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2022 MarsdenLR 1478
HIGH COURT MALAYA SEREMBAN
DHARMA DANNY FERNS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: NA45B-3-11/2019]
Judges may ask clarifying questions during trials, which do not inherently constitute bias or necessitate recusal under the Evidence Act 1950.
Headnote:(A) Evidence Act 1950 – Section 165 – Recusal application – Accused contended the judge descended into the arena by questioning a witness and expressing potential bias towards the prosecution – Application dismissed as the judge's inquiries were for clarification and did not indicate bias or take over the role of prosecution – Clarification sought regarding the timing of threats alleged by a witness to be material to the case – Judge emphasized that asking relevant questions does not equate to interference in the prosecution's case – Principle of law established re necessity of judge's neutrality in conducting trials (Paras 17, 21, 25, 28).
(B)
Real danger of bias test – The court maintained that actual bias need not be proven; rather, the test concerns the perception of impartiality in the eyes of the public – Judicial discretion upheld in the questioning processes (Paras 17, 27).
Facts of the case:
The applicant, charged with murder, alleged bias and sought recusal of the judge based on two court interactions during witness examination.
Findings of Court:
The application was dismissed, finding no grounds for recusal as the judge's questions were clarifications of prior testimony and did not show bias.
Issues
: Whether the judge's questions constituted undue influence on a witness and if they represented a real danger of bias.
Ratio Decidendi:
The court concluded that the inquiries made for clarification were permissible under Section 165 of the Evidence Act and did not impair the appearance of fairness.
Result:
Application for recusal dismissed.
JUDGMENT
Introduction
[1] The applicant in this case, Dr Dharma Danny Ferns, was one of four accused persons to have been charged with murder. In the course of trial, the applicant (as the third accused) made an application for my recusal.
[2] The application for recusal stemmed from two exchanges that occurred in open court in the course of receiving testimony from the prosecution's 21st witness, Mr Agilan Arumugam.
[3] I found no merit in the complaint, and refused the application for recusal, for the reasons that are explained here.
The First Exchange
[4] The first instance related to a question that I had asked Agilan after counsel for the first accused, Mr Prakash Rao, had completed his cross-examination. Mr Agilan had testified that he had been an eye-witness to the battery of the victim, and that he had been told by one of the accused persons not to leave the location of the incident (which was a cow pen located in an oil palm plantation) and threatened that, if he did so, he would be harmed. At this point in time, neither counsel for the Dr Ferns nor counsel for the second and third accused (who are both represented by Mr Paul Krishnaraja) had started their cross-examination of the Mr Agilan.
[5] It was not evident from his testimony when he had received the threat. I considered that the timing may be material information. I asked the witness several questions, which is recorded in the exchange below:
Hakim: Boleh tolong jelaskan bila dikatakan ugutan tersebut diutarakan kepada saksi. Bila dikatakan ugutan tersebut, bila dia membuat ugutan tersebut?
SP21: Selepas dia, selepas didapati bahawa Anggu [the victim in this case] telah meninggal dunia.
Hakim: Sebelumnya tak ada ugutan?
SP21: Sebelum itu ada.
Hakim: Sebelum itu dia kata apa?
SP21: Dia kata jangan masuk campur, jangan masuk campur urusan ini. Kami akan uruskan benda ini.
Hakim: Jadi sebelum mangsa meninggal dunia, adakah saksi, adakah Agilan dihalang daripada beredar dari tempat tersebut?
SP21: Ya.
[6] Mr Selvam, counsel for the third accused, contended (among others) that by these questions, I had descended into the arena and that accordingly I ought to recuse myself.
The Second Exchange
[7] The second incident that was the subject matter of the application for recusal occurred when Mr Paul Krishnaraja was about to begin his cross examination. Based on the testimony that had been received from Mr Agilan up to that point, his evidence did not appear to implicate the fourth accused in the beating of the victim. As mentioned earlier, Mr Paul Krishnaraja represents both the second and the fourth accused. I took the occasion to remind him that, depending on the respective positions taken by each of his clients, Mr Krishnaraja could find himself in a position where his duty 1 to one client may conflict with his duty to the other. The relevant exchange was recorded as follows:
Hakim: Mr Krishnaraja, you are representing both the second and fourth accused, yes?
En Paul Krishnaraja: Yes, Yang Arif.
Hakim: You may want to think about whether or not they are adopting the same position as far as their defences were concerned, because as far as the evidence that I have heard from this particular witness is that OKT4 was not involved in the beating.
En Paul Krishnaraja: Yes Yang Arif.
Hakim: So what I am saying is, if your clients are taking different defences, it may well be that you are conflicted from representing both.
En Paul Krishnaraja: I understand, Yang Arif.
Hakim: All right, you may need to consider that question carefully, because if I make a determination that you are conflicted, then the whole trial might be affected, because we may need to stop the trial, get new counsel involved, and that new counsel will need to go through the notes of evidence of the trial that had proceeded before. Do you understand?
En Paul Krishnaraja: Yes, Yang Arif
Hakim: That is why I am raising it with you, as a matter of good governance. Please think about this issue.
En Paul Krishnaraja:
