Kumar v Fiji Independent Commission Against Corruption [2010] FJHC 90; HAC181.2008 (18 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 181 of 2008 (HAM044 of 2009)

BETWEEN:

SUNIL KUMAR
Applicant

AND:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
Respondent

Hearing: 23rd October 2009
Ruling: 18th March 2010

Counsel: Mr. A. Kohli for Applicant
Mr. A. Rayawa and later Mr. M. Tennakoon & Mr. N. Marasinghe for FICAC

RULING

[1] This is an application to quash the Information against the accused. He is charged with seven counts of attempting to prevent the course of justice, contrary to sections 131(d) and 47 of the Penal Code.

[2] The application raises two issues. The first is, whether the accused is judicially immune from prosecution, and the second is, whether the charges can be sustained in law and fact.

Judicial Immunity

[3] The principle of judicial immunity from criminal prosecution has its roots in the English common law. In Fiji, the principle is codified in section 15 of the Penal Code:

"Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done ... or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done."

[4] The common law principle of judicial immunity was explained by Lord Denning in Sirros v. Moore [1975] 1 QB 118 at p.132:

"Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus or a writ or error or certiorari or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear."

[5] While Lord Denning’s statements relate to both, immunity from civil and criminal liability, in this case, only the law in relation to the principle of judicial immunity from criminal liability is relevant.

[6] Under section 15 of the Penal Code and in common law, a judicial officer is immune from criminal responsibility for anything done in the exercise of his or her judicial functions. The term "judicial officer" is not defined in the Penal Code or the Magistrates’ Court Act.

[7] In common law, the immunity applies to magistrates. A magistrate, when sitting in the course of his or her duties, is a judge within the meaning of that word (Law v Llewellyn [[1906] UKLawRpKQB 21; 1906] 1 K B 487).

[8] In Sirros v Moore (supra) it was held that every judge from highest to the lowest should be protected to the same degree from liability so that they may be free in thought and independent in judgment when acting judicially.

[9] However, judicial immunity is not absolute. The immunity does not mean that the judicial officers are above the law. The immunity does not exist to protect the judicial officers, but to guard the institution of justice and the rule of law from interference from disgruntled litigants. The immunity exists to protect the public interest by protecting judicial officers to perform their duty with complete independence and free from fear of being prosecuted for acts done in the exercise of judicial function.

[10] Against these principles, I consider whether the charges can be sustained in law and fact.

The Charges

[11] The accused is charged with seven counts of attempting to prevent the course of justice. The ordinary meaning of the word "prevent" is to avert something from happening. The word "pervert" has a different meaning. It means to alter or change. However, when these terms are used with the course of justice, they denote an offence against the public weal. An attempt or incitement to prevent or defeat the due course of justice is an offence against the common law and no less than a conspiracy to prevent it was a punishable misdemeanor (R v. Grimes (Note) [1968] 3 All ER 179, R v. Vreones [1891] UKLawRpKQB 14; [1891] 1 QB 360, R v. Tibbits & Windust [1901] UKLawRpKQB 188; [1902] 1 KB 77, R v. Greenburg (1919) 63 S.J. 553, R v. Andrews [1973] QB 422, R v. Panayiotou [1973] 1 WLR 1032).

[12] The offences created by section 131 of the Penal Code reflect the common law offences of conspiracy to defeat justice and interference with witness. Like the common law offences, section 131 has classified the offences misdemeanours.

[13] The accused is specifically charged with an attempt to prevent the course of justice, contrary to section 131(d) of the Penal Code. This charge can be sustained in law and fact, if it could be shown that the accused did an act with an intention to prevent the course of justice. It was held in R v Vreones (supra) that the offence requires proof of a specific intention to prevent the course of justice and not an act that has a known tendency to prevent the course of justice.

[14] The course of justice is the capacity of a court or competent judicial authority to do justice in accordance with the law. The course of justice is not confined to judicial adjudication (R v Bailey [ 1965] NI 15).

[15] In R v Rogerson [1992] HCA 25; [1991-1992] 174 CLR 268, the High Court of Australia held:

"An act which has a tendency to deflect the police from prosecuting a criminal offence, instituting disciplinary proceedings before a judicial tribunal or adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice."

[16] Furthermore, it is not necessary to show that a police investigation should have been commenced or even be under consideration by the police. What has to be shown is that at the time the accused did the act, he contemplated that criminal proceedings may at some time be investigated or instituted (Rafique [ 1993] 4 ALL ER 1). If no proceedings of any kind are in contemplation at the time the relevant act by the accused was done, then there is no interference with the course of justice (R v Selvage [1982] 1 ALL ER 96).

[17] The conduct of the accused complaint of is substantially the same in all the counts:

Count 1 – 11/05/07: ordered Special Constable No. 2103 Divendra who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drivers or he would be crippled like former Police Commissioner, Mr. Jimi Koroi.

Count 2 – 12/05/07: ordered Special Constable No. 2103 Divendra who was giving evidence on oath on Traffic Formal Proof cases to stop booking traffic offenders who are illegally parked in Nausori Town.

Count 3 – 07/06/07: ordered Woman Police Constable No. 3088 Ashika who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drives accusing her for killing them as Police have nothing to do and threatened the said officer that her children will be crippled like former Police Commissioner Jimi Koroi as a result of public curse.

Count 4 – 11/06/07: whilst Sergeant Timoci who was giving evidence on oath on Traffic Formal Proof cases discouraged such officer from booking offending drivers by asking him why he was booking too many drivers as they were not stealing anything and that Nausori is smaller than Labasa Town.

Count 5 – 30/08/07: ordered Woman Police Constable No. 3088 Ashika who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drivers or she would be crippled like former Police Commissioner, Mr. Jimi Koroi.

Count 6 – 18/09/07: ordered Woman Police Constable No. 3088 Ashika who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drives or she would be crippled like former Police Commissioner, Mr. Jimi Koroi.

Count 7 – 09/10/07: whilst Police Constable No. 3201 Avinesh who was giving evidence on oath on Traffic Formal Proof cases discouraged such officer from booking offending drivers by accusing the Police Traffic Officer in charge at Nausori for taking tips from drivers which implied that he was receiving bribes.

[18] The prosecution alleges that on each occasion, the accused attempted to prevent the course of justice by discouraging the police officers from carrying out their official duties. The prosecution case is that the accused acted in this manner while presiding as a Magistrate in traffic cases when the police officers were formally proving the traffic infringement notices issued to motor vehicle drivers for violating traffic laws.

[19] The accused contends that even if it is proved that he conducted himself in the manner suggested by the police officers, there is no evidence that he intended by his conduct to prevent the course of justice by deflecting future prosecution of traffic infringements by the motor vehicle drivers in the Nausori area. The accused points out that on each occasion that is subject of the charge, he dealt with the infringement notices in accordance with the law by either convicting the offenders and imposing appropriate punishments, or discharging the offenders where the circumstances justified doing so. There is support for this contention of the accused in the discovery of evidence filed by the prosecution. The accused submits that his statements should not be looked at in isolation but in the context of the proceedings where the police officers were formally proving hundreds of traffic infringement notices without being able to remember important details.

[20] It has to be borne in mind that the intention of an accused is always a matter of fact to be proved like any other fact in a criminal trial. Generally, there is no direct evidence of a state of mind of an accused. The state of mind of an accused may be inferred from the entire circumstances of the case. In this regard, I accept the submission of the accused that his conduct should not be looked at in isolation but in the context of the entire proceedings where the conduct complaint of arose.

[21] While I accept that the only inference that could be drawn from the circumstances of this case is not that the accused intended to deflect the police officers from investigating and prosecuting traffic offenders, it is not a matter for me at this stage of the proceedings, to make such a conclusion. What was the intention of the accused when he did the act complaint of by the prosecution is a matter of fact that has to be established after the court has heard all the evidence. For the purpose of this application, if the discovery of evidence in support of the charges discloses that an inference of intention to prevent the course of justice could be made, although that it is not the only inference available, then the trial should proceed.

[22] In this case, the evidence of the number of occasions that the accused acted in a similar manner whilst presiding as a judicial officer could be relied on by the prosecution to prove the specific intention to prevent the course of justice (R v Bond [[1906] UKLawRpKQB 91; 1906] 2 KB 389, 420).

Result

[23] For these reasons, I hold the charges can be sustained in law and fact. I further hold that the accused is not immune from criminal prosecution under section 15 of the Penal Code.

[24] The application to quash the Information is refused.

Daniel Goundar
JUDGE

At Suva
18th March 2010

Solicitors:
Messrs. Kohli & Singh for Applicant
Office of the Fiji Independent Commission Against Corruption for Prosecution