IN THE MAGISTRATE'S COURT
AT SUVA,FIJI

MAGISTRATES COURT CRIMINAL CASE NO; 1156 of 2009

BETWEEN:

ROHIT PRASAD TRIVEDI
APPLICANT

AND:

THE STATE
RESPONDENT

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe, 
COUNSEL: Mr. Rajendra Chaudhry for the Applicant,
Mr. Jasveel Singh for the Respondent.

Date of Ruling: 15th day of March 2012.

RULING

1.	The Applicant/ 1st Accused person filed an notice of motion together with an affidavit in support seeking following orders inter alia 

i.	That the learned Magistrate R.D.R. Thushara Rajasinghe recuse him from presiding over this matter,
ii.	This matter be declared a mistrial and heard de novo and / or
iii.	Any other orders that this court may deem just and expedient in the circumstances. 

2.	The Applicant stated the grounds on which he made this application in his affidavit in support as follows, 

i.	Mr Rajasinghe refused my application to have the matter heard afresh when the law clearly provides for this. Whilst I have been advised and understand that there is discretion in this regards to the Magistrate, I think this discretion must be exercised judiciously and in the best interests of the person on trial.

ii.	10.	By not giving me the benefit of presenting my case afresh so that Mr Rajasinghe could judge the demeanour of witnesses and other matters crucial in criminal trial, I believe that he has already pre determined my guilt or that he wants to proceed expeditiously at the expense of fairness.

iii.	11.	I have been advised and understand that the whole precept of criminal law is based on fairness and in this instance I do not believe that to an informed observer Mr Rajasinghe's approach to this case as it concerns me would be constructed as fair.

iv.	I am facing serious charges, notwithstanding my pleading my innocence to all charges.

v.	I would need to defend myself and to do this I would require the presiding officer to be neutral. This would not appear to be the case in the current instance.

vi.	What is more of concern is that there would be no prejudice to the Prosecution if the matter were heard afresh.

vii.	The Prosecution, as I understand it, had also not objected to such an application to have the matter heard afresh or witnesses' being recalled as their interest is in prosecuting fairly and not with a view to obtaining a desired result of convictions.

viii.	By failing to take into these very important considerations it would appear that Mr Rajasinghe would appear to an informed observer to be biased or else why would he not hear the case afresh and judge the demeanour of the witnesses for himself rather than relying on the notes of his predecessor, which he himself has termed as illegible at times.

ix.	17. 	I believe that it would it would be in the best interests of Justice if this matter were heard before a Magistrate who does not have a preconceived opinion or stand on this matter. 

3.	In view of the affidavit in support of the Applicant I find that his main contention in this application for recusal is based on the principle of apprehension of bias

4.	The learned counsel for the Respondent / prosecution stated that though he is objecting for this application for recusal, he does not wish to file an affidavit in opposition. Subsequently I set this application down for the hearing where both parties agreed to have the hearing by way of written submissions. I accordingly invited the both learned counsels of the applicant and the respondent to file their respective submissions. The Applicant files his written submission which was followed by the Respondent's written submission. Finally the Applicant filed his response to the submission of the Respondent. 

5.	The learned counsel for the applicant stated in his written submission that the applicant does not question the learned Magistrate's integrity but his contention is that whether an ordinary informed observer would apprehend the learned Magistrate's discretion and subsequent ruling on a particular application is seen to be bias. 

6.	Further the learned counsel for the applicant elaborated in his submission that this apprehension is predicted on the following facts inter alia, 

i.	Deny the accused his statutory right,
ii.	Exercise his judgment in a manner which was non judicious,
iii.	Decide to judge the credibility and demeanour of witnesses from hand written ( barely legible) notes of his predecessor Magistrate,
iv.	Proceeded to hear the matter and deliver sentence (not yet deliver) at considerable prejudice to the accused, 

7.	Having outlined brief legal back ground of this issue of recusal, the learned counsel for the applicant submitted that in the current instance the learned Magistrate during the proceedings acted in a manner where he whilst acting in his discretion, denied the accused the right to call witnesses already called before the previous magistrate. This was his statutory right and his election to do so. By denying the applicant this right whilst exercising his discretion, the learned Magistrate acted in a manner where it would appear to an informed observer that such conduct was biased and unfair and prejudicial to the rights of the accused to a fair trial. 

8.	 The learned counsel for the respondent urged in his submission that the ruling made by the learned magistrate in this case may not have been favorable to the Applicant. However just by stating the mere fact the learned Magistrate has ruled against the interest of an accused is not a ground for disqualification. The Judgment of this case is still pending. The guilt of the applicant has not been decided yet. The Counsel of the Respondent further submitted that an independent and fair minded lay observer knowing all the circumstances would not reasonably apprehend bias. 

9.	The counsel for the Applicant in his response to the Respondent's submission stated that the test applied by Goundar J in Mahendra Pal Chaudhry v State ( HAM 160 of 2010) is incorrect. The test is not what a judge think or an accused thinks, it is what a reasonably informed person would think. 

10.	Having considered the respective affidavits of the Applicant and the Respondent and their respective written submissions, I now proceed to pronounce my ruling on this application for recusal. 

11.	In view of the affidavits and the submission of the Applicant, I find that the applicant main contention for this recusal application is that the refusal of his application to recall prosecution witness pursuant to section 139 (2) of the Criminal Procedure Decree and it would cause a reasonable bystander to appraise apprehends bias on the part of the Learned Magistrate. 

12.	The rule against bias derived from the one of the fundamental principles of the common law system that is the conduct of adversarial trial by an independent and impartial tribunal. The rule against bias is found in two dichotomies. The first limb is the rule against actual bias and the second is the rule against apparent bias. In this instance case the learned counsel of the applicant specifically stated that his contention founded on the principle of apparent bias. 

13.	The judicial approach on the issue of "apparent bias" was extensively discussed in Muir v Commissioner of Inland revenue (2007) NZCA 334. (2007) NZLR 495). The Court of Appeal of New Zealand in Muir v Commissioner of Inland revenue (Supra )adopted the "reasonable apprehension" approach where it was 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". 

14.	His lordship Justice Goundar in Mahendra Pal Chaudhry v The State ( 2010) FJHC 531 HAM160.2010 (19 November 2010) having discussed the position of other common law systems and the Guideline Principles for Judicial Officers based on the Bangalore Principles of Judicial Conduct which the Fiji Judiciary adopted in 2001, adopted the test enunciated in Muir v Commissioner of Inland revenue (2007) NZCA 334. (2007) NZLR 495). The approach adopted by his lordship Justice Goundar is further upheld and affirmed by his lordship Justice Kankani Chithrasiri, Justice of Appeal in Mahendra Mothibhai Patel and another v The Fiji Independent Commission Against Corruption ( Crim App No AAU 0039 of 2011). 

15.	Having understood the legal approach on the issue of Apparent Bias in the Fiji Jurisdiction, I now proceed to review the judicial dicta on the grounds of apparent bias. 

16.	It was held in Muir v Commissioner of Inland revenue (Supra) that " 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 board principles can be stated. First a judge should not decide a case purely personal circumstance. 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". 

17.	A more explanatory list of the grounds of disqualification on apparent bias were identified by Deane J in Webb v The Queen (supra) where it was held that " the area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings whether pecuniary or otherwise gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The Second is disqualification by conduct, including published statements. That category consist of case in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consist of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consist of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias".

18.	Bearing in mind the laws pertaining to the issue of apparent bias, I now proceed to analysis the facts of this instance case with the relevant legal principles. 

19.	In view of the Applicant's contention I find this application of the applicant falls within the second category that is conduct which was enunciated in the Webb v The Queen (supra).The refusal of the Applicant's application pursuant to section 139 (2) of the Criminal Procedure Decree is the nexus of the applicant's contention of apparent bias. At this point, I iterate that I do not wish to justify or give explanation for ruling on the said application. 

20.	Bearing in mind the purpose of this ruling, I now examine that whether the actual circumstances of refusal of the applicant's application pursuant to section 139 (2) of the Criminal Procedure Decree will have a direct bearing to suggest that the learned Magistrate is or may be seen to be biased. His Lordship Justice Chithrasiri held in Mahendra Mothibhai Patel ( Supra) that "a rigorous examination should be conducted if the actual circumstances or the facts of the issue have a direct bearing to show that the judge was or may have seen to be biased". 

21.	Section 139 (2) of the Criminal Procedure Decree states that "In any such trial the accused person may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be re-summoned and reheard and shall be informed of such right by the second magistrate when he or she commences the proceedings". 

22.	The court allowed the counsel of the applicant and the prosecution to make their respective submissions on that application and having considered those submissions, I made my ruling dated 23rd of July 2010. The correctness of the said ruling can be challenged in the high court in the form of an appeal at the appropriate time in accordance with the provisions of the Criminal Procedure Decree if the applicant wishes to do such. 

23.	At this point, the court has to determine whether that the said factual circumstances have a direct bearing to show that the learned Magistrate was or may be seen to be biased in the eye of an informed fair minded lay observer. The court should look at these factual circumstances alleged by the Applicant through the eyes of a fair minded reasonable man. His Lordship Justice William Marshal in Balaggan v State (2011) FJCA 43, Miscellaneous Case 31.2011 (15 September 2011) held that "The "apparent bias" test stresses that the observer has to be an "informed observer". An informed observer would know the above stated rules".

24.	In my view the magistrate has been given a discretion under the section 139 (1) of the Criminal Procedure Decree to  act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by second magistrate, or the second magistrate may re-summon the witnesses and recommence the proceeding or trial. The accused person's request to recall the witnesses pursuant to section 139 (2) is subject to that discretion given to the Magistrate. 

25.	His Lordship Justice Goundar held in Mahendra Pal Chaudhary v State (supra) that "in criminal cases judges have to make pre trial rulings and decisions during the trial. Not all the rulings that a judge makes may be favorable to the accused. The mere fact that a judge has ruled against the interest of an accused is not a ground for disqualification". 

26.	It is the judicial training and responsibility imparted in a judicial officer to shift its judicial role, mind and consideration to the matter in hand from the matters already dealt with even in the same proceedings. His Lordship Justice Paul Madigan in State v Anand Kumar Prasad and others ( Criminal Case No 24 of 2010) held that " it is of course relevant that any judicial officer, despite "perception", is able to divorce himself from other matters he may have dealt with on another occasion. As was said in VaKatuta v Kelly (1989) 67 CLR 568; a professional judge who has taken a judicial oath and who had experience in all types of cases is trained to 'discard the irrelevant, the immaterial and the prejudicial". 

27.	Despite of his contention that the refusal of the applicant's application pursuant to section 139 (2) of the Criminal Procedure Code, the applicant has not specifically proposed any material facts or reason to support his contention that the said ruling dated 23rd of July 2010 have a direct bearing to suggest that the learned Magistrate is or may be seen to be biased. 

28.	In wake of these finding I ascertain that these actual circumstances must known to the informed fair minded observer. He must see these actual circumstances through his eye with such knowledge. 

29.	Having considered foregoing reasons, I am inclined to hold that the applicant failed to establish that this actual circumstances of this instance case at this stage have a direct bearing to suggest that the learned Magistrate is or may be seen to be biased and might lead to a fair minded informed lay observer to reasonable apprehend that the learned magistrate might not bring an impartial mind to the resolution of this instance charge against the applicant. 

30.	Accordingly, I order that this recusal application of the applicant is hereby refused. 

On this 15th day of March 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.