State v Singh [2020] FJMC 80; Criminal Case 692 of 2010 (2 March 2020)

IN THE MAGISTRATE’S COURT AT LAUTOKA, FIJI

CRIMINAL CASE NO: 692/10

STATE

V.

RAYNUKA DEVI SINGH

Counsel : Ms Naibe DPP for Prosecution

Iqbal Khan & Associates for Accused

RULING

[RECUSAL APPLICATION]

01. The accused in this case has been charged with 31 counts of Larceny by Servant; Contrary to Section 274(a) (i) of the Penal Code, Cap. 17.
02. This hearing proceeded till the prosecution closed their case. After the hearing and having considered the evidence led by prosecution court under section 179 of Criminal Procedure Act informed that there is a case for the accused to answer.
03. Counsel Mr. Iqbal Khan was unhappy about my informing the same, and stated that I am prejudiced whereby I shall recuse myself from hearing the matter further. Accordingly, I informed Mr. Khan that it is the duty of the court to inform the accused under section 179 of Criminal Procedure Act if the court believes there are sufficient evident for accused to answer after the closure of prosecution case. It is further he is free to make an application after that if he still believes there is No Case to Answer (NCA). He would have made an application for recusal if I have not granted him to make NCA submission thus his application is premature.
04. Mr. Khan was then in agreement with the court and sought a date to file NCA submission. Accordingly, court granted 14 days for him to file submissions and set the ruling date on 26th February 2020. Since counsel has not filed any submission by 19th February 2020 court proceeded to prepare the ruling yet considering the two grounds applicable in a NCA. However, on 25th February around 3:00 pm a notice of motion was filed with an application to recuse myself from hearing the matter further.
05. Court ordered the same to be served on DPP and have it called on 26th February 2020 (the very next day) as it is coming up for ruling. On 26th February 2020 I did not deliver the ruling as there is a notice of motion for the aforesaid recusal application. Counsel for the accused informed that they are going to rely on the affidavit they have filed and no further argument of submissions are necessary. This was also confirmed by the accused and said she has nothing further to submit to court. DPP then sought matter to be called at 2:00pm as they were served this application in the morning and they require time to go through and make an oral submission.
06. When the matter taken up again at 2pm Counsel for the accused informed that they would like to make further submissions and filed written submission. Dpp then made their opposing verbal submissions.
07. The ground that accused has highlighted in this case is that I informed there is a case for accused to answer before her counsel made and application for no case to answer.
08. Before anything else I should draw the attention to a misleading averment of the appellant. In paragraph 12 of her affidavit she states that I did not allow her counsel an opportunity to make a submission of no case to answer. This is completely misleading averment. The case record itself speaks of the stages of the case where on 5th of February 2020 I have given 14 days for the counsel to file his No case to answer submissions which he has not filed.
09. Now I consider the law relating to a recusal application. I am much thankful to the counsel for drawing my attention to lots of case authorities and make available many quotations from legal publications and DPP for their legal and case authorities.

10. Since the counsels have submitted the evolution of the principles for recusal applications in UK, NZ and Australia, I would not take my time to reproduce the same in my ruling. Instead I will straight away come the decided matters in Fiji.
11. Prosecution submitted that first and foremost disqualification would be the interest a judicial officer has in the case but that is not the ground accused is relying on. Judge Paul K. Madigan in Sinha v State [2011] FJHC 371; HAM056.2011 (4 July 2011) observed some grounds on this;

“Obviously the true test is whether a Judge can be seen to act impartially or not and such impartiality would arise in circumstances where for example the Judge had prior knowledge of disputed facts, whether the Judge had a financial interest in the outcome of the proceedings or perhaps where the Judge had previously been a witness for one of the parties”

12. In this case neither I have any prior knowledge of this case nor financial advantage. This is impossible as the incident has happened in 2008 and I have started to discharge my duties as a Resident Magistrate in 2017. Also, I have never been a witness or at least I have not taken up any matter of the accused previously. Thus, first legitimate ground of disqualification is not satisfied.
13. The Supreme Court of Fiji in Amina Koya v the State (1998) FJSC 2, upon consideration of the tests adopted in England, Australia and New Zealand, found that there is no much difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias. However, the two approaches of real danger of bias and reasonable apprehension of bias has brought into a harmony in Porter v Magill (2002) 1 AC 357.
14. Also, in Patel v Fiji Independent Commission Against Corruption [2013] FJSC 7; CAV0007.2011 (26 August 2013) the Supreme Court of Fiji has adopted the test enunciated in Porter v Magill (supra)
15. Justice Gounder in Mahendra Pal Chaudhry v The State (2010) FJHC 531 HAM 160.2010 (19 November 2010) adopted the objective test of whether a fair-minded and informed observer having considered all the actual circumstances would conclude that there is a reasonable apprehension on bias.
16. Justice Calanchini in State v Citizens Constitutional Forum Ltd, ex parte Attorney General [2013] FJHC 220; HBC195.2012 (3 May 2013) while adopting the test articulated in Porter v Magill (supra)held that;

"Consistent with the decision in Porter –v- Magill (supra) the Court of Appeal in Patel and Mau –v- Fiji Independent Commission Against Corruption (unreported criminal appeal AAU 39 and 40 of 2011 delivered 12 September 2011) adopted a two stage enquiry. The first stage involved establishing the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the "bias" ball in the air. The second stage is to determine whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case. This involves an objective determination in the sense that it requires an enquiry as to how others would view the judge's position".

17. In line with the above legal authorities on two tests, I proceed to apply the two stage test adopted by Justice Calanchini. Accordingly, the first test would be whether I was biased in the given circumstances.
18. The allegation of the accused is that her counsel was not given a chance to make a submission for no case to answer at the end of prosecution case. I would therefore consider what criminal procedure act provides for no case to answer.
19. Relevant sections after the closure of the prosecution case are section 178 and 179 of Criminal Procedure Act. For clarity I reproduce the same here;

178. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused. (emphasis added)

179 (1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require the making of a defence, the court shall – (emphasis added)

......

20. The key word in the two sections is “if it appears to the court”. A judicial officer acting under section 178 in acquitting an accused even need not to hear and wait until accused or his counsel makes and application for no case to answer. Though it is generally called as “application” in practice, Act itself does not speak about any party making such an application.
21. Similarly, if it appears to the court that a case is made out against to accused the court shall inform the same to accuse followed by his/ her rights. The word “shall” in legal context is a must and court have no discretion about it. On the same note accused cannot make a submission for case to answer as of a right.
22. However, in this case since counsel insisted on his filing submissions court did allow filing submissions if any within 14 days but counsel has not filed any.
23. Secondly the accused in her affidavit particularly paragraph 10 & 12 has submitted that she is not happy about my perusing the previous evidence and making a decision just after conclusion of two witnesses without examining their evidence.
24. The best time to make a decision is when the evidence is fresh in mind. Any transcripts and notes are just to refresh the evidence and recording purpose. There is no mandatory requirement for a judicial officer to read the evidence again before making a decision. There is an allegation that I heard the rest of the witnesses some time ago and therefore cannot evaluate the evidence without perusing the evidence.
25. On this remark I have to share my way of handling a hearing. For all the fresh hearing, I go through the charges and their required elements a day before the hearing, so I know if when to limit prosecution if the evidence being led is not relevant. If it is a part heard matter then for sure I go through all the evidence of the witnesses that has been already led. This in my belief is the common practice of all the judicial officers for them to have a proper understanding over the relevant evidence and to avoid any hearsay of the evidence to come in further hearing.
26. Therefore, my informing that I perused the previous day evidence has nothing to be amazed of and to consider as biasness. Having a good idea of the led evidence and being mindfulness of the evidence led on the same day a judicial officer must be able to determine whether there is a case to answer of not. Especially in this matter charges are being the same and only the date and amount of money involved being different.
27. It is also worth mentioning that at the stage of no case to answer courts are not assess the credibility or reliability of the evidence, what courts are looking for is whether there is sufficient evidence to cover the elements of the counts that accused has been charged with. Thus, it is not a strenuous analysis for court to make and arrive at the end of the prosecution case.
28. Accordingly, the allegation by the accused is baseless and misconceived as biasness cannot be formed merely a judicial officer is taking procedural steps in a case which he/she is duty bound.
29. The second inquiry or stage is to ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judicial officer; in this case I, might not bring an impartial mind to the resolution of the case. This has to be decided by jumping into the shoes of a fair-minded lay-observer and apart from my own observations. This is for instance, to ask a fair-minded lay-observer who was seated in court observing the matter from the beginning whether I might not bring an impartial mind to the resolution of this case. Thus, this is an objective.
30. Since the objection was made against a legal step taken by a judicial officer any lay-observer with some brains will not consider that courts following the laid down legal procedure as biasness. A fair-minded person need not to have trained legal knowledge to distinguishes between the biasness and the legal procedure.
31. Gounder J. in Mahendra Pal Chaudhry v State (supra) has observed that none of the cases cannot be heard if a judicial officer is going to disqualify by the mere fact that he has made an unfavourable decision against the accused.

“In criminal cases, judges have to make pre-trial rulings and decisions during the trial. Not all rulings that a judge makes may be favourable to the accused. The mere fact that a judge has ruled against the interest of an accused is not a ground for disqualification. To do so will set a dangerous precedent because as soon as a judge makes an unfavourable decision he or she is disqualified from trying the accused and no case will ever be heard. The result will be contrary to the public interest to see all those who are charged with criminal offences are tried in accordance with the law.”

32. Therefore, I find the application is misconceived, grounded on erroneous assumptions of law, baseless and it is plainly vexatious.
33. In the circumstances the Application to recusal is refused.
    

Bandula Gunaratne

Resident Magistrate

02^nd March 2020

At Lautoka