24/8/2011 - Application for the judge to recuse herself made

On 24/8/2011 - Christopher Leong (Counsel for Charles Hector) made an application for the Judge to recuse herself on the grounds that the judge had already made certain determinations/findings about the case, which should only made after the full trial, after the court had heard all witnesses, accessed the witnesses and heard submissions. He referred the court to the grounds of Judge's decision that was made on 11/4/2011 when she allowed Asahi Kosei's application for an interim injunction and dismissed Charles Hector's application to set aside the ex-parte order of 17/2/2011. 

Christopher Leong refered to portions of the judgment, and pointed out, amongst others,

a) that the judge had made a determination that the information contained in the said postings were "unverified" ;

b) that Charles Hector do not have a duty to highlight human rights violations through the blog

and that these determinations would affect the defences of fair comment on matters of public interest, and also the defence of qualified privilege.

Christopher Leong pointed out that these were not mere comments, but findings and determinations.

Hence, these are not mere 'allegations of bias' based on comments made, etc - but on a fact that determinations have already been made on material points which would result on the inability to get a fair trial, more so in a defamation case, and now at trial the burden placed on the Defendant even before trial commences is so much higher - having to convince the trial judge that she was wrong, and this should not be. In a trial, the judge must be independent, and should not have made any determinations on facts and law until she has had the opportunity to hear and assess the evidence and submissions that is brought to the court's attention during the trial.   

The hearing for recusal commenced at about 2.30pm, and after hearing submissions of both parties, the judge adjourned for the day, and said that she would give her decision the following day at 10.00am.

** Recusal - an application asking the judge to excuse herself and not hear this case. Then another judge would be appointed to hear the case.