Gates v Takiveikata; State v Takiveikata [2008] FJSC 16; CAV0015.2007S & CAV0016.2007S (24 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO.CAV0015 OF 2007S
(Fiji Court of Appeal No. AAU0065 of 2004S)

BETWEEN:

ANTHONY HAROLD CUMBERLAND THOMAS GATES
Petitioner

AND:

RATU INOKE TAKIVEIKATA
1st Respondent

AND:

THE STATE
2nd Respondent

AND:
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CRIMINAL APPEAL NO.CAV0016 OF 2007S
(Fiji Court of Appeal No. AAU0065 of 2004S)

BETWEEN:

THE STATE
Petitioner

AND:

RATU INOKE TAKIVEIKATA
Respondent

Coram : The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Kenneth Handley, Judge of the Supreme Court
The Hon. Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Friday, 18 July 2008, Suva

CAV0015 OF 2007S

Counsel: Mr. C.B. Young for the Petitioner
Mr. A. Naco for the 1st Respondent
Ms. A. Prasad for the 2nd Respondent

CAV0016 OF 2007S

Counsel: Ms. A. Prasad for the Petitioner
Mr. A. Naco for the Respondent

Date of Judgment: Thursday, 24th July 2008, Suva

JUDGMENT OF THE COURT

Course of the Proceedings

[1] The Court has before it two petitions for special leave to appeal from a judgment of the Court of Appeal dated 25 June 2007. The Court of Appeal quashed verdicts of guilty on four charges entered against Ratu Inoke Takiveikata (‘the accused’) by the High Court on 24 November 2004.

[2] The accused was found guilty at a trial on four of the five counts with which he had been charged. He was acquitted on one count (Count5) of incitement to mutiny, but was convicted of three counts of incitement to mutiny (Counts 1 to3) and one count of aiding soldiers in an act of mutiny (Count 4). Incitement to munity is an offence under s55(b) of the Penal Code (Cap 17), while aiding soldiers in an act of mutiny is an offence against s 56(a) of the Penal Code (Cap 17).

[3] The trial before Gates J. and five assessors commenced on 1 November 2004 and concluded on 24 November 2004. The assessors returned their opinions following the trial judge’s summing up and after what the Court of Appeal described as a "relatively brief retirement". The assessors’ decisions were as follows:

Count 1 – 4 to 1 - in favour of acquittal.

Count 2 – 3 to 2 - in favour of acquittal.

Count 3 – 3 to 2 - in favour of conviction.

Count 4 – 5 to 0 - in favour of acquittal.

Count 5 – 5 to 0 - in favour of acquittal.

[4] After considering the matter overnight, Gates J. delivered judgment on 24 November 2004. As already noted, he acquitted the accused on Count 5, but convicted him on Counts 1 to 4. Gates J. sentenced the accused to concurrent terms of life imprisonment on Counts 1 to 3 and imposed a concurrent term of 18 months imprisonment on Count 4.

[5] On 25 November 2004, the day after the verdicts were entered, a Mr. Brodie telephoned the accused’s solicitors and recounted a conversation which he claimed had taken place at a cocktail party at the French Embassy on Bastille Day, 14 July 2004. Mr. Brodie alleged that he and his wife had had a conversation with the trial Judge, in the course of which the latter said words to the effect that he would ensure that the accused "is put away".

[6] Mr. Brodie and his wife swore affidavits on the same day, giving their accounts of the alleged conversation with the trial Judge.

[7] On 26 November 2004, the solicitors for the accused filed a petition of appeal in the Court of Appeal. The petition identified a number of grounds of appeal against conviction and sentence. Ground (f) was as follows:

"that in all the circumstances there has been a miscarriage of justice by reason of pre-judgment by the trial judge in that on the 14th of July 2004 at a time when the trial judge had management of the trial of the appellant he allegedly represented to Donald and Margaretha Brodie at a function held at the residence of the French Ambassador that in respect of the appellant: "I am going to put him away." The appellant relies on the Affidavits of Donald Ross Brodie and Margaretha Helene Brodie sworn on the 25th of November 2004".

[8] On 14 December 2004, the President of the Court of Appeal, Ward P., wrote to the Solicitor-General. The letter noted that the accused’s appeal had been listed on 3 December 2004 in order to hear his application for bail pending appeal. The letter also noted that the accused had filed the affidavits of Mr. and Mrs. Brodie. The letter continued as follows:

"I ordered that the judge should have an opportunity to reply, if he so wished, before I could consider the matter. Ms Prasad, appearing for the State at the application, advised the Court that she had, quite properly, already asked you to represent the interests of the judge.

I therefore ordered that Gates J. should have 14 days to file any affidavit or submission in reply".

[9] The trial Judge swore an affidavit on 21 December 2004 (the time for filing the affidavit apparently having been extended). The affidavit acknowledged that a conversation had occurred between the trial Judge and Mr. and Mr. Brodie at the French Embassy on 14 July 2004. However, the trial Judge gave his account of the conversation as follows:

"We exchanged pleasantries, the details of which I do not now recollect. I did not say anything about the conduct to date of the case by the defence, nor about any pending applications. Nor did I express a view on "a form of traditional Fijian trial" or as to any punishment I was minded to pass in the event that Rt Inoke were to be convicted.

It was Mr. Brodie who raised the topic of Rt Inoke’s trial. He asked whether charges Rt Inoke faced were serious. I said he faced several different charges but the courts had in the past considered such offences as serious. Much would depend upon the facts of the case and how the evidence unfolded I said. I then left."

[10] On 14 March 2007, the accused’s solicitors filed a motion in the Court of Appeal seeking leave to adduce fresh evidence in the appeal. The State opposed the application. The trial Judge was represented at the hearing of the motion by counsel instructed by the Interim Attorney-General.

[11] On 23 March 2007, the Court of Appeal granted the accused leave to adduce further evidence on the appeal.

[12] The hearing of the appeal took place on 14 June 2007. Mr. and Mrs. Brodie gave evidence and were cross-examined by counsel for the State. The trial Judge also gave evidence and was cross-examined by counsel for the accused. Counsel appearing for the trial Judge, Mr. Young, sought leave to cross-examine Mr. and Mrs. Brodie, but the Court refused that application. However, the Court permitted Mr. Young to remain at the bar table and to make submissions on behalf of the trial Judge.

[13] The Court of Appeal identified in its judgment 14 matters that, in their view,
assisted in determining what had been said during the conversation at the French Embassy. The Court stated that it had been impressed with the forthright way Mr. and Mrs. Brodie had given their evidence. The Court made its findings on the critical factual issue in the following terms:

"We agree that in general terms it is unlikely that a judge would say what was alleged and that he was at a disadvantage being faced with allegations of what was said at a cocktail party some 5 months earlier. We accept that no improper motive was suggested for the Brodies’ complaint, or for the Judge’s remarks. Taking all these matters into consideration and bearing in mind the seriousness of the allegations we are satisfied that the Judge did say to the Brodies "I will put him away" as they claim".

[14] The Court added the following comment:

"Finally as to the facts relating to the allegation of bias there is the reversal by the Judge of the assessors’ opinion that the accused was not guilty of Counts 1, 2 and 4. In Fiji the verdict in a criminal charge is that of the judge and not the assessors and he may override their opinions. This is done from time to time but seldom where the opinions are for acquittal".

[15] After discussing the legal test for apprehended bias, the Court expressed its conclusion as follows:

"We are satisfied that, even without considering what actually happened at trial, any fair minded lay observer who knew that the Judge had said to the Brodies in relation to the up-coming trial of the appellant "I will put him away" would apprehend that the Judge might not bring an impartial and unprejudiced mind to the trial of the appellant. There was certainly the appearance of a possibility of an absence of an impartial mind on the part of the Judge. In our view this then results in his disqualification to conduct the trial and so subject to what we say next a new trial on Counts 1, 2, 3 and 4 must be allowed."

[16] The court rejected a submission that it should enter a verdict of not guilty on all charges. Instead, it quashed the verdict of guilty on Counts 1 to 4 and ordered a new trial on each of those counts.

The Petition of the Trial Judge

[17] The trial Judge ("petitioner") filed a petition seeking special leave to appeal from what was said to be paragraph 8 of the judgment of the Court of Appeal in which the Court stated that it was:

"satisfied that the Judge did say to the Brodies "I will put him away" as they claim".

[18] The accused was named as the 1st respondent to the petition and the State as the 2nd respondent.

[19] The grounds of the petition were as follows:

"(a) That the Court of Appeal erred in law as there was a breach of natural justice in that the Petitioner’s counsel was not given the opportunity to cross-examine Mr. & Mrs. Brodie.

(b) That the decision was perverse in that no proper reasoning was given by the Court as the basis of its conclusion that the Court was satisfied that the Petitioner "did say to the Brodies "I will put him away" as they claim".

The relief sought by the petitioner was "to vacate the judgment of the Court of Appeal". The petition did not address the consequences for the accused of such an order.

[20] The petitioner’s written submissions, prepared by Mr. Young, contended that the:

"decision of the Court of Appeal in making a finding of bias on the basis of choosing one version of the fact over another and the manner in which such a decision was arrived at, raises either:

(a) a far-reaching question of law; [or]
(b) a matter of great general or public importance".

Alternatively, so the petitioner argued, the "lack of proper reasoning" by the Court of Appeal had resulted in a grave and substantial injustice to the petitioner.

[21] Surprisingly, the petitioner’s written submissions did not address the question of his standing to seek special leave to appeal to this Court. Nor did they address the nature and scope of the Court’s power to set aside a finding of fact in a criminal case on the petition of a non-party. However, these points were taken in written submissions belatedly filed in this Court on behalf of the accused. The issues of standing and power became the focus of the oral argument on the hearing of the petition for special leave to appeal.

[22] At the conclusion of oral argument, the Court announced that it proposed to dismiss the petition seeking special leave to appeal. We stated that we would provide written reasons for the order in due course. These are our reasons.

[23] Section 122(1) of the Constitution provides that the Supreme Court has exclusive jurisdiction to:

"hear and determine appeals from all final judgments of the Court of Appeal".

Section 122(3) of the Constitution gives the Supreme Court power to:

"review, vary, set aside or affirm decisions or orders of the Court of Appeal and may make such orders .. .. .. .. as are necessary for the administration of justice".

[24] There are two fundamental difficulties facing the petitioner in his petition for special leave to appeal to this Court. The first is that, as Mr. Young accepted in oral argument, the petitioner is "agnostic" as to the outcome of the criminal proceedings against the accused. The petitioner does not seek to set aside the order made by the Court of Appeal quashing the accused’s convictions, nor the order for a new trial. Despite some ambiguity in the petition itself, the petitioner seeks only to set aside the finding that the words alleged to have been said on 14 July 2004 were in fact said by him. Mr. Young’s acknowledgement that this is the extent of the relief sought by the petitioner was entirely proper. Otherwise, the trial Judge in a criminal case would be seeking to reinstate a conviction set aside by an intermediate appellate court.

[25] It will be seen that s122(1) of the Constitution confers jurisdiction on the Supreme Court to hear and determine appeals from final judgments of the Court of Appeal. In its appellate jurisdiction the Supreme Court has power to review, vary, set aside or affirm decisions or orders of the Court of Appeal: s122(3). The Supreme Court’s power in a criminal appeal does not extend to setting aside a factual finding, made by the Court of Appeal, where the petitioner was not a party to the proceedings and does not challenge any decision or order made by the Court of Appeal.

[26] An appeal is:

"the formal proceeding by which an unsuccessful party seeks to have the formal order of the court set aside or varied in [his] or [her] favour by an appellate court".

Commonwealth of Australia the Bank of New South Wales [1950] AC 235, 294 (PC). As the Privy Council made clear in that case, the word "decision" is apt to cover "judgments, decrees, orders and sentences". Their Lordships went on to say (294) that the natural and obvious meaning of the word "decision" is "decision of the suit by the Court". They also drew a distinction between the formal expression of an adjudication in a suit and the statement by a judge of the grounds for an order.

[27] A challenge confined to a particular finding of fact made (in this case) by the Court of Appeal does not amount, without more, to a challenge to the Court’s decision or order. It represents merely a challenge to a ground for the decision or order. To put the matter another way, a finding of fact made because a court prefers the evidence of one witness to that of another does not, of itself, adversely affect the right of the witness whose evidence is not accepted.

[28] The concluding words of s122(3) of the Constitution, which confer power on the Court to make such orders "as are necessary for the administration of justice", do not extend the powers of the Court in relation to a challenge to findings of fact, which is made independently of any challenge to an order or decision of the Court of Appeal. The concluding words of the sub-section, as the illustrations given in its text demonstrate, enable the Court to make orders consequential on the exercise of the power to review, vary, set aside or affirm decisions or orders of the Court of Appeal.

[29] The second difficulty confronting the petitioner is related to the first. In Ratu Rakuita Vakalalabure v. The State (CAV0003 of 2004S, 1 May 2006), the Supreme Court addressed the principles governing standing in the context of an application by a Judge of the High Court to intervene in a petition for leave to appeal. The petition had been brought by a petitioner whose conviction at a trial had been affirmed by the Court of Appeal. The Judge seeking to intervene had presided at the trial. She sought an order that one member of the Supreme Court bench be disqualified by reason of what she claimed to be that member’s personal antipathy towards her.

[30] The Supreme Court in Ratu Rakuita Vakalalabure observed ([85]) that the application to intervene involved two questions: whether the trial Judge had any standing in the matter and, if so, whether in the exercise of the Court’s discretion, leave to intervene should be granted. The Court pointed out ([86]) that the principles governing standing in cases involving challenges to the legality of administrative action tend to be more liberal than those applying to a non-party who seeks to become involved in civil litigation between other persons or in criminal prosecutions. Their Lordships said ([109]) that the authorities showed that:

"The circumstances under which non-parties will be given leave to intervene in cases that do not directly concern their legal rights are more circumscribed than those which will apply in applications for judicial review. Moreover, the constraints upon such intervention are likely to be greater, for sound public policy reasons, in criminal cases than they are in civil cases".

[31] The Court adopted ([110]) the observation of the Fiji Court of Appeal in Sukh Deo Prasad v The Attorney-General (Civil Appeal ABU0029 of 1997, 13 August 1997) that, in order for a non-party to obtain leave to intervene in an appeal, the applicant must be:

"interested in, or aggrieved or prejudicially affected by the judgment or order."

[32] Their Lordships characterised ([111]) the approach by courts to applications to intervene in criminal appeals as "even more cautious", reflecting the:

"need to avoid persons who are not parties to criminal proceedings, but have strong emotional interests in their outcome, such as the victims of crimes, or their relatives, pressing for the right to participate directly in the trial process. The interests of such persons are represented by the Director of Public Prosecutions, who brings criminal charges in the name of the State".

[33] As we have explained, the petitioner does not seek to challenge the orders made by the Court of Appeal. Nonetheless, he wishes to have set aside the crucial factual finding which provided the basis for the Court’s orders. To adapt the comment made by the Northern Territory Court of Appeal in The Queen v GJ [2005] NTCCA 20, in a passage cited in Ratu Rakuita Vakalalabure ([119]), there is no issue joined, nor could there be any issue joined, between the petitioner, the State and the accused:

"When an accused is put on his trial in accordance with the time-honoured formula repeated in every criminal trial in the presence of a jury the issues are joined between the [State] and the accused. It is the [State] which represents the interests of the community .......... and no one else".

[34] It follows that, even if the State had not filed its own petition seeking special leave to appeal against the judgment and orders of the Court of Appeal, the petitioner would lack standing to challenge the finding relating to the terms of the conversation of 14 July 2004. The petitioner is essentially in the same position as any witness whose evidence has not been accepted by a court. While he may feel aggrieved by the court’s refusal to accept his evidence on a factual issue, he does not have a sufficient interest in a criminal proceeding to give him standing to challenge the finding of fact made by the court.

[35] As it happens, the State has filed its own petition for special leave to appeal against the judgment and orders of the Court of Appeal in this case. We have already pointed out that the petitioner does not seek to persuade this Court to set aside the orders made by the Court of Appeal. Nonetheless, he wishes to attack a finding that provided the factual foundation for the ultimate conclusion reached by the Court of Appeal. As Mr. Young accepted in oral argument, the petitioner wishes to advance precisely the same argument on that factual question as the State seeks to put forward in support of its petition. No reason has been given as to why, in the circumstances of this case, the State cannot adequately represent any interest the petitioner may have in challenging the finding.

[36] Mr. Young referred to several authorities in the course of his submissions. None, however, assists the petitioner. Mr. Young relied on certain passages from Professor R.E. Flann’s work, Judicial Disqualification: Recusal and Disqualification of Judges (1996) reproduced in the judgment in Ratu Rakuita Vakalalabure. Those passages, however, address the question of whether non-parties can have a legitimate interest in raising an allegation of judicial bias. There is, of course, no question here that the accused had standing to raise that question before the Court of Appeal.

[37] Mr. Young’s citation of the Indian case of Re K ([2004]) LRC 622 was not in point. That case concerned the very limited circumstances in which a court may order "irrelevant and unjustifiable" passages expunged from a judgment. The factual findings made by the Court of Appeal in the present case were not irrelevant. They went to the heart of the accused’s claim that the trial had miscarried because of a reasonable apprehension that the trial Judge could not bring an impartial mind to the matters in issue in the criminal trial.

[38] Mr. Young also submitted that the petitioner had been permitted to intervene in the Court of Appeal and therefore had standing to be heard on a petition for special leave to appeal to this Court. No order permitting the petitioner to intervene was made by the Court of Appeal. The letter of 14 December 2004 from the President of the Court of Appeal to the Solicitor-General (referred to above) merely gave the petitioner the opportunity, if he wished, to file evidence in the Court of Appeal. That Court permitted the petitioner’s counsel to appear and make submissions but not to cross-examine. Whether it was appropriate to take these steps is not a matter we need to address. It is enough to say that the petitioner was never made a party, whether as an intervener or otherwise, to the appeal heard and determined by the Court of Appeal.

[39] It follows that the petitioner’s petition for leave to appeal must be dismissed.

The State’s Petition

[40] The State’s petition for special leave to appeal was based on what was said to be errors by the Court of Appeal in reaching a conclusion "in regard to alleged bias" by the trial Judge. The errors were said to consist of taking into account irrelevant considerations and by giving excessive weight or insufficient weight to particular considerations. The State did not file any written submissions in support of its submissions, apparently because of an oversight. The oral submissions advanced by Ms Prasad on behalf of the State adopted, in substance, the written submissions filed on behalf of the petitioner (the trial Judge) in the other matter before the Court, insofar as those submissions attacked the finding of fact made by the Court of Appeal.

[41] Three points should be noted. First, it is clear from the judgment of the Court of Appeal that, contrary to what is said in the State’s petition, the Court of Appeal did not find that the trial Judge was actually biased. The conclusion reached by the Court of Appeal was that:

"any fair minded lay observer who knew that the Judge had said to the Brodies in relation to the up-coming trial of the [the accused] "I will put him away" would apprehend that the Judge might not bring an impartial and unprejudiced mind to the trial".

[42] Secondly, the Court of Appeal made no finding that the trial Judge’s evidence was deliberately false. The Court accepted the "forthright" evidence of the Brodies in preference to the evidence given by the trial Judge. It is an everyday occurrence for a court to be required to choose between conflicting versions of events that took place sometime before. It is very frequently the case that both of the competing accounts are given quite honestly.

[43] Thirdly, the Court of Appeal expressly noted that no improper motive had been suggested for the trial Judge’s comment at the French Embassy.

[44] The unusual feature of this case is that the Court of Appeal made a finding of fact about what was said by the Judge in relation to a pending criminal trial over which he was to preside, after hearing evidence from the Judge himself. There have been other cases where out of court statements allegedly made by a judge have provided the basis for a disqualification application. Ordinarily, the application for disqualification would be made to the judge himself or herself before or at the trial: Vakauta v. Kelly [1989] HCA 44; (1988) 167 CLR 568, 572 per Brennan, Deane and Dawson JJ; Baker v. the Queen (No.2) 70 FCR 1, 7-8, per curiam. Here, the claims relating to the conversation were made only after the trial had concluded. Hence the fact-finding role performed by the Court of Appeal.

[45] When the case is stripped of its unusual feature, it involves a straightforward finding of fact by the Court of Appeal about the disputed terms of the conversation and the application to the fact so found of well-established and uncontroversial principles relating to apprehended bias. The criticisms made by the State of the Court of Appeal’s factual finding do not detract from the advantage enjoyed by that Court in having seen the witnesses give their evidence. There is nothing "glaringly improbable" about the conclusion reached: Fox v. Percy [2003] HCA 22; (2003) 214, CLR 118, [128], [29], per Gleeson CJ, Gummow and Kirby JJ. Nor do the State’s submission raise any issue of principle requiring the consideration of the Supreme Court.

[46] The State argued that the Court of Appeal had wrongly taken into account on the question of apprehended bias the fact that the trial Judge had reversed the assessors’ opinion that the accused was not guilty on three of the counts. However, we read the Court of Appeal’s judgment as merely indicating that the issue of apprehended bias was a live one because the conclusions reached by the trial Judge were unfavourable to the accused. In any event, the Court of Appeal expressed its view on apprehended bias expressly putting aside what had transpired at the trial.

[47] The State also argued that the Court of Appeal gave inadequate reasons for its factual finding. Given that the Court had to choose between two versions of a relatively short conversation, where the parties agreed as to the contents of much of the conversation, the Court’s reasons explain sufficiently why their Lordships preferred the evidence of the Brodies on the disputed point.

[48] For these reasons the petition for special leave to appeal by the State must also be dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:

CAV0015 OF 2007S
Young & Associates, Lautoka for the Petitioner
Naco Chambers, Suva, for the 1st Respondent
Office of the Director of Public Prosecutions, Suva for the 2nd Respondent

CAV0016 OF 2007S
Office of the Director of Public Prosecutions, Suva, for the Petitioner
Naco Chambers, Suva, for the Respondent