Chand v The State [2000] FJHC 138; HAM0006j.2000s (23 October 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 6 OF 2000
(Suva Mag. Ct. Crim. Case No. 1945/97)

Between:

RAMESH CHAND
s/o Mahesh Prasad
Appellant

and

THE STATE
Respondent

Mr. A. K. Singh for Mr. G. P. Shankar for Appellant
Mr D. Goundar for the State

JUDGMENT

The appellant appeals from the decision of the learned Chief Magistrate given 7 February 2000 refusing himself from continuing to hear this case after the appellant’s previous conviction came to his knowledge in the circumstances stated hereafter.

Background

The appellant was on 31 July 1997 charged in the Suva Magistrate’s Court with obtaining money by false pretences on four counts contrary to s309(a) of the Penal Code Cap. 17. Counts 1 and 3 were withdrawn by the prosecution on 12 August 1999 and the trial proceeded on the remaining two counts. On the same day the prosecution closed its case after calling four witnesses.

As required by the Chief Magistrate there was a submission in writing of ‘no case to answer’ by the Counsel for the appellant. The counsel for the Prosecution responded in writing as well.

The presiding Magistrate on 6 September 1999 ruled that there was a case to answer. Thereafter on 29 October 1999, the appellant filed a Motion for the Chief Magistrate to disqualify himself from proceeding with the trial and to order a fresh hearing before another Magistrate. The Prosecution opposed the appellant’s application in writing.

The ground for making the application is contained in the appellant’s affidavit sworn 28 October which states:

THAT the Prosecution in reply to my Counsels submission of no case to answer referred to a decision of Fiji Court of Appeal No. 17 of 1991 in which the facts as set-forth are extremely denying and prejudicial to me since it related to me. My Counsel in reply took exception that Prosecution ought not to have cited it or without editing it because in effect it disclosed previous conviction against me of similar offence. I claim that a reasonable and informed observer would definitely take the view that I would not get a fair trial because the effect of that disclosure is most likely to prejudice the mind of the Court against me.

THAT in reply my Counsel stated:

“The State has not been fair in bringing to the attention of this Court the previous conviction of the accused. This is likely to prejudice fair trial. Under Fiji Constitution the accused is entitled to fair trial.”

The Chief Magistrate in a written decision with reasons dated 25 February 2000 ruled against the motion as follows:

The reasons are as follows: Applying the test of bias laid down by the leading Fiji Case of Amina Koya (Supra) to the facts of this case, it does not appear that a-fair minded and informed observer, given the circumstances surrounding this case, would consider there was a real danger of bias, or would reasonably apprehend or suspect bias on the part of the Court. The record shows that the proper procedures laid down by the Criminal Procedure Code were complied with. The accused has yet to present his side of the coin and call supporting witnesses. The presumption of innocence until proven guilty beyond reasonable doubt, as enshrined in Section 28(1)(a) of Fiji’s 1997 Constitution is supreme law and binds this Court. The accused has chosen to give a sworn statement in his defence and must be allowed to do so.

Ground of Appeal

The Ground of Appeal is as follows (as stated in item 4 of the Petition of Appeal):

4. THAT you Petitioner desires to against the Order Judgment or decision of the learned Magistrate under section 308 of Criminal Procedure Code (as amended) on the grounds:-
   

That the Order Judgment or decision of the learned trial Magistrate is wrong in Law and unfair BECAUSE the disclosure of the Prosecution of the previous Judgment and conviction against you Petitioner shows that facts and modus operandi of the alleged offences now being tried by Suva Magistrate’s Court against your petitioner, and those set out in the Fiji Court of Appeal have great similarities and would therefore PREJUDICE the mind of the learned Magistrate and that you Petitioner would be denied a fair trial contrary to the Supreme Law of Fiji namely section 29(1) of the Fiji Constitution, and general principles of Law.

Appellant’ Submission

The learned Counsel for the appellant argues that the judgment of Court of Appeal (hereafter referred to as the ‘old case’) is for a similar offence involving similar criminal activity is ‘very damaging’, ‘highly prejudicial’ and constituted denial of fair trial’. He said that ‘in fact it is a mistrial’.

Counsel submitted that irrespective of what the Magistrate has said the prejudicial and damaging effect must be viewed objectively. Mr. Shankar in his written submission cited a large number of cases in support of his arguments. I have given due consideration to these authorities and I shall refer to some of them later in my judgment.

Respondent’s submission

The learned counsel for the State in opposing the appeal set out in his written submission the law on the subject of ‘bias’ by referring to a number of authorities such as Amina Koya v The State Criminal Appeal No. CAV 0002/97 (Supreme Court), and The State v Ratu Ovini Bokini Crim. Appeal Action No. HAM0032 of 1998 (High Court) which was upheld by the Court of Appeal in Crim. App. No. 0001 of 1997s and 003 of 19999s.

Counsel submits that the Chief Magistrate correctly stated the test for ‘bias’.

Counsel said that no prejudice was caused to the appellant by the mere citing of the judgment of Ramesh Chand v The State FCA Cr. App. No. 17 of 1991 in a previous case involving the appellant. It was cited not to show that the defendant had previous case involving the appellant. It was cited not to show that the defendant had previous conviction but to rebut the appellant’s submission that ‘promising immigration visa overseas does not constitute a future promise but a present representation which is false’. He submits that the case is a judicial authority available to the Court even if the Prosecution had not cited the case in their submission. It is the duty of an officer of the Court, knowing of the existence of a judicial authority on a question of law raised before the Court to duly inform the Court of such existence. In support of this proposition and generally on the Magistrate’s powers counsel referred to Blackstone’s Criminal Practice (1999 Ed.) at p. 1005 para D2.26 R v Taniela Veitata 23 FLR 294 Supreme Court (now High Court).

Counsel further stated that the Chief Magistrate did not rely on the appellant’s case when he considered his decision as he was unable to get a copy of that judgment according to him. He said that the Chief Magistrate was aware of the provisions of s28(1)(a) of the 1997 Constitution of Fiji.

It is submitted by Counsel that the ground of appeal has no merits and therefore the appeal should be dismissed and that the case be referred to the Chief Magistrate to continue with the hearing.

The issue

The issue for the Court’s determination is simply whether, on the facts and circumstances of this case particularly taking into account the fact that the ‘old case’ having been cited as authority shows the appellant having a previous conviction at this stage of the proceedings, the learned Chief Magistrate should disqualify himself from proceeding to hear the case on the ground of likelihood of bias bearing in mind what constitutes ‘bias’.

Determination of the issue

Court does not encourage appeals at an interlocutory stage; as earlier stated this appeal is under s308 C.P.C. (as amended in 1998) although it is an appeal from an interlocutory order in the Magistrate’s Court. As stated by the Court of Appeal in Bokini, ‘before the 1998 amendment ... the question whether interlocutory appeals in Criminal cases were possible, was open to some confusion’ but ‘ whichever view of s308(1) before the amendment be correct, in our view, the legislature has put the matter beyond doubt with the 1998 amendment’. The relevant portion of the said section (under the caption ‘Appeal to Supreme Court’) reads (as amended) as follows:

“(1) Save as hereinafter provided, any person who is dissatisfied with any judgment, sentence or order of magistrates’ court in any criminal cause or matter to which he is a party may appeal to the Supreme Court against such judgment, sentence or order:

Provided that no appeal shall lie against an order of acquittal except by, or with the sanction in writing of, the Director of Public Prosecutions.

(2) ....

(3) ....

(4) ....

(5) ....

(6) An order granting or refusing bail, including any condition or limitation attached to the grant of bail, may be the subject of an appeal to the High Court, either by the person granted or refused bail or by the Director of Public Prosecutions.

(7) Without limiting the categories or sentence or order which may be appealed against, an appeal may be brought under this section in respect of a sentence or order which includes an order for compensation, restitution, forfeiture, disqualification, costs, binding over, absolute or conditional discharge, probation or community service.

(8) An order by a court in a case may be the subject of an appeal to the High Court, whether or not he court has proceeded to a conviction in the case.”

The Chief Magistrate in this case is a professional Magistrate and he makes his decision based on the evidence presented to him. The citing of the old case as an authority on the facts and circumstances outlined hereabove cannot give rise to the presumption that he would be ‘biased’ in determining the issue before him. On this aspect I refer to the following passage from Blackstone’s Criminal Practice (supra):

“there is no proposition of law that a justice who knows of the accused’s previous conviction must never adjudicate, citing, Mc Elligot, ex parte Gallagher (1972) Crim L R 332 – conviction upheld even though the stipendiary magistrate had an intimate knowledge of G’s record). Where a petty sessional bench is small in number it may be difficult to arrange for justices who have not had previous dealings with a local recidivist offender to form a court to try him.”

Another passage which I consider apt if from R v Taniela Veitata (supra) where it was held:

“a professional magistrate who had heard a previous charge against the appellant was in no way debarred from proceeding with a subsequent trial, nor did the fact that he was aware of the appellant’s record disqualify him.”

Further on p296 of the judgment in Veitata, Grant CJ said (with which I am in agreement) that:

“I know of no authority which precludes any court from hearing several separate and distinct charges against the same accused arising on different occasions. Were courts to be limited to one hearing per accused then it might very well be found that the judicial system would break down. Such a system would lead to inordinate delays and would result in delayed justice which in itself would be intolerable. This would be very apparent in those jurisdictions where there is only one magistrate sitting in isolation.

So far as the court knowing the accused’s antecedents in concerned there is nothing unusual, or prejudicial to the accused, in such being the case. There is a wealth of cases relating to the court’s being advised, when bail is being opposed, as to accused’s previous convictions. These are as follows...

Also an application to cause a magistrate not to hear a case because he knew of previous convictions failed in R v Brixton Prison

Governor ex p. Thompson (1970) Crim. L R 281: 114SJ 187.

It would therefore appear to me that the magistrate's knowledge of antecedents relative to the accused in no way stops him hearing the case against that accused.”

Test for bias

Although the above authorities in my view are a complete answer to the appellant’s assertion and argument on the issue of likelihood of bias, however, in deference to counsel’s forceful and lengthy submission on test for bias, I shall briefly deal with the subject and comment on it.

As held by the Court of Appeal in Raybos Australia Ltd v Techtran Corporation (1986) 6 NSW LR 272. “whether or not a judge should disqualify himself hearing a case on the ground on bias requires an objective appraisal of the materials before the Court” (emphasis added). Therefore materials before the Court would determine whether unfair weight has been added to one side of the argument.

The citing of the ‘old case’, whereby the appellant’s previous conviction was exposed, was the material claimed to be the source of bias because the Chief Magistrate has now acquired the knowledge that the appellant had already been convicted of a very similar case to the one before him. But to counteract that argument the prosecution stated that the ‘old case’ is a judicial authority and was used to rebut the appellant’s submission to an element of the charge. Although it was a very persuasive and convincing authority, the issue is whether or not it has prejudiced the mind of the Magistrate since he is dealing with the very same person.

Both parties cited Amina Koya v. The State Cr. App. No. CAV0002/97 on the test for bias where it is emphasized that the test is whether or not in all the circumstances of the case including the conduct of the case it would lead an informed and reasonable observer to believe that Judge, tribunal or Magistrate was biased. The Supreme Court said:

“... there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias .... In the determination of that ground the record of the trial, showing how it was conducted by the trial judge, is of fundamental importance.”

However, I agree with Mr. Shankar that such test did not apply in that case for there it was raised after conviction but in the instant case the issue of bias is at interlocutory stage. The same principle and test as in Koya where test for presumed bias was laid down was applied in Bokini (supra) by the Court of Appeal. Bokini is good authority where the test is applied at interlocutory stage.

The question of whether a judge should disqualify himself has been very well dealt with by Byrne J in Attorney-General of Fiji and Suresh Sushil Chandra and Anuradha Charan (Action No. HBM 16 of 1995). His Lordship referred to a number of authorities. In The Queen v Watson ex-parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 majority of the High Court of Australia at page 263 said:

“It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning M.R. which have already been cited, “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

Similarly, in Liversey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 299 the Court stated:

“What is in issue in the present case is the appearance and not the actuality of bias by reason of prejudgment. The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court.”

In Australian National Industries Ltd v Spedley Ltd (1992) 26 NSW LR 411 at 419 Kirby P on the test to be applied for a judge to disqualify himself said:

“By repeated decisions of the High Court the test is now expressed in terms of possibilities, that is, whether the parties or the public “might entertain a reasonable apprehension that he judge might not bring an impartial and unprejudiced mind to the resolution of the question involved...”

Conclusion

Stating the law is one thing; its application to the facts of a particular case is another thing. In other words each case has to be considered on its own facts. The issue in this case is confined to a very narrow compass.

In the light of the authorities and bearing in mind the test for bias, I find that on the facts and circumstances of this case the whole basis of the ground stated in the appeal stands on a very weak foundation. In fact I find that the appeal is wholly misconceived for there can never be a question of bias arising just because the old case has been introduced in the manner that it was i.e. by way of authority for a proposition of law. It is my view that if I were to allow this application, in a situation such as this where it is not justifiable, it will surely open the floodgates resulting in unwarranted delays in reaching finality in a case.

This appeal I find is without merit and is an abuse of the process of the Court.

For these reasons the appeal is dismissed with costs in favour of the Respondent in the sum of $250.00 to be paid within 14 days. The case is ordered to be continued for hearing before the same learned Magistrate.

D. Pathik
Judge

At Suva
23 October 2000

HAM0006j.00s