IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 161 OF 2019

STATE

v

MUHAMMED RAHEESH ISOOF 

	Counsel: 			Mr. S. Babitu for State
					Mr. I. Khan for Accused

	Date of Ruling:		19 January 2022

RULING
(Accused’s Recusal Application)

1.  The learned counsel for the Defence filed a Notice of Motion seeking the following         orders inter alia, 
i.	The Honorable Judge, His Lordship Mr. Rajasinghe recuse himself from Criminal Case No. HAC 161 of 2019 on the grounds of Actual bias/Perception of bias/reasonable apprehension of bias.

ii.	Another Judge be appointed to hear the matter against the Applicant/Accused.

iii.	The court to rule that there is a mistrial;

iv.	The time for service of this Motion be abridged;

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

2.	State v Baleiwairiki [2019] FJHC 273; HAC227.2018 (25 March 2019) has discussed the law in relation to recusal application, where the Court held that; 
“The court has to first ascertain the actual circumstances which have a direct bearing on the suggestions that the judge was or may be seen to be biased. Then the court has to determine whether such circumstances as established might lead a fair minded, informed lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the matter. 
In view of the above discussed judicial precedents, such a complaint of apparent bias should not be raised lightly without establishing the actual circumstances and the logical connection between such circumstances and the feared deviation from impartiality of the Judge. (Muir v Commissioner of Inland Revenue (supra), Ebner v Official Trustee in Bankruptcy (supra), Mahendra Pal Chaudhry v The State (supra)) 
3.	The first point raised by the learned counsel for the Defence on the issue of bias is the intervention/questions asked by the learned Judge from some of the prosecution witnesses. In his oral submissions, the learned counsel for the Defence pointed out that the questions that the learned Judge asked from the Senior Scientific Officer Ms Naomi Tuitoga and Doctor James Kalougivaki has created a fear in the Accused’s mind that the learned Judge is biased towards the Prosecution witnesses. 
4.	There is no restriction for the learned Judge to ask a few questions from the witnesses if the Bench wants to clarify the evidence that the witness had already given in evidence. Moreover, if the learned Judge asked such questions to clarify the factual issues of the matter, it is a good practice to invite the counsel for the Prosecution and the Defence to cross-examine the said witnesses, if they wish, on that issue. 
5.	Senior Scientific Officer Ms Naomi Tuitoga and Doctor James Kalougivaki gave evidence as expert witnesses, explaining scientific procedures and methods used during the DNA profiling testing and the post-mortem examination of the bodies of the five deceased. Those questions were only asked to clarify the facts and details that the two witnesses had already explained in their evidence. Hence, I do not find any actual circumstances and the logical connection between such circumstances and the feared deviation from the impartiality of the Judge. 
6.	Moreover, the learned Judge asked a few questions from a few of the Prosecution witnesses and the Accused and his defence witness at the end of the re-examination to clarify certain issues disclosed by those witnesses during their respective testimonies. The Court had properly invited the learned counsel for the Prosecution and the Accused to cross-examine those witnesses on those issues if they wished. Accordingly, the learned counsel for the defence cross-examined Sgt Jesotoki regarding the last two photographs taken from Nirmal’s mobile phone. 
7.	The second point raised by the learned counsel for the Defence is the discussion between the learned Judge and the learned counsel for the Prosecution and the Defence regarding Mr Jitendra Sharma. This discussion took place in the absence of the said witness. The learned Judge raised this issue of perjury due to the information that the learned counsel for the Defence provided before the commencement of the Defence’s case. The learned counsel for the Defence informed the Court that the Accused would present evidence to establish that a particular witness had seen Kajal and her daughters at the supermarket at 10 am on the 25th of August 2019. Moreover, the Accused admitted the CCTV footage of the New World Supermarket and its contents in the Amended Admitted Fact tendered under Section 135 of the Criminal Procedure Act. 
8.	Therefore, the learned Judge wanted to clarify whether the Accused was calling Mr Sharma to contradict his admission made under Section 135 of the Criminal Procedure Act. Soon after that the discussion about the possible perjury evidence, the learned Judge informed the counsels that;
`	“So as I recall that you are going to call him to give evidence that he has seen the deceased lady with the two children at what time? 
9.	The learned counsel for the Defence then explained why Mr Sharma was called to give evidence. Having heard the explanation given by the learned counsel for the Defence, the learned Judge then stated that: 
“Okey, that’s the one, because I thought that he had seen the lady and the children somewhere else” 
10.	The conversation that took place in the absence of the witness, Mr Sharma, clearly demonstrates the purpose and reasons for that conversation. 
11.	The third issue raised by the learned counsel for the Defence is that the learned Judge had stopped him from asking further questions from Sgt Anil Kumar regarding the non-disclosure of certain items. The Court has to maintain the proper decorum of the proceeding based on fairness, integrity, dignity, and avoid abuses. In doing that, the Court could prevent the counsel of the parties if they are unnecessarily harassing the witnesses in questioning. 
12.	In respect of this particular instance, Sgt Anil Kumar had already explained in his answers that he had handed over all the materials and the documents of the investigation to the Prosecution Office. The duty of disclosure is on the Prosecution to the Court (vide: Ram v State [2021] FJHC 201; HAM38.2021 (the 29th of March 2021) and not on the Investigation officer to the Accused. Even after Sgt Anil Kumar explained what he had done regarding the materials and the documents, the learned counsel for the Defence persistently and continuously asked him the same question of non-disclosures of certain materials. Under such circumstances, the Court had to intervene and stop the counsel from further harassing the witness who had already provided the answers to the question posed to him. 
13.	The next issue is the non-disclosure of certain items. Sgt Anil Kumar, in his evidence, stated that certain videos they recovered during the investigation had been recorded some 10 km away from the scene of the crime. The learned counsel for the Prosecution stated that the statements of those individuals who recorded those videos were disclosed to the Defence at the very early stage of this proceedings in 2019, which was admitted by the learned counsel of the Defence. The learned counsel for the Defence admitted in his oral submissions that he has the statements of these individuals in his possession for the last two years. 
14.	Lord Hope in R v Brown (1998) A.C. 367 p377) expounded the scope of the disclosability, where His Lordship found that:
“The common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown. In the course of that process issues of fact will have been identified which may assist or undermine the Crown case. The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet, fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed.”
15.	The prosecution had correctly and sufficiently disclosed the statements of those individuals to the defence at the beginning of the proceedings. Section 290 (1) (b) and (c) of the Criminal Procedure Act states that; 
“Prior to the trial of any criminal proceeding either party may make application to the court having control of the proceeding for any order necessary to protect the interests of either party or to ensure that a fair trial of all the issues is facilitated, and such applications may relate to—( underline is mine)
b) compelling the attendance of any witness or the production of any    evidence at the trial;
c) compelling the provision by the prosecution to the defence of any                  briefs of evidence, copies of documents or any other matter which should fairly be provided to enable a proper preparation of the defence case;
16.	According to Section 290 (1) of the Criminal Procedure Act, the learned counsel for the Prosecution and the learned counsel for the Defence have a duty to protect the interests of both parties and facilitate a fair trial. In exercising that duty, either party is allowed to make an application under Section 290 to disclose any additional material to the defence to prepare the defence properly. 
17.	The Court made directions pursuant to Section 292 of the Criminal Procedure Act, directing the Prosecution and the Defence to attend the pre-trial conference on several occasions. Moreover, the matter was called for pre-trial issues before me on the 11th of October 2021, 14th of October 2021, 25th of November 2021, 3rd of December 2021 and 9th of December 2021 to evaluate the progress and the finalisation of pre-trial issues. The Prosecution tendered its list of probable witnesses a few weeks before the commencement of the hearing. Unfortunately, the learned counsel for the Defence, having in his possession the statements of those individuals for the last two years, never made an application under Section 290, which is his professional duty and obligation, if he found those items were materially important to facilitate the fair trial and the proper preparation for the defence. 
18.	The Court, deviating from its usual course of business, vacated the first two days of the hearing on the 13th and 14th of December 2020, allowing the learned counsel for the defence to have a final consultation with the accused at the courthouse from 9 am. to 4.30 pm, on those two days. The learned counsel for the defence was directed to attend to that consultation, facilitated by the Court, with all the disclosures disclosed to him by the Prosecution. By that point in time, the learned counsel for the Defence was in possession of the list of the probable witnesses of the Prosecution. Once again, the learned counsel for the Defence made no application under Section 290 (1) of the Criminal Procedure Act, seeking an order of the Court against the Prosecution to disclose those items. Wherefore, I find the Prosecution and the Court had provided the learned counsel for the Defence ample and sufficient time and opportunities to raise any issues of disclosures under Section 290 (1) of the Criminal Procedure Act. 
19.	Hence, I find the learned counsel for the Defence had failed in his duty under Section 290 (1) of the Criminal Procedure Act, irrespective of having multiple opportunities and relevant documents in his possession, to protect the interest of the accused and also to ensure a fair trial to the accused, if he found those non-disclosed materials, as he claims now, were materially essential to secure a fair trial. Having failed to discharge his statutory professional duty and obligations, under Section 290 (1), diligently and effectively, towards the Court as well as to the Accused, the learned counsel for the Defence is now barred from finding refuge behind the term of “fair trial”. 
20.	In view of these reasons, I find the learned counsel for the Defence has failed to establish any circumstance of apparent bias and logical connection between such circumstances and the feared deviation from the impartiality of the Judge. Moreover, the learned counsel for the Defence failed to establish any grounds, suggesting the trial was a mistrial and unfair. Hence, I refuse this application for recusal. 

………………………………………….
Hon. Mr. Justice R.D.R.T. Rajasinghe

At Lautoka
19 January 2022

Solicitors: 	Director of Public Prosecution for State
Iqbal Khan & Associates for Accused