Senior Magistrate Archibald Warner will conduct Health Minister Nelson Bascome's theft trial after rejecting a prosecutor's claim that he could be biased against a key Crown witness.

Senior Crown counsel Paula Tyndale applied to Mr. Warner yesterday to have another magistrate hear the trial, which centres on allegations that the Minister stole $75,000 through business dealings.

She pointed out that the Senior Magistrate previously threw out a separate charge of corruption that Bascome faced at the preliminary inquiry stage last October, before it went to Supreme Court, on the basis of insufficient evidence.

Mr. Warner said at the time that a key prosecution witness, Bascome's former business associate Robert Smith, lacked credibility and appeared to have "an axe to grind".

With Mr. Smith also the complainant in the forthcoming theft trial, Ms Tyndale urged Mr. Warner not to hear that case due to potential bias against the witness.

"The Crown asserts that there's a very real possibility, a very real likelihood, that Mr. Smith's evidence in the trial will not be viewed completely objectively because there is already, in the finding of the court, a finding against Mr. Smith that he has an axe to grind against Mr. Bascome, that he's an incredulous and unreliable witness, and we say that that leaves open the very real likelihood of bias," she said.

The corruption case Mr. Warner threw out focused on the period that Bascome spent as Health and Family Services Minister, with responsibility for housing, after the PLP came to power in 1998.

The prosecution alleged that he corruptly obtained a business opportunity relating to the invention of a water filtration system and that, in the duties of his office, he secured public housing for the system inventor Mr. Smith between November 1998 and December 1999. He denied the allegation.

In the theft case, which is set to begin at Magistrates' Court on April 23, Bascome is accused of stealing more than $75,000 through business dealings.

Prosecutors allege that he stole $56,000 entrusted to him by the Bank of Bermuda for business purposes between September 2003 and February 2004 and that he stole $20,000 from the Natural Business Company, of which he was a director, in March 2004. He also denies these allegations.

According to Ms Tyndale's submissions yesterday, the theft and corruption allegations arose from the same Police inquiry, sparked by a complaint from Mr. Smith.

Bascome's lawyer, Victoria Pearman, indicated that she and her client — who was present in court — were happy for Mr. Warner to conduct the trial. With the criminal charges hanging over Bascome since last June, she said he was keen for the trial to go ahead without further delay.

Mr. Warner said there were several types of bias that a judge or magistrate could have, according to case law. One type, he noted, could arise through friendship or a close relationship to a party to the case. "I don't think y'all alleging that?" he asked Ms Tyndale, with the prosecutor replying "no".

Mr. Warner went on to note that the reality of being a magistrate in a small jurisdiction such as Bermuda is that they often see the same people before them over and over again.

"Notwithstanding me knowing them personally as to their behaviour I must every time bring an open mind to those matters," he commented, going on to note that he is responsible for assigning trials to himself and the other three magistrates.

"The three of them are not in a position to do this case for other pressing administrative reasons," he told Ms Tyndale. Ruling against her bid to have one of the others hear the case, he said he would give his full reasons in writing later.

Bascome, of Friswell's Hill, Pembroke, stepped down from his second spell as Health Minister in February 2007 when a file on him was passed by Police to the Department of Public Prosecutions. However, he resumed the post after the General Election last December, despite his theft trial still pending. He remains on bail.

The crown could appeal Mr. Warner's ruling to a Supreme Court judge by means of a Judicial Review. However, Director of Public Prosecutions Rory Field said after yesterday's hearing: "We probably will not at this time in the circumstances. We probably will simply go ahead with the theft trial while reserving our right to reassess the position on a possible judicial review."

Meanwhile, Mr. Smith expressed disappointment, telling The Royal Gazette he wants the case heard by a different magistrate.