DPP v Matino

"The test for ostensible or apparent bias is firmly established. As the plurality said in Michael Wilson & Partners Ltd v Nicholls:[2] > > It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide..."[3].

3. While the test for apprehended bias is well settled and has been repeated many times, the High Court has elaborated on the test in more recent times in a number of important cases.
4. In 2023, in QYFM v Minister for Immigration Citizenship Migration Services and Multicultural Affairs[4] it was stated authoritatively in the joint judgement of Keifel CJ and Gageler J that:

The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability"[5].

5. Most importantly the judgement went on to establish the critical three step analysis that must be undertaken to determining apprehended bias:

Application of the criterion was identified in Ebner and has been reiterated, logically to entail: > > "(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; > > (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and > > (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer"[6].

6. The three-step analysis was repeated in the High Court in resolving broad issues including apprehended bias in the context of a criminal trial in Victoria, in DPP v Smith[7].
7. Thus, there are three steps that must be navigated in the determination of what has become known as the double might test articulated in Ebner.
8. What has been of real importance in modern cases is the need for consideration of the context of all facts and issues in the case which apprehended bias is asserted. In tandem with this is the developing jurisprudence as to the attributes of the fair-minded lay observer.
9. In QYFM, Steward J- like Kiefel CJ and Gagler J[8]- referred to what was said by Kirby J in Johnson v Johnson:

"The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant 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 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. ... Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"[9].

10. Justice Steward went on to cite what was said in CNY17 by Nettle and Gordon JJ:

"The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has 'a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]"[10].

11. In DPP v Smith, the plurality, concluded that:

"The fair minded lay observer, ought be considered as having an understanding of all the relatively detailed and complex legislative provisions of Part 8.2A of the Criminal Procedure Act, as well as the roles of intermediaries, and the purposes and ways Special Hearings and Ground Rules Hearings are to proceed to enable children and vulnerable adult witnesses to give evidence and be cross-examined" [11].

1. The point to be understood is that from the modern cases while the fair-minded lay observer is an objective, non-legal, hypothetical construct, it is essential that the broad context of the proceedings is seen as part of the fair-minded lay observer's understandings. Indeed, very complex statutory schemes and proceedings are or can be considered within the characteristics or capacity of the fair-minded lay observer.
2. In this particular case, the question becomes whether the fair-minded lay observer is to be taken as understanding the broad purposes and schemes of the central pieces of legislation governing a criminal trial, that being, the Evidence Act 2009 (EA), the Juries Directions Act 2015 (JDA), and the Criminal Procedure Act 2009 (CPA).
3. A further point to be appreciated before moving to the particular submissions of apprehended bias in this case, is what was said by the Court of Appeal in AJH Lawyers Ltd Careri & Ors[12] in setting out the general principles governing apprehended bias. It was said:

'Secondly, as noted in Antoun, judges should not 'too readily accept recusal because a party has demanded it'. Further, as held in Ebner, > > '[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... 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.' That being said, the principle that a judge should not disqualify him or herself too readily is not a 'blanket that smothers the effect of disqualification where it has already arisen[13]'.

1. The written submissions set out seven examples from the pre-trial and the trial which were said to satisfy the test for apprehended bias. Ultimately following some questions at the beginning of the recusal application, Mr Traczyk, articulated that the species of apprehended bias alleged was undue judicial intervention in ways that assisted the prosecution and disadvantaged the accused such that the fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question the I am required to decide.
2. Initially, Mr Traczyk submitted that the examples in the written submission spoke for themselves in terms of apprehended bias and little more needed to be said in terms of oral submissions[14].
3. Notwithstanding that I endeavoured to tease out some of those examples of the alleged apprehended bias by judicial intervention in favour of the prosecution and to the disadvantage of the accused. Those matters were not in the order set out in the written application.

1. The first matter raised in discussions was paragraph or point 5, in which it is said I invited the prosecution on a number of occasions to rely on post offence conduct when the prosecution had no intention of doing so. It was said this was set out in the transcript at T239-42.
2. The transcript establishes that I raised concerns with the prosecutor about the body worn camera evidence of what the accused said to the police officer when he first encounters the police whilst they were in a car searching for the perpetrator after the offence. Cross-examination conducted by defence was in general terms, that the accused did not try to run away.
3. I asked the prosecution what the purpose of the evidence was as I was concerned that neither the prosecution nor defence counsel had considered that there was a real risk the evidence could be used by the jury to reason in terms of incriminating conduct. In other words, the jury could see the accused's account to the police when he first encountered them was establishing a false track because he knew he had committed the attempted aggravated carjacking. Once alerted by me the prosecutor frankly agreed that the risk was real but that was not the purpose of the evidence and that warnings to the jury would be necessary.
4. Mr Traczyk, having not objected to the evidence and endeavoured to use it to what he thought was his client's benefit, deliberately did not wish to add anything to the exchange. This, in my view, made it clear he was not concerned that I had intervened to alert the parties to what I considered was a real risk of the jury engaging in improper reasoning if there was not a proper set of directions. That is to not use the evidence for incriminating conduct purposes as that is understood in the JDA. What was identified by my intervention was that the pending section 12 of the JDA discussion needed to ensure the risk of improper reasoning as a consequence of this body worn camera evidence was not improperly utilised against the accused. The prosecution at the point I raised the issue, made it clear that incriminating conduct was not the purpose of the evidence and the prosecution would make that clear to the jury if necessary.
5. In the recusal application, Mr Traczyk now argues that, in fact, I suggested to the prosecution to utilise the evidence as incriminating conduct when they did not intend to do so and in this way my intervention gave some advantage to the prosecution and operated against the accused.
6. Any proper analysis of the what occurred was that my intervention was to protect the accused from risk that an inadvertent, but potential consequence of the prosecution putting the evidence before the jury without objection from the accused lawyers, that the jury would misuse evidence in a way not permitted because the evidence had not been admitted in accordance with the strict statutory regime of the JDA. In other words, my intervention, as it is described, was not to the disadvantage of the accused but rather to ensure he had a fair trial according to law.
7. In my view as explained in discussion in the recusal application, the fair-minded lay observer is in modern times is considered to broadly understand that a trial judge has a role to ensure that the prosecution do not get an advantage and an accused a disadvantage because the parties are not aware of the risks there are to the jury misusing a piece of the evidence in unintended ways. The dreadful and hopefully rare concept of something "getting through to the keeper" which causes a miscarriage is something the fair-minded lay observer would see as something requiring the trial judge to intervene, ask questions so as to ensure risks are identified and ameliorated in those circumstances where, as is here, there was no objection to the evidence which created the risk.
8. As I have said the prosecution at the time made clear it was not using the evidence as a basis for incriminating conduct but that there was a risk that the evidence could be misused and thus ameliorating directions may be necessary. In the recusal application the prosecution restated its position and indicated that the intervention to point out the unintended risks was justified so as to avoid the trial going off the rails because the parties did not see the risks that were plain to see
9. This part of the defence argument for recusal is entirely misguided and indeed not to have intervened to protect the accused could be seen as potentially unconscious bias or at least the basis for an error on my part giving rise to a miscarriage.
10. In fact the very case Mr Traczyk relied on to establish the test for apprehended bias, Lancaster[15], is a stark example of another intervention of the trial judge to protect the accused from the risk of an unfairness and a miscarriage notwithstanding the failure of the accused Counsel to understand the evidence and the possibility of misuse.
11. I will not now outline in full how the Court of Appeal in Lancaster concluded that the intervention to ensure evidence that was plainly tendency evidence was subject to the more rigorous requirements of the EA. Rather I will refer only to the conclusion of the Court of Appeal, which is very apt here. What was said in Lancaster was:

"In those circumstances, we do not consider that a fair-minded lay observer might reasonably apprehend from the way in which the judge dealt with the gee-strings evidence that his Honour might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. To the contrary, we think it more likely that the fair-minded lay observer would derive confidence in the judge's impartiality from the manner in which his Honour went about preventing a significant potential for miscarriage of justice."[16]

12. In this case I have been forced to be hypervigilant to ensure the trial remains fair in the circumstances of what I have seen as the forensic decisions, or lack thereof, including the lack of up to date knowledge of the law by defence.
13. In the end I can see none of the 3 steps guiding the double might test as in any way establishing that this intervention regarding the risk of incriminating conduct reasoning as contributing anything to a reasonable apprehension of bias, quite the contrary.

Evidence of a registration number being adduced in re-examination: Point 4

1. The next point discussed in the exchanges with defence Counsel was the allegation that by enabling the prosecution to adduce evidence in re-examination of the registration number of the van at the scene of the attempted carjacking, I had displayed impartiality contributing to the overall apprehended bias. This was point 4 on the defence application. The part of the trial in which this unfolded was T173.
2. In discussions with Mr Traczyk during the recusal application, I asked if whether this was really a criticism of the ruling I had made to allow the questions to be asked in re-examination after hearing his objection and argument. Mr Traczyk then conceded that his argument in the recusal application did amount to questioning the ruling and that he no longer pressed the point that this factor contributed to the apprehension of bias. This concession was appropriate and as such the point falls away.
3. Deciding a legal question adversely to an accused (or any party) does not establish or contribute to establishing apprehended bias in accordance with the test articulated above.

Refreshing Memory s 32 Evidence Act: Point 7

1. All that said I was very conscious in this case to ensure that heading forward, the approach of the prosecution, in particular in adducing evidence was orthodox, correct and fair. This was in part to be doubly sure that evidence was not adduced in re-examination that could or should have been adduced in evidence in chief. I was also concerned to ensure that the accused was not disadvantaged by reason of the way his counsel cross-examined which may consequentially open doors in re-examination that were strictly there but ought not have been.
2. Thus, when another witness was called and not asked particular questions, before cross-examination commenced, I queried with the prosecution as to what was intended to be done about that omission if anything. I reminded the prosecution of the relevant provisions of the EA to enable refreshing of the memory if certain conditions were met. The prosecutor having overlooked the evidence and the capacity to seek leave to have the witness refresh his memory, sought to do so when it was raised by me. I granted leave, mindful of the balance between assisting the prosecution and not wanting to risk another example of cross-examination opening up the issue for re-examination. In the event the witness was not able to recall the particular point or part of the statement, even after refreshing his memory and the potential evidence disappeared to the advantage of the accused. This process I considered to be the fairest for the accused as the evidence, if remembered (and it wasn't in any event), would have been adduced only with refreshing the memory type assistance. This would have enabled there to be cross-examined as to its reliability rather than the evidence potentially come out in re-examination without any guarantee that the accused would have another chance to deal with the evidence.
3. In my view the fair-minded lay observer would be mindful of how the whole case unfolded including how other pieces of evidence such as the registration number came to be adduced. In my view the fair-minded lay observer would consider that the trial judge has a role to ensure that the earlier ways that evidence came out, which were lawful and not unfair to the accused, were not repeated by adducing in re-examination what could be seen as probative but inculpatory evidence. The fair-minded lay observer may consider that the trial judge ought to do what the statute permitted so as to ensure the evidence was adduced before cross-examination.
4. In my view, given that the witness did not remember the relevant parts of the statement, there is, with respect to the second step in the test as set out in QYFM, no logical connection between the identified factor of an intervention where the issue of section 32 EA was raised, and the apprehended deviation from deciding the question on its merits. Further and more emphatically it would in all the circumstances not be at all reasonable- in fact it would be distinctly unreasonable- for the fair-minded lay observer to consider this was an example of, or a contribution to, the apprehension of bias. The third step would not be made out at all. This example of an intervention does not contribute anything to the overall allegation of apprehended bias.

1. Another point raised in the application was that I intervened to "invite the prosecution to obtain evidence regarding the timing of certain events when it became evident that this was a difficulty for the prosecution (Trial Transcript 299). This was point 6 in the written application.
2. The proper analysis of the exchange regarding times of certain events reveals what was to raise with the prosecution, and the defence, was that a tabulation of the times of events taken from various pieces of admitted evidence could be helpful to the jury to understand the chronology by reference to objective sources such as the triple zero call, CCTV footage and the later body worn camera footage.
3. The prosecution did produce a timeline in table form from the admitted evidence in an endeavour to explain the unfolding of the incident to the jury. This way of gathering and formatting the evidence to assist the jury is common and authorised by the CPA. The intervention was not inviting the prosecution to obtain evidence but to organise the admitted evidence in a way that could assist the jury.
4. The fair-minded lay observer is to be taken as aware of what are now routine ways juries are assisted. It is not a sign of apprehended bias but rather the trial judge inviting clarity to assist the jury in the ultimate deliberations. This example adds nothing at all to what is said was a combination of factors establishing the test for apprehended bias.

Calling for notes and the risk of tender: Point 3

1. A matter raised in the recusal application but not addressed in discussions was the allegation that I had invited the prosecution to tender a statement when they had no intention of doing so this is point 3 and the relevant transcript is T125-30.
2. At the commencement of the cross-examination of the witness who allegedly had the weapon held to him when it is said a demand was made to hand over his motorbike, Mr Traczyk asked questions of the witness about the process of making his police statement. The witness said that in addition to his typed statement he spoke to the police at the scene and they took notes. Having heard that answer Mr Traczyk called for the notes. In my experience, in these days of fuller disclosure and requests from solicitors to police and the prosecution, these calls in court are reasonably rare occurrences, especially amidst a trial. In any event the prosecution after a necessary break secured the notes and provided them to Mr Traczyk.
3. Before the matter continued before the jury, I asked whether the old fashion consequence or risk for a cross-examiner who called for notes or a document- that is the document is tendered, was going to or likely to happen here. The prosecution indicated it was not going to force a tender or tender the documents unless Mr Traczyk wanted that to happen. The cross-examination proceeded and the notes were not tendered.
4. The exchange regarding the tender of the notes was of little moment and the only purpose was to ensure that Mr Traczyk did not overlook the risks that a call for documents can create.
5. The description in the written application that this was inviting the prosecution to tender a statement when they did not intend to, is a fundamental misunderstanding of what occurred and the older procedures that governed the call for documents. The only point was to ensure this rapid call for documents did not backfire and cause a disadvantage to the accused.
6. This point adds nothing to what is said to be a reasonable apprehended bias, on the contrary.

Pre-Trial argument 1: The role of the accused solicitor at and after committal.

1. The final two matters raised as examples of interventions that in combination established apprehended bias arose earlier in pre-trial hearings.
2. The first concerned whether the prosecution would lead evidence of what it alleged was the accused's plea of guilty when he was committed to the County Court. Difficulties arose with respect to this aspect of the prosecution case because of the extraordinary scenario of the employee solicitor of the accused's on going solicitor's firm, not being or making herself available, to give evidence as to what was said at the Magistrates Court when the accused was committed and subsequent plea was listed.
3. In the highly unusual and frankly troubling circumstances of the employee not being able to be subpoenaed, and all that surrounded that as set out in the transcript including the evidence of the police informant, I then inquired of the prosecution as to whether there had been any contemplation of utilising a rarely used provision of the EA being section 87, which allows for admissions to be lead if they are made by a person who has authority to do so. This could include a solicitor who makes a representation to a Court orally or in writing.
4. In raising this provision, it became clear that neither the prosecution nor the defence were familiar with it, or its scope or potential, to overcome what was the extraordinary attitude of the solicitors not to be available to at least give some information without breaching legal professional privilege.
5. In the end the prosecution decided not to take that course or lead any evidence of the accused plea in the Magistrate Court on Committal and the matter proceeded to trial.
6. At the time of the pre-trial hearing, the prosecution was still endeavouring to locate and potentially take a statement from the solicitor without success. To identify to the parties the provisions of section 87 of the EA was to ensure all efficient options were understood, so as to protect against the trial not being ready to proceed as the search for the solicitor continued.
7. The fact that section 87 of the EA may have been a possible route to having evidence admitted did not mean for a moment that it would be admitted via that pathway. It would still need to depend on the matters raised regarding a wide range of circumstances and arguments, and the impact on the fairness of the trial. These considerations were a good deal off into the future. In any event the prosecution did not adopt that approach or any that would have put the accused man's plea at the Magistrate's Court before the jury in the trial that proceed 2 months later.
8. In my view the fair-minded lay observer is to be taken as broadly understanding that the purpose of the EA is to ensure, within the overriding bounds of fairness, that the best relevant evidence should be put before a jury to enable the jury to determine the issues. It is to be assumed that the fair-minded lay observer understands that many provisions of the EA are directed to that end.
9. Accordingly, I do not consider inquiring of the prosecution if there had been consideration of section 87 of the EA to reasonably contribute to the establishing of an apprehension of bias. In the circumstances, there is no logical connection between an inquiry raised and not taken up during pre-trial proceedings, and the establishment of apprehended bias. Certainly, the fair-minded lay observer would not consider it reasonable to conclude this matter established, or contributed to establishing, apprehended bias during the trial.

Pre-Trial argument 2: Questioning the qualifications of the psychologist

1. The second aspect of the pre-trial hearing related to the pre-trial submission of Mr Traczyk that a defence of mental impairment ought to be left to the jury. The prosecution opposed this, clearly contending that there was no basis for the defence to be left and specifically if there was any psychosis- which was denied- it was drug induced and further that the expert relied on by the defence- the psychologist Ms Ferrari- did not have sufficient or appropriate expertise to give the evidence or opinions contained in her reports with respect to the defence of mental impairment.
2. The pre-trial hearing with respect to this issue proceeded in the orthodox way with Ms Ferrari called to give evidence and be cross-examined. As the issue was to be resolved by me, as the judge before who the pretrial hearing was listed, I sought clarifications and evidence of expertise and assertions of experience in the particular area of a mental impairment defence.
3. Ultimately, I ruled that the defence of mental impairment would not be permitted to be left to the jury. I made findings about Ms Ferrari's expertise, or lack thereof, in the specific area under consideration.
4. The complaint referred to in the recusal application surrounded my questioning of the expert witness, not the ruling itself, revealed or added to, the overall apprehension of bias.
5. Mr Traczyk's point as expressed in the written application was that I had questioned the expert "regarding their qualifications to provide expert opinion on mental impairment in accordance with the Act, when no issue had been taken by the Prosecution". This is point two in the written application.
6. That view of the prosecution's stance on the issue of the expertise including qualifications was entirely misguided, or, to be blunt, plainly wrong. The prosecution had always argued that the defence of mental impairment ought not be left to the jury, and Ms Ferrari did not have sufficient or specific expertise to establish a defence of mental impairment.
7. The fair-minded lay observer would plainly understand that Ms Ferrari's evidence and her qualifications and experience to give that evidence were well and truly in dispute. Accordingly, questions from the judge who had to determine the issue were appropriate and within the bounds of impartial adjudication of the issue, especially where it is likely findings are to be made, either favourable or adverse as to Ms Ferrari's capacity to give the evidence that she was intending to give.
8. Also, not during or after the ruling were any issue raised, by defence, such as that which are now raised in a recusal application.
9. This aspect of the recusal application is palpably misguided and adds nothing to the combination of factors said to establish apprehended bias.

1. There is nothing in the matters put forward individually or in combination that would lead me to conclude that the test for apprehended bias is made out.
2. I have in considering these matters, albeit in a short period of time, stepped back to consider the context and what can be an important factor, being the atmosphere of the trial as it has unfolded, in my consideration of whether I should recuse myself. Mr Traczyk ultimately did not argue there had been anything in exchanges, their tone or the like, that is said to establish apprehended bias.
3. In the end, I am firmly of the view that there is nothing in the defence submissions, or anything at all in the pre-trial or trial thus far, that warrants the significant step of recusal and as such the application is refused.

[1] The delay in providing the reasons is regrettable but reflective of a very busy workload and longer periods of leave. I have relied upon the notes taken at the time and the transcripts in setting out these reasons.

[2] (2011) 244 CLR 427; (2011) 86 ALJR 14; [2011] HCA 48.

[3] The footnote in the judgement of the High Court in Michael Wilson & Partners Ltd v Nicholls, identifying the "series of cases" refers to the well-known and often cited High Court authorities of: Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Smits v Roach (2006) 227 CLR 423; [2006] HCA 36; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2.

[4] [2023] HCA 15 ('QYFM').

[7] DPP v Smith [2024] HCA 32 at [92] ('Smith').

[12] (2011) 34 VR 236; [2011] VSCA 425.

[13] [2011] VSCA 425 [19].

[15]R v Lancaster [1998] 4 VR 550.

[16] Lancaster at [110] I was the Trial Judge in Lancaster and indeed the only other case cited in the defence application being Sloan (a pseudonym) v The Queen [2015] VSC 64.