Alfarsi (a pseudonym) v The Queen [2020] VSCA 119

3 Three men were initially charged with the murder of AT - the applicant, AK and MH. AK ultimately pleaded guilty before Tinney J to intentionally causing injury and assisting an offender after a serious indictable offence. He was sentenced to a total effective sentence of two years and four months' imprisonment with a minimum period before parole eligibility of 307 days. AK had provided to police a witness statement in which he implicated the co-accused in the murder. He undertook to give evidence for the prosecution in the trial of the co-accused.

4 We have reviewed the judge's reasons for sentence. Relevantly (to this application), his Honour stated:

• The facts upon which he sentenced AK were set out in the written plea opening filed by the prosecution. These were 'essentially an agreed summary of facts', although there was some elaboration of the facts during the plea hearing.
• AK was aware that MH and the applicant intended to assault the victim over a drug debt owed to the applicant.
• AK provided two baseball bats to the two men. He 'reluctantly agreed' to drive them to the proposed location of the assault. His role was to stay in the car while the assault was to be carried out.
• After swapping cars from AK's Audi to a stolen Toyota, AK was told of the plan to beat the victim to the legs. The three men drove to the location and waited to ambush the victim.
• At 12:35 am, the victim arrived outside his home in his car. AK drove the stolen Toyota up to a position adjacent to the victim's car. MH and the applicant alighted from their vehicle, each with a baseball bat. They struck the victim repeatedly.
• The victim managed to escape from the two men and ran approximately 300 metres. He was chased by them. He banged on the front door of a house. AK had followed the two co-accused and parked near the three men, who were on the porch area of the house. He heard three shots fired.
• The two co-accused got back into the stolen Toyota. The applicant gave AK a direction to try and find a broken piece of one of the baseball bats used earlier. This was unsuccessful. The applicant discharged his firearm twice out the open window of the stolen car. The applicant then directed AK to drive the vehicle to an address in Lalor. He directed AK and MH to remove their clothing. The car was subsequently found burnt out and abandoned. Some items of clothing were found in it.
• AK drove MH to his home in Mill Park. He asked MH what had happened. MH put his finger to his lips and said nothing.
• At the applicant's request, AK downloaded the mobile phone application, WickR, an encrypted communication application. AK added the applicant to his friends list on the application, and the applicant then messaged him telling him to stage a break-in of his Audi in order to explain the missing baseball bats. AK did this and reported the bogus theft to police the next morning.
• All three accused were charged with murder on 6 February 2019.
• Under pressure from his co-offenders, AK confessed to police his guilt to the charge of murder on 21 June 2019.
• AK's moral culpability (on the intentionally causing injury charge) was high, 'in spite of [his] asserted lack of enthusiasm about being involved'.
• That he (the judge) was required to sentence AK on the basis that he was not aware of the murder, or even the shooting of the victim, until MH told him the next day.
• The head sentence and non-parole period have been reduced to reflect the 'important cooperation' and 'the implications of that cooperation to the future safety of [AK] and [his] family'.

5 On the basis of these portions of the judge's sentencing remarks, the applicant applied for the judge to disqualify himself from further participating in his trial. In summary, before Tinney J, the applicant contended that a reasonable apprehension of bias arose from the combination of:

(a) the importance of AK's heavily contested evidence in the prosecution case;

(b) the information that the trial judge was provided about AK during his plea;

(c) the judge's conclusions about AK's asserted reluctance, the asserted manipulation of AK, and AK's asserted past and future vulnerability;

(d) the prospect that the trial judge would be required to adjudicate on controversial issues relating to the evidence, and other unforeseen matters during the trial; and

(e) the directions the judge would be invited to develop and deliver, including an unreliable witness direction in relation to AK's evidence.

6 On this application to disqualify himself for apprehended bias, his Honour ruled:

• The factual basis for sentencing AK was essentially an agreed summary of facts. He sentenced AK on that unified approach of the parties before him.
• The conclusion that AK was a reluctant participant was justified on the material before him.
• In keeping with the statements of principle in North (a pseudonym) v the Queen[2] and R v Goussis,[3] his sentencing remarks in AK's case were consistent with the manner in which the case was put against AK and the way in which defence counsel had put the plea in mitigation.
• A fair-minded lay observer could not reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of any question he may be required to determine on the trial of the two co-accused.

7 In written submissions, the applicant set out the factual background that can be found in paragraphs 3 and 4 of these reasons, and repeated the submissions made to the trial judge. In short, the applicant complained that:

• the judge reviewed exhibits and heard submissions about AK's alleged role;
• the judge concluded AK was a reluctant participant, who was easily manipulated and in a vulnerable position;
• AK is a critical witness in this forthcoming trial. The defence position is that AK is a liar whose evidence ought be rejected;
• the judge will have to formulate directions about AK's evidence, and perhaps other unforeseen trial directions; and
• as a consequence of the combination of these factors, a reasonable apprehension of bias arose.

8 The respondent contended his Honour's rejection of the apprehended bias argument was plainly correct; the fact that the judge had sentenced a co-offender who had given the court an undertaking to assist the prosecution could not lead a fair-minded lay observer reasonably to apprehend bias. Judges are routinely confronted with circumstances similar or identical to those facing his Honour without any appearance of bias. There is nothing in the specific circumstances of AK's plea or sentence which gives rise to an apprehension of pre-judgment of any issue that might arise at the trial of the applicant. The respondent referred to North, which is a recent example of a trial judge declining to recuse himself in similar circumstances.

9 The principles relating to apprehended bias are well established. If a judge considers there is a real possibility that his or her participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he or she should refrain from sitting.[4] It would, however, be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the view that he or she should automatically disqualify himself or herself whenever the judge was requested by a party to do so. While a judge in a criminal jury trial plays no part in findings of fact, or the ultimate determination of guilt or otherwise, the principles of actual and apprehended bias still apply, as the judge may well have to make discretionary rulings, may subtly influence a jury in a myriad of ways, and in the event of a guilty verdict, will have to impose sentence.[5]

10 The gist of the applicant's complaints revolves around his Honour's findings on AK's plea that AK was a reluctant participant, easily manipulated and vulnerable. Given that AK is now a very important prosecution witness in the applicant's trial, and that the judge will have to formulate directions[6] and may well have to make discretionary rulings, the applicant contended that the judge should have recused himself.

11 We do not accept this submission. His Honour correctly set out the test, and noted that the factual basis for sentencing AK was an agreed summary of facts and that he was entitled, on those agreed facts, to reach the conclusion that AK was a reluctant participant.

12 His Honour referred to a passage from North, a recent decision of this Court. Whilst every application of this type must turn on its own facts, this passage was highly relevant to the application before the judge:

So far as practical, all proceedings concerned with alleged co-offenders in trial courts should be dealt with by the same judge. That practice promotes uniformity in evidentiary and other rulings, and consistency in the sentencing of co-offenders. It is common, therefore, for a judge to be required to sentence a co-offender (or co-offenders) in advance of the trial (or trials) of another (or others). It is also commonplace in those circumstances for a judge to be called upon to make sentencing findings as to a prisoner's involvement in a crime vis-à-vis an alleged co accused prior to the co-accused's trial. Thus, judges often must determine the particular role played in an offence (including his or her place in an alleged hierarchy) of a person who pleads guilty in advance of the trial of co-accused. Without more, the hypothetical fair-minded lay observer could not reasonably apprehend from a judge's sentencing findings as to the role of one offender that the judge might not bring an impartial and unprejudiced mind to the resolution of any question that the judge is required to determine on the trial of a co-accused. Indeed, the hypothetical and informed fair-minded lay observer would know that judges commonly revise views that they may have expressed in sentencing one offender in light of evidence given in the trial of another. In those circumstances, none of what was said by the judge when sentencing OR - alone or in combination - relevantly could engender any apprehension of bias in a fair-minded lay observer.[7]

It is common practice for the one Judge to deal with all related matters, one of the reasons being consistency of rulings and sentencing of co-offenders. It is equally not uncommon for those Judges to have to find or determine factual matters in relation to the involvement of one accused as against another prior to the hearing of a trial. Judges have on many occasions had to determine the particular role played, or the place in a hierarchy of a person who is pleading guilty and giving evidence on behalf of the Crown. This may well involve findings as to where other alleged co-offenders were comparatively in the hierarchy or their role in the criminal enterprise. This is done prior to the trial of the co-offenders, and is considered normal practice in the courts. None of that fact finding demonstrates a bias or creates a perception of bias, it is part of the function of the Judges in their role as the sentencing Judge.[8]

13 In our view, the hypothetical fair-minded lay observer could not reasonably apprehend from the judge's sentencing findings in AK's case, or from any other conduct or remarks during that process, that the judge might not bring an impartial and unprejudiced mind to the resolution of any question asked of him in the applicant's trial. We consider that, if the largely anodyne sentencing findings by his Honour were sufficient to found a successful apprehended bias application, the machinery of the criminal justice system would be sorely tested. Judges would be reluctant to deal with more than one accused and as a consequence, inconsistent treatment between co-accused could arise. Judges may also feel constrained in making uncontroversial and necessary factual findings on the sentence of a co-accused.

14 The application under s 296 of the Act to review the refusal to certify is rejected. Further, there is no merit in the application for leave to appeal against the interlocutory decision of the trial judge to refuse to recuse himself from the applicant's trial.

[1] To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] [2020] VSCA 1 ('North').

[3] [2007] VSC 171 ('Goussis').

[4] Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288, 294.

[5] Goussis [2007] VSC 171; Rozenes v Kelly [1996] VicRp 20; [1996] 1 VR 320.

[6] Particularly an 'unreliable evidence' direction pursuant to s 32 of the Jury Directions Act 2012.

[7] North [2020] VSCA 1, [55].

[8] Goussis [2007] VSC 171, [19].