G P v The Queen [2010] VSCA 142

1 Before the Court is an application for the review of refusal by a County Court judge to certify under s 295(3)(b) of the Criminal Procedure Act 2009 that what the applicant contends was an interlocutory decision 'is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal'.

2 The further application before the Court, in the event that the review under s 296 of the Act against the refusal to certify succeeds and leave to appeal is granted, is that the appeal be allowed and that an order be made in lieu.

3 In order to understand the issues which arise, it is necessary to say something about the history of this matter.

4 The applicant faces a 21 count presentment. A number of counts allege that he obtained property by deception, the others that he attempted to obtain property by deception. There are ten alleged victims, some at least of whom are resident in New Zealand.

5 It appears that the applicant was initially arrested, charged and bailed in late May 2007. Following a contested hearing, he was committed for trial in early May 2009.

6 Commencing on 16 July 2009, many directions hearings and case conferences were held in anticipation of a trial which was to commence on 31 May this year. Often, the applicant was represented. On other occasions, he appeared unrepresented. A theme which constantly recurred was his inability to put legal advisers in funds and so obtain representation. A number of judges in the County Court heard episodes in that saga. It was often said by the applicant or a legal adviser that funds would soon be in hand, so that representation could be arranged, or continued. As time went by, the judges who conducted hearings were well entitled to be annoyed by the applicant's continued representations that funds would soon be obtained and by his persistent failure to translate those representations into actuality.

7 On 8 April this year a judge in the County Court referred to the case being 'out of control'. On 15 April, the same judge indicated that the matter would be assigned to Judge Jenkins for case management up to trial - which as early as 16 July last year had been fixed for 31 May this year.

8 On 19 April there was a directions hearing before Judge Jenkins. That was the first occasion upon which her Honour presided over any aspect of this proceeding. The applicant was unrepresented. The judge, in the course of the hearing, made a number of observations to which I will later refer. They partly grounded an application made on 2 June that her Honour recuse herself from further presiding over the matter.

9 On 23 April the matter came back before the judge. The applicant had still not secured funding. The judge revoked the applicant's bail. She had foreshadowed that she might do so on 19 April. The matters that moved her Honour to revoke bail were also relied upon by the applicant on 2 June in support of the application that her Honour recuse herself.

10 The matter came back before the judge on 30 April. At that time funding had still not been secured and the judge remanded the applicant in custody.

11 There was no further hearing before her Honour until 31 May, but in the interim, on 12 May, the matter came back on an application for bail before Chief Judge Rozenes. His Honour granted the application and imposed, essentially, the conditions which had previously been in place.

12 On 31 May, before Judge Jenkins, the applicant was represented. His counsel foreshadowed applications to exclude a record of interview, and for the judge to recuse herself.

13 The application that the judge recuse herself was made and rejected on 2 June. On the same day the judge refused to certify.

14 It is now necessary to draw attention to the matters relied upon by the applicant in support of his application, first that leave to appeal be granted - see s 296(4) - and second, that the appeal be allowed.

15 I go to the events of 19 April. On that occasion, as I have already said, the applicant was unrepresented. He told the judge that funds would be available very soon - by Wednesday of the then current week.

16 The judge said a number of things, some unremarkable, some not. Early on, there was this interchange:

HER HONOUR: I know there is a legal issue that has been taken with the record of interview, it's not apparent to me what that is, but I understand the record of interview and its admissibility is being challenged, or that's the proposal. But on the face of it, Mr [P], why this matter is going to trial eludes me entirely. You have to sit down with your legal advisers and have a very hard, close look at this matter. You have been served in any event with what is called a notice to admit. You understand what that is?

THE ACCUSED: Yes.

HER HONOUR: In matters like this, if they go to trial, sensible accused people will make admissions about things that will readily be proven ...

17 One aspect of those remarks was apparently directed to the applicant getting legal advice, so that a decision could be made as to what might sensibly be admitted. But that explanation does not apply to all that her Honour said.

18 The applicant was then persuaded to give an explanation of his defence to the charges. He said that:

... the money that I took were pretty much as a loan.

In your record of interview you eventually said you gambled it all away.

20 The applicant began to give an explanation for the apparent discrepancy. The judge cut him off, saying, understandably, that she -

[did not] want to sort of interrogate [the Applicant] too much.

21 Then the judge addressed what she described as 'the previous defence response'. She said that:

You would be a brave person to go before a jury with [the previous defence response], raising those issues, because essentially you were saying that people gave you gifts.

22 After the judge had given the applicant that advice, there was this interchange:

If you proceed to a trial with what appears in the paperwork now, you may well be foolhardy, and the consequences for somebody going to trial who then is convicted of the crimes charged are far more severe than if they don't go to trial, and you get legal advice about that. If it's a strong case on the basis that somebody still goes to the trial, and it's your right to do so, you face those consequences.

ACCUSED: I understand.

HER HONOUR: You might be lucky, you might get away with it, but you face very severe consequences so you have to get advice about that and be sensible about that.

23 A little later, having reiterated the need for the applicant to put a solicitor in funds so that proper instructions could be taken, the judge said this:

Because if she is not instructed, you know, not just having money in hand, you have to get onto her today to confirm that she will have the money in hand, in her trust account, on the Wednesday, and on that basis you make an appointment to see her and give her full instructions and get proper advice on the basis of those instructions, so that she can come and tell me what is happening on the Friday, and when you come back on the Friday, if all that hasn't happened, then I will be entertaining an application by the Crown to revoke your bail. Do you understand?

ACCUSED: I understand.

HER HONOUR: This is not an idle threat. That is what will happen.

24 Her Honour later on said that she did not know what the legal basis for a challenge to the admissibility of the record of interview would be. It certainly eluded her. She could not see what it was. She added:

I haven't got the faintest idea, because I've read the record of interview ... There might be some other technical basis about which I am not aware that can be a basis for a challenge but I just can't see it. It will have to come from whoever is representing you on Friday.

25 Evidence was then led from the applicant's brother-in-law about the availability of finance. The brother-in-law deposed that he had secured funds from Bendigo Bank. He was 'picking up the papers today. It's approved, everything'. The funds would be released later that week 'Wednesday, Thursday'.

26 I go now to the events of 23 April. That was a Friday. The first hearing before Judge Jenkins had been on the Monday of that week. On this second occasion, the applicant's present solicitor appeared. She said that, whilst she was still not on the record, issues remained in respect of funding. She explained that a loan had been approved in favour of the brother-in-law but that there had been difficulties because his birth certificate used the first name 'Nick', whereas a rates notice also relied upon in the loan application had used the Greek version, 'Nikolaos'.

27 Documents supporting this account of events were handed to the judge.

28 There was then this interchange between the prosecutor and the judge:

PROSECUTOR: I mean no criticism of [the solicitor for the applicant] who attends the Court. It's purely reflective of the defendant. It's just an abuse of process, Your Honour.

HER HONOUR: Yes, I completely agree.

PROSECUTOR: I make an application for revocation of his bail on that basis.

29 The judge did revoke bail. She first made this observation:

I am concerned [there is] a serious question over the credibility of the evidence that was given under oath, but that's another matter that might need to be looked at.

What I do expect is that when he advises the court about things that are going to happen, in circumstances where he was given a very clear indication of what was going to happen today if that didn't happen, and where the court was told quite unequivocally, unconditionally, money was going to be in your hands in your [that is, the solicitor's] trust account on Wednesday.

30 Her Honour then said, in response to the prosecutor maintaining that the applicant's bail should be revoked in the circumstances:

Yes. I agree. Bail is revoked. You will be remanded in custody. I have serious - grave concerns, as I said, about the evidence that was given under oath; the veracity of that evidence, the undertakings that were given by you, Mr [P] about what was going to be happening this week and in particular, the availability of funds and your instructing of counsel, none of which has happened. This is the fourteenth occasion where you have failed totally to abide by advice you've given the Court.

31 The evidence, of course, had been given by the brother in law, not the applicant.

The thing is I'm not going to be considering bail in any event until all of the matters that I raised and sought to have put before me today have been put before me ... That includes instructions to [the solicitor] or to counsel whom you brief; a notice of defence raising issues in the proper manner; an indication of what is to happen about any pre-trial issues. The only one that's been raised that I'm aware of is potentially a challenge to the record of interview. I indicated last time I couldn't see on the face of it what that basis for challenge could be.

33 The judge reiterated thereafter her previous advice that the applicant should very seriously consider his position generally. She did not suggest that he should not go to trial if that was his firm desire, but she stated that he needed to understand the consequences.

34 On 31 May, as I have said, the applicant had still not put his solicitors in funds. But now, according to the submission of counsel who appeared in anticipation of being engaged, a new lender was in prospect, a lender from New Zealand. This evoked an observation from the prosecutor that -

This man has criminal associates in New Zealand, Your Honour.

to which was added:

So any funds from New Zealand have a real question mark over them.

You're not going anywhere for the time being and I'll be noting on your file that unless there is an absolutely extraordinary case in my absence before a judge for bail to be approved, you're not going anywhere. I would have the gravest concerns about you being at liberty at this stage, given your behaviour in this matter to this point. In my view, ... you have not been frank with the Court, I won't put it any more highly than that at the moment, but the Court has not been properly, adequately or appropriately advised.

36 The matter, as I have said, came before Chief Judge Rozenes on 12 May. His Honour sought without success to establish a legislative warrant for the revocation of bail. In due course, he granted the applicant bail.

The applications to recuse and to certify are refused

37 On 2 June, the application was made for her Honour to recuse herself on the ground of apprehended bias. It was submitted by counsel for the applicant that the judge had generally shown, by remarks made over time, what could reasonably be regarded as ostensible bias. Counsel focussed particular attention upon the remark -

You might be lucky, you might get away with it, but you face very serious consequences.

38 Reliance was also placed on what was said to have been a revocation of bail which was without legislative warrant, initiated by the judge herself. It was submitted that a reasonable observer might think that

... the revocation of bail was more concerned with the perceived recalcitrance of someone not doing what he was ordered to do by the Court, and as someone who you regarded as obviously guilty than any other concerns.

39 Counsel drew attention to the fact that the judge had required his client to do something which was not mandatory, that is, to put in a notice of defence.

40 Counsel, referring to authority, formulated the correct test for apprehended bias.

41 There followed what can be best described as an unseemly debate between the judge and counsel in which the judge attempted to defend herself, as it seems to me, and counsel attempted to pursue his submissions. It led at one point to counsel saying, 'You did say', and being interrupted by the judge who said, 'I never said that'.

42 In the event the judge refused the application that she recuse herself. She said:

Well, perhaps it will come as no surprise that I don't accept the application. I reject the submissions that have been made as forming any basis for exempting myself in the circumstances, and I don't consider that any reasonable bystander would consider that I have either prejudged the issue or have expressed bias in any decisions that I have made.

43 Counsel then asked her Honour to certify under s 295 of the Act. She refused to do so, identifying two bases:

One, I don't think this is a proper application for an interlocutory appeal, and secondly, even if this kind of application were one, I don't think the Court of Appeal would consider an interlocutory appeal. In the circumstances I don't consider that it falls within that sub-paragraph, in any event, as to warrant certification. So on both of those bases I refuse certification.

44 In considering an application to review, this Court is obliged by s 296(4) to 'consider the matters referred to in s 295(3)' and 'be satisfied as required by s 297'. In this case, sub-s 295(3)(b) was in point. So for the purpose of s 296(4) the question arises whether the decision was 'otherwise of such importance as to justify it being determined on an interlocutory appeal.' As I said in Wells v R,[1]

That is a matter for this Court to consider afresh, ordinarily on the material adduced below and not ignoring the conclusion reached by the judge below.

45 But in this case there is a threshold question. It is whether the decision by the judge not to recuse herself was an interlocutory decision. It is convenient to deal with that matter at the outset.

46 Senior counsel for the Crown (who did not appear before the judge below) submitted that the decision was not an interlocutory decision because it was not an adjudication inter partes. Accepting that the Criminal Procedure Act by s 3 defines 'interlocutory decision', and that there are differences in comparable New South Wales legislation, he nonetheless relied upon the conclusion of the New South Wales Court of Criminal Appeal in Rogerson.[2] He fairly informed the Court, however, that the explanatory memorandum accompanying the Bill which became the Criminal Procedure Act stated that 'interlocutory decision' was by intent defined broadly.

47 In my opinion, the judge's decision not to recuse herself does fall within the language of the definition of 'interlocutory decision', which is as follows:

Interlocutory decision means a decision made by a trial judge in a proceeding referred to in s.295(1), whether before or during the trial, including the decision to grant or refuse to grant a permanent stay of the proceeding.

48 That is a broad definition. On its face, it extends beyond the language of s 5F of the New South Wales Criminal Appeal Act 1912. It is apparent from Rogerson[3] that what was critical there was the conclusion that a refusal to accede to a disqualification submission was not in itself 'an interlocutory judgment or order made in the proceeding', that being the language of s 5F.

49 It is next the fact that the explanatory memorandum - somewhat surprisingly for documents of this kind - is of some assistance. Relevantly, it said this:

An interlocutory decision as defined in Clause 3 is defined broadly to avoid technical arguments about what judgments or orders and other types of decisions are capable of being appealed.

That explanation does seem to me to emphasise the difference between the New South Wales and Victorian legislation.

50 The next matter is this. Before the commencement of the Criminal Procedure Act, an Order 56 proceeding seeking prohibition would have been available where a County Court judge declined to recuse himself or herself on the ground of apprehended bias. As can be seen from Balic (No 2),[4] what has happened in New South Wales is that, absent a provision as broad as the definition of 'interlocutory decision' in the Victorian legislation, it has been necessary for an applicant to proceed by prerogative writ. In that connection it will be remembered that Rogerson was decided in 1990 and Balic in 1994. There is, it seems to me every reason, having regard to the broad language of 'interlocutory decision' in the Criminal Procedure Act, to bring within its compass what would otherwise be an alternative permissible means of challenging a judge's refusal to recuse himself or herself.

A decision otherwise of sufficient importance?

51 I go back to the language of s 295(3)(b). It appears to me that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The judge, it must be said, did not in terms address herself to the sub-section when refusing to certify. As I have noted, she said only that she did not think the Court of Appeal would consider an interlocutory appeal. That, with respect, did not focus upon the language of s 295(3)(b) at all. For my part, the decision of a judge not to recuse himself or herself on a ground of apprehended bias ought be regarded as being of sufficient importance to the trial to justify it being determined on an interlocutory appeal; that is, assuming always that the application to recuse is one serious in its content, rather than merely frivolous. Here, on no view, could the latter description attach.

Section 297(1)

52 Then it is necessary to focus upon s 297, as commanded by s 296(4). Counsel for the applicant submitted that it was in the interests of justice that leave to appeal be given. He relied particularly upon the matters set out in s 297(1)(b)(iii) and (iv), but also, I think, upon s 297(1)(c).

53 Senior counsel for the Crown submitted that the requirements of sub-s (1)(b)(iv) could not be satisfied. He submitted that the success of a criminal appeal depends upon there having been a miscarriage of justice. Even if, before a trial commenced, there was apprehension of bias on the part of the judge, it could not be said that it would give rise, after trial and conviction, to a miscarriage. If a perfect trial were had, there would be no miscarriage. So it could not be said - see s 296(1)(b)(iv) - that the likelihood of a successful appeal against conviction would or might be reduced by granting leave to appeal against the judge's decision.

54 I accept counsel's submission up to a point. A conviction might ensue which was not necessarily a miscarriage despite the presence of apprehension of bias, pre-trial, on the part of the presiding judge. Perhaps the simplest example would be if the accused were to plead guilty or go into the witness box and admit all the facts necessary for conviction. But it is another thing altogether to say that the perfect world is to be assumed for the purposes of considering whether elimination of the apprehension of bias would reduce the likelihood of a successful appeal against conviction. In that connection, the following observations by Cole JA in Balic (No 2) stand repeating:

Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.[5]

55 Counsel cited authorities for the proposition that want of procedural fairness does not inevitably yield the consequence that a conviction will be set aside.[6] They do stand for the proposition articulated by counsel, but each was factually far removed from the issue raised by the present matter. There the breaches of procedural fairness concerned alleged failure of a decision-maker to put an accused on notice that a particular finding might be made.

56 I have referred to s 297(1)(b)(iv). I should add that in my opinion the circumstances were apt to attract the operation of sub-s (1)(b)(iii) - that is, the resolution of an issue of procedure that was necessary for the proper conduct of the trial; and also of sub-s (1)(c). As to the former, I see no reason to read the provision more restrictively than its words would permit. As to the latter, it would be relevant that, if the applicant was to be convicted, he would fall for sentence by a judge in respect of whom there existed an apprehension of bias against the convicted man.

57 That takes me to whether or not, in the circumstances which I have outlined, circumstances existed in which, paraphrasing Livesey v New South Wales Bar Association,[7] a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. The matter is to be considered afresh, because the judge misstated the test, making it overly severe from the standpoint of the applicant, when considering the application to recuse.[8] That is, specific error has been demonstrated.

58 I accept, in the circumstances which confronted the judge, that her Honour was entitled to be annoyed by the applicant's apparent prevarication in obtaining funding; and in resolving what Chief Judge Rozenes later referred to as 'case management issues.' But in my opinion her Honour went well beyond what was permissible in the course of active case management, a matter referred to in the plurality judgment in Johnson v Johnson.[9] It could not be acceptable for the judge to say, as she did to the unrepresented applicant, that he might be lucky, he might get away with it. To my mind that gave colour to a number of other observations which her Honour made on that occasion, that is 19 April, and thereafter.

59 I next consider - and indeed it was correctly conceded by senior counsel for the Crown - that there was no basis for the judge revoking the applicant's bail. The reasons which her Honour gave were quite outside legislative warrant, and gave what her Honour did the appearance of punishing the applicant for transgressing directions which in some respects were themselves beyond power. The circumstance that, as it appears, another County Court judge had earlier threatened the applicant with such a course did not transform what was otherwise beyond power into a lawful act. The judge's statement of what needed to be done before a fresh grant of bail would be considered was misconceived. It built upon the illegality of what was being done by the judge's order.

60 The judge's further observations on 30 May, that the applicant was not going anywhere for the time being, and that unless something absolutely extraordinary occurred in her absence, the applicant was not going anywhere, were also with respect misconceived. They continued to build upon an appearance that the judge had lost necessary impartiality.

61 It appears to me, when one adds together the judge's more or less intemperate remarks, the circumstances in which bail was revoked, and then what the judge told the applicant about the improbability of a fresh grant of bail, that the circumstances in all would surely give rise to an apprehension of bias in the terms of the relevant test.

62 In summary, as it seems to me, the matter can be put this way: (1) The decision of the judge not to recuse herself was an interlocutory decision; (2) the circumstances of the case satisfied the requirements of s 295(3)(b) of the Criminal Procedure Act. The judge, in any event, applied the wrong test in considering whether to certify; (3) the circumstances of the matter satisfied the requirements of s 297(1)(b)(iii)(iv) and s 297(1)(c); (4) the judge applied the wrong test for consideration of apprehension of bias; (5) the circumstances, in all, commanded a conclusion that reasonable apprehension of bias was demonstrated.

63 I would set aside the decision and in lieu I would order that the judge take no further part in the hearing of the proceeding instituted by the Presentment No X02110634.

64 I agree with Ashley JA and add only the following comments concerning the position taken by the Crown in this matter before the primary judge. The function of a Crown prosecutor is to act as Minister of Justice. It is not the function of a Crown prosecutor merely to act as might some counsel in an ordinary inter partes proceeding, taking every point regardless of its merit. It is the function of a Crown prosecutor, by appropriate argument to assist a Court not to fall into appealable error. In this case the prosecutor fell short in the discharge of these duties.

65 On 23 April she seized upon the judge's earlier suggestion that bail might be revoked without any apparent consideration of whether there were any grounds for such revocation. There were of course no such grounds.

66 The application for revocation was made using the arguments suggested by the judge and included reference to conduct of the accused's brother-in-law in giving evidence before the Court. These arguments were insufficient in any sense to justify an application for revocation of bail. Further, when the judge said she would not consider bail for the applicant until he had complied with her wishes as to the preparation for trial, the prosecutor remained mute, complicit in a situation where a citizen had been unlawfully deprived of his liberty by having his bail revoked and would continue to be deprived of his liberty until the judge's wishes were met.

67 The prosecutor should have politely but firmly pointed out to her Honour the illegality of the course she was following and urged her to reconsider the matter. That was the prosecutor's duty. The criminal justice system depends upon prosecutors discharging their obligations to the Court fearlessly. Had the prosecutor done so in this case it may have been unnecessary for this Court to intervene in the applicant's trial as it has had to do.

68 I agree with the reasons that the learned presiding judge has given and the orders which he proposes should be made.

69 As to orders, you may need to help me, gentlemen, but it appears that the orders we need to make are these.

1. The application for leave to appeal against the interlocutory decision by Judge Jenkins not to recuse herself made 2 June 2010 is granted.

3. The decision is set aside and in lieu thereof the Court orders that Judge Jenkins is not to hear further the criminal proceeding commenced by Presentment No X02110634 against the appellant, GP.

70 I suppose what that does not cover is the possible but improbable contingency that a new indictment will be filed over but I cannot imagine that that would present a problem and if you thought it would, we could add 'or any criminal proceeding arising out of the applicant's committal for trial on', whatever it was, 'May 2009'.

71 Your Honour, I do not know much about the trial. I cannot undertake no new presentment would be filed over. You just do not know about these things. But on the other hand it is inconceivable at least to me that her Honour would take any further part in this proceeding.

72 Well, I think so. In this uncertain world one can never be sure.

74 Well we could add, yes. It would be indictment now, would it not?

77 Can we have 'presentment/indictment'. I am not one hundred percent sure of what it would be, in the highly unlikely event that something gets filed over. 'Or any other proceedings' because for example there might be restitution proceedings of confiscation proceedings, something like that. I mean, it is going to have to be determined by the trial judge, but you just never know.

78 Well then maybe, 'or any other proceedings arising out of the appellant's committal on 4 May 2009'. We will add that after the reference to the presentment.

[1] [2010] VSCA 100, [16].

[2] (1990) 45 A Crim R 253 (Court of Criminal Appeal, New South Wales).

[4] (1995) 75 A Crim R 515.

[5] (1994) 75 A Crim R 515, 520.

[6] R v Healey [2008] VSCA 132; (2008) 186 A Crim R 433, Clarke v Ryan [2005] VSCA 311.

[7] [1983] HCA 17; (1983) 151 CLR 288, 293-294 (Mason, Murphy, Brennan, Deane and Davison JJ); and see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[8] Cf Webb v The Queen [1994] HCA 30; (1993-1994) 181 CLR 41, 53-54 (Mason CJ, McHugh J).

[9] [2000] HCA 48; (2000) 201 CLR 488, 493 [13].