Koya v State [1998] FJSC 2; CAV0002.1997 (26 March 1998)

Fiji Islands - Amina Koya v The State - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

AT SUVA

ON APPEAL FROM THE FIJI COURT OF APPEAL

CRIMINAL APPEAL NO. CAV0002/97
(Fiji Court of Appeal Criminal Appeal No. AAU0011/96)

BETWEEN:

:

AMINA KOYA
Appellant

AND:

THE STATE
Respondent

CoThe Hon. Sir TimocTimoci Tu, President
The Rt. Hon. Hon. Lord Cooke of Thorndon
The Hon. Sir Anthony Mason

Hearing: 10 March, 1998
Judgment: M 1998

Counsel: Mr. R. Douglas, Q.C., Mr. G.P. Shankarankar for the Appellant
Ms. N. Shameem, for the Respondent

JUDGMENT OF THE COURT

This is an application for special leave to appeal from a decision of the Court of Appeal (Casey, Thompson and Handley JJA) dismissing the petitioner's appeal against her conviction for the offence of arson (s.317 of the Penal Code, CAP. 17) and reducing the term of imprisonment imposed by the trial Judge (Lyons J.) from 3 years to 2 years. The petitioner was tried before Lyons J. with three assessors. Following the trial judge's summing, the three assessors were unanimous in their view that the petitioner was guilty of the offence charged. Although the trial judge in giving judgment was not "bound to conform to the opinions of the assessors" (s.299(2)) of the Criminal Procedure Code, CAP. 21), he pronounced judgment in accordance with the assessors' opinions. This is a matter of some importance in relation to the principal ground urged in support of the petition for special leave, namely the ground of bias or apparent bias on the part of the trial judge.

The Trial

The offence charged was "wilfully and unlawfully setting fire to the office of Messrs. Koya and Company situated in the Popular Building, Vidilo Street, Lautoka on 23 March 1994."

The appellant is the widow of the late Mr. S.M. Koya who died in April 1993 and is the executrix of his estate. He was a barrister and solicitor in Lautoka and Suva who practised under the name Koya and Company. His office was in Popular Building, Vidilo Street, Lautoka. The building was constructed of iron and timber. On the evening of 23 March 1994 there was a fire in the office.

There was evidence that the rent had been seriously in arrears and it was agreed that the office should be vacated on 31 March 1994. The appellant had been supervising the office since her husband's death. The office was on the upper floor of a two-storey building. Access to it from the street was through a double door leading to a staircase, then up the stairs and along, a corridor on the upper floor. At the end of the corridor there was an outside staircase into the backyard of the building.

There was also evidence that to gain access from the corridor to the firm's office it was necessary to pass, in turn, through a metal-grill security gate, a solid wooden door and a glass door. The glass door could not be locked but there was a padlock on the security gate and a lock on the wooden door. The petitioner and Mr. Nadan, a clerk in the firm, each had a key for the padlock and the wooden door. No one else had a key for the padlock but Ms. Veena Kumari, a typist in the firm, had a key to the wooden door.

Mr. Nadan and Ms. Kumari gave evidence that on 23 March 1994 the petitioner left the office at about 4.30 p.m. and Mr. Nadan left at about 4.45 p.m. Soon afterwards Ms. Kumari locked the wooden door, secured the padlock on the security gate and left the building. She said the petitioner's "office bag" was still in the office. Mr. Nadan said that he did not return to the office until after he was told of the fire. It was not suggested that he was to blame for the fire.

Mr. Nadan said that on a day shortly before the fire the petitioner borrowed his keys to the double door of the building. A locksmith, Mr. Bhupendra, gave evidence that on 22 March he cut keys for the petitioner. He identified them as keys obtained from the petitioner and there was evidence that they could open the locks of the double door of the building.

Mr. Rakesh Vagh gave evidence that at about 6.15 p.m. on 23 March 1994 the appellant came to his house which was about 100 metres from Popular Building and said she needed to retrieve her briefcase from the office but was unable to open the locks of the double door to the building. Mr. Vagh, who had keys to those doors, accompanied her to the office at about 6.20 p.m. or possibly 6.30 p.m. He unlocked the double door and went into the building. The upper floor corridor was in darkness. The petitioner retrieved her briefcase and they left the building. Mr. Vagh locked the deadlock and the padlocks of the double door. In statements to the police the petitioner said she locked the security gate when they left the office. When Mr. Vagh returned to the building after hearing a fire engine and seeing smoke, he noticed that the double door was not locked when the fireman sought to enter the building.

Mr. Robinson, a fireman, gave evidence that the fire brigade was informed of the fire at 7.15 p.m. Inside the building he smelled smoke and burnt kerosene. He located the fire in the office of Koya and Company. He found the security gate unsecured and the wooden door unlocked. After extinguishing the fire, he found that kerosene had been spilled along the wall of the corridor right to the end and that there were match sticks lying on the top of the kerosene. He stated that the padlock of the security gate had not been forced. He said that the fire had started in the typist's office and that the door leading from the corridor to the outside stairs was secured both inside and outside. According to Mr. Vagh there was no smell of kerosene when he went into the building with the petitioner at 6.20 p.m. - 6.30 p.m.

Mr. Naise, a shopkeeper, gave evidence that on the evening of 23 March 1994 between 6.30 p.m. and 7 p.m. he saw the petitioner arrive and stop her car outside the Popular building and go into the building. She came out about five minutes later, drove her car a short distance, parked it, then walked to the building. She told Mr. Naise she had forgotten something in her office and entered the building. He did not see her leave.

There was expert evidence that the fire was not caused by an electrical fault and that the fire had cut off the power supply to the building by causing a fuse to blow. Another tenant stated that the fax machine in his office showed that it had ceased to operate at 6.53 p.m. Smoke was seen issuing from ventilators at 7.05 p.m. in that part of the building where the Koya and Company office was situated.

A former employee of an insurance company gave evidence that early in November 1993 the petitioner renewed the insurance of the contents of the office, the insurance having lapsed in 1992. The amount of the cover was $100,000. After payment of $1573.05 by the petitioner on 4 November 1993, the firm still owed the insurer $5962.55. The witness also gave evidence that on 21 March 1994, two days before the fire, the petitioner called on him to seek confirmation that, despite the indebtedness, the policy was still in force. He confirmed that and, in response to her inquiry, told her that the amount of the cover was $100,000.

Evidence was given by Mr. Gates, who conducted the practice in Suva, about the difficulties of continuing the practice in Lautoka and the events leading up to the decision to close it down.

The petitioner made a statement to the police. She said that she went to the building with Mr. Vagh to collect her "office bag", that she then locked the "main door" of the office with its padlock. She then went straight home when she learned at 7.30 p.m. that the office was on fire. She said that the contents of the office had been insured for a long time but she could not say whether the insurance was still valid or what was the amount of the cover.

In a later statement she denied that she subsequently went into the office and that she had spoken to Mr. Naise.

In her unsworn statement at the trial she simply denied that she had committed the offence.

Three witnesses were called for the defence. One, Mr. Adam Ali, Mr. Naise's partner, contradicted Mr. Naise's evidence. He said that he went to their shop at 6.30 p.m., took Mr. Naise to a hypermarket, after which they returned to the shop and closed it about 6.40 p.m. He then drove Mr. Naise home. He did not see the petitioner or her car near the shop. In statement to the police, he had simply said that he picked up Mr. Naise at 6.40 p.m. and not that earlier he had taken him to the hypermarket.

The two remaining witnesses gave evidence of the petitioner's exemplary character and of her service to the public in many ways.

The petitioner appealed to the Court of Appeal against the conviction on a number of grounds mainly relating to the directions given by the trial judge and against the sentence of three years imprisonment.

The case of Bias

On a motion to add an additional ground, namely that the trial judge was biased or alternatively that there was a likelihood of bias against the petitioner, the Court of Appeal granted leave. The case of bias arises out of an affidavit sworn by Mr. I.Q.A. Khan, a barrister and solicitor who formerly lived and practised in Fiji but now lives in Australia and principally practises there. Mr. Khan said that on 30 April 1997, during a chance telephone call, he learned that Lyons J. had presided at the trial and thought that the trial might have been vitiated by bias on the part of the judge. Mr. Khan, who had formerly worked for Koya and Company as a clerk for four years, and later as a barrister and solicitor for four years, was instructed by the petitioner to defend her on the charge of arson with Mr. H. A. Shah as junior counsel.

Mr. Khan went on to say that he discussed the case on numerous occasions with Mr. Lyons who was then a barrister in Brisbane. He informed Mr. Lyons in detail of the allegations against the petitioner and of the general thrust of the case against her. In the discussions, in which Mr. Lyons played the part of devil's advocate, they reached a consensus that the case against the petitioner was inherently very weak. Mr. Lyons referred Mr. Khan to certain authorities which, it is said, supported the proposition that the magistrate should throw the case out, authorities which Mr. Khan cited to the magistrate, albeit unsuccessfully.

The Court of Appeal, after hearing Mr. Khan cross-examined on his affidavit, found that he discussed with Mr. Lyons 10 or 11 prosecution witness statements - there were 30 in all - copies of which he had received. Mr. Khan did not suggest that he had taken detailed instructions from the petitioner as to her defence or that he had taken statements from any potential defence witness. There was no suggestion that he had ever discussed the petitioner's defence with Mr. Lyons. The most that can be said is that Mr. Lyons was aware of 80% of the prosecution case (this is Mr. Khan's estimate) and considered it to be deficient.

The last occasion on which Mr. Khan spoke to Mr. Lyons about the case was before the preliminary inquiry. At that stage Mr. Lyons was prepared to come to Fiji to appear for the petitioner at the trial without fee provided his expenses were paid. Nothing came of this, however. There was a falling out between Mr. Khan and Mr. Lyons over the former's alleged failure to pay fees said to be due to the latter in relation to matters unconnected with this case. Mr. Lyons was appointed a Judge of the High Court of Fiji after the preliminary inquiry before the magistrate.

For reasons which are by no means clear Mr. Khan did not appear for the petitioner at the trial. She was represented by Mr. Shah.

Decision of the Court of Appeal

The Court of Appeal rejected the case of bias, concluding that the fair-minded observer in Fiji would not think that Lyons J. might be biased against the petitioner by reason of his discussions with Mr. Khan. The Court rejected the other grounds of appeal.

Petition for special leave to appeal

Section 13(2) of the Supreme Court Decree 1991 provides that, with respect to its criminal jurisdiction,

"the Supreme Court shall not grant special leave to appeal except where a question of general legal importance is involved or where a substantial question of principle affecting the administration of criminal justice is in issue or where otherwise substantial and grave injustice may occur."

In our view, the issue of bias in the present case raises both a question of general legal importance and a substantial question of principle affecting the administration of criminal justice. Accordingly, special leave to appeal must be granted. The grant might be limited to the issue of bias with a refusal of special leave in relation to the other grounds of appeal for the reason that they raise no matter that falls within s. 13(2). Having regard, however, to the significance of the bias issue for the conduct of the trial, we consider that special leave to appeal should be granted without limitation.

The Appeal

1. The Bias Issue

The Court of Appeal in its reasons and the parties in their submissions to this Court approached the issue of bias as if it were a question of law, an affirmative answer to which would result in the petitioner's conviction being set aside. That approach overlooks s.23(1)(b) of the Court of Appeal Act (Amendment Decree 1990) which provides that the Court of Appeal, on an appeal against conviction,

"shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal."

It is necessary therefore for the petitioner to establish that the existence of bias or the appearance of bias resulted in a miscarriage of justice within the meaning of s.23(1)(b).

There is some controversy about the formulation of the principle to be applied in cases in which it is alleged that a judge is or might be actuated by bias. In Australia, the test is whether a fair-minded but informed observer might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case (Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294, 300; Re J.R.L; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342 at 349, 351, 359, 368, 371; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 575, 584; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 29). In England, however, the House of Lords, in R v Gough [1993] UKHL 1; (1993) AC 646, decided that the test to be applied in all cases of apparent bias involving Justices, tribunal members, arbitrators or jurors is whether in all the circumstances of the case there is a real danger or real likelihood, in the sense of possibility, of bias. In a later case, Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41, which concerned a juror, the High Court of Australia, despite Gough, decided that it would continue to apply the reasonable apprehension or suspicion of bias test, and held that in the circumstances of the case a fair-minded but informed observer would not have apprehended that the juror or the jury would not have discharged their task impartially.

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

In the present case, we are not concerned with the question whether a judge or juror should be disqualified at the commencement of an action or trial, that is, when the course of the proceeding lies ahead and one is necessarily contemplating the realm of possibilities. Here we are concerned with a trial which has actually taken place and with the question whether there has been a miscarriage of justice on the ground that there was a real danger of bias or a reasonable apprehension or suspicion of bias. In the determination of that ground, the record of the trial, showing how it was conducted by the trial judge, is of fundamental importance. Generally speaking, if the record were to demonstrate that a judge sitting with a jury conducted a trial impeccably, it would be difficult to establish that there was a real danger that the trial was vitiated by apparent bias or that a fair-minded observer, knowing the facts, would reasonably apprehend or suspect that such was the case.

There is not a precise correspondence between the functions of a judge sitting with assessors and a judge sitting with a jury. That is because it is for the judge sitting with assessors to pronounce judgment and, in so doing, he is not bound to conform with the opinions of the assessors, though it would be an unusual and exceptional case for a trial judge to overrule the unanimous opinions of the assessors and to be justified in taking such a course. In the present case, the trial judge expressed his agreement with the assessors' opinions, although he was under no legal obligation to do so. There is nothing surprising in the trial judge's expression of his agreement with the assessors. On the evidence left to the assessors, we do not consider that any conclusion other than one of guilt could reasonably have been reached.

In the argument for the petitioner, the case of bias was described as bias through pre-judgment. What then was the relevant pre-judgment? All that can be relied upon as pre-judgment was the expression of view that on the materials put before him by Mr. Khan, his Lordship considered that the magistrate should hold that there was no case to answer. That question was not a question which his Lordship was called upon to determine at the trial. And, as already noted, the evidence led at the trial went beyond the materials put before his Lordship by Mr. Khan.

If the test favoured by the High Court of Australia is applied, the fair-minded observer, knowing the facts, would not conclude that the petitioner failed to receive a fair trial. Such an observer might think that the judge, having been approached by Mr. Khan and having expressed the view that the magistrate should hold that there was no case to answer, might be inclined to approach the trial with a pre-disposition in favour of the petitioner. With knowledge of the trial as it unfolded, such an observer could only conclude that, whatever the initial state of mind of the trial judge, there was nothing to show a lack of impartiality on his part. Indeed, nothing in the conduct of the trial was identified as suggesting a bias of any kind. In this respect, we should say - and we say it emphatically - that the directions given to the assessors exhibit complete impartiality. They leave the issue to the assessors without any attempt to influence their judgment on matters left for their opinion. The directions are not flawless but the flaws are relatively minor and they do nothing to detract from the fairness and the impartiality of the summing-up.

The Court of Appeal pointed out that the witness statements became part of the record of the Magistrate's Court which was made available to the trial judge before the trial and that the normal practice in Fiji is for trial judges to read the record of the Magistrate's Court before the trial. See Rajend Kumar v The State (Court of Appeal, 5 May 1997 at p.5). The trial judge followed that practice in the present case. There is no suggestion that the trial judge obtained from Mr. Khan any information which was not contained in the witness statements which became a matter of public record. Indeed, what the judge learned from Mr. Khan was something less than the contents of those statements.

Reliance was placed on a passage in the joint judgment of Brennan, Gaudron and McHugh JJ in Re Polites; Ex parte Hoyts Corporation Pty Ltd. (1992) 173 CLR 78 where their Honours said (at 88) -

"if the correctness ... of advice given to the client is a live issue for determination ... the erstwhile legal adviser should not sit. A fortiori if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective, wise, reasonable or appropriate."

The passage quoted has no application to the present case. The trial did not call for a determination of the correctness of the advice given to Mr. Khan or of the appropriateness of the course of conduct suggested by his Lordship. The making of the submission to the magistrate was simply an exercise of the petitioner's rights and stood outside the conduct of the trial. In the course of the trial, his Lordship was not called upon to form any view as to the quality or correctness of the views he had expressed to Mr. Khan. That, in our view, is a powerful, if not a decisive, consideration.

In all the circumstances, it cannot be said that there was a danger that the trial was affected by bias or that a fair-minded observer, knowing the facts, would apprehend or suspect that the trial was affected by bias. And, at the end of the day, we have a trial which appears in all respects to have been conducted fairly and impartially.

Other grounds of appeal

We can deal very briefly with the other grounds of appeal.

1. Failure to give a complete direction on lies told by the petitioner

We agree with the reasons given by the Court of Appeal for holding that the directions given on this point were adequate in the circumstances of this case. True it is that there was no explanation of hypotheses for lying other than consciousness of guilt. But the directions made it plain that the lies must proceed from a realisation of guilt. An explanation of alternative hypotheses might well have served to highlight the significance of the petitioner's false statements to the police.

2. Inadequacy of the direction on good character evidence

The trial judge did not, as he should have done, direct the assessors that the petitioner's good character was relevant to the question of guilt and also to her credibility. His Lordship referred, however, to the evidence of the two character witnesses and concluded his reference by saying-

"you've heard [the evidence], it goes to the character of Mrs. Koya and [it is for] you to assess it and for it to assist you".

In response to the judge's invitation to counsel to draw his attention to any omission in the summing-up, counsel for the petitioner did not seek a direction on this point as, in our view, he should have done. In the light of our assessment that the circumstantial evidence was "overwhelming", to adopt the Court of Appeal's description, we consider that their Lordships were correct in applying the proviso to s.23 of the Court of Appeal Act.

3. Misdirection on previous inconsistent statement by prosecution witnesses

The submission is that the judge failed to direct the assessors that out-of-court statements by witnesses do not amount to evidence on which the assessors could make a finding of fact. The trial judge did not expressly do so. His instructions did, however, convey the message that the out-of-court statements were to be looked at simply for the purpose of evaluating the in-court evidence of the relevant witnesses. He began by cautioning the assessors to be careful when assessing out-of-court statements. He then told the assessors not to "attribute to them more weight than they deserve", a statement relied upon for the petitioner. This statement was followed by a series of comments, the thrust of which was that an out-of-court statement is to be treated as calling for close scrutiny of the in-court evidence of the witness. That, we consider, is the way in which the assessors would have understood his Lordship.

As the Court of Appeal pointed out, the only witness whose evidence in court was not more damaging to the petitioner than his out-of-court statement was Mr. Ali. The effect of that out-of-court statement was simply to raise a question about the accuracy of a minor aspect of Mr. Ali's evidence in court, namely his denial that Mr. Naise was at the shop until 6.40 p.m. as he claimed to have been. The discrepancy between the in-court and out-of-court statements of Mr. Ali was insignificant in this respect and of no account.

4. Misdirection as to case of circumstantial evidence

This ground must be rejected for the reasons given by the Court of Appeal.

5. Evidence of time at which fax machine ceased to operate

The evidence was left to the assessors to give whatever weight to it they thought fit in circumstances in which there was no evidence as to whether the time mechanism had been operating accurately. The evidence was of little significance and the prosecution case did not depend upon acceptance of this. There was unchallenged evidence that the fire had begun at about that time. Smoke was seen coming out of the ventilators at about 7.05 p.m.

6. Appeal against sentence

The argument that a custodial sentence should not have been imposed on account of the petitioner's age, circumstances and good character has only to be stated to be rejected. The gravity of the crime, the evident premeditation involved and the fraudulent object in view as well as the consequential risk to the lives and property of others called for the imposition of a custodial sentence. We see no reason to disagree with the term imposed by the majority in the Court of Appeal.

We add that it has not been suggested that his Lordship's discussions with Mr. Khan related in any way to considerations relevant to sentence.

The orders of the Court are -

1. Application for special leave to appeal granted.

2. Appeal against conviction dismissed.

3. Appeal against sentence dismissed.

Sir Timoci Tuivaga

Lord Cooke of Thorndon

Sir Anthony Mason

Solicitors:

Mr. H. A. Shah, Lautoka, for the Appellant
Office of the Director of Public Prosecutions, Suva, for the Respondent

Cav0002/97