‘Dealing with the question of bias’

AFTER last week’s lesson on a Muslim taking the oath on the Bible, now comes another area in the law dealing with “the appearance of bias.” Bias comes in various forms. It could be bias on the part of the presiding officer, or bias on the part of potential jurors. One would remember the agony for the court officials in having to find a jury to hear the evidence against Dole Chadee and his gang of eight in 1996. After the submission on adverse pre-trial publicity had failed, it took the prosecution and the defence a long time to find 12 “suitably qualified” jurors and six alternates to hear the case. Bias was obviously at the heart of the matter, according to the defence. Potential jurors were questioned in the witness box. Questions were posed to them, such as “do you know Dole Chadee? Have you read anything or heard anything about him? Do you know anything about this case?” These were relevant questions after the media had for more than ten years, referred to Chadee as a drug lord, drug dealer, a crime boss, a farmer, and the fact that he had been charged with three separate murders, only to be acquitted after the main prosecution witnesses were killed.

So, the court took a painfully long time to deal with the question of “apparent bias” on the part of the potential jurors. No one wanted a juror to sit on the case with pre-conceived notions about Chadee. Last week, the complaint of bias was different. It was made against the presiding officer. The complaint of bias was raised by defence attorney Pamela Elder on Thursday during the hearing of the preliminary inquiry into the conspiracy to murder charge against Jamaat Al Muslimeen leader Yasin Abu Bakr. It is now history that Chief Magistrate Sherman McNicolls refused to step down, saying there was no bias on his part. Although he consulted with the Director of Public Prosecutions (DPP) when the issue of the oath was raised, McNicolls said he was permitted under Section 22 of the Indictable Offences (Preliminary Inquiry) Act to do so. McNicolls admitted that he had consulted with the DPP when Elder raised the issue of state witness Brent Danglade swearing on the Bible, although in his evidence he admitted he was a Muslim, and the Holy Koran was the only book binding on his conscience. Elder asked McNicolls to recuse himself from hearing the inquiry. “It is the DPP who brought this matter against my client. Is he going to be a judge in his own cause?” In dismissing the submission, McNicolls assured the defence this was the only issue where he consulted the DPP in this case. Blackstone’s Criminal Practice states: “If a justice has an interest other than direct pecuniary or proprietary one in the outcome of a case, he is disqualified from sitting if a reasonable person present in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial was not possible before a court including the justice.” It continued, “Although a non-pecuniary interest does not automatically disqualify a justice, it is not essential to show that he actually was biased — the appearance of bias to the reasonable observer is enough to disqualify.”

That did not apply in the Bakr inquiry. During the legal submissions, a House of Lords case, R v Gough (1993) was cited. Robert Brian Gough and his brother David were charged with robbery. At the committal proceedings, the case against David was dismissed; but Gough was indicted on a single count of conspiring with David to commit robbery. At Gough’s trial, David was frequently referred to by name, and a photograph of him and Gough was shown to the jury and David’s address was contained in a statement read to the jury. One of the jurors was a next door neighbour of David, but she did not recognise him or connect him with the man referred to to in court until after the verdict had been returned, when David started to make a disturbance. David then informed the police that a member of the jury was his next door neighbour. The judge was informed, but he said his hands were tied. The juror was then interviewed by the police and swore on an affidavit in which she averred that she was unaware of the connection between Gough and David until after the jury had returned the verdict. Gough appealed on the ground that the presence of David’s next door neighbour on the jury was a serious irregularity. The Court of Appeal (Criminal Division), in dismissing the appeal, held that the correct test to be applied was whether there was a real danger that Gough had not had a fair trial. The case went to the House of Lords.

In dismissing the appeal, the Lords said that the test to be applied in all cases of apparent bias, whether the justices, members of other inferior tribunals, jurors or arbitrators, was the same; and was also applicable to a trial judge and, on appeal, by the Court of Appeal; that is, whether in each case there was a real danger of bias on the part of the relevant member of the tribunal in question; and where bias on the part of the justices’ clerk, whether the clerk had been invited to give the justices advice, and if so, whether there was real danger that the clerk’s bias had influenced the justices’ decision. In the Gough case, the Court of Appeal had applied the correct test. When the Bakr case was adjourned, ASP Ruthven Paul, of the Homicide Bureau in San Fernando, was being cross-examined. Paul’s career in the Police Service, which started in 1969, reached the pinnacle in 1996, when as the complainant, he secured convictions against Chadee and his gang of eight, which led to their eventual executions at the State prison in 1999. Bakr, 62, is charged with conspiring with David ‘Buffy’ Maillard and others to murder Salim Rasheed and Zaki Aubidah on June 4, 2003, at Citrine Drive, Diamond Vale, Diego Martin. Hearing resumes on November 11.