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RODE v. BAWA.P. C., Badulla, 16,009.
May 0, S, and10.
A dm hunt ration of justice by Magistrates—Inexpediency of a Superintendentof Police trying, as Police Magistrate, complaints of street nuisancesand resistance to the Police.
The Superintendent of Police for the Province of Uva had beenappointed Additional Police Magistrate of the Police Court of Badulla.There having been complaints of street nuisances in the town ofBadulla, the Superintendent gave orders that all offenders should bearrested and prosecuted. Acting upon these orders a police officerarrested appellant, without a warrant, for committing a nuisance in hisview; and as appellant resisted the arrest, he charged him with not onlycommitting a nuisance, but obstructing him in the execution of his duty.Appellant was brought before the Superintendent sitting as AdditionalPolice Magistrate, tried by him. anil convicted on both charges.
Held by Bonser, C.T., that the conviction could not stand. Theprinciple applicable to a case like this is that the administration ofjustice by Magistrates should be clear from all suspicion of unfairness.That justice should be believed by the public to be unbiassed isalmost as important as that it should be in fact unbiassed.
Per L.vwrie, J.—An officer of the police cannot take part either asJudge or investigating Magistrate in cases in which members of thepolice are personally interested, the disqualification being not that theMagistrate has a direct interest. Imt that the parties before him arethose over whom lie has control, and in the maintenance of'whoseposition and authority he is interested.
La'Vkii:. J., would however sustain the conviction for committingnuisance, the Magistrate having had no interest in the prosecution forthat offence either of a personal or pecuniary nature, and no bias eitheragainst or in favour of the accused.
HE facts of the case appear sufficiently in the judgment ofBonser, C.J. •
Baton, for appellant. The Police Magistrate belonged to thesame class as the prosecutor—the police. There would be areasonable apprehensiop of bias—actual bias was not suggested.
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In Regina v. Huggins, 1895, 1 Q. B. 565, the conviction wasquashed where only one of a bench of six justices was helddisqualified. Further, the Magistrate, as Superintendent ofPolice, had specially directed prosecution in such cases. Thecase, Christoffelsz v. Slema Lebbe, 1 C. L. R. 5, was in point.
Cooke, C. C., for respondent.
Cur. ado. vult.
19th May, 1896. Bonser, C.J.—
In this case I reserved the question raised by Mr. Bawa, as tothe legality of a police officer exercising judicial functions as aPolice Magistrate in a case in which a police officer subordinateto him was prosecuting, to be heard before two Judges. I desiredalso to have the assistance of an argument in support of theconviction, and Mr. Cooke argued the case on behalf of the 'Attorney-General. It appears that the Superintendent of Policefor the Province of Uva has been appointed to be an AdditionalPolice Magistrate of the Police Court of Badulla. There havingbeen complaints of street nuisances in the town of Badulla, theSuperintendent of Police gave orders that all offenders shouldbe arrested and prosecuted. Acting upon these orders, a policeofficer arrested the appellant, without a warrant, for committinga nuisance in his view; and as the appellant resisted the arrest, hecharged him not only with committing a nuisance, but withobstructing him in the execution of his duty, by assaulting him.The appellant was brought before the Superintendent of Policesitting in his capacity as Additional Police Magistrate, tried byhim, and convicted on both charges. The question is whetherthis conviction can stand. There is no case exactly like this tobe found in the books, for I suppose such a case never happenedbefore. A police officer exercising judicial functions is to me acomplete novelty. English Judges of the greatest eminence haverepeatedly expressed the strongest disapproval of a police officer >conducting a prosecution before Magistrates, on the groundapparently that the duty and interest of the police officer beingto secure a conviction, he could not be expected to lay the factsbefore the Court in the dispassionate manner which ought tocharacterize the conduct of a prosecution. The principle whichshould be applied to a case like this is simple. The difficulty isin its application. That principle is that the administration ofjustice by Magistrates should be clear from all suspicion ofunfairness. That justice should lie beli*ved by the public to beunbiassed*is almost as important as that it should be in factunbiassed. At this point it is right to state that no imputationof actual unfairness was made or suggested against this Magistrate
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by Mr. Bawa. I do not find in any of the cases to which I have 1896.referred in considering this question, that the Court has ever *a98, and
M Cr •
gone into the question of actual bias. The real question in these
cases, as was stated by Wills, J., in Regina v. Hvggins, 1895, 1 Bo,lsra»c jr-Q. B. 565, is this—“Was there a reasonable apprehension of“ bias ? ” In that case, which is the latest English case on thissubject, an unqualified pilot was charged with acting as a pilotafter a qualified pilot had offered to pilot the ship, and wasconducted by a court of six justices, one of whom was a licensedpilot, but who for forty-three years had held a position in whichthere was no competition between himself and the unlicensedpilots. It was held that the fact that one of the six was alicensed pilot vitiated the conviction. The Court there statedthat there was no question of the Magistrate having any pecuniaryinterest, nor was it suggested that he had any actual bias ; butthe judgment was based on the principle above stated. In thepresent case the Magistrate is the police officer in charge of hisdistrict; he is responsible for its peace and good order. If he failsto keep his district free from crime, or at least from undetectedcrime, he is liable to censure from his superior officer, theInspector-General of Police; while if he is energetic inbringing criminals to justice, he earns corresponding praise.
His duty and his interest coincide in the prompt suppressionof all crimes and offences and in making an example of offenders.
It must be difficult for a man in such a position to assume athoroughly impartial attitude. Mr. Cooke argued that as he wouldknow the character of the policemen who came to give evidencebefore him, he would be in a better position to judge of thevalue and weight to be given to their evidence. But this veryargument points to a ground of disqualification. It suggests thathe will have preconceived opinions with regard to certain evidence.
The esprit de corps of a police force is proverbial, and it is butnatural for a superior officer to support his subordinates, espe-cially when they are carrying out his own orders. I cannot saythat an accused person, seeing himself charged by one policeofficer and tried by another, might not reasonably feel someapprehension as to the impartiality of the tribunal. I am there-fore of opinion that the conviction should be quashed. I thusarrive at the same result as my brother Lawrie; but I go a littlefurther than he does^agreeing as I do with what was said by theCourt in Regina v. Huggins, “ that it is far safer to enlarge the“ area of this class of objection to the qualification of justices than“ to restrict it.” It should be remarked that cases tried summarilyby Magistrates are withdrawn from the constitutional tribunal—
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1896. a judge with a jury—and therefore the proceedings of MagistrateMaye,8, and sitting in summary jurisdiction have always been jealously—1scrutinized by the Superior Courts.
Bonskb, C J' The foregoing observations apply to the case where th<Magistrate is exercising judicial functions in the strict sense olthe term, that is to say, when he is trying cases summarily. Thejdo not apply with the same force to a case where the Magistrate iiexercising the ministerial functions of holding an inquiry wit-1the view of committing the accused for trial to a Higher Court.
When the case was last before this Court, the Chief Justiceheld that it was proved that the appellant was guilty of both theoffences of which he had been charged. There remains, howeverthe question of law, whether the Acting Magistrate was dis-qualified from trying the charges of committing nuisance and olresisting the police. The Acting Police Magistrate is the seniorofficer of police of the Province, in which he has been appointedby His Excellency to act as Additional Police Magistrate. He inhis capacity of Police Superintendent had given orders to ser-geants and constables to be strict about business. He had notdirected the prosecution of the accused. If it be lawful for theGovernor to appoint an officer of police to be an Acting Magistrate,then in my opinion it was not beyond Mr. Gordon Cumming’spower to try this simple charge of committing a nuisance on thepublic street. The Magistrate had no interest in the prosecutioneither of a personal or pecuniary nature. It seems to be im-possible to hold that he had the slightest bias either against orin favour of a Moorman accused of committing a petty nuisance.1 cannot imagine that any one could seriously think that thesenior officer of police would take a different view of theevidence, or would punish more severely than the permanentPolice Magistrate. With regard to the charge of resisting thepolice in the execution of their duty, I am of the opinion, how-ever, that the Acting Police Magistrate was disqualified.
It seems to me that an officer of the police cannot take parteither as judge or investigating Magistrate in cases in whichmembers of the police are^ personally interested. The dis-qualification is not that the Magistrate has a direct interest, butthat the parties before him are those over j,'h°m be has control,and in the maintenance of whose position and authority he cannotbut be interested. Although I would sustain the conviction fovcommitting nuisance, I am content to quash the whole pro-ceedings. It is inconvenient to quash a p5rt and to leave a part.
RODE v. BAWA