MICHAEL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 100 (14 May 2007)

Court of Appeal (WA)|2007-05-14|Before: Steytler P

1 STEYTLER P: On 21 November 2005 the appellant was convicted, after a trial by jury, on a charge of assault occasioning bodily harm. He appeals against his conviction.

2 The prosecution case was that on 3 December 2000 the complainant, Robert Maughan, was in his front yard at 9 Tully Court in Bull Creek. The appellant and his family lived at 8 Tully Court, diagonally opposite Mr Maughan. There was a long history of ill feeling between the two. Mr Maughan saw the appellant and his wife outside their house. Mrs Michael got into her car and reversed out of the driveway. The appellant was on foot. Mr Maughan's evidence was that the appellant stepped outside his gate and spoke in an abusive manner to Mr Maughan. Mr Maughan replied, "Look, I'm sick of this ... Just come over here" and pointed to the ground in front of him. The appellant responded by saying, "You come over here". The two men approached each other on the road. As they drew closer, the appellant reached into his pocket, pulled out a can of pepper spray, extended his arm and sprayed Mr Maughan while the two men were still more than a metre apart. With his face and eyes stinging from the spray, Mr Maughan threw the appellant to the ground. The appellant again sprayed him with the pepper spray. He did so for several seconds, directly into Mr Maughan's eyes. Mrs Michael, who had driven down the street, saw the confrontation in her rear view mirror. She turned the car around, stopped it, got out and attempted to pull Mr Maughan away from her husband. Mr Maughan went back into his house. He was taken to hospital. There, he was diagnosed with ulcerated eyes, conjunctivitis and keratitis.

3 The State supported its case with film footage taken from security cameras installed on the appellant's property. The prosecutor also tendered a videotape of an interview of the appellant by police officers in the course of which the appellant admitted that he "may have sprayed [Mr Maughan] initially when he came towards me but it's long distance".

4 In his oral evidence at the trial the appellant (who represented himself) denied that he sprayed Mr Maughan while Mr Maughan was walking towards him. He said that he sprayed Mr Maughan only once. This was after Mr Maughan had attacked him and thrown him to the ground. The appellant's case was essentially one of self-defence.

5 The appellant adduced evidence to the effect that the can of pepper spray that he had carried had not been full enough to be used twice. He also adduced a good deal of evidence about the history of neighbourhood disputes between him and Mr Maughan. However, the crucial issue for the jury appears to have been that of whether the appellant sprayed Mr Maughan before or after he was thrown to the ground.

6 The trial, which had been set down for five days (which the trial Judge thought to be "a very long time for a trial of this nature": transcript 128), lasted for six days. It is not in dispute that the length of the trial was primarily attributable to the conduct by the appellant of his defence. He insisted on leading evidence that was of peripheral value, at best. He constantly disputed rulings that had been made by the trial Judge and, on some occasions, ignored them. This led to relations between the appellant and the trial Judge becoming very strained.

7 There are two other aspects of the conduct of the trial that might be mentioned at this stage.

8 The first of these relates to the defence of provocation. Although the appellant had led a good deal of evidence concerning the history of ill will between himself and the complainant, he did not raise a defence of provocation in his closing address. Notwithstanding this, the trial Judge left the issue with the jury in the course of his summing up.

9 The second issue relates to character evidence. The appellant attacked the character of some of the prosecution witnesses. This led to the tender, during the course of the prosecutor's cross-examination of the appellant, of a certificate which revealed that the appellant had been declared a vexatious litigant under the provisions of the Vexatious Proceedings Act 2002 (WA).

10 The appellant, who was represented by counsel at the appeal, raises four grounds of appeal. These are as follows:

"Ground 1

The learned trial Judge erred in law in failing to direct the jury at all as to the use it could make of the admission against interest made by the appellant in his video recorded record of interview with police on 15 December 2000.

Ground 2

The learned trial Judge, once evidence of the appellant's bad character was adduced through his cross-examination by the learned prosecutor, erred in law in failing to properly direct the jury as to the limited use it could make of this evidence.

Ground 3

The learned trial Judge erred in law in failing to properly direct the jury as to the defence of provocation:

(a) by stating that the objective test is whether the wrongful act or insult 'would' cause an ordinary person to lose the power of self control rather than whether it 'could';

(b) by stating that the jury need not have regard to the prior history of the relationship between the appellant and the complainant when considering the question of whether the appellant was provoked.

Ground 4

The learned trial Judge erred in law in failing to discharge the jury when it became evident that the appellant would be unable to receive a fair trial due to:

(a) the learned trial Judge and the appellant having repeated exchanges in the presence of the jury which could only have had an adverse effect upon the jury's assessment of the appellant;

(b) the learned trial Judge's comments to the appellant both in the presence of and in the absence of the jury which gave rise to a reasonable apprehension that his Honour may not have been entirely impartial."

11 The following exchange took place between the appellant and the prosecutor during the course of the appellant's cross-examination by the prosecutor (transcript 537):

"In the interview with the police that was video-recorded, the policeman said, 'When did you spray him?' and your answer was, 'When we were down, the main spray. All I remember, that's when we were down,' and the police officer says to you, 'The main spray,' and you say, 'The main spray. I may have sprayed initially when he came towards me but it's long-distance. I don't know. It's a statement here [sic] and I stick to the statement because it's a long time now and I'm very disturbed about the whole [sic].' So what did you mean, 'I may have sprayed initially when he came towards me'?---Well, as I said, after that I may be wrong. There's differently [sic, query "definitely"], I will not have sprayed unless he attacked me and I don't think he did attack me in the street."

When further cross-examined in this respect, the appellant said (transcript 539) that he had found the interview "to be very, very uncomfortable" and that, if he had said what was put to him, that was "just incorrect". He also said (transcript 540) that he was "petrified" during the course of the interview.

12 Consequently, while the appellant admitted that he had told the police that he might have sprayed Mr Maughan when he was still coming towards the appellant, he denied that he had in fact done so. The appellant contends that in these circumstances the trial Judge was required to direct the jury not to act on the admission unless satisfied beyond reasonable doubt that it was truthful and accurate. No such direction was given.

13 It is plain that the appellant's prior statement was relevant, not only to his credibility (in the sense that it contradicted his evidence in court), but also to proof of the alleged offence (if the admission was true, it might have been taken to support the State case that the appellant was the aggressor). If the use to which the statement might have been put had been confined to credit, it would have been necessary for the trial Judge to direct the jury accordingly: Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 536. However, because the statement was relied upon, also, as an admission against interest (transcript 773 - 775), counsel for the appellant, relying largely on Cotic [2000] WASCA 414; (2000) 118 A Crim R 393, contends that the jury should have been given the direction to which I have referred.

14 In Cotic, the applicant had been convicted of three drug offences, being possession of methylamphetamine with intent to sell or supply, possession of heroin with intent to sell or supply and possession of cocaine. The applicant had participated in a video-recorded interview, in the course of which he had in effect admitted his guilt. However, he claimed that the confessions were false and that he had made them only in order to obtain bail. The court, (Kennedy, Wallwork and Miller JJ) relying upon Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258, Perera v The Queen [1986] 1 Qd R 211, D'Orta-Ekenaike v The Queen [1998] 2 VR 140 at 147 and Robertson v The Queen [1998] 4 VR 30, concluded that the trial judge should have directed the jury that, before acting upon the confession, they were required to be satisfied that it was truthful and accurate.

15 However, Cotic, and each of the cases upon which the court relied, was a case in which there was a full confession of guilt. In Burns, the only evidence implicating the accused was a confession which he had allegedly made to police but which he denied having made. In Perera the appellant was said to have confessed his guilt in the presence of police officers. In D'Orta-Ekenaike the Crown had contended that the applicant's plea of guilty at a lower court was conclusive evidence of his guilt. In Robertson it was contended that the applicant had told the complainant that he would plead guilty in respect of her allegations against him unless he was advised by his solicitor to do otherwise. In cases of this kind in which there is in effect a full confession, the making of which or the truth of which is disputed, the jury should be told that they must be satisfied that it was made and that, if made, it was true before they can rely upon it. However, as Barwick CJ, Gibbs and Mason JJ said in Burns at 261:

" ... [A] confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case."

16 In this case, all that the appellant said was that he "might" have sprayed Mr Maughan "initially" when Mr Maughan was walking towards him and while he was still some distance away. That left open the prospect that he did not in fact do so and also the prospect that, if he did, the spray would have been ineffective. It might also have left open the possibility of self-defence. As to this last possibility, the appellant said, in the course of his evidence (transcript 537), that Mr Maughan was running towards him and that he did not retreat behind his gate because his wife was "still in the road" (transcript 538). He also said that his philosophy was to "run out of [sic: 'run away from'] problems" and that that is why he had a fence around his home (transcript 537).

17 In his summing up to the jury, the trial Judge repeatedly made it clear that the State was required to prove its case beyond reasonable doubt (transcript 803, 804, 805, 812, 815 and 820). Moreover, when dealing with the issue of self-defence, and after saying (transcript 810) that the State contended that this issue was not raised because the appellant had been "the first attacker", the trial Judge went on to say (transcript 811):

" ... [The prosecutor] says ... you can look at the evidence of Mr Maughan and look at the evidence of the video [this is a reference to the security camera footage] and you can be satisfied of that beyond a reasonable doubt."

He then recited the appellant's version of events in this respect. It must have been apparent to the jury, from this and from the repeated reminders of the need to be satisfied beyond reasonable doubt, that they could not convict the appellant unless satisfied on the whole of the evidence that he was the aggressor. It must also have been apparent to them that, in considering that issue, they could not rely upon the alleged admission against interest unless satisfied that it was true and that it was, in fact, an admission against interest. This was reinforced when the trial Judge told the jury (transcript 815), after summing up the prosecution and defence cases, that his only advice to them was to "find out what the facts were first, that you find to be proved" and then "decide whether the charge has been proved beyond a reasonable doubt".

18 In all of the circumstances, I am not persuaded that anything more was required or that the failure to give the direction contended for led to a miscarriage of justice.

19 The certificate issued pursuant to the Vexatious Proceedings Act was tendered, at least in part, as evidence of the appellant's bad character (see transcript 559 - 560). Because it showed that the appellant had previously initiated groundless proceedings in order to harass others (see s 3 of the Vexatious Proceedings Act), counsel for the appellant suggests that it is possible that a jury might infer from the certificate that, because the appellant had previously issued groundless proceedings, he was liable to make baseless statements in the criminal proceedings against him. He contends that it was consequently necessary for the trial Judge to direct the jury that they were not to rely upon the contents of the certificate as evidence tending to establish the guilt of the appellant. No such direction was given.

20 Counsel for the appellant relied on what was said in Donnini v The Queen (1972) 128 CLR 114. That was a case in which evidence of the accused's prior convictions had been placed before the jury. Barwick CJ said (at 123):

"It seems to me ... that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused. To so use the fact of prior conviction is to cut across a deeply entrenched policy of the law. Therefore, the not unnatural tendency of the juryman and the importance of that policy seem to me to require that the trial judge, when evidence of prior conviction is properly before the jury for the sole purpose of combatting a suggestion of good character or to weaken or destroy an accused's credibility, must assist the jury by expressly and with emphasis telling them that they may not use the fact of prior conviction as tending to the guilt of the accused. In my opinion, in such a case, he should tell them quite clearly that the fact of prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with witnesses for the Crown, or as to exculpatory facts or claims which he makes. Where the evidence of prior convictions or of bad character or tendencies is properly admitted for other purposes, it may be that a clear statement of the use to be made of the evidence for those purposes may suffice."

21 In this case the evidence of bad character showed only a tendency to make baseless allegations and to harass others through legal proceedings. It is difficult to imagine that the jury could have thought that this, in turn, revealed a tendency to engage in any form of physical violence. Rather, it seems to me that the jury could not sensibly have believed that the certificate was relevant to anything other than the appellant's credit and, perhaps, as an aid in understanding the background of animosity between the appellant and the complainant (and between the appellant and others).

22 Moreover, the trial Judge directed the jury in the following way concerning the character evidence (transcript 813 - 814):

"Generally in a court case the jury doesn't get to hear about people's backgrounds except in the most general terms and certainly not things that are adverse to them ... [Y]ou don't normally hear much about people's background because it's really irrelevant to the facts of the day, but the law is that if you attack someone else's credibility, if you start accusing them of various things, whether they are criminal in nature or just go to their credit and credibility, then the law is that it's fair enough for you to attack them, then your own past can be opened up as well.

You might think that sounds fair. So you heard something about the history of legal proceedings between ... [the appellant] and other people in the street including the Maughans and also including the police officers who are involved in this matter, and you heard something about some proceedings that the attorney-general brought under what's called the vexatious litigants legislation [sic]. All that really should be irrelevant. It only came up because of what different people were saying about each other.

As I say, the Maughans really are describing ... [the appellant] as being impossible to live near and ... [the appellant] is accusing them of the same thing. You have heard various versions of those things, you have heard all sorts of matters discussed which in a normal court case just wouldn't even be open. As I say, really what you have got to do is focus on what happened on 3 December 2000 against the background that there was bad blood between these people and it had been bubbling along or boiling over or whatever it was doing for years."

23 It seems to me that it would have been plain to the jury, from this, that the certificate had no other relevance to the question of what happened on 3 December 2000 than to reveal something of the background between the persons involved. Indeed, the direction may have been favourable to the appellant. That is because the jury may well have understood, from the trial Judge's comment that the evidence concerning the certificate should be irrelevant other than as background evidence, that it had no bearing on the credit of the appellant.

25 Although the appellant, in answer to a question put to him by the trial Judge, suggested, early in the course of the trial, that his cross-examination was "building up to this case of provocation" (transcript 212 - 213 and see also transcript 309 - 310), he did not raise a defence of provocation in the course of his closing address. Moreover, when cross-examined by the prosecutor he repeatedly denied that he had sprayed Mr Maughan until after Mr Maughan had brought him to the ground. He said, in that respect, that he had "no reason" to spray Mr Maughan before that time (transcript 534). He also said (transcript 539) that "emotionally, ... [he had] no reason to spray somebody coming".

26 Notwithstanding this, the trial Judge left the issue of provocation with the jury. In the course of directing them in that regard, he said (transcript 811 - 812):

"Provocation is something, an act or an insult, which is likely, when done to an ordinary person ... to deprive them of the power of self control and lead them to assault the person who insults them or acts against them. What the law says is ... [you] are justified or excused if by the act or insult of another person which would cause a reasonable person to lose their self-control - if you, in fact, lose your self control and act suddenly before you can cool down ... So you have a series of things that you would have to satisfy. It has to be an act or an insult that would cause an ordinary reasonable sober person to lose their power of self-control."

27 Then, after mentioning other factors relevant to provocation, the trial Judge went on to say (transcript 812):

"So if you think about those for a minute you will appreciate that nothing that has been done before 3 December 2000 could possibly constitute justification or excuse by way of provocation because you have to do it, you have to respond before you have time to cool down so anything that happened before 3 December 2000 could not possibly be provocation for something that happens on 3 December."

28 A little later (transcript 812), the trial Judge told the jury that the State was required to prove beyond reasonable doubt that if the appellant assaulted Mr Maughan "he was not justified or excused either by self defence ... or by being provoked by circumstances that would cause an ordinary, reasonable person to lose their temper ... ".

29 The appellant's first complaint is that the trial Judge misdirected the jury by repeatedly telling them that the provocation must be such as "would" cause a reasonable person to lose self control. It is not in dispute that he was in error in that respect. Section 245 of the Criminal Code (WA) defines provocation, in this context, as meaning, amongst other things "any wrongful act or insult of such a nature as to be likely, when done to an ordinary person ... , to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered" (my emphasis). Consequently, although the trial Judge was initially correct in his description of this element of the defence, he subsequently overstated it through his use of the words "would cause".

30 The position under s 245 is relevantly similar to that at common law: see Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 at 320; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58 at 66 and Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 at [34]. In Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601 at 612 - 613, Gibbs J, speaking of the common law, said that in considering a question of provocation it is necessary to apply a subjective and an objective test, namely, "did the provocation in fact cause the accused to lose his power of self control, and could a reasonable person so provoked have lost his self control and acted as the accused did?" (my emphasis). Similarly, in Masciantonio at 66, Brennan, Deane, Dawson and Gaudron JJ said that the provocation "must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did" (my emphasis).

31 However, after giving the directions to which I have referred, the trial Judge provided the jury with a copy of the relevant portion of s 245 of the Code (transcript 822). It seems to me to be most unlikely, once they had the terms of the section before them, that the jury would have made any mistake in that respect. If they remembered that the trial Judge had used the word "would", it seems to me to be very probable that they would have understood this, in the light of the printed material, to have been a reference to "would be likely to".

32 In any event, I am not persuaded that the misdirection led to a miscarriage of justice. That is because it is difficult to see how any issue of provocation arose, at least in circumstances in which self-defence would not also have arisen. Plainly, if events happened as the appellant described them, he acted in self-defence. I have said that his evidence was that the complainant had assaulted him after walking towards him and that he had then used the spray in order to protect himself. He denied using the spray at any other time. I have also said that the complainant's evidence was that, after the appellant had abused him, the two men had walked towards each other and the appellant had sprayed him with the pepper spray while they were still more than a metre apart. The mere fact of walking towards the appellant could not, in the circumstances, have amounted to provocation. If Mr Maughan did so with the obvious intention of assaulting the appellant then, if this gives rise to a defence, it would be one of self-defence. Moreover, even if the issue of provocation was technically open on the evidence, it was an issue remote from the way the appellant conducted his case at trial: see, in this respect, Heron v The Queen [2003] HCA 17; (2003) 77 ALJR 908 at [11], per McHugh J.

33 The appellant's second complaint is that the trial Judge erred in telling the jury that they need not have regard to the prior history of the relationship between the appellant and the complainant when considering the issue of provocation. There was, in this respect, a good deal of evidence of marginal, if any, relevance concerning various neighbourhood conflicts that had preceded the events of 3 December 2000. The allegations made by the appellant in that regard in the course of the trial covered issues ranging from the trivial to the criminal. For example, he claimed that the complainant had peered over his fence while watering a neighbour's lawn (transcript 212 - 213, 243, 259 - 260, 264 - 265, 328), that the complainant had harassed his wife and son at his son's school (transcript 309 - 310, 622 - 624, 625, 666) and that the complainant had "jammed" the appellant's electronic gate with a remote control, damaging Mrs Michael's car in the process (transcript 219, 539, 563, 637, 742 - 744).

34 I accept that, after telling the jury that events prior to 3 December 2000 could not possibly amount to provocation for something that happened on that day, the trial Judge should have gone on to say that the history of ill will might be relevant as serving to identify the implications of the complainant's conduct on 3 December and to affect the gravity of any particular wrongful act or insult relied upon: Stingel at 324. However, as I have already said, it is difficult to see what act or insult there might have been, even on the appellant's evidence, that would not also have given rise to a defence of self-defence. Moreover, the trial Judge did go on to say, a little later in the course of his summing up (transcript 813), that, although the jury was "essentially ... concerned ... to find the facts of what happened on 3 December", they could "bear in mind that there was a history of bad blood" and that they could also bear in mind "what each of the protagonists ... has said about what caused that history of bad blood".

35 In those circumstances I am not persuaded that any error in this respect led to any substantial miscarriage: s 30(4) of the Criminal Appeals Act 2004 (WA). Ground 3 consequently fails.

36 I have said that, over the course of the trial, relations between the appellant and the trial Judge became strained. This seems plainly to have been a consequence of the fact that the appellant repeatedly disputed, and sometimes ignored, rulings of the trial Judge in such a way as to considerably lengthen the trial. This behaviour was taken to the point at which the trial Judge obviously formed the impression that he was being deliberately provoked. I should say, in this respect, that counsel for the appellant very properly acknowledged that the trial Judge's patience had been "sorely tested" by the appellant's conduct.

37 The trial Judge undoubtedly became frustrated and irritated by the appellant's behaviour. This manifested itself in a number of ways. One of these was that he was often critical of the appellant both in the presence and in the absence of the jury. Most of his criticisms related to the appellant's frequent and argumentative objections made during the course of the trial, sometimes in respect of rulings by the trial Judge. For the most part, the trial Judge seems to me to have dealt fairly and patiently with the objections. However, in some instances he obviously ran out of patience. The most serious manifestation of this occurred on the fifth day of the trial, in the course of a series of exchanges between the appellant and the trial Judge. All of these occurred in the absence of the jury. One of the exchanges involved an attempt by the appellant to correct a comment made by the trial Judge. The trial Judge responded (transcript 690) by saying that nothing that he said was correct and that the only time that he was correct was when he agreed with the appellant. The appellant retorted that he had "never seen something as bad treatment as that" to which the trial Judge responded, "And I've never seen such an impossible man as you".

38 This was followed by an exchange (transcript 693) in which the trial Judge told the appellant that he was not going to keep explaining everything to the appellant "just because ... [the appellant wanted] to waste more time or abort the trial ... ". The appellant then asked the trial Judge, "You think I enjoy the whole thing for five years?". The trial Judge answered, "Yes. Probably".

39 Another exchange (also in the absence of the jury), took place a little earlier in the trial after it had become apparent to the appellant that the trial Judge had read the judgment pursuant to which the appellant was declared to have been a vexatious litigant. The appellant asked the trial Judge why he had read the judgment (transcript 461). The trial Judge responded by saying that he had anticipated that it would "come up". After a number of further exchanges, the appellant suggested that every litigant in person who had "been in court" was declared to have been vexatious. The trial Judge responded by saying that this was "rubbish" and also that it was "absolute rubbish" (transcript 461). Then, after some debate in respect of words used by the trial Judge during the course of these exchanges, the trial Judge said (transcript 462):

"Don't argue with me, man. I anticipated that ... [the issue of the certificate] might [come up] because you are the sort of person who is the subject of this order, that's why."

40 Counsel for the appellant also complained of a number of exchanges which occurred in the presence of the jury. Some of these relate to exchanges in the course of, or leading up to, rulings made by the trial Judge by which he restricted the appellant from cross-examining witnesses in respect of some of the history between the complainant and himself (see, for example, transcript 307 - 310 and also transcript 186, although in the latter case the exchange took place in the absence of the jury). Others relate to instances in which the trial Judge admonished the appellant for not adhering to his rulings (see for example transcript 307, 310 and 312). Still others relate to rulings by the trial Judge which were said to have been wrong.

41 Although counsel for the appellant necessarily accepted that the trial Judge was entitled to make rulings, to require adherence to them and to admonish the appellant when he did not comply with the rulings, he submitted that the trial Judge had gone too far in the way in which he did these things. So, for example, he points to an exchange which took place at transcript 307 - 310, in which the trial Judge, after taking issue with what he took to be irrelevant cross-examination, told the appellant to "get to it". The trial Judge also then told the appellant that, although the appellant had told him half an hour previously that he would be another 20 minutes with his cross-examination, the appellant was still proceeding with that cross-examination and that he was eliciting information that the trial Judge considered to be irrelevant.

42 Counsel for the appellant also referred to occasions (see, for example, transcript 310 and 312) upon which the trial Judge told the appellant not to give him lectures on the law. Another complaint relates to an exchange that took place after the trial Judge had made a ruling against the appellant (transcript 330). The appellant said of the ruling, "It's really not fair". The trial Judge responded by saying, "Isn't it? I've allowed it, Dr Michael". The appellant again took objection to the ruling. The trial Judge responded by saying, "You take objection to all sorts of things".

43 There are many other complaints regarding comments made by the trial Judge in the presence of the jury concerning the appellant or the manner in which he was conducting his case. I will refer only to those instances which are said to be more serious.

44 The first of these related to an incident on the morning of the third day of the trial. The appellant, after being brought into the courtroom, told the trial Judge that he was "not feeling well at all". He said that he had hit his head on something hard. He wanted a short adjournment to see a doctor (transcript 387). The trial Judge responded by saying:

"I'm not sure what you've hit your head on but I'm sure - I've been told you've had a couple of Panadol. You've had a 10-minute break. I'm sure you're all right."

The appellant then told the trial Judge that he could hardly see. The trial Judge responded by saying, "Do your best, and we'll struggle on". He told the sheriff to bring in the jury.

45 The videotape of the appellant's interview by the police was then shown to the jury. Shortly after the videotape had begun to play, the appellant told the trial Judge that he had to see a doctor (transcript 387). He said that he was "very, very sick". After asking the appellant to be quiet while the tape was turned off, the trial Judge told the jury that they "can see what's happening" and that, if they went into the jury room, "we'll see what we can do". The transcript reveals that, by the time the jury had left the Court, the appellant was lying on the floor. The trial Judge said, in this respect (transcript 389):

"Would somebody ... like to tell me what has brought this on, because at the moment it seems to me that it may well be an attempt simply to manipulate the trial process."

He was told by a security officer who had brought the appellant into the courtroom that the security officer had not seen or heard the appellant strike his head in that process and that the appellant had complained of an injury only when he was in the courtroom. The trial Judge then said (transcript 389):

"Yes. Well, if Dr Michael thinks that he can manipulate the trial process by feigning illness, then he's mistaken. The trial is proceeding. I will allow a five-minute adjournment and then we will see what happens. If he wants a doctor, he's got family in the precincts, they can organise a doctor to come here. He has had a Panadol. If all he's done is hit his head, it seems to have been either nonexistent or very slight, then we will allow him a short adjournment, but this trial is going on. It's five years since this complaint was laid and it's now in its third date. There's a long history of behaviour which has resulted in a whole series of court proceedings, and it's time this nonsense came to an end. Court is adjourned for five or 10 minutes."

46 When the trial resumed (still in the absence of the jury) the appellant was still on the floor and his wife was present. The trial Judge asked her if she was Mrs Michael. When she confirmed that she was, he said (transcript 390):

"Mrs Michael, he has said that he is unwell and unable to continue. I frankly don't believe it ... I think he is trying to disrupt the proceedings ...

I have said that if he wants a doctor brought to court he can bring a doctor to court and we will review the matter in the light of what the doctor reports but I am not prepared to disrupt this trial any further. If he wants to he can go back to detention and stay there until the doctor sees him and we will proceed with the trial in his absence. We are at a stage in the proceedings where his record of interview has been started. There's about another hour to go. We will watch it in his absence.

He's already seen it or he has a copy of it and the transcript. He doesn't need to see it, in my view. He knows perfectly well what happened. He was there himself. At the end of that we will have a break and we will review the position then. I can't see any reason at all why this trial should go on in this way and I simply, as I say, do not believe that he is ill as he says. Now, if you wish to get a doctor you can get a doctor and he can see him in detention. If you don't wish to get a doctor he can either sit in detention or somewhere else in the precincts of the court waiting while the tape is played or he can sit in court and watch the tape played himself. The decision is his. I am going [to] allow five or 10 minutes for you to have a family consultation to see what you wish to do."

47 Mrs Michael responded, saying that she had arranged for a doctor to attend, that her husband had hit his head on a steel bar and that he had been "fine coming into court" but that he had then developed a headache and blurred vision. She took issue with the trial Judge's suggestion that her husband was only pretending to be ill. The trial Judge, having listened to this, said, "You are his wife. You're entitled to your views" (transcript 391).

48 After a 10 minute adjournment, the trial Judge asked the appellant (still in the absence of the jury) whether he wished to wait in detention or in the courtroom while the videotape was played (transcript 392). The appellant told the trial Judge that he heard some of what had been said about him and that it was "very unfair". He said that he wanted to see the doctor because the trial Judge had accused him of "making it up". The trial Judge responded by saying, "I did exactly. You have got that exactly right. Now, do you wish to stay while we play [the video]?". After a number of further exchanges the appellant elected to wait in detention.

49 After the jury had returned, the trial Judge said (transcript 394):

"Ladies and gentlemen, as you can see, Dr Michael is not now in court. We are playing a video of a record of interview that he made with the police, as you have heard. We will go back to where we started this morning and replay that part. He has been supplied with a copy of the transcript; that is the written words, and he has a copy of the video itself. He was supplied with those earlier, not today. As he was present at the record of interview and as he says he [is] still recovering from whatever he says is wrong with him he has decided that he will stay outside until the video record of interview is played with [sic] you. We will see it now and then we will have a short break I hope when I can see what his position is."

50 Once the videotape had been played to the jury, and after another short break, the appellant returned to the courtroom. He cross-examined the police officer who had conducted the videotaped interview. Shortly prior to the luncheon break the appellant asked if he could have an opportunity of viewing the videotape during that break. The trial Judge was reluctant to let him do so. He said (transcript 436) that the appellant had had a copy of the videotape for a long time and that he had chosen not to see it that morning. The appellant responded by saying that he had made no such choice, and that he was "very, very sick". The trial Judge then said:

"Yes, well, you've made a very good recovery so if would you like to ask some more questions finish your cross examination."

After asking some additional questions in the course of his cross-examination of the police officer, the appellant again asked if he could view the videotape over the luncheon break. He was given permission to do so. The jury retired for lunch and arrangements were made to enable the appellant to view the videotape.

51 On the following day, while the appellant was being cross-examined, reference was made to the videotape. The appellant said (transcript 543), "I did not have the time to say [sic: 'see'] it all yesterday even if his Honour allowed me to ... ". The following exchange then occurred between the trial Judge and the appellant:

"Sorry, what do you mean by 'Even if his Honour allowed me to'?---You allowed me to see the video yesterday during lunchtime, your Honour.

I did allow you to see it and you were given access to it over the lunchtime, weren't you?---I didn't see the whole lot, sir.

No, but that was your choice, wasn't it? Do you want me [to] call my clerk of arraigns to tell us what he said to you and what you said to him?---Yes.

I'm told that he asked you which bits you wanted to see and you said there were only a couple of short bits that you needed to see?---Well, sir, I was so concerned about the ...

You see, you're giving the jury the impression that I have stopped you watching the video yesterday?---No, that's not what I said. I said you can't ...

You were given access to it over lunchtime?---Yes.

And you decided which bits you wanted to see?---I admitted that.

And you decided which bits you wanted to see?---Your Honour, yes.

You decided which bits you wanted to see. Yes or no?---Well, yeah, what I felt was important parts, your Honour.

Yes, so you were given access to it over the lunchtime?---Yeah, well, I just did not like Mr ...

Don't give the impression to the jury that I am stopping you from seeing things?---I have never said that, your Honour.

I thought you were doing it a minute ago?---I said you kindly allowed me to see it yesterday at lunchtime. I repeat that again. You've never stopped me. I'm sorry, when did I say that? Did I say that just now?

I thought you did. If I'm wrong I'm wrong ... "

52 It is not in dispute that the trial Judge had misunderstood the appellant and that, by using the words "even if" in his comment to the prosecutor, the appellant had meant "even though". Counsel for the appellant contends in this respect that, because of this misunderstanding, the trial Judge directly questioned the credibility of the appellant but did not subsequently confirm to the jury that he had been wrong in his understanding of what the appellant had said.

53 Complaint is also made of a number of instances in which the trial Judge is said to have commented on the evidence in a manner that was demeaning of the appellant. One example mentioned by counsel for the appellant relates to a question, asked by the appellant of the investigating officer, as to why the 24-hour surveillance tape from his home camera had been edited down to only one or two minutes. The trial Judge answered that question himself (transcript 415). He said:

"Perhaps it's because the police authorities didn't think it was necessary for the jury to watch 24 hours of tape for an incident that took a minute or two."

Another example mentioned by counsel for the appellant concerns evidence given by the appellant in the course of cross-examination, when he said that he was intimidated by police shortly prior to his video-recorded interview and that, during the course of the interview, he had been looked at in such a way as to make him continue to feel intimidated. The trial Judge interjected and the following exchange took place:

"Are you putting it to us that the senior sergeant looked at you in such a way that you were intimidated and prevented from leaving and had to give the interview? Is that your ... ?---I felt that's the way, your Honour.

All right. Well, I'm sure the jury can look at the [videotape]."

54 It is unnecessary to provide further examples of exchanges in respect of which complaint is made. The foregoing gives the flavour of what took place at different times during the trial (although there were many other occasions where the trial Judge appears to have treated the appellant with patience and courtesy). I have set out all of what are said to be the more serious examples of the behaviour complained of.

55 The appellant's contention, raised by ground 4, is one of failure to discharge the jury when it became evident that the appellant would be unable to receive a fair trial, for two reasons. The first is that the trial Judge's comments to the appellant, both in the presence of and in the absence of the jury, gave rise to a reasonable apprehension of bias. The second is that the repeated exchanges which took place between the appellant and the trial Judge in the presence of the jury could only have had an adverse effect upon the jury's assessment of the appellant. These propositions raise a number of considerations. Amongst these is the fact that the question whether there has been a reasonable apprehension of bias, on the one hand, and whether there has been a fair trial, on the other, do not involve identical considerations. Also, when considering the responsibilities of a trial judge, it is important to bear in mind that the tension between the need to control the proceedings, on the one hand, and to be, and be seen to be, dispassionate and impartial, on the other, can sometimes be in tension, with the result that the line between acceptable and unacceptable behaviour can be difficult to draw. The difficulty is compounded when one of the litigants is self represented. It is compounded still further where the trial is a jury trial. I will explore some of these considerations before returning to evaluate the conduct of the trial Judge in the context of ground 4.

56 It is well established that the test to be applied 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: Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6], [83]. In a jury trial the judge is not the ultimate arbiter. However, he or she is frequently called upon to make decisions during the course of the trial in respect of such matters as the admissibility of evidence, the permissible limits of cross-examination and the fair conduct of the proceedings. It is consequently not difficult to envisage a jury trial in which fair-minded people might reasonably apprehend that the judge might not have brought an impartial and unprejudiced mind to the resolution of such questions, with a consequential lack of confidence that the accused person had had a fair trial.

57 The principle concerning apprehended bias gives effect to the requirement that justice should both be done and be seen to be done: Johnson at [12]; Ebner at [6]. This requirement reflects the fundamental importance of the principle that the tribunal be both independent and impartial: Ebner at [3] and [6].

58 In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [96] Callinan J said in this respect:

"Let it be assumed that there has been, in a particular case, in absolute terms, a fair trial but during it there was conduct by the judge in relation even to legal matters only, and in the absence of the jury, strongly suggesting otherwise. If fair minded observers unconnected with the litigation, and even informed to the extent that the law presupposes, were nevertheless to be left with the impression that the trial judge was apparently biased a new trial still might have to be considered as a possibility. Justice must be seen to be done: otherwise justice will not in fact be done. As Lord Denning MR said:

'The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

59 The test is of course objective. This is a consequence of the fact that it is founded in the need for public confidence in the judiciary and is not based upon the subjective assessment of one judge's behaviour by other judges: Johnson at [12]. However, the observer is taken to be reasonable and the judge under observation is "a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial": Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted by Toohey J in that case in the High Court at 584 - 585; Johnson at [12]. The reasonableness of the apprehension of bias should be considered in the context of ordinary judicial practice: Johnson at [13].

60 Next, it is important to understand how the apprehension of bias principle should be applied. In Ebner at [8] Gleeson CJ, McHugh, Gummow and Hayne JJ said:

"The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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."

61 In judging whether the principle applies, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. Galea v Galea (1990) 19 NSWLR 263 at 279; Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24 at [35]. In Galea Kirby A-CJ (as his Honour then was) said (at 279):

"A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing."

62 The distinction between a contention of apparent bias, on the one hand, and of unfairness in the trial, on the other, was highlighted in RPS. In that case Gaudron A-CJ, Gummow, Kirby and Hayne JJ said at [11]:

"The appellant's contention was cast in terms of apparent bias but it was not clear exactly what was meant by this. In particular, it was not clear whether it was being suggested that a fair-minded observer would have concluded that the judge had predetermined some issue. And, if that was what was being suggested, it was far from clear what issue or issues that would fall for decision by the judge (as opposed to the jury) would have appeared to have been prejudged. When pressed on this aspect of the matter, counsel for the appellant suggested that the trial judge had been antagonistic to counsel who had appeared for the appellant and that the conduct of the trial generally tended to undermine the defence case and bolster that of the Crown. But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. That is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge."

63 When the contention is one of an unfair trial, the test to be applied, according to Kirby A-CJ and Meagher JA (who agreed with Kirby A-CJ), is whether the impugned behaviour has "created a real danger that the trial was unfair": Galea at 281. If so, the judgment must be set aside: Galea at 281; E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146. In R v Mawson [1967] VicRp 23; [1967] VR 205, in which there had been excessive involvement or interference by the trial judge in the conduct of the case, the Court (Winneke CJ, Adam and Barber JJ) regarded the test as being whether there had been "such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice". The Court recognised that, in those circumstances, a miscarriage may result for any of a number of reasons, some of which they identified (at 207). That passage was quoted by Crockett and Teague JJ in Boykovski (1991) 58 A Crim R 436 at 444; by Crockett, Southwell and O'Bryan JJ in Cunningham (1992) 61 A Crim R 412 at 422 and by Ipp AJA (as he then was) in Thompson (Sully and Bell JJ agreed with Ipp AJA). In Thompson (at [36]) Ipp AJA, relying upon Mawson, also accepted that a departure from the due and orderly processes of a fair trial may amount to a miscarriage of justice or may infringe the principle that criminal justice must not only be done but must also appear to be done.

64 A trial judge is entitled to reprimand an accused person, even in the presence of a jury (although it will ordinarily be preferable to do so in the absence of the jury), when the accused person's behaviour calls for it: R v Smith [1967] Qd R 406. In Galea, at 283, Meagher JA suggested that, when a judge is confronted by a witness who is both deceitful and evasive, "there is no principle that he is not at liberty to express his measured displeasure at being trifled with".

65 Also, it will often be necessary, particularly with self represented litigants, for a trial judge to intervene in order to stop irrelevant matters being raised (Love (1983) 9 A Crim R 1 at 26) and to prevent unnecessary delays or disruptions: R v Morley [1988] 2 WLR 963; Galea at 279; Lars (1994) 73 A Crim R 91 at 125. In Johnson at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:

"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."

Indeed, a trial judge who does not intervene to prevent undue delay and to ensure that the parties focus on the crucial issues may be criticised by an appellate court: R v Wilson and Grimwade [1995] VicRp 11; [1995] 1 VR 163; Thompson at [39].

66 Next, a judge is entitled to ask questions of a witness, not only for the purpose of clarifying evidence, but also to test that evidence (R v Gardiner [1981] Qd R 394 at 406, 415; R v Senior [2001] QCA 346 at [36] per McMurdo P, Davies and Thomas JJA), although he or she should do no more than is absolutely necessary in that respect and should be careful not to take on the role of counsel.

67 Also, a judge is entitled to comment, even strongly, on factual issues (Guinan [2001] NSWCCA 55; (2001) 121 A Crim R 196) so long, of course, as the jury understands that they are free to ignore those comments. It is preferable that such comments, if they are to be made, should be made in the course of the trial Judge's summing up, where they might be coupled with a reminder that the jury are the sole arbiters of fact (but cp Guinan at 202, per Hulme J, with whom Meagher JA and Smart AJ agreed).

68 It is important, also, that the trial judge should protect witnesses from being required to answer irrelevant, embarrassing and scandalous questions and that questions put to witnesses by a self represented accused do not take the form of unsworn statements to the jury: Love (1983) 9 A Crim R 1 at 10.

69 Ultimately, it is the trial Judge's task to ensure that the proceedings are conducted in accordance with due process, fairly and impartially: In Marriage of F [2001] FamCA 348; (2001) 161 FLR 189.

70 Finally, judges should not be too ready to disqualify themselves from sitting: Galea, at 278 per Kirby A-CJ. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 Mason J said in this respect:

"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

71 Every judge knows that it is his or her duty to proceed in accordance with due process, independently, impartially and fairly. While judges are human, and can be expected to react with impatience or irritation from time to time, they are not expected to be rude: Lars at 133 (where the Court said that, while judges may be strong and forceful when necessary, they should, no matter what the provocation, always comport themselves with dignity). In Love, at 3, Wickham J said (in what might be a counsel of perfection) that:

" ... [F]ortunately the time has passed in the administration of the law in this State when a litigant, a witness or counsel is expected to put up with impatience or rudeness from the trial judge. Such conduct on the part of the judge may be understandable because of illness or provocation or stress due to the difficulties of the case, but it can never be excused. It is professional misconduct and should be roundly condemned. Such conduct does not necessarily lead to a miscarriage of justice but it might do so particularly where the trial is a trial by jury. Justice however will not often miscarry on that ground alone; usually other factors will be present to lead to that result."

72 There is, in this respect, an important distinction between conduct that might be regarded only as discourteous or impatient or even rude (in the sense that it leads to no other consequence), on the one hand, and conduct which (whether or not discourteous, impatient or rude) obstructs counsel in the doing of his or her work (R v Hircock [1970] 1 QB 67 at 72 per Widgery LJ; Love, at 11) or which invites the jury to disbelieve the accused or his or her witnesses, on the other. A judge's interventions should not be such as to create the impression that he or she has identified himself or herself with one of the parties: Tousek v Bernat (1959) 61 SR (NSW) 203 at 209; Galea at 280. Nor should the trial judge convey the impression to the jury, whether by interventions or otherwise, that the defence case is "hollow": Cunningham at 429, per Crockett, Southwell and O'Bryan JJ. In Mercer (1993) 67 A Crim R 91 at 94, Hunt CJ (with whom Grove and Sully JJ agreed) said that it is the duty of the Crown prosecutor, not the trial judge, to attack the credit of an accused as a witness. He went on to say (at 95):

"Where the evidence of a witness - any witness, including an accused - is such as to invite disbelief, it is a constant temptation for trial judges to make their disbelief apparent. It is a temptation which we have all faced, and no doubt we have all succumbed to that temptation at some time or other. There is usually nothing wrong in having done so where the judge is the tribunal of fact - provided that he does not intrude into the course of the evidence - but such conduct is fraught with grave danger where a jury is the tribunal of fact, and strong self-discipline is required to be exercised by trial judges in such cases: cf Hsing (1984) 12 A Crim R 196 at 200. But even if a trial judge does make it clear to the jury that he disbelieves a witness (including an accused) - provided again that he has not intruded into the course of the evidence - there has not been a miscarriage of justice unless the judge has by the expression of his view overborne the jury's own independent assessment of the evidence and of the guilt of the accused."

73 It will be important, in this context, to consider whether any prejudice created by the conduct of the trial Judge was capable of repair in the course of his or her summing up and, if so, whether it was repaired: Mercer at 96. In Lars, the Court doubted that prejudice to an accused person could be cured by a direction in a case in which the jury had gained an impression that the trial Judge had formed an adverse view of the defence. They said (at 142):

"In such circumstances, the traditional direction to the jury that they should disregard any expression of opinion by the trial judge would rarely be sufficient to overcome the resultant prejudice. To do so it would need to go far beyond cautioning the jury against accepting the judge's expression of opinion conveyed during the summing up and would need to emphasise to them the need to disregard any conduct of or remark made by the judge in the course of the trial which might be thought to convey that he had a view."

74 Senior is a case in which the trial Judge created an impression that he had formed an adverse view of the defence. The Court found that he had given the jury the impression that he had a strong view that the appellant's evidence was incredible in a number of respects and that they, too, should disbelieve it. The Court said that, by his comments, he may have overborne the jury's own assessment of that question (see at [36]). The Judges went on to point out (at [38]) that it is impossible, in many cases, to know what effect interventions of this kind have on a jury. They said that juries sometimes accept defences which appear highly improbable to judges. They also said that, the more improbable the defence, the more difficult is the task of defence counsel and the greater is the need for a trial judge to defer to defence counsel in the way in which the defence case is presented.

75 Similarly, in Thompson at [36], Ipp AJA, relying upon Mawson and Mercer, said that a miscarriage may result from the jury being led to believe from the Judge's intervention that he is himself convinced of the guilt of the accused person. He said that trial judges should not create the impression, by the way in which they question the accused person, that they have thrown their weight on the side of the prosecution.

76 If the conduct of the trial Judge unduly hampers the accused person in the presentation of a defence, this may well give rise to a miscarriage: Cunningham at 423; Mawson at 207 - 208 and Thompson at 31. Trial judges should avoid unnecessary interventions even if the defence is not unduly hampered by them: Cunningham at 423; Mawson at 207 - 208; and Thompson at [36] - [38]. For example, a trial judge should not engage in persistent hostile cross-examination of an accused person or, indeed, any witness: Senior (at [29]).

77 Any instance or instances of what, on the face of it, is unacceptable behaviour by the trial Judge must, as in the case of apprehended bias, be assessed in the context of the whole of the trial. I have earlier quoted what was said in this respect in Galea, at 279, by Kirby A-CJ. He went on to say, at 281, that the decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. He said (at 280) that Galea was a case in which the hypothetical lay observer would probably have been irritated by some of the appellant's behaviour, as the trial Judge had been, and "would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas".

78 There is of course a distinction, in this context, between a trial by jury and a trial by a judge alone. More latitude is permissible in the latter case: Galea at 281. Similarly, there is a distinction, in the case of a jury trial, between comments or interventions by the trial judge in the presence of the jury and comments or interventions in their absence. Although, as I have said, even comments and interventions in the absence of a jury can lead to a miscarriage or to the application of the reasonable apprehension of bias principle, there is less risk of unfairness if the ultimate decision-makers are not aware of the exchanges and consequently could not be influenced by them: Lars at 131.

79 It is important, also, to evaluate the conduct of a trial judge in the light of any provocation offered to him or her. Judges are not superhuman. While they are expected to exercise restraint and, in the vast majority of cases, to resist anything other than a measured reaction to provocation, there will be occasions (hopefully, very rare) when this is extremely difficult or even impossible. In such circumstances an isolated outburst, or even a few isolated outbursts, will not necessarily result in a mistrial. So, for example, in Love the appellant was told by the trial Judge, on more than one occasion, that he was "sick and tired of him" (at 10). However, the appellant in that case "broke all the rules of fair combat" despite the trial Judge's efforts to maintain order (at 11, per Wallace J) and had defied the trial Judge. He had also taken advantage of the position that had arisen (at 26, per Pidgeon J). The Court was not persuaded that there was any miscarriage in those circumstances.

80 In Morley the Court of Appeal was not satisfied that any miscarriage had arisen notwithstanding that the trial Judge had, from time to time, ordered that the appellant be removed from the Court and had even denied him the right to make a closing speech. The trial Judge had also commenced his summing up in the absence of the appellant. The Court of Appeal considered that the circumstances had been exceptional (at 974). The appellant had grossly delayed the proceedings, continuously argued with the trial Judge, repeatedly suggested that the trial Judge was behaving unfairly and refused to accept the Judge's rulings. There was no prospect that the appellant would confine his closing speech to matters that would be appropriate for him to raise (at 973 - 974).

81 Similarly, in Galea at 283 - 284, Meagher JA said of a situation in which the trial Judge had become irritated by the appellant:

"In my view, if a reasonable disinterested bystander had heard the passage at arms complained of in the present case he would not have reasonably apprehended that the trial judge was prejudiced, he would only have noted that an exceptionally irritating witness had eventually succeeded in irritating the judge."

82 In Lars (a case in which there had been unseemly exchanges between the trial Judge and counsel for one of the accused), the Court reached the conclusion (at 142) that, as a result of these exchanges and also because of excessive interventions by the Judge in the examination and cross-examination of witnesses, the atmosphere of the trial had become so tainted, adversely to each accused, that there could be no confidence in the fairness of the trial. However, the Court had earlier said (at 130):

" ... [C]ertain of his Honour's remarks after the verdict tend to suggest that he suspected Mr O'Loughlin [counsel for one of the accused] of adopting a deliberate tactic to produce a situation where the trial would have to be aborted and where any new trial which ensued would have to be before a different judge. If the latter was the reason ... such a tactic would have been a grossly improper tactic for counsel to employ, meriting the strongest criticism from this court and from the trial judge and making it a great deal easier to understand, although not to excuse, some of the exchanges which occurred ... "

The Court went on to conclude (at 131) that trial counsel had deliberately set out to poison the atmosphere in the courtroom either to cause the trial to abort or to create in the minds of the jury a perception that the trial was being conducted unfairly and that the Judge was biased against the accused, in the hope that the jury would underestimate the strength of the prosecution case or acquit despite it. Importantly, the Court considered that it was no answer to the appeal on this ground to say that the client had been bound by the conduct of his counsel. This was because counsel's conduct went outside the scope of the principle that counsel has a legal right to conduct the case without any regard to the wishes of his or her client (at 132).

83 Before leaving Lars, it is important also to note what was said by the Court (at 133), as follows:

"Every experienced trial judge knows that situations arise where judicial patience is sorely tried to the point where the judge is tempted to give vent to his or her personal feelings. There is perhaps no judge who has not on occasion yielded to the pressure of a difficult moment and responded inappropriately to provocative conduct, by counsel or a witness. An isolated instance of that sort would be highly unlikely to produce any miscarriage of justice. If, however, a judge departs in a significant, or repeated fashion from the high standards that our system of justice demands, his or her conduct may affect the fairness of the trial."

84 The situation is especially difficult when the accused person is unrepresented. There is no doubt that an unrepresented person is ordinarily at a disadvantage. That person would not only be ignorant of the criminal law but also of the rules of procedure and evidence: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 344 - 345; Justice Dean Mildren, "Don't give me any LIP - The Problem of the Unrepresented Litigant in Criminal Trials" (1999) 19 Aust Bar Rev 30. A trial judge's obligation to ensure that the trial is conducted fairly and in accordance with the law (MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 523, per Gibbs CJ and Wilson J) is consequently made significantly more onerous. In Love, Wickham J said (at 3 - 4):

" ... [T]rial by jury is a sophisticated process involving the application of rules of procedure and of evidence highly honed over the centuries for the purpose of reducing to a minimum the chance of error. It also requires a grasp of legal logic and of law beyond the usual capacities of a layman. When an accused is unrepresented by a qualified counsel at a trial by jury on indictment the difficulties for the accused, for the prosecutor, for the jury and for the judge are immeasurably increased. The ... [chance] of a miscarriage of justice either in the result or in the manner in which that result is achieved is likewise immeasurably increased."

85 Of course, lack of representation does not give the accused person a license to be as provocative as he or she chooses, especially when this is done with the motive of delaying the proceedings, aborting the trial or hoping to distract or gain the sympathy of the jury. As the Court pointed out in Cunningham at 419, an intelligent, articulate and quick-witted accused person can render it almost impossible for a judge to see that the trial is conducted with apparent fairness and reasonable expedition. If the trial Judge has done all that could sensibly be expected in that regard, any consequences of the accused person's behaviour will be visited on the accused person himself or herself. In those circumstances he or she can hardly be heard to say that the trial was unfair.

86 A reading of the transcript in the present case reveals that the trial Judge was repeatedly provoked by the then unrepresented appellant. No doubt, this was partly a result of the appellant's lack of familiarity with the law and, perhaps more importantly, the rules of procedure and evidence (although he is an experienced litigant). However, as I have said, it was undoubtedly also the result of the appellant's persistent refusal to accept rulings of the trial Judge, his determination to lead what was plainly irrelevant evidence and, seemingly, to draw out the trial and the highly argumentative and sometimes disruptive way in which he conducted his case. I have said that his counsel in the appeal properly acknowledged that the appellant had "sorely tested" the trial Judge's patience. I have also said that the trial Judge formed the impression that he had been deliberately provoked by the appellant.

87 When looked at in this context, the criticisms made of the appellant by the trial Judge, even those in which he displayed a degree of irritation and antipathy towards the appellant, were not difficult to understand, although it must be said that on some occasions he did not demonstrate the restraint which is expected of a judge (and which, as counsel for the appellant acknowledged, the trial Judge customarily exhibits). Moreover, the overwhelming majority of the trial Judge's criticisms of the appellant were justified (and it should not be overlooked that, as I have mentioned, the trial Judge generally dealt patiently with the appellant). In my opinion a fair-minded lay observer who observed the whole of the trial would not have been surprised by the trial Judge's evident irritation with the appellant, his comparatively frequent admonishments of the appellant and his occasional outbursts. There is no suggestion from counsel for the appellant that the trial Judge's rulings were incorrect (save for those that are the subject of specific grounds of appeal) or that the reasons expressed for making them were such as to give rise to a reasonable apprehension of bias. Nor is there any suggestion of unfairness in the trial Judge's summing up to the jury. The contention that there was a reasonable apprehension of bias rests only upon the propositions that the trial Judge repeatedly displayed frustration and irritation in respect of the appellant's conduct, that he displayed an adverse opinion of the appellant's credibility and that he commented adversely in respect of some of the evidence sought to be adduced by the appellant.

88 As to the contention that the trial Judge's conduct reflected an adverse opinion of the appellant's credibility, it seems to me that, to the extent that that is true (and I will return to this issue in more detail when dealing with the contention that the trial was unfair), the trial Judge's opinion seems plainly to have been formed during the course of the trial and not to have been a product of pre-judgment. Moreover, there is nothing to suggest that any adverse opinion formed by the trial Judge extended beyond peripheral issues, in respect of which it was not altogether surprising that he should have formed that opinion. The incredulity reflected in the exchanges concerning the appellant's health, after he claimed to have bumped his head, was lent some support by the comments of the security officer who had brought him into the courtroom (transcript 389) and by the delaying tactics which appear previously to have been adopted by the appellant during the trial. Any incredulity reflected in the exchange concerning the appellant's claim to have been intimidated during the course of his video-taped interview with the police is supported by the contents of the videotape itself, which reveal nothing of that kind. The incredulity reflected in the exchange as regards the question whether or not the appellant had been permitted by the trial Judge to view the videotape is acknowledged to have been the result of a misunderstanding.

89 The contention that the trial Judge displayed apparent bias in his comments concerning the evidence is based upon slender grounds. Counsel for the appellant gave only two illustrations of this (apart from the incidents that were said to reflect the trial Judge's adverse view of the appellant's credit). Neither of them supported his contention. The first concerned an incident during the appellant's cross-examination of one of the investigating officers. The officer had prepared a statement in terms identical to that prepared by another officer. When the appellant sought to make something of this in the course of his cross-examination, the trial Judge told the jury, in the absence of any evidence to that effect, that police officers often make identical statements (a comment that did not necessarily answer the point being made). While that comment was, with respect, unnecessary and unwise (reflecting, as it did, the trial Judge's experience rather than the evidence), it was not reflective of bias. The second concerned the cross-examination of a police officer by the appellant in respect of a violence restraining order which was said to have been taken out against Mr Maughan. The trial Judge pointed out to the appellant (transcript 436), in the course of restricting the ambit of that cross-examination, that violence restraining orders "can be obtained ex parte in the absence of the other party". That comment seems to me to have been directed only to the relevance of the cross-examination. I am unable to accept that it created any appearance of bias.

90 That leaves the repeated displays of frustration and irritation. In circumstances in which the trial Judge's behaviour in this respect is conceded to have been a product of the appellant's conduct in disputing, and sometimes defying, his rulings, I am not persuaded that a fair-minded observer would reasonably have apprehended any bias on his part, more particularly when regard is had to the fairness of his summing up. Rather, it seems to me that the bystander would have formed the opinion that the trial Judge was frustrated and irritated to the extent that, in some instances, he had behaved intemperately towards the appellant. I am unable to accept that a reasonable observer would have regarded the conduct of the trial as unfair or that he or she would have considered that the trial Judge's rulings, or any of them, might have been decided other than on the legal and factual merits of the issues before him: Ebner at [8]. I should add, in this last respect, that counsel for the appellant did not identify any issue falling for decision by the trial Judge (as opposed to the jury) which might reasonably have appeared to a lay observer to have been pre-judged: RPS at [11].

91 Consequently, insofar as ground 4 relies upon the existence of a reasonable apprehension of bias on the part of the trial Judge, I would not be prepared to uphold it. There is insufficient in the various matters raised on behalf of the appellant, taken together, to support that proposition.

92 That leaves the question whether the conduct of the trial Judge was such as to create a real danger that the trial was unfair. It is important to bear in mind in this respect that there is only a very faint suggestion that the appellant was not given a proper opportunity to advance his defence to the charge that was brought against him. Counsel for the appellant complained of only one incident of that kind which was not the subject of a separate ground of appeal. He contended that the trial Judge wrongly prevented the appellant from cross-examining Mr Maughan in respect of an incident in which he was said to have harassed the appellant's wife and son at the appellant's son's school. However, the transcript (pages 309 and 310) reveals that the appellant was permitted to put his proposition to Mr Maughan, who denied it. The only restriction imposed upon the appellant in this context was that he was properly prevented from exploring aspects of the history leading up to that incident. These were plainly irrelevant.

93 This limb of ground 4 consequently relies primarily upon what is said to have been the adverse effect that the conduct of the trial Judge had on the jury's assessment of the appellant. Of course, that involves only conduct that took place in the presence of the jury.

94 There are two categories of conduct in respect of which complaint is made. The first consists of the trial Judge's various expressions of irritation or frustration with the appellant. The second relates to comments which are said to have revealed that the trial Judge had formed an adverse opinion of the appellant's credibility. While neither category can be viewed in isolation, as each might impact upon the other, they do raise different considerations.

95 The first category can only have an impact on the fairness of the trial if it hampers the accused person in the presentation of his or her defence to the charge or charges brought against that person or if it might, somehow, adversely influence the verdict of the jury in some way. I am satisfied that the appellant was not inappropriately hampered in the presentation of his defence. The transcript reveals that he was given every reasonable opportunity to present his case and that the restrictions that were placed on him were reasonable and appropriate. It also seems to me that the trial Judge's conduct in respect of the appellant, to the extent that it revealed his irritation and frustration in the presence of the jury (as it frequently did), could not have influenced the verdict of the jury in any way. The reasons for the trial Judge's irritation and frustration must have been obvious to the jury. Even if they formed the opinion that he was unnecessarily intemperate in some of his responses to the appellant (as he was, in my respectful opinion), I am unable to accept that, in all of circumstances of the trial, this might have influenced the jury in the questions that they had to decide.

96 Although not an instance of a display of irritation or frustration, counsel for the appellant relied also upon an incident in which the prosecutor pointed out, in the presence of the jury, that the appellant had left Mr Maughan's wife waiting for three days to be called as a witness and that she did not get paid when she was not working (transcript 569). Later, when the appellant called another witness before calling Mrs Maughan, the trial Judge said, "You won't forget ... [the prosecutor's] invitation that you might call Mrs Maughan fairly soon, will you?" The appellant responded by saying that Mrs Maughan had only been waiting since the previous afternoon and that "she was having a good time with the police outside". The trial Judge made no more of the issue in the light of that response. None of this seems to me to be of any significance. The prosecutor was entitled to comment as he did. If he was mistaken in what he said, this was corrected by the appellant. There was nothing untoward in what was said by the trial Judge.

97 Comments made by the trial Judge in the presence of the jury which are said to have reflected adversely on the appellant's credibility raise more difficulty. There are three instances which are said to be of concern.

98 The first of these is the incident in which the appellant had complained of feeling unwell after having hit his head on a steel bar. I have said that, when the jury returned after a brief adjournment, the trial Judge explained to them why the appellant would not be present while the videotape of his interview with the police was played. I have also mentioned that he said, in the course of that explanation, that the appellant "says he [is] still recovering from whatever he says is wrong with him". The repeated use of the word "says" may have been taken by the jury to indicate some degree of disbelief on the part of the trial Judge (which he undoubtedly had) as regards the genuineness of the appellant's ailment. That may have been reinforced by the trial Judge's later comment to the appellant that the appellant had "made a very good recovery".

99 The second instance relates to evidence given by the appellant, while under cross-examination, concerning his video-recorded interview with the police. I have mentioned that, after asking the appellant whether it was his evidence that the senior sergeant had looked at him in such a way as to intimidate him and prevent him from leaving the interview, the trial Judge said, "All right. Well, I'm sure the jury can look at the [videotape]". The appellant contends that, by the form of his question and by this comment, the trial Judge again demonstrated his disbelief of what had been said by the appellant.

100 The third, and most important, instance relates to the exchange which took place on the following day, when the trial Judge mistakenly understood the appellant to say that he had not allowed the appellant to view the videotape on the previous day. I have said that the trial Judge threatened to call the clerk of arraigns as a witness in order to contradict the appellant. The exchange (quoted earlier in these reasons) would plainly have conveyed to the jury the trial Judge's belief that the appellant had endeavoured to mislead the jury. While the trial Judge acknowledged, at the end of that exchange, that he might have been wrong, he did not at any time acknowledge in the presence of the jury that he had in fact been wrong.

101 In evaluating the combined effect upon the jury of these three instances, considered in the context of the whole of the trial (including the trial Judge's evident irritation with the appellant), it is important to bear in mind that an indication by the trial Judge that he or she disbelieves an accused person does not automatically result in the trial being unfair. I have said that a trial judge is entitled to comment strongly on factual issues (although this can sometimes be a risky venture) so long as the jury fully understands that they are free to ignore those comments: Guinan at [37]; Boykovski at 443; R v Mathe [2003] VSCA 165 at [73]. Even an expression of disbelief made during the course of an accused person's evidence will not necessarily result in a miscarriage. For example, in Guinan the Court of Appeal declined to interfere even though the trial Judge had plainly questioned the accused person's veracity in respect of one aspect of his evidence by prefacing a question asked by him with the words "Are you seriously saying ... ". Hulme J (with whom Meagher JA and Smart AJ agreed) said (at 202) that the questioning of the trial Judge came "nowhere near the level where ... [it] could be regarded as constituting a miscarriage of justice" (see also Mathe at [73] per Eames JA (Vincent JA agreeing)). There will only be a miscarriage, in a case of this kind, if the jury's assessment of the credibility of the appellant, so far as it bears upon his evidence at the trial, might have been overborne by the trial Judge's comments: Senior at [36] and cp Mercer at 95 - 96.

102 In this case, the first and third of the instances to which I have referred concerned peripheral issues. At no time did the trial Judge suggest to the jury, whether by words or conduct, that he regarded the actual defence raised by the appellant as being without substance. Of course, evident disbelief by the trial Judge of an accused person, even on a peripheral issue or issues, might in some cases lead a jury to doubt the veracity of that person's evidence generally. However, I do not consider that this is a case of that kind.

103 In the first of the instances referred to, the tape-recording of the trial does not reveal anything incredulous or sarcastic in the trial Judge's tone when informing the jury that the appellant "says he [is] still recovering from whatever he says is wrong with him". While the repeated use of the word "says" might, as I have said, indicate some incredulity, it seems to me to be relatively minor and not something to which the jury would have accorded any significance.

104 The third of the instances to which I have referred was more significant. I have never before encountered a situation in which the trial Judge has threatened, in the presence of a jury, to call a witness to rebut what was said by an accused person. However, the jury was able to observe the whole exchange and, must, in my opinion, have appreciated that it resulted from a misunderstanding, by an already exasperated trial Judge, of what was intended by the appellant to be conveyed by the words "Even if". Moreover, the jury heard the trial Judge acknowledge, at the end of the exchange, that he might have been wrong. Given that it was most unlikely that the appellant would have told the jury that the trial Judge had prohibited him from seeing the videotape when that was not the fact, it seems to me that the jury would have taken the exchange to have been no more than the product of a misunderstanding.

105 As to the second of the three instances to which I have referred, when clarifying the appellant's evidence by asking him whether he was "putting it to us that the senior sergeant looked at ... [him] in such a way that ... [he was] intimidated and prevented from leaving ... ", the trial Judge might have conveyed some degree of incredulity. This may have been added to by his comment that the jury could look at the videotape. However, if there was a degree of incredulity, it seems to me to have been relatively mild. Certainly, what was said was no more incredulous than the question asked by the trial Judge in Guinan which, as I have said, was found to have come nowhere near the level where it could be regarded as constituting a miscarriage.

106 When considering the impact on the jury of these three incidents, looked at in conjunction with all else that went on during the course of the trial, it is important, also, to have regard to what the trial Judge said in the course of his summing up (which, as I have stressed, is not suggested to have displayed any partiality). He told the jury, on two occasions, that he had only two functions during the trial, the first being to ensure that it was conducted in accordance with the rules of procedure and evidence and the second being to direct them as regards the law. He said, as regards the first of those functions (transcript 801), that the appellant had been representing himself, was not a lawyer, didn't understand "a lot of the rules of procedure and evidence" and that this had added to the complications of the trial, but added that he "can't hold that matter against anyone". He went on to tell the jury (also transcript 801), repeatedly, that they were "the sole judges of the witnesses and the evidence and the facts". He also told the jury (again at transcript 801) that, if he said anything about the evidence, the witnesses or the facts that they did not accept, then that was "a matter for ... [them]". It seems to me that, in the context of this trial, this direction was sufficient to overcome any influence that the trial Judge's behaviour might otherwise have had on the

jury's assessment of the appellant. In my opinion this is not a case in which the jury might have been overborne by the trial Judge in respect of their assessment of the appellant's credibility.

107 I am consequently not persuaded that there was any real danger of unfairness or that there was such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. Ground 4 fails.

110 MILLER AJA: I have had the opportunity of reading the reasons for judgment of Steytler P. I agree with those reasons and in my opinion the appeal should be dismissed.

Vexatious Proceedings Act 2002(WA)

At a glance

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Before

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Judgment (148 paragraphs)

Legislation Cited (2)

Cases Cited (21)