Gleeson v Director of Public Prosecutions

Judgment

1. THE COURT: This is an application for judicial review of a decision dated 4 August 2020 of a District Court Judge declining to recuse himself from presiding at a criminal trial of the applicant which was fixed to commence on 17 May 2021 before the District Court in Lismore. As the resident judge in Lismore, the trial would, in the ordinary course of events, have come before his Honour. The basis of the applicant's application to his Honour was that his Honour's partner of 29 years, who is a Crown prosecutor, gave advice to police in connection with the proceedings and that that gave rise to a reasonable apprehension that his Honour might not bring an impartial mind to his conduct of the forthcoming trial.
2. At the conclusion of the hearing in this Court on 25 February 2021 the Court made the following orders: 1. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of his Honour Judge McLennan of the District Court declining to recuse himself from any further hearing of proceedings 2019/253909. 2. An order in the nature of prohibition prohibiting his Honour Judge McLennan from further hearing proceedings 2019/253909. 3. No order as to costs. 4. Reasons for judgment reserved.
3. These are our reasons for the making of those orders.

The relevant factual circumstances

1. In February 2018 police interviewed a child complainant ("A") in relation to allegations made by her of the applicant's sexual abuse of her. The applicant denied the allegations when interviewed by police. Following a forensic medical examination of A, police records note that on 21 May 2018 the investigation was suspended. The records then indicate that the case was reopened in June 2018, with A being re-interviewed and A's brother ("B") also being interviewed by police. In July 2018 the case was again recorded as suspended.
2. In January 2019 police sent a "brief of evidence" to the Office of the Director of Public Prosecutions ("ODPP") in Lismore for a "sufficiency of evidence advising". On 28 June 2019, Ms Smith, a Crown prosecutor, gave advice that was described in the affidavit evidence before this Court in the following way: "advice was received preferring charges be laid against [the applicant] for the alleged offences [against A and B]".
3. As a result, on 13 August 2019 the police laid charges against the applicant for 10 offences under ss 61M(2), 66A(1) and 66C(1) of the Crimes Act 1900 (NSW) relating to the alleged sexual assault of A and B, and the applicant was taken into custody on 15 August 2019. He was later granted bail by the Supreme Court on 2 October 2019.
4. On 22 April 2020 Ms Bowens, a Crown prosecutor, signed on behalf of the ODPP a charge certificate pursuant to s 66 of the Criminal Procedure Act 1986 (NSW). After a case conference certificate was also signed by Ms Bowens, the applicant was committed to the District Court at Lismore for arraignment.
5. On 22 July 2020 the ODPP advised the applicant's solicitor that Ms Smith, as a Crown prosecutor, had been "briefed in an advisory referral from Police, prior to the arrest of the accused".
6. On 24 July 2020 Ms Bowens signed the Indictment against the applicant. It included, with presently immaterial differences, 7 charges earlier made in relation to A (see [6] above). The prosecution advised the defence that the evidence of each child (A and B) would be relied on as tendency evidence in the trial of the alleged offences against A. In addition, at the trial the prosecution advised that it proposes to lead evidence of uncharged sexual assaults by the applicant on A as tendency and context evidence.
7. On 24 July 2020, the applicant filed a notice of motion seeking an order that the judge recuse himself. Ms Bowens, who appeared on behalf of the Crown on the application, indicated that "on instructions" the Crown did not oppose it. Consistently with this, in this Court, the Attorney General, who was joined as a party to provide assistance to the Court, stated that he did "not advocate for a particular outcome in the judicial review application".

The judgment on the recusal application

1. His Honour stated that the basis of the application to him was that "there is an apprehension of bias as a result of my relationship with Ms Smith, Crown Prosecutor, because of her involvement in the matter on providing advice to police prior to the arrest of the accused applicant". His Honour noted that Ms Smith is his partner and had been so for 29 years. He said that he had been the resident judge in Lismore since February 2020 and that Ms Smith had been based in Lismore since May 2019 but that after his arrival in Lismore Ms Smith regularly appeared before the resident judge at Coffs Harbour.
2. In rejecting the recusal application, his Honour said: "Ms Smith's role is clear. The impact of her role on the criminal process concerning the applicant is less clear. Importantly, her involvement has been superseded by that of others (although precisely how many others is unclear). At the very least, one other prosecutor has fulfilled the three crucial steps post charging that leads to a jury trial. On the basis of the material before me, Ms Smith's involvement has been at a remote point in time, as far as the process is concerned, and at a juncture that has much less significance than finding a bill of indictment."
3. The "three crucial steps" prior to trial in which Ms Smith had not been involved and to which his Honour referred were the issue of a charge certificate (s 66 Criminal Procedure Act), the holding of a case conference and the issue of a case conference certificate (ibid ss 69-81), and the finding of a bill of indictment (ibid s 8).
4. His Honour then stated that "there has not been an articulation of the logical connection between the matters relied upon and the feared deviation from the course of deciding the case or any legal arguments raised in the case, on its merits" and concluded that "there could not be a reasonable apprehension of bias".

Relevant legal principles

1. As stated by the plurality in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], subject to qualifications such as waiver or necessity, "a judge is disqualified if 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". Their Honours stated at [8] that application of the apprehension of bias principle requires two steps to be taken, as follows: "First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
2. Their Honours referred at [24] to Deane J's identification in Webb v The Queen (1994) 181 CLR 41 at 74; [1994] HCA 30 of "four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information". Their Honours treated those categories as at least providing "a convenient frame of reference". Deane J had referred to the first category as "disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment". His third category was "disqualification by association" which he stated "will often overlap the first" and consists of: "cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings."
3. A decision concerned with the interest category was that of the High Court in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, where a local council officer who had been involved in the prosecution of the applicant in the Magistrates' Court under the Domestic Animals Act 1994 (Vic) participated in a hearing of a panel of the council to determine whether the dog with which the charges were concerned should be destroyed. The Court found that a fair-minded observer might reasonably apprehend that the officer might not have brought an impartial mind to the decision. The plurality stated at [34]: "The interest which the appellant alleges existed in this case is akin to that which a person bringing charges, whether as a prosecutor or other accuser, might be expected to have in the outcome of the hearing of those charges. It is generally expected that a person in this position may have an interest which would conflict with the objectivity required of a person deciding the charges and any consequential matters, whether that person be a judge or a member of some other decision-making body."
4. Their Honours described the interest to which they referred as follows at [46]: "A 'personal interest' in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show [Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7 and Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53], that it might reasonably be thought that the person's involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making. This is not to equate such a person with a judge."
5. Their Honours rejected an argument that the officer's interest in the matter came to an end when the charge proceedings in the Magistrates' Court were completed, stating at [42]: "A line cannot be drawn at that point of her involvement so as to quarantine the Magistrates' Court proceedings from her actions as a member of the Panel. It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome of the matter. Ms Hughes' continuing interest in the matter may be tested by asking whether, if the Magistrates' Court had been asked to make an order for destruction, as could have been done following conviction, it might reasonably be apprehended that she would remain interested in whether the Magistrates' Court granted the order. The answer must clearly be 'Yes'."
6. The Federal Court decision in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 was concerned with the relevance of "a longstanding personal, professional and financial association" between the judge and a senior counsel briefed to appear before him. In the course of his decision Merkel J referred to Kennedy v Cahill (1995) 118 FLR 60; [1995] FLC 92-605 in which there was a serious and close personal relationship between a Family Court judge and a solicitor for one of the parties in the matter before her. Merkel J opined that the conclusion in Kennedy that there was a reasonable apprehension of bias was likely arrived at: "on the basis that the close and serious relationship would be perceived to involve an emotional or relational interdependence which might reasonably be perceived to have a capacity to influence how the judge might approach the resolution of the matter to be decided. In that regard that case may be analogous to cases where it might be perceived to be inappropriate for persons in marital or analogous relationships to appear before their partner as an adjudicator." (At 224).
7. In Polsen v Harrison [2021] NSWCA 23 this Court stated at [46] a number of principles, the following of which have potential relevance to the present case: "(iii) there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer 'might' apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite 'firmly-established' apprehension of bias; (iv) a finding of apprehended bias is not to be reached lightly; (v) this is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial; (vi) the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify; … (xiv) there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the 'actual circumstances of the case' as though the observer was sitting in the court; (xv) the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; (xvi) the context which must be considered includes the legal, statutory and factual context in which the decision is made, and 'the totality of the circumstances', although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; …" (footnotes omitted).

Consideration of the present case

1. In accordance with Ebner, it is necessary first to identify the matter which it is contended might have led the judge, albeit subconsciously, to conduct the applicant's trial other than in accordance with its legal and factual merits.
2. There are two steps involved in doing this. The first is identification of the nature of the judge's relationship with Ms Smith. This is of no difficulty as his Honour identified Ms Smith as his partner for the past 29 years. It can be inferred from that that they have a mutual affection and a concern for each other's wellbeing in both a personal and professional respect (see Aussie Airlines referred to in [20] above).
3. Secondly, consistently with the approach in Isbester, it can be inferred that Ms Smith has an interest in the vindication of the opinion she gave in the course of her professional duties that there was sufficient evidence to warrant the prosecution of the applicant on the charges that were preferred against him. Notwithstanding the strong duties of prosecutors to maintain independence and impartiality (see for example Guideline 2.2(1) of the ODPP Prosecution Guidelines issued under s 13 of the Director of Public Prosecutions Act 1986 (NSW)), it would be unrealistic to conclude that a professional person in Ms Smith's position would be indifferent to the outcome of the charges against the applicant. At least it can be said that she would have an interest in the outcome of the charges not indicating or suggesting that she was clearly wrong in the advice she gave. Her interest can be inferred to be of the nature described in Isbester (see [17]-[19] above). As stated in those passages, it is not necessary to analyse the psychological processes involved. It is sufficient to conclude that if (which is not the case, but illustrates the point) Ms Smith were in any way concerned with the making of court decisions relating to the charges, a fair-minded lay observer might well reasonably apprehend that Ms Smith might not be able to bring the requisite impartiality to bear.
4. Again by analogy to Isbester (see [42] quoted in [19] above), it could not be concluded that Ms Smith's interest in the final outcome of the charges ceased because of the occurrence of intervening steps with which she was not involved. Thus the fact that one or more other Crown prosecutors subsequently advised, expressly or impliedly, as to the sufficiency of available evidence to sustain the charges could not be inferred to have rendered her disinterested.
5. That a person with whom a decision maker has a close relationship has an interest in the subject matter of the decision does not automatically enable it to be said that the decision maker has directly or indirectly the same interest. Each case must turn on an assessment of the particular facts involved in it. That there is no such "automatic rule of preclusion" was made clear by this Court in Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168; [1999] NSWCA 113 at [89]. That decision was referred to with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 at [18].
6. Before considering that issue further, we turn to the second question to which Ebner refers at [8], namely, the "logical connection between the matter [of concern] and the feared deviation from the course of deciding the case on its merits". As the judge in the present case would not be presiding at a judge-alone trial, he would not of course be deciding whether the prosecution proved the applicant's guilt beyond reasonable doubt. His role at the trial would however likely require him to make procedural and evidentiary decisions of importance to the outcome of the trial. Amongst others, there may be difficult decisions for him to make as to the admissibility of evidence under ss 97 and 97A of the Evidence Act 1995 (NSW) on a tendency basis. As indicated earlier, the Crown has foreshadowed its intention to seek to have the evidence of A and B admitted as tendency evidence (see [9] above). Moreover, it is possible that at the trial the judge would need to determine an application for a direction to the jury that it return a not guilty verdict on the basis that there was no evidence upon which it could convict (The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 at [29]; compare Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9 concerning Prasad directions).
7. In these circumstances, the fair-minded lay observer might in our view reasonably apprehend that the judge might not bring an impartial mind to the performance of his duties as the trial judge. The fair-minded lay observer might reasonably consider that the judge might have in his mind the potential impact of his decisions during the course of, or before, the trial on his longstanding partner's interest in the outcome of the charges. It is true that a failure of the prosecution would not of itself necessarily reflect poorly on Ms Smith. It is not inconceivable however that the prosecution could fail for reasons that would so reflect. For example, an adamant rejection by the trial judge of evidence or a direction by him to the jury to return verdicts of acquittal might well do so.
8. In our view the fair-minded observer would be likely to be concerned about the existence of a close personal relationship between a trial judge and a Crown prosecutor who had advised on the bringing of the charges in question, even though other prosecutors had been involved subsequently and would be involved at the trial. In these circumstances, the judge should in our view have concluded that there might reasonably be an apprehension that he might not act impartially. The principles of fundamental importance to the justice system that "justice should both be done and be seen to be done" and that judicial officers be "independent and impartial" underline the apprehended bias principle (see Ebner at [6]).
9. For these reasons, it was appropriate for the Court to make the orders referred to in [2] above. Its power to make them by way of judicial review was undoubted (see Chamoun v District Court of New South Wales [2018] NSWCA 187 at [27]-[31]).

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