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State v Agen (No 3) [2022] PGNC 595; N10277 (26 April 2022)

N10277

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1029 OF 2019

THE STATE

V

ROBERT AGEN
(No 3)

Waigani: Ganaii, AJ.
2022: 26^th April

CRIMINAL LAW – Practice and Procedure –Inherent power of Court -Application for disqualification - Whether Face Book post by complainant is appealing to the Court and is a ground for disqualification - Whether Judges work history in previous employment is a ground for disqualification – Perception of bias

Held:

1. The legal test for determining whether there is an apprehension of bias is whether in all the circumstance, a fair-minded lay observer with the knowledge of the court systems and its processes might entertain a reasonable apprehension that the judge would be bias and might not bring an impartial and unprejudiced mind to the resolution of the issue at trial. Webb v Queen (1994) 182 CLR 42, 62 per Deane J.
   
2. The law is clear on the question of when a court should disqualify itself. In Webb v R [1994] HCA 30; (1994) 181 CLR 41; it was held that a Judge would only or should disqualify themselves by reason of apprehension of bias, under one or more of the following principles: where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise, secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings and thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, that is where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts.
   
3. The test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors (1998) SC 592 should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra) and in Application by Herman Joseph Leahy (2006) SC981. The Supreme Court in Herman Joseph Leahy (supra) made it clear that the “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds”.
   
4. General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity. (See Application by Herman Joseph Leahy (2006) SC981) and State v Paraka [2020] PGNC 239; N8508 (22 September 2020)).
   
5. If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias, there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, e.g. if the Judge has expressed a prior opinion on the issues for adjudication. (See State v Paraka [2020] PGNC 239; N8508 (22 September 2020)).
   

Cases Cited:
Papua New Guinean Cases

Application by Herman Joseph Leahy (2006) SC981
PNG Pipes Ltd & Anor v Mujo Sefa & Ors (1998) SC592
State v Paraka [2020] PGNC 239; N8508

Overseas Cases

Webb v Queen (1994) 182 CLR 42, 62 per Deane J
Webb v R [1994] HCA 30; (1994) 181 CLR 41

Counsel

Ms M Tamate, for the State
Mr J Sebby, for the Defendant

RULING ON APPLICATION FOR DISQUALIFICATION

26^th April, 2022

1. GANAII, AJ: This is a ruling on an application by Mr. Agen through his lawyer Mr. Sebby, pursuant to s 155 (4) of the Constitution, seeking that this court disqualify itself from hearing this case. The accused is charged with one count of Assault occasioning bodily harm contrary to s 340 (1) of the CCA, one count of Grievous Bodily Harm contrary to s 319 of the CCA, and one count of Rape contrary to s 347 (1) of the CCA. Upon presentation of the indictment, the accused’s counsel moved this application seeking that the court disqualifies itself from presiding in the trial.

Grounds

2. The grounds relied on in this application are in the following terms:

1. "The female prosecutor having prosecution carriage of the case and the

female victim in this case have made various posts on Facebook, which was appealing to the Court who is also a female to support their case against the applicant/accused;

2. In her past employment, as a State Prosecutor, the judge had been

heavily involved in the prosecution of gender-based violence or domestic violence cases that there will be a likelihood of perceived bias now when dealing with the accused’s case; and

3. In the judge’s former employment as a District Court Magistrate, she

had been involved in the publication of the court’s case study of Domestic Violence cases at the Boroko District Court, by the Department of Pacific Affairs at the Australian National University which shows her involvement in domestic violence cases”.

Facebook Post

3. Regarding the Facebook post, Defence counsel submitted that in the way the post had been made and posted to read: “State stands ready to win,’ it appeared that the complainant was appealing to the judge in this Court who is a female to be swayed in the complainant’s favour. It is submitted that any reasonable person would have perceived this to be the case and that the Court would be or is biased.

State’s Response

4. State submitted that the applicant’s submissions that there is an apprehension of bias, is based on a mere suggestion that the photo posted on Facebook shows an apprehension of bias held by the judge.

5. The mere submission by the defence that the apprehension of bias is based on the State prosecutor posing with the complainant in the court room with the captions “State stands ready to win” does not amount to any bias perceived by the Courts.

6. State Prosecutor submitted that the Facebook post was the complainant’s way of giving an update on the case. The post does not discuss the evidence as the complainant is aware that her posts may be contemptuous as the matter is still pending before the court. For that, it is submitted that the post was not meant to attract the attention of the presiding judge.

7. State submitted that there is no evidence that the judge has taken a personal interest in the matter and is standing in solidarity with the female complainant and the female State prosecutor against the accused. Although, the complainant’s actions are not illegal, the State has taken appropriate steps to advise the complainant who had removed the subjected post from Facebook.

8. The applicant has taken improper steps by writing directly to the Chief
Justice without making an appropriate application before the Court for disqualification. That is a matter of serious concern as the applicant’s actions does undermine the Court’s ability, its independence and impartiality to deal with the matter.

9. There is no evidence that the opinion of the Chief Justice was that the Court
will disqualify herself on the basis that she is a female Judge and she may be compelled to convict the accused by virtue of that fact, as submitted by the applicant’s counsel.

10. The court will find that there is no evidence to substantiate this claim and
therefore, there is no truth in the applicant’s claims. The application must fail.

11. The fact that Her Honour, Acting Justice Tracy Ganaii was a former employee of the Office of the Public Prosecutor and had worked within the Family and Sexual Violence Unit, alone is not a ground for disqualification. State refers to the case of State v Paraka [2020] PGNC 239; N8508 (22 September 2020).

12. If the court were to grant the application this would set a bad precedent.

13. State objects to the application as there is no basis for the Court to disqualify itself.

Consideration

14. The legal test for determining whether there is an apprehension of bias is whether in all the circumstance, a fair-minded lay observer with the knowledge of the court systems and its processes might entertain a reasonable apprehension that the judge would be bias and might not bring an impartial and unprejudiced mind to the resolution of the issue at trial: Webb v Queen (1994) 182 CLR 42, 62 per Deane J.

15. In this circumstance, defence says a combination of facts they rely on would make the reasonable lay person entitled to feel that there will be an apprehension of bias or that the post has appealed to the judge as a female so that the judge should be removed from the judgment seat. These facts are firstly; the Facebook post with the captions, ‘State stands ready to win;’ and secondly, in her former life, the presiding judge was involved in the prosecution of domestic violence cases as a State prosecutor and also had published data and statistics on domestic violence court cases at her court location, as a magistrate.

16. The law is clear on the question of when a court should disqualify themselves. In Webb v R [1994] HCA 30; (1994) 181 CLR 41; it was held that a Judge would only or should disqualify themselves by reason of apprehension of bias, under one or more of the following principles: where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise, secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings and thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, that is where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts.

17. The test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors (1998) SC 592 should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra) and in Application by Herman Joseph Leahy (2006) SC981. The Supreme Court in Herman Joseph Leahy (supra) made it clear that the “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds”.

18. Furthermore, the Court in Herman Joseph Leahy (supra) stated that:

“3) General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.Paraka (supra) applied this principle.

4) If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, e.g. if the Judge has expressed a prior opinion on the issues for adjudication ......”.

(underlined emphasis mine)
19. In this instant, it becomes a question of whether the perception said by the applicant to be held by a lay person is merely a “suspicion or based on reasonable, and not fanciful, grounds” that the judge would become bias.

20. I respond by saying these. Firstly, there is no evidence that this Court has seen, read, said or done something to show support or approval to and for the comments made in the Facebook post. Secondly, there is no evidence of what the public perception is or what the public view is about the particular Facebook post.

21. The only evidence of any perception of bias due to the Facebook post is in the manner contended by the applicant that the Facebook post is appealing to the female judge. That will be the case if this Court has conducted itself in a manner that demonstrated that the Court had firstly, showed an interest in the case before it, through a direct, indirect, or pecuniary way or otherwise, secondly, by its conduct including having published statements, in the course of, or outside the proceedings about this case and thirdly, it will be the case if the Court has had an association or relationship, either directly or through her spouse or children with the complainant or the State in the proceedings.

22. Further, there is no evidence that the Court has extraneous information about the case, or that it had presided over an earlier matter and has had some knowledge about this case which will be prejudicial to the present case. Consequently, this Court has not placed itself in a position that may be perceived by a lay observer as biased.

23. I accept the evidence of the State that the Facebook post was the complainant’s way of giving an update on the progress of her case. The post does not discuss the evidence and was not meant to appeal to the presiding female judge.

24. There is no evidence that this court has taken a personal interest in this matter. There is no evidence to suggest that the judge, being a female is standing in solidarity with the female complainant and the female State prosecutor against the accused.

25. I also find that the applicant had taken improper steps by writing directly to the Chief Justice without allowing this application for disqualification to be heard before the Court. The applicant’s action does undermine the Court’s ability, independence and impartiality to deal with the matter.

26. This Court finds that there is no evidence and no truth in the applicant’s claims that the Facebook post had the effect of appealing to the judge when seen by an ordinary layman. Further, there is no evidence to support the defence claim that when the Facebook post is seen by an ordinary layman, it has the effect that there will be an apprehension of bias held by the female judge. The application, therefore, must fail.

27. I find that the apprehension of bias as contended by the applicant is fanciful, without merits and must fail. I refused the application for disqualification.

Order

28. I make these orders.

1) The application is refused.

2) The matter will proceed to trial.

Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Joppo Lawyers: Lawyers for the Defendant