GAMAGE

VS.

ATTORNEY GENERAL AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
FERNANDO, J.
CA/TRF/1 /2020
HC COLOMBO 555/2019
JANUARY 29, 2020

Transfer of case from one High Court to another-Allegation of bias-Standard of proof-Judicature Act, No. 2 of 1978, section 46-Code of Criminal Procedure Act, section 439-Civil Procedure Code, sections 164 and 165-Evidence Ordinance, section 165

Four accused were indicted before the High Court for allegedly cheating state officials in the registration and licensing of an elephant. Whilst the trial was in progress, the 4th accused filed an application before the Court of Appeal under section 46 of the Judicature Act to transfer the case to another High Court on the basis that a fair and impartial trial could not be had before the judge in whose court the trial was in progress, in view of the conduct of that judge at the trial. The complaint mainly related to the judge's questioning of prosecution witnesses No. 2 and 8.

Held:

1. Notwithstanding that the system of justice which prevails in this country is adversarial as opposed to inquisitorial, a judge need not be a silent spectator at the battle fought between two rival