052-SLLR-SLLR-1995-2-DR.-KARUNARATNE-V.-ATTORNEY-GENERAL-AND-ANOTHER.pdf
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
DR. KARUNARATNE
v.
ATTORNEY-GENERAL AND ANOTHER
COURT OF APPEALD.P.S. GUNASEKERA, J„
HECTOR YAPA, J„
C.A. 495/95
C. COLOMBO 3249/87JULY 19, 1995.
High Court Trial – Application to Transfer case to another High Court – JudgeHostile to Counsel – Fair and Impartial Trial – Bias – Real likelihood of Bias -Reasonable suspicion of Bias.
An application was made by the Counsel for the accused Petitioner to the HighCourt, to transfer the Trial to be heard before another High Court Judge. Thebasis for this application was that the Counsel had filed an affidavit before theCourt of Appeal in an application made by one X for the transfer of his case; fromthe same High Court and therefore the Petitioner had a reasonable apprehensionthat his case would be prejudiced, if the Trial is continued before the same HighCourt Judge. This application was refused by the High Court Judge.
It was urged, that a fair and impartial trial cannot be had before the same HighCourt Judge who is hearing the Trial and further it is expedient – in the interest ofjustice.
Held:
The two tests for disqualifying bias are –
Test of Real likelihood of bias;
Test of Reasonable suspicion.
One cannot take the view that the Learned Trial Judge could be said to bebiased against the Petitioner solely by the fact of the Counsel having filed anaffidavit in a case where an application for Transfer was made by some otheraccused.
“A judicial officer is one with a trained legal mind and that it is a seriousmatter to allege bias against a Judicial Officer and that this Court would notlightly entertain such a allegation.
In the present case Court is of the view that there was no real likelihood ofBias.
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In regard to the application of the Test of reasonable suspicion it must beshown that the suspicion is based on resaonable grounds which wouldappeal to the reasonable right thinking man.
It can never be based on conjecture or on flimsy insubstantial grounds.There must be material which shows a tendency to favour one side unfairly atthe expense of the other.
Cases referred to:
Perera v. Hasheed – Vol. I Srikantha Law Reports page 133 at 145.
R v. Rand- 1866 – L.R. 1 QB, P. 230
Rv. Camborne Justices ex Parte Pearce – 1954 2 AER 850
APPLICATION to Transfer.
R. K. W. Gunasekera with Ms. Gowri Moragoda for Petitioner.
Anura Meddegoda, S.S.C. for 1st Respondent.
F. C. Perera with Ms. Gowri Moragoda for 2nd Respondent
July 26, 1995.
GUNASEKERA J.,
The Petitioner who is the first accused in Colombo High Courtcase No. 3249/87 was indicted by the Attorney General with havingcommitted three offences of forgery punishable under section 456 ofthe Penal Code and with having conspired with the 2nd Respondentwho is the 2nd accused in the said case to commit forgerypunishable under section 113(A) read with sections 102 and 456 ofthe Penal Code. The date of offence was 10th December 1980.
The trial commenced in 1988 before the then High Court Judge ofColombo and the Petitioner was represented by Mr. R. I. Obeysekera,PC. with the elevation of the trial Judge to the Appellate court the trialwas continued before his successor and on his retirement, the trialwas continued before the learned High Court Judge in Court No. 6.Learned President’s Counsel who originally appeared for thepetitioner ceased to appear for him after 18-11-1993 and thereafterthe petitioner was represented by Mr. U.D.M. Abeysekera, Attorney-at-Law. According to the affidavit of Mr. Abeysekera, (P6) filed alongwith the petition he had appeared for the petitioner on 27 trial datescommencing from 11-01-1994.
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When further trial was taken up on 25-05-1995 which was the 55thtrial date an application was made by him to the learned High CourtJudge to transfer the trial to be heard before another High CourtJudge. The basis for the application of learned counsel for thepetitioner was that he had filed an affidavit (P2) before the Court ofAppeal in an application made by Rev. Kananke Dhammadinna theaccused in High Court Colombo case No. 5930/93 for the transfer ofhis case from the same High Court and therefore that the petitionerhad a reasonable apprehension that his case would be prejudiced ifthe trial was continued before the learned High Court Judge in courtNo. 6.
After submissions were made by learned counsel for the petitionerand the learned Senior State Counsel who appeared for the AttorneyGeneral learned High Court Judge refused the application for thetransfer by his order marked 'X' dated 25-05-1995. The reasonsgiven by the learned High Court Judge for refusing to transfer thecase was that he had no power to transfer a case that was beingtried before him and being the 55th date of trial in respect of offenceswhich are alleged to have been committed nearly 15 years ago thatthere were no reasonable grounds adduced on behalf of thepetitioner to infer that an affidavit that had been filed by the learnedcounsel for the petitioner in another case had any bearing on thedecision of the petitioner’s case.
At the hearing before us it was submitted by learned counsel forthe petitioner that according to the petitioner that by reason ofMr. Abeysekera filing the affidavit P2 in the Rev. Dhammadinna caseit became apparent to the petitioner that the learned trial Judgebecame very hostile towards Mr. Abeysekera during the latter stagesof the case and that the petitioner reasonably apprehends that a fairand impartial trial cannot be had before him as there is a reallikelihood of bias on the part of the learned trial Judge. It was furthercontended by the learned counsel for the petitioner that according tothe petitioner, the Judge’s gestures, the tone of his voice and ordersmade by him refusing applications made by his counsel and theJudge’s conduct in permitting interruptions during his counsel’s crossexamination of witnesses were in marked contrast to the treatmentmeted out to other counsel appearing in the same court.
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Learned counsel for the petitioner urged two grounds in support ofhis application for the transfer of the petitioner’s case from court no. 6to another High Court.
They are:
that a fair an impartial trial cannot be had before the learnedtrial Judge who is hearing the trial in court No. 6, and
that it is so expedient on any other ground.
The main contention of learned counsel for the petitioner is that inview of the affidavit filed by his counsel in another case whereallegations of bias were made against the trial Judge that thepetitioner reasonably apprehends that he would be deprived of a fairtrial. The question for determination before us is as to whether onecould take the view that the learned trial Judge could be said to bebiased against the petitioner solely by the fact of his counsel havingfiled an affidavit in a case where an application for transfer was madeby some other accused . In Perera v. Hasheed 0) G. P. S. De Silva, J.(as he then was) made the observation that it must be rememberedthat a judicial officer is one with a trained legal mind and that it is aserious matter to allege bias against a Judicial Officer and that thiscourt would not lightly entertain such an allegation. In severalauthorities which have been considered in the case of Perera v.Hasheed (supra) two tests for disqualifying bias have beenformulated:
The test of real likelihood of bias, and
The test of reasonable suspicion of bias.
In the case of R v. Rand™ Blackburn, J. said “wherever there is areal likelihood that the Judge would, from hindered or any othercause have a bias in favour of the parties it would be very wrong inhim to act…”. This dictum of Blackburn, J. was applied in R v.Camborne Justices ex parte Pearce <3> and ruled in favour of the real'likelihood' test. The possible difference between the two tests arosefrom the facts in the case. An information was laid against theapplicant under the Food and Drugs Act by an officer of the CornwellCounty Council. At the trial of the applicant Mr. Thomas who hadbeen elected a member of the County Council acted as clerk to theJustices. After the Justices had retired to consider their verdict, the
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Chairman sent for Mr. Thomas to advice them on a point of law.Mr. Thomas adviced the Justices on the point of law but the facts ofthe case were not discussed at all with him. Having given his advisehe returned to the Court. An order for certiorari was sought on thebasis that there was a reasonable suspicion of bias becauseMr. Thomas was at the time of the trial, a member of the CountyCouncil on whose behalf the information was laid against theapplicant. It was argued that there was a suspicion of bias but thecourt rejected that test and stated thus:
“In the judgment of this court, the right test is that prescribed byBlackburn, J. in R v. Rand, namely that to disqualify a person fromacting in a judicial or quasi judicial capacity on the ground ofinterest (other than pecuniary or proprietory) in the subject matterof the proceeding, a real likelihood of bias must be shown… Thefrequency with which allegations of bias have come before thecourts in recent time; seems to indicate that the reminder of LordHewart, C. J. in R v. Sussex JJ ex parte Me. Carthy, that it is offundamental importance that justice should not only be done, butshould manifestly and undoubtedly be seen to be done is beingurged as a warrant for quashing convictions or invalidating orderson quite unsubstantial grounds and, indeed, in some cases, on theflimsiest pretexts of bias. While endorsing and fully maintaining theintegrity of the principle reasserted by Lord Hewart, C.J., this courtfeels that the continued citation of it in cases to which it is notapplicable may lead to the erroneous impression that it is moreimportant that justice should appear to be done than that it shouldin fact be done. In the present case, this court is of opinion thatthere was no real likelihood of bias and it was for this reason thatthe court dismissed the application…".
In regard to the application of the test of reasonable suspicion ofbias it must be shown that the suspicion is based on reasonable,grounds which would appeal to the reasonable right thinking man. Itcan never be based on conjeture or on flimsy, in substantial grounds.There must be material which shows a tendency to favour one sideunfairly at the expense of the orther. It was submitted by learnedcounsel for the petitioner that the learned trial Judge has madecertain orders during the course of the proceedings permitting theprosecuting counsel to call certain witnesses who were listed on theindictment after having overruled the objection raised by learned
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counsel for the petitioner and also permitted the prosecuting counselto produce certain documents such as a photocopy of a bed-headticket on an undertaking given by the prosecuting counsel to producethe original thereof at a later stage of the trial. The orders made bythe trial Judge which were adverse to the petitioner can in no way, inour opinion be considered to have been made as the Judge wasbiased against the petitioner. We have carefully considered thedocuments P5D (a), (b), P5G(a), G(b), P5H, P5I, P5K, P5L, and P7which are relied upon by the petitioner to substantiate his claim thatthe trial Judge was biased against him, but are unable to agree withthis contention.
Having considered the submissions of learned counsel for thepetitioner, and the material placed before us we are of the view thatthe petitioner has failed to establish both the test of real likelihood ofbias and the test of reasonable suspicion of bias as against thelearned trial Judge. Therefore, we are of the view that the first groundurged that a fair and impartial trial cannot be had before the learnedtrial Judge is not tenable.
In regard to the second ground urged, namely, that it is expedienton any other ground it has been held in Perera v. Hasheed (supra)that the expression “expedient” in the context means advisable in theinterest of justice. Learned Senior State Counsel who appearedbefore us at the hearing of this application, upon notice served by thepetitioner, submitted that he has reached the tail end of theprosecution case and that he has to call the Notary and a couple ofother witnesses and that the prosecution intends closing it’s case inabout two days of hearing. It was submitted by the Senior StateCounsel appearing for the Attorney General that the application ofthe petitioner is an attempt to deliberately protract the trial which hasgone on for a period of over seven years and that the petitioner hasnot made out a case for a transfer of the trial on either of the groundsurged on behalf of the petitioner. We are inclined to agree with thecontention of Learned Senior State Counsel. Accordingly, we refusethe application of the petitioner and dismiss the application.
HECTOR YAPA, J. -1 agree.
Application dismissed.