R v Goussis [2007] VSC 171

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror) . . . , the governing principle is that, subject to qualifications relating to waiver . . ., 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 the judge is required to decide.

3 That test reflects "the importance of maintaining public confidence in the administration of justice and its capacity to ensure that cases are decided impartially."[4]

4 Counsel for the accused relied upon the decision of Reg v Watson ex-parte Armstrong[5], in which the court at p.263 said:

It is of fundamental importance that the public should have 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. To repeat the words of Lord Denning Master of the Rolls which have already been cited, justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking the judge was biased.

5 In respect of the proposed trial of Mr Goussis, it is acknowledged by all parties that the determination of the guilt or otherwise of the accused is a matter for determination by a jury, and not by the trial Judge.

6 Counsel for Mr Goussis relied upon a decision of the New South Wales Court of Criminal Appeal in the matter of Branko Balic (No2)[6]. In that case a solicitor, who was in the chambers of a Judge examining exhibits, overheard a Judge who was to preside over a particular case say to another Judge that he intended to revoke the bail of the accused man prior to the trial commencing. The accused had been on bail for some four years at that stage. This information was relayed to the accused and his counsel prior to the matter commencing. When the matter was called on, the trial Judge then proceeded, without any application by the Crown, to revoke the bail of the accused man. His Honour provided no reasons for the revocation of the bail. Subsequently, an application was made for the Judge to disqualify himself from proceeding with the trial on the basis of actual or perceived bias, which was refused. The basis of the application was that the remarks were capable of being interpreted, by both the accused and the public, as a pre-judgment, and thus could reasonably give rise to an apprehension that the trial Judge had pre-judged the matter of bail and thus was incapable of being impartial in the trial.

7 On appeal the court held that once such a decision is so tainted, as they found it was in that case, the decision must be set aside. They further determined that a consequential effect of such a setting aside is that the accused, or fair minded members of the public, could reasonably hold the view that any subsequent trial, presided over by that Judge, relating to that accused, may not have the appearance of impartiality which is necessary.

8 The Court stated in that decision:[7]

"Here any decision as to guilt or innocence 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 might 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." Counsel for the accused placed great weight upon that passage.

9 Counsel submitted that in my sentencing remarks in the matter of Carl Williams[8] I made findings of fact that were beyond what was required for the sentencing of Williams and, which would have indicated to a fair minded lay observer, that I had determined that the accused Goussis was guilty of the shooting of Lewis Moran.

10 In the plea of Williams the Crown put before the Court a summary of the factual material they said was relevant in relation to the charges to which he had entered a plea of guilty. A copy of this material had been provided to counsel for Williams earlier, and certain of the parts were disputed by him. He gave evidence upon the plea as to those matters that he disputed, and one of the disputed matters related to the murder with which the accused man Goussis is charged.

11 That disputed areas of fact was what was said by the witness, who was referred to as the driver in the case, in his statement, as to having been recruited by Williams to organise and carry out the murder for payment of $150,000 and the meeting that he said took place with Carl Williams, himself and Evangelos Goussis. Williams, indicated in evidence in the course of the plea that the arrangements for the murder were made through Lewis Caine. He said he did not meet the driver before the murder of Lewis Moran. He claimed that the payment was to be by way of drugs rather than money. The only meeting he said he ever had with the driver was one at the Metropolitan Hotel which occurred after the event.

12 It was submitted by Mr Shirrefs that what was clear from the evidence of Williams was that he did not know who the shooters were, other than knowing of the involvement of the driver, through his association with Lewis Caine. I accept that is an accurate assessment of Williams' evidence on the plea in relation to this aspect of the material.

13 Counsel submitted that what was clear and beyond doubt was, that Lewis Moran was shot, that The driver had pleaded guilty to the murder, Noel Faure had pleaded guilty to that murder and Goussis had pleaded not guilty to that murder, although he agreed that the Crown allegation as contained in the summary of materials was that Goussis was the shooter of Lewis Moran. It is that aspect that is the subject of the complaint in respect of perceived bias, on the basis that it was not a fact necessary to be determined.

14 It is submitted by Mr Shirrefs that any fair minded observer would believe that I have accepted that Goussis was the shooter and found that as a fact. For that submission he relies upon a particular statement included in my sentencing remarks, being:[9]

Accordingly, I do not accept that the arrangement for the murder of Lewis Moran occurred in the manner that you have described. However, equally I am unable to be satisfied to the required standard that the circumstances under which The driver, Noel Faure and Ange Goussis were employed to murder Lewis Moran were as described by The driver. The witness (the driver) has not been tested in any way before me, and it is difficult to place great reliance upon the untested word of an accomplice, at least for the purposes of sentencing.

What I am able to be satisfied of is that the actual murder occurred in the circumstances described by me earlier, that is, in a very public place, amongst members of the community going about their business or relaxing in a social club and even on your own version was contracted by you in the most callous and indifferent of circumstances. Your plea of guilty to the murder is an acknowledgment by you that you counselled and procured that murder, and once again even on your own version of the events you were willing to pay for it, albeit with illegal drugs, which on your evidence would have amounted to a sum or the equivalent of approximately $120,000 forgone in respect of the money that you could have made by selling the drugs in your normal manner.

15 At no stage did Williams dispute that the accused man Goussis was the shooter in respect of the murder of Lewis Moran, his evidence was that he did not know who the shooter was, and the only person he knew that had any involvement, apart from Lewis Caine, who was now dead, was the driver. Accordingly this was not a disputed factual matter upon which I had to make a determination for the purpose of sentence.

16 As indicated at the commencement of my sentencing remarks, what occurred in respect of the disputed matters was to state the matters which had been opened by the Crown and then refer to what parts of that were disputed by Williams. A determination was then made in respect of the disputed material if it was necessary for the purposes of sentencing. That process was made clear in the early passages of the sentencing remarks when it was stated; [10]

The Crown opened the circumstances under which they say these crimes were committed, you elected to give evidence before me during which you disputed a number of those circumstances to which the Crown had referred. You were cross examined by Mr Horgan S.C. on behalf of the Crown as to some of those matters.

In relation to the task of fact finding, it is my view that it is not relevant to the sentence that I have to impose that I determine all of the issues that have been raised by you as being disputed. There are certain matters which are necessary to determine but also many that are clearly not relevant and will have no impact upon the sentence that I will impose.

I will refer to the objective facts that are not disputed in any way when I am referring to the circumstances of the murders and the conspiracy. Any area in which the matters are contested by you, and may have relevance to the sentence to be imposed, I will indicate and deal with specifically as I state those circumstances.

17 As indicated the matter of whom the shooter was in respect of this murder was not disputed by Williams and the sentencing remarks are a recitation of the Crown allegations in relation to the circumstances under which the murders occurred. It is clear from my sentencing remarks that I was not prepared to act, even for the purpose of sentencing Williams, on the basis of a statement by a co-offender or accomplice and that, in my view, would be abundantly clear to any fair minded lay observer who read the sentencing remarks. Accordingly, it would be equally clear to that same fair minded person that I would not, and did not, form a view that a person was guilty on the same untested statement of an accomplice.

18 Fair minded observers do not take sentencing remarks that occupy 35 typewritten pages and 132 paragraphs and trawl through them to try and locate one aspect upon which, when taken out of context of the rest of the sentencing remarks, may provide a potential argument in respect of perception of bias or similar. Fair minded observers read the remarks as describing the circumstances surrounding and explaining the reasons for the passing of a sentence upon an offender. In my view when the remarks are read in totality it is clear that they relate to a description of the circumstances of the offending to which Williams had pleaded guilty and for which he was being sentenced.

19 It is common practice for the one Judge to deal with all related matters, one of the reasons being consistency of rulings and sentencing of co-offenders. It is equally not uncommon for those Judges to have to find or determine factual matters in relation to the involvement of one accused as against another prior to the hearing of a trial. Judges have on many occasions had to determine the particular role played, or the place in a hierarchy of a person who is pleading guilty and giving evidence on behalf of the Crown. This may well involve findings as to where other alleged co-offenders were comparatively in the hierarchy or their role in the criminal enterprise. This is done prior to the trial of the co-offenders, and is considered normal practice in the courts. None of that fact finding demonstrates a bias or creates a perception of bias, it is part of the function of the Judges in their role as the sentencing Judge.

20 For the foregoing reasons and applying the tests as outlined earlier, I do not accept that any fair minded lay person would perceive that I am biased in any way in relation to the forthcoming trial of Mr Goussis, and I would dismiss the application.

[1] R v Williams [2007] VSC 131

[2] Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41, Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, Reg v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248

[3] [2000] HCA 63; (2000) 205 CLR 337

[4] R v Doogan [2005] ACTSC 74 para 9

[5] [1976] HCA 39; (1976) 136 CLR 248

[6] Branko Balic (No2) (1994) 75 A Crim R 515

[7] Branko Balic (No2) (1994) 75 A Crim R 520

[8] R v Carl Williams [2007] VSC 131

[9] R v Carl Williams [2007] VSC 131 paras 64 and 65

[10] R v Carl Williams [2007] VSC 131 paras 4, 5 and 6