MJD V. REGINA [2006] NSWCCA 151

LEGISLATION CITED: Criminal Appeal Act 1912 s.6 Evidence Act 1995 s.20

Antoun v. The Queen [2006] HCA 2 Dickson v. Edwards (1910) 10 CLR 243 Dovade Pty. Limited v. Westpac Banking Group (1999) 46 NSWLR 168 Ebner v. Official Trustee in Bankruptcy (2000) 205 CLR 337 R v. Balic (No.2) (1994) 75 A Crim R 515 CASES CITED: R v. Boyle (1987) 34 A Crim R 202 R v. Edwards (1996) 90 A Crim R 510 R v. Flesch and McKenzie (1986) 7 NSWLR 554 R v. Kearns [2003] NSWCCA 367 R v. T (1990) 47 A Crim R 29 Smits v. Roach [2004] NSWCA 233, 60 NSWLR 711 Vakauta v. Kelly (1989) 167 CLR 568

PARTIES: MJD - appellant Regina - respondent

COUNSEL: Mr. K. Dailly for appellant Dr. P. Power for respondent

SOLICITORS: Andrew Miller & Associates for appellant S. Kavanagh, Solicitor for Public Prosecutions for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

IN THE COURT OF CRIMINAL APPEAL 2005/396 CCAP DC 04/21/0154

HODGSON JA JAMES J HOEBEN J Wednesday 10 May 2006 MJD V. REGINA Judgment

1 HODGSON JA: On 23 February 2005, the appellant was indicted before Coorey DCJ at the Parramatta District Court on the following counts: (1) That he between 1 March 2003 and 1 April 2003 at South Granville in the State of New South Wales did assault SD and at the time of the assault did commit an act of indecency on SD. (2) That he between 1 March 2003 and 1 April 2003 at South Granville in the State of New South Wales did have sexual intercourse with SD without the consent of SD knowing that she was not consenting. (3) (In the alternative to count 2) That he between 1 March 2003 and 1 April 2003 at South Granville in the State of New South Wales, being a male, had carnal knowledge of a female above the age of 16 years such female being his sister (namely SD). (4) That he between 1 May 2003 and 1 June 2003 at South Granville in the State of New South Wales did assault SD and at the time of the assault did commit an act of indecency on SD. (5) That he between 1 May 2003 and 1 June 2003 at South Granville in the State of New South Wales did have sexual intercourse with SD without the consent of SD knowing that she was not consenting. (6) (In the alternative to count 5) That he between 1 May 2003 and 1 June 2003 at South Granville in the State of New South Wales, being a male, had carnal knowledge of a female above the age of 16 years such female being his sister (namely SD). (7) That he on 9 May 2003 at South Granville in the State of New South Wales did assault SD and at the time of the assault did commit an act of indecency on SD. (8) That he on 9 May 2003 at South Granville in the State of New South Wales did have sexual intercourse with SD without the consent of SD knowing that she was not consenting. (9) (In the alternative to count 8) That he on 9 May 2003 at South Granville in the State of New South Wales, being a male, had carnal knowledge of a female above the age of 16 years such female being his sister (namely SD). (10) That he between 1 June 2003 and 25 June 2003 at South Granville in the State of New South Wales did assault SD and at the time of the assault did commit an act of indecency on SD. (11) That he between 1 June 2003 and 25 June 2003 at South Granville in the State of New South Wales did have sexual intercourse with SD without the consent of SD knowing that she was not consenting.

2 Counts 1, 4, 7 and 10 were charges of an offence under s.61L of the Crimes Act 1900, carrying a maximum penalty of imprisonment for 5 years. Counts 2, 5, 8 and 11 were charges of an offence under s.61I of the Crimes Act 1900, carrying a maximum penalty of imprisonment for 14 years. Counts 3, 6 and 9 were charges of an offence under s.78A of the Crimes Act 1900, carrying a maximum penalty of imprisonment for 8 years.

3 The appellant pleaded not guilty to all counts, and was tried before his Honour and a jury of twelve. On 14 March 2005, the jury returned verdicts of guilty in respect of counts1, 2, 4, 5, 10 and 11. The jury was not able to come to a unanimous decision in respect of counts 7, 8 and 9.

4 On 6 October 2005, the appellant was sentenced as follows. In respect of counts 1, 4 and 10, on each count, to a fixed term of 12 months, to commence on 14 March 2005, to be served concurrently; and in respect of counts 2, 5 and 11, on each count, imprisonment for 7 years, to commence on 14 March 2005, and to expire on 13 March 2012, with a non-parole period of four years, to expire on 13 March 2009, to be served concurrently.

5 The appellant appeals from his conviction, and seeks leave to appeal from the sentences imposed on him.

6 The Crown case was that on four occasions in 2003, the appellant indecently assaulted and then had sex with his sister, who was then a 47 year old intellectually disabled woman.

7 The complainant gave evidence that the appellant would visit her occasionally in 2003 when he was working not far from where she was living. On four occasions, he touched her breasts, and then had sexual intercourse with her, without her consent. The complainant gave evidence of seeing warts on the appellant's penis. Shortly after the last occasion when sexual intercourse took place, the complainant's younger sister DW arrived from Maitland. The complainant told DW that the appellant had just raped her, and on 25 June 2003 DW took the complainant to Granville police station where DW reported the matter to Sergeant Matthew Mezgee. The complainant then went to Westmead Hospital, where she was examined.

8 DW gave evidence that she went to visit the complainant on 25 June 2003, and that when the complainant answered the door she was shaking and crying. The complainant told her that the appellant had had sex with her. DW later took the appellant to Granville police station.

9 Detective Senior Constable Egan gave evidence of collecting items from the complainant's home, including a towel and lounge cushion; and of arresting the appellant and conducting an interview with him, in which the appellant denied the allegations against him.

10 Visits by the appellant to the complainant's house received some corroboration from a neighbour William Staines, and the appellant's employer Warren Bale.

11 The complainant's doctor Dr. Joseph Malouf gave evidence of visits by the complainant on 9 May 2003 and 23 May 2003, saying that on the former occasion the complainant complained of pain during intercourse. However, she did not complain that she had been sexually abused by the appellant.

12 Associate Professor Susan Hayes gave evidence that the complainant had mild intellectual disability, with an IQ of about 70, putting her in the lowest 2 per cent of the population.

13 Robert Goetz, a forensic biologist, gave evidence of receiving items from the police to be tested, including a towel and lounge cushions. Semen was found on the towel and on one of the lounge cushions, and DNA taken was compared with a reference sample taken from the appellant. All three samples had the same profile. The probability of that profile being found in anyone selected randomly was less than one in ten billion; and the probability of it being found in a brother of the appellant was approximately one in 6,700. (No sample was in fact taken from the appellant's brother G, who was living at the complainant's home prior to 6 March 2003.) DNA testing could not indicate when DNA was placed on an item, apart from probably being contributed since the last wash. There was a very high degree of probability that the DNA taken from the towel came from the sperm found on it.

14 Dr Anthony Moynahan of the New South Wales Police was sent photographs of the appellant's genital region, and observed a lesion of one-half to one centimetre, which could be a genital wart, cyst, or abscess.

15 The appellant's defence was that no sexual intercourse occurred, and that the complainant was either fabricating the allegations because the appellant refused to give her money or wanted her out of the house, or was unreliable, as shown by many inconsistencies in her evidence. The DNA either was present through innocent reasons, or was from the appellant's brother. The appellant did not give evidence himself, but called three witnesses.

16 Naomi Quinlan, the ex-de facto partner of the appellant's son, gave evidence that she visited the complainant in April 2004 to get contact details for the appellant and his wife; and that on that occasion, the complainant said she did not speak to the appellant, and went on to say that if the appellant had given her the money when she had asked him, she would not have lied.

17 Cheryl Sells, the de facto wife of the appellant for 27 years, gave evidence that she and the appellant lived with the complainant for about six to twelve months in 1997-1998, and that the lounge on which some of the offences were said to have occurred was brought over by them. Ms. Sells gave evidence that she and the appellant had had sex on that lounge; and also that she had used her own linen partly because the complainant was unhygienic about washing her linen, and also because the appellant was suffering from genital warts. Ms. Sells gave evidence that she had told the complainant she wanted to use her own linen because the appellant was suffering from warts.

18 Rick Crouch, a co-worker with the appellant, gave alibi evidence in relation to 9 May 2003.

19 The trial proceeded for ten days, and then the trial judge commenced summing up on the tenth day, namely Wednesday 9 March 2005. Summing up continued from 2pm on 10 March 2005, and later that afternoon the trial judge asked the jury to retire and consider its verdict, commencing the next morning. On 11 March 2005, the trial judge gave further directions, and the jury retired to consider its verdict at 11.05am. At 3.20pm, the trial judge answered a question from the jury. On Monday 14 March 2005, the trial judge played a tape of evidence requested by the jury, and the jury retired to further consider its verdict at about 11am. The jury returned with its verdicts later that day, and was discharged at 2.22pm.

GROUNDS OF APPEAL 20 Initially, the appellant relied on five grounds of appeal. However only three were pursued, namely: A. The summing up to the jury was not clear and concise and thereby confusing. C. Perceived bias or prejudice. E. Sentence imposed is manifestly excessive.

SUMMING UP 21 Mr. Dailly made the following submissions in support of this ground: 1. His Honour began summing up to the jury on Wednesday 9 March 2005 prior to the luncheon adjournment. His Honour continued his directions following the luncheon period and at the close of the day sent the jury away to deliberate, subject to any further matters raised by the Crown and Defence.

At that point in time His Honour conceded some minor factual misdirections given to the jury and agreed to clear up those errors (transcript Wednesday 9 March 2005 page 30). Discussions were further had concerning appropriate directions relating to delay (a Longman type direction was specifically discussed) and a direction concerning the DNA evidence.

The jury were subsequently returned and the DNA direction was given as well as the other factual errors were corrected. Again the jury were sent away subject to further directions being given.

On Thursday 10 March 2005 the jury were returned and further directions were given. His Honour indicated at the conclusion of his directions that all the directions of law were complete (transcript 10 March 2005 page 12). His Honour then comments further on the evidence for an additional 25 pages. He then again sends the jury away pending any further necessary directions or instructions.

The jury are then again returned where His Honour stated "Ladies and Gentlemen just a couple of matters that I have overlooked" (transcript 10 March 2005 page 42). On page 43 of that transcript His Honour sends the jury away to deliberate on their verdict.

On Friday 11 March 2005 the jury are again returned for further clarification of directions which His Honour realised were incorrect. In particular a misdirection concerning the existence of sperm and the connection to sexual intercourse and sexual activity. Again the jury are sent away to deliberate upon their verdict (transcript 11 March 2005 page 14). On that day the jury return again due to a jury question. They then retire for that day.

On Monday 14 March 2005 the jury are again returned for the purposes of answering a jury question. It is that day guilty verdicts were returned in relation to charges one, two, four, five, ten and eleven. The matter then proceeded to sentencing at a later date.

It is submitted that the manner of His Honour's summing up went to confusing the jury by being continually recalled and corrected in relation to factual matters and directions according to law.

A Judges (sic) summing up should be as succinct as possible so as not to confuse the jury [see R v Flesch and McKenzie (1986) 7 NSWLR 554 at 558 . STREET CJ stated "I reiterate that the conventional direction, which is concise and brief, is that which it is preferable to adopt unless there be reason to depart from it" (ibid at 558).

STREET CJ further stated "In particular, a lengthy development of the concept such as appears in this summing up will almost always lead to a situation in which a jury is at risk of being confused and hence it nearly always will present at least the risk of it being held that there has been a misdirection" (ibid at 558).

It is submitted that His Honour's directions were not clear and concise and were therefore confusing to the jury. As a result the jury were misdirected.

22 I note that the statements by Street CJ referred to in those submissions related to a direction as to the standard of proof beyond reasonable doubt, and were to the effect that there should not be lengthy elaboration of that concept. However, it is also true that Street CJ did say that "prolixity in summings up is to be discouraged; conciseness is better calculated to achieve clarity and intelligibility": R v. Flesch and McKenzie (1986) 7 NSWLR 554 at 558.

23 Mr. Dailly was unable to point to any particular matter in the summing up which amounted to a misdirection to the jury in any sense adverse to the appellant: he relied rather on the mere circumstance that the summing up extended over a number of days and involved the jury being recalled on a number of occasions, with some corrections being made. In my opinion, this is insufficient to make out a case for setting aside the verdict of the jury.

24 In fact, in so far as the summing up could be considered confusing, it was significantly favourable to the appellant. In particular, in giving further directions about the DNA evidence at the request of the appellant's Counsel, the trial judge said "I direct you that the evidence of the matching DNA profile establishes no more than that the accused could be the person who deposited the DNA found in the sample", although he did later say "DNA evidence may have significance when considered with other evidence in the case". He did not tell the jury, as he might have, that the DNA evidence gave positive support to the Crown case, or explain to the jury how it did so.

PERCEIVED BIAS OR PREJUDICE 25 On the ninth day of the trial, shortly after 10am and just before the final witness for the defence was called, the Crown prosecutor made submissions to the trial judge to the effect that a suggestion made by the Crown prosecutor to a defence witness that she was committing perjury should not have been disallowed. In the course of the discussion, in the absence of the jury, of Crown submissions on this matter, relating to whether the witness was lying under oath, the following exchange occurred between the trial judge and the appellant's then Counsel Mr. Pontello: HIS HONOUR: I don't know, I don't know if this witness was lying or not, the witness may be lying, but it's not for me to - I mean Mr Pontello, I may as well tell you, when an accused person does not go in the witness box, I have a certain suspicion. When an accused does not give evidence, I have a strong suspicion of guilt, in my mind, I really do, and I was a defender, I defended for 20 years plus seven years. I honestly believe in my mind when an accused doesn't go in the witness box, I have a strong suspicion that there was something to hide, that's my belief, but that's got nothing to do with me as a judge, has it?

HIS HONOUR: But that's just my personal view which I can't shake off.

PONTELLO: Your Honour shouldn't be expressing those at this point in the trial with the accused sitting in the dock, I mean it's not really--

HIS HONOUR: I'm telling you and I'm telling you that I'd been a defender for many more years than you have.

PONTELLO: But your Honour, it's important that, in my submission, that justice be seen to be done and--

HIS HONOUR: Mr Pontello, you don't have to worry, I am not going to be unjust to your client. If you'd been around for any length of time, you would know that I am not unjust.

PONTELLO: Your Honour, I know that - your Honour, it's the perception that your Honour might be giving to the accused at this point of the trial.

HIS HONOUR: I don't really worry about a perception, I think if anyone reads the transcript of any case that I do comes out and tells me that I was biased in favour of the Crown, I think they'd be - they'd need psychiatric help.

PONTELLO: There's no such submission your Honour, but your Honour it's important that perception is not there at all from the accused's point of view, not from the barristers, but I don't wish to be heard any further on the issue.

HIS HONOUR: Mr Pontello, I can assure your client that I am not biased against him. But I'm just telling you that my personal view is not important, that's the bottom line, that's all, it's just my personal view. I've got a lot of personal views Mr Pontello, but I don't say them in front of a jury, that's me, I'm just telling you something.

26 The discussion then moved back to how the trial judge should deal with the Crown's suggestion that the defence witness was lying under oath.

27 Following that, the final defence witness was called, and the jury was addressed by the Crown prosecutor and by Mr. Pontello.

28 On the following day, Mr. Pontello concluded his address, and then there was discussion in the absence of the jury before the trial judge commenced the summing up. In the course of that discussion, the following exchange occurred: HIS HONOUR: […] Mr Pontello, something that occurred to me last night also and perhaps I'll say this, I should not have said yesterday that I have suspicion of guilt about your client, even if I think it, and I only said that because I - when a person does not go in the witness box I, subjectively, me, subjectively, do have a suspicion of guilt when a person does not go in the witness box. And I was a defender for 20 years.

HIS HONOUR: And that's all, that's as far as it goes. There is no way in the world that your client will not get a fair trial from me. He will get a fair trial.

PONTELLO: I made that absolutely clear to him your Honour, but obviously the concern was that he obviously doesn't know your Honour as well as we do.

HIS HONOUR: Well even if I think he's personally guilty, so what. I mean it may be the truth I think he's guilty, but so what.

HIS HONOUR: He's not going to get an unfair trial from me because I think he's guilty. PONTELLO: No, no, he doesn't--

HIS HONOUR: I'm in charge, but I have a personal view about this case which is obvious to you, and I've said it, that's my personal view, but that's not going to effect my judgment, that's not going to effect my judgment as a judge, and indeed I probably shouldn't have even said it but the jury was not here--

HIS HONOUR: --but you can be assured that your client will not receive an unfair trial. And I will not take into account my own personal views, they're not relevant. I will not, I will not in any way exhibit my personal views in front of this jury, full stop.

HIS HONOUR: Okay. So he doesn't have to worry that this judge is going to ride this case for a conviction in some way or this judge thinks he's guilty therefore this judge is going to try and influence the jury. To me that would be outside my function and intellectually dishonest if I was to do that. I would be intellectually dishonest if I was to let my own point of view effect (sic) how I sum up. But I just wanted to assure you of that and your client because I thought to myself last night I didn't want your client to worry that because I think a certain way therefore I'm going to try and influence the jury a certain way. I think we're ready for the jury.

29 That was the extent of reference to the trial judge's comments on this matter. At no time was the trial judge asked to disqualify himself from continuing with the trial of the appellant.

Submissions 30 Mr. Dailly submitted that a judge should not hear, or continue to hear or determine proceedings, if affected by actual bias, or if there is a reasonable apprehension that the judge is not impartial and unprejudiced. Subject to certain qualifications relating to waiver or necessity, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Ebner v. Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6].

31 Mr. Dailly submitted that a fair-minded lay observer would have had concerns about the trial judge's comments concerning the guilt of the appellant, as identified in the transcripts for 8 and 9 March 2005. He referred to Ebner at [80], per Gaudron J, and also to Antoun v. The Queen [2006] HCA 2, at [80] and [81].

32 Mr. Dailly submitted that, although the comments were not made in the presence of the jury, based on the principle of justice not only being done but also being seen to be done, a fair-minded lay observer would have obvious concerns about the trial judge's comments and his impartiality.

33 Mr. Dailly further submitted that, even though it was not for the judge to decide guilt or innocence of the accused, a judge is still disqualified in a criminal trial with a jury if the judge's conduct causes reasonable apprehension of bias: R v. Balic (No.2) (1994) 75 A Crim R 515.

34 Mr. Dailly also submitted that the comments, although in the absence of the jury, amounted to a breach of s.20(2) of the Evidence Act 1995, which provides as follows: 20 Comment on failure to give evidence (1) … (2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

35 Mr. Dailly submitted that the circumstance that no application was made to the trial judge to disqualify himself did not count against the success of this appeal. Rule 4 of the Criminal Appeal Rules only applied to "direction, omission to direct, or decision as to the admission or rejection of evidence". Even if waiver did apply to criminal proceedings, objection had been taken in this case: cf Vakauta v. Kelly (1989) 167 CLR 568.

Decision 36 In my opinion, it is appropriate to approach this matter on the basis of the principles stated by Spigelman CJ in R v. Kearns [2003] NSWCCA 367 at [34]-[36]: 34 The fact that the trial judge's role in a jury trial is limited is not determinative of the matters, however, it is of significance. That it is not determinative is shown by the Court of Appeal in the case of Balic (No 2) (1994) 75 A Crim R 515 at 520, where their Honours said: "Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge." 35 The test for disqualification on the grounds of bias is now well established in Australia and has been set out in Johnson v Johnson (2000) 201 CLR 488 at 492 to 493: ".... [T]he 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 is objective ... two things need to be remembered: the observer is taken to the 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'."

36 As I have indicated, in a jury trial the matters which a judge is required to decide include the admissibility of evidence and also the formulation of a summing up. If there is a conviction, he or she must sentence the person so convicted. These are more limited matters than those which arise in the course of a judge-alone trial. Specifically, however, they do not include the determination of issues of credit.

See also Antoun v. The Queen [2006] HCA 2, 80 ALJR 497.

37 Any question of apprehended bias has to be considered in relation to "the question which the judge is required to decide". In a criminal trial before a jury, that question includes how to conduct the trial, in terms of rulings on evidence, comments made in the course of the trial, and the summing up to the jury. As pointed out by Spigelman CJ in Kearns, the limited role of the judge is of significance, especially in that it does not include determination of issues of credit or determination of the ultimate issue of guilt or innocence.

38 This Court's role in deciding this appeal is circumscribed by s.6(1) of the Criminal Appeal Act 1912, which provides as follows: 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

39 The ground of appeal under consideration can succeed only if the Court is of opinion that there was "a miscarriage of justice". Even if s.20(2) of the Evidence Act was breached, as submitted for the appellant, this would not in my view amount to "a wrong decision on a question of law", so the question still must be whether this Court is of opinion that there was a miscarriage of justice.

40 In considering whether there was a miscarriage of justice, the following matters are of significance: (1) Apart from the matter considered under the first ground of appeal, there is no challenge on this appeal to any decision of the primary judge, whether as to the admission of evidence or as to what to say to the jury in the summing up: that is, there is no suggested error in anything the trial judge said or did in the actual conduct of the trial. (2) The discussion that gave rise to the comments complained of was related to a suggestion that another witness was lying, and the trial judge seems to have been pointing out why he might suspect she was (because he could not help suspecting the accused), all in the context of saying that this had nothing to do with how he as a judge would conduct the case. (3) Although the appellant's Counsel told the judge he should not express the view he expressed, no application was made that he disqualify himself.

41 In relation to the last point, it is clear that waiver is available in civil cases as an answer to an appeal grounded on an allegation of apprehended bias: Vakauta v. Kelly (1989) 167 CLR 568 at 572 and 577-9, Dovade Pty. Limited v. Westpac Banking Group (1999) 46 NSWLR 168 at 181, Smits v. Roach [2004] NSWCA 233, 60 NSWLR 711, at [37]-[38].

42 In Vakauta, at 572, Brennan J, Deane J and Gaudron J made the following observation about comments made by a judge during the course of a hearing: Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirements of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

43 However, in the same case, Dawson J at 577 commented that "In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different"; but Dawson J went on to say that "even in such a case, Isaacs J in Dickson v. Edwards (1910) 10 CLR 243 at 260 was clearly of the view that a party may waive the objection".

44 In the present case, in addition to the question whether waiver applies in a criminal case, it could be argued that objection was taken to the comments, and it was unnecessary to take the additional step of asking the judge to disqualify himself.

45 Whether or not such an objection can be waived in a criminal case, and whether or not it was in fact waived in this case, the circumstance that the judge was not asked to disqualify himself and the trial was completed means that the objective test referred to in Johnson should be applied in the light of everything that happened in the trial, both before and after the comments complained of; and consistently with Johnson, the reasonable lay observer would take into account the circumstances in which the comments were made, the circumstance that the trial judge was a professional judge whose training, tradition and oath or affirmation required him to discard the irrelevant, the immaterial and the prejudicial, the circumstance that there was no request to the judge to disqualify himself, and the circumstance of a summing up that was generally favourable to the appellant. This Court then has to decide whether there was a miscarriage of justice, in the light of these considerations, and also in the light of the lack of complaint made on appeal about any actual decision made by the trial judge.

46 Leaving aside for the moment s.20(2) of the Evidence Act, in all these circumstances I do not think an appearance of bias was shown, and in any event, I am not of opinion that there has been a miscarriage of justice. As regards s.20(2), in my opinion, this applies to comments made in the presence of the jury, and not to comments in the absence of the jury; but even if it did apply to comments made in the absence of the jury, such breach as would then have occurred in this case did not in my opinion produced a miscarriage of justice that could authorise the allowing of an appeal under s.6(1) of the Criminal Appeal Act.

47 As conceded by the judge himself and by the Crown, the comments should not have been made; but the ground of appeal based on them is not made out.

SENTENCE MANIFESTLY EXCESSIVE 48 Evidence was led on the hearing of the appeal that the appellant's 25 year old son had a terminal illness, and, as at 15 February 2006, had an expected survival of 2-4 months at most. The medical practitioner's letter put into evidence went on to say that the son was experiencing distress as he found it extremely difficult to visit his father in Bathurst Correctional Centre.

49 Evidence was led by the Crown that a transfer of the appellant to Cessnock Correctional Centre was approved on 28 February 2006, and that transfer took place on 8 March 2006. This evidence also indicated the possibility of leave being granted to a prisoner to visit a family member suffering serious illness.

50 Mr. Dailly submitted that the terminal illness of the appellant's son amounted to exceptional circumstances, and that the Court could take into account the hardship that will be suffered by the appellant and his family due to the appellant's imprisonment at this time. Mr. Dailly referred to R v. Boyle (1987) 34 A Crim R 202, R v. T (1990) 47 A Crim R 29, and R v. Edwards (1996) 90 A Crim R 510.

51 In my opinion, the circumstances disclosed may be regarded as truly exceptional, so that the hardship to a family member could possibly be taken into account in ameliorating the sentence imposed on the appellant, in accordance with the principles discussed in Edwards.

52 However, having regard to the very short life expectancy of the appellant's son, to ameliorate the hardship would require the quashing of the sentences imposed below and the imposition of a sentence with a non-parole period expiring immediately, that is a sentence with a non-parole period of about 14 months.

53 In my opinion, such a non-parole period would be so out of proportion with the criminality of the offences that it would not be right for the Court to respond in that way to the circumstances disclosed.

54 The circumstances are sad indeed, and it is to be hoped that either visits by the appellant's son or leave for the appellant to visit his son can be arranged. However, for the reasons given, in my opinion the sentence imposed below should stand.

ORDERS 55 For those reasons, in my opinion the following orders should be made:

1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted.
3. Appeal against sentence dismissed.

57 HOEBEN J: I agree with Hodgson JA and the orders which he proposes.

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