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 parties. The judge has the arduous task of delivering the judgment based on true facts devoid of distortion or falsity. In this endeavour, the judge cannot be found fault with for questioning witnesses to ascertain the truth, as long as he does so within limits. No hard and fast rules can be laid down to demarcate such limits. It shall depend on the facts and circumstances of each individual case.

2. In pursuit of the attainment of truth and justice, a judge is statutorily empowered to question a witness as he pleases. (section 439 of the Code of Criminal Procedure Act, sections 164 and 165 of the Civil Procedure Code, section 165 of the Evidence Ordinance)

3. The number of questions a judge puts to a witness is not decisive. What is decisive is whether it results in a miscarriage of justice.

4. The judge may have exceeded his authority or discretion. He may have delivered ex facie wrong orders during the course of the trial. But that does not mean or establish that the judge is biased against the accused.

5. The Court of Appeal shall act with the utmost caution when deciding a transfer application on the ground of bias. It is a serious indictment against a judge to say that he is biased. When a transfer application is filed on an allegation of bias, the judge is not a party to the application to respond directly.

6. There is a strong presumption that judges are unbiased and unprejudiced. Conjectures and surmises are not sufficient to rebut this presumption. A party seeking transfer of a case from one judge to another on the basis of bias undertakes a heavy burden of proof to discharge.

7. Bias is two-fold: reasonable suspicion of bias and real likelihood of bias. When an allegation of bias is made against a judge, although the application is made on reasonable suspicion of bias, the court expects the applicant to prove real likelihood of bias.

8. The test of bias is objective as opposed to subjective. The petitioner's belief or opinion that a judge is biased is not sufficient.

9. On the facts and circumstances of the instant case, the judge did not take over the trial from counsel. With the exception of a few questions, the judge put his questions to the two witnesses after the leading of evidence had been concluded. The judge's questioning did not result in a failure of justice. The petitioner has not discharged the burden of proof expected from him to the satisfaction of the court.

Held further:

10. Judges are not above the law. They cannot do anything they think right. Although section 439 of the Criminal Procedure Code, sections 164-165 of the Civil Procedure Code, and section 165 of the Evidence Ordinance seemingly give unfettered discretion to the trial judge to question witnesses, this is not so. These provisions

are