KOLA v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR No. SCCRM-01-165, SCCIV-01-941 [2001] SASC 268 (6 August 2001)

ADMINISTRATIVE LAW --- JUDICIAL REVIEW AT COMMON LAW --- PROCEDURAL FAIRNESS --- DISQUALIFICATION FROM BIAS

PRE-JUDGMENT RULE Trial in the District Court for drug offences - r 9 application made by the defendant in the District Court proceedings to exclude evidence related to the police's investigation of the defendant including evidence obtained from searches conducted at a random breath testing station - defendant submitted detailed written outlines of argument prior to the hearing - outlines included the primary submission of the appellant that the Road Traffic Act required the police to conduct a breath test prior to conducting any search - appellant further argued the police not entitled to search without a positive breath test result. Prejudgment - trial Judge indicated from the outset that the argument was without foundation and remained to be convinced it was correct as a matter of law - verbal exchanges between trial Judge and counsel for the appellant - language and demeanour - application seeking to disqualify Judge by reason of bias refused by trial Judge - alleged pre-emptive refusal of application as further ground indicating apprehended bias. Appeal instituted before the Court of Criminal Appeal - whether disqualification proceedings an "issue antecedent to trial" pursuant to s 348 of the Criminal Law Consolidation Act 1936 and thus appellable under that Act - appeal dismissed. Judicial Review - whether a fair-minded observer might in the circumstances apprehend that the Judge would not bring an impartial mind to the determination of the matter - consideration of practical effect of outlines of submission submitted to the Court prior to a hearing - consideration of matters which the fair-minded observer would know and consider in reaching a conclusion including the willingness of the trial Judge to hear argument on the point - application dismissed.

• Controlled Substances Act 1984 s32(1)(e);
• Criminal Law Consolidation Act 1936 ss285A, 348, 352(1)(c)(i);
• Road Traffic Act 1961 s47DA;
• District Court Rules r9, referred to.
• Berg v Council, Museum of Victoria [1984] VicRp 51; [1984] VR 613;
• The Queen v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248;
• Chow v The Director of Public Prosecutions (1992) 28 NSWLR 593;
• Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655, applied.
• Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163;
• Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 176 ALR 644;
• Southern Equities Corporation Ltd (In Liquidation) v Bond [2000] SASC 450; ;

DAMAGES --- MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT --- PERSONAL INJURY WORDS AND PHRASES CONSIDERED/DEFINED

Counsel: MR D QUICK QC WITH HIM MR J IBBOTSON - Solicitors: GEORGE MANCINI & CO

Counsel: MS A FIELD (12.7.01) - Solicitors: CROWN SOLICITOR'S OFFICE

Counsel: MS W ABRAHAM QC WITH HER MS E SHAW (19.6.01) & MS P BARNETT (22.6.01 & 12.7.01) - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2001] SASC 268

(Full Court: Doyle CJ, Perry and Gray JJ: Application For JudicialReview)JUR

[2001] SASC 268

Court of Criminal Appeal: Doyle CJ, Perry and Gray JJ

DOYLE CJ: The plaintiff has issued a summons by which he seeks judicial review of the refusal of a District Court Judge to disqualify himself from further presiding over the trial of an Information filed in the District Court. The Information charges the plaintiff with one count of possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984.

The events from which the charge arises occurred on 25 August 2000. On that evening, at about 8.18 pm, the plaintiff was pulled over by police at a random breath testing station ("the RBT"). A police officer, Constable Kirk, approached the plaintiff's motor car and indicated that the police were conducting alcotests and licence checks. The plaintiff was asked whether he had his licence with him. He replied that he did not. Constable Kirk detected an overwhelming odour of cannabis coming from the plaintiff's car. He confirmed with a fellow officer that that was so. She agreed. Constable Kirk went back to the car and noticed a green tapestry bag leaning against the front seat on the passenger side of the car. There was a short conversation.

Constable Kirk then asked the plaintiff to step out of his car. Constable Kirk searched the vehicle and found a suitcase on the rear seat of the car. He opened the suitcase and found that it contained six shopping bags of cannabis. He then opened the tapestry bag, which he had seen earlier, and found that it also contained six shopping bags of cannabis.

The plaintiff was informed of his rights. The plaintiff was asked whether he understood each of his rights in turn. Each time he answered, "Yes".

The plaintiff was not required to submit to an alcotest.

The plaintiff was taken to the Elizabeth Police Station and placed in an interview room. Constable Kirk spoke with members of the CIB, and after explaining to them what had occurred, a drug warrant was issued. Constable Kirk then returned to the interview room and told the plaintiff that a drug warrant had been issued, for the search of his house. When asked whether he understood this, the plaintiff replied, "Yes, that's OK".

Several police officers went to the plaintiff's house and conducted a search. The plaintiff was present during the search. In various rooms of the house the police found cannabis material and various other materials commonly used in the cultivation of cannabis. The plaintiff was taken back to the Elizabeth Police Station and was interviewed. He was subsequently charged.

The plaintiff was arraigned before the District Court on 22 May 2001. He pleaded not guilty. His counsel had filed an application under r 9 of the District Court Rules for an order excluding certain evidence that the prosecution intended to lead. In particular, the application sought to have excluded the evidence which the police obtained from the search of the plaintiff's car and house, and the evidence of the conversation at the RBT and the evidence of subsequent conversations.

In exercise of the power conferred by s 285A of the Criminal Law Consolidation Act 1936 ("the CLCA") the Judge proceeded to determine the issues raised by the r 9 notice without first empanelling a jury.

The r 9 application is a detailed one, some 10 pages long. It was commendably informative. It contained a careful summary of the argument to be put, with cross-references to depositions and with references to case law and relevant statutory provisions. The application disclosed that counsel would argue that as the plaintiff was stopped at the RBT by police exercising powers conferred by s 47DA of the Road Traffic Act 1961, for the purpose of requiring him to submit to an alcotest, the failure to require him to submit to an alcotest meant that the search and the arrest that followed were unlawful. The point taken in the application was that the effect of the statutory provisions was that the police officers had to require and complete the alcotest before they could act upon any reasonable suspicion that they might have that a criminal offence had been committed. Other points were taken in the r 9 application, but this was the first point, and, I gather, the main point.

I record here that the transcript shows that when the application was heard, a variant of this argument was put. The variant was that the police officer at the RBT had no power to search the car, if the alcotest did not indicate that the prescribed concentration of alcohol might be present in the blood of Mr Kola. The submission was that despite the strong smell of cannabis, if the alcotest was "negative" Mr Kola should have been allowed to go. A further argument emerged during the course of the r 9 application. It was that the RBT was unlawfully established, because it was established for the purpose of carrying out licence checks and vehicle checks, as well as alcotests.

The hearing of the r 9 application began on the morning of 22 May. It occupied the whole of that day and the whole of 23 May. Counsel for the prosecutor called four police officers to give evidence about relevant events. Mr Ibbotson, counsel for Mr Kola, led evidence from Mr Kola. For reasons which will appear, the Judge did not rule on the r 9 application.

Part way through his final submissions on the r 9 application, late on the afternoon of 23 May 2001, Mr Ibbotson foreshadowed that he would make an application to the Judge that he should disqualify himself from further presiding over the trial on the grounds of apprehended bias. The application was based on his Honour's conduct during the hearing of the r 9 application. When the hearing resumed on 24 May, Mr Ibbotson added a further ground to the r 9 application and handed to the Judge a written application for an order that the Judge disqualify himself. The Judge heard submissions and declined to disqualify himself. The Judge granted the plaintiff leave to appeal against the decision. He made no decision on the r 9 application. Submissions on the application had not been completed.

The plaintiff then appealed to the Court of Criminal Appeal against the Judge's refusal to disqualify himself. The appeal was brought pursuant to s 352(1)(c)(i) of the CLCA on the basis that the Judge's refusal to disqualify himself was a decision on an "issue antecedent to trial".

The appeal came on for hearing before the Court of Criminal Appeal, constituted by Olsson, Perry and Gray JJ on 19 June 2001. The Court suggested that the Judge's decision was not an "issue antecedent to trial", within the meaning given to that term by s 348 of the CLCA, and hence that it was incompetent. Counsel then indicated that judicial review proceedings would be instituted, and that was done.

The appeal was listed for hearing at the same time as the judicial review proceedings.

In my opinion, the appeal should be dismissed. An "issue antecedent to trial" is defined to mean:

"....... a question ....... as to whether proceedings on an Information or a count on an Information should be stayed on the ground that the proceedings are an abuse of process of the Court."

The concept of an abuse of process may be a wide one, but in my opinion it cannot be said to embrace a question as to whether a Judge should disqualify himself or herself from further hearing proceedings on the grounds of apprehended bias.

On the hearing of the application for judicial review, the Court gave leave to the Director of Public Prosecutions to be heard in opposition. Counsel for the District Court informed the Court that the District Court and the Judge submitted to any order that the Court might make.

In the summons for judicial review the plaintiff seeks an order in the nature of prohibition requiring the District Court to stay proceedings before the Judge in question, an order in the nature of mandamus requiring the Court to re-arraign Mr Kola before another Judge, and an order in the nature of certiorari quashing the decision of the Judge not to disqualify himself.

In my view, none of the orders sought are appropriate were the plaintiff's submissions to succeed.

It is not appropriate to stay the proceedings.

An order in the nature of mandamus, compelling the learned trial Judge to disqualify himself would be inappropriate. Mandamus cannot be invoked to compel something not be done, such as, in this case, to compel the trial Judge not to sit: Berg v Council, Museum of Victoria [1984] VicRp 51; [1984] VR 613, Nicholson J at 617.

An order in the nature of certiorari, quashing the Judge's decision, would merely annul the Judge's order, if there is an order to be annulled. It would not prevent him from presiding over the trial.

If this Court was disposed to grant relief to the plaintiff, it is my view that the appropriate remedy would be an order in the nature of prohibition (see Dr MA Perry, Disqualification of Judges; Practice and Procedure - Discussion Paper (Australian Institute of Judicial Administration, Carlton, Australia, 2001), 3.9). The majority in The Queen v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, Barwick CJ, Gibbs, Stephen and Mason JJ at 262 said:

"The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle." [Emphasis added].

Ms Barnett, counsel for the DPP, did not submit that this Court lacks the power to make an order in the nature of prohibition directed to the District Court or to the Judge in question. It may be that this Court has that power only if, for present purposes, the District Court is to be regarded as an "inferior court": Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 180-181; The Queen v Watson; Ex parte Armstrong at 262-263. However, it may be that an order in the nature of prohibition may be made simply on the basis that if the Judge of the District Court is disqualified on the grounds of bias, he lacks jurisdiction to make orders in, and to preside over, the trial: Chow v The Director of Public Prosecutions (1992) 28 NSWLR 593 at 610, 618. As the Court did not hear full submissions on the point, and as there was no submission to the contrary, I will assume without deciding that this Court has power to make the orders sought.

Disqualification for bias - relevant principles

It is, therefore, necessary for this Court to determine whether the Judge's conduct during the hearing of the r 9 application gave rise to apprehended bias. The law relating to the question of bias has recently been considered by the High Court (Johnson v Johnson [2000] HCA 48, (2000) 174 ALR 655; Ebner v Official Trustee Bankruptcy [2000] HCA 63; (2000) 176 ALR 644) and by the Full Court of this Court in Johnson at [11], 658. It is sufficient to quote the now well established test:

"It has been established by a series of decisions of [the High Court] 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."

The test contained within this statement of principle is objective. It requires no consideration of the state of mind of the Judge. The focus is on how the decision and the decision-making process might appear, reasonably considered.

Johnson was also a case in which the claim was that the Judge was disqualified by reason of bias by way of pre-judgment. Those members of the High Court went on to say at [12]-[13], 658-659:

"The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.

While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellant proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them." [footnotes omitted]

As their Honours note, the fair-minded observer is assumed to be familiar with "ordinary judicial practice". The amount of knowledge to be imputed to the fair-minded observer is something on which minds can and do differ. In IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd [1999] SASC 249; (2000) 78 SASR 151 at [185], 182 I said that:

"It is difficult, and probably impossible, to state in the abstract, in a manner suitable for application to cases generally, the degree of knowledge to be attributed to a fair-minded observer. And even if that were possible, it would not be surprising that different conclusions might be reached by different judges about the application of the relevant principle to particular cases. The decision of the High Court in Laws v Australian Broadcasting Tribunal and the decision of the Court of Appeal of New South Wales in S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 illustrate the difficulty in expressing the relevant test with precision and the way in which judges can come to different conclusions in relation to the knowledge and reaction of a fair-minded observer."

In the present case the fair-minded observer should be taken to know that in accordance with ordinary practice the District Court Judge was likely to have read the r 9 application before coming into Court, to have looked at the depositions taken at the preliminary examination and to have considered, the soundness of the points that counsel made in the written application. One of the reasons for providing a written application is to enable the judge who is to deal with it to prepare for the hearing. Depending on the detail provided in the application, and the sort of points involved, the judge might enter the courtroom with well-formed views. In short, the fair-minded observer is to be taken to know that the Judge would have come into Court with a good idea of the issues to be argued, and might well have formed views about some of them, particularly on points of law.

There is another observation which I made in IOOF about the knowledge of the fair-minded observer, which I take the liberty of repeating here because of its relevance to the present case. I said at [194], 184:

"The observer is to be taken to understand that there will be occasions when both judge and counsel will, to put it bluntly, express themselves in a manner that is to be regretted. It is important that judges maintain a calm and judicial manner, but as I have already said a fair-minded observer is not to be taken to believe that judges are perfect. The observer will accept that occasional departures from the appropriate standard are nothing more than indications of ordinary human frailty."

Finally, the fair-minded observer is taken to know that these days it is acceptable for a Judge, particularly if the Judge has had an opportunity to consider the issues in advance, to test counsel's submissions from the outset, and without necessarily waiting for counsel to deploy them at a time of counsel's choosing.

This case is one in which pre-judgment is asserted. That is, it is submitted that the Judge's language and manner indicated that he might not bring an "impartial and unprejudiced mind" to bear on the decision to be made on the r 9 application.

In such a case it is important to remember that the issue is whether it appears that the judge is prepared to hear submissions with an impartial and unprejudiced mind, and not whether it appears that the judge has an inclination or a disposition to decide a point in a particular way. There might be a variety of reasons, including previous decisions made by the same judge, or decisions made by other judges of the court, which make it likely that a judge will decide a point in a particular way. But it does not follow that the judge will not have an impartial and unprejudiced mind, as long as the Judge is willing to listen to, and to consider, the argument to be put to the Judge. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 Mason CJ said:

"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as R v Watson; Ex parte Armstrong and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be 'firmly established'." [footnotes omitted]

A similar point was made by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100 when they said:

"A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her." (footnotes omitted)

In relation to each of these citations, I remind myself that the test is not whether the fair-minded observer might reasonably apprehend that the Judge will not bring an impartial and unprejudiced mind to the resolution of the question, but whether there is a reasonable apprehension that the judge might not do so.

But, it remains the case that the Court is not concerned with mere possibilities. As the majority said in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [7]; [2000] HCA 63; (2000) 75 ALJR 277 at 279:

"Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror."

Mr Quick QC, counsel for the plaintiff, submitted that the Court must consider the cumulative effect of aspects of the Judge's conduct, and with this submission I agree.

Mr Quick then took the Court to the transcript of the hearing of the r 9 application. He pointed to a number of matters. I will summarise them, so that their cumulative effect can be assessed. But in the interests of efficiency, and to keep things in sequence, I will interpolate some observations of my own about the course of the proceedings.

The first matter that Mr Quick relies on is the following exchange which took place within a minute or so of the hearing beginning:

"HIS HONOUR: Let me ask you one question first before you commence, Mr Ibbotson. What do you say exactly the two police officers should have done when they looked in the car, told them they were going to do an alcotest and smelt a very strong smell of cannabis?

MR IBBOTSON: They should have done the alcotest and if it was negative the accused should have been allowed to go, in accordance with the legislation as it now stands.

HIS HONOUR: That's absolute rubbish; allowed to go, despite the strong smell of cannabis?

HIS HONOUR: What do you say the police officers should have done if there had been a dead body in the back of the car.

MR IBBOTSON: Same, I don't think it matters; it is the way the legislation is formed.

HIS HONOUR: What if there was someone in the back of the car saying 'Help me, this man is trying to kill me'?

MR IBBOTSON: They can deal with the matter in the back of the car, because it is not the driver.

HIS HONOUR: They would have to say first 'Excuse me, we have to do an alcotest', wouldn't they?

MR IBBOTSON: No, they alcotest the driver at one stage, but the person in the back isn't the driver."

The interchange between the Judge and counsel continued for just over four pages of transcript.

Mr Quick relies on the fact that this occurred before Mr Ibbotson had outlined his submission, on the strong language used by the Judge ("absolute rubbish") and on the fact that the Judge did not suggest that his remarks were based on a consideration of the written application.

I interpolate that after this short exchange, the Judge said that he would hear Mr Ibbotson's argument, and the calling of evidence by the prosecutor then began.

The second matter relied on by Mr Quick is that from time to time, during the course of evidence, the Judge used equally strong language about this particular submission, and he also complains of the demeanour of the Judge. On occasions, questions put by Mr Ibbotson to witnesses caused the Judge to interrupt and to put questions to Mr Ibbotson about the purpose or effect of the evidence, and this led counsel and the Judge to return to the point at issue. After one such exchange the Judge said:

Mr Quick complains of the language used on these occasions, and suggests that the Judge's instruction to continue was made with an air of resignation. Somewhat later the Judge observed that Mr Ibbotson had "laboriously" extracted certain material from a witness. The complaint about the Judge's language is that it indicated a mind already made up.

The first two prosecution witnesses occupied the whole of the day.

On the second morning, Mr Ibbotson amended the r 9 application to add a further ground to the effect that because of the accused's limited command of English, he had not understood the rights of which he was informed by the police, and so evidence of the conversations with Constable Kirk should be excluded. The Judge observed that the evidence was that Mr Kola had been told three times of his right to have an interpreter present. This led to a further short exchange in the course of which the Judge said:

"Yes, I will accept your additional ground, but I think it is a complete waste of time because of what I have just said. He was given the opportunity three times to have an interpreter. He told the officer three times that he understood that. Three times he chose not to undertake that right."

Counsel for the prosecution then called two further witnesses. Mr Ibbotson then called the accused. At what I estimate to have been late on the afternoon of the second day, Mr Ibbotson began his closing submissions.

Mr Ibbotson put a view about what had happened at the RBT, submitting that if the police could stop a driver at a RBT, "for no reason", and not administer an alcotest, but search the driver's car, that would be an invasion of the driver's rights. That led to the following exchange:

"HIS HONOUR: That's not what happened in this case.

MR IBBOTSON: If your Honour can't see that I'm wasting my time.

MR IBBOTSON: I didn't want it to come to this, I'm going to seek an adjournment. I wish to make an application that your Honour disqualify yourself for apprehended bias.

MR IBBOTSON: Your Honour won't even hear me on it.

HIS HONOUR: I'll hear you. You are wasting your time. The very idea someone can stop somebody at an RBT station, have reason to believe there was cannabis in the car and then do something about the belief about the cannabis and not take the RBT test, and therefore be actually acting unlawfully is so ludicrous, absolutely ludicrous.

MR IBBOTSON: Your Honour thinks the whole argument is a waste of time.

HIS HONOUR: This part of the argument is. I will listen to whatever you say; you may be able to persuade me otherwise. My present belief is it is ludicrous.

MR IBBOTSON: Your Honour has taken that view from the word go. You told me it was nonsense the first time I stood up.

MR IBBOTSON: If your Honour was to believe someone was sitting in the back of the court that your Honour was an unbiased observer of this legal argument or would a person at the back of the court think your Honour had made up his mind and whatever I was saying was a waste of time.

HIS HONOUR: I will sit here as long as you like to see if you can persuade me I am wrong."

Mr Quick complains about the Judge's strong language, which occurs several times in the course of this exchange. He also points to the Judge's peremptory refusal of the application. It is unclear whether the Judge was refusing the application for an adjournment or the application that he should disqualify himself, although my impression is that it was the former application which the Judge was refusing. I say that because, almost immediately, the Judge told counsel to continue with the "present application", until 4.30 pm, and that the Judge would deal with "the other matters" the following day. I think it reasonably clear that the Judge was intending to take up the disqualification application the following day. If my understanding of the events is correct, then while the Judge's approach was a somewhat abrupt one, there is no real cause for complaint about the Judge deciding to continue with the r 9 application for the remaining 20 minutes or so, and to return to the disqualification application the following day.

In any event, Mr Ibbotson continued with his submissions on the r 9 application until 4.30 pm.

I interpolate here that my reading of the transcript indicates that while the Judge obviously regarded the submission being advanced on s 47DA as completely unpersuasive, Mr Ibbotson himself dealt with the Judge at times in a manner that is not ideal. For example, at one point in the course of his submission he said:

"....... if your Honour doesn't agree with me, which is quite obvious from your Honour's actions, it's like I am bashing my head against a brick wall because your Honour seems to think that I am just talking rubbish."

This was followed by an interchange in relation to the meaning of the statutory provisions, in the course of which Mr Ibbotson, in effect, interrogated the Judge about his view of the statutory provision.

52. The hearing resumed the following day. Mr Ibbotson now embarked on his application to the Judge that he should disqualify himself from the case. He put to the Judge his complaints about the language used by the Judge, and his complaints about the Judge's demeanour, referring in particular to indications on the part of the Judge of resignation, exasperation and annoyance.

53. The submissions occupied about 1 hour. There was then the lunch adjournment. The submissions by Mr Ibbotson continued after lunch, and counsel for the prosecutor made no submission, other than to oppose the application.

54. The Judge then refused the application giving brief oral reasons. Mr Quick makes the point that those reasons make no reference to the complaint about the Judge's demeanour and manner. There was no attempt by the Judge to raise any effect that his demeanour and manner might have had on the reasonable observer.

55. On the basis of these matters in combination, Mr Quick submits that the fair-minded observer might reasonably have apprehended, at a certain point, that the Judge might not bring an impartial and unprejudiced mind to bear.

The fair-minded observer is taken to know that before coming into court the Judge had the opportunity to consider Mr Ibbotson's main point, which was the effect of the powers conferred by s 47DA of the Road Traffic Act. The opening sally indicates that the Judge had done this. The fact that the Judge did not say he had read and considered the r 9 application is neither here nor there. It is clear that he had. The point at issue was a fairly short one. There is no reason why the Judge should not have formed a view on it, bearing in mind the thorough way in which it was outlined in the r 9 application. The point at issue was the sort of point on which one might expect the Judge to have a view, having considered the matter, and it was a point of statutory construction on which one might have a strong view. It is true that the Judge used strong language. But the Judge said he would hear argument, and proceeded to hear evidence which dealt with this point and other points. He did so over the course of two days.

I agree that some of the language that the Judge used was inappropriate and regrettable. The Judge's patience clearly was tried, and it is equally clear that the Judge gave vent to a feeling of frustration in a manner in which he should not have done. But having examined the transcript of the application which, as I said, occupied two whole days, it emerges that the exchanges between Judge and counsel about the meaning of s 47DA were sharp, but relatively infrequent. The Judge was indicating a strong view, but the fair-minded observer will bear in mind that the point was a short point of statutory interpretation, and that as the hearing continued the Judge had further time to reflect on the point. There was no reason why that reflection should not strengthen the Judge's view. The fair-minded observer would also bear in mind that this point was only one of several points being argued on the r 9 application, although it was a key point. Several times the Judge expressed the view that the point on which he had strong views was only one of several points being argued.

I have formed the firm impression, from a consideration of the transcript, that it indicates nothing more than occasional somewhat intemperate language from the Judge in the course of testing the submission by counsel on a point which the Judge had had the opportunity to consider in advance, and on which the Judge had formed quite a firm view. There is nothing to suggest that the Judge might have a closed mind on the r 9 application as a whole, and nothing to suggest that he might not be willing to listen, within reason, to any relevant evidence and submissions that counsel might put on the points at issue.

I do not agree that the transcript indicates that the Judge acted with an air of resignation or exasperation. But even if he did, I would adhere to the view already expressed. The fact is that the r 9 application occupied two full days and then another hour or two, and for much of the time the Judge heard the evidence and submissions in silence.

As I have indicated, the peremptory manner in which the Judge refused the adjournment application was inappropriate, but the Judge immediately said that he would hear counsel, and continued to do so. And, putting aside the Judge's manner, it was appropriate for the Judge to require counsel to complete the submissions on the r 9 application in the relatively short time that remained, and to take up the disqualification application on the following day.

In summary, I reject Mr Quick's submission for these reasons. The Judge expressed a firm view on a point of law, perhaps the main point, being argued on an application before him, but after the Judge had the opportunity to read a detailed written submission. In doing so, and on other occasions during the application when the same point cropped up, the Judge used some inappropriate language, but this did no more than show that his view was a firm one. A judge may form a strong view on a point of law being argued before him as the argument progresses. In the present case, the argument should be understood as having begun when the judge considered the written application. The fact that the judge expresses a firm view as the argument progresses does not mean that the judge does not have an impartial and unprejudiced mind, as long as that view was formed after the judge has had an opportunity to consider the substance of the point, as the judge did here. The conduct complained of has to be considered in the context that the judge heard the r 9 application over the course of two days, and made it clear that he saw some merit in other points being taken.

In the circumstances, the fair-minded observer, knowing that the Judge had considered the written application before coming into Court, and understanding the nature of the point at issue, would not reasonably apprehend that the Judge might not have brought an impartial and unprejudiced mind to the resolution of the question. The observer would simply appreciate that having had the point brought to his attention, the Judge had formed a firm view on it. The observer would appreciate that this was only one point of a number of points being argued on the application. The observer would note that the Judge proceeded to hear the application at some length. The observer would appreciate that the ultimate issue was whether certain evidence should be excluded, and that all the Judge had done was express a strong view on the point of law that had a bearing, admittedly an important bearing, on that issue.

In my opinion, a fair-minded observer understanding the circumstances that I have identified, would not reasonably apprehend from the Judge's behaviour that there was a real possibility that the Judge would not bring an impartial and unprejudiced mind to the resolution of the questions that the Judge had to decide. The fair-minded observer would conclude no more than that, having considered the written application, the Judge was not persuaded that there was any merit in the submission advanced by counsel on the basis of s 47DA, and that nothing counsel had put to the Judge persuaded the Judge that he should change his preliminary view. The fair-minded observer would appreciate that the Judge had formed this preliminary view after considering the submissions contained in the written application.

Courts have said, time and again, how reluctant they are to fragment criminal proceedings by entertaining proceedings by way of judicial review directed to the conduct of criminal proceedings. However, were I satisfied that the Judge was disqualified by bias, I would not decline, in the exercise of the Court's discretion, to make an order in the nature of prohibition. An allegation that a judge who is to hear or is hearing a matter is disqualified by reason of bias, may be appropriate for determination by way of judicial review, at least if the issue arises early in the proceedings. Because the allegation goes to the heart of the regularity of the proceedings as a whole, it may be appropriate to deal with such a complaint by way of judicial review before the proceedings conclude. However, it is not necessary to consider the exercise of the discretion in this case.

I would dismiss the appeal against the Judge's decision. I would dismiss the application for judicial review.

PERRY J I agree that the appeal and the application for judicial review should both be dismissed for the reasons given by Doyle CJ.