Balaggan v State [2012] FJHC 923; HAM005.2012 (9 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANOUS JURISDICTION

Misc. Case No: HAM005 of 2012

BETWEEN:

MUSKAN BALAGGAN
Applicant

AND:

THE STATE
Respondent

Hearing: 29 February 2012
Ruling: 9 March 2012

Counsel: Mr. R. Chaudhry for Applicant
Ms I. Whippy for State

RULING

[1] By way of a motion accompanied by an affidavit, the applicant seeks the following orders:

(i) That the transfer application as made earlier in the High Court on 26 May 2011 be reheard by this Honourable Court on account of the recusal of His Lordship, Madigan J on matters traversed in Court before him prior to the making of the transfer application before him as the then presiding Trial Judge;

(ii) That the transfer order as made by the Resident Magistrate Mr. M.H. Mohammed Ajmeer on 15 February, 2011 in the Nadi Magistrates' Court be quashed and set aside;

(iii) That the High Court remit this matter to the Nadi Magistrates' Court to determine the issue of transfer and for the Accused/Applicant to elect the Court in which she wants the matter heard; and

(iv) Any other Orders that the Court may deem just and expedient in the conditions.

[2] After the motion was set for hearing in Suva, the applicant applied for an additional order, along the following terms:

That this matter be remitted to the Lautoka High Court on account of jurisdiction.

[3] The motion was filed on 1 February 2012, when I was about to assign a trial date for the case. As far as the co-accused is concerned, his counsel elected not to respond to the present motion, or take an objection to the transfer order that was made by the Magistrates' Court in relation to his client. The transfer order in relation to the co-accused was made under circumstances similar to the applicant.

[4] This case was transferred to me on 6 September 2011, after Madigan J recused himself from hearing the trial. Nothing prevented the applicant to file this application immediately after the case was transferred to me. She made numerous appearances before me in the High Court at Suva since September 2011. On 7 December 2011, I granted the State's application for a joint trial in the High Court for the applicant and her co-accused.

[5] It is not just the application for a re-hearing of a matter already adjudicated is of concern; the subsequent application to change the hearing venue from Suva to Lautoka is of a greater concern to the court.

[6] When these concerns were ventilated with Mr. Chaudhry in open court on the day of the hearing, he could not offer any cogent reasons as to why his motion could not be heard in Suva. Clearly, the validity of the proceedings is not affected by the venue of the hearing. How the hearing venue affects jurisdiction of the High Court was not made clear to the court. Instead, Mr. Chaudhry became defensive in his response and imputed bias and personal interest on behalf of the judge for questioning him the purpose for seeking change of venue for the hearing.

[7] I accept that Lautoka at the moment has two judges presiding in the Criminal Division of the High Court. But given the current backlog of more than hundred criminal cases pending for hearing in Lautoka, even two judges are inadequate to clear that backlog in a timely manner. Every now and then judges from Suva will be called upon to assist their brother judges in Lautoka. These measures are part of case management put in place by the judiciary to provide timely hearing of criminal cases to avoid injustices occurring to the accused persons, the victims and the State by reason of delay.

[8] There is nothing sinister about a Suva judge to hear the present application or the trial. This is because the management of cases and assignment of judges to hear cases are functions of the judiciary. A judge is under no legal obligation to offer justification to the litigants the assignment of cases to him or her for hearing.

[9] What is objectionable is to allow the litigants to choose their judges or the forums for hearing of their cases. The assignment of judges to hear cases is non-justiciable. The reasons for this principle were justified by the New South Wales Court of Appeal in the case of Rajski v Wood (1989) 18 NSWLR 512. Kirby P (as he then was) said at p. 519:

"If parties could pick and choose judges according to their perception of the way in which their choice could advantage them, or disadvantage their opponents and then render judges answerable for sitting arrangements, great damage would be done to the integrity of the judicial process and to community confidence in the neutrality and impartiality of the judiciary."

[10] Later, in the same paragraph Kirby P said:

"Courts are vigilant to adopt procedures to guard against forum shopping and judge selection by parties to litigation. Sometimes practices are adopted to provide a random assignment of judges, precisely to reduce the risk that parties to litigation might, by their own actions, influence the choice of the judge to hear their case. Generally, however, by express law, inherent power or conventional practice, the constitution of courts is left to the presiding judge in whom the power is reposed in the confidence that he or she will exercise it lawfully, neutrally and impartially and strictly for the achivement of the purpose of the grant of the power. That purpose remains always the achivement in each case submitted to judicial determination of justice according to law."

[11] Of course, litigants will not openly indulge in practices of choosing judges or forum shopping. What the court must guard against are those conducts of litigants that could give an apprehension of forum shopping to a fair-minded and an informed member of the public. In the present case, a fair-minded person, after being informed of the timing of the present application and the subsequent attempt to change the venue of hearing from Suva to Lautoka without any cogent reasons, would perceive the application as a disguise for forum shopping. At times, such perception depicts reality. The judges have a duty to admonish any conduct of the litigants that gives a perception of forum shopping, if the purity of the independence of the courts is to be maintained. For these reasons, I refused to transfer the original motion to Lautoka and heard the application in Suva.

Proceedings in the Magistrates' Court

[12] On 31 January 2011, the applicant was charged with a drug related offence in the Magistrates' Court at Nadi. On 11 February 2011, the applicant was granted bail upon an application by Mr. Chaudhry. After granting bail, the learned Magistrate transferred the case to the High Court. Mr. Chaudhry took no issue regarding the transfer at that point in the Magistrates' Court.

Proceedings in the High Court at Lautoka

[13] On 4 March 2011, the applicant appeared in the High Court at Lautoka before Madigan J. Madigan J allowed the applicant to remain on bail and sanctioned Mr. Chaudhry to continue to act as her surety. The application challenging the validity of the transfer order made by the Magistrates' Court was made before Madigan J on 26 May 2011. On 8 July 2011, Madigan J held the transfer order to be valid and dismissed the application. Madigan J found that the applicant's objection to the transfer order on the ground that she was not given an opportunity to make submissions could not be sustained because the order was made pursuant to section 191 of the Criminal Procedure Decree 2009 that gave discretion to the Magistrates' Court to transfer without the consent or application by any particular party.

Jurisdiction to re-hear an interlocutory criminal matter

[14] The transfer decision of Madigan J is an interlocutory decision. A re-hearing of the application to determine the validity of transfer order made by the Magistrates' Court is tantamount to a review of Madigan J's decision. Counsel for the applicant could not point out to any statutory provision that expressly gives jurisdiction to this Court to review an interlocutory criminal matter that has already been adjudicated.

[15] There exists a general common law principle that no court of co-ordinate jurisdiction may sit in review of itself (Re Kray [1965] Ch 736, 745A). The general principle has a few exceptions. The first exception relates to bail decisions. In Re Wong Tai (1911) 6 HKLR 67, 69 Sir Francis Piggott CJ held that there is, and remains, a general right of bail at common law, independent of statute. It is a residual jurisdiction and is therefore parallel to the Bail Act.

[16] The second exception relates to decisions on admissibility of evidence. In Watson (Campbell) (1980) 70 Cr. App. R. 273, [1980] 1 WLR 991 it was held that a judge who has second thoughts about the voluntariness of a confession he has earlier ruled admissible retains discretion to review that decision, and take such steps as are necessary, depending on the circumstances, to prevent injustice.

[17] The transfer decision of Madigan J is neither a bail decision nor an admissibility of evidence decision, to fall under the exceptions to the general common law principle. Counsel for the applicant relies on the inherent jurisdiction of this Court to apply for the re-hearing of the validity of transfer order made by the Magistrates' Court.

Inherent Jurisdiction

[18] It must be said that 'inherent jurisdiction' falls within that category of legal terms often invoked in court, yet rarely understood in a tangible and well-defined sense. The jurisdiction was originally conferred on the superior courts of the common law in England, which were also courts of record. Its essential function was to provide such courts with an array of powers, independently of statute or other rule of law, necessary to protect their capacity to administer justice and retain their nature as superior courts.

[19] In Fiji, the equivalent of the superior courts of the common law is the High Court. The High Court undoubtedly exercises original jurisdiction. The jurisdiction of the High Court was spelt out in section 120 of the Constitution.

[20] Currently, the jurisdiction is provided by section 6(1) of the Administration of Justice Decree 2009:

The High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other original jurisdiction as is conferred on it under this Decree or any other law.

[21] Subsection (3) provides:

The High Court has jurisdiction to supervise any civil or criminal proceedings before a subordinate court and may, on an application duly made to it, make such orders, issue such writs and give such directions as it considers appropriate to ensure that justice is duly administered by the subordinate court.

[22] The inherent powers are the residual or the reserved powers, which the Court exercises independently of section 6 of the Administration of Justice Decree. For instance, in Connelly v DPP [1964] AC 1245 (HL), a residual discretion to stay criminal proceedings on the ground of abuse of process was recognized. In New Zealand that discretion was affirmed in the influential decision in Moevao v Department of Labour [1980] 1 NZLR 464(CA). The inherent power of the superior courts to stay criminal proceedings was recognized by the High Court of Australia in Ridgeway [1994-95] 184 CLR 19. In Ridgeway, Gaudron J described the power at p. 74:

"The inherent ... powers of superior courts to prevent an abuse of process exist to protect the courts and their proceedings, and to maintain public confidence in the administration of justice ... And the maintenance of public confidence in that regard depends on ensuring that judicial proceedings serve the ends of justice, not injustice ..."

[23] The Court of Appeal in State v Sat Narayan Pal Criminal Appeal No. AAU0036/2006 (8 April 2008) considered the cases from the common law jurisdiction and reaffirmed the inherent power of the High Court to stay criminal proceedings, by dismissing the State's appeal against a decision staying the prosecution for abuse of process.

[24] While I accept that the scope of the inherent powers of the superior courts in criminal cases is not restricted to the prevention of abuse of process, the jurisdiction is not something that should be invoked at whims of the litigants. The Court has inherent jurisdiction to order name suppression of the accused (State v. Doreen Singh Criminal Review Case No. HAR 005/09 (27 August 2009), or order disqualification of counsel representing an accused (State v. Alifereti Criminal Misc. Case No. HAC 18/05S (2 April 2008). But these powers are invoked to prevent an injustice so that the public confidence in the administration of the criminal justice system is maintained.

Will the applicant suffer an injustice if a re-hearing is not ordered?
[25] The present application for a re-hearing of the transfer order is founded on the ground that Madigan J's decision is tainted with bias. At paragraph 7 of her accompanying affidavit, the applicant states:

"The real reason for the refusal to transfer was, in my opinion, that Madigan J had already a bias against me and this bias manifested itself in rulings against me in all my applications."

[26] The applicant further states that she was not heard before the transfer order was made by the Magistrates' Court and that she will not receive a fair trial.

[27] As pointed out by Madigan J, the applicant clearly holds a misconceived view of the discretion given to the Magistrates' Court to transfer cases to the High Court pursuant to section 191 of the Criminal Procedure Decree. The Criminal Procedure Decree gives both the Magistrates' Court and the High Court jurisdiction to hear drug cases. What the Criminal Procedure Decree does not provide, an accused charged with a drug offence, is the right to elect the venue for trial. The discretion to transfer under section 191 is exercised by the Magistrates' Court without the consent of the accused.

[28] There is no doubt that Madigan J applied the correct principles in holding the transfer order to be valid. The applicant contends that Madigan J's bias is manifested in rulings against her in all her applications. This contention cannot be legally sustained. Just because a judge makes unfavourable decisions against a party, does not make the judge biased towards that party. When the applicant first appeared in the High Court at Lautoka, Madigan J extended her bail and sanctioned her counsel to be her surety, while her co-accused, who had similar circumstances as the applicant, had his application for bail refused. Clearly, Madigan J's acceptance of Mr. Chaudhry to act as her counsel and surety, which would not have been permitted in other common law jurisdictions for potential conflict of interests, was a favourable decision for the applicant. The applicant does not seem to suggest any bias in this particular decision of Madigan J.

[29] According to the applicant, bias arose when Madigan J refused to vary her bail conditions to allow her to travel abroad. That decision was made based on the bail principles. The subsequent revocation of the applicant's bail by Madigan J was also based on proper principles of bail. The applicant appealed against that decision, but the Court of Appeal dismissed the appeal saying no error of bail principles was shown.

[30] The basis for recusal was a statement contained in the bail variation ruling dated 13 April 2011 to the effect, "[t]he evidence is strong, by way of an interview under caution as well as being caught red-handed". In her accompanying affidavit, the applicant either presents a modified version of what was said by Madigan J or a new statement that was not put to Madigan J in the recusal hearing. She states at paragraph 4:

"In comments in open Court Madigan J said that I was caught red handed and that it was a serious charge."

[31] It could now be argued in light of the observations made in the bail judgment of the Court of Appeal in Balaggan v The State Miscellaneous Case No. 31 of 2011 (15 September 2011) that Madigan J's statement was not an objectionable statement. In that judgment, Marshall JA at paragraph 4 said:

"Findings of fact on bail applications are necessarily prima facie findings of a tentative nature on limited material. The common law expects judges, who are bound by their judicial oath, to adjudicate on the facts properly and fairly on trial paying no heed to whatever tentative prima facie findings they may have been required to make upon the hearing of an earlier bail application in the same matter."

[32] There is nothing in the record to suggest that the applicant has not been accorded due process in the proceedings before Madigan J. As far as the transfer decision of Madigan J is concerned, that decision was made after the applicant was heard. The subsequent recusal of Madigan J has no bearing on the validity of his earlier decisions. I am satisfied that no injustice will be caused to the applicant if the present application is dismissed for want of jurisdiction.

Result

[33] The application is dismissed.

Daniel Goundar
JUDGE

At Suva
9 March 2012

Solicitors:
Gordon & Chaudhry Lawyers for Applicant
Office of the Director of Public Prosecutions for State