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High Court of Fiji |
IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION
AT LAUTOKA
Judicial Review HBJ No. 06 of 2015
BETWEEN :
STATE
AND :
WESTERN DIVISION SUPERVISOR OF CORRECTIONS
empowered under the Prisons Act Cap 86 and or the Prisons and Corrections Act 2006 to hear and determine proceedings against prisoners in relation to prison offences.
FIRST RESPONDENT
AND :
COMMISSIONER OF FIJI CORRECTIONS SERVICES
as appointed under the Prisons and Corrections Act 2006
SECOND RESPONDENT
EX-PARTE :
SALENDRA SEN SINHA
Maximum Corrections Centre, Naboro
APPLICANT
Counsel : Mr K. Vuetaki for applicant
: Ms Pranjivan for respondents
Date of Hearing : 13 August 2015
Date of Decision : 01 September 2015
Date of Written Reasons: 30 September 2015
D E C I S I O N
[Written Reasons]
Introduction
[01] On 1 September 2015 I decided to issue writ of certiorari quashing the decisions made by the respondents against the applicant and announced reasons will be published on a later date, which I do now.
[02] This is an application for judicial review.
[03] On 29 May 2015 the applicant filed originating summons seeking inter alia writ of certiorari quashing the decisions of respondent forfeiting three months remission of his sentence of imprisonment ('the application').
[04] The applicant relies on his affidavit sworn on 30 March 2015, and his affidavit in reply to the respondent's affidavit in opposition.
[05] The respondents rely on joint affidavit of Viliame Bulewa, the Supervisor of Corrections Western Division and Ifereimi Vasu, the Commissioner of Correction sworn on 29 May 2015 in opposition, and Supplementary affidavit of Aisea Vucago, the Legal Officer with the Fiji Correction Services sworn on 11 August 2015.
[06] Pursuant to Order 53, rule 3, the court granted leave to the applicant to apply for judicial review on the grounds of (i) jurisdictional error, (ii) unreasonableness and (iii) bias. When granting leave on 22 April 2015, the court also ordered that the grant of leave will operate as a stay of sentence (decisions of the respondents forfeiting three month remission) until determination of the application for judicial review.
[07] At hearing, both counsel orally argued the matter. Also, they tendered their written submission which I found quite useful for me in arriving at my decision.
The application
[08] The application seeks the following declarations and orders:
Background
[09] The applicant is a prisoner serving sentence at Naboro Maximum Correction Centre. On 29 October, 2010 he was sentenced to two years imprisonment with a non-parole period of 18 months by the High Court. Later on 10 December 2010 the Lautoka High Court imposed a further 5 years 2 months sentence upon him concurrent to the 2 years he was already serving. With remission of sentence he would be released on 6 September, 2015.
[10] He was serving in Naboro Correction Centre in Suva, and in October 2010 he was escorted to Lautoka prison for one of his matters in Lautoka Court. Whilst he was in Lautoka Prison in Natabua he wrote a constitutional redress application supported by an affidavit by him. He took it with him to the Lautoka Prison's Front Office on 22 October, 2014 on his way to Court. According to the applicant he handed the documents to the two search Officers and told them what it was. They took the documents from him and had the front page of the Motion stamped and dated.They then gave him the documents and he took it to Court. After his case he went to the Legal Aid Office at Lautoka with the Escorting Officer for him to sign his Affidavit in Support in front of a Commissioner for Oaths. He signed his Affidavit in front of Ms Christina Choy in the presence of the Escorting Officer.She signed as witnessing officer.On bringing back the affidavit and Motion to Lautoka Correction Centre, the Applicant gave it to Sgt Lino the Reception Officer with a request that it be filed at Lautoka High Court Registry. The Lautoka Prison Office filed his constitutional redress application on 24th October 2014. He was then taken back to Naboro Prison and on 2 November, 2014 was taken back to Lautoka Centre. The Applicant then wrote another Affidavit ("2nd Affidavit") to be the Second Affidavit in his Constitutional Redress Application on 4 November, 2014 whilst he was in Lautoka Correction Centre. He was to attend Lautoka High Court gave his 2nd Affidavit to the Search Officers at the Lautoka Front Office. After giving this 2nd Affidavit he went to change into civilian clothes and on his return was given the document back in a brown Government of Fiji envelope and because he was in cuff and belt he did not open the envelope to see whether it was censored or not. He then took the envelope and was escorted to Lautoka High Court. After his case he was escorted to Legal Aid Commission Office for him to sign his second Affidavit before a lawyer.When the Applicant opened the envelope he signed the 2nd Affidavit before Commissioner for Oaths Mr Roneel Kumar in the presence of his Escorting Officer and after signing he realised the Lautoka Correction Centre had not stamped the 2nd Affidavit. On his return to Lautoka Correction Centre on the same day he handed the 2nd Affidavit to Reception Officer Sgt Lino and asked him to file the 2nd Affidavit at High Court Registry. Officers at Lautoka Correction Centre filed the applicant's 2nd Affidavit on 10 November, 2014. The Applicant did not go out of Lautoka Correction Centre compound on this date. At this time he knew that he was entitled to the remission of sentence which meant that he would be released on 6 September, 2015.
The Charge
[11] On 23 December 2014 the applicant was charged for an offence under Cap 86. The charge sheet reads as follows:
'on the above mentioned date and time (0900hrs on 15.12.14) you smuggled an uncensored letter to Lautoka High Court without following the procedure thus contravene to Prison Regulation section 123 subsections (24) of the Prison ACT, Cap 86'
The Complaint
[12] The Applicant complains that he was not given the right to consult a lawyer regarding the process required under the Prisons Regulations nor facilities to have the Officers who had searched him nor those escorting him to Court nor the Reception Officer who had received his Second Affidavit or the Officer who had filed it so he could have his rights of natural justice to be properly heard before the Tribunal.
[13] The applicant was not supplied with a copy of the charge sheet, which had left him unprepared to know beforehand what he was supposed to defend himself against at the trial but he gathered during the hearing that he was charged with smuggling his second Affidavit out of Lautoka Prison.
[14] The Applicant was charged under Cap 86 of the Prison Act which had been repeated by the Prisons and Corrections Act 2006 and the charge was defective.
The Law on Judicial Review
[15] Having obtained leave of the court to apply for judicial review, the applicant has filed the application for judicial review. So, Order 53, rule 9 of the High Court Rule ('the HCR') would apply in the circumstances. That rule provides that:
'Hearing of application;for judiciudicial review&(O.53,
, r.9)
(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has lodged in the Principal or District Registry a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Court hearing the motion;or&#um0;summons..
(3) Where an order of certiorari is made in any such case as is referred to in paragraph (2), the order shall, ct tograph (4), direct that the proceedings shall ball be quae quashed forthwith on their removal into Court.
(4) Where the relief sought is an order or certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and
reach a sion in acc0;accordance wit0;t16 findings  of the .
>
(5) Wh5) Where the relief sought is a declaration,njuncor da and ourt considers that it shouldhould not be granted on an application forn for judi judicial cial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had begun by writ; and Order 28, rule 8, shall apply as if, in the case of an application made by motion, it had been made by summons.' [Emphasis provided].
Determination
[16] The applicant applies for judicial review whereby the applicant seeks an order of certiorari to quash the respondents' decisions made on 23 December 2014 by the 1st respondent and on 19 January 2015 by the 2nd respondent. The 1st respondent by his decision forfeited one month remission and the 2nd respondent after reviewing the 1st respondent's decision a further two months remission. In essence, the applicant will lose a total remission of three months. The decisions were made on an allegation of smuggling of document.
[17] This Court granted leave on the 22nd day of April, 2015 for the Applicant to apply for judicial review on the grounds of (i) jurisdiction error, (ii) unreasonableness and (iii) bias. I will therefore deal with each ground in turn shortly.
[18] In Judicial review, the court is not sitting on appeal against a decision but is only acting to ensure that the decision that was made, was arrived according to law and that all the procedures were followed and that the principle of natural justice and fairness was extended to all the parties. Judicial review is not an appeal mechanism, but a review of public law function (See R v Richmond upon Thames London Borough Council, ex parte JC (2000) The Times,26 April 2000 (QBD), [2001] LGR 146 (CA).
Whether Judicial review amenable to the decisions
[19] The 1st respondent has acted as tribunal and made his decision as the Western Division Supervisor of Correction ('the WDSC'). The 2nd respondent reviewed the 1st respondent's decision and made his decision as the Commissioner of Correction Services ('the CCS'). Both of them had exercised the powers and authority given under the Prison Act, Cap 86 ('the Act'). There is no appeal mechanism under the Act to challenge their decision, if a person affected by their decision desired to appeal. Both the respondents had made their impugned decisions in exercise of public function. I will cite the following case to illustrate this point.
[20] Hoffmann LJ, in R v. Disciplinary Committee of the Jockey Club ex p. Aga Khan1993]1 WLR 909 explained the public function as follows:
'... a function is public if the functionary operates as an integral part of public statutory scheme of regulation or service provision.'
[21] Both respondents had made their decisions in exercise of public function and had operated as an integral part of public statutory scheme of regulation. So, their decisions are amenable to judicial review.
[22] Unlike Australia and Canada, the HCR does not suggest any specific grounds for judicial review. The HCR simply provides that, where the relief sought is an order or certiorari and the Court is satisfied that there are grounds for quashing the decision... (See O.53, r.9 (4).
[23] Since the HCR does not specify any specific grounds upon which the application for judicial review is to be made, the court may adopt the common law grounds that are applicable for judicial review application when quashing an administrative or a tribunal's decision.
[24] Under common law, commonly there are number of classifications of the grounds upon which a decision by a public authority may be found to be invalid. The classification is tripartite distinction between: (a) illegality, (b) irrationality, and (c) procedural impropriety (See, Council of Civil Services Union v Minister of the for the Civil Service [1985] AC 374) within each of the three heads may include number of sub grounds.
Jurisdictional error
[25] Jurisdictional error is one of the grounds upon which leave to apply for judicial review was granted.
[26] Jurisdictional error by a tribunal in the course of its proceedings would lead to error of law, which might have been considered an error within jurisdiction, being held to be jurisdictional. Leading decision in this regard was made in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147.
[27] Counsel for the applicant submits that there was jurisdictional error through;
[28] Charging under the repealed Act: Counsel for the applicant submits the respondents had made jurisdictional error by charging the applicant under the repealed Act. The charge clearly states that the applicant was charged under the Prisons Act, Cap 86 (the repealed Act). Section 55 of the New Correction Services Act 2006 repeals the Prisons Act (Cap. 86). On the 18th of March 2011 the Attorney General declared the commencement date of the 2006 Act as effective from the 27th day of July, 2008.
[29] The applicant was charged on 5 December 2014 and the charge clearly states that he committed a prison offence by smuggling a document contrary to Prison Regulation section 24 of the Prison Act, Cap 86.
[30] Undoubtedly, the applicant was charged under the repealed Act and the respondents proceeded the hearing on that charge. An illegality has arisen in this situation. It would be useful to cite Lord Diplock's statement in the case to be cited below.
[31] Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 said:
'Illegality arises where a decision-maker must understand correctly the law that regulates his or her decision-making power and must give effect to it fails to do so.'
[32] Lord Denning explained error of law in a different way (supported by Eveleigh LJ but opposed by Geoffrey Lane LJ) in Pearlman v Harrow School Governors [1978] EWCA Civ 5; [1979] QB 56 said:
'I would suggest that this distinction (the technical distinction between errors of law which go to 'jurisdiction' and errors of law which do not) should now be disregarded.... The way to get thing right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.' (Emphasis provided).
[33] In Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 at 154 Lord Ervine LC said in the leading speech that:
'Anisminic made obsolete the historic distinction between error of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the decision ultra vires and a nullity.' (Emphasis provided).
[34] The applicant was charged under the repealed law. This was misdirection in law on the part of the respondents. As Lord Denning said in Pearlman case (supra) no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. Charging the applicant under the repealed law and making a decision on that charge rendered those decisions of the respondents ultra vires and a nullity. I would therefore issue certiorari on the ground that there was an error of law by charging and punishing the applicant under the repealed law which destroyed the respondents' jurisdiction to make any decision as decision maker.
[35] The court could issue certiorari to quash the decisions of the respondents on the ground of illegality alone. But for the sake of completeness I would consider other grounds which the leave to apply for judicial review were granted upon. For this purpose I would assume that the decisions were taken under correct law.
[36] Failure to supply a copy of the charge prior to the hearing:
Counsel for the applicant submits that the 1st respondent failed to supply a copy of the charge sheet before the hearing as required under Regulation 125 (a) of the Correction Services Act 2006 (the Regulations) which so far as material provides as follows:
125. The following procedure shall apply to all proceedings heard by any tribunal under the provisions of sections 82 or 85 of the Act:-
(a) the prisoner or person undergoing extramural punishment charged with a prison offence or an exral ofal offence, as the case may be (hereinafter referred to as the "defendant"), shall be supplied with a copy of the charge prior to the hearing;...(Emphasis provided).
ckquo>[37] Section 39 n 39 (1) o(1) of the Correction Services Act 2006 sets out proceedings for prison offences as follows:
"39. (1) Powers to hear and determine proceedings against prisoners in relation to prison offences may be vested by regulations in:
(a) Divisional Supervisors, senior officers or officers in charge;
(b) A magistrate; or
(c) A tribunal established and empowered by Regulations.
(2) The punishment which may be imposed for breached of prison offences shall be as prescribed by Regulations, with the following limitations applying to the exercise of such powers by Divisional Supervisors, senior officers and officers in charge:
(a) forfeiture of remission of sentence for a period not exceeding 90 days;
(b) deprivation of earning, or part thereof, for a period not exceeding 60 days;
(c) forfeiture of privileges in accordance with this Act for a period not exceeding 60 days; or
(d) separation for a period not exceeding 14 days.
(3) All proceedings shall be conducted in a manner which apply the principles of natural justice, and where necessary interpreters shall be provided.
(4) Where any proceeding is heard and punishment is imposed by a Divisional Supervisor or officer in charge, the Commissioner may review that matter and overturn the decision or impose an alternative punishment, not exceeding those prescribed in subsection (2)." (Emphasis added).
[38] The first respondent as Western Division Supervisor of Correction Services was empowered under s. 39 (1) of the Correction Services Act 2006 to hear and determine proceedings against the prisoners in relation to prison offences. In doing so, he must apply the principles of natural justice as required by s. 39 (3).
[39] The requirements of natural justice include two main components namely: 1) the rules against bias and 2) fair hearing rule which carries a great many procedural steps with it. In particular, (a) the nature of the applicant's interest, (b) natural justice and fairness, (c) the circumstances of the decision, (d) legal representation and (e) reasons.
[40] In relation to nature of the applicant's interest Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 said that, any body having the power to make decisions affecting rights was under a duty to give a fair hearing.
[41] Fiji Court of Appeal in Permanent Secretary for PSC v Lepani Matea (unreported) Civil Appeal No. ABU0016. 1998S; 29 May 1998 citing Lord Diplock's speech in O'Reilly v Mackman, observed that:
"A broad and general statement is contained in the speech of Lord Diplock in O' Reilly v Mackman [1982] 2 AC 237. The other four Law Lords all agreed with Lord Diplock who said at p.276:
'But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and presenting his own case, is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement.' (Emphasis added).
[42] Further, under section 3 (a) of the Corrections Services Act 2006 provides guiding principles to be followed by the decision makers (the respondents) that:
"(a) ensure that full regard is had to be recognised international standards and obligations relating to the treatment of prisoners (and in particular those stated in the international Conventions recognised in section 43(2) of the Constitution and in The Standard Minimum Rules for the Treatment of Prisoners adopted at Geneva in 1955) and that these standards are applied to the fullest extent possible;" (Emphasis added).
[43] At this point it is important to know what the Standard Minimum Rules for Treatment of Prisoners adopted at Geneva in 1955 ('the MRTP') states in rule 30 (1) for the treatment of prisoners. That rule states:
"30. (1) No prisoner shall be punished except in accordance with the terms of such law or regulation, and never twice for the same offence.
(2) No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case." (Emphasis added).
[44] The respondents' decisions undoubtedly affect the applicant adversely. By their decisions the applicant will lose three month of his remission. In other word he has to serve additional three months. His personal liberty will be curbed by three months. Since the respondents' decisions affect the applicant's personal liberty they were under duty to give him a fair opportunity of hearing and presenting his own case.
[45] The applicant complains that he was not supplied with a copy of the charge prior to the hearing. In his affidavit under para 19 he states that, 'on 23rd day of December 2014, Mr Bulewa who was the Supervisor of the Western Division Correction Department (first respondent), came to me at the Naboro Maximum Prison served me with the copy of Charge Sheet and then took it back'.
[46] The first respondent in the affidavit in opposition (para 11) states that, a charge sheet was served on the applicant on 23rd December 2014 and was not taken back.
[47] The applicant denies the first respondent's deposition that a copy of charge sheet was served and not taken back and states in the affidavit in reply (para 18 of affidavit in reply) states that, 'I still maintain that Mr Bulewa handed me over the prison charge sheet, ordered me to sign the same and took it back immediately after I signed it and as a result of this I was not at all given any opportunity to read the said charge sheet and familiarise with the nature of allegation levelled against me'.
[48] Let me now examine the record of tribunal proceedings at trial. The handwritten copy of the charge sheet for the tribunal proceedings is marked and produced by the respondents as 'AV1' and a typed copy of this same charge sheet and record of tribunal proceedings as 'AV2'.
[49] The first respondent sitting as tribunal heard and determined the applicant's case. The transcript of the tribunal proceeding show that the first respondent did not confirm whether or not the applicant was supplied with a copy of the charge sheet as required by the Regulation (125 (a)) prior to the hearing. The transcript also reveals that, the applicant had pleaded 'not guilty' to the alleged charge. Then the first asks whether any change of plea and records 'guilty plea'. It is not clear why he asked about the change of guilty plea. The first respondent should have proceeded with trial as the applicant pleaded not guilty to the alleged charge. The first respondent failed to do so. It was improper on the part of the first respondent to tell the applicant to consider change of his plea. The first respondent should have told the prosecutor to call prosecution witnesses. It appears to me that the first respondent had induced the applicant to record a guilty plea. Moreover, the respondent had failed to afford an opportunity of presenting his defence as required under section 30 (2) of the Minimum Rules.
[50] Furthermore, the right to a fair hearing embodies the idea of even-handedness between the parties in relation to obtaining information which is made available, and the provision of an opportunity to make representations. The concept of fair hearing varies from case to case. For example, there may be an entitlement to an oral hearing in cases where the livelihood or liberty of the claimant is at stake, whereas such an entitlement will not be deemed necessary in relation to more minor matters with less potentially adverse consequences. The two main elements of procedural fairness are: (a) the right to know the opposing case; and (b) a fair opportunity to answer that case. (See Blackstone's Civil Practice 2011 para 74.25 at p.1167).
[51] The exact requirement of a fair hearing will depend on the context. For example, in R (Smith) v Parole Board (No.2) [2005] UKHL 1, [2005] 1 WLR 350, the House of Lord held that:
'While the common law duty of procedural fairness did not require the Parole Board to hold an oral hearing in every case, the Parole Board's duty was not as constricted as previously assumed. The prisoner should have the benefit of a procedure which fairly reflected, on the facts of his particular case, the importance of what was at stake for him and for society. The Parole Board might be assisted in its task of assessing risk by having some exposure to the prisoner.'
[52] The applicant was charged with having done a prison offence which, if proved to the satisfaction of the tribunal, has consequences that will affect him adversely (forfeiture of remission of sentence for a period not exceeding 90 days). His liberty was at stake. As such, the first respondent should have given a fair opportunity of hearing what is alleged against him and presenting his own case (see O'Reilly's case [1982] 2 A.C 237). The first respondent had committed a fundamental error by not giving a fair hearing to the applicant. The first respondent's failure to give the applicant a fair opportunity of hearing and presenting his own case rendered his decision null and void.
Unreasonableness
[53] Turning to unreasonableness. This is another ground which the court granted leave to apply for judicial review upon.
[54] Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) KB 223 (C.A) explained the principles of unreasonableness as follows
"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they out to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. It such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."(Emphasis added).
[55] Justice Pathick In State v Permanent Secretary for Education & Technology, Ex parte Tuimoala [1998] FJHC 169; HBJ 0034j. 1997s (1 December 1998) referred to and applied the Wednesbury Unreasonableness principles.
[56] Hon. Justice Gates (as he then was) in considering review of a Police Disciplinary Tribunal in State v Commissioner of Police, Ex parte Ram [2004] FJHC 85; HBJ0014J.1998L (5 April 2004) quoted under paragraphs 7, 8 and 9 a Court of Appeal decision and an English Court of Appeal decision as follows:
'[7] In Permanent Secretary for PSC v Lepani Matea (unreported) Court of Appeal Fiji, Civil Appeal No ABU0016.1998S; 29 May 1998, the court said (at p.12):
"We think that it is important to remember what many cases of high authority have determined – and they have been emphasised in the past by this Court – that judicial review is what it says, namely, a judicial review and not an appeal. The function of the Court is to ensure that the body subject to the review has acted within its jurisdiction, has directed itself properly as to the law applicable and applied that law accordingly. It must, too, observe the requirements of procedural fairness to the extent that they apply in the particular case. What it must not do is to determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits. This means, of course, that it cannot substitute its opinion for that of the body concerned on the matter of penalty."
[8] In R v Barnsley Metropolitan Borough Council Ex p. Hook [1976] 3 All ER 452 two judges of the 3 judge Court of Appeal held that punishment which was altogether excessive and out of proportion to the occasion could be quashed on that ground and the court had jurisdiction to interfere by certiorari in such case. The excessive penalty was the cancellation of a stall holder's licence the applicant having urinated in the street.
[9] In Lepani Matea the court commented (p.13):
"But the penalty has to be so severe and so out of proportion that no reasonable body could impose it. Short of that standard the Court cannot interfere. We do not think that can be said of the penalty in this case." (Emphasis added)
Applying the principles to the present case
[57] The question is whether the respondents have come to conclusion that is so unreasonable that no reasonable tribunal/authority could ever come to it.
[58] What was in issue at the tribunal trial was the 2nd affidavit filed by the application in the Constitutional Redress Application. The applicant admitted that it was not stamped but denied that it was smuggled. He stated that, 'I gave it for stamping to the search officer but it was given back to me without being stamped.' At that time the applicant was already in the Parade. He could not have opened and read it as he was handcuffed. The proceedings of tribunal at page 3 reads:
[59] The first respondent sitting as tribunal in its decision states that, 'the additional copy which was sent on 15/12/14 not stamped even though you have asked the officers to do so.'
[60] In his decision the first respondent refers to 'additional copy' which in fact the 2nd affidavit filed by the applicant in his constitutional redress application. The first respondent appears to accept that the applicant had asked the officers to stamp it. It seems to me that the officer concerned might have returned the document without stamping it.
[61] The first respondent putting all the blame on the applicant, without giving any weight to his mitigation wherein he as a first offender sought forgiveness for what he had done imposed the followings sentence:
'(a) One month loss of remission
(b) To undergo counselling with Mr. Davuiqalita for 1 month.
(c) Psychologist to have 2 sessions with him.The Commissioner will review award.'
[62] It will be noted that the first respondent was not entitled to impose sentence (b) & (c). He is empowered under s. 39 (2) to impose the following four punishments for breach of prison offences:
'(a) forfeiture of remission of sentence for a period not exceeding 90 days;
(b) deprivation of earning, or part thereof, for a period not exceeding 60 days;
(c) forfeiture of privileges in accordance with this Act for a period not exceeding 60 days; or
(d) separation for a period not exceeding 14 days' (Emphasis provided).
[63] It is important to note that the first respondent imposed punishment which he was entitled to do so namely he was not empowered to order the applicant to undergo counselling for one month and two psychiatric sessions with Mr Davuiqalita.
[64] The sentence imposed on the applicant for a document that was filed in a constitutional redress proceedings initiated by the applicant against the respondents was manifestly excessive and out of proportion. As such, the respondents have come to a conclusion which is so unreasonable in the circumstance of the case and no reasonable tribunal could have ever come to such conclusion.
[65] Interestingly, the second respondent reviewed the first respondent's decision. He not only confirmed but also increased the forfeiture of remission of sentence up to the maximum period of 90 days. It is to be noted that the second respondent gave no reasons for reviewing and increasing the sentence imposed on the applicant.
[66] The requirement of fairness may require the giving of reasons in circumstances where there is no express statutory authority stipulating this. This position is influenced by the fact that there is an obligation at common law, and also in accordance with the European Convention on Human Right, art.6, at least to give a short statement of the reasons for a decision when determining civil rights and obligations or criminal charges.
[67] The second respondent reviewed the first respondent's decision and failed to give reasons for reviewing and enhancing the punishment imposed by the first respondent.
[68] The respondents' decisions are so unreasonable and irrational. Their decisions are liable to be quashed by court by issuing writ of certiorari on the ground of Wednesbury
Unreasonableness.
Bias
[69] Bias is the third ground upon which the court granted leave to apply for judicial review.
[70] Counsel for the applicant highlights the following facts as appear from the transcript of the tribunal trial:
a. Only being asked by 1st Respondent whether he had seen the charge rather than whether he had been supplied the charge as required by regulation 125 (a) shows that 1st Respondent was biased.
b. Not asking whether Applicant needed time to prepare his defence and availing him of getting legal counsel if he needed one shows that 1st Respondent was biased.
c. After a plea of not guilty requiring Prosecutor to state the "facts" rather than call the first witness shows that 1st Respondent was biased.
d. Asking Applicant whether he agreed with facts rather than tell Prosecutor to call witnesses. The search and escort officers, if they told the truth, putting it in envelope and escorting Applicant to signing before a Lawyer and filing in Lautoka High Court Registry shows that 1st Respondent was biased in ensuring such witnesses did not appear in proceedings.
e. Asking Applicant whether he wanted to change plea when in fact he denied smuggling of the document which was an important element of the offence shows that 1st Respondent was biased.
f. Continuing to cross examine the Applicant after plea of guilty rather than let Prosecutor do it or not questioning further after plea shows that 1st Respondent was biased.
g. After such questioning then stating there was a case to answer but not vacating the plea and giving him time to prepare defence by having witnesses made available to Applicant shows that 1st Respondent was biased.
h. Not accepting responsibility for Prison Officers not stamping the Affidavit when it was given to them by Applicant shows that 1st Respondent was biased.
i. Not accepting there was no smuggling of the document as it was authorised by Search Officers for him to take to Court under escort and care of escorting officers who took him to have it witnessed and filed in Court shows that 1st Respondent was biased.
j. The Applicant at paragraph 27 to 28 of his Affidavit in Reply states that he never pleaded guilty and did not agree with the facts. This is further evidence of bias.
[71] The common law rules on bias are now applied in the context of the requirement in art. 6 (1) of the European Convention on Human Rights that civil rights and obligations (and criminal charges) must be determined by 'an independent and impartial tribunal.
[72] In cases where the decision-maker has a direct personal or proprietary interest in the outcome of the matter, he or she should always be disqualified from adjudicating upon the issue. However, when the interest is indirect, the courts generally apply the following test. First, the court should ascertain all the circumstances which have a bearing on the suggestion that the tribunal is biased. Secondly, it should ask whether those circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility that the tribunal is biased (Porter v Magill [2001] UKHL 67, [2002] 2 AC 357.
[73] Porter's test that whether the fair minded and informed observer, having the facts, would conclude that there was a real possibility that the tribunal was biased is applicable in Fiji (See Amina Begum Koya v State [1998] CAV002 of 1997, Maisamoa v Chief Executive Officer for Health [2008] FJCA 41; ABU0080.2007S (10 July 2008).
[74] The second respondent was the respondent in the document (2nd affidavit) that was the subject of the charge. So, he had a direct interest in the outcome of the proceedings.
[75] The fair-minded and informed observer, having the facts enunciated under paragraph 69 above, would conclude that there is a real possibility that the respondents (decision-makers) are biased in the sense of approaching the decision with the closed mind and without impartial consideration of all relevant issues.
Conclusion
[76] For all these reasons, I would conclude that the applicant was able to successfully establish all three grounds upon which the leave to apply for judicial review granted namely (a) jurisdictional error, (b) unreasonableness and (c) bias. I would therefore grant the declarations sought. I accordingly issue writ of certiorari quashing decisions of the respondents forfeiting three months remission of applicant's sentence of imprisonment. I would order the respondents to pay costs summarily assessed of $450.00 to applicant.
Final outcome
- Writ of certiorari issued
- Respondents' decisions quashed
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M H Mohamed Ajmeer
JUDGE
At Lautoka
30 September 2015
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