Following on from our earlier story on Daniel Goundar failing to acknowledge a conflict of interest in a key case, Anthony Gates has gone to great lengths to defend Fiji's hanging judge.
Gates says Goundar couldn’t remember the case of Bano v State because it happened over a year ago. Yet the citation clearly states that the case was heard on 19th April 2011 and judgment was delivered on 21st April 2011. Gates defended Goundar in the Fiji Sun of 18th January 2012.
Why then is Gates lying without any embarrassment? Goundar is well aware of this case as it happened less than a year ago. Why the move to protect Goundar? In defending Goundar, Gates said Goundar had stated his relationship but no one asked him to disqualify himself.
Why would his uncle, who appeared for the appellant, and why would a fearful DPP seek to ruffle feathers?
Gates, in the Fiji Sun article, cites some obscure English code of ethic for judicial officers and deliberately fails to tell readers of the Bangalore Principles 2002 as it relates to judicial officers and which was adopted by the judiciary under the direction of Daniel Fatiaki. It constitutes the practice that judges and judicial officers in Fiji must follow.
Principle 1.2 says: A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute which the judge has to adjudicate.
Principle 2.5 says: A judge shall disqualify himself or herself from participating in any proceedings in 2.5.3 the judge, or a member of the judge's family, has an economic interest in the outcome of the matter in controversy.
Principle 4.3 says: A judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge's court, avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.
Principle 4.4 is even more directs and says: A judge shall not participate in the determination of a case in which any member of the judge's family represents a litigant or is associated in any manner with the case. The prohibition in such situations is mandatory.
Didn’t Padayachi stand to economically benefit from Goundar’s presiding over the Bano appeal as the appellant’s counsel for fee?
More importantly, and getting back to the Bano case, after being sentenced, Asma Bano made application for bail pending appeal, which was heard by Anjala Wati just a month earlier on 16th March 2011 and in her ruling Ms Wati refused the application for bail pending appeal and canvassed the facts and the law. She refused bail pending appeal as she did not find any reason to unsettle the trial magistrate's finding. The case is shown below.
Goundar's judgment on the appeal proper is contained later in this article and is prefaced by the blogger’s comments.
Bano v State [2011] FJHC 168; Criminal Case 293.2009 (17 March 2011)
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Case Number: Miscellaneous Case Number: 06 of 2011
(Criminal Case Number: 293 of 2009)
BETWEEN:
ASMA BANO
Applicant
AND:
THE STATE
Respondent
Appearances: Mr. Amrit Sen for the Applicant.
Mr. S. Qica for the State.
Date / Place of Hearing: Wednesday, 16th March, 2011 at Labasa.
Date / Place of Judgment: Thursday, 17th March, 2011 at Labasa.
Judgment of: The Hon. Justice Anjala Wati.
RULING
(On Bail Pending Appeal)
The Application
1. The applicant has made an application by a motion and 2 supporting affidavits filed on the 7th day of March, 2011 seeking bail pending appeal.
2. The application is opposed by the State.
The Grounds in Support
3. The affidavit in support of the applicant states that the she is a first offender and has reconciled with the complainant. The complainant is her brother in law and she had been working for the complainant. She is a divorcee and has 2 daughters who are looked after by her. She was residing with her old mother and a sickly father who had been bedridden by stroke. She was supporting her family. She was charged for damaging property and sentenced to 6 months imprisonment. She contends that by the time her appeal is heard she would have served a considerable time of her sentence. The sentence against her is harsh and excessive in view of the fact that the same was reconcilable.
4. The second affidavit was by the complainant himself through which he deposed that the applicant is his wife's elder sister and she had been working for him in that she was looking after his twin daughters at the time of the incident. There was no animosity between him and the applicant. He had forgiven her and was ready and willing to reconcile with her before the hearing of the case as she is a family member. He requests for bail so that the family could live together.
The Submissions
5. Mr. Sen submitted that the offence was a one that was reconcilable and the applicant was unrepresented. The Magistrate should have brought to the attention of the applicant that the offence was reconcilable. He failed to do so. The affidavit of the complainant indicates that he was ready and willing to reconcile before the hearing. If reconciliation was promoted than the proceedings would have been terminated. The accused is also a first offender with the need to support two young children. Mr. Sen added that in another matter of State v. Tomani Tokia - Magistrates Court Criminal Action Number 441/2010, the proceeding was terminated. This case indicates that there must be some consistency in the sentencing and the approach adopted by the magistrate. It was further submitted that the sentence is a short sentence and the records are yet not prepared. The previous files indicates that a lot of time is consumed in preparing the records and if such is the case then the applicant would have spent a considerable time in prison and as such the appeal would be rendered nugatory.
6. Mr. Qica stated that the damage that was done was of aggravating nature in that the amount involved as per the charge was $800.00 and as per the evidence was $775.00. Although the offence is arguably of personal and private nature, it was at the same time aggravated in nature and that may be the reason why reconciliation was not promoted. The maximum sentence is 2 years and the 6 months imposed is within the sentencing powers of his worship. His worship did consider the relevant factors. He identified the tariff and considered all the necessary factors before passing the 6 months custodial sentence. What the applicants counsel has raised is only arguable and that is not enough to let the applicant on bail.
7. Mr. Sen in reply stated that the value of the property does not make it aggravated in nature. It was emphasized that the magistrate was dealing with an unrepresented accused and he should have put the statutory provision to the accused. This was unfairly not done and had put the accused to a disadvantage.
The Law
8. Mr. Sen has only raised the statutory factors to support his ground for bail pending appeal as outlined under s. 17 (3) of the Bail Act 2002.
9. Section 17 (3) of the Bail Act 2002 outlines the factors which the court must take into account when considering an application for bail pending appeal against conviction or sentence. The factors that the court must look at are:-
(a) The likelihood of success in the appeal; s. 17 (3) (a) of the Bail Act 2002;
(b) The likely time before the appeal hearing; s. 17(3) (b) of the Bail Act 2002;
(c) The proportion of the original sentence which will have been served by the applicant when the appeal is heard; s. 17(3) (c) of the Bail Act 2002.
10. It is pertinent to remark that the applicant has been convicted and imposed with a custodial sentence and as such is not entitled to bail as of right: S. 3 (4) (b) of the Bail Act 2002.
The Consideration
11. I propose to deal with this application for bail pending appeal in light of the factors mandated by the Bail Act only, as no other factor has been pleaded by the applicant.
The Likelihood of Success of Appeal
(s. 17 (3) (a))
12. The law is well settled when it comes to deciding the likelihood of success of an appeal. The courts in Fiji have indicated that there must be a very high likelihood of success in an appeal before bail will be granted. It is not sufficient that the appeal raises arguable points but the court has to decide that the appeal, on the face of it, has every chance of success. I remind myself that at this stage I do not have to delve into the actual merits of the case.
13. The applicant was charged for damaging property. The charge states that the applicant on the 11th day of February, 2009 willfully and unlawfully damaged the vehicle registration number CJ 562 valued at $800.00 being the property of one Abdul Hamid Saheb.
14. The appeal is only against the sentence which is stated in the petition of Appeal as follows:-
1. The offence was one of private and personal nature and the magistrate ought to have promoted reconciliation as such was his obligation under the law.
2. There was error in imposing a custodial sentence when the accused was a first offender and upon incorrect application of the cases used by the magistrate in support of the sentence and by failing to follow the principles of sentencing.
3. The magistrate failed to take into consideration that the accused was a first offender and had two young children and the fact that the damage done was small in nature.
15. I will very briefly examine the grounds of appeal. The first relates to the magistrate failing to promote reconciliation. I had called for the magistrates court file as the court record was not ready. The minutes of the 10th day of December, 2009 reads as follows:-
" 10/12/09
Pros: Sgt. Hassan
Acc: P
Ct: Full disclosures served on (A). Reconciliation not possible. 26/07/10 for Hg."
16. On the above date of the 10th day of December, 2009 neither Mr. Sen nor Mr. Qica featured in the proceedings. However, the records indicate that the issue of reconciliation was at the very least put to the parties and an indication given that the same was not possible. His worship has therefore as per the court records not failed to put the statutory provision to the accused. The hearing took place for two days over a span of 3 ½ months approximately. If there was willingness to reconcile, the complainant should have brought this to the attention of the prosecutor or the court as he appeared in court to give evidence. Nowhere in the record is any suggestion, even remotely, by any one that there were chances of reconciliation. The accused was present in court on the 10th day of December, 2009 and the issue of reconciliation was brought up. That would have been sufficient for the accused to advise the court if there was any change of heart before the trial or at any time during the trial that reconciliation was possible. I do not find that this ground has every chance of success.
17. In passing I must say that s. 163 of the Criminal Procedure Code does not make it mandatory for the magistrate to invoke the provisions of the said section. Reconciliation may be promoted and in my judgment his worship did so. Further, the appropriateness of s. 163 of the Criminal Procedure Code is diminished because the value of the property is an "aggravating" feature: Saimoni Tucila v. The State [1996] 42 FLR 42 at 45.
18. The next ground is in respect of imposition of custodial sentence in light of the fact that the accused was a first offender and that the sentencing principles were applied incorrectly and the case authorities used in support also used incorrectly.
19. His worship stated that the maximum sentence for the said offence was 2 years imprisonment and was misdemeanor offence. He stated that there was no set tariff and he cited the case of Lasaro Tikomainiusiladi v. The State Criminal Appeal No. HAA 134 of 2007. Indeed the case states the same. There was no misapplication of the case authority. The case of Saimoni Tucila v. The State [1996] 42 FLR 42 at 45 however indicates that where imprisonment is considered as the appropriate penalty, the term ranges from 3 to 6 months. I note that the final sentence was within the term.
20. The case of Saimoni Tucila v. State (1996) 42 FLR 42 was used to support the prison sentence for the offence. His worship quoted the excerpt that "a prison sentence for non-violent petty crimes and property offences should be as short as possible, consistent only with the duty to protect the interest of public and to punish and deter the criminal." My examination of the authority does not indicate any misapplication of the same. This case also involved damage worth of similar amount and on appeal the sentence was reduced to 6 months.
21. Although I find it unusual for a first offender on a misdemeanor offence to be sent to prison, custodial sentences in property offences does exist within the sentencing powers of the magistrate. The custodial term therefore is not wrong in principle. This was a serious case of willful damage as the value property was $800.00 and not $80.00 as contended by Mr. Sen. I can however say that it is arguable that the custodial sentence was harsh and excessive given the facts of the offence and personal circumstances of the applicant.
22. I have gone through the other cases cited by his worship and I do not find how they were misapplied. No submission was raised in that respect to even support the ground that the case authorities cited were incorrectly applied.
23. His worship had picked a starting point which was well below the statutory maximum. He used six months as a starting and increased the same for the aggravating feature in that the value of the property damaged was substantial. The increase was for 2 months and then the mitigating factors of the accused being of 32 years of age, a divorcee, unemployed and a first offender was used to lower the sentence by 2 months. The value of the property was correctly used as an aggravating feature. The mitigations were also taken into consideration unlike what is suggested by Mr. Sen. Being a first offender does not entitle one to a reduction in the sentence. It is used to pick up the head sentence or the starting point.
24. There was nothing in the sentence to indicate that his worship considered the aspect of suspending the sentence. However the entire reading would indicate that his worship was of the mind that a sharp short sentence would both act as a punishment and a deterrent and so the issue of suspended sentence was obviously not a consideration.
25. On the face of appeal, I do not find that any ground has been demonstrated as having every chance of success. Some grounds may, as I have identified, may be arguable which I leave it to the appellate judge to consider.
26. I now turn to the next factor.
The likely time before the appeal is heard
(S. 17 (3) (b))
27. The magistrate's minutes are not extensive and it would take a fairly short time, maybe a day or two to compile the records. A strict direction for compilation would ensure expedition and I intend to give some directions at the end of the matter.
28. The appeal can be listed for hearing on the 11th day of April, 2011 which is just 24 days away or a little more than that if the presiding judge is heavily committed on the day. I must stress that the appeal may not take long and as such any adjournment from 11th April may not be too long and the matter fixed for hearing in the April-May session.
Proportion of the Sentence that would be served
(S. 17 (3) (c))
29. The applicant was sentenced on 4th March, 2011. By the time the appeal is heard, she would have served only 38 days which is 1 month 8 days out of the 6 months imprisonment. She would have only served 1/6 of her sentence. If she was to be given remission for good behavior, she would still serve a little more than a quarter of her sentence. This term in prison until the appeal is heard, in my calculation, will not render the appeal nugatory and thus the principles of natural justice cannot be said to be offended.
30. I have considered each factor separately and on consideration of each I find that the bail pending appeal should be refused at this stage.
Final Orders/Directions
31. The application for bail pending appeal is dismissed.
32. The court record must be prepared before the 11th day of April, 2011. The Deputy Registrar to supervise the preparation of record and ensure that the same is ready by 11th April, 2011.
33. The matter is listed for hearing on the 11th day of April, 2011 before a judge of the criminal division. Parties must expect some changes on this day in that the matter may be re-fixed for hearing within the session if the date does not suit the presiding judge.
34. Orders and directions accordingly.
ANJALA WATI
Judge
17.03.2011
At Labasa
Barely, a month later Goundar is assigned this case and suspends the sentence on the most flimsiest of excuses. Reasons can't be cited because Goundar did not show any reason why the appeal should have succeded when only a month earlier, Anjala Wati clearly showed strong grounds for refusing bail pending appeal.
One of the first issues that the Court looks at when considering bail pending trial is the likelihood of success at appeal and Anjala Wati found no misdirection of the law by the presiding magistrate who sentenced Asma Bano.
Along comes Goundar a month later and says, without citing a single case, authority allows the appeal against conviction and sentence. Goundar’s uncle appeared for the Asma Bano.
Now what would a reasonably informed observer in the gallery who was aware of Anjala’s ruling, Goundar’s relationship with Keshwan Padayachi who appeared for the appellant and Goundar’s fragile judgement on appeal think? Would he or she not think of bias? Would he or she not also ask as to why Anjala was not allowed to continue to hear the appeal proper?
Below is Goundar’s judgment on the appeal where the appeal was allowed. In his judgment, Goundar did not even touch on the issue of appeal against conviction but ordered the appeal had succeeded – which was against conviction and sentence.
Bano v State [2011] FJHC 227; HAA008.2011 (21 April 2011)
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No: HAA 008 of 2011
BETWEEN:
ASMA BANO
d/o Rahim Buksh
The Appellant
AND:
THE STATE
The Respondent
Counsel: Mr. K. Padayachi for the Appellant
Mr. S. Qica for the State
Date of Hearing: 19 April 2011
Date of Judgment: 21 April 2011
JUDGMENT
[1] Following a trial in the Magistrates' Court at Labasa, the appellant was convicted of damaging property and was sentenced to 6 months imprisonment. She appeals against conviction and sentence on the following grounds:
i. That the learned Magistrate erred in failing to promote reconciliation as the offence was a reconcilable offence and one of a personal and private nature and further that the learned Magistrate was obligated under law to promote reconciliation of such offences;
ii. That the learned Magistrate erred in imposing a custodial sentence when the appellant was a first offender;
iii. That the learned Magistrate erred in imposing a custodial sentence by incorrectly applying the case authority cited by him and in failing to follow the principles of sentencing; and
iv. That the learned Magistrate erred in failing to take into consideration the mitigating factors namely the accused was a first offender and had two young children and the fact that the amount of damage was small.
Facts
[2] The appellant is the sister in law of the complainant, Abdul Hamid. On 11 February 2009, the complainant visited the appellant at her home with his wife and children. While they were at her home, an argument developed between the appellant and the complainant's wife. The appellant got hold of a timber and smashed the lights, windows and windscreen of the complainant's car. The total damage to the car was $775.00.
Reconciliation
[3] Under the first ground of appeal, the appellant contends that the learned Magistrate erred in failing to promote reconciliation between the appellant and the complainant pursuant to section 163 of the Criminal Procedure Code.
[4] Section 163 provides:
"In the case of any charge or charges brought under any of the provisions of subsection (1) of section 197 or of section 244 or of section 245 or of subsection (1) of section 324 of the Penal Code, the court may, in such cases which are substantially of a person or private nature and which are not aggravated in degree, promote reconciliation and encourage and facilitate the settlement in an amicable way of the proceedings, on terms of payment of compensation or on other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated."
[5] Clearly, section 163, is a discretionary procedure. Before the procedure is invoked the pre-requisites specified in the section must be met. The procedure applied, if the case is substantially of a person or private nature and is not aggravated in degree. If these pre-requisites are not met, then there is no obligation on the court to promote reconciliation.
[6] According to the court record, the appellant appeared in the Magistrates' Court on 5 October 2009, and after waiving her right to counsel, entered a not guilty plea. She was bailed to appear in court on 23 October 2009. On 23 October 2009, the case was adjourned to 10 December 2009 to fix a hearing date. The court record of 10 December 2009 reads:
"Full disclosures served to accused.
Reconciliation not possible.
26/07/10 for hearing".
[7] The trial commenced on 26 July 2010. The complainant gave evidence. He made no reference to the fact that he had reconciled with the complainant. The appellant also gave evidence. She denied damaging the complainant's car.
[8] In my judgment, although the complainant and the appellant were related to each other, the case was not substantially of a private nature. Furthermore, the extensive damage done to the complainant's car aggravated the offence. The appellant showed no remorse for her conduct. She maintained that she had not committed any offence. Without any evidence of contrition and willingness to compensate the complainant for the damage done to his car, there was no legal basis to promote reconciliation. In any event, the learned Magistrate did in fact considered reconciliation and found it was not possible.
[9] In arriving at my conclusion, I disregarded the fresh evidence contained in the affidavits of the appellant and the complainant filed in support of the Petition of Appeal. Fresh evidence can only be led in an appeal with the leave of the court. There was no application made by the appellant to lead fresh evidence, and therefore, the affidavits filed without the leave of the court are disregarded.
[10] The first ground of appeal fails.
Appeal against sentence
[11] The second, third and fourth grounds concern the appeal against sentence.
[12] The contention of the appellant is that the learned Magistrate erred in imposing a custodial sentence when she was a first time offender with two young children and the amount of damage was small.
[13] The learned Magistrate gave detailed reasons for the sentence he imposed on the appellant. He considered that the maximum sentence for damaging property was 2 years imprisonment. After referring to the High Court cases on damaging property, the learned Magistrate picked 6 months imprisonment as his starting point. He added 2 months to reflect the aggravating factors and deducted 2 months to reflect the mitigating factors.
[14] However, nowhere in his sentencing remarks, the learned Magistrate considered suspending the sentence. I find the failure to consider suspending the sentence was an error of law. The appellant was a first time offender and although the offence was not substantially private in nature, the offence arose from a domestic dispute between two relatives.
[15] These were compelling factors to justify suspending the appellant's sentence.
[16] In all circumstances, I find the custodial sentence to be manifestly excessive.
[17] The appellant has now served nearly two months of her sentence. I think it would be just and appropriate not to impose any further punishment on her. I order that the appellant be released from prison forthwith.
[18] The appeal against sentence is allowed.
Daniel Goundar
Judge
At Labasa
Thursday 21 April 2011
JUDICIAL CODE OF CONDUCT
FIJI ISLANDS
FOREWORD
by
The Honourable Mr Justice Fatiaki
Chief Justice of Fiji
Since 1972 almost every major judiciary has adopted a code of conduct or ethical principles for the guidance of its judges and magistrates.
Notable examples of these include the statement of Ethical Principles for Judges adopted in Canada in 1998, the European Charter on the Statute for Judges in the same year, the Restatement of Values of Judicial Life adopted by the Chief Justices Conference of India in 1999, the Guidelines for Judges of South Africa issued in March 2000 and the Guide to Judicial Conduct published by the Council of Chief Justices of Australia in June 2002.
In November 2002 a Round Table Conference of 17 Chief Justices held in the Peace Palace at The Hague, adopted the Bangalore Principles of Judicial Conduct which are now widely accepted as defining the international standards for ethical conduct by members of the judiciary.
In 2002 Fiji’s judiciary decided that it too should adopt and publish a clear open and transparent statement of the ethical principles by which it holds itself to be bound, based on the Bangalore Principles.
The promulgation of these guidelines is also done as a gesture of goodwill and in recognition of the concerns that have been raised, from time to time, by members of the public about the declining standards of conduct and integrity of judicial officers.
These guidelines have had a lengthy gestation since they were first mooted in the year 2000. There have been several drafts circulated and discussed and submissions were received from judges and magistrates. I am confident that these guidelines reflect the collective wisdom and support of the entire judiciary.
I wish to record my appreciation to the Fiji Law & Justice Sector Program for its assistance in bringing this booklet to fruition.
It is my pleasure to formally publish these Guideline Principles for Judicial Officers in the Fiji Islands.
2005
CONTENTS
FOREWORD
PREAMBLE
DEFINITIONS
01 INDEPENDENCE
02 IMPARTIALITY
03 INTEGRITY
04 PROPRIETY
05 EQUALITY
06 COMPETENCE AND DILIGENCE
