REPUBLIC v ALBERT AWOUR AND 3 OTHERS 1985 TLR 20 (HC)

REPUBLIC v ALBERT AWOUR AND 3 OTHERS 1985 TLR 20 (HC)

Court High Court of Tanzania - Mwanza

Judge Lugakingira J

June 16, 1978

MISCELLANEOUS CRIMINAL CAUSE 9 OF 1978 E

Flynote

Criminal Practice and Procedure - Change of trial venue and magistrate - Application

for change of venue under s.80 of the Criminal Procedure Code - Grounds for

allowing change of venue. F

Criminal Practice and Procedure - Bias - Apprehension of bias of trial court

magistrate - Test for existence of reasonable apprehension of bias - Whether

subjective or objective.

-Headnote

The applicants were facing various charges in the district court at Tarime. Somehow

they became apprehensive G that they were not going to have a fair and impartial

trial before any magistrate at that court. So they applied for a change of venue under

s.80 of the Criminal Procedure Code. It was argued in support of the application H

that the proper test was whether there existed in the minds of the accused persons a

reasonable apprehension of bias.

Held: (i) In determining whether or not there is bias, the court should not be guided

by the subjective view of I the accused, rather the test should be whether, in the

circumstances of the case, right minded persons would think that there is a likelihood

of bias;

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LUGAKINGIRA J

(ii) in the circumstances of this case, there is nothing which would make the

minds of reasonable persons A doubt the competence of the Tarime District Court

and all its Magistrates to determine the case without bias.

Case Information

Application dismissed. B

Cases referred to:

1. R. v George Tumpes [1968] H.C.D., n.416

2. Bhag Singh v Rex [1941] 1 T.L.R. (R) 133

3. Metropolitan Properties v Lannon [1969] 1 Q.B.577 C

4. Tumaini v R [1972] E.A. 411.

5. R v Taylor, etc., ex P Vogwill [1895] 14 T.L.R. 185

Mwale, for the appellants.

Judgment

Lugakingira, J.: This was an application of change of venue under s.80 of the Criminal

D Procedure Code. The applicants who are facing various charges in the district

court at Tarime are apprehensive that they will not have a fair and impartial trial if

their case is heard by any magistrate of that Court and at the said court. Their main

grounds as set out in the affidavit and argued by learned counsel Mr. Mwale are, I

think, E

(a) that the case was mentioned nineteen times and no bail was granted;

(b) that when bail was finally granted it was coupled with difficult

conditions which the High Court had to modify; F

(c) that the complainant is well off and threatens to secure imprisonment

if the case is tried at Tarime; and

(d) that the trial Magistrate similarly threatens incarceration whenever the

case comes up for mention. G

In general, Mr. Mwale submitted that in considering such an application the proper

test was whether reasonable apprehension existed in the mind of the accused. H

First of all, I do not know which record Mr. Mwale and his clients had in mind when

they spoke of 19 mentions without bail. What I have before me is a charge sheet

dated 13 October, 1977. Next, the record reveals that the applicants (and 2 others)

first appeared in court on that very day and after pleas had been taken Mr. Mwale I

applied for bail. Again, bail was granted the same day even if on difficult conditions.

I can find nothing else on the available record prior to 13 October, 1977. In the

result, I

1985 TLR p22

LUGAKINGIRA J

am not certain that the allegation in ground (a) is not misleading. What is evident, on

the contrary, is that the A disposal of this case has been held up by the actions of the

applicants and their advocate. Thus, between 13 October, 1977 and 22 February,

1978, the trial awaited the application to this Court for bail and the result of B that

application. Then on 2 March, 1978, Mr. Mwale wrote to the trial court proposing or

confirming the hearing date for 25 April, 1978. And on the latter date he appeared in

court and revealed that his clients were again applying to this court, this time for

change of venue. From these facts I am unwilling to say that the trial court indulged

in any procedural dereliction. C

The four grounds do not call for individual discussion at this stage. Suffice it to say

that they were put forward generally as evidence from which bias could be inferred.

I have already indicated that in Mr. Mwale's view the test is whether reasonable

apprehension of bias exists in the mind of the accused. Mr. Mwale is not alone in D

saying so. Similar views were expressed by this court, In re R. v George Tumpes

[1968] H.C.D. n.416 and earlier in Bhag Singh v Rex [1941] 1 TLR (R) 133. In the

latter case it was held by Wilson, J., I quote,

...... the proper test to apply ...... is not whether the Magistrate is actually

prejudiced against the accused, but whether there E exists in the mind of the accused

a reasonable apprehension that he will not have a fair and unprejudiced trial before

the magistrate in question; and that in deciding what is a reasonable apprehension on

the part of the accused regard F must be had not to abstract standards of

reasonableness but to the standard of honesty and impartiality of the accused himself

and his degree of education and intelligence.

Attractive as the above view may sound, I am not prepared to say that it is not

without its dangers. However G learned and intelligent the accused might be, can it

be reasonably expected that his predicament and obvious wishes would leave him an

entirely impartial man? Doesn't this test, which is wholly subjective, make the error

of constituting the accused a judge of his own cause? I think, with respect, that the

correct view is that the test H should be objective. The talk is therefore about

"reasonable persons" rather that "reasonable accused". In Metropolitan Properties v

Lannon, [1969] 1 Q.B. 577, for instance, Lord Denning, M.R. said (at p.599):

In considering whether there was a likelihood of bias, the court does not look

at the mind of the justice himself or at the I mind of the chairman of the tribunal or

whoever it may be, who sits in a judicial

1985 TLR p23

LUGAKINGIRA J

capacity. It does not look to see if there was a real likelihood that he would or

did, in fact, favour one side at the expense A of the other. The court looks at the

impression which would be given to other people. Even if he was as impartial as

could be, nevertheless if right-minded persons could think that, in the circumstances,

there was a real likelihood of bias on his part, then he should not sit. B

This passage was quoted with approval by this court in Tumaini v R. [1972] E.A. 441

at pp.444. On my part I think that the objective approach commends itself to reason

and common sense. I cannot persuade myself to C accept a view where the accused

were permitted to set the standard for the guidance of the court and I must confess

that I have never before encountered such a view except in the two cases first cited.

Were the court to be guided by a subjective test I do not see how they could guard

against accused persons who, in the words of D Day, J. in R. v Taylor etc ex p.

Vogwill (1895),14 T.L.R. 185 would jump at "anything at any time which could make

fools suspect." In the result, I hold that the correct principle is set out in the

Metropolitan Properties and Tumaini cases.

Now, in this case, has anything transpired that in the minds of reasonable persons

would disqualify the Tarime E District court and all its Magistrates from trying the

case? I was told of 19 mentions without bail and I have already shown the falsity of

the allegation. I was then told of bail being granted with impossible conditions. It

was never suggested, however, that these conditions were imposed on account of any

bias on the mind of the F trial magistrate. What transpires is that the trial magistrate

overreached himself in his enthusiasm to meet the prosecutor's prayers. That, to my

mind, was a wrong exercise of discretion which pointed to the magistrate's

understanding of his duty rather than to a poisoned state of mind. I was finally told

that the complainant threatens to secure the applicants' imprisonment if the case is

tried at Tarime. Typically, that is jumping at "anything at any G time which could

make fools suspect." The complainant is not the magistrate. If it is feared that he

would attempt to use his alleged wealth to influence the verdict, there is nothing to

prevent him from doing so regardless H of the venue. On the other hand, I do not

believe that the trial magistrate has been threatening to imprison the applicants if

they have not been misbehaving in his court. If their constant interlocutory

complaints are anything to go by I think they might have urged the magistrate to

make the warning he did.

In summary I find nothing upon which reasonable persons would doubt the partiality

of Tarime District Court and I all its magistrates. It seems that the applicants are

self-persecuting by belief in their own

1985 TLR p24

imaginations. I dismiss the application and order that the trial proceeds at Tarime

District Court before any A competent magistrate stationed there.

Application dismissed.

1985 TLR p24

C