himself on all matters that are relevant. He is able to determine
what weight should be given to facts that are relevant. He is able
to put whatever he has read or seen into its overall context and will
appreciate that context forms an important part of the material
which he must consider.
34. He is not complacent. He knows that fairness requires that a
Magistrate must be seen to be unbiased. …..He will note that the
oath the Magistrate takes is a factor to be considered but not treat
it as a panacea or a guarantee of impartiality.
35. He is a member of the community in which the case arose and
will possess an awareness of local issues and social and political
reality that forms the backdrop to the case gained from the
experience of having lived in that society.
36. He will assume that a Judge by virtue of his or her office is
intelligent and will be able to form his or her own views and be
capable of detaching his or her own mind from things that he does
not agree with and is aware of the legal traditions and culture of
this jurisdiction and of those legal traditions, and that that culture
played an important role in ensuring the high standards of integrity
on the part of the Judiciary.
37. He is not an insider, he is not a party to the action, and is not
unduly sensitive or suspicious.
38. Although the Porter v Magill test for apparent bias was
accepted by the Appellants, they sought to introduce two
qualifications to the test which it would be best to refer to at this
stage.
39. …
40. It is relevant to note that although the Court considered the
standpoint of the complainant to be important, it thought it not to
be decisive. What is decisive is whether the fear of the complainant
that the tribunal is or would be biased is objectively justified. That
clearly must be so. The subjective fears of the complainant cannot
be decisive in what is an objective test. I however fail to see that the
subjective concerns of the complainant that the Court is biased can
be of any real relevance either, as what the Court is to decide is
whether viewed objectively from the standpoint of the informed
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