Hurtado v State [2015] FJHC 1031; HAM167.2015 (24 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO. HAM 167 OF 2015S

BETWEEN

AIDAN ALEC HURTADO
APPLICANT

AND

THE STATE
RESPONDENT

Counsels : Ms. S. Vaniqi for Applicant
Mr. M. Delaney for Respondent
Hearing : 9 November, 2015
Ruling : 9 November, 2015
Written Reasons: 24 December, 2015

WRITTEN REASONS FOR DISMISSING APPLICANT'S RECUSAL APPLICATION

1. In Suva High Court Criminal Case No. HAC 073 of 2014S, the applicant was facing the following charge:
   

Statement of Offence

UNLAWFUL IMPORTATION OF ILLICIT DRUGS: Contrary to Section 4 of the Illicit Drugs Control Act 2004.

Particulars of Offence

AIDAN ALEC HURTADO between the 7th to 10th of February 2014 imported into the Republic of Fiji at Nadi in the Western Division, 20.5042 kilograms of illicit drugs namely cocaine without lawful authority.

2. During the police investigation, the police obtained a caution interview statement from the accused on 18, 19 and 20 February 2014. The police allegedly asked the accused 364 questions, and he allegedly gave them 364 answers. In the caution interview statements, the accused allegedly confessed to the crime. On 2 and 3 November 2015, he challenged the admissibility of his caution interview statements in a voir dire. The first prosecution witness (PW1) had given evidence.
   
3. The second prosecution witness (PW2) was giving evidence. In the middle of PW2 giving his evidence, the accused, through his counsel, verbally ask for myself to recuse myself from the hearing on the grounds of bias. I heard the parties' verbal submissions on the matter, and later directed that the application be done properly with the filing of proper papers. Since the parties had previously agreed to trial between 2 and 13 November 2015, I directed that the voir dire continue, subject to the resolution of the recusal application.
   
4. On 4 November 2015, the accused filed his notice of motion and affidavit in support. On 9 November 2015, I heard the parties. The accused relied on the papers he filed. The prosecution asked that the application be dismissed as it was misconceived. They relied on the court record to support their objection. After hearing the parties, I dismissed the application and said, I would give my written reasons later on notice.
   
5. Below are my reasons.
   
6. In Viliame Qativi vs The State, Criminal Miscellaneous Case No. HAM 075 of 2014S, I said the following:
   

"...The law on the recusal of judges is well settled in Fiji. I quote with approval what His Lordship Justice Paul Madigan said in Mahendra Pal Chaudhry v The State, Criminal Miscellaneous Case No. HAM 181 of 2013, High Court, Suva, wherein His Lordship said:

[4] The test for disqualification is the perception of reasonable apprehension of bias. The test is an objective one and was set out by the Supreme Court in Amina Koya CAV 002/97. In that case in dealing with previously divergent tests coming from the House of Lords in Gough [1993] UKHL 1; [1993] AC 646 and the Australian High Court in Webb (1994) 181 CLR41, the Supreme Court referred to and adopted the New Zealand position expounded in Auckland Casino Ltd v Casino Control Authority (1995) 1 NZLR 142: The Court said:

"Subsequently the New Zealand Court of Appeal, in Auckland Casino Ltd v Casino Control Authority (1995) 1 NZLR 142, held that it would apply the Gough test. In reaching that conclusion, the Court of Appeal considered that there was little if any practical difference between the two tests, a view with which we agree, at least in their application to the vast majority of cases of apparent bias. That is because there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias"

[5] The Court of Appeal in Pita Tokoniyaroi and another AAU0043/2005, in following this test, added that (para 46)

"the reason why the Supreme Court...thought 'there is little difference if any between Gough and Webb' is because the Court investigates the actual circumstances and makes findings thereon and then imputes them to the 'reasonable and informed observer as is described in the Webb test.

(para 47) It follows that the word "informed" which qualifies the word "observer" is of vital importance".

[6] After hearing the applicant's earlier recusal application to him, on the basis of perceived prejudice or bias, Justice Goundar said (Mahendra Pal Chaudhry HAM 160 of 2010):

"This contention of the applicant miscomprehends the role of a Judge. It is almost universally recognized that Judges discharge their duties in accordance with the oath they take to do right to all manner of people in accordance with the laws and usages of their countries, without fear or favour, affection or ill will".

To suggest otherwise "is an affront to the judicial oath and to the presumption of judicial impartiality".

[7] In the case of Muir v C.I.R. [2007] NZCA 334, the New Zealand Court of Appeal in reviewing the case law on the test for bias said this (para12)

"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 enquiry should be rigorous, in the sense that complainants cannot lightly throw the "bias ball" in the air. The second enquiry is to then ask whether those circumstances as established might lead to 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..."

7. When applying the above law to the facts of this case, I found the accused had not satisfied the first test expounded in Muir v C.I.R (supra). I had read the accused's papers. His allegations were unfounded. Part of a trial judge's duty is to control court proceeding and make parties stick to the relevant matters being tried in the proceeding. It is also part of a trial judge's duty to stop the parties cross-examining on irrelevant matters, since that approach will waste the court's time. On the first test in itself, in my view, the accused failed. There was no need to go on to the second part of the test in Muir v C.I.R (supra).
   
8. Because of the above, I dismissed the recusal application on 9 November 2015.
   

Salesi Temo
JUDGE

Solicitor for Applicant : Vaniqi Lawyers, Suva.
Solicitor for Respondent : Office of the Director of Public Prosecution, Suva.