Mede v Regina [2009] SBHC 65; HCSI-CRC 63 of 2009 (13 November 2009)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 63 of 2009

WALTER MEDE

V

REGINA

Date of Hearing: 22nd of October 2009
Date of Ruling: 13th of November 2009

For Appellant: Mr. R. Cavanagh
For Respondent: Mr. R. Barry/Mr. Kelesi

DECISION

Naqiolevu J:

1. The appellant appealed against the decision of the Principal Magistrate of the 23rd of February 2009 where he was convicted of the offence of INDECENT ASSAULT and CRIMINAL TRESPASS and sentenced for 2 years imprisonment for the count of Indecent Assault and one month for Criminal Trespass, concurrent to count one.

Grounds of Appeal

The grounds of appeal are: -

1. That the Learned Magistrate acted in such a manner as to cause a reasonable apprehension of bias.

2. That the Learned Magistrate imposed a sentence which was manifestly excessive in all circumstances.

2. Counsel for the appellant assert the procedure adopted by the Learned Magistrate were a fundamental breach of common law adversarial requirements in criminal cases that they allow a reasonable observer to perceive bias on the part of the Magistrate or that adversarial rules were so breached that this fact is sufficient to provide the basis for quashing the conviction.

3. The Learned Magistrate Counsel assert, in his judgment, concerning how the complainant’s evidence would be taken, that "given her age" it was agreed that questions to her would be asked by or through the court. The Magistrate has by including this procedural change in his judgment acknowledges that common law adversarial procedures were not followed at least in respect of the complainant and that he would be asking the questions. This acknowledgement supports the evidence provided in the affidavits of the Appellant’s legal representatives, Ms Constance Hemmer and Ms Kylie Anderson.

4. The appellant further assert the Magistrate as clear from his judgment decided how the evidence of the complainant would be taken. Counsel is of the view by including this procedural change in his judgment the Magistrate acknowledges that common law adversarial procedures were not followed, at least in respect of the complainant and that he would be asking the questions. This acknowledgement further supports the evidence provided in the affidavits of the appellant’s legal representatives at the trial.

5. Counsel assert the Magistrate by using the words, "it was agreed" that such a fundamental procedural change should happen, is claiming that the defence consented to the approach. This suggestion is not supported by the evidence provided by the affidavits of the appellant’s legal representative, who reject the suggestions, as clearly deposed in the affidavits of Ms Anderson, where she stated at paragraph 5, "At no time did the Learned Magistrate raise his intention that he would conduct any of the evidence in chief of the complainant".

6. This was further supported in the affidavit of Ms Hemmer at paragraph 10 where she stated "During cross examination of the complainant, all questions put to the complainant was rephrased by the Learned Magistrate, thereby demeaning the effect of the question." Further at paragraph 13, "That a reasonable person would conclude that the prosecution case was conducted entirely by the Learned Magistrate".

7. Counsel further submit the Learned Magistrate entered the fray by, changing the usual order the witnesses would be heard, questioning the complainant’s mother and cross examining the accused. The Learned Magistrate engaged in questioning all the witnesses in the case to an extent that during the complainant’s evidence he was the only questioner.

8. Counsel submit that the Magistrate went so far as to give the impression that he had become an advocate in the case. Indeed by positioning himself at the bar table a reasonable person would have had difficulty avoiding this impression.

RESPONDENT’S SUBMISSION

9. Counsel for the respondent in response submit that no application was made by the appellant at trial for the Learned Magistrate to disqualify himself on the basis of an apprehension of bias. It follows that it was not apparent to counsel representing the Appellant at the time that the Magistrate had acted in such a way as to "lead a fair minded and informed observer to conclude that there was real possibility or real danger, the two being the same that the court was biased.

10. Counsel assert in any case there was no basis for such application. It is not a mere possibility or mere speculation that will suffice in establishing this ground of appeal, but rather a real possibility or real danger that the court was biased.

11. Counsel assert in this case there was no real possibility or real danger that anyone could have concluded that the Magistrate was biased. On the contrary it is submitted that a "fair minded" observer would have concluded that the Magistrate did everything in his powers to ensure a fair trial for both sides.

12. Counsel submit the appellant complains about a breach of common law adversarial procedures or requirements as providing the foundation that there was an apprehension of bias. It follows that such proposition does not follow as a matter of cause. Counsel maintain mere questioning by a Judge necessarily amount to such an apprehension. There is a big difference between a Judge interfering in the fairness of a trial because of inappropriate questioning and a Judge being perceived as biased simply because of some questioning. Excessive judicial intervention is not necessarily akin to an apprehension of bias. Each case will turn on its own facts.

13. Counsel assert there are no hard and fast rules governing so called "adversarial procedure" in court. A Judge can allow anything to occur in court as long as it is fair to the parties. Such an approach is common place.

14. Counsel assert the suggestion of an apprehension of bias is "mere speculation" and not supported by evidence, it is not enough to simply point to a divergence of so called adversarial practice and label it an apprehension of bias.

15. Counsel assert taking the allegation at their highest, matters such as the order of witnesses, the fact that questions would go through the courts, the fact that the Magistrate come off the bench and sat at another table are irrelevant, and the fact the Magistrate indicated that these do not indicate a bias towards the Appellant. Mere inappropriateness does not constitute an apprehension of bias in this case.

16. Test of Bias – in a Judicial Officer

The test of Bias in a Judicial Officer is succinctly stated in the case of Webb-v-The Queen([1]) where the court said,

"When it is alleged that a Judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the Judge has prejudged or might prejudge the case. The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member o the Australian Broadcasting Tribunal. The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

The court adopts the principle as enunciated that it is not a "real likelihood of bias test" but the real apprehension or suspicion test which is of fundamental importance. Justice should not only be done but "should manifestly and indeed undoubtedly be seen to be done."

17. The court accepts that whilst it does not have the benefit of the record of the Lower Courts proceeding of the trial, the court must accept and take into consideration the written judgment of the Magistrate and the affidavit of the counsel who represent the appellant and the affidavit of the Police Prosecutor as part of the proceeding on the day in question.

18. The Learned Magistrate as clear from the judgment stated how the complainant’s evidence would be taken, when he said, "given her age, it was agreed that question to her would be asked either by, or through the court." The Magistrate by undertaking this procedural change clearly acknowledge that common law adversarial procedure was not to be followed in respect of the complainant and that he would be asking questions.

19. The court is of the view that the Learned Magistrate has clearly adopted the inquisitorial procedure in his approach and totally ignore the adversarial system which has been part of the common law which we in this jurisdiction have followed as part of the procedure for hundreds of years. CJ Daly, in the case of R-v-Kwatefena([2]), clearly reiterate the principle when he said,

"Courts in Solomon Islands should always bear in mind that we work in an "adversary system". This requires that the parties should be permitted to develop the case as they wish with the court intervening only when it is clear that the case is taking a wrong turning or is becoming obscure." Sometimes when one side is professionally represented and the other is not, a court may indicate issues at a disadvantage. However it is wrong for the court to give the impression that it is doing the work of one side. In this case by the Learned Magistrate asking so many questions before the prosecutor had cross examined at all, that impression may well have arisen. If a court wishes to address a series of questions to a witness such questions should usually be couched in neutral terms and asked after the re-examination.

20. The Learned Magistrate departed from the adversary system as clearly reflected in the judgment and as deposed in the affidavit of counsel, which the court has taken into consideration. The process of eliciting the complainant’s evidence. The order in which the witnesses are to be called, the questioning of the complainant’s mother and cross examination of the appellant and the questioning of all the witnesses in the case and by positioning himself at the bar table reveals the Learned Magistrate has moved into counsels shoes and "enter the perils of self persuasion" see King ACJ in ([3]) Galea –v- Galea. His Lordship further enunciated the relevant principle where he said,

"1. The test to be applied is whether the excessive judicial questioning...[has] created a real danger that the trial was unfair. If so, the judgment must be set aside...

2. [G]reater latitude in questioning and comment will be accepted where a Judge is sitting alone...

3. ...the appellate court must consider whether...the Judge has ...moved into counsel’s shoes and into the perils of self-persuasion’...

4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions...

5. It is also relevant to consider the point at which the judicial interventions complained of occur. ...

6. The general rules for conduct of a trial and the general expression of the respective functions of Judge and advocate do not change...The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements..."

21. The court while accepting there maybe instance where a Magistrate or Judge may intervene for purposes of clarification. It must not undertake the task of questioning witnesses. The court adopt the principle of law enunciated in the case of R-v-Thompson([4]), where the court said,

"It must be emphasized that intervention for the purpose of clarification does not necessarily require the Judge to question the witness. The Judge may readily achieve clarification by pointing out, at an appropriate time, usually in the absence of a Jury, evidential ambiguities or obscurities to counsel. That is by far the most desirable course. It should be left to counsel, whenever possible, to deal with such matters. If the Judge undertakes the task by questioning witnesses, there is the danger that he or she will assume, albeit temporarily, the role of counsel and become identified with the cause of one side or another. Unfairness can readily be the consequence."

22. The court is of the view that Magistrate or Judges must always be mindful of the public perception in the way we conduct ourselves. It is what we as judicial officers must portray to the fair minded person or indeed the public at large. In Livesey-v-Bar Association of NSW([5]) the court said in a joint statement.

"The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a Judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias, nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court."

In Laws –v- Australian Broadcasting Tribunal([6]) the court said,

"In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case."

23. It is clear the circumstances of the case and the combination of the procedure adopted by the Learned Magistrate will no doubt leave in the mind of the fair minded person sitting in the body of the court that there is a real possibility or real danger that the court is biased.

24. The court adopts the principle of law enunciated by the Court of Appeal in the case of Pitakaka where the court stated the principle of law that to lead a fair minded and informed observer to conclude that there was as "real possibility" or "real danger", the "two being the same", that the court may in fact be biased.

25. The court is of the view that the principle of the common law of the adversarial system cannot be simply changed and "allow anything to happen" to use the words of counsel as long as it’s a fair trial. Further as reference was made by the crown of the Evidence Act, however nothing in the act changes the common law in respect of how a trial should be conducted and its simply not the case that a Judge or Magistrate can allow anything to happen in a trial.

26. The court in considering the crown submission that mere inappropriateness does not constitute an apprehension of bias is of the view that whilst "mere appropriateness" or "mere speculation" maybe appropriate in certain circumstances the important consideration must be, this is not a case of mere inappropriateness, or mere speculation, but clearly a combination of what actually occurred in the conduct of the trial where there were clear fundamental breaches of the procedures.

27. The court while accepts the crown submission that its not enough to simply point to a divergence of so-called adversarial practice and by using the word "so-called" is suggesting that adversarial practice is changeable and not very significant, in my respectful view if that is not "significant" and not "important" then "neither is the common law" because "it’s a foundational part of the common law". It is something that cannot be just disregarded at the whim of the judicial officer.

28. The court has an important role to play in ensuring the system of justice is protected and preserved at all time guaranteeing public confidence in our system of justice is not eroded in any way.

29. The court in the circumstances consider that the cumulative effect of the procedure adopted by the Lower Court is such that the conviction recorded as a result of this trial is unsafe and unsatisfactory. The court must exercise the powers under Section 293 of the Criminal Procedure Code, and quash the conviction and order it be expunged from the records.

THE COURT

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^[1] (1994) 181 CLR 41
^[2] Criminal Review Case No. 29 of 1983
^[3] (1990) 19 NSWLR, 263 - 282
^[4] [2002] NSWCAA, 149
^[5] (1983) 151 CLR P.288
^[6] [1990] HCA 31; (1990) 170 CLR 70