Recusal request denied
HIGH Court in Suva judge Justice Thushara Rajasinghe recently refused a recusal application filed by a lawyer representing a woman who allegedly facilitated the trafficking of 17 Fiji citizens.
Seta Sanjana Ram was charged along with her sister Geeta Anjana Chandar, who lives abroad, with 17 counts of trafficking in persons, 16 counts of obtaining property by deception and two counts of money laundering.
Ms Ram appeared at the High Court in Suva last week before Justice Rajasinghe.
Her lawyer Mohammed Yunnus earlier told the court that he filed the application by relying on Section 15 (1) of the Constitution, which said “every person charged with an offence has the right to a fair trial before a court of law”.
Mr Yunnus said his request for recusal was based on the abolition of the assessor system and for fairness, judges in the magistrate’s court should not receive disclosures.
In dealing with the first issue, which was to determine the role of a judge during the assessors’ system and also post assessors system, Justice Rajasinghe said according to Section 237 of the Criminal Procedure Act, the judge was not bound by the opinion of the assessors when he made the judgment.
He said the judge was still required to independently assess the evidence presented in a hearing.
Justice Rajasinghe further said the removal of the assessors’ system by the recent amendment to the Criminal Procedure Act had not changed the role of the judge as to the sole judge of the facts and law.
On the second issue, regarding the legal background of filing disclosures in the High Court, Justice Rajasinghe said the defence counsel had submitted that a section of the Criminal Procedure Act did not require the DPP to file disclosures with the information, hence, the filing of disclosures with information was dubious by law and should be stopped immediately.
The court was told that the DPP in his submission, highlighted that neither the Constitution nor the Criminal Procedure Act required the prosecution to file disclosures in court and moreover, there were no practice directions issued by the Chief Justice to that effect, hence, the reason for the practice of filing disclosures in court was now lost in time.
Justice Rajasinghe ruled that the duty of the disclosure was an inseparable aspect of a fair trial and said the prosecution’s duty of disclosures was a common law legal requirement.
He further said the prosecution owed the duty of disclosure to the court to ensure a fair trial.