DATIN SERI ROSMAH BINTI MANSOR v Pendakwa Raya

Case Significance

Applies the real-danger-of-bias test to a recusal application, holding that a party who accepts a judge throughout a lengthy trial and raises bias only days before judgment fails to establish a real danger of bias.

This Court of Appeal decision concerns an appeal against a trial judge's refusal to recuse himself from a criminal trial shortly before delivering judgment. The appellant was the accused in two related criminal cases, and had applied by notice of motion for an order that the trial judge recuse himself from continuing to hear the cases and from delivering the decision that had been fixed. The trial judge dismissed that recusal application and proceeded to deliver the decisions in both cases, and the appellant appealed against the refusal to recuse. The central question was whether the appellant had established a real danger of bias sufficient to require the judge to withdraw. The appellant's complaint centred on concerns about the integrity of a document said to have originated from a third party and on related publicity questioning the process. The court applied the settled real-danger-of-bias test and examined the objective circumstances as a whole. It attached weight to the fact that the trial had been heard over a period of more than two and a half years, during which the appellant had at no time applied for the judge to recuse himself until only a few days before the date fixed for the decision. In the court's view, that history demonstrated that the appellant had throughout accepted the judge as fair and impartial, and there was no basis to doubt his fairness. Assessing the position objectively and on the facts as a whole, the court found that the appellant had failed to demonstrate a real danger of bias on the part of the trial judge and that the recusal application was without merit. It concluded that there was no merit in the appeal and that the prosecution's position was to be upheld. The judgment is a useful application of the real-danger-of-bias test and of the significance of delay in raising a recusal complaint.