//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] NSWSC 340
Supreme Court of NSW
2012-03-30
Johnson J
Original judgment source is linked above.
Judgment 1JOHNSON J: This judgment relates to an application made by each Accused, Nasaem El-Zeyat and Ramzi Aouad, that I recuse myself from sitting as trial judge, with a jury, at a trial then fixed to commence on 23 April 2012. Each Accused is charged with the murder of Ahmed Fahda at Punchbowl on 30 October 2003. 2The Crown opposed the application by each Accused. 3Having been allocated the trial of the Accused, I directed that the proceedings be listed for mention on 13 March 2012. On that occasion, Mr McLachlan, counsel for the Accused El-Zeyat, and Mr Waterstreet, counsel for the Accused Aouad, foreshadowed the possibility that an application may be made that I not sit as trial judge because of a reasonable apprehension of bias. As it was not definite that such an application was to be made, I stood the proceedings over to 21 March 2012 to allow time for each Accused to determine whether there was to be such an application. On that day, counsel for each Accused confirmed that such an application was to be made. Given the proximity of the trial, I listed the application for hearing on 30 March 2012 and gave directions for the filing and service of written submissions for the purpose of the application. 4On 30 March 2012, I heard the application and reserved my decision until 4 April 2012. 5On 4 April 2012, I announced my decision acceding to the application by each Accused that I recuse myself from sitting as trial judge in these matters. I indicated that I would publish my reasons for that decision at a later date. This judgment contains my reasons for that decision.
6The application is based upon my involvement, as a member of the Court of Criminal Appeal, in two decisions handed down on 8 April 2011. In Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411, the Court (James J, McClellan CJ at CL and myself agreeing) allowed an appeal by each Accused from their convictions for murder, quashed the convictions and ordered new trials. 7It was my allocated role as the trial judge at those new trials which attracted the present application. 8On the same day, the Court similarly constituted, dismissed appeals against conviction for murder involving each Accused (and others) arising from a different trial: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62. The judgment of the Court in those proceedings was written by me, with McClellan CJ at CL and James J agreeing. On 9 December 2011, the High Court of Australia refused special leave to appeal from that judgment: El Zayet v The Queen; Aouad v The Queen, Darwiche v The Queen; Osman v The Queen [2011] HCATrans 342. 9The portions of the two judgments of the Court of Criminal Appeal which are presently relevant are those which addressed applications to rely on fresh evidence at the hearing of the appeals. In each case, fresh evidence was sought to be relied upon which was said to operate adversely to the credibility and reliability of two important Crown witnesses, Wahib Hannouf and Haissam Hannouf. Each of these persons had given evidence for the Crown in the two trials which led to the two related appeals. 10The evidence of Wahib Hannouf and Haissam Hannouf in the trial which gave rise to the successful appeal and order for retrial, was summarised by James J at [82]-[107] (Wahib Hannouf) and [108]-[127] (Haissam Hannouf). 11The evidence of Wahib Hannouf and Haissam Hannouf in the trial which gave rise to the unsuccessful related appeal was referred to in the summary of the Crown case contained in my judgment at [45]ff, with further references being made to indemnities granted to these witnesses at [138]-[159]. 12In the appeal in which James J wrote the leading judgment, these fresh evidence grounds are dealt with at [369]-[400]. As the appeal against conviction was to be allowed upon another ground, James J dealt with these grounds relatively briefly. The application made by Nasaem El-Zeyat in that appeal was to adduce fresh evidence from Fadi El-Jamal (also known as Joe Osman) and Houssam El-Jamal. At [386]-[387], James J observed that Fadi El-Jamal's evidence was not "credible or at least capable of belief" for reasons explained by his Honour. James J noted, as well, that other matters adverse to the credibility of Fadi El-Jamal were contained in my judgment in the related appeals. With respect to Houssam El-Jamal, James J did not make a finding concerning the credibility of the proffered evidence (at [399]-[400]). 13In my judgment in the related appeals, the application by Nasaem El-Zeyat to adduce fresh evidence was addressed at greater length (at [452]-[533]). 14In the course of rejecting the application to adduce fresh evidence from Fadi El-Jamal, I said at [467], [472]-[473]: "467The Court of Criminal Appeal has a responsibility on an application such as this to assess the cogency and probative value of the evidence sought to be relied upon as fresh evidence. The Court should look at all the circumstances, including the identity of the proposed new witness or witnesses, their past involvement in the proceedings, what they have said before and what they say now and the time at which they come forward with what is said to be fresh evidence. ... 472In the same way that juries are instructed to use their common sense and their experience of life in their deliberations, this Court is entitled to approach the emergence of evidence such as this, given its timing and content, with very considerable circumspection. A too-ready acceptance of suspect material, provided long after the trial, would be contrary to the proper administration of justice. The Appellants were convicted by a jury following a lengthy trial. This Court should take a most guarded approach where evidence such as this is proffered long after the trial in support of a ground of appeal asserting that there has been a miscarriage of justice resulting from the absence at the trial of suggested fresh evidence. 473This Court is not bound to accept the credibility or plausibility of evidence such as this, in the absence of cross-examination of the deponent. The Court may form a view for the purpose of a discretionary determination concerning leave, by perusal of all the affidavits and documentary material, viewed against the background of the trial." 15Soon after, I said at [482]-[484]: "482An assessment, on the papers, of Fadi El-Jamal's account gives rise to the following concerns which relate to credibility and plausibility: (a)There is no doubt that Fadi El-Jamal was an associate of the range of persons involved in the trial, either as Crown witnesses or accused persons. The contents of the statements which the police assert Fadi El-Jamal made in 2003 and 2004, using the pseudonym Samear Havda, do not seem fanciful. It is noteworthy that, in his evidence on the voir dire on 14 March 2006, Fadi El-Jamal did not deny telling police what was contained in the statements. He said he could not recall. (b)It is clear that Fadi El-Jamal declined to adopt the statements at the voir dire on 14 March 2006, by which time he had been charged with murder. However, no allegation of assault or pressure was made by him at that hearing. (c)Certainly by March 2006, if not well before, there was clear antagonism between the El-Jamal brothers (Fadi and Houssam) and the Hannouf brothers (Wahib and Haissam) - there was no good reason why the El-Jamal brothers would withhold any knowledge which they had which was adverse to the Hannouf brothers. (d)Long after the trial and the hearing of the appeal, Fadi El-Jamal now asserts that there was police pressure and an assault upon him. (e)Affidavits are on from the relevant police officers which explain the circumstances in which the statements were taken and deny any misconduct - the content and context of the Samear Havda statements tend to undermine the credibility or plausibility of Fadi El-Jamal's recent affidavit. 483There is a strong flavour of recent invention surrounding the affidavit of Fadi El-Jamal. Even if his evidence was admitted before the jury, careful directions would have been required concerning any reliance being placed upon it, in particular in the absence of corroboration. 484It is fair to observe from the totality of the material available to the Court on this application, including the complete transcript of 14 March 2006, the statements said to have been made by Fadi El-Jamal in 2003 and 2004 and the affidavits of Detectives Tuckerman and Wakeham, that very significant credibility issues affect that affidavit. I am not persuaded that the affidavit of Fadi El-Jamal is credible or plausible." 16At [494], I concluded that it had not been demonstrated by the Appellant El-Zeyat, that the evidence of Fadi El-Jamal was fresh and that it was credible and plausible. 17With respect to the application by the Appellant El-Zeyat to adduce fresh evidence from Houssam El-Jamal, I found (at [519]) that it did not constitute fresh evidence. I went on to make a strong adverse finding with respect to the credibility and plausibility of the material from Houssam El-Jamal at [521]-[522]: "521Even if the Houssam El-Jamal material was demonstrated to be fresh evidence, I am not persuaded that it constitutes credible and plausible evidence in the circumstances of this case. The circumstances in which the affidavit came forward long after the trial, and after the appeal was heard, bears upon this assessment by the Court. The allegations contained in the affidavit of Houssam El-Jamal are disputed. The affidavit of Houssam El-Jamal has a number of disturbing features. At the time of these alleged conversations, he clearly had a strong dislike for Wahib and Haissam Hannouf. He alleged that they had committed serious offences against him in November 2003. He told police (in an induced statement made on 23 March 2004) that he was very angry with the Hannoufs and that he had committed a drive-by shooting on Haissam Hannouf's house in December 2003. In 2004, he clearly had a continuing strong dislike of the Hannoufs, so any allegation by him against them could be accurately described as biased. 522It seems improbable that, had Houssam El-Jamal heard the conversations over the prison wall as alleged in his affidavit, he would have remained quiet about these alleged statements from 2004 until after the trial in 2006, given the value of such material (if true) to attack the Hannouf brothers. That Houssam El-Jamal would stand back and allow the Hannoufs to obtain the benefits of the indemnities, which extended directly to charges of offences committed against him, is completely unexplained and is not credible."
18The legal test to be applied on a recusal application is the same whether a judge is to sit with a jury or as a judge sitting alone. The General Principles 19The governing principle is that, subject to qualifications relating to waiver, necessity or possibly special circumstances (none of which arise in this case), 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 or questions that the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344 [6]: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at 331 [139], 333-335 [146]-[152]. 20In practice, the application of this test involves three steps: (a)the party seeking recusal must identify what it is that might lead the judge to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at 345 [8]; (b)the party seeking recusal must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345 [8]; (c)once the matter suggesting bias has been identified and the logical connection between that matter and the feared deviation has been articulated, the party seeking recusal must establish that there is an ensuing apprehension of bias and that that apprehension is reasonable: Ebner v Official Trustee in Bankruptcy at 345 [8]. 21A judge should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 504 [45]. 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: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352. 22A judge is obliged to recuse himself or herself from hearing a matter only if, in the judge's view, there is a real possibility that the judge's participation in a case might lead to a reasonable apprehension of bias: Livesey v New South Wales Bar Association at 294. 23Where, as here, reasonable apprehension of bias is said to arise by way of prejudgment, it is necessary to consider the nature and strength of any previous findings which are relied upon in support of the application, and in particular whether the findings concern the credibility of a witness or witnesses: British American Tobacco Australia Services Limited v Laurie at 331-333 [139]-[145]; Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 86 ALJR 14 at 20-21 [31]-[33], 26-27 [67]-[73]. The hypothetical observer will have in mind the fact that judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence in the particular case: British American Tobacco Services Limited v Laurie at 331-332 [140]. 24In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits (the second step in Ebner v Official Trustee in Bankruptcy), it is important to bear in mind the characteristics of modern litigation - the rules and conventions governing ordinary judicial practice are not frozen in time. They develop to take into account exigencies of modern litigation so that, 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, inscrutable, although sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. One thing that is clear is that the expression of tentative views during the course of argument, as to matters on which the parties are permitted to make full submissions, does not manifest partiality or bias: Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2006] HCA 55; 229 CLR 577 at 609-610 [111]-[112]. 25It has been said that, in a case of real doubt, where the application for recusal is based upon a substantial ground for contending that the judge is disqualified from hearing the case, a judge may decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification: Ebner v Official Trustee in Bankruptcy at 348 [20]. Matters relevant to that assessment include, amongst other things, the stage at which an objection is raised and the practical possibility of arranging for another judge to hear the case: Ebner v Official Trustee in Bankruptcy at 348 [21]. Some Further Considerations Where a Judge is to Preside at Criminal Jury Trial 26Although the test for reasonable apprehension of bias remains the same whether the judge is to sit with or without a jury, that distinction is pertinent given the different issues which a trial judge may be called upon to determine, which do not include the ultimate factual question of whether the guilt of the accused has been proved beyond reasonable doubt, this being a matter for the jury. 27The application of the relevant principles in the context of a judge-alone trial were considered by the High Court of Australia in Antoun v The Queen [2006] HCA 2; 80 ALJR 497. 28The distinction between the functions of judge and jury in a criminal trial are well illustrated by the decision of the Court of Criminal Appeal in R v Kearns [2003] NSWCCA 367. In that case, the trial judge had presided at an earlier trial of a related offender. In these circumstances, it was submitted on appeal against conviction, that the trial judge should not have presided at the trial of the appellant. In the course of rejecting this ground of appeal, Spigelman CJ (Dunford and Hidden JJ agreeing) said at [33]-[40]: "[33] The Appellant contends that his Honour's involvement, even as a presiding judge in a jury trial, gave rise to a reasonable apprehension of bias. It was submitted that as his Honour had heard the alleged fabrications of Parkes and of those whom the Appellant contends are his co-conspirators, ie fabricated allegations against the Appellant, in a trial where those allegations against the Appellant were uncontested, that fact may have prejudiced the trial judge. [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 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'. [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. [37] Nevertheless, decisions to admit or reject the evidence and the other subtle and indirect influences which were referred to in Balic (No 2), may affect the course of a criminal trial. In a complex trial involving financial questions that will need to be carefully explained to a jury, it is an advantage for a trial judge to have a familiarity with the corporate group of the character that Judge Dodd had on these occasions, even though the particular offending was quite distinct in the case of the Parkes prosecution from the prosecution of the Appellant. [38] I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge's mind, in terms of his or her conduct in the second trial. [39] These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge. [40] This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair-minded, independent lay observer." 29There is no general rule that a new trial must take place before a different judge: R v Lee [2005] QCA 122 at [5]-[7]. The fact that a judge has presided at the first trial of a person, where a retrial is ordered, is no reason of itself for that judge to decline to preside at the second trial. A retrial may occur for many reasons. To conduct a retrial is to conduct the trial which ought to have taken place in the first place: Cornwell v The Queen [2007] HCA 12; 231 CLR 260 at 294-295 [88]. 30The fact that a sentencing judge has made statements, in the course of sentencing one offender, does not provide a foundation for that judge to step aside from presiding at the trial, with a jury, of a related alleged offender: R v Sonnet (No. 3) [2007] VSC 287; R v Kearns at [39]-[40]. Indeed, the ordinary rule is that co-offenders should ordinarily be sentenced by the same judge: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [33]-[46]. 31The interrelationship between the judge and jury at a criminal trial was considered by the High Court of Australia in Cesan v The Queen [2008] HCA 52; 236 CLR 358. French CJ observed at 362 [4] that the duty of a judge in a jury trial "extends to the supervision and control of the conduct of the trial". At 381-382 [74], French CJ said: "In a jury trial it is not the judge but the jury which finds the facts. It reaches a verdict by applying to the facts the law as explained to it by the judge. But the judge's function in such a trial is not exhaustively described by saying that he or she rules on questions of law including the admissibility of evidence, sums up to the jury, directs the jury on matters of law and otherwise acts as a kind of referee between prosecution and defence. These are all attributes of a more broadly expressed function of supervision and control of and participation in the trial process. That is a function which has long been understood. It requires no less a standard of attentiveness to the evidence and the conduct of the trial generally than the standard applicable to a judge sitting alone. Indeed, because of the involvement of the jury it requires more." 32In the same case, Gummow J (Heydon J agreeing), at 389-390 [102]-[103], emphasised as well the direction and superintendence of the judge presiding at a criminal jury trial.
33Mr Waterstreet submitted that pretrial applications and areas of objection, which may arise for determination by the trial judge in this case, included objections to the evidence of Wahib Hannouf and Haissam Hannouf, together with the prospect of applications under s.38 Evidence Act 1995 concerning their evidence, and the giving of directions under s.165 Evidence Act 1995 and generally concerning the evidence of these witnesses. Further, he submitted that it was likely that Fadi El-Jamal and Houssam El-Jamal would be called as witnesses (T13, 30 March 2012) with issues to arise for the trial judge in the context of that evidence. 34Mr Waterstreet's written submissions ranged more widely than this, extending to an argument that I should not sit as trial judge because of conclusions reached concerning other appeal grounds in my judgment, and the perception of each Accused that the judgment I had written in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R had led to their continuing life imprisonment, together with an associated submission that, merely because I had been a member of the Court of Criminal Appeal, it was not appropriate that I preside at the retrial. 35Mr Ramage QC, for Mr El-Zeyat, adopted Mr Waterstreet's submissions. He submitted that it was likely that Fadi El-Jamal and Houssam El-Jamal were likely to be called as defence witnesses in the case of one or the other of the two Accused (T6-7, T9, 30 March 2012). Mr Ramage QC submitted that the position was analogous to that of the Court of Appeal in Livesey v New South Wales Bar Association, where findings had been made by Judges of the Court of Appeal in the first set of proceedings concerning the credibility of a witness who was to be called to give evidence in the second set of proceedings. He submitted that the findings concerning Fadi El-Jamal and Houssam El-Jamal contained in my judgment in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R had similar application here, given that these persons were likely to be called as defence witnesses at the trial. 36The Crown submitted that the conclusions and findings made in my judgment in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R were based upon the material before the Court of Criminal Appeal, with those findings and conclusions arising in the context of an application for leave to adduce fresh evidence on appeal. It was submitted that a fair-minded lay observer would so understand the findings and conclusions which I reached, so that there was no prospect that those findings and conclusions could be viewed as giving rise to a reasonable apprehension of bias at the trial of the present Accused.
37I have had regard to the principles set out earlier in this judgment in considering the present application. The Court should not lightly or too readily accede to a recusal application. It is necessary to consider the steps identified in Ebner v Official Trustee in Bankruptcy to ensure that a reasonable and proper basis exists for the application. 38The fact that I was a member of the Court of Criminal Appeal in the related appeals determined on 8 April 2011 does not, of itself, give rise to a reasonable apprehension of bias. From time to time, judges of this Court who have been members of the Court of Criminal Appeal on an appeal concerning a particular person under s.5 or s.5F Criminal Appeal Act 1912 might, at a later time, preside at proceedings concerning that person involving the same subject matter. 39Likewise, members of the Court of Criminal Appeal may sit on a s.5F appeal, and then later find themselves sitting on an appeal against conviction arising from the same proceedings. In fact, that very situation occurred here, where McClellan CJ at CL and I were members of the Court of Criminal Appeal on a s.5F appeal (Osman v R [2006] NSWCCA 196), whilst sitting again on the two related appeals determined on 8 April 2011. This fact was known to all parties and no application was made as a result of the prior involvement of the Chief Judge at Common Law and myself in this way. 40This is not an area where automatic consequences follow as a result of a judge having presided, in one way or another, in proceedings involving the same person and the same subject matter at an earlier time. 41What the authorities make clear is that it is necessary to focus upon the substance of the application, with the steps identified in Ebner v Official Trustee in Bankruptcy kept firmly in mind. 42Where the application is made that a judge should disqualify himself or herself from sitting at a criminal jury trial, it is pertinent to keep in mind the respective functions of the judge and jury at a criminal trial. It will be for the jury, and not the judge, to determine whether the Crown has proved beyond reasonable doubt the guilt of the accused. However, it will be necessary for the trial judge to determine issues of admissibility of evidence and to give directions to the jury and to sum up the evidence to the jury. 43These functions are to be exercised in the course of the trial judge's duty to supervise and control the conduct of the trial. As Spigelman CJ observed in R v Kearns at [37], "Decisions to admit or reject the evidence and the other subtle and indirect influences which were referred to in Balic (No. 2), may affect the course of a criminal trial". 44The following considerations are of particular importance to the resolution of this application: (a)Wahib Hannouf and Haissam Hannouf are most important witnesses for the Crown at the trial of each Accused; (b)as occurred at the first trial, there will be a strong challenge to the credibility and reliability of the evidence of Wahib Hannouf and Haissam Hannouf; (c)the Crown does not propose to call Fadi El-Jamal or Houssam El-Jamal as witnesses at the trial (T19, 30 March 2012); (d)the Court should approach this application upon the basis that one or other of the Accused will seek to call Fadi El-Jamal and Houssam El-Jamal as defence witnesses at the trial; (e)the Crown indicated that it was not possible to say, at this point, whether argument may occur concerning the admissibility of any evidence which Fadi El-Jamal or Houssam El-Jamal may be called to give (T19, 30 March 2012); (f)even if there is no Crown objection to evidence to be given by either Fadi El-Jamal or Houssam El-Jamal (or both), there is, at the least, a distinct prospect of debate concerning appropriate directions to be given to the jury concerning the evidence of these persons and its impact upon the evidence of Wahib Hannouf and Haissam Hannouf; (g)in the course of the judgment in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R, I made strong adverse findings concerning the credibility and plausibility of the accounts given (at least on paper) by Fadi El-Jamal and Houssam El-Jamal; (h)in the related appeal, James J picked up and applied some of these findings and I agreed with his Honour - those findings being made in the appeal which leads directly to this retrial; (i)the fair-minded lay observer would be aware of my earlier findings and conclusions, and would also be aware of the function of a trial judge and the decisions which may arise at a future trial concerning the evidence of these persons; (j)although the fair-minded lay observer would be aware of the training and experience of judges, that observer would also be aware that strong adverse findings concerning credibility of proposed defence witnesses had been made by me; (k)in these direct areas, quite apart from possible subtle and imperceptible influences which may occur at trial, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of questions that I may be required to decide at the trial. 45In these circumstances, I was satisfied that the appropriate course was that I should decline to sit as trial judge in this matter. 46This is a case where I have formed and expressed strong and unqualified adverse views as to the credibility of the accounts given by two persons whom, it should be taken, will be called as defence witnesses at the trial. Their evidence will relate directly to the credibility and reliability of the evidence of two critical Crown witnesses. As trial judge, I will likely be called upon to give rulings and directions concerning this evidence. These considerations give rise to a reasonable apprehension of bias by reason of prejudgment: Livesey v New South Wales Bar Association at 300; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 81; British American Tobacco Australia Services Limited v Laurie at 333 [145]; CUR24 v Director of Public Prosecutions [2012] NSWCA 65 at [57]-[66]. 47The events which give rise to the decision to recuse myself from the trial of these Accused are most unusual. But for the conclusions and findings made concerning the application to adduce fresh evidence from Fadi El-Jamal and Houssam El-Jamal, I do not consider that any part of the reasoning of the Court of Criminal Appeal in either of the related appeals decided on 8 April 2011 would warrant a decision that I recuse myself from presiding at this trial. 48I have concluded that this is a case where I should decline to sit as trial judge at the trial of the Accused. However, even if I had stopped short of this positive finding, this is, at least, a "case of real doubt", where the recusal application is based upon a substantial ground for contending that I should not sit, so that such a decision ought be made, in any event, to avoid the inconvenience that could result if an appellate court were to take a different view at a later time (see [25] above). 49Although reference was made during submissions to possible pretrial applications which may be made on behalf of the Accused, no concrete pretrial application was identified, so that I have not determined this application upon the basis of hypothetical pretrial applications. It remains, of course, entirely appropriate that the Accused give notice of pretrial applications which are to be made, and directions have been given to that end. 50In the exceptional circumstances disclosed in this judgment, I determined that I should stand aside as trial judge in these matters. Accordingly, I announced that decision on 4 April 2012 and these reasons serve to explain how I reached that conclusion.
Amendments 04 June 2012 - Caselaw incorrectly inserted "4 April 2012" as the "Decision Date". The "Decision Date" field should read: 4 April 2012 (decision announced); 26 April 2012 (publication of reasons). As only dates, can be inserted in the "Decision Date" field - 26 April 2012 has been inserted in lieu of 4 April 2012. Amended paragraphs: Coversheet - "Decision Date" field DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2012
R
El-Zeyat and Aouad
[2005] QCA 122
[2007] VSC 287
[2008] HCA 52
[2011] HCATrans 342
(2000) 201 CLR 488
[2000] HCA 63
[2006] HCA 2
[2006] HCA 55
[2011] HCA 48
[2011] HCA 2