In re Application by Herman Joseph Leahy [2006] PGSC 36; SC981 (1 December 2006)

SC981

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR No 34 of 2005

REVIEW PURSUANT TO
CONSTITUTION SECTION 155(2) (b)

APPLICATION BY HERMAN JOSEPH LEAHY

Waigani: Kapi CJ, Cannings J, David J
2006: 25 September, 1 December

NATURAL JUSTICE – bias – reasonable apprehension of bias – circumstances in which a Judge’s alleged previous involvement in a matter before a court can give rise to reasonable apprehension of bias.

COURTS AND JUDGES – application to have Judges of Supreme Court disqualified and a new bench appointed on the ground of reasonable apprehension of bias regarding one of the Judges.

Facts

The police charged the applicant with various criminal charges arising out of matters inquired into by a Commission of Inquiry. The District Court decided that there was insufficient evidence to put him on trial and discharged him. The Public Prosecutor sought to present an indictment against him in the National Court under Section 526 of the Criminal Code. The applicant objected but the National Court refused the objection and accepted the indictment. The applicant applied for review of the National Court's decision under Section 155(2) (b) of the Constitution. That application was heard by the Supreme Court, constituted by three Judges, which reserved its decision. Eight months after the hearing, while the judgment was pending, the applicant filed a notice of motion to have the three Judges disqualified and a new bench appointed on the ground of reasonable apprehension of bias on the part of one of the Judges. It was argued that the Judge in question was the Counsel to the Ombudsman Commission at the time that the Commission of Inquiry referred a number of matters relating to the applicant to the Ombudsman Commission for further investigation; and that the Judge would have had prior knowledge of the allegations against the applicant and that a reasonable person would consider that that Judge may not bring an impartial and unprejudiced mind to the resolution of the questions in issue in the Supreme Court. This is a ruling on the applicant's motion to have the three Judges of the Supreme Court disqualified.

Held:

1. For a Judge to be disqualified from hearing a case on the ground of apprehended bias the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible? (Boateng v The State [1990 PNGLR] 342, PNG Pipes Pty Ltd and Sankaran Venugapal v Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC592 applied.)
   
2. The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.
   
3. General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with that subject matter in a judicial capacity.
   
4. If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge's knowledge and the issues for adjudication in those proceedings, e.g. if the Judge has expressed a prior opinion on the issues for adjudication.
   
5. In the present case, the Judge in question had only a general knowledge of the subject matter of the criminal proceedings against the applicant and had not expressed any prior opinion on those proceedings or on any issues set down for determination in the Supreme Court.
   
6. There was insufficient connection between the Judge's knowledge and the subject matter of the Supreme Court proceedings. Furthermore the matters on which the Judge was required to adjudicate were issues of law and did not involve determination of any questions of fact.
   
7. A party and his counsel have a duty to expeditiously bring an application to disqualify a Judge from dealing with a case, immediately after the facts said to support an alleged suspicion or apprehension of bias are known.
   
8. A Judge has a duty to bring any matter that may give an impression of apprehended bias to the attention of the parties.
   
9. In the present case, a reasonable and fair-minded person knowing all the relevant facts would not have a reasonable suspicion or apprehension that a fair hearing was not possible by the Judge in question. The applicant did not act expeditiously and the Judge did not breach the duty to bring matters concerning an impression of apprehended bias to the attention of the parties. No good reason existed for the Judge to be disqualified. It was unnecessary to consider the question whether the other Judges should be disqualified.
   
10. Accordingly the motion was dismissed.
    

Cases cited

Boateng v The State [1990] PNGLR 342
Gobe Hongu Limited v National Executive Council & Others (1999) N1964
PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (1998) SC592
Webb v R [1994] HCA 30; (1994) 181 CLR 41

Counsel

J Griffin QC & L Damena, for the applicant
C Manek & P Kelly, for the State

1 December, 2006

1. BY THE COURT: By a notice of motion filed on 25 August 2006, Herman Joseph Leahy (the applicant) applied for orders (1) that the further hearing and determination of SCR 34 of 2005 by this Court be vacated and (2) that SCR 34 of 2005 be listed for hearing and determination before a differently constituted Court on the basis of apprehended bias on the part of Mr Justice Cannings (Cannings).

2. The background to this application may be briefly described as follows. On 25 July 2003, the police charged the applicant with conspiracy to defraud the NPF of K2.6 million contrary to Section 407 of the Criminal Code and misappropriation of K70, 000.00 contrary to Section 383A of the Criminal Code. After about 14 months of committal proceedings, the District Court on 21 September 2004 decided under Section 100 of the District Courts Act that there was insufficient evidence to put the applicant on trial.

3. On 16 May 2005, the Public Prosecutor presented an indictment under Section 526 of the Criminal Code (commonly called an ex-officio indictment) in the National Court at Waigani before Mogish J. The applicant objected to the indictment on various grounds. On 8 June 2005, Mogish J, in a written decision, refused the objection and accepted the indictment.

4. The applicant sought judicial review of Mogish J's decision under Section 155(2) (b) of the Constitution (SCR 34 of 2005). This Court heard the judicial review on 1 December 2005 and reserved its decision.

5. Before the Court handed down its decision, lawyers for the applicant wrote to the Chief Justice in a letter dated 31 July 2006 and expressed concerns of apprehended bias on the part of Cannings and sought to disqualify the whole Court and have the judicial review heard before a differently constituted Court. The Chief Justice directed that this type of application should be made in open court.

6. As a consequence of that direction the applicant filed the notice of motion on 25 August 2006.

7. The following issues were directed to be argued in the motion:

1 What test is to be applied in determining whether apprehension of bias is satisfied in relation to a Supreme Court Review?

2 Whether the test to be applied should be if the circumstances were such as to give rise, in the mind of a party or in the mind of a fair-minded and informed member of the public, to reasonable apprehension of a prejudiced mind or lack of impartiality on a Judge's part?

3 Whether applying the relevant test for apprehended bias, the Honourable Justice Cannings should be disqualified from any further involvement in the Supreme Court Review?

4 Whether, if the Honourable Justice Cannings should be disqualified from any further involvement in the Supreme Court Review, the other members of the Court should also be disqualified from proceeding any further with the Supreme Court Review?

5 Whether, in all the circumstances, it is appropriate that:

(a) the further hearing and determination of SCR No 34 of 2005 by the Honourable Justice Sir Mari Kapi, the Honourable Justice Cannings and the Honourable Justice David be vacated?

(b) SCR No 34 of 2005 be listed for hearing and determination by different Justices of the Supreme Court?

8. The parties do not dispute the principles that are applicable. The Supreme Court considered the relevant principles in PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (1998) SC592:

It is useful and instructive to refer to similar cases and statements of principles in overseas jurisdictions, which may be of assistance. The first such case referred to and relied upon by the appellant as persuasive authority is an Australian Federal Court case of Trustees of Christian Brothers v Cardone [1995] FCA 1309; (1995) 130 ALR 345.

The respondent was a student at a school owned and operated by the appellants and was injured whilst at the school. The respondent sued the appellants for damages for negligence. The trial judge was a former pupil of the school and was chairman of the school board. It also transpired that he knew three of the appellants’ witnesses, one of whom was also on the school board. At the commencement of the hearing the appellants made an application for the trial judge to disqualify himself from hearing the case on the ground of apprehended bias. The trial judge declined to disqualify himself and said that the appellant’s solicitors knew of his association with the appellants when the matter had first been listed for hearing, but had made no objection.

The Full Court in dismissing the appeal on the issue of disqualification for apprehended bias said:

The apprehension of bias must be reasonably and not fancifully entertained. The appellate court must be satisfied, upon examination of the surrounding facts that an objective observer would be left with an apprehension, not a conviction, that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion.

Gallop J, in dissent, outlined some useful principles from the Australian High Court and other cases to be applied in cases of imputed judicial bias. He said:

On the one hand there are the repeated assertions of the courts that:

(a) Judges by their training and experience are able to bring a detached mind to the task: R v Leckie; Ex parte Felman (1977) 18 ALR 93; 52 ALJR 155 at 160;

(b) Judges should not too readily accede to applications for disqualification whereby parties may effectively influence the choice of a judge in their cause: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239.

(c) Judges should resist being driven from their courts by the conduct or assertion of parties.

(d) Judges should not be disqualified because of the vigour with which they conduct proceedings.

(e) Judges should perform the duties of their office, which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which will necessarily then fall to another judicial officer for whom the task may be no more congenial: Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 9) (unreported).

On the other hand, a series of recent decisions of the High Court has stressed the very high standards of manifest neutrality and impartiality established by that court for observance by every judicial officer in the courts of Australia.

The test as formulated by the High Court in determining whether a judicial officer (a judge) is disqualified by reason of the appearance of bias as distinct from proved actual bias is whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question" in issue (Livesey v New South Wales Bar Association, supra, at CLR 293-4).

In the Court of Appeal of the Supreme Court of the Northern Territory in Limbo v Little (1989) 65 NTR 19, Martin J said at 27:

Judges are capable of putting aside personal predilections arising from life's experiences. We all, I suspect, have views, opinions and attitudes moulded by a variety of factors. Rigorous training in the discipline of the law and in particular the requirement of objectivity, together with public insistence upon judicial integrity, mean that unless some material matter is raised by a litigant, or voluntarily disclosed by the judge, it is accepted that there can be no suggestion of reasonable apprehension of bias. Edmund Burke spoke of ‘the cold neutrality of an impartial judge’. That is what is expected. If impartiality is lacking, or could be fairly thought to be lacking, it may well become evident sooner or later, but it is not for the litigant to pry into the judge's background.

Lord Denning MR said in Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5; [1969] 1 QB 577 at 598.

So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias. This is a matter on which the law is not altogether clear: but I start with the oft-repeated saying of Lord Hewart CJ in R v Sussex Justices, Ex parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 at 259: "It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

It brings home this point: in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand:

Nevertheless there must appear to be real likelihood of bias. Surmise or conjecture is not enough.

There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.

It was submitted in this appeal that the veracity of these facts and circumstances relied upon by the appellant were not disputed by the respondents. It was submitted that these must in their accumulative effect give rise to a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions in issue.

The most recent authoritative statement by this Court, on the issue of apprehension of bias was in Boateng v The State [1990] PNGLR 342, where the Court adopted as the test what was stated in R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119, which is in the following terms:

Would a reasonable and fair-minded person sitting in a court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the appellant was not possible'?

It is therefore open to the parties as well as to a member of the public, to entertain the reasonable apprehension, in the light of all the circumstances, including statements made at the time when the judicial officer refuses to disqualify him or herself. The suspicion or apprehension must be reasonable and not fanciful.

Facts

9. In support of the application, counsel for the applicant relies on the involvement of Cannings as Director of Legal Services and Counsel to the Ombudsman Commission prior to his appointment to the bench.

10. Cannings joined the Ombudsman Commission as a Senior Legal Officer in October 1990 and was later appointed Director Legal Services and Counsel to the Commission. Under Sections 218 and 219 of the Constitution, the Commission has the function amongst other things of supervising the enforcement of the Leadership Code and the investigation on its own initiative or on complaint by a person affected of any conduct on the part of a number of leaders that come under its jurisdiction.

11. During his employment with the Commission, a Commission of Inquiry was established to enquire into fraud in the National Provident Fund. After the Prime Minister tabled the NPF Inquiry Report in Parliament, the Commission made an assessment to see if individual leaders' conduct amounted to possible breaches of the Leadership Code.

12. The Inquiry referred 31 individuals to the Commission for investigations. The referrals included Henry Fabila (deceased) and Jimmy Maladina as leaders for prosecution under the Leadership Code. The applicant was not referred as he was not considered a leader.

13. However, the NPF Inquiry Report demonstrates fundamental allegations that Fabila and Maladina conspired with the applicant and set about defrauding the NPF by means of the Waigani land deal and the NPF Tower construction fraud. It was alleged that this criminal conspiracy caused a further loss of about K3 million to the Fund.

14. The Commission of Inquiry referred Fabila, Maladina and the applicant to the Commissioner of Police for prosecution for criminal conspiracy.

15. The Ombudsman Commission carried out its own investigations against Fabila and Maladina. This necessarily involved allegations against the applicant. The investigation was carried out by a task force set up by the Commission and Cannings was not part of the task force and had no involvement in it. However, as Counsel to the Commission, he would have had general knowledge of the materials in relation to the matters referred to the Commission and any investigation reports that may have been produced by the task force. There is no suggestion that apart from this general knowledge Cannings played any other role in the NPF related investigations by the Commission.

16. We should point out at the outset that Cannings was employed by the Ombudsman Commission at the relevant time and would have had some general knowledge of the NPF Inquiry. This would have been apparent from the NPF Inquiry Report and the Ombudsman Commission Annual Reports for the relevant period.

17. We consider that this point should have been raised at the time of the hearing of the review and dealt with quickly and resolved. Counsel for the applicant had all the necessary materials available through the Commission of Inquiry and the Annual Reports of the Ombudsman Commission that Cannings would have some general knowledge of the nature of the allegations against the applicant.

18. We do not consider it acceptable that the applicant had to wait eight months to raise this issue.

19. The statutory declaration by John ToGuata, made before Cannings, does not take it any further than that Cannings had some general knowledge of the Inquiry and the investigations carried out by the Ombudsman Commission. We cannot afford to allow these kinds of applications to be made after such a long period of time. In an appropriate case the Court could disqualify and all the effort put into hearing and considering this matter would have been wasted. We point out that counsel has a duty and an obligation to bring these kinds of applications quickly.

20. In saying this we bear in mind that a judicial officer has an equal duty and obligation to bring to the attention of the parties any matter which may give the impression of apprehended bias. In this matter Cannings had no involvement in the task force that did the investigations and there is no allegation that he expressed a view on whether the applicant should be prosecuted for criminal conspiracy or on presenting an ex-officio indictment under Section 526 of the Criminal Code. It is no function of the Ombudsman Commission to consider presenting an ex-officio indictment.

21. However, we have allowed this application to proceed on the basis that the circumstances in this case require close analysis of general knowledge by Cannings of alleged criminal conspiracy and the relevance of such general knowledge to the determination of whether an ex-officio indictment may be presented in the National Court.

22. The doctrine of disqualification by reason of apprehension of bias may be classified into four distinct but somewhat overlapping categories. For a full discussion of this, see Deane J in Webb v R [1994] HCA 30; (1994) 181 CLR 41 and the passage adopted by Sevua J in Gobe Hongu Limited v National Executive Council & Others (1999) N1964.

23. The facts in the present case may be considered under the third and fourth category. That is, the source of the alleged apprehension of bias by Cannings is by his association with the Ombudsman Commission and his general knowledge of the investigation into allegations of misconduct by Fabila and Maladina who were alleged to have conspired with the applicant to defraud and misappropriate money belonging to NPF.

24. The issue before the primary judge (Mogish J) related to a presentation of an ex-officio indictment under Section 526 of the Criminal Code. Counsel for the applicant objected to the indictment and argued that it was an abuse of the processes of the court and relied on Section 162 of the District Courts Act. Several questions of law were considered:

1. Whether the Public Prosecutor has power to present an ex-officio indictment under Section 526 of the Criminal Code after the District Court discharges an accused person?
   
2. What is the nature and function of a committal court under Section 95 of the District Courts Act?
   
3. What is the meaning of "discharged" under Section 100 of the District Courts Act?
   
4. Was the applicant "acquitted" when the applicant was discharged by the District Court?
   
5. Was the certificate of dismissal obtained under Section 162 of the District Courts Act applicable to the applicant and did that prevent an ex-officio indictment?
   

25. All these questions of law were determined against the applicant and the objection was dismissed and the indictment was accepted. The applicant filed a Constitution Section 155(2) (b) judicial review on the following grounds:

3.1 The learned Judge erred in law in failing to recognize that a determination under ss 95 or 100 of the District Courts Act ("the Act) as to the sufficiency of evidence to commit a defendant for trial is a "decision" within the meaning of that expression as it is defined in s 1 of the Act, and as that term is used in s 155(6) of the Constitution.

3.2 His Honour erred in law in failing to hold that the decision not to commit the defendant was final, subject only to the right of appeal or review referred to in s 155(6) of the Constitution.

3.3 The learned judge ought to have held that there had been no appeal from, or review of, the decision of the magistrate of 21 September 2004 within the meaning of those terms in s 155(6) of the Constitution.

3.4 The learned judge failed to hold that s 526 of the Criminal Code (the "Code’’) is inconsistent with s 155(6) of the Constitution and therefore invalid to the extent of the inconsistency, by operation of s 11 of the Constitution.

3.5. His Honour erred in law in failing to hold that, in consequence of s 155(6) of the Constitution, subject to the right of appeal and review referred to in that provision, a decision not to commit a defendant made under either s 95(2) or s 100(2) of the District Courts Act is final, and has effect as an acquittal.

3.6 The learned judge ought to have rejected the indictment presented by the Public Prosecutor.

3.7 The tender of the indictment by the Public Prosecutor amounted to a denial of the defendant’s entitlement to the protection of the law guaranteed him by ss 32, 37, 57, 155(6), 23 and 11 of the Constitution and ss 95(2), 100(2), 162, and 219 of the District Courts Act.

26. There can be no question that the issues raised by the review are questions of law. All these issues relate to a criminal prosecution and are matters entirely within the discretion of the police as far as a committal proceedings are concerned and within the discretion of the Public Prosecutor as far as whether an ex-officio indictment should be presented.

27. Not only does the Ombudsman Commission have no role in terms of prosecution of criminal offences but there is no suggestion that Cannings had expressed any prior opinion on the legal issues raised in relation to the presentation of an ex-officio indictment in a criminal prosecution of the applicant. There is not the slightest connection and there can be no question of apprehended bias.

28. We also consider that a general knowledge of the allegations of criminal conspiracy against the applicant can have no bearing on the legal questions raised in the judicial review. There may perhaps have been a question of apprehended bias if Cannings had expressed a view on guilt or innocence of the applicant or if he had been involved in a Leadership Tribunal to deal with whether the applicant is guilty of misconduct in office.

29. Given the circumstances in this case we are not satisfied that a reasonable and fair-minded person knowing all the relevant facts would have a reasonable apprehension of bias. Having reached this conclusion, it is not necessary to consider the question whether the other two members of the bench should be disqualified. Consequently we dismiss the motion and the Court will proceed to deliver its decision in the judicial review.

______________________________________________
Young & Williams: Lawyers for the Applicant
Public Prosecutor: Lawyer for the State