Defence lawyer Iqbal Khan has alleged that the presiding Judge in the Nausori Highlands murder case is biased.

Mr Khan yesterday filed a notice of motion with affidavit in support of the application by the accused, Muhammed Raheesh Isoof.

The defence through the notice of motion is seeking the trial Judge, Justice Thushara Rajasinghe to recuse himself from the case on the grounds of actual bias, perception of bias and reasonable apprehension of bias.

The defence also seeks that another Judge is appointed to hear the matter against the accused and alternatively the court rule that there is a mistrial.

Justice Rajasinghe said to Mr Khan that he could not just throw the bias words to the court and not give his grounds and reasons because that would be very disrespectful o the court.

Submission

Mr Khan submitted to the court that while the prosecution witnesses were giving their evidences, the learned Judge interjected and examined the witness on several occasions.

Justice Rajasinghe then said that the court had the right to examine or question the witnesses on the facts for clarifications.

He said the court had always given opportunities to both parties to cross-examine the witnesses on the court’s clarifications.

Mr Khan then submitted that the learned Judge had examined witnesses to elicit material which the prosecution did not seek to lead.

He also submitted that the defence’s second witness who had given a Police statement during the investigation, the learned Judge intervened and excused the witness and stated to the defence that if the witness gave false evidence in court he has the danger of being prosecuted for perjury.

Mr Khan said such was not warranted by the learned Judge who had not made the same statement to prosecution’s witnesses.

Justice Rajasinghe then said it was the duty of the prosecution to tell their witnesses, to tell the truth in court and that he could not remind each witness of the same.

Mistrial Application:

Mr Khan raised issues of the non-disclosures that came up in the evidence of the investigating officer Anil Kumar.

Mr Khan said as per Mr Kumar’s evidence, there were videos and photos submitted to the Namaka Police Station which was not disclosed to the defence because as per the investigating officer it was not relevant to the case.

It was heard in the trial that videos and photos which were submitted were taken about 10 kilometres away from the crime scene.

Justice Rajasinghe said the defence had two years to go through all the 99 witnesses and their statements and disclosures and if there were no videos and photos disclosed, the defence had access to the prosecution to obtain the same.

Mr Khan had also submitted that the prosecution was allowed to cross-examine the accused using his caution interview statement whereas the state had informed the court that they would not be relying on the caution interview of the accused.

State’s Response to the Applications:

The prosecutor from the Office of the Director of Public Prosecutions, Semi Babitu opposed the application.

On the ground of the Judge’s interjecting, the Judge needed to clarify from the witnesses on certain issues and the Judge had always given a chance to the prosecution and the defence to cross-examine the witnesses on the same.

On the ground of warning of witness, Mr Babitu submitted that it was done in the absence of the witness from the courtroom.

On the ground of photos and videos not being disclosed, Mr Babitu said the Investigating officer gave evidence and stated that those photos and videos were taken 10 kilometres away from the crime scene.

He said the same information was given to the defence two years ago and at no point, they raised any issues regarding that.

Mr Babitu submitted that there were no merits in the defence’s application.

On the ground of the caution interview statement, Mr Babitu submitted the issue could be raised in the appeal.

In the substantive matter, the prosecution and the defence have filed their written closing submissions and did not wish to make any oral submissions.

The matter has been adjourned for judgement and ruling on the defence’s notice of motion on January 19.

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