Ho v State [2025] FJHC 205; Miscellaneous Case 67 of 2025 (15 April 2025)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE No. 67 OF 2025

BETWEEN:

JUSTIN STEVEN MASH HO
APPLICANT/ACCUSED

AND:

THE STATE
RESPONDENT

Counsel : Mr I. Khan for Applicant
: Mr J. Rabuku with Mr J Nasa for Respondent

Written Submissions : 11 April 2025
Date of Hearing : 11 April 2024
Date of Ruling : 15 April 2025

RULING ON RECUSAL

1. In his substantive matter, the Applicant and nine other accused persons are charged together. The Applicant is charged with one count of Unlawful Importation of Illicit Drugs contrary to Section 4(1) of the Illicit Drugs Control Act 2004, two counts of Unlawful Possession of Illicit Drugs contrary to Section 5(a) and (b) of the Illicit Drugs Control Act 2004 and Possession of Property suspected of being Proceeds of Crime contrary to section 70(1) of the Proceeds of Crime Act 1997.
   
2. The Applicant was arrested sometime on 23 January 2024 and produced on 29 January 2024 at Nadi Magistrate's Court where he was granted bail on his first appearance. The matter was then transferred to the Lautoka High Court, where the Applicant appeared on 2 February 2024. Considering a Bail Review Application filed by the State, the High Court revoked the bail granted and remanded the Applicant pending trial. The final Pre-Trial-Conference was fixed on 7 April 2025 for the trial scheduled for 22 April 2025.
   
3. On 31 March 2025, the Applicant through his Counsel filed a Notice of Motion and supporting affidavit seeking the following Orders:
   
   1. THAT the Learned Judge Honourable Justice Aluthge recuse himself from hearing the Applicant/Accused’s Criminal Action No. 22 of 2024 on the grounds of actual bias/perception of bias.
      
   2. THAT another judge be appointed to hear the matter against the Applicant/Accused.
      
   3. Any other order /orders that this Honourable Court deems fit.
      
4. The State filed objections, supported by an affidavit of Mr Nasa, vehemently objecting to the application and seek the following orders:
   
   1. That this Court finds that there is no bias or appearance of bias on its part and therefore will not recuse itself;
      
   2. That this Court therefore dismisses orders 1, 2 and 3 of the Notice of Motion dated 1^st March 2025;
      
   100. That there be orders as to Costs.
        
5. The application is based on twelve grounds as stated in the affidavit. Both the State and the Applicant were given time to file submissions. A hearing was conducted on the application in which counsel from both sides made submissions.
   
6. Justice Aluthge is hereinafter referred to as ‘the Judge’ for the sake of convenience.
   

The Law on Recusals

7. The Law on recusal is settled in Fiji. Justice Calanchini in State v Citizens' Constitutional Forum, Ex parte Attorney considered the position regarding the issue of bias as follows which I wish to adopt for this application:

"[32] The leading authority in Fiji on the issue of bias is Koya – v - The State (unreported Supreme Court decision CAV 2 of 1997 delivered 26 March 1998). In that decision, the Supreme Court discussed two tests that have been developed by the courts to determine whether a judge should disqualify himself on account of bias. The first test is known as the reasonable apprehension of bias test that was applied by the High Court of Australia in Livesey – v - New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 and confirmed in Webb – v - The Queen [1994] HCA 30; (1994) 181 C.L.R. 41. Under this test a judge should disqualify himself from adjudicating a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case. The other test is referred to as the real danger of bias test which had been adopted by the House of Lords in R – v - Gough [1987] AC 646. Although there is some support in the authorities for the proposition that there is not a great deal of difference between the two tests, if it is necessary to identify which test I consider this Court should apply, I consider that the decision in R – v - Gough (supra) should be followed in this jurisdiction. That test was preferred by Fatiaki J (as he then was) in Citizens' Constitutional Forum – v - The President [2001] 2 FLR 127. This preference for the test adopted in R – v - Gough (supra) is reinforced by section 22 of the High Court Act Cap 13.

[33] The real danger of bias test was explained by Lord Goff in R – v - Gough (supra) at 670 in this way:

"I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man because the court in cases such as these personifies the reasonable man and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily have been available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or having unfairly regarded) with favour or disfavour, the case of a party to the issue under consideration by him _ _ _."

[34] The test was subsequently slightly adjusted by the House of Lords in Porter – v - Magill [2001] UKHL 67; [2002] 2 WLR 37 at pages 83 – 84. As a result, the approach to be taken is that the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, that the tribunal was biased.

[35] In my judgment, this approach is to be preferred to either a purely subjective test or the reasonable apprehension of bias test. A purely subjective test considers the concerns of a particular litigant and would as a result allow any litigant to successfully challenge any judge assigned to a case whenever that litigant perceived that the judge might be prejudiced.

[36] The reasonable apprehension of bias test raises an issue relating to the knowledge to be imputed to the hypothetical member of the public. What kind and what depth of knowledge is to be imputed to the hypothetical member of the public? Does the imputation of such knowledge mean that the hypothetical person with that imputed knowledge is no longer an average or typical adult? The artificial nature of this exercise surely leads to a wide variance in its application by courts. (See: The Australian Judiciary – Enid Campbell and H P Lee, Cambridge University Press 2001 at pages 133 – 136).

8. So, a fair-minded and informed observer is not just the lay person from the streets walking into Court saying, oh my God, the judge must be biased, or he will be biased. He must be a well-informed person, who had followed the proceedings throughout and watched the conduct of the judge, watched the conduct of the defence, watched the conduct of all the accused persons. A claim that a judge is biased, meaning the accused would not get a fair trial, requires more than mere feeling of unfairness. It needs evidence of objective grounds to doubt the judge’s impartiality. This includes actual bias (unlawful intent) or apprehended bias (where the judge’s conduct creates a reasonable apprehension of bias).
   

The Grounds for Bias

9. The Applicant has advanced twelve grounds which he says would lead to a reasonable apprehension that the Judge is biased. The Court must address all the circumstances of these grounds and ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the Judge, in the sense that he might unfairly regard with favour or disfavour, the case of the Applicant.
   

Ground 1- Revocation of Bail Application

10. According to the Applicant, the revocation of his bail on 2 February 2024 is one of the circumstances which would lead to a reasonable apprehension that the Judge is biased.
11. The Applicant alleges that when the matter was first called in Lautoka High Court and on an application by the State to revoke his bail, the Judge, without allowing his Counsel any time to file a response, revoked his bail without considering his Counsel’s submissions.
12. It is not factually correct that the Applicant was not given any time to file an affidavit in response, or that the Ruling was given without considering the submissions of his Counsel. The revocation of bail application filed by the State was called at 9.30 am. When the Counsel for the Applicant asked for time to respond to the State’s application, the Court gave him time to file his affidavit in opposition till 2.30 pm and informed him and other co-accused that the hearing would take place at 2.30 p.m.
13. When the matter was called at 2.30 pm, the counsel requested more time to file an affidavit in response and another date for the hearing. The Judge denied this request. The Counsel made comprehensive submissions in the hearing which lasted approximately two hours.
14. It is alleged that the Judge made his ruling instantly after the hearing, without even taking time to consider his Counsel’s submission. The Applicant deposes that he perceived bias in the comments made by the Judge (transcript of which is reproduced in the affidavit) and that the hasty decision was taken because there would be repercussions on the Judge if the matter were not considered on the same day.
15. After revoking bail on 2 February 2024, the judge made the following remark from the bench:

..I have already given 4 hours to reply and respond and the affidavits are very brief, the application filed is very straightforward so I decided that the time given for the Respondents to respond is quite enough. On that basis I refused. This is a matter of public interest and if I don't take up this matter today, I foresee the repercussions and the consequences. You have to read my judicial thinking; I will give my reasons later...

16. In his written Ruling delivered on the same day (02 February 2024), the Judge gave reasons as to why he took up the matter then and there as follows:
    5. The DPP appears to have advanced the following grounds for review:
       1. That the Applicant was not given a proper hearing/ time to file an affidavit to support his objection for bail.
       2. That the Learned Magistrate fell into error when he failed to exercise his judicial discretion in granting bail by not properly considering the provisions of the Bail Act.
       3. The Learned Magistrate fell into error when he considered irrelevant facts and a case authority to grant bail to the Respondent.
    6. The Respondents filed their objections supported by the affidavits. All the Respondents are represented by legal counsel who made submissions at the hearing. The grounds of objection can be boiled down to the sole ground whether the Learned Magistrate lawfully and judiciously exercised his discretion in granting bail to the Respondents. Having given approximately 5 hours for the Counsel to get ready, I heard the counsel from each side for approximately two hours at the hearing from which I gathered information and evidence.
7. The Counsel for Respondents advanced two preliminary objections before the matter was taken up for hearing. First, they were denied adequate time and transcripts to respond to the application. Second, this Court has no jurisdiction to entertain this application, as the applicant has not exhausted the appeal process.
8. Let me deal with those objections at the outset. The Applicant had filed the notice of motion and the affidavits in this Court on 1 February 2024 and served to the Respondents. When the matter was called at 9.30 a.m. on 2 February 2024, almost all the Respondents and their counsel were present. When the Court indicated that the matter would be taken up for hearing at 2.30 p.m., the Counsel for Respondents vehemently objected stating that they needed adequate time and the transcripts to respond.
9. The application for bail review is straightforward. It does not involve any complex legal issues. The affidavit of IP Mr. Osea Tunidau runs into 10 pages and the one filed by Mr J. Nasa runs into 6 pages. A window of five hours is quite adequate for the Counsel to respond to the application. The Magistrates Court copy record was made available to the Counsel for Respondents in the morning. However, it did not contain the transcripts of the Magistrates Court proceedings. What transpired at the Magistrates Court was privy to the Counsel as most of them were present in the Magistrates Court. The affidavit of Mr Nasa contains a brief description of what transpired at the Magistrates Court. If that description is not accurate, the Counsel for Respondents had the opportunity to challenge its accuracy in their affidavits.
10. On top of that, Section 30 (10) of the Bail Act provides that a ‘review must be by way of a rehearing, and evidence or information given or obtained on the making of the decision may be given or obtained on review’. Therefore, no prejudice will be caused to the Respondents by taking up the matter for hearing without the transcripts of the Magistrates Court being made available to this Court or the counsel. Having considered the public interest involved in the matter and the repercussions the Court expected in the event of a postponement being granted, the Court, having overruled the objections, decided to proceed to the hearing as scheduled.
    
17. The Judge in his written Ruling further considered the nature of the alleged offence, the likelihood of the Applicant appearing in court, and observed as follows:
    
    24. The weight of the illicit drugs involved in the offences according to the charge is 4,800 kilograms (4.8 tons). The charges against the Respondents are very serious carrying a maximum sentence of life imprisonment and a tariff of above 20 years imprisonment, if proven. In view of the seriousness of the charges and the strength of the prosecution case, there is a great likelihood that the Respondents will abscond.
        
    25. The circumstances of the offence as revealed by IP Tunidau in his affidavit are alarming. There is evidence of foreign involvement and foreign currency in an organized and sophisticated criminal enterprise.
        
    26. The affidavit of IP Tunidau reveals a strong case against the Respondents. The illicit drugs, the vehicles and the equipment used to commit the offence have been taken into police custody. Eyewitness accounts, statements from minor participants who have been offered immunity, and admissions of some of the Respondents have been recorded. The CCTV footage, photographs and the report of the analyst scientifically confirming that the consignment contains 1,053.5 kg of Methamphetamine have been obtained. The availability of strong evidence to the prosecution is likely to motivate the Respondents to abscond.
        
    27. The affidavit further reveals that the 1^st, 3^rd and 12^th Respondents have been arrested under suspicious circumstances in which they were trying to flee the jurisdiction after the investigation began.
        
18. The Judge further considered the public interest and the protection of the community and observed as follows:
    29. The public interest is best served by ensuring that all the culprits involved in the drug chain from head to tail are brought to book and successfully prosecuted. The safety of the witnesses is equally important. The investigation is still ongoing to unearth the evidence and the players in the large-scale organised trans-border drug operation. The likelihood of evidence tampering, and witness interference is high. In an era of digital communication, it is extremely difficult to monitor communication between the various players, accused and witnesses given the limited resources available to the Fiji Police Force.
        
    30. Therefore, bail conditions restricting movements and curfews are of little help. The safety of some of the minor participants in the drug chain who have received immunity to be potential witnesses is at risk. Therefore, to prevent evidence tampering and witness interference, it is in the interest of justice that the Respondents are kept in remand until the investigation is complete.
        
19. The claim that ‘the hasty decision was taken because there would be repercussions on the Judge if the matter were not considered on the same day’ is misconceived. What the Judge meant by ‘repercussions’ or the ‘consequences’ that he foresaw if the bail was not revoked and his judicial reasoning behind the decision can be found in the written ruling he pronounced. A quick risk assessment had to be made because of the facts placed before the Judge relating to the circumstances of Applicant’s arrest and potential interference with the investigation/ witnesses thus requiring a hasty decision. A reasonable observer informed of these circumstances would not believe that the Judge lacked objectivity or rushed to a decision out of fear of repercussions on himself.
    

Ground ii- Issue of Constitutional Breach/ Grounds iv and v -1^st and 2^nd Bail Applications.

20. The Applicant contends that the Judge’s failure to appreciate his constitutional right violation as a ground to grant bail by the Learned Magistrate is indicative of his bias.
21. There is no dispute that Applicant was held in police custody for more than 48 hours. This was the reason why the Magistrate had allowed Bail to the Applicant even without giving the State an opportunity to file an affidavit in opposition for bail.
22. In his Ruling dated 2 February 2024 the Judge took the view that the weight given to the right violation by the Learned Magistrate was highly disproportionate to the objectives to be achieved in a bail determination in the wider interest of justice and that a right violation should be enforced in a Constitutional Redress matter.
23. The right to be at liberty is not absolute and, in a bail determination, the rights of the accused should be properly balanced with public interest/ protection of the public and other competing interests set out in the Bail Act in the wider interest of justice.
24. On this issue the Judge made the following observations in his written Ruling:
    
    30. The Learned Magistrate has relied on the submissions made by the defence counsel that the suspects were detained in police custody for more than 48 hours and formed the opinion that the right guaranteed to a suspect under Section 13 (1)(f) was violated. It appears that the alleged rights violation has formed the basis of the Learned Magistrate’s decision to grant bail to the Respondents. It does not appear that the allegation against police was properly analysed on evidence.
        
    31. This Court concedes that the rights of the accused must be protected in the criminal investigation process and that the interests of the suspect, and those of the public and justice require that the suspects arrested are brought under judicial supervision within 48 hours of the arrest. However, weight given by the Learned Magistrate to the alleged rights violation is highly disproportionate to the objective to be achieved in a fair criminal justice system in the wider interest of justice.
        
    32. The plain reading of Section 13 (1)(f) of the Constitution would inform that the right guaranteed under it is not absolute. The Section provides that every person who is arrested or detained has the right to be brought before a court as soon as reasonably possible, but in any case, not later than 48 hours after the time of arrest, or if that is not reasonably possible, as soon as possible thereafter. Before coming to a conclusion on whether this right is violated, it is imperative that the court look at the circumstances under which the delay occurred. There may be justifiable reasons that prevent the police from strictly adhering to the stipulated time frame. The issues of transport, complexity of the investigation coupled with the need to charge the suspect on his first appearance in court are some of the common issues the prosecutors confront that a judicial officer sitting in a jurisdiction like ours should be sensitive to.
        
    33. The High Court Ruling on State v Sailosi Cabenalawa Naivalurua[7] cited by the Learned Magistrate has been pronounced in a context where the police has made an application to detain a suspect for more than 48 hours to complete the investigation. The High Court in that case has not held that the police detention in excess of 48 hours is ipso facto tantamount to a breach. There are authorities in this jurisdiction which have held that the time of police detention could be enlarged in the wider interest of justice. Therefore, the Learned Magistrate has applied an irrelevant case authority to justify the grant of bail to the Respondents.
        
    34. Even if there is evidence of a rights violation, that is a matter to be considered in a constitutional redress application and not in a bail determination. It has been held time and again that right violations are given weight in criminal matters when it has been shown that the accused was prejudiced in securing his right to a fair trial.
        
    35. The Learned Magistrate failed to properly exercise his judicial discretion by not rightly balancing the competing interests that come into play in a bail determination in accordance with the Bail Act.
        
25. The Applicant appears to argue that a finding of a right violation automatically leads to entitlement of bail. He has cited State v Felix Keith Vusonitokalau^[1] which was decided when the 1990 Constitution was in force and the Bail Act was not in existence. In that case, the accused was held in remand custody for 21 months without trial and there had been inordinate delay although no fault on his part. In these circumstances, the Court observed:

There has been a clear breach of the accused's constitutional right. That should not be condoned or exacerbated by the Court. The Court has a duty to remedy the situation immediately. The violation of a citizen's constitutional right for a period of only one day would still be a day too long. The accused is entitled to an immediate release on bail".

26. The facts of that case were different and had no bearing in deciding bail for the Applicant. The question of police detention for more than 48 hours never arose in that case. Section 44(1) of the 2013 Constitution provides for a specific remedy to enforce breaches of constitutional rights. The issues of right breaches that may arise in the course of High Court criminal proceedings should be considered perhaps in voir dire rulings/ judgments to see if those violations had prejudiced the accused’s right to a fair trial, and also in making pre-trial orders.^[2] There is no substance in the allegation that the Judge did not consider the submissions, and the authorities cited.
27. Despite this clear Ruling on this issue, the Applicant filed another bail application on 7 June 2024 and sought bail on the same ground. An accused can make any number of bail applications, but a court is entitled to refuse to entertain a fresh application for bail if it is satisfied that the application is frivolous or vexatious^[3]. A court is also entitled to refuse to hear a bail review application if it is not satisfied that there are special facts or circumstances that justify a review^[4].
28. Section 19(2) of the Bail Act describes the relevant circumstances a court must have regard to in forming the opinion required by Section 19(1) as to whether an accused should be granted bail or not. The alleged constitutional breach was not in the list of those circumstances. That does not mean that the courts should turn a blind eye to the alleged constitutional right violations. They should be given due consideration and addressed at an appropriate stage^[5] but should not be a ground for automatic entitlement for bail.
29. This Court was informed that the Applicant has filed a review application on this issue in the Court of Appeal and challenging the Judge’s decision to revoke bail. The judicial officers do not always make correct decisions. That does not mean that the officer who made the decision is biased. Let the higher courts correct the wrong if the judge was wrong.
30. The Applicant complains that the cash bail of FJD 15,000.00 was unfair as the cash bail ordered to other accused persons were comparatively less. He also complains that the Court failed to conduct a means test to assess his capacity to deposit FJD 15,000.00 and that Sections 22(3)(4) and (5) of the Bail Act was not considered.
31. When the Judge indicated that granting of bail to the Applicant was the only option to ensure his right to access evidence against him, the State suggested that, if the Court was minded granting bail to the Applicant despite its opposition, a cash bail of at least FJD 20,000.00 should be ordered. However, the Court ordered only FJD 15,000.00 cash bail.
32. The Court in ordering FJD 15,000.00 cash bail observed as follows:

While maintaining its objection to bail, the State has proposed strict bail conditions in the event the Court decides to grant bail to the Applicant. It has proposed a $20,000 cash bail, amongst other conditions. The Applicant claims that he does not have the financial capacity to deposit $ 20,000. Unbearable and excessive cash bail conditions should not operate as a refusal of bail. Therefore, a brief means test under Section 22(3) of the Bail Act was conducted to ascertain the quantum of cash bail. At the time of arrest, the Applicant had a considerable amount of cash in his possession, and he ran a successful car wash business in Denarau. I am satisfied that the Applicant has a financial capacity to deposit FJD 15,000.00. The proposed sureties have been vetted and cleared by the ODPP.

33. Under the Bail Act, there is no requirement for a court to run a separate means test to ascertain the ability of the accused person or the surety to provide the (cash) security if evidence to that effect is already available to court. The evidence under oath is warranted only if it is necessary. If (cash) security is required, it must be set with reference to the capacity of the accused person or acceptable person to meet the obligation^[6].
34. The Applicant had in his possession about FJD 21,691.90, AUD $45 and USD 100.00 at the time of arrest. In his supplementary submissions filed on 19 November 2024, he claimed that this money was obtained by the Applicant’s car wash business and the foreign currency were paid by the tourists who used his car wash facility. The Applicant had provided two sureties with their affidavits claiming that they were capable of supporting cash bail.
35. A requirement for security must not be imposed if it amounts to an unreasonable impediment to the granting of bail^[7].The Applicant was granted bail on 14 June 2024 (on a Friday) afternoon, and he had deposited the cash bail on 17 June 2024 when the Court Registry was opened on the following Monday. This shows that the cash bail condition imposed by the Court had not impeded his release on bail.
36. The determination of bail and its conditions is an individualized process where a risk assessment and capacity to meet the obligation of each accused is made on the basis of the information (evidence) available to Court. The charges were particularized in the information, and the facts that support the charges were before the Court. The Applicant had been named the 1^st Accused by the State after a careful assessment of evidence and the role he is alleged to have played in the drug operation. Out of 12 counts, the Applicant was charged with five counts, importation and possession of methamphetamine and being in possession of large amount of money believed to be proceeds of crimes. The allegations against the Applicant were more serious than others.
37. It was on the strength of this information that the Applicant’s bail was denied while some of the accused were released, and the quantum of cash bail differed from others. Treating one person differently from another is not discrimination, if it can be established that the difference in treatment is not unfair in the circumstances^[8]. A fair-minded informed observer might not consider that the judge’s handling of bail matters concerning the Applicant was bias.

Ground iii – Disclosures

38. There was considerable delay in serving full disclosures to the Defence. The Applicant alleges that the DPP was deliberately delaying the service of disclosures knowing very well that the Applicant was in remand. The Applicant further claims that his Counsel was not given ample time to prepare whereas the State was given leeway.
39. The State took approximately 7-9 months to serve full disclosures. The plea was deferred several times because the full disclosures had not been served on all accused. It was informed by the State that large number of witness statements and hundreds of photographs (800) were to be disclosed and for that they took nearly six months. The Applicant complained that some copies were illegible. The plea was taken eventually only when all the accused were satisfied that full disclosures have been served.
40. The photographs were in electronic form, saved in a USB. The Applicant complained that he did not have facilities to access the photographs and get instructions from his counsel as he was in remand. The Court ordered the State to provide the hard copies of the photographs. Since the State failed to disclose hard copies, the Court decided to grant bail to the Applicant considering the interest of the accused and justice. Despite the State’s objections, the Applicant was granted bail to prepare for his defence. A reasonable fair-minded observer informed of these circumstances would not believe that the judge is biased.
41. The Applicant concedes that a timetable was set by this Court for the service of disclosures (paragraph 25 of the affidavit). It is the Judge’s responsibility to ensure that the timetable set by the Court is followed by each party. The Judge took every effort to ensure that the pre-trial steps reasonably progress as scheduled. When the State failed to abide by the timeline set, some remedial measures were taken, for example: upon failure to disclose the hardcopies of the photographs in time, the Applicant was enlarged on bail to access evidence against him and get legal instructions to ensure him a fair trial.
42. In granting bail, the Judge made the following observation in his Bail Ruling dated 14 June 2024.

The Court is hopeful that the ODPP will put extra energy to finalise the PTC issues so that this matter can be fixed for trial within the next three months. This Court will seriously consider granting bail to the Applicant if the trial gets inordinately delayed due to laxity on the part of the State.

43. The matter before the Judge was not a run in the mill case. It involved 4.1 tons of methamphetamine, the largest illicit drug haul in Fiji, perhaps, as Mr Rabuku said, in the southern hemisphere. Initially there were 13 defendants, and each had to be served with disclosures. The number of witnesses the prosecution intended to call and the documents to be tendered at trial was voluminous. Any fair-minded judicial officer handling a case of this magnitude would be sensitive to the complexities involved in the investigation and compilation of the disclosures and would give reasonable extra time and leeway to the prosecution.
44. As of today, Mr Iqbal Khan represents only the Applicant. He withdrew instruction from the other accused whom he represented earlier when the Court warned Mr Iqbal Khan’s Junior Counsel - Mr Heritage of potential conflict of interest^[9]. The State, on the other hand, prosecute all the accused whose demands of disclosures must be satisfied. The plea was taken when all trial disclosures have been served. The Counsel for Applicant has been given ample time after the disclosures were served to prepare for the defence. In these circumstances, a fair minded and reasonably informed observer would not consider the judge’s handling of pre-trial issues to be bias.

Ground vi- Imposing of Curfew Hours

45. The Applicant perceives the imposition of curfew hours from 6 pm to 6 am as a bail condition when the State did not propose or sought such a bail condition to be unfair and indicative of bias on the part of the Judge.
46. The judges are not there to rubber stamp what the prosecution proposes them to do. The imposition of the bail conditions is a judicial function carried out based on the facts/ evidence and the submission made by the parties. If the judge is satisfied that the bail conditions already imposed are inadequate, he is entitled to impose additional bail conditions, whether proposed by the State or not.

Ground Vii - Bail Variation Application

47. The Applicant argues that the Judge’s failure to make an ex parte ruling to allow his application for bail variation when the State did not file its affidavit in opposition on the date appointed gives rise to an apprehension that the Judge is biased.
48. The bail variation was sought for the Applicant to travel and conduct his car wash business in Nadi. The bail condition restricting his movements out of Lautoka was made after a careful risk assessment. To vary such decision, there should be some change in circumstance that justify the proposed variation. A court is entitled to refuse to hear an application to review bail conditions if it is not satisfied that there are special facts or circumstances that justify the review. There were no such circumstances in the bail variation application filed by the Applicant. Still, the judge for the sake of natural justice allowed the State to file its response so that both parties could be heard.
49. A court must be extremely careful not to make ex parte bail variation orders in criminal matters involving serious offences of this nature when the existing bail ruling has been made after due consideration of all facts and circumstances submitted by all parties. A fair minded reasonably informed observer would not consider the Judge’s conduct in giving extra time to the prosecution to file its response and not making ex-parte ruling as being bias.

Ground viii - Fixing of Trial Dates without any Agreed Facts or PTC Checklist

50. The Applicant’s Counsel had indicated that his client is not agreeing to any of the facts in this case. The Applicant filed grounds of voir dire well in advance contesting the admissibility of the caution statement. Therefore, the issue of filing of admitted facts would not arise.
51. There is no strict requirement in the Criminal Procedure Act [Part (18)] that a trial date must be fixed only after the pre-trial conference (PTC) or that a PTC checklist should be filed, or it should be filed before the PTC or trial. A PTC checklist is required as a matter of good practice to improve case management. This is not the only case where the Judge had put the ‘cart before the horse’.

Grounds ix and x - Fixing of Trial Dates/ Judge Being put under Pressure

52. The Applicant asserts that the Judge’s conduct in fixing a trial date in the substantive matter leads to a reasonable apprehension that the Judge is biased in the sense that he will not adjudicate his matter impartially. He believes that the fixing of trial from 22 April 2025 was done hastily because the Judge was under pressure from the higher hierarchy of the Judiciary.
53. To demonstrate what motivated the Judge to fix the trial dates as he did, and to dispel the misnomer that the Judge was under pressure from the higher hierarchy of the Judiciary, it is necessary to quote from the orders and comments he made.
54. The Judge in his Bail Ruling dated 14 June 2024 observed as follows:

The State has taken approximately five months to file the information. The State Counsel indicated that it was looking at a trial date somewhere in the middle of next year. The ODPP is still in the process of compiling the additional evidentiary material to be disclosed to the Defence. Having considered the public interest involved in this case, the Court has indicated to the parties that it is ready to try this matter at any time, once the parties are ready. The Court is hopeful that the ODPP will put extra energy to finalise the PTC issues so that this matter can be fixed for trial within the next three months. This Court will seriously consider granting bail to the Applicant if the trial gets inordinately delayed due to laxity on the part of the State.

55. In his subsequent Bail Ruling delivered on 3 December 2024, granting bail to the Applicant, the Judge observed as follows:

Three months have elapsed since the previous bail determination. Despite extra energy being put by the ODPP into expediting the trial process, the Court is still unable to fix a trial date due to some pre-trial issues, the main of which is the alternate drug analysis. The Court has however indicated that this matter will be given priority and fixed for trial within the first quarter of 2025.

56. On 7 June 2024, the Judge made the following comment from the Bench:

....The State is talking about the public interest, that’s why I said that I am ready to take up the trial at any moment. Once the Court...the prosecution is ready, I am ready to hear this matter because it involves public interest...

57. These statements are self-explanatory. All that was uppermost in the mind of the Judge was interest of justice.
58. As I said before, the substantive matter involves 4.1 tons of methamphetamine, a highly addictive illicit drug which could have generated far-reaching consequences on public health, public security and the national budget. The school children who are the future of this country would have been the potential victims if the drugs infiltrated the community. It is common knowledge that the unprecedented spread of HIV in Fiji is also linked to substance abuse. Furthermore, drug trafficking is bound to have international ramifications for Fiji because she is increasingly being used as a transit point en route to Australia and New Zealand. Because of these reasons, the substantive matter necessarily attracts public interest and must receive top priority in the disposal calendar of case management.
59. On the other hand, the Applicant’s rights guaranteed in the Constitution must be protected. He is presumed to be innocent until the charges against him are proven beyond reasonable doubt^[10]. Therefore, the Judge presiding over the trial is obliged to ensure the Applicant’s right to have the trial begin and conclude without unreasonable delay. It is in the interest of justice that the Applicant is tried without unreasonable delay^[11] and acquitted if he is found to be innocent. The pressure, therefore, if at all on the Judge would be to discharge his constitutional obligation to ensure that the rights of all parties concerned are protected in the interest of justice.
60. It is in this context and spirit that the following comments made by the Judge on 7 June 2024 should be understood:

Court... but the thing is, once the Court fixes this matter for hearing, whether you have accepted any other case, you have to be present for the trial because this is a matter that must be given priority in public interest.

Mr Khan This is a 2024 matter my Lord

Court Yeah, that’s a different matter.

We got clear instructions to prioritise drug matters. Now it’s a big problem in Fiji. So that’s the instructions I got from higher hierarchy of this judiciary. So I have to follow the instructions, so I have to give priority.....

61. 61. Because of the comments made in this conversation, the Applicant believes that the Judge would not preside over his trial with a fair and independent mind as there is pressure being put on him (Paragraph 57 of the affidavit).
    
62. No fair-minded reasonable observer overhearing this conversation would believe that the Judge is put under pressure to compromise his impartiality as Mr Khan suggested. The essence of the Judge’s comment would be that the judges get clear instructions to prioritise drug matters in the interest of justice as drugs have now become a big problem in Fiji. It does not connote that instructions are specific to the Applicant’s drug case.
    
63. The Judges regularly sit in case management meetings with the Chief Justice as the Head of the Judiciary, to discuss what measures ought to be taken to clear-up the backlogs and what cases be given priority in the cause list. The cases involving large quantities of hard drugs certainly top the list of priorities because of the harmful effect the drugs could pose to the members of public who are the potential victims.
    
64. The judiciary, while independent, is also accountable to the public. The Chief Justice and the other members of the Judiciary are paid by the taxpayers and are accountable to them and their representatives in Parliament. The case management tools are devised to make the delivery of justice efficient. The instructions given in the case management meetings are not case specific and are not meant to decide cases in a particular way. No judge will feel pressured to compromise his or her impartiality because of the instructions they get to execute their constitutional mandate to deliver speedy justice. Therefore, there is no reasonable basis for the Applicant’s anxiety that the trial dates were fixed because of outside pressure, and that he will not get a fair trial from the Judge.
    
65. The Applicant believes that the fixing of trial date was done to do a favour to the State Counsel for them to go to Hong Kong to watch Fiji Sevens Rugby while not considering the Defence Counsel’s health concerns and his booking with the Sedition trial at Ba High Court. He has formed this belief based on some comments made by the Judge on 10 December 2024, the day the Court fixed trial dates in his substantive matter. Therefore, it is necessary to reproduce the conversation that took place between the Judge and Mr Iqbal Khan’s Junior Counsel Mr Heritage to get a clear understanding of the circumstances under which the trial dates were fixed before the Pre-Trial Conference.
    

State: My Lord I hope we can fix this for trial today and then we can work backwards on all the other PTC issue that we need to

Judge: I have already indicated in the bail ruling, I’ll fix this matter for trial in the first quarter of next year, so you have ample time ...Mr. Khan, is he coming for the trial?

Mr Heritage: He is going on review on the 19^th December

Judge: I don’t care whether he’s going for a review, you have to get ready, so I give ample time. If he’s unable to defend the accused, the accused must retain another counsel, that’s why I am giving trial date in advance so that you can prepare for the trial.

Mr Heritage: Also, for the 1^st and 2^nd accused we have filed our grounds for voir dire.

State: My Lord, we have received the VD grounds for the 1^st, 2^nd and the 3^rd accused, there are no allegations of assault, undue influence, or coercion, there are allegations of their rights not been put to them, so we have a fair idea of which police officers to be called, which basically means that we will be recording their statements, what I am saying is that my Lord, we fix a hearing date, and then the substantive hearing and then we can deal with VD. We looking at the 3^rd week of April 2025 to commence this trial, we anticipate that it might take 3 to 4 weeks, so far there is no agreed facts.

Judge: What about the 1^st week of April?

State: The 3^rd week of April, my Lord.

Judge: You are not free on the first week?

State: No, my Lord, 1^st week, we have Hong Kong 7s, so some of us travelling to Hong Kong, so we would like to come back and then proceed with the trial.

Judge: 3^rd week starting from the 21^st April.

State: 21^st will be suitable, my Lord.

Judge: What about the others?

Mr Heritage: My Lord, that week is not suitable for us.

Judge: No, you have to fit in the Court’s calendar now, because I have already indicated that. What’s the problem in that?

Mr Heritage: We have a trial.

Judge: No, no, you can excuse from other trials. What’s the case that you are having?

Mr Heritage: It’s a Sedition case in Ba High Court, it’s a 2015 matter.

Judge: I know, so then ask the accused to retain another counsel, that’s why I am giving ample time, this trial had to be conducted in the first quarter, sedition is a very old case, I know that. This is a big case now. If Mr Khan wants to go to Ba Court and conduct a trial to defend the Accused in the Sedition trial, because we have given you almost 5 months, so let them decide whether Mr Khan is not available for this trial. He has an option, there are a lot of counsels in this country.

Mr Heritage: But for ........ we can get a mention in January

Judge: We can do that

State: My Lord, we would rather fix a trial date and deal with PTC issues.

Judge: That’s why I am giving the trial date first then we deal with, I want to have a fair trial, fair to the State, fair to the Defence. Last moment you can’t come and say oh we are not ready. Now, you have to give this a priority.

66. The judiciaries all over the world, including those in adversarial systems, which have a quest for efficient and timely justice delivery have come a long way from litigant-centric to a judge-centric case management where the judge takes control of the case’s pace and management, rather than the parties or lawyers.
    
67. The Judge in his bail ruling delivered on 3 December 2024 indicated to the parties that his substantive matter will be fixed for trial in the first quarter of 2025. By fixing the trial in the last week of the first quarter of 2025, the Judge has kept his promise. He has done nothing but the execution of his timeline. The parties must fit in that timeline.
    
68. The Applicant’s allegation that the Judge allowed the State Counsel to travel to Hong Kong is not correct and ill-conceived. The Judges have no authority to allow counsel to go and watch Hong Kong Sevens. Honestly speaking, the Judge did not properly hear what the State Counsel said of the purpose of them going to Hong Kong. He was under the impression that they were attending a workshop.
    
69. In any event, it won’t make big difference as the trial date was fixed in April 2025 itself, within the timeframe already fixed in advance by the Judge. Although the Judge suggested trial dates starting from the first week of April 2025, he had already fixed two murder trials back-to-back for the same period, one was a 2018 matter and, in the other, the accused was still in remand. All this information was available to the Judge when he preferred the last week of April suggested by the prosecutor to the first week of April 2025.
    
70. The Applicant was put on notice well in advance and warned him to retain another Counsel if Mr Iqbal Khan was not available for trial to avoid last moment disappointments and to ensure that the trial takes place according to the Court’s calendar. The courts often come across situations where the accused would come and say at the trial date that I am not ready as my counsel to whom I have paid fees and given instructions is not available.
    
71. The age of the case is not the only criterion in prioritising matters in a criminal Court. The number of witnesses/ the victims and their age/vulnerability, the public interest involved in the offence and whether the accused is still in remand are some of the other factors that are taken into consideration.
    
72. The Ba Sedition case in which Mr Iqbal Khan is said to have been retained has been pending in the system for nearly a decade and has lost public interest. The offence of Sedition is dead law in modern democracies whereas the illicit drug cases are a living problem facing the nation. Therefore, the drug case of the Applicant must be fast tracked and be given priority.
    
73. The Court was not informed that Mr Iqbal Khan will not be available for trial because of his health concerns if it was fixed in April 2025. What was informed in December 2024 was that Mr Khan had gone for a review. Therefore, a reasonable and fair-minded observer who is informed of these circumstances would not perceive that the Judge had favoured the Prosecution in fixing the trial dates or that he is biased in the sense that the applicant will not get a fair trial.
    

Ground xi – Judge to be informed of Defence

74. The Applicant perceives the Judge’s enthusiasm to know the Applicant’s defence in advance to be unfair interference with his counsel and prejudicial to his defence.
    
75. The objectives of Part [18] (Section 289) of the Criminal Procedure Act are to-

(a) improve case management in the courts exercising criminal jurisdiction and

(b) apply procedures at an appropriate stage before the trial of a criminal case which aim to -

(i). clarify the triable issues in each criminal proceeding;

.....

(iv). determine the length of the trial, and explore means by which its hearing may be facilitated by the application of any appropriate procedure

(c) otherwise enhance the efficiency of the courts in determining criminal proceedings in any just manner. [Emphasis added]

76. The information as to the nature of the defence that the Applicant is going to run at the trial no doubt serves an important function in the trial management as it helps to form an idea as to the length of the trial and what pre-trial orders to be made. Therefore, it is crucial for the judge to be informed about potential defences in advance to ensure a fair trial. Knowing the potential defences allows the Judge to consider all relevant information and make informed decisions about the case.
    
77. It is also important to explain the circumstances under which this information (the nature of the defence) was required by the Judge at the pre-trial stages. As a matter of fact, it was not the Judge, but the State Counsel who first raised this issue because they must know the nature of the defence to arrange their witnesses and disclosures to meet the demands of the defence and streamline the case for them.
    
78. Usually in a drug case, where Possession is a count, three defences are generally mounted^[12] and most common one being innocent possession. Once this issue has been raised, the prosecution must prove beyond a reasonable doubt that what was in accused’s possession was an illicit drug. For that, the Government Analyst’s Report is often relied upon by the prosecution and the confiscated alleged illicit drug is not exhibited at the trial as real evidence.
    
79. After obtaining the analyst’s report in this case, a large amount of confiscated material, allegedly methamphetamine, was stored in police custody risking it being abused and with health, storage and security concerns. To address these concerns, an application was made by the police/ ODPP seeking pre-trial disposal orders.
    
80. To make disposal orders, the trial judge would want to know if the Defence is contesting the Government Analyst’s Report and the chain of custody. If the analyst’s report/ chain of custody is not contested, the confiscated material can be disposed of then and there.
    
81. Furthermore, if the defence does not wish to contest the analyst’s report and cross examine the Government Analyst, the trial judge can accept the facts stated in the Analyst’s Report as prima facie evidence without the Government Analyst being called as a witness^[13] so that the trial time can be shortened. Therefore, the potential defence/ defences in a drug case forms a useful information for the judge to make pre-trial orders.
    
82. The enthusiasm of the Judge to know the nature of the defence in advance therefore should be viewed as a good case management strategy. A well-informed observer would not form the apprehension that the Judge may be biased.
    

Xii – Request for Audio-Recorded Transcripts

83. It is alleged that audio-recorded transcripts have not been made available to the Applicant’s Counsel despite his written requests. The Applicant perceives this alleged suppression of transcripts to be a manifestation of bias on the part of the Judge and is confident that he will not get a fair trial.
    
84. This allegation is made known to the Judge for the first time by the Applicant in his affidavit filed for this recusal application. When the Judge became aware of the same, a report was called immediately from the High Court Registry as it involves a breach of a constitutional right^[14]. The report filed by the Officer-in-Charge of the Criminal Section is reproduced hereunder. This report was emailed to Mr Iqbal Khan’s email address before the hearing.

TO: The Hon. Justice Aluthge, Judge of the High Court, Criminal Division – Lautoka

FROM: Ritnesh Kumar, Officer in Charge - Criminal Section, High Court of Fiji – Lautoka

DATE: 7th April 2025
SUBJECT: Formal Report - On Allegation made by Iqbal Khan & Associates Regarding Audio Recording Requests (HAC 22/2024 - State v Justin Ho & Others)

1. Purpose of the Report

This report is prepared in response to a directive issued regarding the allegation made by the law firm Iqbal Khan & Associates, acting on behalf of defendants in HAC 22/2024 - State v Justin Ho & Others, that their written requests for audio recordings were not actioned by the Criminal Section of the High Court, Lautoka.

2. Summary of Allegation

Iqbal Khan & Associates have alleged that, despite making formal written requests for the release of courtroom audio recordings relating to the above-referenced criminal proceedings, no action was taken by the Criminal Registry and no audio files were provided to them.

3. Registry Records and Verification

Following a thorough review of the case file HAC 22/2024 and internal registry correspondence logs, the following factual findings were established:

First Request for Audio Recording

• Date of Request Letter: 26 September 2024
• Received From: Iqbal Khan & Associates
• Request Details: Request for three (03) sets of court audio recordings
• Registry Action:

• The request was reviewed and approved by the undersigned on the same date.
• Three (03) full sets of the requested recordings were successfully prepared and released to the requesting law firm.
  

• Official Payment Details:

• Total Fee Paid: $75.00
• Official Receipt Number: 731167

Date of Payment: 30 September 2024
• Receipt issued to: Iqbal Khan & Associates

Second Request for Audio Recording

• Date of Request Letter: 10 December 2024
• Received From: Iqbal Khan & Associates
• Request Details: Request for one (01) set of audio
• Registry Action:

• The request was reviewed and approved by the undersigned on the same date.
• One (01) set of audio recordings was processed and released to the law firm accordingly.

• Official Payment Details:

• Total Fee Paid: $25.00
• Official Receipt Number: 737954
• Date of Payment: 11 December 2024
• Receipt issued to: Iqbal Khan & Associates
  

4. Conclusion

The registry records clearly demonstrate that both audio recording requests made by Iqbal Khan & Associates in respect of HAC 22/2024 – State v Justin Ho & Others were duly:

• Received in writing;
• Processed promptly and approved
• Audio materials prepared and released as requested; and
• Official payments made and receipted accordingly.
  

Therefore, the allegation that "no audio recordings were given" is factually inaccurate and without basis, as evidenced by file records, internal approval notes, and official receipts issued.

5. Supporting Documents Available on File

• Copies of both request letters dated 26/09/2024 and 10/12/2024
• Internal approval notes marked and signed by the Officer in Charge
• Payment ledger confirmation from receipts numbered 731167 and 737954
  Respectfully
  

85. No comment was made by the Applicant’s counsel on this report or about this allegation at the hearing. This report shows that the allegation is baseless. Even if it did, the Judge is not responsible for administration lapses of the Registry unless he slept over the request when the matter was brought to his notice. There was ample opportunity to raise this matter with the Judge if the requests for audio recorded transcripts were not provided by the Registry. No such complaint was made. Therefore, the alleged administration lapses of the Registry could not give raise to a reasonable apprehension that the judge is biased.
86. It is conceded that justice should not only be done but should manifestly and undoubtedly be seen to be done^[15]. There is no substance in the allegation that the Judge had breached the rules of natural justice and therefore the Applicant would not get a fair trial in accordance with the Constitution.
    
87. There is no truth in the allegation that all the rulings, decisions and directions were given in favour of the State. Despite opposition by the State, the Applicant was granted bail in the interest of justice well in advance of the trial to access evidence against him and prepare for his defence.
    
88. Because most of the rulings delivered by the Judge, except for the FJD 15,000.00 cash bail order, affected everyone almost equally, all accused persons should have been affected by the conduct of the Judge and, if the grounds raised by the Applicant were well-founded, they must have apprehended that the Judge is biased and that they will not get a fair trial. It is noteworthy that no other accused on the amended information has complained about the Judge’s conduct or sought a recusal at this point when the trial is just two weeks away. In these circumstances, a reasonable observer might wonder why only the Applicant has felt that the Judge may be biased when others have not.
    
89. In dealing with this application, this Court first ascertained all the circumstances which the Applicant say have a bearing on the suggestion that the Judge is biased. Then it asked itself whether those circumstances would lead to a fair minded and informed observer to conclude that there is a real possibility or a real danger that the Judge is biased. Having gone through these tests, the Court finds no evidence to support the proposition that the judge is or may be biased in the sense that the Applicant would not get a fair trial. Because of these reasons, the Application to recuse Judge Aluthge from hearing the case No. HAC 22 of 2024 should be dismissed.
    

Application for Costs by the State

90. 90. The State has asked for costs against the Applicant and his Counsel in the event the recusal application is not successful. Section 150(4) of the Criminal Procedure Act provides for costs against accused and counsel.

4) A judge or magistrate may make any other order as to costs as may be required in the circumstances to —

(a) defray the costs incurred by any party as a result of an adjournment sought by another party;

(b) recompense any party for any costs arising from any conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial;

(c) penalise a lawyer for any improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and

(d) otherwise meet the interests of justice in any case.

91. In the affidavit filed in opposition and its submission, the State have articulated the proposition as to why costs should be awarded against the Applicant and his Counsel.
92. In making an order for costs in this case, the Court need to be careful given the possibility of repeating the allegation of bias if the costs were awarded. However, this concern must not deter the Court from awarding costs if such course is reasonably required to meet the interests of justice.
93. I agree with the State that it is on the instructions of his counsel that the Applicant has made this application. The counsel can’t simply say that ‘I made this application because my client instructed me to do so’. Lawyers are officers of Court and not hired guns to provide advocacy services for their clients, irrespective of the legal, ethical or moral considerations involved.
94. Robert F. Cochran Jr. in his article titled ‘Professionalism in the Postmodern Age: Its death, Attempts at Resuscitation, and Alternate Sources of Virtue’ published in Notre Dame Journal of Law (http://scholarship.law.nd.edu/ndjlepp) stated;

The traditional lawyer’s notion of professionalism was quite different from that of the hired gun. The traditional lawyer did not do what he was told by the client; he told the client what to do. Whereas some of today’s lawyers see their obedience to client wishes as a mark of professionalism, the traditional lawyer saw his control of the relationship as a mark of professionalism. Judge Clement Haynsworth reflected this view to a law school graduating class:

[The lawyer] serves his clients without being their servant. He serves to further the lawful and proper objective of the client, but the lawyer must never forget that he is the master. He is not there to do the client’s bidding. If is for the lawyer to decide what is morally and legally right, and, as a professional, he cannot give in to a client’s attempt to persuade him to take some other stand......... During my years of practice,... I told [my clients] what would be done and firmly rejected suggestions that I do something else which I felt improper”.

(Clement F. Haynsworth, Jr. Professionalism in Lawyering, 27 SCL Rev. 627,628 (1976)^[16]

95. According to paragraph 8 of his affidavit, the Applicant has been informed of what his counsel had noticed in the transcripts, providing the basis of this application. A lawyer is duty bound in such a situation to advise the client that an application for recusal is only used in exceptional circumstances where there is clear evidence that the Judge is biased because such application calls into question the integrity of the Court. A recusal, if not well-founded, can bring the judge's conduct and impartiality under public scrutiny, potentially damaging his reputation.
96. Although Mr Iqbal Khan said that it never was his intention to misuse this application as a delaying tactic, the circumstances under which it was made point otherwise. Most of the issues raised by the Applicant in his application had arisen and were already in existence way back last year, but this application for recusal was made at the last moment, just three weeks before the trial, when the Court and all other parties were getting ready for trial.
97. The State Counsel contends that Mr Iqbal Khan simply wants the hearing of the substantive matter to be further delayed because he is unable to conduct the hearing due to his health issues which the Court is well aware of from the past appearances.
98. The Court is unable to dismiss the State’s claim in light of the sequence of events that took place from day one of these proceedings. The plea was deferred for nearly nine months because the Applicant refused to take the plea until full disclosures have been served although the charges in the information were straightforward and particularised. The application made by the State for drug disposal was opposed by the Applicant’s Counsel stating his client’s intention to dispute the Government Analyst’s report. It was informed that a foreign expert from Australia was approached for alternative drug analysis. Several postponements were granted to make a formal application for alternative drug analysis which never saw light of the day. That further delayed the fixing of trial dates and disposal of large amount of alleged illicit drugs, raising concerns of abuse, storage, health and security concerns.
99. The impact of a recusal on the Judge and the overall judicial system should be considered in making an order for costs. A successful recusal application disqualifies the Judge from hearing the case, requiring another judge to take over. This can impact the case's timeline, other accused persons and their counsel as the new judge might have a different perspective or approach. While a judge's decision to recuse can demonstrate his commitment to impartiality, it can also raise questions about the judiciary's efficiency and independence.
100. There can be no doubt that judicial impartiality is essential for public trust in the legal system. Recusals can be seen as a way to maintain that trust by ensuring that a judge is not involved in a case where there is a perception or actual bias. However, the courts should be mindful that recusal proceedings can be abused, potentially impacting the overall efficiency of the judicial system. Some may argue that recusal applications can be used strategically to influence the outcome or to shop for a more favourable judge. Judges must remain independent and free from external pressures, and a recusal application could be seen as a potential infringement on that independence if it's based on improper motives.
101. I am satisfied that this application has been made without reasonable foundation. It is based on improper motive to scandalize the court and delay the trial. The Applicant is not learned in law or the consequence of a recusal application unless he is properly advised by his Counsel. The Counsel should be held responsible for the actions he does on behalf of his client. The Counsel has derelicted his duty as an officer of the Court. Therefore, the Counsel who made this application must be met with a cost order to remind him and others who have similar impulses that such applications are not taken lightly.

Following Orders are made:

1. The application to recuse Judge Aluthge from hearing the case No. HAC 22 of 2024 is dismissed.
   
2. The application to appoint another judge to hear the matter against the Applicant/Accused is refused.
   
3. Mr Iqbal Khan, the Counsel for the Applicant, is ordered to pay a cost of FJD 1500.00 to the State within six months. If the payment is defaulted, the Counsel can expect sanctions.
   

Aruna Aluthge
Judge

15 April 2025
At Lautoka

Solicitors:

Messrs Iqbal Khan & Associates for Applicant
Office of the Director of Public Prosecutions for Respondent

---

^[1] [1996] FJHC 144 (2 September 1996)
^[2] Section 289 of the Criminal Procedure Code
^[3] Section 14(30 of the Bail Act 2002
^[4] Section 30(7) of the Bail Act
^[5] When delivering judgment or in a ruling on voir dire
^[6] Sections 3 and 4 of the Bail Act
^[7] Section 5 of the bail Act
^[8] Section 26 (7) of the Constitution
^[9] See: Vereivalu v State [2022] FJSC 48; CAV0005.2019 (27 October 2022)


^[10] Section 14 (2)(a )of the Constitution
^[11] Section 14 (2)(g)of the Constitution

^[12] i. Lawful Authority ii. Innocent possession /Innocent dupe defence and duress
^[13] Section 36 of the IDCA
^[14] Section 14(2) (m) of the Constitution
^[15] Lord Hewart CJ in Rex v Sussex Justices; Ex parte McCarth
^[16] Cited in Talala v State [2016] FJHC 1046; HAM200.2016 (17 November 2016)