Balogh v St Albans Crown Court

The Submissions of the Crown Advocate

1. It should be noted that Ms. Adams SC appeared in this matter amicus curiae, as a courtesy to the Court extended by the Attorney General. Her role was simply to assist the Court given the unusual nature of the proceedings, and the absence of a traditional prosecutor.
2. She was asked to respond to the applicant's application without having had notice of it, and without having had the opportunity to consider it fully.
3. The Crown Advocate submitted that, while it cannot be said that an application to recuse on the basis of bias could never succeed in contempt proceedings, that was not the situation in the present circumstances. She submitted that, in order to succeed, the applicant must identify with precision those matters he says may lead me to decide the issues in this matter other than on its factual and legal merits. Further, he must outline the logical connection between those matters suggesting bias and the feared deviation from deciding the matters according to law. Thirdly, the application must be based on material outside the objective acts forming the charges of contempt as observed by the court; that is, the fact that I observed the acts committed by the applicant, and thus formed a view that he was in contempt of court, cannot of itself indicate that I have prejudged the matter such as to justify an application for disqualification.
4. In response to specific matters raised by Mr. Carroll, Ms. Adams SC submitted that the cases where contemnors were afforded opportunity to obtain legal advice prior to being charged with contempt were trial matters involving a jury, where such a course was taken to avoid a danger of the trial aborting, rather than in compliance with principle. Access to a legal practitioner is usually organised by the party calling the witness, rather than the court itself.
5. Ms Adams SC submitted that the warning issued to the applicant on 13 March 2015 as to the possible consequences of his actions was sufficient and in accordance with established authority and legislative requirements.
6. The Crown Advocate referred the Court to Gaudrie v Local Court (NSW) and Another [2013] NSWSC 1425; (2013) 235 A Crim R 98.

Consideration

1. The applicant's application relied upon assertions of both actual bias, and a reasonable apprehension of bias.
2. The determination of whether there is actual bias involves a determination of fact which must be resolved in light of the matters raised by the applicant (and summarised at [34] to [43] above) and asserted by him to disclose bias. The test of actual bias is a more stringent test than that which applies to apprehended bias: McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [73].That is appropriate, since an allegation of actual bias is a most serious matter. Inhering in it is an allegation that the judicial officer is in breach of his or her oath of office.
3. Where actual bias is alleged, as it is here, the allegation can be made good only by evidence which establishes that the decision maker is actually biased. Brereton J, in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540, said: "[….] actual bias depends not upon the impression of any reasonable bystander, but upon proof that the decision maker is actually biased" (at [45]).
4. If, as a matter of fact, it is determined that the judicial officer is actually biased, then the judicial officer must recuse himself or herself, because to continue to preside would be to act contrary to the judicial oath.
5. The determination of whether there is apprehended bias involves consideration of the facts established by evidence and the application of the relevant legal tests to those facts.
6. In relation to apprehended bias, the question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial or unprejudiced mind to the issues to be determined: Johnson v Johnson (2000) 201 CLR 488 at 492.
7. The relevant lay observer is taken to be a reasonable and fair-minded individual who, although without legal training or experience, is not wholly ignorant of legal matters, and is informed of the basic issues relevant to a fair assessment of all of the circumstances. "The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious:" Johnson v Johnson (2000) 201 CLR 488 at 508. [Footnotes omitted.]
8. That the apprehensions of the fair minded lay observer are reasonable is a feature of the test which is of importance: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.
9. If apprehended bias is to be established, the lay observer must reasonably apprehend that the judge's mind is so prejudiced in favour of a particular opinion formed or conclusion reached as to be unlikely to alter that view or conclusion, notwithstanding the evidence placed before the court or the submissions made to it: Kwan v Kang & Ors [2003] NSWCA 336 at [83]. It is not a question of whether the judge will decide the issue to be determined adversely to a party, but rather that the issue will be decided other than impartially and without prejudice: Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352; R v Masters (1992) 26 NSWLR 450 at 471.
10. It has been held that the courts must apply realistic criteria in considering whether a reasonable apprehension of bias has been made out. "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them": Johnson v Johnson (2000) 201 CLR 488 at 493. [Footnotes omitted.]
11. The application of realistic criteria is of particular relevance in a matter such as the present, where the judge who brings a charge of contempt in the face of the court is witness, prosecutor, and judge.
12. The test for apprehended bias is to be applied in two steps: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8].
13. It is important that the question of bias or apprehended bias is determined objectively, by the application of legal principle to established fact. It is a difficult, even unpleasant, position for a judge to be asked to consider his or her own conduct, and determine whether that conduct is such as to establish actual prejudice or to cause the fair minded lay observer, with all of the qualities referred to above, to reasonably apprehend bias in the judicial officer. It is therefore particularly important to approach the matter by the strict application of legal principle to evidence, lest a fundamental element of our system of justice - its impartiality - be compromised.
14. If actual bias is established, the judicial officer must without question recuse himself or herself. In cases of apprehended bias the judicial officer should recuse him or herself only where a reasonable apprehension is "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553 - 554; Re JRL; Ex Parte CJL op cit.
15. As to the latter proposition, "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour": Re JRL; Ex Parte CJL at 352.

What are the Issues for Determination?

1. In the somewhat unusual circumstances that apply to proceedings for charges brought by the court for contempt in its face, where the court has already concluded that contempt has been committed, and is aware from observation of the facts of the contempt, the issue or issues to be determined in the proceedings relevant to the applicant could only relate to the defence to be advanced by him to the charges pursuant to r.3 of the Supreme Court Rules 1970, and any penalty that may be imposed.
2. Although the full nature of his defence was not identified by the applicant in submission to the Court on the application for disqualification, some aspects of it can be gleaned from what was advanced, being a contention that he was not treated fairly as a witness, and that a Notice of Intention to Appeal filed in relation to the murder and armed robbery matters was of relevance to the applicant's status as a witness.
3. In the event of a conviction, the other issue for determination would be the appropriate penalty to be imposed.

What is the Conduct Identified as Relevant to Bias?

1. As I apprehend it, the alleged conduct pointed to by the applicant as capable of establishing actual or apprehended bias is: 1. The failure to treat the applicant fairly as a witness; 2. The warning given to Mr. Smith on 13 March 2015 as to the possible consequences of his conduct in court; 3. A conclusion purportedly reached that the applicant and Mr. Kennedy had conspired to lie about the events surrounding the murder of Mr. Davies; 4. A conclusion purportedly reached by me that the applicant was physically responsible for the death of Mr. Davies; and 5. A view that I purportedly held that Mr. Carroll's personal honesty was to be doubted.

What is the Connection between the Issues to be Decided and the Conduct Identified Such as to Demonstrate Bias?

1. Some of the conduct relied upon by the applicant cannot have any connection to or bearing on the issues to be decided by the Court in the proceedings relevant to contempt, even if the alleged conduct was established as a matter of fact. Other alleged conduct was not established by the evidence.
2. Those matters referred to at [69d] and [69e] above fall into the former category.
3. The conclusion that the applicant imputes to me that he was physically responsible for the death of Stanley Davies ([69d]), even if it could be established that I actually held such a view, or that the fair-minded lay observer might reasonably apprehend that I did, could have no relevance to the issues that the Court is likely to have to determine, being the applicant's defence to the charges of contempt, and any penalty that may ultimately be required to be imposed.
4. The issue of the applicant's role in a separate crime on a separate occasion, it being of an entirely different nature to contempt in the face of the court, is irrelevant.
5. Even if it were relevant, the applicant's assertion as to the view I hold is based upon a misreading of the judgment in R v Kennedy that cannot be supported after sensible consideration of the impugned passages. The reference in that judgment to the applicant's possible contribution to the physical attack on Mr. Davies was made in the context of assessing the role of Mr. Kennedy, not that of the applicant. That assessment was required as part of the sentencing exercise, and to resolve the disputed facts.
6. Similarly, a view purportedly held by a judicial officer about a particular legal representative ([69e]) can have no connection to the issues to be determined in dealing with the contempt of that legal representative's client, even were an adverse view in fact held of counsel.
7. There is no basis to conclude that animus between the bench and counsel - if it existed - could ever be a relevant consideration in the determination of an issue before the court involving another individual.
8. Even if alleged animus did or could have a connection to the determination of the relevant issues, here there is no evidence at all to establish actual bias against the applicant by reason of some adverse assessment of counsel. Whilst counsel may have had a perception that I had set out to "test" his honesty when my Associate ascertained the status of any NIA, a perception may be reasonable or unreasonable, but either way falls very far from being capable of proving actual bias.
9. Nor do I consider the circumstances relating to this aspect of the alleged bias as being such as to give rise to a reasonable apprehension in the fair-minded lay observer that I may have been prejudiced against the applicant, and unable to bring an impartial mind to bear on the issues to be decided. Among the many qualities imputed to the notional lay observer is an understanding of the professional training and experience of judicial officers, whose "training, tradition and oath or affirmation requires [the judge] to discard the irrelevant, the immaterial, and the prejudicial": Vakauta v Kelly (1988) 13 NSWLR 502 at 527 and 584-585.
10. A negative view of counsel, if held by a judge, is readily set aside in accordance with the judge's training, tradition, and oath. Indeed, one might go so far as to say that this occurs on a regular basis in our courts.
11. For those matters which could have a connection to the issues to be determined in relation to the proceedings for contempt, set out at [69a], [69b], and [69c] above, I do not regard actual or apprehended bias as having been established by evidence.
12. The evidence does not in my view establish my purported failure to treat Mr. Smith fairly as a witness ([69a]).
13. Criteria must be reasonably applied, and here, that must involve attention to the prevailing circumstances. Those circumstances included the fact that Mr. Smith, a man convicted of a particularly violent murder and serving a lengthy sentence for his crime, was an unwilling witness, and may have posed a security risk to the court.
14. Although Mr. Carroll submitted that there was some obligation on the Court to ensure that the applicant was treated in accordance with the DPPG no authority in support of that proposition was identified, and nor have I found any in my subsequent researches. Common sense suggests that there is no such obligation.
15. Firstly, the DPPG does not bind any court. The Guidelines are intended for Crown Prosecutors and others who act for the Director of Public Prosecutions; they do not have even an instructive role for judicial officers. In the proceedings against Raymond Kennedy, it was a matter for the Crown as to whether or not the applicant was called, and whether or not he was treated by the Crown in the same way as, for example, a witness who was an indigenous victim of sexual assault, as Mr. Carroll contended was appropriate. It was no business of the Court to ensure that the Crown Prosecutor spoke to Mr Smith in conference before he was called to give evidence, or to see that a Witness Assistance Officer, being an employee of the Office of the Director of Public Prosecutions, was present to provide support to Mr. Smith in his capacity as a witness.
16. Neither was it the Court's role to ensure the applicant was provided with legal advice on the speculative basis that he may have been asked a question the answer to which could incriminate him in some crime. The thrust of Mr. Carroll's argument in this regard was that the Court was aware from the contents of the transcript of the recorded conversation of 5.11.2011 that the applicant had spoken about the commission of other crimes, and was therefore at risk of self-incrimination. That submission overlooks the fact that the relevant transcript had already been tendered to the court that sentenced the applicant for murder, and was in those proceedings relied upon by the Crown as an admission, and not disputed to be such by the applicant. Any danger of self-incrimination was well and truly at large. If the witness had taken an oath or affirmation, and answered questions, and was asked a problematic question, appropriate steps could have been taken at that time to safeguard his rights. That point was never reached.
17. Whilst Counsel referred to other cases in which a witness in danger of being dealt with for contempt was given an opportunity to obtain legal advice, such as R v Bilal Razzak [2006] NSWSC 1366 where Bell J (as her Honour then was) offered that opportunity to a witness subsequently charged with contempt, the cases relied upon involved a trial before a jury (with a consequent risk of the trial miscarrying and a jury being discharged) and, it would appear from the cases, a witness who was not physically threatening those around him.
18. In the proceedings against Mr. Kennedy, there was no jury, and no realistic prospect of polite conversation with a witness who refused even to sit down in the witness box, and whose very demeanour was an unstated threat from the outset.
19. Whilst one can always see in hindsight how matters may have been better managed, there is no obligation on a court dealing with contumacious contempt to do other than warn the witness of the possible consequences of his or her actions. That being the case, the evidence relied upon (being the transcript of 13 March 2015) cannot prove actual bias.
20. Nor can it establish apprehended bias in my judgment, bearing in mind the need to realistically apply the relevant criteria, and imputing to the fair-minded lay observer knowledge of the whole of the circumstances of Mr. Smith's presentation in the court room on 13 March 2013, and the obligations that operated on the Court.
21. The allegation of pre-judgment of penalty relevant to contempt ([69b] above) relies upon my warning to the applicant on 13 March 2015, set out above at [34], prior to him being charged with contempt in the face of the court. The applicant asserts that the warning given was a pre-judgment, but that mistakes the function of the warning. In all cases where an individual is behaving in such a way as to be in danger of being charged with contempt in the face of the court, the court is obliged to warn the individual of the risk that his or her conduct, if persisted with, may constitute contempt, which carries a penalty including the possibility of a prison sentence.
22. In circumstances such as those that applied in the present case, where the relevant individual was already serving a sufficiently lengthy sentence as to regard himself as immune to any punishment that could be imposed (asking rhetorically "what can you do"), it was important to ensure that it was clearly understood that the penalty could include a sentence that would represent an additional term of imprisonment.
23. I do not accept that anything recorded in the transcript of 13 March 2015 is capable of establishing actual bias.
24. In terms of what a fair-minded lay observer might reasonably apprehend, on the basis that that observer ought be taken to understand the obligation of the court to warn a potential contemnor of the possible consequences of his or her actions, I am unable to conclude that the observer would regard my warning to the applicant as other than such a required warning.
25. The final matter relied upon by the applicant as evidencing actual and / or apprehended bias was that set out at [69c] above, an assertion that I had concluded that the applicant and Mr. Kennedy had conspired to lie in some way (precisely what way is not altogether clear to me).
26. This allegation is based upon a discrete paragraph in R v Kennedy, ([38] of the judgment, extracted at [37] above). The applicant submitted that this paragraph discloses my conclusion that he and Mr. Kennedy had colluded in some way as to the evidence the applicant would give about the circumstances of the murder. The submission is based upon a misreading of the judgment.
27. The impugned section in fact refers to the expectations that Mr. Kennedy might be assumed to have held that the applicant would, if called as a witness, confirm his assertions that he had not entered the house until well after his two co-offenders, and had not himself participated in the assault upon the deceased. It could be assumed that Mr. Kennedy would expect the applicant to give evidence of this nature because Mr. Kennedy had told others (such as a psychologist) that he had not gone into the deceased's house until some time after his co-offenders and, once inside, had not participated in any way in the attack upon the deceased.
28. Any reasonable consideration of the impugned passage, in the context of the whole of the judgment, could not conclude that what was stated there referred to a conspiracy between Mr. Kennedy and the applicant. That being the case, the relevant paragraph cannot establish actual bias, and nor is it such as to cause the fair-minded lay observer to reasonably apprehend bias on my part.
29. Whilst the applicant relied upon purported differences between the account in Kennedy of his conduct as a witness, and those given by witnesses, how this was relevant to bias, actual or apprehended, was not articulated, and is not further considered.

Conclusion

1. Having considered the evidence adduced by the applicant in support of his application, together with the submissions of counsel in seeking to advance it, I am not persuaded that the applicant has established either actual bias or apprehended bias.
2. Bearing in mind the nature of these proceedings, being proceedings for contempt in the face of the court, where the Court observed the applicant's conduct and brought the charges against him, it is necessary to guard against the possibility that an application of this nature could be brought by a contemnor in a cynical endeavour to avoid being dealt with by the judge who saw and heard the full extent of the contumacious conduct. Contemnors should not be encouraged in a belief that it is possible to influence the identity of the judicial officer who will finalise the proceedings, in the hope of obtaining a judge more likely to be favourable to the applicant. Such an outcome is inimical to the interests of justice.

ORDERS 1. The application is refused. 2. The matter is adjourned to 17 July 2015.

Amendments 26 June 2015 - Typographical error at [35] 29 June 2015 - Typographical error at [32] and [40] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2015