Natui further testified that some of the witnesses of the prosecution has already left the country and further delay of this hearing only hamper a fair trial.
   
7. The appellant filed his reply to the DS Natui's affidavit where the appellant responses to the issue of amalgamation of the charges and the investigatory part of this crime. In responding to the issue of prejudice, the applicant stated that there has been substantial prejudice caused to him because even before the court accepted s a fact that Mohan Chand (the first accused person) had conspired with him to commit the crime, that Mohand Chand was a minor player and that he was under duress and influenced by him. The Applicant further stated that just because his name was not mentioned expressly, that does not mean that this is not a direct reference of him. Apart from that the Applicant contended that this matter has already been delayed greatly due to the prosecution action in amalgamating the charges.
   
8. Subsequent to the filing of the affidavits and counter affidavits, I set down this application for the hearing, where both parties agreed to have the hearing by way of written submissions. I accordingly invited the both learned counsels of the applicant and the respondent to file their respective submissions which they filed accordingly.
   
9. The learned counsel for the applicant extensively stated the chronological back ground and the grounds for this recusal application. Having outlined his grounds for this application and the arguments, the learned counsel submitted that taking into the account the following factors,
   
   1. That the court has in a written judgment upheld Mohan Chand's contention that he was influenced by another parson (the accused) to carry out the crime,
   2. The court granted a discount to Mohan Chand on this basis,
   3. Nothing was done to stop Mohan Chand's counsel from attacking the applicant in the mitigation,
      

That any reasonable bystander would be very apprehensive about the same judicial officer now hearing the case against the applicant.

10. The Respondent filed its submission but later replaced it with an amended written submission with the consent of the Applicant. The learned counsel for the Respondent discussed the laws pertaining to the issue of recusal. Having done such, the learned counsel submitted that the trial magistrate undertakes dual role of judge of fact and law. Since the learned Magistrate discharged his duty in law as a sentencing magistrate is not now incapable of fairly and properly discharge his duty and function as a trial Magistrate.
    
11. Furthermore, the learned counsel of the Respondent submitted that the Applicant failed to bring any evidence to support the assertion or overturn the clear history of the proceedings of this instance case that the learned Magistrate has not properly discharged his duty. It is for the Applicant to prove in evidence that in one way or another, from August 2010 to date the learned Magistrate has not been able to differentiate between his duty as a sentencing Magistrate and his duty as a trial Magistrate.
    
12. Having submitted aforementioned submissions, the learned counsel of the Respondent summed up her submission by stating that no informed, reasonable and right thinking lay observer would apprehend bias in this instance, where they to be made aware of the following,
    
    1. The qualifications, capabilities and judicial oath of a Magistrate,
    2. The separate and distinctly different test and consideration that occur during sentencing as opposed to the higher threshold that exist at trial,
    3. The clear history of procedural fairness in operation thus far,
       
13. Having considered the respective affidavits of the Applicant and the Respondent and their respective written submissions, I now proceed to pronounce my ruling on this application for recusal.
    
14. In view of the affidavits and the submission of the Applicant, I find that the applicant main contention for this recusal application is that the sentencing remarks in the sentence of the first accused person would cause a reasonable bystander to appraise apprehends bias on the part of the Learned Magistrate.
    

Legal Principles and Applicable Laws.

15. The rule against bias derived from one of the fundamental principles of the common law system that is the conduct of adversarial trial by an independent and impartial tribunal. The rule against bias is found in two dichotomies. The first limb is the rule against actual bias and the second is the rule against apparent bias. In this instance case the learned counsel of the applicant specifically stated that his contention founded on the principle of apparent bias.
    
16. The approach of the common law jurisdictions on the issue of apparent bias is two folds. There is a contrasting distinguish in the approach of England over the issue of apparent bias with the other principle common law jurisdictions such as Australia, New Zealand and Canada. The approach of England could be found in the R v Gough ( [1993] UKHL 1; 1993) AC 646) where Lord Goff of Chieveley held that " the test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and in cases involving jurors whether being applied by the judge during the trial or by the court of appeal when considering the matter in appeal, namely whether in all circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand".
    
17. Lord Goff of Chieveley by outlining his dictum in R v Gough (supra) further stated that " in my opinion if in the circumstances of the case, it appears that there was a real likelihood in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. Furthermore, the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done and it is unnecessary in my opinion to have recourse to a test based on mere suspicion or even reasonable suspicion for that purpose".
    
18. In view of the test enunciated in R v Gough (supra),the question of apparent bias is one of possibility and not probability. Deviating from the test of Gough on the issue of apparent bias, the High Court of Australia held in Ebner v Official Trustee in Bankruptcy ( ) that the test of apparent bias is that whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide.
    
19. Gleeson CJ in Ebner v Official Trustee in Bankruptcy (supra) further held that "the application of the test of apparent bias requires two steps. First it requires to identification of what it is said might lead a judge (or Juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on merits. The bare assertion that a judge ( or juror) has an interest in litigation or an interest in party to it, will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulate".
    
20. Mason CJ further held in Webb v R (1994) HCA 30, (1994) 181 CLR 41) that "the test enunciated in R v Gough tends to emphasis the court's view of the facts and placed inadequate emphasis on the public's perception of irregular incident".
    
21. In the meantime, the Gough test was tested and argued in England specially in line with the principles applied in European Court of Human Right in Strasbourgh. Having considered all the recent development around the common law jurisdictions and the European Jurisdiction, on the issue of "apparent bias", Lord Hope of Craighead held in Proter v Magill ( 2002) 2 AC 357 at 494) "the relevant test is whether the fair minded and informed observer having considered the facts, would conclude that there was a real possibility that the tribunal was biased".
    
22. In line with the tests enunciated in Proter v Magill and in Ebner v Official Trustee in Bankruptcy (supra), it seems to me that the England approach is based on "real possibility" as opposed to the Ebner approach of "reasonable apprehension".
    
23. The approach on the issue of "apparent bias" in the jurisdiction of New Zealand is extensively discussed in Muir v Commissioner of Inland revenue (2007) NZCA 334. (2007) NZLR 495). The Court of Appeal of New Zealand in Muir v Commissioner of Inland revenue (Supra )adopted the "reasonable apprehension" approach where it was held that "in our view, the correct enquiry is a two stage one, first it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous in the sense that complainants cannot lightly throw the "bias" ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. This standard emphasized to the challenged judge that a belief in her own purity will not do, she must consider how others would view her conduct".
    
24. I now turn my attention to approach adopted by the Judiciary of the Fiji Islands. In Amina Koya v The State (1998) FJSC 2, it adopted the position of the Auckland Casino Ltd v Casino Control Authority ( 1995) 1 NZLR 142, where it was held that "there is little if any difference between the tests of real danger and the apprehension of bias".
    
25. His lordship Justice Goundar in Mahendra Pal Chaudhry v The State ( 2010) FJHC 531 HAM160.2010 (19 November 2010) having discussed the position of other common law systems and the Guideline Principles for Judicial Officers based on the Bangalore Principles of Judicial Conduct which the Fiji Judiciary adopted in 2001, adopted the test enunciated in Muir v Commissioner of Inland revenue (2007) NZCA 334. (2007) NZLR 495). The approach adopted by his lordship Justice Goundar is further upheld and affirmed by his lordship Justice Kankani Chithrasiri, Justice of Appeal in Mahendra Mothibhai Patel and another v The Fiji Independent Commission Against Corruption ( Crim App No AAU 0039 of 2011).
    
26. Having understood the legal approach on the issue of Apparent Bias in the Fiji Jurisdiction, I now proceed to review the judicial dicta on the grounds of apparent bias.
    
27. It was held in Muir v Commissioner of Inland revenue (Supra) that " it is not possible or desirable to create a catalogue of disqualifiers for judges in which a reasonable apprehension of bias may arise, but some board principles can be stated. First a judge should not decide a case purely on personal circumstance. Secondly, there should not reasonably be room for a perception that the judge will decide the case on anything but the evidence in front of him or her. Thirdly, a judge must be in a position to consider all potentially relevant arguments. Fourthly, there may conceivably be a series of events or rulings which reasonably warrant an inference that the challenged judge's perception is warped in some way".
    
28. A more explanatory list of the grounds of disqualification on apparent bias were identified by Deane J in Webb v The Queen (supra) where it was held that " the area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings whether pecuniary or otherwise gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The Second is disqualification by conduct, including published statements. That category consist of case in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first) and consist of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consist of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias".
    
29. Bearing in mind the laws pertaining to the issue of apparent bias, I now proceed to analyses the facts of this instance case with the relevant legal principles.
    
30. In view of the Applicant's contention I find this application of the applicant falls within the second and fourth categories that is conduct and the extraneous information which were enunciated in the Webb v The Queen (supra).The Sentencing remarks in the sentence and the information provided by the counsel of the first accused person in his mitigation submissions are the nexus of the applicant's contention of apparent bias. At this point, I iterate that I do not wish to justify or give explanation for my sentencing of the first accused person.
    
31. Bearing in mind the purpose of this ruling, I now examine that whether the actual circumstances of sentencing of the first accused person having considered his mitigation submission will have a direct bearing to suggest that the learned Magistrate is or may be seen to be biased. His Lordship Justice Chithrasiri held in Mahendra Mothibhai Patel ( Supra) that "a rigorous examination should be conducted if the actual circumstances or the facts of the issue have a direct bearing to show that the judge was or may have seen to be biased".
    
32. The main contention of the Applicant is that the learned counsel of the first accused person tried to claim that the applicant is the ring leader and instigator of the crime. Furthermore, the learned Magistrate in his sentence stated that one of the mitigating factors that he had taken into account was the fact that the first accused had committed the offence through the influence, instigation, direction and participation of his boss. In view of these reasons the applicant contends that these allegation against him in mitigation and used it as a factual basis to give the first accused person a discount in the sentence which is a apparent to the Applicant that any reasonable bystander apprehend that the learned Magistrate believed the first accused person and had made a finding that the applicant was the person who instigated the crime. Under this circumstance the applicant states that he will not be able to get a fair trial.
    
33. At this point, the court has to determine whether that the said factual circumstances have a direct bearing to show that the learned Magistrate is or may be seen to be biased in the eye of an informed fair minded lay observer. The court should look at these factual circumstances alleged by the Applicant through the eyes of a fair minded reasonable man. His Lordship Justice William Marshal in Balaggan v State (2011) FJCA 43, Miscellaneous Case 31.2011 (15 September 2011) held that "The "appabias" test stresstresses that the observer has to be an "informeerver". An informedormed observer would know the above stated rules. An informed obserould know that assessments for the purposes of bail apil application are untested as there is nois no oral evidence or cross-examination and prior rulings on bail applications do not mean that the judge or magistrate is unable to conduct a fair contested hearing at trial in respect of the substantive underlying criminal charges"
    
34. The sentencing magistrate has discretion to sentence the accused who pleaded guilty before the conclusion of the hearing of his other accomplices who were charged together with the accused person. (Archbold pg 411). Accordingly, I proceeded with the sentence of the first accused person.
    
35. The sentencing and Penalties Decree of 2009 governs the principles, laws and procedures of the sentencing of accused persons in this jurisdiction. Section 4 (2) of the Sentencing and Penalties Decree has stipulated the facts and the matters the court must have regard to when sentencing an accused person. They are inter alia
    
    1. the maximum penalty prescribed for the offence;
    2. current sentg practice tice and the terms of any applicable guideline judgment;
    3. the nature aavity of the particular offence;
    4. the offender's culpability and degree of responsibility for the offence;
    5. the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;
    6. whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
    7. the conduct of the offender during the trial as an indication of remorse or the lack of remorse;
    8. any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;
    9. the offender's previous character;
    10. the presence of any aggravating or mitigating factor concerning the offender or any other circumstance ant to the commission of thof the offence; and
    11. any matter stated in this Decree as being grounds for applying a particular sentencing option.
        
36. In view of the section 4 (2) of the Sentencing and Penalties Decree, it is mandatory for the sentencing Magistrate to consider the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so, and the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence. The findings of the sentencing Magistrate in line with those aforementioned categories at the pre sentencing mitigation and sentencing submissions do not necessarily represent as findings of the facts beyond reasonable doubt which is the burden of proof borne by the prosecution at the trial against an accused person.
    
37. It is noteworthy to demarcate and differentiate the role of sentencing magistrate and the trial magistrate. The office of magistracy requires to perform different roles in the different stages of pre - trial, trial and post trial process. The standard of responsibility, care and application of judicial decision making process are varying according to the stages of the proceedings. His Lordship Justice Goundar held in Mahendra Pal Chaudhary v State (supra) that "in criminal cases judges have to make pre trial rulings and decisions during the trial. Not all the rulings that a judge makes may be favorable to the accused. The mere fact that a judge has ruled against the interest of an accused is not a ground for disqualification". In this instance case the sentencing remarks made in the sentence do not relevant to the Applicant and it is applicable only for the first accused person.
    
38. As far as the Applicant's charges are concerned, the prosecution still has to prove all the essential elements of the charge beyond reasonable doubt at the hearing. At the hearing the learned Magistrate is required to assume the role of trial magistrate. The role of the trial Magistrate is required to obtain information, facts, and data which are relevant to the elements of the offence in the form of Evidence either from witnesses or through documents within the stipulated procedures and within the limitation of evidentiary rules. Subsequent to that the trial magistrate is required to evaluate these evidences present before him to ascertain the primary facts and secondary facts which he is allowed to infer based on the established primary facts. The Magistrate is required to give reasons for his findings in his decision. It is the judicial training and responsibility imparted in a judicial officer to shift its judicial role, mind and consideration to the matter in hand from the matters already dealt with. His Lordship Justice Paul Madigan in State v Anand Kumar Prasad and others ( Criminal Case No 24 of 2010) held that " it is of course relevant that any judicial officer, despite "perception", is able to divorce himself from other matters he may have dealt with on another occasion. As was said in VaKatuta v Kelly (1989) 67 CLR 568; a professional judge who has taken a judicial oath and who had experience in all types of cases is trained to 'discard the irrelevant, the immaterial and the prejudicial".
    
39. Despite of his contention that the sentencing remarks in the sentence of the first accused person, the applicant has not specifically proposed any material facts or reason to support his contention that the sentencing remarks made by the learned magistrate have a direct bearing to suggest that the learned Magistrate is or may be seen to be biased.
    
40. In view of these finding I ascertain that these actual circumstances must known to the informed fair minded observer. He must see these actual circumstances through his eye with the knowledge of the different of the role of sentencing Magistrate and the role of the trial magistrate's role.
    
41. Having considered foregoing reasons, I am inclined to hold that the applicant failed to establish that this actual circumstances of this instance case at this stage have a direct bearing to suggest that the learned Magistrate is or may be seen to be biased and might lead to a fair minded informed lay observer to reasonable apprehend that the learned magistrate might not bring an impartial mind to the resolution of this instance charge against the applicant.
    
42. Accordingly, I order that this recusal application of the applicant is hereby refused.
    

On this 15th day of March 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.