Edited edition of reasons for judgment delivered orally

Procedure - Courts and judges generally - Judges - Disqualification for interest or bias - In general - Reasonable suspicion of bias - Relevant suspicion is that the judicial officer will not decide a case impartially and with an unprejudiced mind.

R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re J R L; ex parte C J L [1986] HCA 39; (1986) 161 CLR 342, applied.

Judgment Number: [2001] TASSC 47

1 Six accused persons are joined together upon an indictment containing 14 counts. Apart from the last two, all counts allege the commission of the crime of conspiracy. These counts allege, in effect, that four conspiracies were entered into, each either to defraud, or alternatively, to commit a crime, or alternatively, to pervert justice. Two of the accused persons are alleged to have been parties to all four conspiracies, one of the accused is alleged to have been a party to two of the conspiracies, and the remaining three accused, Andrew Lamont, Paul Kelly and John Bostock, are alleged to have been a party to one of the conspiracies.

2 The criminal pleadings allege that one of the parties to each of the four conspiracies was a George H Gamble and one of the parties, a party to three of the conspiracies, was a Robert J Jones.

3 Counsel for Mr Kelly, Mr Wendler QC, submitted that I should disqualify myself from being the trial judge upon the grounds of apparent bias. It was submitted that the bias arose out of the following circumstances.

4 In 1999, Gamble and Jones pleaded guilty to three and two counts of conspiracy respectively. One of those conspiracies was the same, or arose out of the same facts, as the conspiracy presently charged against Mr Kelly. On 10 February 1999, I sentenced Gamble and Jones upon their pleas of guilty. At the conclusion of my comments on passing sentence, I said:

"Also taken into account is the agreement that both of you have made to give full and truthful answers if subpoenaed to give evidence on the trial of your co-conspirators, persons whom I regard as the principal criminal offenders".

5 Mr Wendler submitted that the use of the words emphasised above gives rise to a reasonable apprehension of bias such that I should disqualify myself from presiding over the trial of his client. The test for the existence of a reasonable apprehension of bias is now well established. See R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12 and Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288. These cases establish that apprehended bias exists where it might reasonably be expected by fair minded persons that the judge might not resolve the question before him or her with a fair and unprejudiced mind. With respect to this proposition Gibbs ACJ (as he then was) said in R v Lusink; ex parte Shaw (supra) at 14 that:

"Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be 'firmly established' that such a suspicion may reasonably be engendered in the minds of the parties or the public ...".

6 The hypothetical fair minded observer or bystander is an informed observer or bystander, and relevant to this case, would be aware that the impugned observation was made during the course of a sentencing hearing with respect to two co-conspirators in the absence of the accused Mr Kelly. The informed bystander would be aware that only the prisoners Gamble and Jones were present on the sentencing hearing and that the material put before me at that hearing comprised only statements made by counsel for the Crown and statements by counsel for the prisoners, as is authorised by the Sentencing Act 1997, s81. Further, the informed bystander would be aware that upon the material put to me at that sentencing hearing, any conclusion other than that the prisoners' co-conspirators were, vis-a-vis Gamble and Jones, the principal criminal offenders, would have been perverse. Finally, the informed hypothetical bystander would also be aware that it is the function of the jury and not the trial judge to determine the guilt of Mr Kelly and those joined with him on the indictment, although it is true as Mr Wendler submitted, that I am likely to have to consider Mr Kelly's credit during the course of determining one or more applications that he foreshadowed will be made to exclude certain pieces of evidence.

7 It is important to note that the relevant apprehension is not that the judicial officer will decide a case adversely to any party by reason of some prior act, statement or determination, but that he or she will not decide it impartially and with an unprejudiced mind. This point is made in the following passage taken from the judgment of Mason J (as he then was) in Re J R L; ex parte C J L [1986] HCA 39; (1986) 161 CLR 342 at 352:

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

8 As was pointed out in R v Masters (1992) 26 NSWLR 450 at 470, et seq, a trial judge is often required to make determinations involving the credit of an accused person, both before the trial commences and during its course. The court said that that fact alone does not necessarily raise a reasonable apprehension in the mind of the hypothetical bystander that at some subsequent time the trial judge may not approach a matter he or she has to determine with an impartial and unprejudiced mind. The court in Masters said at 472 - 473:

"We do not accept the submission on behalf of Richards that a judge would be obliged to disqualify himself from continuing with a criminal trial because, in deciding the admissibility of evidence after a voir dire examination in which the accused gave evidence, he had expressed views critical of the accused's credit and because it was likely that he may have to determine later in the case another issue involving the credit of the accused on either a further voir dire examination or when imposing sentence. Such a proposition makes nonsense of the judicial system. We do not pause to consider whether that is so because the principle of apprehended bias does not operate so as to require the judge to be disqualified during the course of the one trial or because such a case falls within the somewhat uncharted exemption afforded for necessity: Livesey v New South Wales Bar Association (at 300). We see no distinction between the situation where the decision in question is made on a voir dire examination during the trial and the situation where the judge has in a pre-trial motion decided an issue against an accused which may well arise again for his decision in the trial itself."

9 It seems to me that the above proposition applies a fortiori to the present matter. Upon the sentencing of Gamble and Jones, no finding was made that bound Mr Kelly, nor could such a finding have been made. He was not present and not a party to the proceedings. The impugned view was expressed without hearing evidence, only on the material put before me and with respect only to the prisoners then being sentenced. The hypothetical bystander would know that the view was expressed only for the purpose of the imposition of sentence upon Gamble and Jones, that it did not involve a determination of the credit of Mr Kelly other than that implicit in the proposition that for the purpose of imposing sentence, his co-conspirators were principal offenders. In those circumstances, it seems plain to me that no fair minded person could reasonably apprehend that as trial judge, I will not approach the issues that I have to determine with other than an impartial and unprejudiced mind.

10 The application that I disqualify myself as presiding over the trial of Mr Kelly and his co-accused is dismissed.