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Fiji Independent Commission Against Corruption (FICAC) v Rizvi [2010] FJHC 527; HAC(FICAC)003.2010 (18 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC (FICAC) 003 OF 2010

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION (FICAC)

V

1. FURQAN AHMAD RIZVI
2. JOSEVA SEROA UTOVOU

Mr. V. Perera for the FICAC
Ms M. Lord for the First Accused
Mr. A. Naco for the Second Accused

Date of Hearing: 17 November 2010
Date of Ruling: 18 November 2010

RULING

Introduction

[1] This is an application by Counsel for the second accused in this case that I recuse myself from hearing the case. The prosecution opposes the application.

Background

[2] Between the 1st August 2008 and 14 July 2009 I was in the employ of the Fiji Independent Commission Against Corruption ("FICAC") as a legal consultant. FICAC is the prosecuting authority in this case. Most of the duties I performed were in connection with cases being investigated and charged in Suva and Suva's environs, and occasionally I would visit the Lautoka office when dealing with minor cases in the Lautoka Magistrates' Court. I had virtually nothing to do with cases being investigated in the Western Division, and if I did it was merely to check the wording of charges or appear on first call in the magistracy. As a result I had a far greater "presence" in Suva, and was far better acquainted with the personnel there than the personnel in Lautoka.

The Instant Case

[3] This case is purported to have been committed on August 3, 2009, more than 3 weeks after I left FICAC and joined the judiciary. I therefore know nothing about the case, nor could I have possible been involved in its investigation or analysis given that it can only have been brought to the attention of FICAC after August 3rd.

The Application

[4] Mr. Naco for the second accused firstly submits that the case came to FICAC when I was in their employ. I would therefore be biased in favour of FICAC. He submits quite correctly that the test of bias is the perception of the reasonably informed bystander and secondly he submits that the time of the offence is too close to my term of employment.

[5] The trial is set to commence on the 29th November, and the application made only on the 17th November. Mr. Naco has known since at least the 28th June that I would be the trial Judge.

The Law

[6] As Mr. Naco very correctly submits, the test for a judge to disqualify himself is the perception of reasonable apprehension of bias. The test to be applied in Fiji is an objective one and was laid down in Koya [1998] FHSC 2, and Ratu Jope Seniloli and Others HAC 28 of 2003. The kind of person making this objective assessment is taken to be fair minded, informed and reasonable. In AWG Group v Morrison [2006] EWCA Civ 398; [2006] 1 All ER 967, (C.A), Lord

Mummery recognizes that the decision to recuse is a discretionary one that would not be interfered with by an appellate Court if the Judge had weighed in balance all of the relevant factors; one of the relevant factors being the consequences of withdrawal leading to delay in the trial and the cost to the parties.

Analysis

[7] Mr. Naco's late application certainly raises the prospect of delay and cost in having the trial vacated for another Judge to take it up.

[8] The submission that I was employed by FICAC at the time that this case came before the Commission is erroneous and there can be no question of my being influenced by the investigation.

[9] The underlying thread of Mr. Naco's submission is that "once a FICAC man, always a FICAC man" which is absurd. It must be remembered, even by the well informed observer that a professional judge who has taken a judicial oath and who has experience in all types of cases is trained to "discard the irrelevant, the immaterial and the prejudicial" (Vakauta v Kelly [1989] 67 CLR 568).

[10] Mr. Naco relies on the case of AWG Group v Morrison (supra) where it was shown that the Judge had known a key witness well for over 30 years. There the Court of Appeal held that he should have recused himself because of a perception of bias in favour of the witness. Such a situation cannot be said to be analogous to the present situation. I have been away from FICAC for 16 months and have intentionally avoided contact with the Commission to pre-empt applications such as the present.

[11] The judiciary in Fiji has at least 3 very senior Judges who at one time have worked for the Office of the Director of Public Prosecutions and to say that they could never hear a case where the State is a party would be absurd.

I repeat the dicta of Winter, J. in Brian Singh and Another HAM 65 of 2005 when he said:

"I have been entrusted with this case by the ordinary procedures and practices of the court and it would encourage a procedural abuse for me to automatically disqualify myself merely because I have been requested by one party to do so on the grounds of a possible appearance of bias"

And further –

"In my view no recusal application should prevail unless it is based on a substantial ground of apprehension of bias otherwise the system would disintegrate to a stage where for practical purposes individual parties could influence the composition of their bench and therefore call the administration of justice into disrepute".

[12] In my opinion the application lacks merit and it is refused. The trial will commence before me, as listed, on November 29, 2010.

Paul K. Madigan
Judge

At Lautoka
18 November 2010