#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Fiji's hanging judge fails to declare conflict of interest

Monday, December 19, 2011

Fiji's hanging judge fails to declare conflict of interest

Daniel Goundar
It would not be allowed in other countries yet in Fiji, Justice Daniel Goundar is hearing cases where he clearly has a conflict of interest.

Look at the case below:

It was an appeal from Magistrates Court in Labasa - and  fairly recent. The counsel for the appellant was Keshwan Padayachi - Goundar's real maternal uncle > Keshwan and Goundar's mother are real brother and sister.

Buth there was no declaring of a conflict of interest. No judicial transparency. And no mention of appeal against conviction. Note, too, the lenient sentence.

Goundar should not have heard the case given his connection with Keshwan. He should've withdrawn yet continued to preside making a mockery of justice.

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   
 

   

   

   

   

34 comments:

Joker said...

Now now thats transparency Bainimarama style.

Anonymous said...

There is no evidence of bias in this judgment. The correct principles of the law were used by Judge Goundar. I am a close family friend and he does not hesitate to shoot my arguments down if it is not premised on the correct principles of the law.

Anonymous said...

Yes, you're right c4.5 the Judge
should have declare a conflict of interest.But other circumstances
needs to be taken in considerations
such as: Shortage of Judges;economic problem;Government
is under dictatorship etc.
At least,someone is still trying to
make the Government functional?

FRANCIS KEAN said...

Anonymous 9.29pm, are you nazhat shameem ? 'cause you sound like her stupid self ...only she in her power trippin' stupor would have such verbal spew. This dickhead student cum judge from Waikato doesn't know his rear from his torso, let alone the law, and I run a fuckin' successful law firm in this third world shithole as we speak... come check us out in Lautoka, the next time the gay Marist sissys want to cruise our way down to the fiery West...you soiled Marist so and so's
First the catholic priests, then your senior boys !!!!ughhh yuck you poofters !!

Anonymous said...

@ 9.29, just who cares whether you're his father, sister or whatever, tut tut.

See the lengths that these treasonous, opportunists lot will go to, to protect their own.

It's trite law that there is no requirement to show evidence of actual bias, one only needs to establish "a perception of bias by a reasonable bystander". Gounder fails on all counts. Give it up Gounder, you're an opportunist through and through!

Anonymous said...

Close family friend....you have missed the legal point completely.It has nothing to do with objectivity but the letter of the law....he should not have heard the case period.
I guess your views are as warped as his on this issue.
Bastardising the law is the problem that befalls the followers of of this regime and championed by the regime.

Anonymous said...

Idiot

Anonymous said...

Gounder you poofter time to give up. You have put too many innocent people in jail for your own personal gain. You do it to suck up to ASK.

Anonymous said...

Waikato? Didn't this dickhead study at USP?

Anonymous said...

The women was in prison for 2 months and Goundar let her out and left the door open for to get her conviction disappeared.

Whats the bitch.

Impossible to get a better result.

This ungratefull appelant should have gotten two years for denial of guilt.

...but being sent to St. Giles would have probably been the best option, this is one disturbed individual.

Radiolucas said...

I think that the decision was probably just but he still should have recused himself from hearing the matter - this is plainly innappropriate.

Anonymous said...

@ 8.40am, that 'dickhead' judge did get his law degree from Waikato University in New Zealand. Then tried to do his masters online with an aussi uni to get an australian PR.

@ 1.30am, that's who i first thought of too, since goundar is her pet boy. Is the treasonous legal advisor trying to realise her lost ambition for the CJ post thru that biased 'dickhead' judge. hah.

Anonymous said...

Isnt this the guy who jailed Motibhai for selling a clock?
Mr Goundar- since when is selling a clock a crime?
Since when is making a profit a crime?
Who in Fiji does not know that Patel owns Motibhais? (part of his crime was not dislosing that Motibhai was his company)
THATS LIKE SAYING MR OBAMA DID NOT DISCLOSE HE IS THE PRESIDENT!

Anonymous said...

Anon @ 12:39 PM

Anyone with an iota of common sense to visit www.immi.gov.au would know know that Australia wants fulltime 2 years' study in order to be able to claim points.

That this chamar southie labasia did not even bother reading up this vital requirement shows his brain is probably no bigger than his foreskin!

Typical!

Anonymous said...

Guess how this was made possible? Keshwan Padayachi is the Illegal Solicitor General's father-in-law.

Taukei. said...

Reads like a certain section of Fijian society is making a covort takeover bid for whats left of Viti's judicial reputation.
Good luck - just hope you people make a better job of it than what you did with Sugar. Would also respectfully advise one D Gounder of the wonderful atractions available in Naitisiri any time of year - can organise a ring side seat at a ceremonial burning of Ratu Inokes empty Bure. Vinaka.

Anonymous said...

Fiji judiciary is corrupt, including its Chief Justice, Mr Gates.
What else do you expect from people picked by a corrupt Prime Minister and a corrupt Attorney General.
Why else did Khaiyum kick out the Sri Lankans?
So that yes-men like this clown, Gounder, can carry out whatever Aiyaz says.
Judiciary is corrupt. FIRCA is corrupt. Police is corrupt. How about the police wasting their time looking for an ipod at Yat Sen School.
The Fijian Army is corrupt.

Bainimarama's govt is corrupt!
Anyone who thinks otherwise is either blind or mentally handicapped.

-Valataka na Dina.

Anonymous said...

Most contributions appear to reflect they have expertise in legal matters. Obviously not. Most have no idea.i
Suggest be quite then to open your mouth and make a fool of yourself.
Gounder has followed the right guidelines.

Anonymous said...

Most contributions appear to reflect they have expertise in legal matters. Obviously not. Most have no idea.i
Suggest be quite then to open your mouth and make a fool of yourself.
Gounder has followed the right guidelines.

Cando Tappoopooopoo said...

Anon 1.20pm. You mean it's like Obama not disclosing his black!

Motibhai case was a setup from start. Any smart citizen would know this. However all that are sucking up to FB or ASK would say the opposite. Sad sad sad.

Josaia V. Bainimarama said...

This is transparency the Bainimarama way

Anonymous said...

Anon 8.28...It seems only you know about legal matters aye!Right guidelines for what??Oh yes to follow ASK's directives and get promoted.Nazhat Shameem you are sooo easily caught out as a blogger.

Anonymous said...

Anon @ 8:28 AM

Er, I think you meant "quiet" rather than "quite"

I would listen to you, except I don't give a toss to losers who cannot even spell. Try harder next time!

Anonymous said...

Anon.
Any person with any intelligence will understand the guidelines.
I forgive you for your ignorance.
Like i said, if not sure do not open your mouth unless you want to be continued proved what an idiot you are

Anonymous said...

Motibhai case of "conflict of interest"

Person who should have been thrown in jail is naidu the architect.
who the f@#k looks for clock for the time when every man and his dog,cat and mongoose has got a mobile that provides time.......what a bloody waste of money...so for that alone motibhai should have been jailed.

as for the architect he is still running around suva costing clients money for crap jobs.

wheres the FICAC for bastard architects , engineers, shonky builders, surveyors, accountants and lawyers.

who lot should be put in prison and only released if they can prove their innocence.

10 complaints = life
5 complaints = 5 years
1 complaint = 1 year

At least half will be away for life

Radiolucas said...

@ Anon 10:01

I think 8:28 was trying to hack apart the old saying: "Better to remain quiet and be thought a fool than open your mouth and remove all doubt."

You do not need legal "expertise" to see a conflict of interest. A conflict of interest has no strict guidelines in common law - just that the appearance of a conflict is enough to BE A CONFLICT. Nothing more, nothing less.

I think Daniel's decision was correct, but he shouldn't have sat on the case. He should have recused himself - instead he brings the already much-maligned Bainimarama Kangaroo Court system into greater disrepute.

Anonymous said...

The Casino licence award is multi million dollar scam by Junta.

Who is dictator to give the licence?

Where is Tender Board?

Why no tender called?

Expression of Interest is not public tender ?

Who is illegal AG to get the Expression of Interest?

These thugs must be charged and gailed for corruption.

Fiji not junta father business cos taxpayers monies.

Anonymous said...

The casino licence given is a scam.

millions in kickbacks/bribes paid to puppet and puppet master.

puppet master put one little ad in fiji sun called expression of interest then get the application to himself.

the puppet and puppet master minting millions in this scam.

call a spade a spade.

this why the pair no want TI investigation of fiji.

This offical corruption/abuse of office/defraud fiji gov/extortion-naboro waiting for these crooks.

challenge the junta to make the all the applications public.

Report to TI.

Taukei. said...

Sure why not! Lets open a Chinese "Casino" in Viti - just pray it fairs better than their last venture in these south seas parts - remember that one a few Islands away? Local Kai so impressed they burned it all down -chased all the mutitude of camp followers & business people etc all the way to Australia.
Here's a couple of ideas that might speed things up - build it in Naitisiri & appoint Gounder resident manager? Vinaka.

Anonymous said...

Another one licking Bai's black ass.

Anonymous said...

Ok guys, has anyone named the Casino winner yet? China is well known for
Casino operation and they are good at it.Macau Island Casino is an excellent example and they're so
successful that they're slowly moving-in to Las Vegas USA.

Anonymous said...

Anon@9:07... how'd you know that Bai has back ass? Unless you've been kissin it? Did'nt you noticed
that during you're ass kissin session that the man demeanors has
finally changing? He's even warns his military people that they have to smarten up or they'll be shipped-out?

Dineh. said...

Appologies for incorrectly naming
China - but nobody including the Lone Ranger saw this one coming. Brainbox Chief is non other than one Larry Claunch - formally of the Yaqara Studio City scam - but like a quarter back on a bad day his timings out as Larry's currently under intense scrutiny from several fronts regarding previous business ventures into Viti. Peter Foster by another name.
How a respected stalwart First Nation Tribe such as Snoqualmie became involved in something as squalid as this bears testimony to his power of persuation & their naivity.

Black Ass Bai said...

Anon@3.22am, you sound angry because you don't want people to know that the ass that you've been kissing, Bai's ass that is, is black as charcoal. How can you even do that loser? Ah well that's how you got promoted so congratulations ass licker.