REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

MAG. APP. NO. 75 OF 2006

BETWEEN

BASDEO PANDAY
APPELLANT
AND

WELLINGTON VIRGIL
(Senior Superintendent Of Police)
RESPONDENT

CORAM:		Warner J.A.
			Archie J.A.
			Weekes J.A.

APPEARANCES: 	Mr. R Clayton, Q.C., Mr. R. Lawrence-Maharaj S.C., Mr. R Rajcoomar, Mr. J. Singh and Mr. A. Beharrylal for the Appellant
Sir Timothy Cassel, Q.C. and Mr. W Rajbansie for the Respondent

DATE OF DELIVERY: 4th APRIL 2007

REASONS

Delivered by Archie, J.A.

1)	On March 20, 2007, the Court allowed the appellant’s appeal, quashed his conviction and set aside his sentence on the basis of ‘apparent bias’, that is to say, a fair-minded and well informed observer would conclude that there was a real possibility that the Chief Magistrate, before whom he had been tried, was biased. A retrial was ordered. 

2)	I have had the privilege of reading, in draft, the written reasons of the learned President in which the background facts and the authorities are set out in considerable detail. It will therefore not be necessary for me to retrace all the ground covered by her. I agree with all of her findings. However, there are some differences in emphasis in our respective analyses of the facts and law that make it clear that we have arrived at the same conclusions by a slightly different route. Although the Court’s decision was unanimous, I am, therefore, obliged to set out my reasons in some detail. 

3)	This matter involves the holders of some of the highest and most sensitive offices in the country. The Court’s decision was delivered in a charged political atmosphere. There is an obvious danger of the basis and reasons for the Court’s decision being misunderstood, mischaracterized or misrepresented. The appellant’s case was not based on an allegation of actual or deliberate bias on the part of the Chief Magistrate. I therefore consider it necessary to state at the outset that this judgment is not intended to vindicate any person, group or theory.  Its purpose is the preservation of the rule of law and public confidence in the administration of justice.
4)	This judgment will address the following issues:
a)	The test for Apparent Bias;
b)	The nature and scope of the Court’s inquiry;
c)	The relationship between ‘apparent bias’, ‘fairness’ and ‘due process’;
d)	The circumstances which call for recusal and the duty to inform counsel;
e)	The proper forum for complaints of judicial misconduct on the part of the Chief Justice;
f)	An assessment of the factual circumstances of this particular case;
g)	The Court’s refusal to entertain the application for a stay of proceedings for abuse of process;
h)	Conversations between judicial officers about ongoing cases.

THE TEST OF ‘APPARENT BIAS’:

THE TEST OF APPARENT BIAS IS THE IMPRESSION THAT IS CONVEYED TO THE MIND OF A FAIR MINDED AND INFORMED OBSERVER

5)	If the integrity of the judicial system and public confidence in the administration of justice is to be maintained, then fairness and impartiality must both be subjectively present and objectively demonstrated to the informed and reasonable observer. The duty of the Court when investigating an allegation of apparent bias is to place itself in the shoes of a hypothetical observer who is both ‘fair minded’ and ‘informed’. If such an observer would conclude that there is a real possibility that the tribunal was biased, the system has failed and the proceedings are vitiated. 
6)	When considering the question of apparent bias, the court does not look at the mind of the decision maker. It looks at the impression that would be given to an objective observer. Therefore, although the judicial officer may have been as impartial as could be, if right thinking persons would think that, in the circumstances, there was a real likelihood of bias then that is sufficient. In considering this case, therefore, we have made no inquiry or finding as to whether the Chief Magistrate did in fact favour one side unfairly. It is sufficient that a fair-minded and informed observer might think that he did. The reason was clearly explained by Lord Denning M.R. in R v London Rent Assessment Panel Committee [1969] 1 Q.B. 577 @ 599 in these terms:

“Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased’”

7)	The case of Ebner v The Official Trustee in Bankruptcy  (2000) 205 CLR 337 lays down a three-step test:
•	First, one must identify what it is said might lead a judicial officer to decide a case otherwise than strictly on its merits;
•	Second, a logical connection between the matter/s and the feared deviation from impartiality has to be articulated;
•	Third, an assessment must be made whether a fair-minded observer would conclude that there was a real possibility that the case would not be decided impartially. 

8)	The test is one of possibility (capable of existing; real and not remote) and not probability (more likely than not). The words “fair-minded” and “informed” summarize the characteristics that are to be imputed to the hypothetical observer and will now be further explained. 

9)	The fair-minded observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. That is a critical caveat in a society such as ours that is deeply polarized and where conspiracy theories abound. The proper point of departure is the presumption that judicial officers and other holders of high public office will be faithful to their oath to discharge their duties with impartiality and in accordance with the constitution. The onus of rebutting that presumption and demonstrating bias lies with the person alleging it. Mere suspicion of bias is not enough; a real possibility must be demonstrated on the available evidence. 

10)	The fair-minded observer is not an insider (i.e. another member of the same tribunal system). Otherwise he would run the risk of having the insider’s blindness to the faults that outsiders can so easily see. Although he will have a general appreciation of the legal professional culture and behavioural norms, he may not so readily take for granted, as judicial officers might, a judicial officer’s ability to compartmentalize his mind and ignore extraneous information or circumstances. 

11)	The informed observer is a member of the community in which the case arose and will possess an awareness of local issues gained from the experience of having lived in that society. He will be aware of the social (and political) reality that forms the backdrop to the case. In the present context that would include the knowledge that the Attorney General and the appellant, who at the material time was the Leader of the Opposition in the House of Representatives, stood on opposite sides of the political divide.

12)	It follows that the informed observer, if he is also fair-minded, will choose his sources of information with care: 
“It is to be assumed too that he is able when exercising his judgment to decide what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.”

13)	He will also make use of all the available and relevant information:
“While the question is not settled by any decision of the Court, it   appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court… nor do we see any good reason why the matter should not be tested on all available facts.” [my emphasis]

14)	The last two paragraphs lead us naturally to a consideration of the    nature and scope of the Court’s inquiry where there is an allegation of   bias. This discussion is necessary because of two issues raised during the appeal:
•	Whether use can be made of hearsay evidence
•	Whether the Court is restricted to a consideration of the material relied on by the parties

THE NATURE AND SCOPE OF THE COURT’S INQUIRY:

THE COURT DOES NOT HAVE TO MAKE A FINDING ON DISPUTED FACTS. THE PROCEEDINGS ARE NOT PURELY ADVERSARIAL AS THE COURT IS ALSO CONCERNED WITH PROTECTING ITS OWN PROCESSES

15)	At various stages during the hearing of this appeal, the appellant’s counsel invited the Court to consider hearsay statements or newspaper reports as part of the totality of the evidence pointing to bias and/or oppression. We declined. Acceptance of that invitation would have been a dangerous and unsatisfactory approach for the following reasons:
•	There is direct evidence from the parties involved in the relevant transactions or conversations;
•	It is the very antithesis of fair-mindedness to attach any weight to accounts given by persons with no actual knowledge of the events. The source of the hearsay is irrelevant. It may in some circumstances be sufficient to trigger an investigation but we are engaged in a juridical exercise where there is an evidential burden;
•	To do so would undermine the very confidence in the administration of justice that we are trying to uphold. It is not unknown for letters, articles or reports in the media to be biased, inaccurate or written with an undisclosed agenda. Such reliance is even more dangerous in circumstances where there is no cross-examination as it risks placing undue or equal weight to hearsay material (even where the source is disclosed).

16)	I agree with the learned President that the material facts are not limited to those known to the appellant at the time of the appeal but are such as are ascertained by the Court (and I would add “up to the time of its judgment or decision”). That proposition follows from the fact that a principal concern is the protection of the Court’s process and the maintenance of public confidence in the administration of justice. If there were any relevant and potentially reliable evidence available it would be illogical and inconsistent to ignore it.

17)	It should matter not whether owing to inadvertence or tactical considerations one or both sides choose not to rely on it. It can hardly boost public confidence in the Courts if they chose to ignore evidence disclosed, that was logically significant and pertinent to the question of bias, on the basis that it was not relied on in the parties’ submissions. Apart from the proposition that the Court may rely on evidence not specifically relied on by the parties, I am in agreement with the statement of general considerations set out at paragraph 58 of the opinion of the learned President. As will become apparent, however, it is an important difference as the factual matrix to which I apply the test of apparent bias includes matters not referred to by the learned President.

18)	It is perhaps slightly misleading to say that the Court should ascertain facts without explaining what that means in this particular context. Where evidence is not disputed, it may be assumed for the purposes of the Court’s inquiry to be true. Where material facts are disputed, the Court does not have to determine which version is true although it may take a preliminary view of the weight of certain evidence. The court must look at all the circumstances that have a bearing on the suggestion that there is a real possibility that the judge was biased. In some instances those may include disputed evidence from a non-trivial source.
 
19)	In this case, although the criminal proceedings against the Chief Justice have been discontinued, there is still the possibility of other proceedings and the Court must be scrupulous to avoid expressing a preference for any potential witness. In any event, none of the statements before the Court have been tested by cross-examination. 

20)	Before passing on from the subject of the scope of the Court’s inquiry, I must refer to the fact that the Court recalled the parties and invited them to make submissions, if they wished, in respect of events that took place well after the Chief Magistrate’s decision was delivered. The explanation for that is simple. Implicit in what I have said so far is that evidence of matters occurring before the time of the impugned decision is receivable whether it becomes known to the appellant or to the Court before or after the decision. However evidence of events occurring afterwards also logically may be relevant. The test is whether it can shed light on the condition of the decision maker’s mind at or before the time the decision was made. 

THE RELATIONSHIP BETWEEN ‘APPARENT BIAS’, ‘FAIRNESS’ AND ‘DUE PROCESS’:

WHERE THERE IS BIAS THERE IS A PRESUMPTION OF LACK OF DUE PROCESS. FAILURE TO DISCLOSE IS AN ISSUE OF FAIRNESS AND ADDS NOTHING TO THE APPEARANCE OF BIAS

21)	The Appellant’s case was advanced on the alternative bases of ‘apparent bias’ at common law and breach of his constitutional right not to be deprived of his liberty except by due process of law. In particular, it was argued that the existence of bias deprived him of his right to a fair hearing under section 5(2)(e) and his right to a fair and public hearing by an independent and impartial tribunal under section 5(2)(f)(ii) of the constitution. For the purposes of this case it makes little difference.  

22)	The common law and constitutional causes of action are opposite sides of the same coin. The relevance of disclosure is only in respect of the doctrine of waiver and the availability of a remedy. Where there are circumstances that require a judge to make disclosure to the parties and the party whose interests may be potentially and adversely affected invites the court to proceed, he can hardly claim to have been denied due process even if the hypothetical observer may have perceived a real possibility of bias. If there is a duty to disclose and the decision maker fails to do so then, if real or apparent bias is found, there would also be a valid claim for breach of constitutional rights based on the facts that gave rise to the apprehension of bias.

23)	This distinction is important, because I am in fundamental disagreement with the proposition advanced by the appellant that a failure to disclose could of itself be evidence of bias. A duty to disclose only arises where there is already something that can give rise to an apprehension of bias. Otherwise there is no obligation to disclose. I see nothing inconsistent with that in the opinions of their Lordships in the Pinochetcase.

24)	In the reasons for judgment in that case, the House of Lords approached it as an example of automatic disqualification on the basis of proprietary interest. It was in that context that a passage was cited from Sellar v Highland Railway Co. to the effect that “ the difficulty is one easily overcome, because, directly the fact is stated, it is common practice that counsel on each side agree that the existence of the disqualification shall afford no objection to the prosecution of the suit, and the matter proceeds in the ordinary way…”.

25)	Lord Browne-Wilkinson also referred to Shetreet, Judges on Trial (1976), pg. 303 in support of his assertion that “The mere fact of [the judge’s] interest is enough to disqualify him unless he has made sufficient disclosure. Later in that same text (pg. 305) Shetreet had this to say:
“However, when the interest is more than minimal or when his association with a party, witness or counsel might give rise to the appearance of impropriety, of unfairness or bias, he will disqualify himself and not leave the matter dependent on whether or not the party will raise objections.”

26)	It is clear, therefore, that when the existence of grounds for the apprehension of apparent bias is not in doubt, there is a duty to recuse. I understand Lord Browne-Wilkinson’s observation to be related to the concept of fairness and not to the existence or augmentation of grounds indicative of apparent bias. As was observed in the passage cited by the learned President from Kanda v Government of Malaya [1962] A.C. 322 @ 336:
“The rule against bias is one thing, the right to be heard is another…They have recently been put in the two words, impartiality and fairness. But they are separate concepts.”

27)	Indeed they are! In the particular circumstances of this case, where we have found that apparent bias exists, the failure to disclose adds cogency to the appellant’s claim that he has been denied a fair trial but adds nothing to and is unnecessary to support his claim in respect of apparent bias.

28)	In any event, this is precisely the type of case where disclosure would have been unhelpful and would have put counsel in an invidious position if its purpose were to seek counsel’s agreement to continue. The matter of the land transaction, in particular, could only have been raised in the context of the Chief Magistrate having formed a negative suspicion in his mind of a connection between the timing of the cheque and the evidence of the witness for the defence.  It is true that the matters complained of arose at a late stage, but the inconvenience that might have been suffered by restarting the trial before another magistrate was not a sufficient justification for pressing on.

THE CIRCUMSTANCES WHICH CALL FOR RECUSAL AND THE DUTY TO INFORM COUNSEL:

A DUTY TO DISCLOSE ONLY ARISES WHEN THE DECISION MAKER KNOWS OR IS UNCERTAIN WHETHER A FAIR-MINDED AND WELL INFORMED OBSERVER MIGHT PERCEIVE BIAS

29)	There can be no exhaustive list of the interests, occurrences or factors that may arise before or during the course of a trial that have the potential to influence the mind of the decision maker. Generally, however, they will fall into one of three categories:
a)	If, after a careful consideration of the matter, the decision maker concludes that no fair-minded and well informed person could reasonably find that there is a real possibility of bias, then he should proceed with the matter and there is nothing to disclose;
b)	If he comes to the opposite conclusion then, subject to the doctrine of necessity or any other exceptional circumstance, he should recuse. It would be wrong to cast the responsibility on counsel by inquiring whether they consent to the matter being tried. Firstly because it puts counsel in the difficult position of having either to consent or to risk being seen as a trouble maker and secondly, because it does not address the broader question of public perception. The practice of raising the matter and inviting the parties after discussion to indicate if one of the parties objects, without disclosing which, is not helpful. Common sense suggests that the party objecting will be the one who is likely to be adversely affected. The purpose of disclosure here is simply out of courtesy to the parties to explain his decision;
c)	If the decision maker is genuinely uncertain whether there are arguable grounds for the hypothetical observer to form a perception of bias then he should disclose the relevant information and seek the assistance of counsel. The purpose of this disclosure is not to seek consent but to seek assistance on the question of whether the matter falls in category “a” or “b” above or whether the doctrine of necessity or some other special circumstances apply. 

30)	Considerable time was spent during submissions on the question whether the Chief Magistrate was obliged to disclose to Counsel the fact that he had spoken to the Attorney General before he gave his decision. It follows from the foregoing paragraphs that the real issue is not the failure to disclose any conversation, but whether what took place gave rise to a reasonable apprehension of bias. I shall return to this in greater detail later in this judgment but one aspect of the admitted conversation is of general importance and may conveniently be dealt with at this stage.

THE PROPER FORUM FOR COMPLAINTS OF JUDICIAL MISCONDUCT BY THE CHIEF JUSTICE:

THE ATTORNEY GENERAL IS A PERMISSIBLE (THOUGH NOT IDEAL) CONDUIT FOR A COMPLAINT OF MISCONDUCT AGAINST THE CHIEF JUSTICE

31)	One of the matters discussed was a complaint by the Chief Magistrate that the Chief Justice had improperly sought to influence him in favour of one of the parties in the trial. If the allegation were true, the Chief Justice would arguably have been guilty of both a criminal offence and misconduct punishable under section 137 of the constitution. Unlike all other judges, the Chief Justice is not subject to the jurisdiction of the Judicial and Legal Service Commission for the investigation of complaints of misconduct. Where then was the Chief Magistrate’s complaint to be directed?

32)	In Brown-Antoine et al v Sharma Civ. App. 91-93 of 2006, this Court drew attention to the anomalous and potentially embarrassing constitutional arrangement that gives the Prime Minister the responsibility of triggering any inquiry against the Chief Justice under section 137 of the constitution.  The danger of political fallout, regardless of the merits of the case, was even more acute in this case because the Leader of the Opposition was the defendant. The DPP (his office) was a party to the proceedings. In those circumstances, any judicial officer with a complaint would be placed in a very delicate situation. The matter was further complicated by reason of the fact that by a Cabinet decision in January 2002 a Corruption Investigation Bureau had been established in the Ministry of the Attorney General with specific responsibility for investigation of corruption in the public sector. 

33)	The Bureau was required to report the results of its enquiries to the Commissioner of Police and the Director of Public Prosecutions. One can discern from that an intention that some preliminary screening and investigation is to take place to determine whether there is actually some evidence of criminal behaviour that warrants further action. The Bureau is also required to keep the Attorney General informed of its findings. 

34)	There is some logic in having a specialized agency charged with this function. However, the wisdom of locating it within the Attorney General’s department instead of the agencies normally charged with the investigation of crime is questionable in view of the continued political controversy and the possible impression on the mind of a fair-minded observer generated in this and other cases.

35)	Given the existing constitutional and institutional arrangements, however, the conduit utilized by the Chief Magistrate for registering his complaint cannot, by itself, be the subject of criticism so far as the question of bias is concerned. He would have had little choice. A direct approach to the Prime Minister would be open to the same allegations of hidden political agendas that have been leveled. One cannot say that the Chief Magistrate would be expected to have a direct working relationship with individual members of the Bureau. The Attorney General must at the outset be clothed with the presumption that he would refer the complaint to the relevant personnel and otherwise deal with it appropriately. The Prime Minister would reasonably be expected to refer to him at some stage for legal advice concerning the matter. In all of those circumstances, it was not inappropriate or indicative of bias for the Chief Magistrate to have spoken to the Attorney General. There was no breach of the doctrine of separation of powers.

36)	I now go on to consider events that occurred and the conduct of the Chief Magistrate up to the time just before the decision of this Court, through the eyes of a fair-minded and informed observer. These events are considered in the light of the appellant’s principal allegation that the Chief Magistrate may be regarded as biased, in the eyes of the hypothetical observer, because he was beholden to the Attorney General, the appellant’s political adversary, who had improperly used his influence to assist him in a land transaction. 

37)	It is fair to say that, when pressed for direct evidence (as opposed to hearsay accounts or suspicion) that there was something fraudulent about the Chief Magistrate’s land transaction by reason of which the government held a ‘sword of Damocles’ over his head, Mr. Clayton retreated from that proposition.

AN ASSESSMENT OF THE FACTUAL CIRCUMSTANCES

38)	The word ‘extraordinary’ can hardly do justice to describe the sequence of events that began to unfold in the first half of 2006. The Appellant, who was then a member of Parliament and the Leader of the Opposition in the Lower House was charged with offences under the Integrity in Public Life Act 1987. The matter was heard by the Chief Magistrate and evidence and submissions concluded on 27th March 2006. Judgment was reserved until April 24th 2006.

39)	It is common ground that on March 28th 2006, the Chief Magistrate visited the Chief Justice in his chambers. This was a normal occurrence but the conversation that apparently ensued was not. Their accounts differ but the gist of the Chief Magistrate’s version is that the Chief Justice clearly sought to influence his decision in favour of the appellant.According to the Chief Magistrate, he was not influenced in any way by these suggestions, but was disturbed that such an approach had been made. According to the Chief Justice, there was a conversation during which the Chief Magistrate volunteered certain information about the trial including his opinion on the evidence but he made no attempt to influence the Chief Magistrate.

40)	Sir Timothy Cassel urged the Court to consider this encounter in light of the fact that, on either account, the decision of the Chief Magistrate was not actually influenced in any way. Of course, one must take into account his assertion that he was not influenced, but that is not the end of the matter. We were not required to, nor did the Court make any finding on which version of events is true. What is important is the impression created in the mind of the hypothetical observer. The question is whether the observer could be confident that the Chief Magistrate’s mind remained as free and unfettered by external considerations as it was required to be. 

41)	Some indication may be gleaned from what followed three days later (31st March 2006) when the Chief Magistrate sought and obtained an audience with the Attorney General. At that meeting, the Chief Magistrate raised two specific concerns:
a)	He complained about the approach the Chief Justice had allegedly made;
b)	He reported his suspicions about the source and timing of a cheque he had received on the day that the hearing was concluded. 

42)	The background to that cheque is important. In 2005, the Chief Magistrate had purchased a parcel of land from a CLICO subsidiary. He later had a change of plans and wished to resell the land. Although it was apparently not normal company policy to repurchase lots company representatives agreed to assist him in locating a buyer. During the month of March 2006, he received a telephone call from someone who identified himself as a “Mr. Maharaj from CLICO” offering to buy the property. On 27th March 2006, he called Mr. Maharaj and asked him how soon the transaction could be completed and he replied ‘very soon’. Later that day he received a cheque for $400,000 by way of down payment. According to the Chief Magistrate, he expected to receive a written and signed agreement for sale but when none was forthcoming by the end of March, he reflected on the matter and became suspicious that, to use the vernacular, he was being ‘set up’. He returned the cheque.

43)	His suspicion was clearly fuelled by the fact that Mr. Lawrence Duprey, the chairman of the CL Financial Group (which includes CLICO) appeared as a witness on the last day of the trial (27th March 2006). This is corroborated by the Attorney General’s account of their meeting.

44)	In his press release, the Attorney General makes no mention of the Chief Justice’s alleged approach but merely says that the Chief Magistrate reported on “among other things” what he described as a suspicious sequence of events relating to the land transaction. Much was made of the italicized words during submissions by the Appellant to the effect that they concealed some secret and sinister conspiracy. Viewed through the eyes of an observer who is objective and not unduly suspicious they would appear, in the absence of any other evidence, to be an obvious reference to the complaint about the Chief Justice. That was the purpose for which the appointment was sought and since, as it turns out, it became the subject of a separate investigation and criminal charges, the Attorney General could hardly be blamed for being somewhat reticent at that stage. 

45)	In his release, the Attorney General reported that the Chief Magistrate had informed him of the cheque “out of an abundance of caution, given the importance of the judgment he was about to deliver” [my emphasis] and that he (the Attorney General) had determined that he should take no action until judgment had been delivered. Immediately after the judgment, he made enquiries into the matter, including contacting all the parties. He ultimately formed the view that there was no cause for further action in the matter of the land transaction at that time and so advised the D.P.P, the Commissioner of Police and the Chairman of the Integrity Commission. The complaint about the Chief Justice was still being investigated.

46)	The Attorney General’s later account of his investigation is that, on 25th April 2006, the day after judgment was delivered, he telephoned Mr. Monteil, who was his personal friend. He says he called to inquire whether CLICO had attempted to influence the Chief Magistrate during the trial of this matter because in his view, the land transaction looked suspicious. Those suspicions seem to have been allayed by Mr. Monteil’s assurance that it was a bona fide transaction because “the man really wanted to buy the land”. He told CLICO to ‘clean up their mess’ and says that he used the word ‘mess’ because ‘although I could not prove anything I was angry nevertheless’. 

47)	He says further that he was concerned that if the transaction was bona fide the Chief Magistrate should not suffer from being over-cautious in returning the cheque. He had several subsequent phone calls and meetings with Mr. Monteil. His primary concern was that he could not be accused of a dereliction of duty in failing to investigate the matter even though he considered it to be a matter with no “smoking gun”[my emphasis]. On one occasion Mr. Monteil said the issue had been sorted out. No details of the nature of the investigation that was carried out have been supplied. 

48)	The fair-minded observer might take the view that it was unwise for the Attorney General to have become personally involved instead of leaving the investigation to someone in the Corruption Investigation Bureau.  The delicate circumstances that prevailed required him to maintain a conspicuous detachment particularly since information was being sought from his personal friend Mr. Monteil. 

49)	The appellant’s argument, in effect, is that the Attorney General did not take sufficient care because, having considered the matter suspicious in the beginning, he too readily came to the conclusion that there was no ‘smoking gun’. This, by itself, may have no sinister connotation but in the light of all the circumstances, the confidence of the hypothetical observer that the Chief Magistrate would not, at least subconsciously, have some reason to be grateful to him, is shaken. 

50)	The timing of the Attorney General’s intervention is also the subject of a discrepancy that may be of significance to the fair-minded observer. According to Mr. Monteil, his first conversation with the Attorney General concerning this matter was sometime in late March or early April at a time when judgment was still outstanding.We are not required at this stage to resolve that discrepancy. What we are required to consider is what impression the totality of the available evidence would have on a fair-minded observer.

51)	The Chief Magistrate delivered a written judgment on 24th April 2006 in which he felt constrained to assert that he had not been influenced in his decision by anything that took place before, during or after the hearing of the evidence.  The mere fact that he felt obliged to do so signals that he must have contemplated that if the circumstances that were known to him became known to third parties they would or might possibly have given rise to a perception of lack of impartiality. In keeping with my earlier analysis, he should either have recused or, if he was unsure of the possible effect, invited Counsel’s assistance.

52)	In the absence of disclosure to Counsel our task therefore was to assess whether there was a basis for finding apparent bias. I reiterate that failure to disclose a non-disqualifying matter cannot support an inference of lack of impartiality. 

53)	So far, the assessment has been made without reference to the effect, if any, of the alleged approach by the Chief Justice. For this purpose, a distinction must be drawn between an allegation of an approach by persons generally interested in the case, and the Chief Justice. This is a small society with complex interrelationships. Judicial officers and litigants do not enjoy the degree of anonymity that may be normal in larger communities. Even though most officers will take steps to limit their social interactions, judicial officers may from time to time be subjected to unsolicited approaches or comments. They can be expected to stoutly resist overtures that may be made from time to time to influence them. They have a duty to terminate any conversation that strays beyond legitimate boundaries and to disabuse their minds of the fact that an improper approach has been made. 

54)	Each case will depend on its own facts but there is no justification for the general proposition that once such an approach is made it must be reported to Counsel who must then be given the opportunity to make submissions.  It is perfectly proper for judicial officers to report attempts to subvert the trial process for investigation and possible sanction if they do occur. However, if such an approach would automatically require judicial officers to recuse, then the door would be open for any accused or other interested person to abort a trial he perceived was not going the way he wished by arranging a phone call or an encounter. To endorse such a general rule would be to encourage forum shopping.

55)	The judicial officer must make an honest assessment whether his mind is so affected by the approach that he can no longer assess the matter before him impartially. If it is so affected, then he must recuse. If not, then he must go on to consider the impact on the hypothetical observer and the earlier analysis applies. The Chief Justice exercises administrative control over the Chief Magistrate and chairs the Judicial and Legal Service Commission (JLSC), which has control over disciplinary and promotional matters concerning him. In this case, it would be difficult to persuade the hypothetical observer that a Chief Magistrate had completely dismissed the Chief Justice’s alleged approach from his mind in making his decision, particularly in view of subsequent events and the comment in the Chief Magistrate’s judgment.

56)	The relevant events are as follows:
•	The Chief Justice formally complained to the JLSC that the Chief Magistrate had falsely and maliciously made a complaint of interference against him. The JLSC caused an inquiry to be made after which it indicated that no evidence of wrongdoing by the Chief Magistrate was found.
•	After an investigation, criminal charges were brought against the Chief Justice in respect of the Chief Magistrate’s allegation of interference in the present matter.
•	On 13th February 2006 the Chief Magistrate wrote to the D.P.P requesting him to stay the criminal proceedings against the Chief Justice. Among the factors he listed to justify this request was the fact that “the integrity of the judiciary has been restored by the findings of the Judicial and Legal Service Commission that the Chief Justices’ (sic) complaint against me was baseless and the subsequent decision of the Privy Council” [He appears to equate the integrity of the judiciary with his reputation while ignoring the fact that serious accusations were still leveled at the Chief Justice]. He indicated that he had originally given statements in support of proceedings for impeachment under section 137 of the Constitution and he had “supported criminal sanctions only when it became clear that the Chief Justice had blocked Section 137 proceedings. He has lifted his protest to such proceedings”. He further indicated that he had made certain enquiries of unnamed Attorneys for the State who advised him that section 137 proceedings were actively being pursued by the state. In fact, no such proceedings had been commenced and at that stage the Prime Minister had not yet written to the Chief Justice informing him that he was contemplating initiating same. I shall return to the significance of this later. 
•	On or about 20th February 2007, he contacted the Attorney General and indicated his reluctance to testify in the criminal proceedings. 
•	The Attorney General attempted to convene a meeting on 23rd February 2007, between himself the Chief Magistrate and the Deputy D.P.P. who had conduct of the criminal proceedings. He hoped “to have them discuss the matter together and to thrash out the issues”. Only the Deputy D.P.P. showed up. 
•	On the morning of 5th March 2007, the Chief Magistrate telephoned Senior Counsel leading the prosecution team and informed him that he was not willing to testify. The prosecution was discontinued on the same day.
•	The following day, he issued a press statement to explain his refusal to testify. It displayed a stunning misapprehension of his duty and role as a witness in the preliminary inquiry and the factual and legal position in respect of the proceedings before the Court. He said that he remained willing to testify in proceedings “which it is now public record have been instituted under section 137 of the Constitution..”. In fact, no such proceedings have to date been instituted in respect of his allegations. There has also been no judicial pronouncement to the effect that having co-existing criminal proceedings and section 137 proceedings would constitute an abuse of process. It is an opinion apparently formed by the Chief Magistrate but it was irrelevant to his role as a witness. What followed however is even more troubling from the standpoint of a fair-minded observer.
•	After this development, this Court, out of an abundance of caution, invited both parties to make submissions, if they wished to do so, on the possible effect, if any of the Chief Magistrate’s refusal to testify on the mind of a fair-minded and informed observer.
•	Counsel for the Respondent sought to assist the Court by obtaining statements from persons having knowledge of the background to this development. One of those statements was from the Chief Magistrate who stated that when he made the complaint against the Chief Justice it was with the clear intention of having the matter dealt with under section 137 of the constitution. He said that he had “….co-operated with the police in their investigations because allegations of impropriety involving a land transaction were made against me by the Chief Justice.” 

57)	It is clear that the Chief Magistrate did not assume an objective stance in respect of his complaint against the Chief Justice. He formed a view about the correct procedure to be followed and remained determined to steer things in that direction. He should simply have reported the matter and left it to those who had the responsibility of determining whether there should be any proceedings and what form they should take. It was not his call. It is inconceivable that a judicial officer of his experience did not contemplate from the beginning that the allegations he was making could trigger a criminal prosecution. 

58)	The fact that he links his support for a criminal prosecution to the initiation and outcome of the complaint against him would be a matter of serious concern to any fair-minded observer. One must bear in mind that part of the Chief Justice’s complaint was that the Chief Magistrate’s complaint against him was triggered by fear of exposure of an improper land transaction. We have made no finding of impropriety but the appellant’s complaint is that Chief Magistrate would have had an interest in ensuring that the sale of the land proceeded without any delay or suspicion. 

59)	It would do nothing for the confidence of the hypothetical observer to note that the Chief Magistrate sought the intervention of the 
Attorney General when he no longer wished to testify and that the Attorney General thought it fit to intervene personally. It does not matter whether he urged the Chief Magistrate to fulfill his duty as a witness. He has no constitutional role in the discontinuance of prosecutions. His willingness to intervene personally, even to the extent of arranging meetings, in respect of both the criminal prosecution and the land matter, however laudable the motive, is regrettable.

60)	It is true that a series of individual actions taken innocently, when juxtaposed, may present a picture that is far removed from the intention or contemplation of the actors. However, when dealing with the question of apparent bias, we are concerned with the composite picture. I make no judgment on the truth of conflicting assertions or the motivations for actions taken. I have, however, come to the inescapable conclusion that a fair-minded and well-informed observer would come to the conclusion that there was a real possibility that when the Chief Magistrate decided the appellant’s case, his mind was affected by unconscious bias. 

61)	I say so for the following reasons:
•	The Chief Magistrate clearly had a suspicion that the $400,000.00 cheque was in some way connected to the evidence of Mr. Duprey who a witness for the defence;
•	That clearly had the potential of impacting negatively on his assessment of Mr. Duprey’s evidence, if only by way of a subconscious desire to demonstrate that he was not influenced by the receipt of the cheque;
•	At the same time he was subject, according to him, to improper pressure being exerted by the Chief Justice who is his administrative superior and chairman of the JLSC, which exercises disciplinary control over him;
•	When delivering his judgment, he was sufficiently mindful of one or both matters to consider it necessary to mention that his judgment was not affected.  The obvious question that would be asked by a fair-minded observer is – Why mention matters which have occurred without saying what they were if one has dismissed them from one’s mind?
•	An informed observer would be aware of the political sensitivity of the matter. Indeed the Attorney General alluded to it in his press statement. He would also be aware that there had been an attempt to launch section 137 proceedings in another matter involving the Attorney General;
•	The Chief Magistrate’s ongoing resolve to ensure that his complaint was treated in a certain manner when combined with his linkage of it with the land transaction raises the question whether he would not have been preoccupied about his own image or credibility when considering the present matter.
•	The fair-minded and informed observer might conclude that there would be at least a subconscious desire to do what he perceived might please the current political directorate.
•	That impression is reinforced by the Attorney General’s willingness to become personally involved in both matters

THE APPLICATION TO STAY FOR ABUSE OF PROCESS

62)	After the appellant’s conviction was quashed, Mr. Lawrence-Maharaj sought an opportunity to persuade the Court that there should be no re-trial and that any further criminal proceedings should be stayed because they would constitute an abuse of process. The application was based on two limbs set out in draft written submissions. They are:
a)	That the decision to prosecute the appellant arose out of a political decision to target him.
b)	Based on evidence coming to light since his conviction, the government has applied improper pressure on the Chief Magistrate to convict the appellant.
63)	After careful consideration of the draft submissions and authorities, the Court declined to entertain any further submissions. It held that, any submissions in that regard, if any, can appropriately be made at a retrial, if one does occur, and on the basis of admissible evidence. 

64)	Mr. Lawrence-Maharaj sought to rely in support of both limbs on hearsay evidence that was already in the disclosed material but on which no reliance had been placed. For the reasons set out earlier in this opinion it would have been inappropriate and dangerous for the Court to rely on those hearsay statements.

65)	The appellant also proposed to rely on a number of statements disclosed as a result of the Court’s invitation to Counsel to further address us if they wished. That material is essentially concerned with the prosecution of the Chief Justice and only peripherally concerned with the present matter. It is relevant to the prosecution of the appellant only to the extent already discussed. It was not appropriate to reopen the hearing of this appeal in the absence of any further and potentially compelling evidence. If there is a retrial and there is admissible evidence of oppression or abuse of process, the appellant will have the opportunity to make an application in limine.

CONVERSATIONS BETWEEN JUDICIAL OFFICERS ABOUT ONGOING CASES 

66)	In the course of submissions before the Court, questions were raised about the propriety the Chief Magistrate and the Chief Justice having any discussion at all about the evidence in an ongoing trial. We were invited to give some guidance. What follows is, of necessity, only a statement of general principle. Judicial officers must exercise their individual discretion in deciding whether or not a conversation strays beyond permissible boundaries and be vigilant to preserve their individual independence and impartiality.

67)	No judicial officer comes to the bench with the same degree of proficiency in every area of the law. One of the main advantages of a diverse bench is the large pool of collective experience from which judges and magistrates are able to draw. In this and other jurisdictions, judicial officers who encounter novel or challenging problems frequently turn to their colleagues who may save them much time by directing them to potentially productive lines of research or may serve as sounding boards to test their reasoning processes.

68)	In recent years, the practice has also arisen of providing judges with research assistants who provide valuable help in research and refinement of judgments. A necessary part of this process is a discussion of the relevant legal principles, which is of limited value outside of the factual context in which they must be applied. 

69)	There is nothing wrong with discussing an ongoing matter with a judicial colleague or assistant provided that the decision maker does not abdicate the responsibility to make the decision on his own. General discussion is permissible. Allowing someone to tell him how to decide is not. 

70)	The position is more complicated when the parties to the discussion are at different levels in the judicial hierarchy. It will generally be unacceptable to discuss evidence in a specific case with anyone who has a real possibility of becoming a member of a panel that will hear an appeal from a decision in that case. Even though the expression of a preliminary view does not bind the appellate judge to rule in a particular way if the matter later came before him for review, the mere knowledge that the person consulted might exercise a review power could create a subconscious desire to ensure his approval. 

71)	Finally, on the question of the order for a retrial, I have nothing to add to the careful exposition and application of the legal principles set out in the reasons of the learned President. Although a significant time has elapsed since the commission of alleged offences the public interest requires a full consideration and determination of the charges. It has not been suggested that the appellant will be prejudiced in his defence.

Ivor Archie
Justice of Appeal