Rasova’s Recusal Application Denied; Costs of $3000 Ordered Against Him
The Anti-Corruption High Court of Suva has refused and dismissed SODELPA Parliamentarian, Simione Rasova’s recusal application.
The Court also ordered costs of $3000 against Rasova.
Rasova is charged by the Fiji Independent Commission Against Corruption (FICAC) for allegedly and falsely stating that his permanent place of residence was in Nasenivolau, Nabouwalu village, Ono, Kadavu Island, and allegedly obtained $21,350 between July 2019 and April 2020.
He is charged with one count each of false information to a public servant and obtaining financial advantage.
The trial against Rasova was due to commence on September 5, but the learned counsel for Rasova had filed a Notice of Motion seeking the following orders from the court:
■ That the learned Judge recuse himself from adjudicating and hearing any further in the case of HACD 03/2022;
■ That the learned Judge remit the case to His Lordship the Chief Justice or allocating Judge of the Criminal Division of the High Court of Fiji for determination of the trial issues and for hearing/trial; and
■ Any other orders the Court deem fit and proper in the circumstances.
Judge’s Ruling
Anti-Corruption High Court Judge Justice Dr Thushara Kumarage, in his ruling, said in considering the submissions made on behalf of Rasova, on the grounds of apparent or ostensible biasness of the Judge hearing the matter on having heard similar matters and having made determinations, he wished to inform all the parties in the matter that he was mindful of the need to be devoid of any biasness in adjudicating matters of this nature as it remained as the keel of the Common Law judicial system.
He said in addressing the concern of possible biasness of Rasova, he needed to emphasise that as categorically mentioned and echoed throughout the Judgments in the cases of FICAC v Niko Nawaikula, FICAC v Ratu Suliano Matanitobua, and FICAC v Salote Radrodro, he had to consider the facts and circumstances applicable to each matter very subjectively in determining the guilt of the relevant accused.
He said in the matter of FICAC v Niko Nawaikula, though there was a need to provide a definition to the word ‘permanent residency’ in line with the Common Law judicial precedence in the absence of a definition of Fijian judicial literature, facts pertaining to any particular case was suggested to be applied subjectively.
The Judge said in view of the contention of Rasova, he needed identify a judicially
approved test in Common Law jurisdictions that could be utilised in making the determination in relation to the application of apparent biasness.
He added that though the witnesses who would give evidence representing the Parliament in all four matters could be the same, their evidence would be in relation to their interactions with the individual accused and the suspected modus operandi of that particular accused.
He said Rasova would have the right to cross-examine these witnesses and challenge their evidence, where there was no danger of the Court adopting the evidence led in the previous cases in the trial against Rasova, thus this contention was unfounded.
Justice Dr Kumarage further added that Rasova claimed that the elements of the offence he was charged with and the elements of the previous three cases were the same.
The Judge said surely if he was charged with the same offence in a particular jurisdiction, he had to expect the elements to be the same no matter if one was a Fijian or Russian; thus this claim was devoid of any merit.
Value of the witnesses
He said in relation to factual and evidential value of the witnesses being the same, as claimed by Rasova, he found the aspect was contingent on the interactions Rasova had with the witnesses.
Justice Dr Kumarage said apart from the few official witnesses representing Parliament, he was unaware of the evidence expected from other witness to be led in this case.
He said in this light, when making any allegation in relation to the existing apparatus in our country, Rasova had to be mindful that such an allegation should not be a passing adjunct, since we lived in a democracy, where independent bodies were in existence for the executive, legislature and the judiciary with the necessary checks and balances for the proper operation in place.
The Judge said he became a Judge in Fiji after taking an oath before the President of Fiji to function in accordance with the Constitution of Fiji.
He added that in this matter, he did not consider that there was any real possibility that his adjudication would lead to a reasonable apprehension of pre-judgment or bias.
He said in view of his analysis of facts and circumstances applicable to this case, he refused and dismissed the application for recusal.
Further, the Judge said, in the background of this Court dismissing a similar recusal application previously which was filed by Ratu Suliano Matanitobua when charged by FICAC on identical counts, and when Rasova applied for recusal on similar grounds in this matter, this Court perceived that before filing this application, Rasova had access to the adjudication of this Court of an identical application.
He said this Court was confident that this application was filed by Rasova to prorogue the proceedings in the substantive matter pending in this Court against him.
Justice Dr Kumarage ordered, as a consequence, acting under Section 150 (4) (b) of the Criminal Procedure Act 2009, the Court imposed costs of $3000 against Rasova.