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Chaudhary v State [2010] FJHC 531; HAM160.2010 (19 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM160 of 2010

BETWEEN:

MAHENDRA PAL CHAUDHARY
Applicant

AND:

THE STATE
Respondent

Hearing: 20 September 2010
Ruling: 19 November 2010

Counsel: Mr. P. Williams QC, Mr. R. Chaudhary and Ms H. Phillips for Applicant
Mr. A. Rayawa and Ms S. Puamau for State

RULING

[1] The applicant is charged with offences under the Exchange Control Act, the Proceeds of Crime Act and the Penal Code. He seeks to disqualify me from presiding in the trial solely on the ground of apparent bias.

[2] The right to a trial by an independent and impartial court is universally recognized and is reflected in Article 14(1) of the International Covenant on Civil and Political Rights. It is impartiality that gives legitimacy to the decisions of the courts. Public confidence in the system of administration of justice is gained by independent and impartial courts. Based on these principles, the common law provides for grounds for disqualification of a judge so that both the public perception of impartiality and public confidence in the system of justice is maintained.

[3] The first legitimate ground for disqualification is when a judge has an interest in the outcome of the case, unless the rule of necessity applies (see United States v Will[1980] USSC 207; , 449 US 200 (1980). The applicant does not suggest that I have an interest in the outcome of his case, and therefore, he does not rely on this ground.

[4] The second ground for disqualification is apparent bias. The applicant relies on this ground to seek my recusal. Disqualification under this ground is approached as how things might appear to an observer.

[5] The High Court of Australia in Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 explained the apprehension of bias principle as follows:

"The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited least the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognized. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability."

[6] In Antoun v. The Queen [2006] HCA 2, the High Court of Australia had before it an appeal in a case of alleged apprehended bias on the part of the trial judge in dealing with a submission of no case to answer and with a question of bail. The High Court allowed the appeal and ordered a new trial. Callinan J said (p39):

"It should be noted that the test as stated emphasizes that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification."

[7] In Canada, the reasonable apprehension of bias test is well established. In Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), the Canadian Supreme Court held:

"Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. A judge's impartiality is presumed and a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified. The criterion of disqualification is the reasonable apprehension of bias. The question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude. Would he think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?"

[8] In Liteky v United States 510 US 540 at 564 (1994) the United States Supreme Court endorsed the apprehension of bias test for federal law purposes and said:

"Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified."

[9] In Fiji, the Supreme Court in Amina Koya v State [1998] FJSC 2, confirmed its agreement with the view stated by the New Zealand Court of Appeal in Auckland Casino Ltd. v. Casino Control Authority [1995] 1 NZLR 142, that:

"There was little if any difference between the Australian test of whether a fair-minded observer might reasonably apprehend or suspect that the judge had prejudged and the English test of whether there is a real danger or real likelihood, in the sense of possibility of bias."

[10] More recently in Muir v Commissioner of Inland Revenue and Another [2007] NZCA 334 (7 August 2007] the New Zealand Court of Appeal reviewed the case authorities on apprehension of bias test in common law jurisdictions and said (p12):

"In our view, the correct enquiry is a two stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the "bias" ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. This standard emphasizes to the challenged judge that a belief in her own purity will not do; she must consider how others would view her conduct."

[11] Later, the Court said (p13):

"It is not possible or desirable to create a catalogue of disqualifiers for judges in which a reasonable apprehension of bias may arise, but some broad principles can be stated. First, a judge should not decide a case on purely personal considerations. Secondly, there should not reasonably be room for a perception that the judge will decide the case on anything but the evidence in front of him or her. Thirdly, a judge must be in a position to consider all potentially relevant arguments. Fourthly, there may conceivably be a series of events or rulings which reasonably warrant an inference that the challenged judge's perception is warped in some way."

[12] In 2002, the Fiji Judiciary adopted the Guideline Principles for Judicial Officers based on the Bangalore Principles of Judicial Conduct. The Guideline Principles set out the grounds for disqualification as follows:

"A judicial officer should disqualify himself or herself from participating in any proceedings in which he/she is unable to decide the matter impartially or where it would appear to a reasonable informed observer that the judicial officer is unable to decide the matter impartially. Such instances include where:

2.4.1 the judicial officer has actual bias for or against a party or any personal knowledge of disputed evidentiary facts in the proceedings;

2.4.2 the judicial officer previously served as a lawyer or was a material witness in the matter in controversy;

2.4.3 the judicial officer, or a member of his/her family, has a financial or other close personal interest in the outcome of the proceedings.

Provided that disqualification of a judicial officer shall not be required if, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice."

[13] I now consider the circumstances that the applicant relies on to suggest that a reasonable informed observer would apprehend or suspect bias.

[14] In his affidavit, the applicant points out to three circumstances to suggest an apprehension of bias.

[15] The applicant in his affidavit states that the charges relate to his personal tax matters which were extensively published or broadcasted by local and overseas media from 2005 to 2010 portraying him to be a tax evader. Subsequently, he was cleared of any wrong doing in relation to his tax matters by a Committee set by the current Government. The applicant contends that "it is possible that judicial officers, who were resident in the country between late 2005 – late 2009 may have read, watched or heard news reports on my tax records and details and formed an opinion one way or another and this could prejudice my right to a fair trial."

[16] This contention of the applicant miscomprehends the role of a judge. It is almost universally recognized that judges discharge their duties in accordance with the oath they take to do right to all manner of people in accordance with the laws and usages of their countries, without fear or favour, affection or ill will. To recognize that the media has the capacity to disqualify a judge from trying an accused is an affront to the judicial oath and to the presumption of judicial impartiality.

[17] It is the presumption of impartiality that also gives the verdict of jurors or opinions of assessors (in the case of Fiji) legitimacy. The jurors or assessors are presumed to be faithful to their duties when they approach their tasks. This point was endorsed by the English Court of Appeal in R v Abu Hamza [2006] EWCA Civ 1093; [2007] QB 659 at 685-686:

"Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimize it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."

[18] Of course, there is an inherent possibility that a juror or an assessor might acquire irrelevant and prejudicial information in a criminal trial. However, when jurors or assessors are properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations, the law recognizes them to have the capacity to bring an impartial mind to the determination of charges against an accused. That capacity is critical to ensuring that criminal proceedings are fair to an accused.

[19] The point is that jurors or assessors unlike judges are lay persons. They do not possess legal knowledge and skills unlike qualified judges; yet, the law recognizes that they have the capacity to determine criminal charges impartially upon proper directions by the trial judge, regardless of any prejudicial pre-trial media publicity that has been made against an accused. In this regard, the judges by virtue of qualification and experience have better capacity than the jurors or assessors to determine issues in accordance with the law, and uninfluenced by extraneous pre-trial media publicity.

[20] If I have to accept that only a non resident judge can bring an independent and impartial mind to the determination of the charges against the applicant, then nobody in Fiji will qualify to be an assessor in his trial. The assessors will also have to be non resident individuals. Practically this is not possible because our law does not permit non resident individuals to be assessors.

[21] Knowing all these circumstances, an independent and fair minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the determination of the charges against the applicant.

[22] The second circumstance relied on by the applicant is that I worked as a prosecutor in the Office of the Director of Public Prosecutions before I was appointed to the bench as a judge of the High Court. The applicant in his affidavit states that although he is not aware of any personal friendship with the Director of Public Prosecutions, Mr. Rayawa and the Judge, he asserts that I have maintained a relationship with my previous office even after joining the bench. The applicant points out to the fact that I was the chief guest at the closing ceremony of a workshop on money laundering organized by the Office of the Director of Public Prosecutions in Labasa and that I spoke on the subject at the workshop, to infer a working relationship between the Director and the Judge to import an element of bias.

[23] None of these contentions of the applicant is supported by evidence. Nor does he refer to any facts from which it could be inferred that I have maintained a close link with the Office of the Director of Public Prosecutions after my appointment to the bench as a judge. Furthermore, these contentions of the applicant have not factual truth.

[24] It is not uncommon for judges to deliver legal papers in conferences and workshops upon invitation or to be a resource person for training of lawyers or law enforcement agencies. A judge is perfectly within his or her ethically boundaries to present legal papers as long as there is no discussion of matters that are pending before him or her. Mere presentation of a paper in a workshop does not create a working relationship with the Office of the Director of Public Prosecutions. Nor can an apprehension of bias arise from my presentation of a paper in a workshop that has no nexus to the applicant or his case.

[25] The third circumstance relied on by the applicant is that I had granted an order for production and inspection of documents in relation to his tax matters that were in possession of the Fiji Islands Revenue and Customs Authority to police during the investigation stage of this case upon an application by the Director of Public Prosecutions. I do not think it is appropriate for me to comment on and to justify my own decision, suffice to say that, the order was made in accordance with the applicable law. The order for production of documents is akin to a search warrant. Judicial officers are empowered by law to issue search warrant upon application made after commencement of a criminal investigation. The applicant has not pointed out to any authority that a judicial officer who issues a search warrant is disqualified from trying the accused.

[26] In criminal cases, judges have to make pre-trial rulings and decisions during the trial. Not all rulings that a judge makes may be favourable to the accused. The mere fact that a judge has ruled against the interest of an accused is not a ground for disqualification. To do so will set a dangerous precedent because as soon as a judge makes an unfavourable decision he or she is disqualified from trying the accused and no case will ever be heard. The result will be contrary to the public interest to see all those who are charged with criminal offences are tried in accordance with the law.

[27] An independent and fair minded lay observer knowing all these circumstances would not reasonably apprehend bias.

[28] Finally, the applicant suggests that a non resident judge try his case. While the applicant may seek a disqualification of a judge, he has no legal command to suggest who could preside in his trial. If I accede to this request, I will be encouraging litigants to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

[29] No grounds for my disqualification exist in fact or in law. The application is dismissed.

Daniel Goundar
JUDGE

At Suva
19 November 2010

Solicitors:
Messrs. Gordon & Chaudhary Lawyers for Applicant
Office of the Director of Public Prosecutions for State