State v Prasad [2005] FJHC 70; HAC0038X.2004S (1 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0038 of 2004S

STATE

v.

SUKHENDRA PRASAD

Hearing: 18th March 2005
Ruling: 1st April 2005

Counsel: Mr. D. Toganivalu for State
Accused in Person

RULING

The Applicant makes an application that I disqualify myself from hearing his case because I have refused him bail on several occasions in the past. The State opposes the application saying that the Applicant has failed to show any grounds to suspect apprehended bias.

The test for bias in this country is whether an informed observer in the courtroom would either suspect bias or would consider that there was a real danger of bias.

The Applicant first appeared in the High Court on the 26th of November 2004, charged with the offence of murder. He immediately applied for bail on the ground that the diet in prison did not agree with his medical condition (which he described as gastritis) and that he wished to find a lawyer.

I then ordered a medical examination of the Applicant. A report was submitted to the court on the 8th of December 2004 which confirmed that he had gastritis and that his diet could be managed in prison. I ruled on bail on the 17th of December and found that there was a risk that the Applicant would interfere with a witness in the case (who is his own daughter) and that he has several alias names which might make locating him difficult. I held that his medical condition could be managed in prison with a change in diet and I refused bail. I then fixed the hearing date for trial to the 4th of July 2005.

At the next bail review hearing, the Applicant complained that his diet had not been changed. On the 4th of February the Applicant again complained that his diet had not been changed, although State counsel said that he had been told by the prison authorities that it had. I said I wanted to hear evidence on the issue. The Chief Prison Officer gave evidence that the Applicant was indeed on a special diet. The problem was, he said, that the Applicant did not like the content of the special diet and chose spicy food from the kitchen. The Applicant did not dispute this evidence. Nor did he dispute that he was kept neither in the cells nor in the Sacau Dormitory but in the infirmary. However, he asked for bail again, saying he would not interfere with his daughter while awaiting trial.

I ruled that no new ground had been raised, and that the Applicant was indeed on a special diet on the doctor’s orders. I refused bail.

The Applicant now says that these two refusals entitle him to another judge. I cannot agree. Our magistrates and judges, daily refuse multiple bail application in our courts. They do it on legal principle and they may be reversed on appeal. A refusal of bail does not reflect on the impartiality of the court unless the refusal is a reflection of some personal bias, or where it creates a reasonable apprehension of bias. No basis for either proposition has been shown in this case.

The application for disqualification is refused.

Nazhat Shameem
JUDGE

At Suva
1st April 2005