State v Prasad [2002] FJHC 158; HAA0056J.2002S (30 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0056 OF 2002

Between:

THE STATE
Appellant

And:

BHAWANI PRASAD
Respondent

Hearing: 23rd August 2002
Judgment: 30th August 2002

Counsel: Ms J. Hamilton-White for State
Mr T. Fa for Respondent

JUDGMENT

This is an appeal by the Director of Public Prosecutions against the acquittals of the Respondent in respect of the following charges in the Magistrate=s Court in Suva:

FIRST COUNT

Statement of Offence

THREATENING VIOLENCE: Contrary to section 103 of the Penal Code, Cap. 17.

Particulars of Offence

BHAWANI PRASAD s/o Brij Mangal on the 28^th day of October, 2001, at Nasinu in the Central Division, with intent to alarm UMESH MANI s/o Yenkat Sami, SHILA BELAS and BALAMMA d/o Nagaiya Reddy in the dwelling house, used threatening words and behaviour.

AMENDED CHARGE

SECOND COUNT

Statement of Offence

DAMAGING PROPERTY: Contrary to section 324(1) of the Penal Code Cap.17.

Particulars of Offence

BHAWANI PRASAD s/o Brij Mangal and Others, on the 28^th day of October 2001, at Nasinu in the Central Division, wilfully and unlawfully damaged door glass valued at $50 the property of UMESH MANI s/o Yenkat Sami.

The Facts

The charges were laid on the 7^th of November 2001. The case was first called on the same day. The Respondent pleaded not guilty and asked for an early trial. The prosecution asked for trial on 14^th November 2001 and the case was adjourned to that date. On the 14^th of November, counsel for the Respondent asked for the Respondent to sit with him at the bar table Aso that he could be properly instructed as the trial progresses.@ The prosecution objected, saying the dock was for accused persons, and that the accused should already have instructed counsel. The application was allowed on the ground that Afairness requires that the accused access to his counsel be not jeopardised in any form whatsoever.@ The trial commenced with the complainant Mr Umesh Mani. In the course of his evidence, he said that the Respondent was a prosecutor. His evidence was that he lives at Lot 6, Kings Road, Valelevu and that the Respondent lives in the flat next door. On 28^th October 2001, at 9pm Mr Mani and his friends were drinking beer on his porch. After 20 minutes his friends left. He heard the Respondent banging on the wall between the flats, and heard the Respondent swearing. The Respondent told Mr Mani to come out into the porch. When they were in the porch, the Respondent asked his children to give him a knife. He rubbed the knife on the concrete and said he would kill Mr Mani. He then kicked the pot plants on the porch. The plants were damaged, to the value of $50. Mr Mani then heard the front door glass break. He peeped through the louvres and saw the Respondent near the door and 12 feet behind it. He identified five pot plants, and some glass fragments he said were from his front door. Mr Mani contacted the police at Valelevu. The police came on three different occasions that night, from 9.30pm to 1am.

Under cross-examination Mr Mani said that he saw the Respondent kicking and stepping on the pot plants, damaging the plants. He said that before the incident the glass on the door was already cracked and said he did not see who broke the door. He said the owner of the flat (and the door) was the landlord, one Mr Deo. He denied swearing at the Respondent=s wife, and his daughter. He said he had drank 5 to 6 bottles of beer that night.

PW2 was Shila Belas, the wife of Mr Mani. She said that she heard the Respondent swearing and challenging her husband to a fight. She said the police arrived before 10pm and spoke to the Respondent. They then left. The Respondent said he would kill Mr Mani. Then she heard a bang and the door glass of the front door, fell inside. She did not see who broke the door.

Under cross-examination, she denied swearing at the Respondent, and said that the trouble that night started when the Respondent came home with 3 friends. She heard them talking about the Respondent having previously arrested Mr Mani. She said that Mr Mani was drunk that night and smelt of liquor. She said that previously when Mr Mani was drunk and made a noise in the neighbourhood, the Respondent had told him to be quiet and that Mr Mani had been locked in a police cell until 1am. She denied that Mr Mani had insulted the Respondent on the night of the 28^th of October, or that he banged on the wall. She said that after the second visit by the police that night, the Respondent got a knife and said he would Akill and chop PW1.@

PW3 was Premila Singh, who lives near the Respondent. She said that on 28^th October 2001, she heard noises and saw the Respondent throwing pot plants. He was swearing at PW1, saying AMother Fucker! And Prostitute.@ She said the Respondent was holding a long knife and telling PW1 to come outside. He did not come out. Two police officers arrived at 10.30pm. She went to sleep at 11.45pm and later heard the sound of something breaking.

Under cross-examination, Mrs Singh (noted on the court record as being evasive as a witness) said that she only witnessed the fight after 10.30pm. She said that the knife she saw was 14.5 inches long with a 6 inch handle, 8 inches in width. She said that PW1 and PW2 were her friends.

PW4 was Timoci Ravuravu, another neighbour. On 28^th October 2001 he saw the Respondent on his front porch and saw him move forward and strike PW1's door with a small object. There was a cracking sound. He then heard the Respondent=s daughter shouting at PW1, and saw his wife smashing the door with her hand. He also saw the Respondent and his daughter step on the pot plants. Under cross-examination he said he saw the police visiting the house on 3 occasions that night. He said that the Respondent pushed the grill door outside the front door, causing the glass to crack. He was holding a small object in his hand but the crack had nothing to do with the small object. He said PW1 was his close friend.

PW5, Madhu Lata is also a neighbour. She was woken up by a disturbance at 10.30pm on the 28^th of October 2001. She saw the Respondent and PW1 swearing at each other. She saw the police arrive and continued to hear sounds of shouting and banging.

PW1's mother, Balamma, gave evidence next. She heard the Respondent swearing and banging on the wall. Her son called the police. After they left, the Respondent continued banging on the wall. She saw the Respondent kicking the pot plants. She saw the front door glass breaking. She heard the Respondent saying AGet the knife and I will chop the mother fucker.@ Under cross-examination, she denied hearing PW1 swear at the Respondent.

The next witness was PC Sitiveni Delai. He attended a complaint at the Respondent=s house at about 10pm on the 28^th of October 2001. He said that PW1 and the Respondent were swearing at each other in Hindi. At 10.40pm he returned to the house at the Respondent=s request. He saw pot plants lying on the porch with the plants damaged.

PC Setareki then gave evidence that he attended the complaint at 9.40pm. He spoke to PW1 (Mr Mani) and told him that the Respondent had directed him to warn Mr Mani. He asked PW6 (PW1's mother) to confine PW1 in the house. He then left. At 10.15pm he came back to attend a report made by PW1. He found 2 broken pot plants at the door, with others scattered over the porch. He warned both parties to keep the peace and left the scene.

The court record then shows that PC Setareki and two other witnesses were warned to come to court on 9^th January at 10.30am for hearing. At 11.05am, when the court re-convened, he was not present. A bench warrant was issued. The trial continued with PW9, PC Lui Daurewa. He attended a third report at the Respondent=s house at 12.40am. There, PW1 showed him the pot plants and the broken glass door.

PW8 was then called and his evidence continued. The record is silent on the manner in which he came to court, and any reason given for his failure to appear at 11.05am. He was cross-examined and said that PW1 was drunk that night and that his wife and mother wanted him controlled.

The next witness was ASP Emosi Baleinuku. He tendered the exhibits and the caution interview of the Respondent. He said under cross-examination that there was bad blood between Respondent and complainant because the complainant had suggested having sexual intercourse with the Respondent=s wife.

The charge statement was tendered by Inspector Ram Jattan. In both caution and charge statements, the Respondent denied the allegations and said that the complaint had been fabricated to discredit him and to cause his dismissal from the police force.

The Magistrate found a prima facie case. The Respondent gave evidence on oath. He said that he was a senior police prosecutor, and had prosecuted for 16 years. Under cross-examination he said that PW1 had damaged the door. He denied swearing at PW1 and his family, denied threatening to punch PW1, and denied having a knife with him on the night in question. He said that all prosecution witnesses were lying because they were friends or relatives of PW1. He denied kicking PW1's pot plants and said his daughter had kicked them.

No witnesses were called for the defence. After hearing submissions the Magistrate delivered his judgment on 11^th January 2002. He rejected the evidence of the prosecution witnesses and accepted the evidence of the Respondent. He acquitted the Respondent on both counts. At page 82 of the record he said - AThe State=s case will stand or fall on whether or not Umesh Mani=s evidence is to be accepted.@

The Appeal

The Director of Public Prosecutions appeals against the acquittals on the following grounds:

A1. That the learned Magistrate failed to take into account certain material aspects of the prosecution evidence which remain uncontroverted.

2. That the conduct of the learned Magistrate during the course of the trial was such as to:
   
   1. give rise to an apprehension of bias on his part, since he failed to consider the prosecution evidence;
      
   2. give rise to an apprehension of him having prejudged the matter from the outset;
      
   100. deny the State Prosecutor any fair or reasonable opportunity to conduct the case for the State.
        
3. That in all the circumstances, the State was denied a fair trial before the learned Magistrate.@
   

The second ground, if successful will determine the outcome of this appeal. For this reason I deal with the second ground first.

Bias

In support of the appeal, the State filed the following affidavits:

1. Affidavit of Bhupendra Solanki dated 6^th February 2002;
   
2. Affidavit of Umesh Mani dated 25^th July 2002;
   
3. Affidavit of Shila Belas dated 25^th July 2002;
   
4. Affidavit of PC 2122 Setareki Raisuni dated 2^nd August 2002.
   

In reply the Respondent filed the affidavit of Tevita Fa dated 28^th of March 2002. However, because Mr Fa wished to continue to appear as counsel, he withdrew his affidavit and replaced it with the affidavit of Bhawani Prasad, dated 7^th August 2002.

The purpose of filing these affidavits was to firstly supplement the court record, and secondly to adduce evidence that there existed a reasonable apprehension of bias, against the complainant and the prosecution witnesses.

In accordance with the practice recommended by the Chief Justice=s Practice Direction, the affidavits were sent to the Magistrate for his comments. The affidavits referred to the decision of the Magistrate to allow the Respondent to sit at the bar table, the insistence of Respondent=s counsel to an early hearing date, a threat made by the Magistrate to PW1 not to make frivolous and vexatious claims or he would be asked to pay compensation to the Respondent under section 160(1) of the Criminal Procedure Code; a request by the Magistrate to PW1 to mark the pot where the damage was, when the evidence was that the damage was to the plant not the pot, a question asked by the Magistrate to the prosecutor after PW1's evidence had been heard, as to whether it was worth continuing with the prosecution, a warning to PW2 that her credibility was being affected by her evidence, a remark made by the Magistrate to PW3 that he did not know what value her evidence had and whether there was any point in cross-examination, a warning to PW6 that she should tell the truth and disregard her relationship to PW1, and comments made during the trial that the English translation of the swear words allegedly used were not swear words. Further, the affidavit of Bhupendra Solanki and PC Setareki state that when PC Setareki was late to court on 9^th January, the prosecutor asked to stand the case down for 10 minutes but the Magistrate refused to do so. 10 minutes later when the witness appeared, the Magistrate ordered his detention in the cell block, without hearing his explanation. When the witness was brought up from the cell after 30 minutes, he told the Magistrate that he had had a running stomach and had not felt well. The Magistrate then apologised to the police witness and continued with the hearing.

The affidavits further state that the Magistrate descended into the arena and started to cross-examine PC Setareki as to the reasons for locking PW1 in his house. Finally the affidavits state that after acquitting the Respondent, the Magistrate asked the prosecutor why he should not award costs against the complainant under sections 158(2) and 160(1) of the Criminal Procedure Code. He also considered ordering costs against the prosecution, but after receiving written submissions on the subject, decided not to. However he did order the complainant to come to court on the 1^st of February 2002 to show cause why costs should not be paid by him.

The affidavit of Bhawani Prasad does not dispute these facts. It admits all these incidents, but says that the Magistrate did not act improperly or in a biased way. Indeed he says that the criticism of the Magistrate by the prosecutor Ais a general reflection of his inexperience as a prosecutor, his inability to appreciate how the adversary system works and his lack of respect for the Magistracy.@

The Magistrate=s reply on 14^th August 2002 dealt with none of the alleged incidents which both parties agreed occurred. It merely stated that he was not biased. A further memorandum was written to the Officer-in-Charge of the Magistrate=s Court. In reply the Magistrate said that police officers were repeatedly failing to come to court, that PC Setareki had been warned to attend, that when he arrived he told the orderly to take him down to the cell on a bench warrant and that he remained there until it was his turn to give evidence. It is not denied that PC Setareki was in custody for about 30 minutes and that he was not asked for an explanation for his tardiness. The Magistrate does not explain why the detention of the witness is not part of the court record.

As to the other incidents, the Magistrate simply states that he agrees with the affidavit of Bhawani Prasad. Since that affidavit does not dispute that the incidents occurred, I allow the application to supplement the court record on the basis that all parties agree on the events which are not part of the court record.

As to the application to adduce additional evidence such as the evidence of Shila Belas that she thought the Magistrate Awas favouring the respondent and was only interested in listening to the defence case and not the prosecution witness@, I consider that while such evidence might throw a light on the way the witnesses felt about the proceeding, it is not particularly helpful when the test for bias is applied. The question is whether an informed bystander would have thought there was a reasonable apprehension, or real likelihood of bias. The persons who have provided affidavits are not bystanders. They were involved in the case, and their opinions carry very little weight for that reason. Therefore the application to adduce further evidence, as to how the witnesses felt, is refused.

At the hearing of the appeal therefore, counsel agreed that the incidents referred to in the affidavits of Bhupendra Solanki, PC Setareki, Umesh Mani and Shila Belas, occurred. What was disputed was whether the incidents gave rise to a reasonable apprehension of bias.

The State=s submission is that the cumulative effect of all the incidents alleged, together with the unusually early hearing date gave rise to a reasonable apprehension of bias. Counsel for the Respondent said that the prosecution witnesses were all discredited while giving evidence, and that therefore the learned Magistrate merely did what was natural in the circumstances.

In response to my question about the early hearing date, counsel for the Respondent made an extraordinary disclosure from the bar table. He said that the Magistrate had set an early hearing date (one week after the charges were laid) because the Respondent was the prosecutor who prosecuted daily before the same Magistrate. As a result, when the Respondent was suspended from the police force pending the outcome of the case, there were a number of partly-heard cases before that Magistrate, which the Magistrate was keen to complete. It was for that reason that the Respondent=s case was expedited, so that after his case, the part-heard cases could be completed by the Respondent.

Although this was an assertion from the bar table, State counsel then replied saying that if the prosecutor in the lower court had known that, he would have asked for the case to be listed before another Magistrate. She further submitted that this factor alone was enough to raise a reasonable apprehension of bias.

This ground of appeal is one of presumed bias. In Amina Koya -v- The State (Criminal Appeal CAV0002.1997) the Supreme Court said, of the wealth of authorities in Australia, New Zealand and England on the two, purportedly different, tests for bias:

A... there is little difference between asking whether a reasonable and informed observer would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias.@

In Ratu Ovini Bokini -v- The State Criminal Appeal No. AAU0001 of 1999S, the Magistrate detained the prosecutor in the course of a preliminary inquiry using the words ATake him downstairs. Drag him downstairs. Come on take him downstairs.@ The High Court, and Court of Appeal held that this incident was enough to lead a reasonably informed observer to suspect bias by the Magistrate against the prosecution. That Magistrate was the same Magistrate presiding in this case. The question is therefore whether the fact that the Magistrate set an early hearing date (allegedly for the convenience of his own case list), the unrecorded questioning of the complainant, his wife and PC Setareki, the detention of PC Setareki, the seating of the Respondent at the bar table, and the taking of steps to Apunish@ the complainant by ordering costs against him after the acquittals, all gave rise to a reasonable apprehension of bias.

In Ratu Ovini Bokini (supra), the Court of Appeal said that merely seating an accused at the bar table did not on its own create an apprehension of bias, saying that this was normal practice in New Zealand. Although it is not normal practice in Fiji, and counsel are expected to explain why they want their clients seated next to them before there is departure from this procedure, an application in this case was properly made, objected to, and ruled upon. Generally, Magistrates must guard against allowing well-off defendants to sit at the bar table while unrepresented and poor defendants continue to sit in the dock. Nevertheless, I do not consider the bar table incident to suggest bias.

However the other incidents, in my opinion do raise a reasonable apprehension of bias. In particular the detention of a prosecution witness, without first attempting to find out why he was late, would have suggested to an informed observer that the Magistrate had a bias against the prosecution. Further, even if I were to ignore the injudicious questioning of witnesses, and the premature suggestions that the prosecution was wasting its time, the Magistrate made a determined attempt to order costs against the complainant for a Afrivolous and vexatious@ complaint. Finally, counsel disclosed the fact that the Respondent has been prosecuting for about two years, on a daily basis before the same Magistrate and that the Magistrate had a number of part-heard matters listed before him, handled by the Respondent. Of significance, is that most of the issues raised by the State relevant to bias, were not recorded by the Magistrate. The State had to apply to supplement the court record in respect of, in particular, the detention of the prosecution witness.

It was said in Amina Koya (supra), that in considering whether there was an apprehension of bias, the record of the trial, showing how it was conducted, is of fundamental importance. On perusal of the record, it is not so much what was recorded, as what was not recorded, that gives rise to questions of bias.

The grounds for apprehended bias are overwhelming. In all the circumstances I hold that the entire proceedings were a nullity because there was a reasonable apprehension of bias. Indeed, if it is so that the Respondent is the Magistrate=s Aprosecutor@ the wisest course of action would have been to refer the trial to another Magistrate, perhaps even the Nausori Magistrate, to hear. It is now a cliché to say that justice must not only be done, but it must be seen to be done. When a police officer, or a prosecutor or a lawyer or indeed a magistrate or judge is on trial, there is a particular need to ensure that justice is seen to be done, and that the justice system does not have different rules for its own. The concept of protection against judicial bias, not only protects the fair administration of justice. It also protects the now constitutional guarantee of equality before the law.

I accept that as the trial progressed, State counsel must have realised that he had grounds to ask the Magistrate to disqualify himself on the basis of apprehended bias. However as Kirby P (as he then was) said in S & M Repairs Pty Ltd. -v- Caltex Oil (Australia) Pty Ltd. (1988) 12 NSWLR 358:

AThe entitlement to a judge who is manifestly impartial is not simply a private right which may be waived. It inheres in the public as well as to the individual litigant. It is not for the individual litigant to waive the public=s rights.@

The Fiji Court of Appeal in Pacific Transport Ltd. -v- Sunbeam Transport Ltd. Civil App. No. 39 of 1993, said however that:

AIf there is acquiescence in the participation of a person in the process of adjudication in circumstances which would give rise to likelihood of bias, that acquiescence, in our view, will generally have the effect of preventing that participation being in breach of natural justice.@

However, in this case the State prosecutor in the lower court did not know that the Respondent appeared daily in the Magistrate=s Court. Further the grounds raised, on which I have found apprehended bias, arose from the way the proceedings were conducted during the trial on a continuing basis, and after the acquittals. In the circumstances I find there was no acquiescence and therefore no waiver of the right to an impartial court.

The State=s appeal on ground (2) is successful.

Result

The entire trial was a nullity because of the apprehended bias of the Magistrate. Although section 319 of the Criminal Procedure Code prohibits retrial after an acquittal, in this case the acquittal, and the trial were nullities because of the perceived bias of the Magistrate. As Kirby ACJ said in Galea -v- Galea (1990) 19 NSWLR 263, 278:

AFrom the first to last, from beginning to end, the appearance of an impartial and unprejudiced mind on the part of a judicial officer is of the essence of the system of justice. If at any point, there is a loss, in fact or appearance, of that impartiality the trial will thereafter miscarry. The litigant who can establish such a miscarriage has not had a trial according to law.@

I therefore order that the acquittals be quashed and that the trial be heard de novo before another Magistrate.

Nazhat Shameem
JUDGE

At Suva
30^th August 2002