IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 01 OF 2015

BETWEEN:

STATE

AND:

1. MOHAMMED SHAHEED KHAN
2. ETHAN KAI

Counsel : Ms. S. Kiran with Ms. Fatiaki for Prosecution 
 Mr. Iqbal Khan for 1stAccused
Mr. J. Peluso with Mr. A. Singh & Ms. Subeska for 2ndAccused

Date of Hearing : 4th of August 2015
Date of Ruling : 5th of August 2015 

RULING

1.	The first accused person files this Notice of Motion seeking following orders inter alia; 

i.	That the learned Judge Honorable Justice Thushara Rajasinghe recuse himself from hearing the Applicant's criminal case No 1 of 2015, 

ii.	That another judge be appointed to hear the matter against the Applicant, 

iii.	Any other order/ orders that this Honorable Court deems just, 

2.	The Notice of Motion is being supported by an affidavit of the first accused (hereinafter referred as the accused) stating the grounds of this application. The Accused deposed in his affidavit that seven of his previous applications, including his bail applications and voir dire hearing have been ruled against him and decided in favour of the Prosecution. Hence, he is not confident that he will get a fair trial and the learned Judge is biased against him. Having stated his grounds in this application, the accused requested for me to recuse myself of hearing his case and appoint another High Court Judge to hear his matter. 

3.	 The learned counsel of the prosecution stated that she does not intend to file any affidavit in opposition, but object for this application while preserving their rights to make submissions. I accordingly, invited the learned counsel of the accused and the prosecution to make their respective submissions, which they did accordingly. Having carefully considered the Notice of Motion, the affidavit and the respective submissions of the parties, I now proceed to pronounce my ruling as follows. 

The Law 

4.	The rule against bias derives from the one of the fundamental principles of the Common Law system, that the conduct of adversarial trial by an independent and impartial tribunal. Section 15 (1) of the Constitution has codified and recognised that every person charged with an offence has a right to have fair trial before a court of law. 

5.	The rule against bias constitutes two main components. The first is the rule against actual bias and the second is the rule against apparent bias. Having considered the affidavit filed by the accused and the submissions of the learned counsel of the accused, it appears that this application is founded on the ground of apparent bias.

6.	Lord Goff of Chieveley in Regina v Gough ( 1993, A.C 647) having considered a subjective approach on the issues of apparent bias held that;

"I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as there personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state that test in term real danger rather than real likelihood, to ensure that the court is thinking in term of possibility rather than probability of bias. Accordingly having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger, in the sense that he might unfairly regard ( or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him". 

7.	It appears that Gough (supra) has expounded a more subjective approach with much focus on court's view than the public perception. The Gough's approach is mainly founded on real likelihood or possibility and not on the probability. Meson CJ in Webb & Hay v R ( 1994) HCA 30, (1994) 181 CLR 41) has expressed his concerns on the Gough's approach, where his lordship found that;

"The test enunciated in R v Gough tends to emphasis the court's view of the facts and placed inadequate emphasis on the public's perception of irregular incident". 

8.	Gleeson CJ in Ebner v Official Trustee in Bankruptcy ( 2000) HCA 63, (2000) 205 CLR 337, while deviating from the Gough's test, has adopted a more objective test in order to reflect the public's perception than on the court's own view, where his Lordship held that;

"The application of the test of apparent bias requires two steps. First it requires to identification of what it is said might lead a judge (or Juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on merits. The bare assertion that a judge ( or juror) has an interest in litigation or an interest in party to it, will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulate". 

9.	House of Lords in Porter v Magill ( 2002) 2 AC 357, at 494)has adopted an approach on the issue of apparent bias in line with the developments in other commonwealth and European jurisdictions, where Lord Hope of Carighead held that;

"In my opinion however it is now possible to set this debate to rest. The Court of Appeal took the opportunity in In re Madicaments and Related Classes of Goods( No 2) (2001) 1 WLR 700 to consider the whole questions. Lord Phillips of Worth Mattavers MR, giving the judgment of the court…….summarised the court's conclusion, at pp 726-727;

"When the Strasbourg jurisprudence is taken in to account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased"

I respectfully suggest that your lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias". 

10.	Accordingly, Porter v Maghil ( supra) has brought the test adopted in England on the issues of apparent bias in far with the test applied in other Commonwealth jurisdictions. 

11.	The test employed in New Zealand on the issue of apparent bias has been discussed in Muir v Commissioner of Inland Revenue ( 2007) NZCA 334, ( 2007) NZLR 495) in a comprehensive manner, where the Court of Appeal in New Zealand held that;

"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 emphasized to the challenged judge that a belief in her own purity will not do, she must consider how others would view her conduct". 

12.	Having discussed the applicable test on the issue of apparent bias in three main Commonwealth Jurisdictions of England, Australia and New Zealand, I now draw my attention to the approach adopted by the Courts in the Jurisdiction of Fiji. The Supreme Court of Fiji in Amina Koya v the State (1998) FJSC 2, upon consideration of the tests adopted in England, Australia and New Zealand, found that there is no much difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias. However, the two approaches of real danger of bias and reasonable apprehension of bias has brought into a harmony in Porter v Magill (supra).

13.	Justice Gounder in Mahendra Pal Chaudhry v The State ( 2010) FJHC 531 HAM 160.2010 ( 19 November 2010) adopted the objective test of whether a fair-minded and informed observer having considered all the actual circumstances would conclude that there is a reasonable apprehension on bias. 

14.	Justice Calanchini in State v Citizens Constitutional Forum Ltd, ex parte Attorney General [2013] FJHC 220; HBC195.2012 (3 May 2013) while adopting the test articulated in Porter v Maghill ( supra) held that;

"Consistent with the decision in Porter –v- Magill (supra) the Court of Appeal in Patel and Mau –v- Fiji Independent Commission Against Corruption (unreported criminal appeal AAU 39 and 40 of 2011 delivered 12 September 2011) adopted a two stage enquiry. The first stage involved establishing 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 stage is to determine 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 case. This involves an objective determination in the sense that it requires an enquiry as to how others would view the judge's position".

15.	The Supreme Court of Fiji in Patel v Fiji Independent Commission Against Corruption [2013] FJSC 7; CAV0007.2011 (26 August 2013) has adopted the test enunciated in Porter v Maghill ( supra).

16.	In view of these judicial precedents discussed above, it appears that the objective test of apparent bias encompasses two main phases. The first is that the court is required to ascertain the actual circumstances which have a direct bearing on a suggestion that the judge is bias. The second phase is that to determine whether those actual circumstances would lead an independent fair–minded and informed observer to reasonably apprehend that the judge is bias. 

17.	This application of the accused is founded on the ground that seven of his previous applications, including his bail applications and voir dire hearing have been ruled against him and decided in favour of the Prosecution. Hence, he is not confident that he will get a fair trial and the learned Judge is biased against him. 

18.	It is apparent that judges and magistrates in criminal proceedings are always required to make pre-trial rulings and decisions on various issues including bail. There is no allegation of procedural unfairness such as denial of hearing or opportunity for the accused to present his case in any of those applications. The accused has given opportunities to present his case either through affidavits or through the submissions of his counsel during the hearing of these pre-trial issues. It appears that accused raise this suggestion of bias only because the court ruled against him in these pre-trials hearing. 

19.	Justice Gounder in Mahendra Pal Chaudhry v The State ( supra) has succinctly discussed an application of this nature apparently founded on the same grounds as of this, where his lordship held that;

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

20.	The mere circumstances that the judge has ruled several pre-trial applications against the accused would not undoubtedly lead an independent, fair-minded and informed observer to reasonably apprehend that the judge is bias. 

21.	Having considered the judicial precedents and the reasons discussed above, it is my opinion that this application of the accused has no merit. I accordingly refuse and dismiss the Notice of Motion dated 3rd of August 2015. 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
5th of August 2015

Solicitors : Messrs Iqbal Khan & Associates for First Accused, 
 AmanRavindra- Singh Lawyers for Second Accused,
 Office of the Director of Public Prosecutions