Sinha v State [2011] FJHC 371; HAM056.2011 (4 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO. HAM 056 OF 2011

BETWEEN:

SALENDRA SEN SINHA
Applicant

AND:

STATE
Respondent

Applicant in Person
Ms M. Fong for the State

Date of Hearing : 09 June 2011
Date of Ruling: 04 July 2011

RULING
[Recusal Application]
_________________________________

[1] The applicant makes application that I recuse myself from hearing an application for stay that he makes contemporaneously on the basis of delay.

[2] His grounds to the application are directly quoted from his letter of application:

1. "Recusal to be considered based on the fact that Your Lordship's capacity as a former prosecutor for Fiji Independent Commission Against Corruption has placed a lot of undefended or unrepresented accused like your applicant in a most disastrous and disadvantages position.
   
2. Recusal to be considered on the grounds that the Fiji Court of Appeal in hearing various applications for Leave Hearing for appellant being tried and sentenced by your Lordship stated and confirmed that the sentence or ruling is inconsistent with the laws of this county.
   
3. Recusal to be considered on the grounds that your Lordship's decision to give your personal electronic mail address to State Counsel Ms Jasveel Singh for the transferred of the copy of information and Summary of Facts during the preparation of sentencing on the current 5 years 2 months imprisonment is one of the grounds for conviction appeal at the Fiji Court of Appeal.
   
4. Recusal to be considered on the grounds that Your Lordship's previous decision on matters placed before your Honourable Court for unrepresented accused has a history of favouring the State instead of the defendant. An unrepresented application like me is of no exception."
   

[3] Mr. Justice Goundar recently canvassed the authorities on recusal applications in detail in Mahendra Pal Chandhary – HAM 160 of 2010. The real test was adopted by the Fiji Court of Appeal in

Amina Koya [1998] FJSC 2 where it was said "the test is whether a fair-minded observer might reasonably apprehend or suspect that the judge had prejudged (or the English test) whether there is a real danger or real likelihood in the sense of possibility of bias".

[4] Obviously the true test is whether a Judge can be seen to act impartially or not and such impartiality would arise in circumstances where for example the Judge had prior knowledge of disputed facts, whether the Judge had a financial interest in the outcome of the proceedings or perhaps where the Judge had previously been a witness for one of the parties.

[5] None of the grounds raised by the applicant suggests that this Court would be biased against the applicant in deciding on an application for stay, let alone suggests that I would be unable to act judiciously on any matter brought before me.

[6] The applicant told me orally that working for the Fiji Independent Commission Against Corruption ("FICAC") involved me in prosecuting corruption on behalf of the Government and as he had recently offended against the government, I would come down on the side of the government and not him.

[7] As a consultant for FICAC in 2008 and 2009, I was chiefly involved in drafting charges and shepherding early cases through the Courts. I was not involved in investigations nor was I making political decision in the process. His submission that such employment made me too "pro-government" is baseless and there can be no connection between that employment and "a disastrous and disadvantageous view of this unrepresented applicant". No fair-minded observer would so find.

This ground fails.

[8] Whatever is said on leave applications in the Fiji Court of Appeal is a matter for that Court. If the applicant finds subsequently that this Court has passed sentences or made rulings "inconsistent with the laws of this country", then the obvious way to correct these "errors" is by appealing to the Court of Appeal.

This ground too fails.

[9] It is quite wrong for the applicant to claim that I have given my personal email address to a counsel in the DPP's Office. I have given not one counsel my personal email address. The applicant obviously refers to a time in 2010 when he had been convicted of multiple charges of fraud. In order to save time, so that a sentence could be handed down expeditiously, my secretary had requested her counterpart in the DPP's Office to send her a soft copy of the facts and the charges. I had no email contact with any counsel in the matter. It was on a secretary to secretary basis.

This ground too fails.

[10] The applicant submits orally that it is a general view amongst prisoners in the correctional institutions who have been sentenced by me that I favour the prosecution instead of defendants. It is not surprising that hapless convicts should take that view. The applicant admitted that he had not canvassed the opinions of those acquitted in this Court.

This ground fails.

[11] The application is totally without merit and seems to rely on totally irrelevant allegations about past cases. The grounds go no way to showing to a fair-minded observer that this Court would be biased against the applicant in an application for stay based on delay.

[12] The whole application is misconceived, grounded on erroneous assumptions, irrelevancies and it is plainly vexatious.

[13] The application for recusal is refused.

Paul K. Madigan
JUDGE
At Lautoka
4 July 2011