Courts and Judges - Judges - Disqualification for interest or bias - Particular grounds - Prejudgment - Application to activate suspended sentence - Judge announced decision to activate sentence before allowing defence counsel to make submissions.

Ebner v Official Trustee [2000] HCA 63, 205 CLR 337; Antoun v The Queen [2006] HCA 2, 224 ALR 51; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577; QRS v Legal Profession Board of Tasmania [2017] TASFC 10, follows.

Judgment Number: [2020] TASCCA 15

3 Application filed on 12 August 2020 to be heard and determined by a single judge.

1. This is an appeal from orders made by Geason J on 18 September 2020 in relation to the activation of a suspended sentence. The appellant contends that the orders should be quashed on the basis of apprehended bias. The Crown concedes that the appeal should be allowed on that basis.
2. The sentence in question was imposed by his Honour on 24 September 2019 on a charge of assault. His Honour sentenced the appellant to 12 months' imprisonment, suspended the operation of 9 months of that sentence on condition that he commit no further offence punishable by imprisonment for a period of 3 years, and made a community correction order, to operate after his release from custody.
3. The appellant was released from prison on 8 November 2019. He soon re-offended. On 12 December 2019 he committed a series of traffic offences, including driving whilst disqualified. On 3 February 2020 he committed a series of traffic and firearm offences, including driving with a prescribed illicit drug in his blood, driving whilst disqualified, reckless driving, and evading police. He was remanded in custody at that stage. He was subsequently convicted and sentenced in relation to the December 2019 and February 2020 offences. He was sentenced to a total of 12 months' imprisonment with effect from 3 February and disqualified from driving for 2 years after his release.
4. On 12 August 2020 an application was made on behalf of the Director of Public Prosecutions for the review of the order partly suspending the September 2019 sentence of imprisonment, and for the cancellation of the community correction order made at that time. The appellant had failed to attend five appointments with Community Corrections officers in November and December 2019, but did attend two appointments in January 2020 before being taken into custody on 3 February.
5. The application came before his Honour in Burnie on 18 September 2020. Ms Ansell appeared for the State. Ms Phillips appeared for the appellant. After a brief discussion as to how long the application might take, Ms Ansell commenced to outline the basis of the application, but was interrupted by his Honour. The transcript reveals what happened from that point onwards:

"MS ANSELL: Thank you, your Honour. The Crown seeks to rely on facts contained at page 1 of the papers dated -

HIS HONOUR: What are you asking me to do? Just tell me what you are asking me to do.

MS ANSELL: To impose the suspended sentence your Honour. To breach - we are breaching the respondent for his suspended sentence and his probation order. We seek that he be re-sentenced on the matters.

MS ANSELL: He breached the suspended sentence by committing further offences and failing to comply with the orders of probation officers.

HIS HONOUR: Okay. Where will I find the suspended sentence?

MS ANSELL: The suspended sentence, the memorandum of sentence, is pages 6 and 7, your comments on passing sentence are at pages 8 through 12.

HIS HONOUR: Thank you. Oh yes, I remember this. So I suspended nine months of a 12 sentence?

HIS HONOUR: On condition that he be of good behaviour for three years and commit no offence and he committed those offences?

HIS HONOUR: Well the sentence has been breached and I intend therefore to impose that sentence of nine months' imprisonment. So I activate that sentence.

MS PHILLIPS: Your Honour, is there an opportunity for me to make submissions in respect of it?

HIS HONOUR: Well you can but I don't see upon what basis it could be properly submitted that I ought not activate the sentence."

1. Ms Phillips then proceeded to make submissions that were no doubt directed to the question of whether it would be unjust to activate the whole of the 9 months that had been suspended. Section 27(4C) of the Sentencing Act 1997 allows a court to take a number of more lenient courses if it is of the opinion that full activation would be unjust. In the circumstances of this case, if the full period of 9 months was to be activated, it would then be necessary to determine whether an order should be made permitting the prisoner to be released on parole after serving part of the 9 months: Sentencing Act, s 27(6A).
2. The learned primary judge should have allowed the prosecutor to provide him orally, in the hearing of the appellant, with information as to the assault charge to which the suspended sentence related, the appellant's subsequent offences, and any other relevant matters. He should have allowed defence counsel to make submissions in relation to the proposed activation of the 9 month component of the suspended sentence, parole, and the proposed cancellation of the community correction order, before announcing any decision in relation to any of those issues. After hearing brief submissions from defence counsel, his Honour activated the 9 months, ordered that that period be served cumulatively with the appellant's other sentences, and cancelled the community correction order. He made no mention of the possibility of making an order permitting parole in accordance with ss 17 and 27(6A) of the Sentencing Act. It appears to be quite clear that he gave no thought to that possibility.
3. A judge is disqualified from hearing a case "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": Ebner v Official Trustee [2000] HCA 63, 205 CLR 337 at [6]. There cannot be a clearer case of apparent pre-judgment than this one. The learned primary judge said he was activating the suspended part of the sentence without first giving the appellant's counsel an opportunity to make submissions as to whether that would be unjust. Such submissions are routinely made by defence counsel in applications of this nature. Even when persuaded that he ought to let the appellant's counsel speak, his Honour commented that he did not see upon what basis it could properly be submitted that he ought not to activate the sentence. That was a second unmistakable indication of apparent pre-judgment.
4. It may or may not have been appropriate, in all the circumstances, for the 9-month suspended component of the sentence to have been activated in full. That is beside the point. When pre-judgment of an issue results in a denial of procedural fairness, as it has in this case, the only appropriate course is to make orders for a new hearing, regardless of the strength or weakness of the case of the party denied procedural fairness: Antoun v The Queen [2006] HCA 2, 224 ALR 51; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577; QRS v Legal Profession Board of Tasmania [2017] TASFC 10 at [9]- [12].
5. The only appropriate course is to quash the orders of 18 September 2020 and remit the application to a single judge for hearing and determination. The orders of the Court are therefore as follows:
   • The appeal is allowed.
   • The orders made on 18 September 2020 are quashed.
   • The application filed on 12 August 2020 is to be heard and determined by a single judge.