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[2004] VSCA 95
Court of Appeal (Vic)
2004-05-27
CHARLES, BATT and VINCENT, JJ.A.
Original judgment source is linked above.
"On behalf of the Crown, Mr McDermott told you that the evidence revealed a stormy and violent relationship between the accused and his sister, particularly in the 24 hours before Amalie Badenoch's death. The supermarket incident revealed that the accused was ill-disposed to his sister and it was Mr McDermott's submission that the accused initiated the violence on that night. Additionally, the evidence of witnesses who spoke to the deceased prior to her going to the caravan park, suggested that the deceased had some intention to obtain vengeance for what had occurred at the supermarket to even the score. This was the background to the events of that evening and to your decision as to whether the Crown had satisfied you of the guilt of the accused.
...
Turning to the cause of death, Mr McDermott submitted you should have no difficulty in deciding that the cause of death was the stab wound with its resulting haemorrhage. That was the evidence of Dr Robertson. You should be in no doubt that this was a deeply penetrating injury going through the left lobe of the liver and ending, as it did, in slicing the splenic vein. The Crown rely on the depth and track of the wound as making quite illogical and fanciful any suggestion that it was inflicted accidentally by the accused. It was caused, submitted Mr McDermott, by the deliberate use of the knife by the accused."[3]
...
"Turning to the accused's state of mind at the time of the stabbing, Mr McDermott put to you that the accused claimed in the second interview to have armed himself for protection. It follows that the accused had deliberately armed himself with the knife at an early stage with the intention of using it if necessary. The compelling inference was that the knife was in his hand, given the lack of injuries to his abdomen. Mr McDermott submitted that the accused decided to use the knife and stabbed his sister. Mr McDermott submitted the relationship of the accused had reached the stage that the accused decided to stab her and he was not acting in self-defence. Even if his sister rushed at him and might have had a bottle - to his mind - and even given the sister's reputation and background, was the response of the accused out of proportion to any danger he believed he faced? Mr McDermott submitted it was. He said he did not retreat at any time and any danger his sister represented to him did not warrant the use of the knife. Accordingly, Mr McDermott submitted, the accused was not acting in self-defence."[4]
The prosecutor also addressed the possibility that the applicant may have acted under provocation and whether he may have been guilty of manslaughter through the commission of an unlawful and dangerous act. I need not deal with those aspects.
"Mr Badenoch's position here of course is that this is a tragic accident. That is it from start to finish[5].
...
He wasn't looking for trouble. Mr McDermott says that this man intentionally stabbed and killed his sister. This man, in my submission, was doing everything that he could reasonably do to avoid a confrontation. He had immobilised the car, thus preventing any further damage; he had left the scene, just dis-engaged himself from her and headed off up to get help, that's where he was going. Had she sat in the car he'd have no doubt got to the office and a phone call would have been made, something different might have happened - but he didn't get to the office. We now know what happened. And young Sandawarra, tragically for him, saw most of this unfold in front of him. He told you that what he saw was his uncle restraining, that's his word, `restraining' his mother; holding on to her, with his arms around her and his legs entangled in hers and whilst in that position, he was asking the boy to go to the office. There is no suggestion by that young boy that Mr Badenoch had a knife in his hands. The clear impression, clear observation, if you like, of the boy was that his uncle was trying to hold his mother and restrain her, stop her. Not to inflict injury on her, not to kill her, not to stab her. We know what happened now, that they fell to the ground and we know that she suffered a fatal wound.
...
How do you know when that wound was inflicted; how do you know she was standing up when it happened? Have you got any idea when it occurred, was she on the ground; was she crouched over; was she on her back; was it during the time that he had her in the bear hug pulling her head down? Was it before Sandawarra asked his uncle to stop, before or after Mr Badenoch asked Sandawarra to go to the office? You've got no idea; no one has any idea. Did she get hold of the knife? I'm not seriously suggesting that she did this to herself, but Dr Robertson says it's consistent, in any other way it's not inconsistent with being self-inflicted. I'm not saying that she did it, I'm not asking you to accept that she did, there's no evidence that she did it to herself. There's no evidence that he did it deliberately to her; there's no evidence that he even knew he did it until afterwards."[6]
"Mr O'Doherty said that there is no doubt there was an unseemly incident at the supermarket. It was claimed by the Crown that it demonstrated that the accused was ill-disposed to his sister and the aggressor. Mr O'Doherty submitted that the evidence indicated that the deceased was the aggressor. Further, it was the deceased who worked herself up into a frenzy on the day of the incident at the caravan park. The deceased was the one who demonstrated ill-will towards her brother. On that evening it was the deceased who came to the caravan park with an intention of causing damage. She deliberately rammed the car. This was no accident. Mr O'Doherty submitted that Mr Badenoch, being close to his sister, had a good knowledge of the deceased's volatility, her capacity to indulge in violence. Consequently, he would know of the possibility of something serious occurring to himself or his family. While he took possession of the knife, the intention of Mr Badenoch right up until the end was to enlist the aid of the authorities. Indeed, he directed Sandawarra to go to the office. The accused was not looking for trouble, submitted Mr O'Doherty. The accused did not deliberately stab his sister intending to kill her. In fact he was doing everything to avoid a confrontation. He had immobilised the car preventing further damage and he had gone off to obtain help. He disengaged himself from her."[7]
"I might say that my preliminary view, without knowing what any authority is, is that the submission is spurious. Whether you're an Aboriginal Australian or a European Australian or a Turkish Australian, you're an Australian, you're part of the panel, you're part of the community."[9]
"The compiling of a jury list and the summoning of jurors for service in a particular case proceeds on the basis of a random selection of names. In such a random selection it may well come about that a panel emerges, in the end, as being of some general overall pattern as to occupations or income, but unless it is shown that this is a result of some deliberate contriving of the sheriff, it does not appear to me that this constitutes a ground for setting aside the panel."[10]
"2. The trial judge erred in law when he permitted the trial to continue after being furnished with uncontradicted evidence from a registered medical practitioner that there was a real and substantial question as to the stability of the defendant's mental state, in that he failed to meet his obligations pursuant to the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 once the question had arisen. 3. Once the trial judge was in possession of uncontradicted evidence from a registered medical practitioner that there was a real and substantial question as to the stability of the defendant's mental state, a failure to act pursuant to Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, vitiated the entire trial process which followed, and it creates such doubt as to the guilt of the defendant, that the verdict is a nullity."
"My former client wants to go to Melbourne, ... he's been feeling very stressed about the last few days and wants to go to see a psychologist via the Aboriginal Medical Service. Your Honour, he would seek a variation of the bail conditions to that end for two weeks, to go to Melbourne."[13]
"If Mr Badenoch truly has some serious psychological or psychiatric problem, then that be another thing but I would like to hear some evidence about that before Your Honour just took that at face value."[14]
"I think if Mr Badenoch wants his bail varied to go to Melbourne, rather than see a psychologist up here; I would need some evidence about that. The fact is that anybody facing a murder trial is stressed."[15]
"Your Honour, in addition I have also been in contact with the Victorian Aboriginal Health Service and have now received a faxed letter[16] in relation to the matters that Mr Hartnett mentioned yesterday. We would seek a bail variation for two days, namely Monday 21st and Tuesday 22nd, for Mr Badenoch to travel to Melbourne and to be examined and consulted by Dr Clare Stainsby, who has seen him previously in respect of medical issues and other matters."[17]
After perusing the letter, his Honour made the requested order.
"4. The trial judge erred in not disqualifying himself after the defendant made an application that any reasonable lay observer of the proceedings would have formed the view that the trial judge was biased against the defendant. 5. The trial judge erred in applying a `personally subjective' test as to the question of bias when he should have applied the `from a reasonable lay observer's point of view', test. 6. The trial judge erred in not allowing the defendant to put arguments within the bias application, namely: (a) that an inappropriate relationship developed between the Crown and the defence counsel at the urging of the trial judge about his upcoming sabbatical and his travel plans and the time table for hearing the trial; (b) that the dishonest activities of the Crown in withholding evidence led the trial judge to bias and the Court to a miscarriage of justice; and (c) that the incompetent conduct of the case by defence counsel led the trial judge to bias and the Court to a miscarriage of justice. 7. The trial judge erred in not allowing the defendant to call a witness to further the bias application, namely one Steven Drazetic. 8. The trial judge erred in ruling that calling witnesses on the bias application would fragment the trial process. 9. The trial judge erred in not answering the defendant's submissions in relation to the application that he dismiss himself because of bias, in relation to the following issues: (a) suspicion of bias; (b) ostensible bias; and (c) bias which allowed the proceedings to become an instrument of unfair oppression. 10. The trial judge erred when he demonstrated bias which would have been plain to any reasonable lay observer. 11. The trial judge erred when he claimed at trial, on 13 March 2002, that he had not read the depositional material and therefore he denied the defendant the opportunity to be fully heard in relation to aspects of a bias application.
"... based upon the need for public confidence in the administration of justice. `If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.` The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is `a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial`. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of `the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.` Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."[20] (Footnotes omitted.)
"1. That the dishonest activities of the Crown by withholding evidence had led him to bias; 2. that he was so led by the incompetence of defence counsel; 3. the lack of diligence on the part of his Honour in not reading the depositions; and 4. that comments made by his Honour in the course of the trial indicated prejudgment."
"Having listened to your submissions, it is my view that nothing raised in them would warrant me disqualifying myself or, alternatively, staying these proceedings as an abuse of process."[22]
His Honour's use of the expression "it is my view" cannot be seen as raising the possibility that, as a very experienced trial judge, he was unaware of or did not apply long-recognized principles of law with respect to applications of the kind before him, or as suggesting that he may have been applying some subjective test, but to indicate that he had applied those principles in the instant case.
"For your own information I should tell you that it is not my practice to read the depositional material when I'm aware that there will be a voir dire and some of that material will be challenged as inadmissible in evidence. In this case this related to parts of various records of interview. I regard it as preferable to bring to such consideration a mind that is not in any way distracted, even subconsciously, by the effect that any ruling I might make or would have on the Crown case. So I do that deliberately, so I can approach the whole matter with a clear and - - - APPLICANT: Open mind. HIS HONOUR: - - - -uncluttered and open mind. That's always been my practice. If you see that as indicating bias, well you can argue that further, but I think I should apprise you of the way I conduct trials where there are going to be _voir dire_s. APPLICANT: Yes. HIS HONOUR: I do have an overall summary of the case prepared by my associate, which is a page or two, but I don't read the depositional material in the case."[23]
"12. The trial judge erred when he allowed parts of the record of interview to go to the jury against the objections of the defendant. 13. The trial judge erred when he did not allow parts of the record of interview to go to the jury against the objections of the defendant."
"It is clear, in my submission, that right from the very beginning that the accused person wished to exercise his rights and there are numerous references in the interviews, certainly the first few interviews of him stating in no uncertain terms that he wanted to follow the advice of his solicitor; he wanted to speak to his solicitor. The questioning continued notwithstanding his protestation that he wanted to speak to a solicitor and the police officers in the course of their evidence on the voir dire made it perfectly clear that they were going to continue to question him irrespective of what he said he wanted to do."[24]
He argued that it had not been established that his client's statements were voluntary and submitted that, even if that were the case, they should be excluded in the exercise of discretion.
"The truth of the matter in my submission Your Honour is that what the interrogator wanted to do was to break him down to get him to make selective answers, to get him to talk because at that stage there was no indication that there would be any relenting on the part of the interrogators, it was just going to go on and on and on. Bear in mind that he had been interviewed at this point in time at least three times if not four times, and if anyone was in doubt about what he wanted in terms of his rights at that point in time they must have been asleep or not listening to him or alternatively deliberately blinding themselves to what he wanted."[25]
...
"Now, in my submission. Your Honour, based on the context of the records of interview, the tenor of the records of interview and the evidence given by the witnesses on the voir dire, it is clear beyond question that the breaches were deliberate, that they are fundamental, they go to the central issue here of the deprivation of rights; they are unfair breaches and in my submission Your Honour ought to exclude the entirety of the records of interview for those reasons."[26]
It was certainly through no lack of forensic competence or dearth of application on his part that the trial judge rejected his arguments.
"Having listened carefully to these tape recordings it is quite clear that the accused was not only aware of his rights but was forcefully asserting them. His comments included his disinclination to be interviewed by Messrs Irwin and Wellington but a willingness to participate in an interview with other police.
...
I should add that it is not contended that the accused was physically incapable of participating in any records of interview despite his complaints about a sore toe and some vomiting which Dr Gerald Murphy attributed to nervousness, an understandable state in the circumstances. Dr Murphy's view was that the accused was fit to be interviewed. In so far as it is submitted that these interviews demonstrate any overbearing of the accused's will, the material itself leads to very opposite conclusions. In any event, I have already indicated that the interviews should be excluded on the grounds of relevance."[28]
"14. The trial judge erred when he charged the jury that Sedgley was an important witness to the Crown case. 15 The trial judge erred when he did not raise the issue of Sedgley being an inherently unreliable witness and therefore enlivening the need for a warning to the jury when there was evidence before the Court which clearly proved that Sedgley's evidence could not be reliable."
"16. The defendant was represented in Court by Mr Steve Drazetic who represented himself to be a `Solicitor' but who was in fact not legally qualified in Victoria to practice law, and who is not admitted to the Bar in Victoria or in any other jurisdiction in Australia. 17. The trial judge erred when he permitted a person who was not legally qualified in Victoria to practice law, and who is not admitted to the Bar in Victoria or in any other jurisdiction in Australia, to represent the defendant from the bar table without seeking the leave of the Court. 18. That the defendant was misled and pressured by the trial judge into accepting `legal advice' from a person who was not legally qualified in Victoria to practice law and who is not admitted to the Bar in Victoria or in any other jurisdiction in Australia."
"Mr Badenoch has told Mr Drazetic in as many words and told me that he wants to withdraw my instructions from this trial and he wants to do so now."[29]
Counsel requested an adjournment to the following day stating:
"...if there is a finality to that then it be done with Mr Drazetic who represents of course Victorian Legal Aid, is a representative of Victorian Legal Aid, my client being a recipient of Legal Aid from that institution. I feel very reluctant, Your Honour, just in the absence of Mr Drazetic being here just to announce my withdrawal from the case, Your Honour."[30]
"I think Mr Badenoch ought to reflect on it and I think he ought to reflect on it long and hard because Mr Hartnett is a very experienced counsel - and I'm saying these remarks so you can hear them Mr Badenoch; he has conducted many serious criminal trials, it is a very drastic step to terminate his services. It shouldn't be something that you easily do, nor should you dismiss his advice easily. You face presently the most serious charge known to this court, that of murder. Now, maybe the matter can be resolved without it going on as a murder; I don't know. I think you should consider your position very carefully before you go rejecting Mr Hartnett's advice or dismissing him as your counsel. Ultimately, it is a matter for you, but I think you should think about it long and hard and that is why I will adjourn this matter till tomorrow morning. You will have the opportunity of discussing the matter with Mr Drazetic, who also has been a legal representative with the Victorian Legal Aid for many years, many many years and he is another person whose advice you would be wise to listen to. Ultimately, it is your decision but I wouldn't want to see you foolishly make the wrong one."[31]
"...but of course it is ultimately a matter for you."[32]
"HIS HONOUR: Mr Drazetic, I think we'll start with you; what is the situation? MR DRAZETIC: The situation, Your Honour, is the same as advised yesterday by Mr Hartnett. I have been in contact with Victoria Legal Aid, it seems that funding will be available for the trial. I have also briefed another counsel for this matter, Mr David O'Doherty. I had discussions with him this morning and last night. He will be apprised of this matter once I return to Melbourne and he will be furnished with all the documents in this matter. Your Honour, in addition I have also been in contact with the Aboriginal Health Service and have now received a faxed letter in relation to the matters that Mr Hartnett mentioned yesterday. We would seek a bail variation for two days, namely Monday 21st and Tuesday 22nd, for Mr Badenoch to travel to Melbourne and to be examined and consulted by Dr Clare Stainsby, who has seen him previously in respect of medical issues and other matters." [33]
"19. The trial judge erred when he ruled that Dr Shelley Robertson could not give expert evidence in relation to her reports of 1 May 2000 and 2 June 2000."
"I can't recall exactly. But there were a number of instances of documented descriptions of bizarre behaviour and psychiatric disturbance."[34]
"What do you mean by the comment in your report that it is possible that this [psychiatric disturbance] may have contributed to death by producing an alteration in mental status?"[35]
"Only that in view of the history of behavioural disturbances in the deceased, it is possible that such a disturbance in some way may have either led to an altercation in which she sustained the injury, or maybe even led to self-infliction of the injury."[36]
"Let me put this to you, that that injury, the causation of that injury is consistent with having been self-inflicted; is that correct?---Yes."[37]
She subsequently stated in re-examination that there was nothing about the wound itself that would indicate that this had occurred.
"20. The trial judge erred when he allowed Dr Gerald Murphy, a General Practitioner, to give expert evidence about a toxicology report compiled by Professor Olaf Drummer when on Dr Murphy's own admission issues of toxicology were `outside his area of expertise'."
"Q. Having regard to the finding that Professor Drummer made as to the amount of various substances in the deceased's blood, would you agree that she would have been at the time affected by excessive amounts of drugs? A. I wouldn't have the experience to comment on the word, `excessive' I don't know the ... Q. She was affected, you'd have to agree with that, wouldn't you? A. Again, I think it's outside my realm of ... Q. Is it, all right. Look at the finding for the marijuana; do you see that? A. Yes. Q. How much was there? A. Twenty-two nanograms per mL. Q. That's a significant amount, is it not? A. Well, again this is outside my level of experience."[38]
However, he accepted that, given the amount of cannabis in the deceased's system, she would have been adversely affected.
"21. That the Crown failed to call all relevant material witnesses for the consideration of the jury, namely: (a) Police officer Brendon Francis Carrodus; (b) Police officer Bruce Roberston; (c) Police officer Shaun Rothe; and (d) Forensic scientist Kathryn Bradley."
"35. Further to ground 21, the Crown failed to call all relevant and material witnesses for the consideration of the jury, namely: (a) Dr Olaf Drummer; (b) Michael Faulks; (c) Andrew Michael Jeffries; (d) Senior Constable Schultz - Mildura Traffic Management Unit; (e) Jindalee Alice Sibley; and (f) Raymond Ronald Clarke."
"Faulks is an important witness for the defence case because he places the defendant near to Amalie when he first arrived and the [sic] reports that the defendant squatted down on his haunches at the side of the road and near Amalie and remained there until the police arrived a short time later. The evidence of Faulks is significant because it substantially refutes the evidence of Sedgley and the claims that Sedgley made in relation to the actions and the utterances of the defendant."
"There was a kid in the car and he was trying to get out. There was a lady at the car yelling out `Get the fuck out of the car.' I watched what was happening. I heard someone yell "leave the fucking car there, who gives a shit."
He was unable to identify the voice or whether it was male or female. He then returned to his caravan. Jeffries gave evidence at the committal hearing to the same effect, saying when he saw the person, she was running from the passenger side of the vehicle to the driver's side. He formed the impression that this person was not the driver but may have been as there was sufficient time for that to have been the case. The woman was at the front of the vehicle and yelling at the child as the car was rolling forward.
"Q. Had you told the policeman, the highway policeman at the scene that Mr Badenoch had said those words to you? A. I am unable to remember that because I was in shock. That actual one statement put me in shock for days after, knowing that somebody had been stabbed in my vicinity. Q. Yes, I follow, yes. But what you are saying is you are unsure whether you told the policeman that night what Mr Badenoch had said to you? A. I told the police officer the movements once I'd been involved with the children and I'd got Farren to come and sit down on the lawn with me to relax to sort of - to wind down a bit, to relax before I took him up to the ambulance officers. Q. Yes? A. And possibly - I am pretty certain I did tell him - I would have told him the main content of what was said, but I had done - as you said, I haven't seen that police officer since that night.
...
Q. You never told your wife or in fact anybody else, for that matter, that Mr Badenoch said those words to you, have you? A. No."[39]
The decision of counsel for the applicant not to pursue this matter in the light of the last answer was sound and there was no basis for the Crown to call Schulz who for practical purposes had no admissible evidence to give.
"By failing to call all material and relevant witnesses the Crown effectively denied the defendant the opportunity to fully put a defence."
"33. That the Crown failed in its duty to fairly and fully put its case when it did not reveal to the Court that Senior Constable Brendon Francis Carrodus had sustained a broken leg on 26 July 2002 and that this was the reason that he was supposedly unable to give evidence 75 or 80 days later in October 2002. 34. That the defence failed in its duty to properly defend the accused person and represent his interests when it failed to inquire into, or ask that evidence be called to explain to the Court why a broken leg in July 2002 prevented Police Officer Brendon Francis Carrodus from giving evidence in October 2002 some 75 to 80 days later."
"28. In all of the circumstances associated with the flagrant incompetence of counsel, the defendant was denied the opportunity to fully put a defence. 29. In all the circumstances associated with the flagrant incompetence of counsel, the defendant was denied the opportunity of an acquittal which was fairly open to him."
"23. By its conduct of the case, the Crown caused the trial to miscarry because it unfairly denied the defendant the opportunity of an acquittal that was reasonably open to him." 30. That the conviction for murder was against the weight of the evidence. 31. In all the circumstances, and taking all of the above grounds of appeal together, the cumulative effect is that there was a serious miscarriage of justice which causes the conviction to be manifestly unsafe and unsatisfactory. 36. That in all the circumstances of the case the decision of the Crown in not making all witnesses available caused a serious miscarriage of justice. 37. That in all the circumstances the verdict is unsafe and unsatisfactory, and that considering all of the grounds of appeal in total and cumulative upon each other, the conviction and sentence should be quashed and a verdict of acquittal should be entered and no retrial ordered. 38. That the conviction for murder was against the weight of the evidence, and considering all of the circumstances the conviction, a properly instructed jury acting reasonably, could not have arrived at the verdict that was delivered, the conviction and sentence should be quashed and a verdict of acquittal should be entered and no retrial ordered."
"32. At the time of filing this notice of appeal the defendant is not represented by counsel for the appeal, and under those circumstances he asks for the consideration of the Court in allowing amendments to the grounds relied upon."
"40 Counsel for the defence as an officer of the Court failed in his duty as an officer of the Court to ensure that the defendant was not tried unfairly. 41. Counsel for the defence, as an officer of the Court, failed in his duty as an officer of the Court to ensure that the proceedings were not an abuse of process and an instrument of unfair oppression towards the defendant."
"42. Counsel for the Crown, as an officer of the Court, failed in his duty as an officer of the Court to ensure that the defendant was not tried unfairly. 43. Counsel for the Crown, as an officer of the Court, failed in his duty as an officer of the Court to ensure that the proceedings were not an abuse of process and an instrument of unfair oppression towards the defendant."
HIS HONOUR: This is an application by Mr Farren Badenoch, who appears in person, that I disqualify myself from further hearing this case, on the basis of actual or apprehended bias. Such disqualification must relate to my hearing of a plea in mitigation and my passing of sentence since the decision to convict Mr Badenoch has already been made by a jury.
There is a further application made by Mr Badenoch that I order that these proceedings be stayed as an abuse of process.
It is not clear what would legally follow from the success of either of these applications but, because of the conclusion I have reached about them, it is not necessary to explore either their appropriateness at this stage of the proceedings or their legal consequences.
The law relating to bias has recently been considered in Johnson v. Johnson [2000] HCA 48. Reference to the principles relating to abuse of process is contained in Victorian Criminal Procedures : Fox (2000) at paragraph 2.3.4.1. It is not necessary to set out this material.
Mr Badenoch, I do not intend to respond in detail to the lengthy submissions made by you but I will make some comments.
I cannot, obviously, comment upon any views Mr Drazetic may have of his relationship with me, but I have had no professional or social association with him for very many years.
In this case I advised you to discuss the matter of terminating the services of experienced defence counsel Mr Len Hartnett with those representing you who, in fact, included Mr Drazetic, as the Victoria Legal Aid representative. As you quoted from the transcript, I also indicated that the decision as to whether you terminated the services of your counsel was ultimately a matter for you (P.188).
As to any lack of inquiry as to why you sacked Mr Hartnett, this was a matter between you and your counsel and, on its face, one of legal professional privilege. Accordingly, I did not regard it appropriate that I inquire into those circumstances.
As the transcript indicates, I indicated to you that you should not seek to manipulate the system by the device of terminating the services of counsel. I did not, however, find that you had done so. In fact I adjourned the trial and I extended and varied your bail so as you could attend the Aboriginal Health Service in Melbourne
I have already mentioned my practice in relation to the reading of the depositions when there is to be a voir dire (P.22/23 of discussion). I do not intend to repeat those comments.
No pressure was put on the defence in this matter in terms of the speed of the completion of this trial. The suggestion that the trial had to be concluded by a date in October because of my sabbatical leave is misconceived. Although the transcript refers to October (at p.199) this should be a reference to September. As I pointed out to you during the course of your submission today, my sabbatical leave actually preceded the trial. Further, you had a period of about two months for trial preparation between August and 8 October including the proofing of any witnesses.
Next, my query to counsel as to the length of the trial is a query made by all judges and the reason that information is sought is for the benefit of the jury who are members of the community and who wish to know how much of their daily lives they must give up for jury service. Similar information will also be sought by a judge as to the progress of a trial.
In relation to your challenge to the composition of the jury panel, I expressed the view that the application had no substance. Subsequently, a legal ruling was given by me on this issue and it is subject to the scrutiny of the Court of Appeal.
As to the issue of your fitness for trial, I have indicated that I varied your bail so as to enable you to consult with your medical advisers. This was in August 2001 in response to a letter dated 14th August form Dr Claire Stainsby. At your trial in October 2001, almost two months later, no evidence was presented by your counsel indicating your inability to participate in your trial; consequently the question of the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 did not arise. I should add that the relevant medical file was returned to the custody of the Court and did not indicate that you had ever visited Dr Stainsby in the interim period.
You have raised a number of evidentiary matters and rulings in the course of your submissions. It is again, I think, sufficient to respond that the fairness of the conduct of this trial is open to scrutiny by the Appellate Court. In this regard the transcript speaks for itself. The same may be said for those passages quoted by you in this bias application.
Having listened to your submissions it is my view that nothing raised in them would warrant me disqualifying myself or, alternatively, staying these proceedings as an abuse of process. That finding itself is, of course, open to consideration by the Court of Appeal.
That being my conclusion, I do not propose to disqualify myself and we should move, at a time suitable to you, to your plea in this matter and then ultimately to my sentencing of you. I don't need to tell you that any sentence I impose will also be subject to appeal by you.
[1] The Court early in the hearing gave the applicant leave to amend his notice of appeal as sought in his written submissions.
[8] This assumption may not have been correct and could have been perceived as extremely offensive to any aboriginal person present if it was not the case.
[10] R. v. Grant and Lovett [1972] VicRp 47; [1972] V.R. 423 at 425.
[12] His Honour also referred to R. v. Thomas [1958] VicRp 18; [1958] V.R. 97 and the relevant passage in Fox Victorian Criminal Procedure and to R. v. Greer (1996) 84 A.C.R. 482.
[16] Relevant portions of that letter read:
"Mr Farren Badenoch has been a patient of this practice since 1997. I have reviewed his Medical Records here and find that in 1997 he attended for counselling with Anton Provan, who was a counsellor at this service. This counselling was about dealing with violence and disagreements and anger management. I have seen him as a patient on two occasions, both in this year. He saw Dr Liz Moore and orthopedic specialist Mr Rush for a knee injury in 1998. This year I have seen Mr Farren Badenoch on 2 occasions, on 21/05/01 for problems of R shoulder muscle wasting and nerve pain following an electrical injury, abdominal pain from Gastro-oesophageal reflux and asthma. He also complained of stress and worry regarding an [impending] court case surrounding allegations of the Murder of his sister. On 22/06/01 I again saw Mr Farren Badenoch in a consultation. On this occasion he was very stressed about the court case coming up, he described feeling a great deal of stress about the prospect of facing Gaol. At this time I believed him to be suffering from an acute stress disorder. He also still suffered from muscle and nerve pains in his R shoulder, and Gastric reflux. From his medical records and from my consultations with the patient it is my opinion that he has a stress or adjustment disorder following the death of his sister and the accusation of murder charges that he is facing currently. It is possible that with the actual trial now running that his pre-existing psychological problems could be aggravated. Any worsening of his psychological or psychiatric state needs to be assessed by an appropriate psychiatric team.
If he is not at urgent risk of self harm it would be appropriate for him to be referred to our health service where we can make arrangements for psychiatric assessment as an outpatient, or if necessary an inpatient. If he is in immediate risk urgent assessment should be sought as soon as possible in Mildura, or referral made to the Koori Psychiatric Inpatients Unit at St Vincent's Hospital Melbourne."
[19] Section 6 of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 states:
"6. When is a person unfit to stand trial? (1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be - (a) unable to understand the nature of the charge; or (b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or (c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or (d) unable to follow the course of the trial; or (e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or (f) unable to give instructions to his or her legal practitioner. (2) A person is not unfit to stand trial only because he or she is suffering from memory loss." See also R. v. Presser [1958] VicRp 9; [1958] V.R. 45; R. v. Kesavarajah ([1994] HCA 41; 1994) 181 C.L.R. 230.
[20] Johnson v. Johnson [2000] HCA 48; (2000) 201 C.L.R. 488 at 493.
[27] These interviews were of a formal character designed to ensure that the applicant was aware of his rights and were not led in evidence.
[41] See M v. R [1994] HCA 63; (1994) 181 C.L.R. 487.
R
Badenoch [2004] VSCA 95
Criminal Law - Conviction - Murder - Challenge to jury array - Whether applicant unfit to plead or unable to instruct legal representatives - Bias application against trial judge - Johnson v. Johnson [2000] HCA 48; (2000) 201 C.L.R. 488 - Admissibility of various parts of record of interview - Whether applicant in fit state to be interviewed - Alleged breach of duty by Crown to call all relevant and material witnesses - Alleged incompetent legal representation - Whether verdict of jury was unsafe and unsatisfactory - Application dismissed.