Adeang v Director of Public Prosecutions [1989] NRSC 2; [1980-1989] NLR (9 June 1989)

[1980-1989] NLR
[Ed – No page no. in original

IN THE SUPREME COURT OF NAURU
(Civil Jurisdiction)

No. 7 of 1988

BETWEEN

KENNAN ADEANG
of Nauru, Member of Parliament
Applicant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
First Defendant

AND

SUSHIL CHANDRA CHATURVEDI
of Nauru, Resident Magistrate
Second Defendant

Date of Hearing: 7/11/88
Date of Judgment: 9/6/89

Kaierua for Applicant
Sharma for Director of Public Prosecutions

JUDGMENT OF DONNE, CHIEF JUSTICE

This is an application for a writ of certiorari against the first and second defendants for alleged irregularities at the hearing of certain criminal proceedings involving the applicant wherein he was convicted of common assault.

Briefly, the charge of common assault arose out of an incident at Uaboe during a meeting there of a Commission known as the Commission of Inquiry into the Rehabilitation of the Worked-out Phosphate Lands in the Republic of Nauru. The applicant became indignant at the presence of the Commission in his district and in the process of stressing his indignation, he acted in such a way towards the interpreter of the Commission which resulted in his being found guilty of common assault and convicted thereof. He was convicted of other charges, but, it is the conviction of assault only that forms the basis of this application.

Counsel for the defendants submitted that certiorari was not available to the Applicant. The point was not argued in reply, but, such failure in the circumstances cannot be deemed to be a concession and the point must be considered. Certiorari may be had in either civil or criminal proceedings. It is an order commanding proceedings to be removed from an inferior Court into a superior Court for review. Certiorari will lie for:

"(1) Some defect or informality apparent on the fact of the proceedings, if certiorari is not taken away by statute.

(2) Want of jurisdiction, arising from (a) the character and constitution of the tribunal, e.g. interest of the Judge of the inferior Court; (b) nature of the subject-matter of the inquiry; (c) the absence of certain essentials preliminary to the inquiry; (d) some fact arising in the inquiry which ousts the jurisdiction of the inferior Court; (e) the omission of an essential element of jurisdiction.

(3) Excess of jurisdiction such as the judgment or sentence being ultra vires.

(4) Where a conviction has been obtained by fraud."

Except when applied for on behalf of the State, certiorari is not a writ of course. Even in cases of breach of natural justice, it is discretionary. In deciding the exercise of discretion, matters which appear to require consideration are:

(a) the nature of the irregularity with particular reference to whether any different result would have been arrived at. It is not for every irregularity in the course of a hearing that a certiorari would be granted. The question may be – is the error involved so contrary to the general laws of the land or so vicious in the legal sense as to violate some fundamental principle of justice?

(b)The conduct of the applicant;

(c) The existence of alternative remedies. The existence of a right of appeal does not deprive the Court of power to award certiorari. There is no obligation on the applicant to exhaust his other rights and even if he does, he has not waived.

(d) R v North Ex parte Oakey (1927) 1 KB 491. However, it is a total misconception of the function of the prerogative writs to think they can be used in all cases as additional to the right of appeal. I adopt the view expressed by Speight J in the New Zealand case of Wislang v Medical Practitioners Disciplinary Committal and Ors. (1974) 1 NZLR 29 at p 44 (lines 4 to 20).

"... the existence of appeal rights is a matter to be taken into account, along with the "viciousness" of the breach in deciding whether or not to exercise discretion. Much must depend on the nature of the alternative remedy. Was it and is it an opportunity to reventilate the whole matter with all one's original rights preserved, or is it something less than that? If it is the former, then it may be a reason for not exercising the discretion in favour of the applicant. The modern use of the writ of certiorari has commonly been to obtain relief from allegedly wrongful decisions where there is no effective way of appealing or otherwise righting a manifest injustice. ........................ Where there is other and full remedy available, the strained and sometimes artificial requirements of the procedures in the field of prerogative writs is a cumbersome way of dealing with something which may be better handled by a right of general appeal."

The learned Judge then observed that when a man is entitled to a fair trial and a right of appeal, his rights are not secured by an unfair trial and a fair appeal, for then he has one proper hearing, not two. He concludes on this point with – "On discretion, the question will be 'how good is the alternative remedy?'" (line 47).

In this case, the applicant seeks his order on two grounds, breach of the rules of natural justice and errors of law on the face of the record. He claims the rules have been breached in three respects:

1. That the learned Magistrate so conducted the case against him in a manner which allowed a conclusion that there was a real likelihood of bias.

2. Discretion in favour of the applicant's application to hear the charge by way of preliminary hearing under section 160 of the Criminal Procedure Act 1972.

3. That the learned Magistrate did not give in open court the reasons for his decision.

The errors of law alleged are that:

1. The learned Magistrate misdirected himself on the law as to justification as a defence to the charge.

2. The learned Magistrate misdirected himself on the question of provocation as a defence.

3. The learned Magistrate misdirected himself on the need for corroboration.

4. The learned Magistrate wrongly held the Commission of Inquiry had lawful authority to hold the meeting on the lands in question.

Bias

The applicant's case on bias is based on the fact that the complainant in the assault prosecution is employed as a Probation Officer. He is an officer of the Court "under the supervision of the Resident Magistrate." That relationship, he contends, should have disqualified the Magistrate from adjudicating in the matter.

The test to be applied where bias is alleged on the part of a judicial officer has been considered fully in two strong divisional Courts in England. They come to the conclusion that the proper test is whether there is a real likelihood of bias and that a reasonable suspicion of bias is not enough. In R v Camborne Justices, Ex parte Pearce (1955) 1 QB 41; (1954) 2 All ER 850, Slade J, delivering the judgment of the Court - Lord Goddard LCJ, Cassels J, and himself said:

"The question which this Court has to decide is: 'What interest in a judicial or quasi-judicial proceedings does the law regard as sufficient to incapacitate a person from adjudicating or assisting in adjudicating on it upon the ground of bias or appearance of bias?' It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification. In such a case, the law assumes bias. What interest short of that will suffice? In the present case, it is claimed that a reasonable suspicion of bias is enough. It is true that there are dicta and passages to be found in judgments which lend some colour to this claim, but the authorities as a whole are almost overwhelming in support of the requirement that, to use the well-known words of Blackburn J in Reg v Rand, 'a real likelihood' of bias must be proved to exist before proceedings will be vitiated on the ground that a person who has taken part or assisted in adjudicating upon them was in law incapacitated by interest from doing so." (ibid 47; 853).

In R v Grimsby Borough Quarter Sessions Ex parte Fuller (1956) 1 QB 36; (1955) 3 All ER 300, the Court consisted of Lord Goddard LCJ, Ormerod J (as he then was), and Glyn-Jones J. The Court approved and applied the test adopted in R v Cambourne Justices, Ex parte Pearce.

In a New Zealand case Healey v Rauhini and Anor. (1956) NZLR 945 Hutchinson J, at p.951 (lines 30 to 55) said:

"I am of the opinion that, where the bias suggested arises from predetermination and not from pecuniary or proprietary interest, the weight of authority now is that the test to be applied is that of real likelihood of bias, and that reasonable suspicion of bias is insufficient.

But what is bias? I have already spoken of it as arising from predetermination, in which word I emphasise the "pre". I agree with Mr Tompkin's submission that bias, speaking generally, involves the mind of a judicial person being turned in a certain direction by something antecedent to his entering upon the hearing of the case. The evidence of bias may appear in the course of the hearing; but, before bias is established, in my opinion, speaking generally as before, the evidence must show a mind leaning in a certain direction before the hearing of the case commence. I have said, "speaking generally", because I can imagine that there may possibly be special cases in which that causes a turning of the mind amounting to bias may be contemporaneous with the hearing of the case; but it must, in my opinion, be outside the hearing."

It is submitted here that because of the formal connection between the learned Magistrate and the complainant by reason of the latter being an officer of the Court under the former's supervision, the Magistrate was in law incapacitated from adjudicating on the charge of assault upon the officer; there was, in such circumstances, a real likelihood that there would be a bias on the part of the Magistrate. I consider such a submission to be untenable. I have referred to the relationship between the Magistrate and the Probation Officer as a "formal" one. That is indeed what it is. The Probation Officer is an officer of the Court and since the Judiciary is under the control of the Chief Justice, the same argument used in respect of the adjudicator Magistrate could be availed of should the adjudicator be the Chief Justice – the relationship of the Probation Officer to the Magistrate is no different from his relationship to the Chief Justice. I am satisfied that a formal and perhaps nominal connection between a person adjudicating and a complainant or indeed a defendant is not by itself a disqualifying factor. It would be in fact a negation of justice if, because of a formal connection to the judiciary, a person cannot receive the protection of the law.

Section 160 Criminal Procedure Act 1972

The relevant parts of section 160 read as follows:

"160 (1) If before or at any stage of a trial by the District Court before the accused is required to make a defence, it appears to the Court that the case is one which ought to be tried by the Supreme Court or if before the commencement of the trial an application in that behalf is made by the prosecutor or the accused that it shall be so tried, the District Court may, if it thinks fit, not proceed with the trial but in lieu thereof hold a preliminary inquiry in accordance with the provisions of Part VII of this Act.

(2) No appeal shall lie from the decision of the District Court upon any application made under this section."

The applicant's pleader applied to the District Court before the commencement of the trial for the holding of a preliminary inquiry pursuant to this section. He submitted that such a procedure was in the public interest in view of the status of the applicant, the effect of a conviction if such should be entered and the necessity for more time to prepare the defence. He argued in this Court that if a defendant requires the Court to treat the matter by way of preliminary inquiry under the section, the Court must do so. That submission is quite wrong. The Court clearly has a direction in the matter. It "may if it thinks fit" either proceed with the trial or hold a preliminary inquiry. In considering this question of the exercise of discretion in these proceedings, since this is not an appeal, the Court cannot interfere as an appellate authority to override the decision to exercise the discretion in a particular way, but, only as a judicial authority concerned to see whether the Court in exercising the discretion has contravened the law by acting in excess of its power. It is not for this Court to substitute its view as to the exercise of the discretion. It must consider whether the principles upon which the discretion is exercised are proper ones; has the Court directed itself properly in law; have irrelevant matters been excluded in considering the matter, has attention been given to all matters which must be considered; is the exercise of discretion reasonable.

On consideration of the matter, I cannot find that the learned Magistrate exceeded his powers in refusing the Applicant's request. He clearly has that power. Nor can I hold that his reasons for declining the application were unreasonable. On the score of public interest, he was entitled to reject the argument as to the status of the applicant requiring that the trial should be transferred to the Supreme Court. In the eyes of the law, all people are equal and public interest could not be properly served by granting the application. On that ground, as the Magistrate said – "it would be a wrong precedent". So, too, was the Magistrate entitled to conclude that there was no complex issues of law involved. This case involved the charge of common assault which was rightly regarded as a minor offence and that fact was a proper one to be considered in the question of discretion. As I have said, this proceeding is concerned with the exercise of power by the Magistrate and I cannot find his exercise of his discretion against the applicant here to be unreasonable and in excess of his jurisdiction.

One further point must be mentioned. Subsection 2 of the Section provides that no appeal lies from the decision of a Magistrate under the Section. This clearly indicates that the Legislature required the decision to be final in the first instance. While, in my view, it cannot preclude an investigation of the decision by certiorari proceedings, that must be concerned with the question of jurisdiction only.

The delivery of the decision

The applicant complains that the learned Magistrate did not give reasons for his judgment in open Court. Section 115 of the Criminal Procedure Act 1972 requires that the judgment or the substance of it is to be explained in open Court. The record shows that the substance of the judgment was "announced in open Court" and "explained to the parties". This complaint is without foundation.

Having dealt with the above allegations of breach of natural justice and find them unsustained, I conclude there was a fair trial of the applicant in this case.

Errors of Law

I now turn to the errors of law alleged to be on the face of the record. None of these errors go to jurisdiction and if established, could have been corrected on the remedy of appeal provided by law by reversal of the order of conviction and substituting one of acquittal. It seems to me that these alleged errors could have been better handled by way of the right of general appeal available to the applicant and in view of the applicant's failure to prove his claim based upon alleged breaches of natural justice, I consider it could be argued that the Court would be justified in refusing to grant certiorari even if the errors or any of them were established.

Dealing firstly with the defence of justification which was rejected by the learned Magistrate. The argument by the applicant was that the complainant was a trespasser and the applicant had in law the right to remove him. He sought support from section 31 of the Criminal Code Act. The Magistrate quite properly ruled that the defence therein were not available to him. Again his defence under section 277 of the Code cannot assist him since in order to avail himself of it, it must be shown that the premises from which he claimed the right to evict the complainant must either be in his peaceable possession, or under his control or management. The Magistrate found as a fact the complainant was not trespassing and that the applicant had admitted that to be so. He concluded that the applicant was not acting in defence of his property. There is ample evidence to allow such a conclusion. Consequently, I am satisfied the Magistrate correctly applied the law in his finding on the defence of justification.

On the defence of provocation, the Magistrate held that as there was no justification in law for the assault on the complainant the defence of provocation did not arise. How the defence of provocation could have been considered is hard to understand. Before provocation can be raised, there must be shown provocation by the complainant. There is not a shred of evidence to establish provocation by him. The applicant, in his evidence, denied threatening or touching him. In fact, he gave no evidence of the complainant's demeanour. No other evidence was adduced which indicated even the slightest provocative act by the complainant either by word or gestures. There is no evidence of a sudden temporary loss of self-control by the applicant. The defence of provocation had no merit whatsoever and was properly rejected.

The next error of law is that the learned Magistrate misdirected himself on corroboration. On page 12 of his decision, he says:

"On a charge of assault, the evidence of the alleged victim does not require corroboration."

That is a correct statement of the law. If authority is needed to support it, see R v Linze; R v O'Driscoll 40 Cr App R 177. Put simply by Goddard LCJ, the position in law stated is as follows:

"The person who was assaulted here was Constantinou. He gave evidence and the evidence did not require to be corroborated; there was no requirement either as a rule of practice or of law. If a man comes before a Court and says: 'This man hit me in the face 'or' stabbed me, there is no rule of law that his evidence should be corroborated."

The Magistrate was entitled to prefer the evidence of the complainant and reject the evidence of the applicant. There is nothing wrong in law with him so doing. It is true that he labours the point of corroboration quite unnecessarily in desiring to emphasise why he prefers the complainant's evidence. He, in the result, reiterates that the complainant's evidence is that of "a wholly reliable witness not in need of corroboration". On this conclusion, he cannot in law be faulted.

Finally, I can see no error in law in respect of the conviction of assault in the Magistrate's finding, that the Commission of Inquiry was not trespassing in sitting as it was on the land acknowledged to be between Nos. 225 and 228 (the applicant acknowledged they were not trespassing on his land). The question for the Court to consider in the charge of assault was whether there was justification for the applicant in acting as he did in relation to the complaint. Whether the Commission were lawfully entitled to hold its meeting was relevant as far as any charge of contempt was concerned but it was not relevant in a consideration of the applicant's justification for assaulting the complainant. The simple fact was that the complainant was not on the applicant's land; this fact gave the applicant no right to take steps to evict him from it. The Commission's status was quite irrelevant in the consideration of this matter.

I have therefore come to the conclusion that there are no grounds which would justify an order removing by way of certiorari the proceedings in question to this Court and the application is refused.

CHIEF JUSTICE

Solicitor for Applicant: Robert Kaierua, Nauru
Solicitor for Defendants: Secretary for Justice, Nauru