Balaggan v State [2011] FJHC 501; HAM134.2011 (6 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HAM 134 OF 2011

BETWEEN:

MUSKAN BALAGGAN
Applicant

AND:

STATE
Respondent

Mr. R. Chaudhry for the Applicant
Ms I. Whippy for the State

Date of Hearing : 1st September 2011
Date of Ruling : 06 September 2011

RULING
[Recusal]

[1] The applicant is charged with an offence under the Illicit Drugs Control Act 2004. She seeks to have me disqualify myself from presiding over the matter on the grounds of perceived bias precluding her from her right to a fair trial.

[2] The test when looking at the question of bias was formulated by the High Court of Australia in Antoun v R [2006] HCA 2 and adopted by the Fiji Court of Appeal in Takiveikata (CA) AAU0065 of 2004. It is this:

"If a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide, the judge is disqualified from trying the case".

[3] The New Zealand Court of Appeal in reviewing Commonwealth Authorities on this test said in Muir v C.I.R. [2007] NZCA 334:

"In our view the correct enquiry is a two stage one. First it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the "bias" ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case.

This standard emphasizes to the challenged judge that a belief in his own purity will not do: he must consider how others would view his conduct."

[4] The applicant by way of affidavit makes several assertions in support of her perception that she will not receive a fair trial. Her counsel before me sought not to press most of those assertions, which in the circumstances was proper, most of the assertions not even approaching the first "stage" referred to in Muir.

[5] There is however one ground relied on by the applicant which she does submit is of some concern to her and which counsel submits is the only ground that he need rely on for me to recuse myself. In an application for variation of bail to allow the applicant to leave Fiji and resume her studies in Australia, I refused the applicant in a written ruling on the 13th April 2011. The refusal was based on her lack of ties to Fiji and the seriousness of the offence (The maximum penalty being life imprisonment). As always must be the case, the strength of the evidence was a relevant issue and after hearing submissions from the State in that regard I wrote this in my ruling: "The evidence is strong, by way of an interview under caution as well as being caught red-handed".

[6] Mr Chaudhry submits that the expression "caught red-handed" can only mean that I have prejudged the issue and concluded that his client is guilty, at a time when not one piece of evidence had been heard in the case.

[7] When assessing strength of evidence , assistance is normally rendered by State Counsel, and recourse is made to the disclosures if they are available. It is disclosed in the statements served that the applicant was at the airport with a suitcase alleged to have contained clothing and towels soaked in a solution of some kind of drug. It was in that way that she was said to be "caught red-handed" and although it was probably not happily worded, the phrase cannot possibly be an assumption of guilt. It merely acknowledges a fact disclosed on the depositions without any reference to any possible defence she may have of non-connection, lack of knowledge and more.

[8] I have no doubt in my mind as to my ability to preside over the applicant's trial with an impartial mind and to put to the assessors all relevant issues including matters relied on by the defence. That of course is in accordance with my duty arising from my oath of office sworn on assuming this post.

[9] Whatever I believe however is not the test. The test is whether a fair-minded lay observer might, on seeing the phrase "caught red-handed" have reason to be concerned that I was at a very early stage not bringing an impartial mind to the case, and I am now persuaded that the phrase could possibly be construed as such. In assessing the evidence against the applicant, it was only necessary to state that it was strong, and quite unnecessary for that evidence to be particularized as I have done. There being the possibility that a fair-minded lay observer may have the reasonable apprehension of bias, then this is a case where the application should succeed.

[10] Before recusing myself however, I make the following orders:

(i) The trial dates of this case (HAC 49 of 2011) and the associated case, (HAC 50 of 2011 against Elton Xhemali) from September 26 to September 30 are vacated.

(ii) There being no urgency now to prepare for trial, the special licence given to the applicant to attend on her counsel at his professional chambers three times a week is now revoked with immediate effect.

(iii) This case and that of the related case no. HAC 50 of 2011 will be transferred to the Suva High Court, for disposal of all pre-trial interlocutory matters (including but not confined to consolidation of charges and any further applications for bail) and the two cases will be called before Mr Justice Goundar at 9.30am on Monday 12th September, 2011.

[11] I now for reasons given recuse myself from presiding over either of the two trials.

Paul K. Madigan
JUDGE

At Lautoka
06 September 2011