Solicitors:
Ms C Hurford (for the prosecution/respondent)
File Number(s): 2015/245077, 2015/242816, 2015/249916, 2015/245123, 2015/172531
[2]
Judgment
The application made by Messrs Hammond, Faitua, Chasle and Fretton-Anae is that I disqualify myself from hearing this matter on the grounds of a reasonable apprehension of bias.
It is not opposed by the Crown and is supported by Mr Fitzpatrick.
I have considered submissions from Messrs Hammond, Faitua, Chasle and Fretton-Anae, submissions from Mr Fitzpatrick and from the DPP.
My attention has been drawn to numerous decisions on apprehended bias. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63, the High Court of Australia said (at [7]-[8], emphasis in original):
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
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.
The case also refers (at [19]-[20]) to the fact that judicial officers are required to perform their judicial functions in accordance with the law and practice and they are not to engage in selection of cases nor are they to decline to hear cases without good cause:
… Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
In Gaudie v Local Court of NSW [2013] NSWSC 1425, the Supreme Court of NSW (Johnson J at [81]) said:
A judicial officer should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter….
That case cited with approval what the High Court of Australia said on this point in Livesey v New South Wales Bar Association [1983] HCA 17. In Livesey, the Court said (at [8]):
… If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.…
In AB v Director of Public Prosecutions [2016] NSWCA 73, the NSW Court of Appeal (Emmett AJA at [19]-[20], footnotes omitted) said:
The test for apprehension of bias on the part of a decision maker is whether a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question that the decision maker is required to decide. Before determining that there is an apprehension of bias, it is first necessary to identify what it is that might lead the decision maker to decide a case other than on its legal and factual merits. It is then necessary to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merit.
Judges do not enter upon the task of deciding cases as if they had no experience of life. Decision makers, including judges, will sometimes approach the task of decision making with a tendency of mind, or predisposition, without being accused or suspected of bias. A reasonable observer does not entertain a reasonable fear that a decision maker will bring an unfair or prejudiced mind to an enquiry merely because the decision maker has formed a conclusion about an issue involved in the enquiry. A fair and unprejudiced mind may well have given thought to the subject matter or formed a view or inclination of the mind upon or with respect to the subject matter.
In R v Merrick (No 4) [2016] NSWSC 309, the Supreme Court of NSW (Wilson J at [7]-[11]) said:
Determination of whether there is apprehended bias also involves consideration of facts which are established by evidence, and the application of legal tests to the relevant facts. In relation to apprehended bias, the test is rather wider than it is for actual bias. The question is whether a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial or unprejudiced mind to the issues that are to be determined. …
It is significant and of some importance to note that the relevant lay observer is taken to be reasonable and fair-minded: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 95.
Although an individual who has no legal training or experience, the fair-minded observer is also assumed to be someone not wholly ignorant of legal matters, who is informed of the basic issues in the trial and able, on the basis of that knowledge, to make a fair assessment of all of the prevailing circumstances: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Kirby J) at [53]. The knowledge which is imputed to the fair-minded and reasonable observer is wide ranging.
For apprehended bias to be established, circumstances must be such that 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 any evidence that might be placed before the court, or any submissions to which it might be directed: Kwan v Kang & Ors [2003] NSWCA 336 at [83].
It is important when assessing such an application that courts apply realistic criteria in considering whether or not an apprehension of bias has been made out. That is particularly so because it is not unknown for applications of this nature to be made purely in an attempt to obtain the perceived benefit of a different judicial officer presiding. The higher courts have consistently indicated that applications of this nature are, therefore, to be dealt with using considerable intellectual vigour. They cannot simply be granted because of a perception which is neither reasonable nor fair, and it is that perhaps upon which this current application turns.
However, the principle that a judicial officer should not disqualify him or herself is not "a blanket that smothers the effect of disqualification where it has already arisen". It is clear from the decision of the High Court of Australia in Antoun v The Queen [2006] HCA 2 that if I find there is a reasonable apprehension of bias then I must disqualify myself. There is no alternative.
I agree with the applicants that what I might think is irrelevant. What is relevant is the mind of the reasonable lay observer. I would also point out that what is in the minds of Messrs Hammond, Faitua, Chasle, Fretton-Anae and Fitzpatrick is also irrelevant to the test. The test is based on my making, curiously, an objective assessment of the application even though it is my continued position in these proceedings which is under challenge.
The basis of this application is that there is a reasonable possibility that a fair minded lay observer might reasonably apprehend that the tribunal of fact might not bring an impartial and unprejudiced mind to the issues at hand.
I did preside over a preliminary hearing involving all the accused, not just those accused appearing before me today. There were two aspects to the preliminary hearing. There was an application for separate trials and there were notices served on the accused in relation to coincidence and tendency evidence. I determined the applications. The decision, in so far as it related to Messrs Hammond, Chasle and Faitua, became the subject of an appeal to the Supreme Court. In Hammond v Director of Public Prosecutions (NSW) [2016] NSWSC 701, Justice Wilson of the Supreme Court of NSW overturned part of my determination insofar as it related to those accused. The other accused did not appeal.
The case was remitted back to the Local Court and then listed before me. On that occasion I made various other decisions including to order that there be separate trials in relation to the accused.
Subsequently, one of the separated trials was allocated to me.
In the preliminary hearing, I did read a number of statements and heard submissions in regard to charges preferred against accused people who were not part of the hearing subsequently allocated to me.
I made decisions in relation to all the accused on the applications regarding tendency and coincidence evidence. I did comment on the question of alleged collusion between the prisoner complainants. But it is not true to say that the tendency and coincidence determinations were based on a consideration of all the statements and evidence in the brief but only on material relevant to the issues at hand, tendered by the parties.
I was asked to consider that there might have been collusion between the complainants in the context of considering the application regarding tendency and coincidence evidence. A chart identifying the accused and a letter were handed up.
After considering the submissions I said:
In my view there is no evidence of collusion before this Court. Secondly, I do not really, when I read the statements, see anything that would suggest to me that I can draw any inference, if I am able to do so, that there has been concoction between these prisoners and collusion between these prisoners. That is not to say I believe them because that is not what I am asked to do today. That is a matter that will be determined at trial. Their credibility will be assessed at trial but on the face of the statements taken at their highest I do not see anything that would lend support to the argument that this is collusion.
In reviewing my decision, the Supreme Court of NSW cited an observation made in the course of my decision:
I say this, repeating the observation I made earlier, which is that between the statements being made by these complainants and today, here, there would appear to have been identification either conceded or established or in some other way. There is very little identification evidence in any of these statements, on the face of it, but it would appear from the submissions that something has happened between then and now to enable names to be put to phrases like "Islander squad member", "Caucasian squad officer". I will only say that once, I will not say it again, but it appears to me that that has occurred somehow and I accept, for the sake of this decision, that there is no issue for me to dwell on in regard to that.
There was nothing said from the Bar table in response to that. Her Honour then said about my remarks (at [20]-[21]):
It is clear from his Honour's remarks… that, probably misled by the chart and the complete absence of focus upon the issue by the parties, he considered identification to have been conceded by the plaintiffs or, at least, that no issue was taken with that aspect of the evidence for the purposes of the applications then being determined.
How that error could occur, given the way the matter was approached by the parties, is entirely understandable; that it was an error however, is plain.
The submission for disqualification says:
A reasonable fair minded lay observer could not help but conclude that your Honour is appraised of material of a materially different nature and extent of information than would otherwise be the case if your Honour had not been the responsible judicial officer for making the primary 97, 98 determination.
That is true. I did look at prejudicial material about other accused who were not party to the hearing allocated ultimately to me and which was not likely to be led as evidence by the prosecution in the case at hand.
It goes on:
In particular, through considering the material that was the subject of the primary 97, 98 determination, your Honour has been fully exposed to highly prejudicial evidence that is not even sought to be adduced in the Crown case and it is, in fact, entirely unrelated to it. Five out of the eight police statements involve different alleged victims on different dates. The potential prejudicial perception that this creates simply cannot be ignored.
It was submitted for Mr Fitzpatrick:
The Court has... heard and determined an application of the prosecution to rely on tendency evidence and an application of the accused that the present charge be separately heard from the hearing of charges relating to alleged offences that were the subject of proposed tendency evidence. The Court refused the prosecution's application but considered the proposed tendency evidence comprising statements of other complainants alleging conduct on the part of half of the accused in circumstances arguably comparable to the subject of the present hearing. Evidence of this kind has been long recognised as especially prejudicial in effect.
The fair minded lay observer, whilst taken to recognise the judicial officers are by training equipped to ignore the irrelevant and prejudicial, ought not be presumed to reject the possibility that consideration of such evidence might affect the determination of the facts in issue.
Moreover the Court's determination that it was in the interests of justice for charges relating to the alleged conduct against other complainants to be heard separately from that the subject of the present hearing avoided such a perception. It would tend to subvert the rationale for the determination were the present hearing to proceed before the judicial officer who considered evidence of that conduct.
The prosecution's response to the defendant's submissions was:
A reliance is placed on the fact that your Honour was provided with and is therefore appraised of the statements of eight alleged complainants for the purposes of the 97, 98 argument. Only three of those statements relate to alleged complaints in the current proceedings, namely the statements of Roland, Bolsham and Prince. Reliance is also placed on the fact that conclusive comments were made by your Honour in the judgment on this issue in relation to similarity in conduct and modus operandi as well as comments addressed towards there being no evidence in the statements in relation to collusion. By inference it appears to be suggested by the applicants that these were adverse comments and/or findings.
It is submitted on behalf of the defendant, that is the applicants in this case, that a reasonable fair minded lay observer could not help but conclude that your Honour was appraised of material of a materially different nature and extent of information than would otherwise been the case had your Honour not been the judicial officer responsible for the 97, 98 decision.
The fact a judicial officer has made a determination in relation to a preliminary application including an application to adduce tendency and/or coincidence evidence under s 97 and 98, whether successful or unsuccessful, would not of itself automatically satisfy the test or an apprehension of bias.
That is correct. There are often pre-hearing matters that judicial officers, particularly in relation to judge alone hearings, have to decide, for example, bail applications, suppression orders, voir dires and applications for separate trials. The judicial officer has to turn his or her mind to material some of which tendered that might not be admissible at trial, such as hearsay evidence. Involvement in such a process would not of itself automatically satisfy the test for reasonable apprehension.
The prosecution goes on to say:
Similarly it is submitted that the qualified comments made by your Honour in the judgments on the 97, 98 issue would not necessarily satisfy the test. It is submitted that these comments, viewed individually or collectively, could not properly be construed as being adverse comments and/or findings against the defendant given the context within which they are made.
The 97, 98 application before the Court was concerned with the admissibility of evidence on a tendency and/or coincidence basis as distinct from the resolution of issues involving credit and/or proof to which your Honour was at pains to make clear in the judgment delivered.
I made findings in regard to all accused. I found there was tendency and coincidence evidence in regard to some but not most of the accused. Only those accused against whom findings were made on tendency and coincidence evidence appealed my decision.
The prosecution concludes:
A lay observer would have regard to the fact that the person being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant and immaterial and the prejudicial.
The prosecution referred to a number of cases to support that particular contention.
The application has a few facets. One is that I have been exposed, in a preliminary hearing, to evidence that is not going to be evidence in this case. That is the evidence of complainants who will not be giving any evidence in the proceedings before me.
The second is that I have been exposed to material that is highly prejudicial.
The argument is that a fair minded lay observer might reasonably apprehend that the tribunal of fact might be prejudiced by seeing the statements of eight prosecution witnesses when only three of those witnesses will be called in the current proceedings and that, as a consequence, the tribunal of fact may not be able to bring an impartial mind to the determination of the present hearing.
Further, I made certain findings in relation to the absence of evidence of collusion for the purposes of determining the tendency and coincidence application when the accused submitted that there was evidence of collusion at the preliminary hearing.
This was a preliminary hearing. It was in the nature of a voir dire. The applicants say that it was not a typical voir dire. It was a different voir dire:
It is not what would be described as a run of the mill voir dire of a kind that magistrates sitting as both judges of law and tribunal of fact are routinely required to make.
In particular through considering the material that was the subject of the primary determination your Honour has been fully exposed to highly prejudicial evidence that is not even sought to be adduced in the Crown case and is, in fact, entirely unrelated to it.
There is no further analysis of what it was in those documents that is so highly prejudicial. It was left to me to form that view. All that is said is this:
Five out of eight police statements involved different alleged victims on different dates....
The potential prejudicial perception that this creates simply cannot be ignored.
It is not uncommon for judicial officers during preliminary inquiries to be told of things that are entirely irrelevant and not material to the substantive hearing. I did see material about the accused in the hearing allocated to me and other accused, but the prejudicial aspects are not identified or linked to any incapacity to be impartial in the submissions.
A fair minded lay observer looking at what I said about collusion would conclude that I made a balanced assessment. I made no findings going to the credit of any of the accused.
The Supreme Court has made no comment on whether I should or should not continue to be involved in this matter. Indeed when it was remitted back to the Local Court and listed before me no objection was taken by any party to the fact that I continued in this matter and then made decisions about separate trials.
This matter was allocated to me by the Chief Magistrate's Office as a special fixture. I was not part-heard in the matter.
I was advised that there will be no reliance by the Crown on tendency and coincidence evidence in the hearing. The fact that I made findings in regard to the applicants about tendency and coincidence evidence was not submitted as a ground for disqualification.
Judicial officers take an oath of office which says, "I will do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill‑will". Their decisions are subject to appeal and the appropriation of that judicial conduct can be investigated by the Judicial Commission of NSW.
The applicant is required to make out a logical connection between the matter suggesting bias, which is prejudice, and the feared deviation from the course of deciding the case on its merits. The applicants have asserted prejudice and have asked me to consider the implications of that prejudice but they have not articulated what the connection is.
Accordingly I will not disqualify myself from these proceedings.
Magistrate M Richardson
Burwood Local Court
20 September 2016
[3]
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Decision last updated: 08 May 2017