Court of Appeal (WA)|2008-03-04|Before: Mr P, Steytler P, Wheeler JA, Pullin JA

GAMAGE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 49 (4 March 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GAMAGE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 49

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Jurisdiction, practice and procedure - Right to a fair trial - Fitness to stand trial - Turns on own facts

Courts and Judges - Bias - Reasonable apprehension of bias - Turns on own facts

1 STEYTLER P: On 3 April 2007, after a trial by jury, the appellant was convicted of two counts of indecent dealing with a child aged between 13 and 16 years and one count of sexual penetration without consent of a child aged between 13 and 16 years. He appeals against those convictions upon the ground that he did not receive a fair trial. In order to understand the parties' contentions in that respect, it is necessary to refer to a number of events that preceded the trial.

2 The evidence of the two complainants was pre-recorded on 5 September 2006. Wisbey DCJ presided over the pre-recordings, which proceeded uneventfully.

3 The trial before a jury was listed to commence on 27 November 2006. The trial was to be presided over by Martino DCJ. At the time the appellant was represented by Mr Geoffrey Vickridge. He was the fourth lawyer to have represented the appellant in respect of the charges against him. The appellant had dismissed each of the other three lawyers.

4 The appellant attended court on 27 November 2006 accompanied by a nurse from the observation ward of Royal Perth Hospital's Emergency Department, Ms Dawna Taylor. She was called to give evidence by counsel for the appellant. She said that the appellant had been admitted to the hospital on the previous day. He had been diagnosed as being clinically depressed and in need of acute psychiatric care. He was considered to be at a high risk of self harm. Evidence was also given by Ms Toni Harris, a nurse employed by the State Forensic Mental Health Service. She said that her own assessment concurred with that offered by Ms Taylor and that the appellant appeared to her to be suffering from a depressive episode.

5 Because the appellant was found to be unfit to stand trial, the trial was adjourned. The appellant, who had previously been released on bail, was again released on bail.

6 A number of medical records have been made available to this court for the purposes of the appeal. Some of these were prepared by staff at the Royal Perth Hospital. Others were prepared by staff at the Department of Corrective Services.

7 Inpatient case notes were kept by the hospital in respect of the appellant. The notes for 28 November 2006 reveal that he had, by then, been suffering from depression for a month. He had thoughts of self-harm. He was said to be concerned about his court case. However, he was also said to have been feeling a 'bit better' because his court case had been postponed. He was diagnosed as suffering from moderate to severe depression. Nursing notes recorded later that day reveal that the appellant had said that his mood was now 'great' and that he was 'much better than two days ago'. He denied any suicidal ideas. The notes also record the following:

Appeared surprised when asked to remain on the ward for the first 24 hrs of admission. He asked, 'What if I want to go to the movies or out on the weekend?'

8 When his belongings were checked by hospital staff, the appellant was found to have two box cutters, a lighter and a 19 gram needle. The needle was in its packet. He said that the lighter and needle were not his. However, he later asked for the return of the lighter.

9 The appellant was discharged on the following day, 29 November 2006. The inpatient notes for that day record that the appellant said:

Well the stress has gone, yes I feel much better than two days ago, I feel fine and happy now the case has been adjourned and curfew lifted.

The notes also reveal that there were 'Nil signs of low mood or impaired affect' and 'Nil evidence of psychotic phenomenon'.

The application for an expedited trial listing.

10 The State applied for an expedited trial listing. The application was heard on 11 January 2007 by Kennedy CJDC. The appellant, who was represented by counsel, did not appear in person. He produced a medical certificate, signed by Dr Manjit Mudhar, dated 10 January 2007. This recorded that the appellant would be unfit for 'court appearance' from 11 January 2007 until 25 January 2007. No reasons were given.

11 The trial was listed to be heard on 6 March 2007. However, Kennedy CJDC ordered that the appellant should appear before the court on 6 February 2007 in order to provide further medical evidence concerning his condition.

12 The appellant and his counsel attended court on that day. Additional medical information was provided to the court. This included a letter dated 5 December 2006 from Dr Mudhar to a psychiatrist, Dr Sanath De Tissera, referring the appellant to Dr De Tissera for treatment for depression. Dr De Tissera provided a medical certificate dated 31 January 2007. This recorded that the appellant was suffering from an adjustment disorder with depression.

13 On 1 March 2007, five days before the trial was due to commence, the appellant told his counsel, Mr Vickridge, that he wished to dismiss him and retain other counsel. On the following day he wrote a letter to the District Court to the effect that, due to unavoidable reasons, he had been compelled to terminate the services of his counsel. He said that he had tried to retain a lawyer, without success. He asked that the case be adjourned for one month.

14 On 6 March 2007, immediately after the appellant had been put up for trial, his counsel told the court that on 1 March 2007 the appellant had told him that he was no longer required to act on the appellant's behalf and that Mr Percy QC would be acting as counsel. He said that the appellant had given him no reason for dispensing with his services. He told the court that he was the fourth counsel to have been retained by the appellant and that the Legal Aid Commission had 'refused to transfer the grant' of aid.

15 On inquiry by the trial judge, Wisbey DCJ, the appellant said that he was not satisfied with the way in which Mr Vickridge had defended him. He said that he had tried to get other lawyers but had been unsuccessful. When asked what was the reason for his dissatisfaction with Mr Vickridge, he said, 'At the brief he told me I'm going to lose my case definitely'. Mr Vickridge then informed the trial judge that his advice in that respect mirrored advice earlier given to the appellant by two other lawyers. The appellant, having heard this, said that he was also unhappy with the way that Mr Vickridge treated him.

16 The trial judge informed the appellant that, from his recollection, Mr Vickridge had represented him 'entirely appropriately' at the pre-recording of the complainants' evidence. He said that, given the lateness of the attempt to dispense with Mr Vickridge's services, the matter should proceed, either with Mr Vickridge as counsel or with the appellant representing himself. He stood the matter down so as to enable the appellant to discuss the issue with Mr Vickridge. Having had this discussion, the appellant decided that he wanted Mr Vickridge to continue to represent him.

17 The first day of the trial proceeded uneventfully. However, on the morning of the second day, Mr Vickridge announced that the appellant was unwell and unable to be present in court. He said that the appellant 'did not appear to be listening or coping or anything', that he was not walking and that he had been left, immobile, on the floor of an isolation cell. An ambulance had been called to take him to Royal Perth Hospital.

18 Upon hearing this, the trial judge told counsel that the history of the matter led him 'to the comfortable conclusion that whatever has happened has been a conscious effort on the part of the accused'. After referring to s 88 of the Criminal Procedure Act 2004 (WA), the trial judge said that he was satisfied that the appellant's interests would not be prejudiced by his absence if the trial proceeded to the extent, only, of enabling the jury to watch the pre-recorded video evidence of each of the complainants and also video-recorded interviews that the police had conducted with the appellant. He said that this material was well known to the appellant. He also said, 'I may be proved wrong but I have no confidence that his absence is other than intentional'. The jury was recalled and the video-recorded evidence was played to the jury.

19 The medical file of the Department of Corrective Services, produced to the court by way of affidavit, records that, on the morning of 7 March 2007, the appellant admitted to taking 'something'. The notes also record that he had 'fresh track marks and blood on [his] shirt sleeve'. He appeared sleepy and was feeling dizzy. He was unable to walk.

20 The Royal Perth Hospital inpatient notes for 7 March 2007 reveal that the appellant had a needle puncture wound on his right arm. The notes suggest that there was 'likely opioid abuse'. A medical examination could not find evidence of any acute medical problem. The appellant was considered fit to be discharged into custody.

21 On the following morning Mr Vickridge informed the court that he had been having difficulty in obtaining instructions from the appellant. He said that the appellant appeared to be 'in a similar state to that which he was [in] when he appeared before [Martino DCJ] right at the start'.

22 Evidence was subsequently produced from Ms Harris that the appellant's right arm was inflamed and swollen and that he was in urgent need of medical review. She said that she had no reason to believe that the appellant was mentally impaired from giving evidence, but that she was concerned about his physical condition. The appellant was subsequently diagnosed as having developed necrotising fascitis in his right arm. This is a serious medical condition which required hospitalisation. The trial was consequently aborted.

23 The appellant was hospitalised at Fremantle and Royal Perth Hospitals between 8 March and 28 March 2007. His condition necessitated 'surgical debridement as well as a split skin graft'.

24 Evidence placed before this court in the form of a report prepared by Dr Jennifer Ng (an endocrinology registrar at Royal Perth Hospital) dated 14 May 2007 reveals that the appellant's condition had been extremely painful. However, at the time of his discharge he was prescribed only oral opiate medication, including OxyNorm and Tramadol, which he was to use on an 'as required' basis. The report also reveals that, in the few days prior to his discharge, the appellant's complaints of pain seemed disproportionate to the actual pain he was experiencing. Dr Ng said that, on review of the nursing notes, particularly those taken on 27 March 2007 (the day before the third trial was due to commence), the appellant's pain score of 7/10 appeared inappropriate. He seemed relaxed and comfortable whilst on a Fentanyl infusion.

25 Dr Ng also referred to a diagnosis that the appellant had had 'pseudo seizures'. She said that these seizures had been witnessed by her on two occasions. She believed that these were not true seizures. That was because the appellant had been able to obey commands and communicate appropriately during the episodes. He had also shown no symptoms of drowsiness or disorientation following the episodes. She said that, on 28 March 2007, he began shaking at the mention of possible discharge from hospital. Her report in these respects is supported by the hospital's inpatient notes made on that day.

26 On the morning of 28 March 2007, the court was told that the appellant was unable to attend court and was still in hospital. The court was provided with a letter from the hospital. This recorded that the appellant had been admitted with necrotising fascitis of the right forearm, that he had been receiving appropriate treatment and that he would require further medical examination.

27 Later that day, the court was informed by the prosecutor that he had been told by the hospital that further investigations into the condition of the appellant were being undertaken. Depending upon the results of the investigations, the appellant was likely to be able to attend court on the following day, so long as he was given plenty of fluids. He also needed to take oral antibiotics. A medical report dated 28 March 2007 was prepared by Dr Ng. She confirmed that the appellant did not require specific medical treatment while in court, other than access to adequate drinking water.

28 The appellant was able to attend court on the following day. The trial consequently commenced. It proceeded on that day and on the following day, without incident.

29 However, on Monday 2 April 2007 the trial judge received a number of communications. One of these was a letter from one of the appellant's brothers, a medical practitioner. Amongst other things, this letter said:

[The appellant] was having regular dressings to his wounds during his stay at Royal Perth Hospital.

Since his transfer to Casuarina Prison on the evening of 28.03.2007 and up until my visit on the morning of 31.03.2007 he has not had any further change of dressings to his wound which is a concern to me.

The letter also asserted that the appellant was not in a position to face trial because of his bad medical condition. The trial judge was asked to adjourn the trial until the appellant had fully recovered.

30 The progress notes prepared by the Health Services Department of Casuarina Prison reveal that there was in fact no cause for concern. The appellant's dressing was changed on 31 March 2007 and again on 1 April 2007. On 1 April 2007 his wound was found to be 'clean and dry'. The notes made on 31 March 2007 record that observations of the appellant were 'within normal limits', that he was looking more relaxed and that he had not voiced any complaints.

31 The other communications received by the trial judge on 2 April 2007 were two notes written by the appellant. Both said that the appellant was in severe pain and unable to concentrate. The appellant said that he needed an adjournment. The notes also mentioned that, because the appellant's lawyer had not raised this issue on his behalf, he had to do it himself.

32 Notwithstanding his receipt of the notes from the appellant and the letter from his brother, the trial judge decided to continue with the trial. In making that decision, he took into account that much of the evidence to be led on that day was pre-recorded and consequently already well-known to the appellant.

33 Immediately after the luncheon adjournment, counsel for the appellant informed the court that the appellant had complained of pain and of light-headedness. He also said that the prison had not sent any medication for the appellant. The evidence proposed to be led by the prosecutor that afternoon consisted only of very brief evidence from a police officer and the playing of a video-recording of a search of the appellant's home. The trial judge consequently elected to continue with the trial until this evidence had been adduced. He then adjourned until the following day, so that the appellant could take anything necessary to relieve his pain.

34 One of the security guards attending the appellant during the trial, Mr Malcolm Petters, has sworn an affidavit for the purposes of the appeal. In it, he observes that the appellant appeared to be in constant pain from his left arm throughout the trial. He said that, during the luncheon adjournment on 2 April 2007, the appellant asked for medication. Inquiries were made of Casuarina Prison. These revealed that no painkillers had been supplied to the appellant because they had not been required and that other medication would be given to the appellant on his return. Mr Petters went on to say:

I also deliberately observed [the appellant] in the cell ... late Monday afternoon and compared to his status in court he looked very well (I deliberately viewed him a number of times).

35 When the trial resumed on the following morning, Mr Vickridge informed the court that he had been told that a letter had been written by a brother of the accused to the Chief Judge of the District Court. He said that this complained of incompetence on his part in the running of the trial. The trial judge responded by saying:

I saw a letter that was written by the brother to the Chief Justice [sic] which rambled on about all sorts of matters, how he was too ill to go to trial and how I was presiding over a travesty of justice ... I took no notice of it and, in my view, it shouldn't affect the trial. This is a trial which essentially was - the essential part of this trial was concluded before we started; that is, the pre-recording of the girls' evidence (ts 240).

36 Mr Vickridge said that he was happy to proceed if that was what the appellant wanted. The trial judge responded by saying that it seemed to him that the trial should proceed, as Mr Vickridge had received no instructions from the appellant terminating his retainer. At this point, the appellant spoke up. The transcript records that he said:

I want to tell this. My lawyer doesn't (indistinct) this for me so I have to do the rest of it by myself, and I'm sick and I'm in severe pain and I can't concentrate. I need to abort this trial or adjourn until I get well, and I can't cope with this pain. It's unbearable. Concentration is impossible (ts 241).

37 The trial judge directed that the trial should continue. Mr Vickridge called the appellant to the witness stand. He asked him four questions. On each occasion the appellant responded by saying only that he was sick or in pain and unable to concentrate on the question. The jury was asked to retire for a short time.

38 After a short adjournment, the trial judge told the appellant, in the absence of the jury, that this was his opportunity to tell the jury his side of the story and that, if he chose not to do so, the jury would be left only with the account given by the complainants. He said that he proposed to invite the jury back and to ask Mr Vickridge whether he had any 'further questions of [the appellant]'. He said that he would then ask the prosecutor whether he wished to cross-examine.

39 The jury returned. Mr Vickridge questioned the appellant. In response to each question the appellant said only that he was sick and in pain and unable to concentrate. He was then cross-examined. Again, he responded to questions asked of him by saying that he was in pain and could not concentrate. However, there were two questions to which he gave substantive (albeit very brief) answers. These related to the precise location of his pain.

40 The prosecutor proposed that there be a brief adjournment to enable the appellant to be given 'some analgesia'. The trial judge declined to grant an adjournment. He said:

I have every confidence that [the appellant] would have been given such medication as he requires; in fact inquiries yesterday revealed that the medication he had neglected to bring was antibiotics which would not have an effect on pain. It seems to me that any adjournment would achieve nothing since we don't know how long it could take for analgesics to take effect, if there was pain. I think that you have to make up your mind as to whether you close your cross examination or not (ts 248).

41 The prosecutor resumed his cross-examination. To each question the appellant responded by saying only that he was sick, in pain and could not concentrate on the question. The prosecutor concluded his cross-examination after a short while. Mr Vickridge declined to re-examine the appellant.

42 The appellant returned to the dock. Closing addresses were made by counsel. The trial judge gave his directions to the jury. As I have said, the appellant was convicted on three charges. He was acquitted on a fourth charge.

43 There are three grounds of appeal. They read as follows:

Ground 1

The trial Judge's discretion miscarried when he failed to discharge the jury after becoming aware the Appellant was unwell and could not follow the proceedings, such that the Appellant did not receive a fair trial.

Ground 2

The trial Judge was biased toward the Appellant such that the Appellant did not receive a fair trial:

Particulars

The trial that the trial Judge presided over was the Appellant's third trial on these charges.
The same trial Judge also presided over the pre-recording of the complainant's evidence and the Appellant's second trial, which was aborted because the Appellant was unwell;
The trial Judge displayed bias adverse to the Appellant during his third trial when the Appellant became unwell.

Ground 3

The Appellant did not receive a fair trial as he was unable, for medical reasons, to properly give evidence in his own defence and, despite that fact, the trial proceeded to conclusion, with judgments of conviction being entered.

44 We were told by counsel for the appellant, on the hearing of the appeal, that particulars 1 and 2 of ground 2 were not intended to be particulars of bias, but rather to provide 'background' to the allegation of bias.

45 I propose first to deal with grounds 1 and 3 and then to deal with ground 2.

46 Grounds 1 and 3 can only succeed if the evidence available at the trial, as supplemented by the evidence adduced on the appeal, reveals that the appellant was in fact so unwell or in such pain as to be unable to follow the proceedings or to properly give evidence in his defence.

47 It may be accepted that, at the time of the first trial, the appellant was suffering from depression. Also, it is plain that the necrotising fascitis from which he suffered during his second trial made it impossible for him to follow proceedings after the first day of that trial. Finally, in this respect, the medical evidence established that it was undesirable for the appellant to attend court on 28 March 2007. However, there is no medical evidence to support the proposition that the appellant was too ill or in too much pain properly to follow, and participate in, the trial at any time after 28 March 2007.

48 It is apparent from Dr Ng's report dated 28 March 2007 that she then considered the appellant to be fit to stand trial. I have said that she said that he did not require specific medical treatment while in court, other than access to adequate drinking water. I have mentioned that progress notes prepared by the Health Services department of Casuarina Prison reflect that, by 31 March 2007, the appellant was looking more relaxed and voiced no complaints. I have also mentioned that, on the following day, his wound was clean and dry. Consequently, the issue raised by grounds 1 and 3 turns upon the weight to be given to the appellant's subjective assertions at the third trial concerning his then medical condition.

49 In my respectful opinion, the trial judge was right to give those assertions little weight.

50 The appellant had a history of attempting to put off his trial. There had been no adequate explanation for his attempt to dismiss his counsel and adjourn the second trial only days before it was due to commence. Mr Vickridge (who, as I have said, was the fourth counsel retained by the appellant) had represented the appellant at the hearing of the pre-recorded evidence, as the trial judge mentioned. No complaint was then made concerning his conduct. Nor was any complaint made until the appellant's trial was imminent. Next, it seems that, when the appellant's application for an adjournment was refused by the trial judge on the first day of the second trial, he injected himself with an opiate substance on the following day, so as to make it impossible for him to follow the proceedings.

51 There are other factors that detract from the appellant's credibility as regards his illness and pain on 3 April 2007. It is apparent from the medical records to which I have referred that he had previously been thought by hospital staff to be dissembling in his assertions of illness and pain. I have mentioned that observations of the appellant were inconsistent with the pain that he claimed to have. I have also mentioned that his apparent seizures were regarded by the medical staff as being feigned. It is also apparent from the records that, once successful in having his first trial adjourned, the appellant's condition had immediately improved.

52 There seems to have been no reason why the appellant should have been unwell, or in serious pain, on and after 2 April 2007. He had been discharged from hospital. Observations of him immediately prior to his discharge had revealed no significant problem. His wound was healing well. That he was not as unwell, or in as much pain, as he claimed to be is supported by the evidence of Mr Petters, who (as I have said) observed that, when on his own, the appellant showed no signs of serious pain or of any illness. Moreover, the trial judge was himself able to observe the appellant throughout the period of the trial and to make some assessment of his appearance in order to assess (so far as this was possible) whether it equated with his claimed symptoms.

53 In all of the circumstances I am satisfied, on the evidence before the trial judge as supplemented by that since obtained, that the appellant's assertions that he was too unwell or in too much pain to follow the trial adequately or to give evidence were untrue. That being so, and the trial judge having warned the appellant of the consequences of continuing to refuse to answer questions asked of him, the contention that the appellant did not receive a fair trial in the respects asserted in grounds 1 and 3 has not been made out.

54 There is no dispute concerning the test to be applied when it is alleged that a judge has been, or might be, actuated by bias. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47, Mason CJ and McHugh J said that the proper test 'is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11], Gleeson CJ, and Gaudron, McHugh, Gummow and Hayne JJ said that 'the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... 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'. It is important to bear in mind that this fair-minded lay observer is one who should be taken to have informed himself or herself 'on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson [53] (Kirby J); Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87.

55 The existence of bias, or the appearance of it, in this case is said to be evident from a number of the comments made by the trial judge during the second and third trials.

56 The first set of comments relied upon by the appellant was made at the commencement of the second trial, after the appellant had applied for an adjournment. The trial judge said that it was difficult not to draw the conclusion that the appellant's intention to change counsel was a delaying tactic and that there was no guarantee that, if the matter was adjourned, the position would be any different on the next occasion. He said that he doubted that it would be.

57 In my respectful opinion those conclusions were, and would have been seen to be, open to the trial judge. I have already said that the lateness of the decision to change counsel (for the fourth time) and the failure by the appellant to arrange any other representation were indicative of an intention to delay the proceedings. Also, the transcript of the earlier hearing before Kennedy CJDC on 11 January 2007 (which was presumably on the court file and hence available to Wisbey DCJ) reveals that the Chief Judge was, by then, already frustrated because the appellant had 'not been making himself readily available to the court for quite a while'. She said that it was consequently 'time to take a firm stand with [the appellant]'.

58 When informed, on 7 March 2007 (the second day of the second trial), that the appellant was unwell and that arrangements had been made to take him to hospital, the trial judge made a number of comments. I have mentioned that he said that the history of the matter led him to the 'comfortable' conclusion that what had happened had been a conscious effort on the part of the appellant to delay or frustrate the trial. He also said that the appellant had 'abused' the privilege of overnight bail.

59 Once again, it seems to me that each of these conclusions was reasonably open to the trial judge and would have been thought to be so by any fair-minded observer. Given the history of the matter, and the events of the previous day, there was every reason to suspect that whatever had happened had been as a result of a conscious effort on the part of the appellant to delay or frustrate the trial (as seems to have been the fact).

60 In the course of making the comments to which I have referred the trial judge also said that the accused had dispensed with the service of legal advisers previously on what appeared to be 'a somewhat spurious basis'; and that a previous trial had been abandoned because of 'alleged' health reasons. In my respectful opinion there was no sufficient basis for at least the first of these particular comments. Although the fact that the appellant's condition improved significantly as soon as the first trial was adjourned provided reasonable ground for suspicion as regards the severity of his illness, he had been diagnosed with moderate to severe depression. It was also unclear for what reasons the services of prior legal advisers had been dispensed with (although the fact that three different lawyers had been dispensed with again provided ground for suspicion). However, these comments were made in a context in which the trial judge was obviously frustrated by the appellant's attempts to delay the trial, including what he reasonably considered to have been an attempt to dismiss Mr Vickridge on 'a somewhat spurious basis'. I am not persuaded that they were, or would reasonably have been seen to be, reflective of bias in the circumstances.

61 The appellant also complains that the trial judge said, in the course of directing that the second trial should continue, that the interests of justice demanded this and that it was difficult to see how the appellant's interests could be prejudiced by the jury seeing the pre-recorded material in his absence. In my opinion, no justifiable complaint can be made in respect of either comment. The trial judge ruled that the trial should continue only for the purpose of showing the jury video evidence that had previously been seen by the appellant. In circumstances in which he reasonably believed that the delay was deliberate, and in which an adjournment was contrary to the interests of witnesses who had been waiting to give evidence (including the mother of one of the complainants), there was good reason for thinking that the interests of justice demanded that the trial continue for that limited purpose. There was also good reason for thinking that there would be no prejudice to the appellant through his absence while the video evidence was played, bearing in mind that his counsel would be present and that he was himself familiar with that evidence.

62 Complaint is also made that the trial judge then told the jury that the appellant was 'suffering some ailment'. In fact, what the trial judge said to the jury was as follows:

You will observe that the accused person is not present. The information to hand is that he is suffering some ailment and is presently receiving medical attention. The law provides that an accused person must be present or that proceedings must take place in the presence of an accused person unless the court is satisfied that proceedings can continue in circumstances where the court is satisfied the interests of the accused will not be prejudiced by his absence.

There is still considerable recorded material which the accused has been privy to and knows about. I am satisfied that his interests will not be prejudiced by continuing with the trial today, at least to the stage where we cover all that recorded material, and it would be unsatisfactory to send you away until tomorrow when that situation applies (ts 115).

63 There is nothing in that passage that gives rise, or that might reasonably be thought to give rise, to any concern. The trial judge did not know what ailment had afflicted the appellant and he made it plain to the jury that it was one in respect of which the appellant was receiving medical attention.

64 On the following day, when told of the appellant's illness, the trial judge said in the absence of the jury that he suspected that the appellant would not 'be feeling any better until the trial has been dealt with'. He also said that 'an accused person cannot simply abort a trial in this manner'. For the reasons I have already given, an informed fair-minded observer would have seen nothing unreasonable in the trial judge's suspicion or in his expression of frustration concerning the prospect of abortion of the trial.

65 It is important, also, to consider the issue of bias, or apprehended bias, in the light of other comments made by the trial judge. I have mentioned that his comment that he had no confidence in the appellant's absence being other than intentional was prefaced by the words 'I may be proved wrong but'. Also, having heard the evidence of Ms Harris to the effect that the appellant's arm required urgent treatment but that his ability to give evidence, understand the proceedings and provide instructions was not impaired, the trial judge said:

I will say, for what it's worth, that had the information put before the court by Nurse Harries [sic] not been such as it was, I had proposed to remand the accused in custody through to the next status conference which was some time in June (ts 134).

66 I have said that, when the trial judge learned, on the following day, that the appellant was acutely unwell, he aborted the trial. At that time, in response to a remark by the prosecutor that his instructing solicitor had built up some sort of relationship with the witnesses who would be required, yet again, to wait to give evidence, the trial judge said that he had 'built up some sort of relationship with the accused, but not one that [he] was all that keen to build up' (ts 138). In my respectful opinion this comment was unnecessary and ill-advised. However, it seems to me that, in the circumstances, a fair-minded observer would have understood it to be no more than a flippant expression of frustration with the appellant's delaying tactics.

67 The remaining comments complained of by the appellant were made by the trial judge during the third trial.

68 Two of these were made shortly after the court had reconvened on 2 April 2007. After the prosecutor had acknowledged that, if the appellant was unable to concentrate properly and give instructions, this would be a matter of great concern, the trial judge said that the appellant did not need to concentrate while pre-recorded evidence was played. In my opinion, there is nothing that was, or could reasonably have been thought to be, untoward in this comment. It was made only because the appellant was already well aware of the contents of the video-recorded evidence. Counsel for the appellant asserts that he also said that, if the appellant attended the hospital while that evidence was played, it would 'kill two birds with one stone'. However, that was said by the prosecutor, not the trial judge (ts 228).

69 Next, when adjourning proceedings on 2 April 2007, the trial judge informed the appellant's brother that, notwithstanding that the appellant had a medical appointment arranged for 11:15 am on the following day, he would not be in a position to keep that appointment and an alternative time should be arranged. He also said that he wanted to make it clear to the appellant that the matter would proceed to finality on the following day. Once again, there seems to me to be nothing that might reasonably have been thought to be untoward in either comment. There was seemingly no valid reason why the medical appointment should have been arranged for a time during court sitting hours. There was also good reason to prevent the appellant from further delaying the proceedings.

70 The remaining complaints relate to comments made by the trial judge on the following day, 3 April 2007.

71 I have mentioned that he said that he had received a letter from the appellant's brother. He said that this had 'rambled on about all sorts of matters, how he was too ill to go to trial'. He also said that he took no notice of it and that, in his view, it should not affect the trial. The letter has not been placed before us, but it is obvious from the transcript that it made complaints concerning the conduct of the trial and concerning incompetence on the part of Mr Vickridge. While the trial judge referred to the letter in unnecessarily derogatory terms, that was obviously the product of an understandable reaction to the strong terms in which the letter had written. The trial judge remarked that the letter recorded that he was 'presiding over a travesty of justice'. The letter also expressed concern regarding the health of the appellant. However, I have already concluded, when dealing with grounds 1 and 3, that it was reasonable in the circumstances for the trial judge to decide to continue with the trial.

72 Next, complaint is made of the fact that, after the appellant had expressed an inability to answer any of the questions asked of him, the trial judge said, in response to a comment from counsel that he had not encountered such a situation before, that he thought it was 'a first for all of us'. There is nothing that might reasonably be thought to be untoward in that comment.

73 Complaint is also made of the fact that the trial judge said that an adjournment to enable the appellant to take some analgesia 'would achieve nothing since we don't know how long it could take for analgesics to take effect, if there was pain'. It was plain that this comment was made in a context in which the trial judge reasonably believed that the appellant was overstating the pain that he suffered. Once again, I do not consider that the comment was, or should reasonably have been understood to be, indicative of bias on the part of the trial judge.

74 In the course of discussion during the brief adjournment that preceded the conclusion of the appellant's evidence (if that is the correct description for it) at the trial, the prosecutor indicated that he would seek to address the jury in terms that the appellant's conduct in the witness stand had 'been a put-on performance done in consciousness of guilt'. The trial judge said that he 'would have thought that that course is open'. This is said to have demonstrated bias. I am not at all persuaded that that is so. What was said was no more than the expression of a preliminary opinion from which the trial judge later resiled, after hearing submissions from counsel for the appellant. Mr Vickridge contended that it 'would be more appropriate to say absolutely nothing' in that respect (ts 250). The trial judge accepted that contention. It was for that reason that he made no mention of the appellant's demeanour or condition in the witness box when he addressed the jury. I should add that this last omission is also said to be indicative of bias on the part of the trial judge. However, that submission fails once it is appreciated that the trial judge was merely doing what he had been invited to do by the appellant's then counsel.

75 Finally, two complaints are made concerning what was said and done by the trial judge after the appellant had been convicted. The first complaint is that the trial judge told the jury that their verdicts were 'soundly in accordance with the evidence'. There is nothing to suggest that the verdicts were otherwise than soundly in accordance with the evidence. Moreover, judges often make comments of that kind to jurors, albeit unnecessary and perhaps undesirable. There is consequently no substance to this complaint. The second complaint relates to the fact that, when sentencing the appellant, the trial judge decided not to back-date his sentence in respect of the period during which he had been remanded in custody. He said that this was because a large part of that time had been spent by the appellant in hospital. That was an appropriate exercise of the trial judge's discretion in the circumstances. It is not indicative of bias.

76 It follows from what I have said that none of the matters to which I have referred, looked at individually, constitutes a sufficient basis for a finding that the trial judge was biased, or that he gave the appearance of it. Nor, in my opinion, can either conclusion be arrived at when all of the matters complained of are looked at together, in the context of the whole of the trial. As I have said, the trial judge was confronted by a person who was seemingly determined to delay matters as long as he could. To the limited extent that the trial judge's comments went further than was necessary, this was, and would have been understood to be, no more than an understandable expression of frustration or irritation with what was taking place. That may explain why no complaint was made in this respect by the appellant or his then counsel at any time during, or prior to, the third trial. That, of itself, is a matter of some significance. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 572, Brennan, Deane and Gaudron JJ said:

Where ... comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier

comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

GAMAGE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 49 (4 March 2008)

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GAMAGE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 49 (4 March 2008)

Legislation Cited (1)

Cases Cited (4)