55 It was submitted by the appellants that in spite of the failure to ask his Honour the trial Judge to make remarks as to his reasons, there is nonetheless in fact an error in his Honour dismissing the argument that the appellants had no case to answer.
56 The third application for His Honour to disqualify himself was made after his Honour, in the course of the trial, on his own initiative, revoked bail for the Antouns. At the end of the evidence for the appellants, his Honour said at T371 that he had:
"… a very strong preliminary view in this case, very very strong, to a stage where I am considering, indeed have almost made up my mind of my own motion, to revoke bail."
57 His Honour said that bail should be revoked on the basis of the strength of the Crown case. Objection was taken by Senior Counsel for Joseph Antoun. His Honour indicated when it was pointed out that his Honour may be falling into appellable error, that that was possibly correct. His Honour said that the demeanour of Joseph Antoun in the witness box was another reason for the order of revocation of bail. At p 51 of his Honour's judgment, he said:
"I felt that Mr Joseph Antoun's behaviour went way beyond anger. I could use other adjectives and adverbs to describe it but it went way, way beyond anger. I myself, felt to some extent intimidated, and his anger of course had nothing, as far as I am aware, to do with me."
58 His Honour revoked bail, the Crown prosecutor having declined to put any submission on the issue. Mr Steirn SC pointed out the inconvenience of the refusal of bail in terms of seeing his client, and formally asked for his Honour to disqualify himself because of the judgment he had delivered.
59 In this application, the appellants rely on the subsequent bail application before Sully J, under s30AA of the Bail Act 1978, for the grant of bail pending a hearing of an appeal before this Court. Sully J granted bail, and said in a lengthy judgment said at pp18-19:
I do not think it could be contended sensibly that the learned trial judge approached the question of revocation of bail with anything like the particularity required by what is explained in the passaged quoted from the judgment of the Court of Criminal Appeal in Winningham v R (unreported NSWCCA, 10 May 1995). A reasonable coupling of what is said with the way in which the matter was dealt with in the High Court [ Winningham v R (1995) 69 ALJR 775], seems to me to lead as a matter of course to the conclusion that the deficiencies in the way in which the learned trial judge dealt with the bail revocation question did entail that a fair minded observer might reasonably have apprehended or suspected that his Honour had prejudged, or might prejudge, the cases then before him.
60 Sully J went on to find, at pp 19 -20:
In all of the circumstances, I think that the foreshadowed ground of appeal to the Court of Criminal Appeal has such evident prospects of success as would bring it within the category of 'special or exceptional circumstances' as referred to in s30AA ( Bail Act 1978). It should be remembered throughout, in my opinion, that what was at stake in connection with any proposal to revoke bail was not some trifling consideration, but a matter touching in the most direct and adverse way upon the liberty of the subject.
61 It was submitted on behalf of the appellants that a fair minded observer might reasonably apprehend, in the light of the comments of Sully J, that the learned trial Judge had prejudged the case, or might have prejudiced the case of each appellant, and thus it was submitted that the convictions should be quashed, and a new trial granted.
62 The appellants submitted that the High Court decision in Winningham v R (supra), follows on the analysis in the criminal trial of Webb v R; Hay v R (1994) 181 CLR 41, in which case a number of cases had been examined. The appellants relied on the statement of Sir William Deane at p 67 (references omitted):
In a series of recent cases the Court has formulated the test to be applied in this country in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question in issue. The quoted words in that statement of the test are taken from the judgment of the Court in Livesey v NSW Bar Association . In that case, and in a number of the other cases, the test was stated in terms of an apprehension on the part of "the parties or the public". So stated, the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law.
63 It was submitted on behalf of the appellants that the appellants were entitled to think that the learned trial Judge was biased against them. It was further submitted that, having read the judgment of Sully J, that a fair minded person might apprehend prejudgment. It was also submitted that the decision of Sully J did not deal with other issues in the trial. The decisions on the no case submissions, it is submitted, had led the trial Judge to make up his mind before hearing a word of argument, and that fact would give rise to a reasonable apprehension on the part of the appellants that the learned trial Judge had prejudged the issue.
64 It was submitted by the Crown as to the issue of bias, in relation to the expression of his Honour's views during the course of the trial, that the tet is whether a fair minded observer might reasonably apprehend that his Honour might not have brought an impartial mind to the resolution of the issue. This is a question of possibility (real and remote), not probability (Vakuata v Kelly (1989) 167 CLR 568; Livesey v NSW Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488 at 492). The majority in Johnson v Johnson held that the observer must be reasonable, and that the person observed is a professional judge, whose training, tradition and oath require that that judge discard the irrelevant, the immaterial and the prejudicial.
65 The Crown submitted that this was a judge alone trial where the judge, as the tribunal of fact, would have to make rulings and directions during the course of the trial adverse to one or other of the parties, the test being that whether the judicial officer would decide the case impartially and without prejudice, not whether he or she would decide the case adverse to one of the parties (see Mason J in Re L; Ex parte L (1986) CLR 342 at 352). The fact that an adverse ruling is made does not of itself justify a finding of bias (see R v Masters, Richards and Wunderlich (1992) 59 A Crim R 445, where a trial Judge revoked bail for one of the accused, and in the course of so doing, found that he was an unsatisfactory witness, was not acting in a way amounting to prejudgment requiring him to disqualify himself to avoid apprehension of bias).
66 It was submitted by the Crown that is was necessary in the determination of the appropriate level of bias that there must be identification of what his Honour said that might lead his Honour to decide a case other than on its legal and factual merits, and the articulation of the connection between the matter and the alleged or feared deviation.
67 In the course of the proceedings, there were energetic exchanges at times between the counsel for both accused and his Honour, but nothing in that exchange is reflective of bias. It was submitted that preconceived opinions do not constitute such a bias, nor does the expression of such opinions indicate that evidence will be disregarded (see R v London County Council; ex parte Empire Theatre (1894) 71 LT 638 per Charles J at p 639, which was cited by the majority in Watson; ex parte Armstrong [1976] 136 ALR 248). It was put by the Crown that Vakuata v Kelly (supra) establishes that a judge may express preliminary views and propositions on matters put before the Court. The Crown said that Johnson v Johnson (supra) is authority for the fact that a judge, sitting as judge and jury, is obliged to be frank and open in his or her assessment of the evidence.
68 The Crown submitted that at no stage was it shown that there was actual or ostensible bias, and to establish that, the separate incidents in the trial should be examined individually in relation to the foreshadowing that an application would be made that there was no case to answer.
69 At the conclusion of the Crown case, the learned trial Judge had heard all the evidence of the Crown. His Honour heard submissions after expressing the view complained of.
70 I do not consider that his Honour had considered the matter, but having heard the evidence, had a very strong view at that stage. A judge who is hearing a matter as judge and jury has a more critical view of the evidence than a judge who sits with a jury. His Honour did not prevent submissions being made, and his judgment shows that he had formed a view of the Crown case at that stage, which, on examination of the evidence, was not an unreasonable view. The exchange had occurred whilst the parties were considering the mechanics of the length of the trial, not at the time when the application had in fact been made.
71 I can see no basis, on examination of the law in R v Masters, Richards and Wunderlich (supra), that there was anything in the nature of bias in the way in which his Honour determined the matter. That is not to say that the expression used by his Honour was the most felicitous way of expressing his view at that stage in relation to the application about to be made. It was Mr Steirn SC and Mr Willkinson, for the parties, who declined to make further application. As observed above, his Honour gave reasons for convicting the appellants, it being clear from those reasons, that he held a strong view in relation to the Crown case, as he was entitled to do by the close of the Crown case, for the purposes of the application that the appellants had no case to answer.
72 I agree with the Crown submission that it was not established that evidence of the appellants, witnesses called on their behalf, or evidence adduced from Crown witnesses, would be disregarded as his Honour had not expressed a view on the credibility of the appellants at that stage.
73 In relation to the bail application, it is clear that his Honour's course of action is uncommon, but the function performed in a bail application is performed in a large number of trials, both jury matters and non-jury matters, in all Courts. A determination under the Bail Act is a discreet application on a civil onus, notwithstanding that there may be higher standards set for the decisions made, such as under s30AA of the Bail Act. Determinations are made all the time which are adverse to one party or another, unless made by consent.
74 In R v Masters, Richards and Wunderlich (supra), the Court of Criminal Appeal held that the mere fact that another judge disagreed with the judge's finding is incapable of supporting any reasonable apprehension of bias. Persuasive though the views may be of a senior judge such as Sully J, his Honour, Sully J, all that Sully J was doing was in fact determining a bail application, not performing the function of the Court of Criminal Appeal. His Honour's views are not relevant to the determination of this Court, and there is thus no light to be shed on the issue of apprehension of bias.
75 I would reject this ground of appeal as no bias has been demonstrated.