N2147

PAPUA NEW GUINEA

[In the National Court of Justice]

APPEAL NO. 43 OF 1999

BETWEEN:

CONSORT EXPRESS LINES LIMITED
-Appellant-

AND:

WINNIE NAMANE
-Respondent-

LAE: INJIA, J.
2000: November, 10
2001: July 11, 20

Practice and Procedure –Magistrates - Disqualification for Bias – Grounds – Complainant’s wife communicated with Magistrate hearing case – Case decided in favour of complainant - Ground of appeal alleging bias – Magistrate described ground of appeal as "totally absurd", intolerable and "Stupid" – "Reasonable suspicion of bias" occurred – Appeal allowed – Rehearing ordered.

Cases cited:
R v. Altrincham Justices; Ex parte Pennington [1975] 2 All ER 78
Ex parte Topping [1983] 1 WLR 119 at 123; [1983] ALL ER 490
Thomas Kavali v. Thomas Hohoi [1984] PNGLR 182
Fidelis Agai v. Buckley Yarume [1987] PNGLR 124
R. v. Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 
Kwame Okyere Boateng v. The State [1990] PNGLR 342
John Nilkare v. Ombudsman Commission Unreported Supreme Court judgment No. SC498 (1996).

Counsel:
P. Ousi for the appellant
Resp. in person

20 July 2001

INJIA, J.: This is an appeal against a decision of the District Court held at Lae on 29/03/99 whereby the Court awarded K2,008.70 in damages plus 8% interest and costs of K160.72, to the respondent. 

The Notice of Appeal as amended by order of this Court on 14/05/99 states 8 grounds of appeal. Seven of the grounds relate to procedural and substantive issues on liability and quantum of damages. The eighth ground, ground (h), relates to issue of disqualification for bias on the part of the Magistrate. As the fate of this last ground can affect the validity of the entire decision to which the other 7 grounds of appeal relate, I will determine ground (h) first. Ground (h) states:

"The learned Magistrate erred in law and in fact in … not disqualify himself when the Magistrate acknowledged receiving a call from the Respondent’s wife who work at the Goroka District Court to make a ruling in favour of the respondent."

The evidence in support of this ground is set out in the affidavit of the appellant’s counsel, Mr. Paul Ousi, sworn and filed on 29/04/99 in support of application to amend the Notice of Appeal to add ground (h). Paragraphs 5 – 6 of his affidavit states:

"5. Prior to the Court hearing this case, (the Magistrate named) briefly told me that the respondent’s wife rang from Goroka Court house and asked him to rule in her husband’s favour. 

"6. Whilst I do not believe the Magistrate acted on her advice, the Magistrate should have disqualified himself. He, told me if he heard the case, he would dismiss it which I took to mean that he did not wish to hear the case".

To this ground of appeal, the learned Magistrate responds as follows:

"As to appeal ground paragraph "H". I do remember a lady calling from Goroka, she claims to work for National Court registry, Goroka. She claims to be Mr. Nomane’s wife. I personally have never met her or even know her up till now. I do not even know now if Mr. Nomane’s wife works for National Court registry in Goroka. She called to advise that day that Mr. Nomane was sick and could not come down from Goroka for that day’s hearing.

"She then complained of the case dragging on by the defence and me entertaining the continuous defence request for adjournments for one reasons or another. I got annoyed and fired her on the phone and told her if she does that again I will penalize her husband. So she apologizes and hung up. I told Mr. Ousi of the fact and so we adjourned the case to another day.

"There was in no way forced me or entice me to rule in her husband’s favour.

"Why should also because they are not my wantoks and I don’t even know her and further to that I am not a kid to be told what to do.

This appeal ground is totally absurd and I can’t tolerate such stupid grounds of appeal".

The appellant submits that even though there is no evidence to show that the Magistrate was actually biased, there was a perception of bias because the appellant’s wife directly contacted the Magistrate who was dealing with the matter and that a breach of principles of natural justice enshrined in S.59 of the Constitution occurred. The respondent has not offered any submissions on this ground.

It is settled law that a finding of bias, on the part of a judicial officer vitiates the decision and a re-trial ought to follow before a different judge or Magistrate. There are two tests of "bias" applied in this country. They are the "actual bias" test and the reasonable "suspicion of bias" test. The general principles on bias is set out by Bredmeyer J., in Fidelis Agai v. Buckley Yarume [1987] PNGLR 124. His Honour when paraphrasing Lord Widgery in R v. Altrincham Justices; Ex parte Pennington [1975] 2 All ER 78 said at p. 126:

"Lord Widgery CJ said that the rule of natural justice relating to bias is well known. It is not necessary to prove that the judicial officer was biased. It is enough to show a real likelihood of bias, or at all events that a reasonable person advised of the circumstances might reasonably suspect that a judicial officer was incapable of being impartial and detached. Lord Widgery said that before embarking on his judicial tasks for the day, a magistrate who also had interest in other public work, should study the list of cases to be heard and where he was actively involved with, and known to be actively connected with, a victim of an alleged offence he should either disqualify himself from hearing that case, or at least draw his connection with the victim to the attention of the parties before the start of the hearing to see if there is any objection."

However, there is conflict in England as to whether the alternative test to "actual bias" as stated by Bredmeyer J. above, is one of "real likelihood of bias" or "reasonable suspicion of bias": see English cases cited in Thomas Kavali v. Thomas Hohoi [1984] PNGLR 182 at 188 - 189. The position taken in Australia and New Zealand is the "reasonable suspicion of bias" test: also see Australian and New Zealand cases cited in Thomas Kavali’s case on the same page. The "reasonable suspicion of bias’ test has been adopted and applied in this country. The test stated in question form in R. v. Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 at 123; [1983] ALL ER 490 at 494 which was adopted by the Supreme Court in Kwame Okyere Boateng v. The State [1990] PNGLR 342, is:

"Would a ‘reasonable and fair-minded person sitting in a court and’ knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for’ the appellant ‘was not possible’?"

Also see John Nilkare v. Ombudsman Commission Unreported Supreme Court judgment No. SC498 dated 3 May 1996, of Amet CJ, Kapi DCJ, Los and Injia, JJ. 

In the present case, the facts are different from the Boateng, Pennington and Liverpool City Justices cases in that neither the respondent nor the respondent’s wife had any special connection with the Magistrate. This was a case where the Magistrate was taken by surprise by someone who described herself as the wife of the complainant who worked with the Goroka Court House Registry and who obviously had an interest in the outcome of the case. She spoke to the Magistrate about the case and why the Magistrate was tending to favour the defendant to the detriment of her husband and asked the Magistrate to rule in her husband’s favour. The question is: Did this representation actually influence the Magistrate to make a decision in favour of the respondent. I accept the appellant’s position as deposed to in Mr. Paul Ousi affidavit and the Magistrate’s explanation that the discussions the Magistrate had with the respondent’s wife did not in fact influence his decision to find in favour of the respondent. 

But that is not the end of the inquiry. The next question is: Is this "a case where at all events that a reasonable person advised of the circumstances might reasonably suspect that a judicial officer was incapable of being impartial and detached". In my view, it is. The respondent’s wife obviously had an interest in the outcome of the decision affecting her husband. She was no ordinary person who was completely ignorant of the judicial process and the cardinal principles of judicial independence from external influence or interference. She was an administrative staff of the National Judiciary attached to the Goroka Court house. What she did clearly amounts to an interference in the judicial process and she, whoever she is, ought to be criminally prosecuted and/or disciplined by her employer whom I figure is, the NJSS. Although the Magistrate was taken by surprise by a stranger, the fact is that he allowed himself to be communicated to at length on a case before him by a person who had an interest in the outcome of the case, and conversed with her regarding the case. But whilst the Magistrate acted properly in bringing the matter to the attention of the appellant’s counsel in Court, and although there is no evidence to show that the appellant’s counsel specifically asked the Magistrate to disqualify himself from hearing the case, the uncontested evidence of the appellant’s counsel is that the Magistrate told him that if he were to hear the case, he would dismiss the case, which he understood to mean that the Magistrate would disqualify himself. It seems to me, that what the Magistrate was saying was that he disapproved of the conduct of the respondent’s wife in interfering with the judicial process and that if he were to hear the case, he would either disqualify himself from hearing the case or if he heard it, then he would dismiss the complainant’s claim. However, he then proceeded to hear the case and decided the case in favour of the respondent/complainant. 

In my view, such conduct of the Magistrate coupled with the Magistrate’s emotive outburst describing this ground of appeal as "totally absurd and I can’t tolerate such stupid grounds of appeal" is indicative of bias towards the appellant’s lawyer and his client. It is unbecoming of a judicial officer to use such language in condemning what is perfectly a legitimate ground of appeal.

In the circumstances, I am satisfied that an ordinary person sitting in Court and appraised of what transpired between the Magistrate and the respondent’s wife outside the Court, and what transpired between the Magistrate and the appellant’s counsel in Court, and now knowing of the tone with which the Magistrate has responded to the ground of appeal alleging bias, would come to the inescapable suspicion, and a reasonable suspicion too, that a fair hearing for the appellant was not possible.

For these reasons, I uphold this ground of appeal. Having arrived at this view, it is not necessary to determine the other 7 grounds of appeal. I quash the decision of the District Court and order that the matter be re-tried by another Magistrate. The respondent shall pay the appellants costs.
________________________________________________________________________
Lawyer for the appellant	:	Warner Shand
Lawyer for the respondent	:	Respondent in person