[2000] 205 CLR 337
Johnson v Johnson [2000] HCA 48
(2000) 201 CLR 488
Kwan v Kang & Ors [2003] NSWCA 336
Laws v Australian Broadcasting Tribunal [1990] HCA 31
(1990) 170 CLR 70
Webb v The Queen [1994] HCA 30
Source
Original judgment source is linked above.
Catchwords
[2000] 205 CLR 337
Johnson v Johnson [2000] HCA 48(2000) 201 CLR 488
Kwan v Kang & Ors [2003] NSWCA 336
Laws v Australian Broadcasting Tribunal [1990] HCA 31(1990) 170 CLR 70
Webb v The Queen [1994] HCA 30
Judgment (3 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions (Crown)
Armstrong Felton (Accused)
File Number(s): 2013/00369082
[2]
EX TEMPORE Judgment
On the 13th day of the trial, in the matter of R v Merrick, counsel for the accused, Ms Evers, makes application that I disqualify myself for what was referred to as "apparent bias," and also as apprehension of bias. There are two forms of bias that may ground such an application. It is not entirely clear to me which of the two forms of bias was identified by counsel for the accused in making her application.
Ordinarily, there is an obligation on counsel who seeks to make such an application to clearly refer to the type of bias which is alleged against the trial judge and the basis of the bias which is alleged. Since it has not been clearly identified, I will proceed on the basis that actual bias is alleged, as well as the apprehension of bias, that is, both bases which are available.
Where there is an application for disqualification on the grounds of bias, it is a matter for the trial judge to determine whether such an application has merit. The determination of actual bias is one which involves a determination of fact and it must be resolved in light of the matters raised by the accused. Here, the accused raises, through his counsel, principally Ms Evers's complaint that she has been unfairly treated. Counsel has indicated that she feels she has been treated with greater criticism than has the Crown and that, as a result, her client is unable to receive a fair trial.
Counsel complains that her applications for delay have been met by disapprobation from the bench and that that disapprobation is an indicator, I assume this to be her submission, of both actual bias and apprehended bias.
The tests that relate to determination of the question of both actual and apprehended bias are well-known, although counsel has not referred to them in her submissions and has not directed me in any way to those things that I ought to consider. As I recollect them, the test of actual bias is a very stringent one. That is appropriate, because what is raised in an assertion of actual bias is that a judicial officer is in breach of his or her oath of judicial office. That is an extremely serious allegation to make, and it ought to be substantiated by evidence.
Apart from counsel's submissions delineating why she feels that she has been less favourably treated than the Crown Prosecutor, there is little which has been advanced in support of a claim of actual bias. Where actual bias is alleged, the allegation can only be made good by evidence which establishes that the decision maker is actually biased. Actual bias is not dependent upon the impression of a bystander, even a reasonable bystander, but upon proof that the decision maker is actually biased.
Determination of whether there is apprehended bias also involves consideration of facts which are established by evidence, and the application of legal tests to the relevant facts. In relation to apprehended bias, the test is rather wider than it is for actual bias. The question is whether a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial or unprejudiced mind to the issues that are to be determined. That test has been set out in a number of high court authorities, including Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 (Deane J) at 68, and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11].
It is significant and of some importance to note that the relevant lay observer is taken to be reasonable and fair-minded: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 95.
Although an individual who has no legal training or experience, the fair-minded observer is also assumed to be someone not wholly ignorant of legal matters, who is informed of the basic issues in the trial and able, on the basis of that knowledge, to make a fair assessment of all of the prevailing circumstances: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Kirby J) at [53]. The knowledge which is imputed to the fair-minded and reasonable observer is wide ranging.
For apprehended bias to be established, circumstances must be such that the lay observer must reasonably apprehend that the judge's mind is so prejudiced in favour of a particular opinion formed or conclusion reached as to be unlikely to alter that view or conclusion, notwithstanding any evidence that might be placed before the court, or any submissions to which it might be directed: Kwan v Kang & Ors [2003] NSWCA 336 at [83].
It is important when assessing such an application that courts apply realistic criteria in considering whether or not an apprehension of bias has been made out. That is particularly so because it is not unknown for applications of this nature to be made purely in an attempt to obtain the perceived benefit of a different judicial officer presiding. The higher courts have consistently indicated that applications of this nature are, therefore, to be dealt with using considerable intellectual vigour. They cannot simply be granted because of a perception which is neither reasonable nor fair, and it is that perhaps upon which this current application turns.
The test for apprehended bias must be applied in two steps: Ebner v Official Trustee in Bankruptcy [2003] HCA 33; [2000] 205 CLR 337 at [8]. The principle applicable to the apprehension of bias acknowledges the possibility of human frailty and, given that these are proceedings which rely upon human endeavour, that must be particularly the case.
There must be identification of what it is that may lead the judge, or other trier of fact, to decide a case other than on its legal and factual merits; that is the first step. The second step is to make an articulation of the connection between the matters raised in support of a perception of apprehended bias and the deviation from the course of the proper administration of justice. It is that which traditionally, in applications of this nature, falls upon counsel to identify.
I find it hard to identify matters relevant to those two steps from what has been advanced for the accused.
Turning to that, the evidence tendered to the Court consists of Voir Dire Exhibit 16. This material is tendered to substantiate the submission that the defence has been denied, as I understand it, and although this has not been stated, procedural fairness. Although couched in terms of counsel's perceptions and counsel's concerns as to the way counsel personally has been treated, if one strips away the sophistry that attaches to the application, it seems to me that that must be at the basis of it.
The accused asserts that he has been confronted at a late stage with voluminous material sought to be led by the Crown and that the Court has refused, because of bias, to permit the accused sufficient time to consider the material. That is my understanding of what is at the base of the application made by the accused.
So turning to that material and whether or not it is sufficient, firstly, to establish actual bias.
Ms Evers, in that regard, relies upon the fact that the Court has been critical of her and the way in which she has conducted her case, principally in relation to her applications for time in which to address the Crown case. Counsel suggests in her submissions that she has only ever made one such application for more time.
The record does not bear that out.
The matter has been listed for trial now, as is common with trials before the Supreme Court for the very serious offence of murder, for many, many months. The record suggests that the accused's counsel came into the matter on or about 19 November 2015. The record suggests that counsel's instructing solicitor came into the matter some weeks prior to that, approximately three weeks. It is submitted, and I have no reason in this instance not to accept, that the brief was not fully served on the accused as at 19 November 2015, although from all of the information before the Court it appears that the substance of the brief was in fact served and counsel has had the substance of the brief since 19 November 2015.
At the heart of the complaints of a lack of procedural fairness is the issue of relationship evidence, and supporting evidence sought to be led by the Crown of exchanges via text messages between the accused and the deceased in the period of months prior to the deceased being killed. The issue of relationship evidence, as I understand it, has been well known to the accused, and certainly counsel was on notice of it since accepting the brief in November 2015.
The relationship evidence comes from witnesses who had an opportunity to observe the nature of the relationship between the accused and the deceased, and who were in a position to give evidence as to those observations. Subsequent to a ruling on evidence, the Court has heard from a number of people who observed the relationship between the deceased and the accused to be a volatile relationship punctuated by abuse and violence from the accused to the deceased. The Crown sought to lead that evidence on the basis that it went directly to inform the jury as to the accused's state of mind when the relevant act was done, there being, it seems from the conduct of the accused's case, no real dispute at all that the act caused death.
The text messages are supplementary to the evidence of the witnesses who made personal observations of the nature of the relationship between the accused and the deceased.
The substance of that relationship evidence has been known to counsel for the accused since accepting the brief, that is, for some months now. The law that applies to the admissibility of such material ought to be known to counsel and if it is not known to counsel it ought to have been something which was readily capable of being ascertained. Notwithstanding that, when the matter first came before the Court on the trial date there was an indication that counsel was not in a position to proceed and had some difficulty in understanding the nature of the Crown case.
That should be prefaced by noting that there had been earlier attempts by counsel for the accused to seek to have the trial date vacated. The first of those attempts was made before Johnson J when his Honour was advised that the defence needed the services of a forensic pathologist and had been unable to obtain any appropriate person. On 4 December 2015 the accused, through counsel presently briefed, indicated to Johnson J that causation was an issue and that a report was necessary from a forensic pathologist and no forensic pathologist would be available and able to be retained by the accused.
It seems that there were, at that stage, discussions on foot as to a resolution of the matter so that a trial would not be necessary and it may be those discussions somewhat diverted counsel's attention from, in fact, preparing the trial as a trial which might run. Be that as it may, Johnson J, being alerted to the possibility of resolution, was asked to vacate the trial date on the basis that a forensic pathologist was not available and was necessary to the accused's case. His Honour was not persuaded to vacate the trial date. His Honour commented that he struggled to see the relevance of an additional forensic pathologist. He did not understand what was advanced by Ms Evers in relation to the issue of causation and indeed his Honour said (at T3:27-28):
"…I am just struggling to see what light that is going to shed on the issue in the trial."
Following the refusal of that application, the discussions as to a plea were ongoing. Again, it may be that those discussions diverted proper preparation of the matter.
The matter came before me, having been allocated as the trial judge, on 5 February 2016. Counsel for the accused on that date advised the Court that there were developments in relation to a resolution of the matter not involving the conduct of a trial and it seems that the majority of time which might have been spent in preparation of the trial was being directed to the question of a resolution of the case. That, of course, is an option that is open to counsel. It is a matter of choice as to where one focuses one's time.
On that occasion, a notice of motion with supporting material was informally made available to the Court on the basis that it would be filed and relied upon if the resolution of the matter did not come about. That, in fact, was the case. There was no resolution of the matter and the application to vacate the trial date subsequently had to be heard.
That occurred on the first day of the trial, necessarily involving a delay to the conduct of the case. The application for a change of venue and to vacate the trial date is the subject of a judgment presently restricted to the parties only, although it will be published on verdict. That judgment sets out the relative merits of the application.
There was an additional earlier application to vacate the trial date which I have omitted from that chronology, that being an application made before me on 17 February 2016. The principal basis of it, as I understood it at the time and from reviewing the transcript in the course of giving the current judgment, was twofold. The issues with the forensic pathologist being available during the currency of the trial was raised, a forensic pathologist at that time having been successfully retained but with limited availability. Additionally, defence counsel raised her personal difficulty in obtaining suitable accommodation in Newcastle for the duration of the trial.
That application to vacate the trial was refused. A window of opportunity was sufficient to secure the evidence of the forensic pathologist and so that concern, in my view, was illusory. Counsel's personal difficulties in obtaining hotel accommodation in a large city such as Newcastle with a number of satellite cities surrounding it, all of which have hotel accommodation available, was not a concern which I regarded as one which ought to lead to the vacation of a trial date.
The matter having been directed to proceed, the application to which I referred a moment ago was dealt with on 29 February 2016 and refused. It was then necessary for the Court to deal with an issue as to the admissibility of the evidence. Counsel for the accused demonstrated some unpreparedness to argue her objection to evidence. It seemed to be twofold; a lack of understanding of the basis upon which the Crown sought to adduce relationship and context evidence and a difficulty in coming to grips with the evidence which the Crown had provided on the Friday preceding the trial date. That is the evidence to which I have earlier referred, which is now Voir Dire Exhibit 16 on the application.
The contents of Voir Dire Exhibit 16 are printouts of text messages. Text messages can be read very, very quickly. That is their purpose, indeed, to be short, readily comprehensible messages which can be taken in and understood quickly. Looking through the material that has been tendered, and not, having the weekend that counsel had available prior to the commencement of the trial to go through that material, there does not seem to be anything in it in terms of its size or its content which ought to have required many, many days to take in, to comprehend and to deal with this evidence.
Any criminal trial is an intensive process. It can be a difficult process. Supreme Court trials, given the serious nature of the charges that come before the Court often carry an added layer of stress, an added layer of complexity and an added layer of personal difficulty for counsel who appears, for both the Crown or for the accused. That is one part of the considerations that counsel must bear in mind when accepting a brief. These trials are not easy. They are not for the fainthearted. But, of course, the choice to accept a brief falls to counsel.
In my judgment, this material is not difficult to understand. The Crown signalled its intention to seek to lead evidence of relationship. The Crown served statements which contained such evidence upon the accused at a very early stage, prior to committal. The Crown also provided a list of the evidence which was sought to be relied upon to counsel for the accused prior to the commencement of the trial, and provided counsel with a list of cases which the Crown suggested it would rely upon in support of its application to lead relationship and context-type evidence. The combination of those three factors, statements, a list of particularised paragraphs of statements, and authorities which set out the law relating to the admissibility of relationship and context evidence, was easily sufficient to make readily apparent the basis upon which the Crown sought to lead the material.
Reading the brief of evidence, as I was in part obliged to do to determine the legal objections raised on the first day of the trial, is sufficient in itself to flag the issue of context and relationship evidence. It is not an issue which ought to occupy many, many days of consideration and preparation. It is something which experienced counsel could come to grips with readily and, in my view, ought to be able to be dealt in a temperate and sensible fashion, both efficiently and expeditiously.
It is always a matter of regret when material is served at a late stage, but it is not unusual. Indeed, it is almost something which goes with the territory of a criminal trial and certainly it ought not be either unknown or unexpected by those who regularly practise in the criminal courts. If material truly prejudices an accused, then there is an application that can be made, indeed there are at least two. Neither of those applications were in fact made. That is, the accused did not seek to vacate the trial on the basis of material which had been received at the last minute and which could not be dealt with. Ms Evers certainly sought some additional time, but I will come to that in a moment. Neither was there any application to exclude wholesale, this material, on the basis of late service. Those applications were not pursued. The matter proceeded in the ordinary course as an application to exclude evidence and was dealt with in the ordinary course.
Counsel complains that she was not given adequate time to ready that application. In my judgment, sufficient time was allowed and certainly sufficient time to read the material, understand its significance, determine what, if any, of the material ought to be objected to, and craft a basic submission in relation to the admissibility of the evidence. That is the sort of thing that counsel is expected to do daily in the criminal courts and the sort of thing that the Court is entitled to expect counsel to be able to achieve.
The substance of the application to the Court to disqualify itself for bias is that Ms Evers has been treated unfairly in the course of determining these various matters, and therefore her client has been treated unfairly.
Fairness is a fundamental concept to the criminal courts and criminal justice. It is the obligation of most of those who practise in the criminal courts to ensure that an accused person receives a fair trial. It is the ultimate obligation of this Court and it is echoed in an oath that all judicial officers take. It is certainly one that I take seriously.
Indeed, it is that very obligation and that concern which led me, at an early stage of the trial, to suggest to defence counsel that she give some further consideration to her cross-examination of two particular witnesses. In that instance, it had appeared to me particular matters had not been raised with them that, in fairness to the accused, should have been raised. Having raised that issue with counsel, those witnesses were recalled, leave having been granted, and the cross-examination was carried out. That is simply an example of the Court's obligation to ensure that an accused has a fair trial.
A fair trial is not a perfect trial. The criminal courts being the subject of human endeavour there is probably no such thing as a perfect trial. What must occur is that an accused person has an adequate opportunity to meet the evidence led against him and it is the obligation of the trial Judge to ensure that that occurs.
Ensuring that that occurs is often a matter of balance and judgment, because it is not only the accused who seeks fairness in proceedings before the Court. Both parties in this Court are entitled to procedural fairness. Both parties are entitled to have an opportunity to put their cases. That is not a right that solely rests with the accused. Here, the Crown had sought to lead evidence. There was an objection to parts of that evidence. Counsel for the accused indicated she required further time to make her objections. Whilst my view of the time estimate given that was needed to prepare the argument was that it was exaggerated, time was given. More than adequate time in my judgment.
Counsel additionally raises what she says is criticism of her, as opposed to a lack of criticism of the Crown Prosecutor. Fairness cannot be gauged by expressions of disapprobation from the Court to one counsel or another. The Court has no obligation, if it does express disapprobation of one counsel, to express equal disapprobation of the opposing counsel. That is simply a matter related to the conduct of the respective cases. Here, there seems to have been, from an early stage, an endeavour to delay and vacate the trial by counsel for the accused. I have set out the procedural history of the matter and the applications which have been made by Ms Evers in that regard.
Ms Evers particularly points to the fact that, she says, although it was her application yesterday for an adjournment of a day, it should have been a joint application and the Court was not critical of the Crown. Criticism, so far as it is directed, has been directed, in my judgment, where it has been deserved. If counsel finds that difficult to personally deal with, one can accept that, without then going on to conclude that that is an indication of bias against the accused person.
Counsel has an obligation to this Court. Both counsel have obligations to this Court. There is most certainly a duty and an obligation to a client, but counsel equally has a duty and an obligation to the Court and that obligation is, in fact, the fundamental obligation and the overriding obligation. The Courts are an expensive and valuable resource and counsel have an obligation to assist the Court to ensure that that expensive and valuable resource is not unduly and frivolously wasted. That is particularly so where the matter proceeding is a trial before a jury, because 12 members of the community have been asked to give up their daily work, often income bearing work. They have been asked to give up their ordinary lives and commitments to come into a Court, hear what can be distressing and disturbing evidence, and determine the fate of a fellow citizen. That is an obligation which we put upon members of the community and it is an obligation which should be given its full value and treated with respect. The commitment of the jurors ought not be simply disregarded as a consideration in what is required in the administration of justice.
Here, there has been a considerable amount of delay. Initially, Ms Evers was not able to proceed because she indicated that she could neither deal with the relationship evidence, nor understand the basis upon which the Crown sought to advance it. Although I did not understand that submission, time was allowed to counsel to come to grips with the evidence. That was time specifically allowed. There has been additional time, which has come about as the result of misadventure. A juror was sick, necessitating a full day in which the Court did not sit. Counsel suffered an injury, necessitating over half a day in which the Court did not sit. Technological difficulties with the new equipment in the Court, as excellent as it has been, also necessitated almost a full day lost. There have been other days on which the Court has had to adjourn early because witnesses have either not been available or counsel has not been in a position to deal with their evidence and sought some time. All of those delays have occurred and each of those days provided time during which the parties could resolve the issues that they individually had in relation to the text message evidence. Again, in my judgment, the time that has been made available, either deliberately or through misadventure, has been more than sufficient to deal with this material.
Yesterday, the Court was met with an application from Ms Evers, framed, I regret, in somewhat intemperate language, for an adjournment. The application was for at least a day, although counsel observed she "…probably need[ed] more but could probably manage" (T588:42-43). Counsel for the Crown indicated that he needed a couple of hours and so in that sense, the joint application was for a delay of some short period. Whilst that also would have been entirely regrettable, not least because a jury would have been sitting in a jury room for two hours, it could have been better accommodated than a day's delay.
Again, having considered the material yesterday that the Crown actually sought to rely on and in light of the material tendered this morning, Voir Dire Exhibit 16, I do not see why a day was necessary. It seems to me that the evidence should have been able to be dealt with in a much shorter period than that, particularly having regard to the substantial periods of time made available during the general course of the trial.
Ms Evers is quite correct when she says that the Court was critical of her. It is to be regretted if counsel is not in a position to proceed. It is to be regretted if a jury is delayed. It is to be regretted if a criminal trial of a very serious matter is delayed. In that lies the source of the criticism directed to counsel.
And there is the basis of the application to which I now return, that being the application to the Court to disqualify itself for bias. I have earlier set out the law that relates to any such application. I have detailed the evidence which, as I understand it, the accused relies upon.
I do not regard robust comments from the Court to counsel because of delay to be any indication of actual bias. What it demonstrates is the dissatisfaction of the Court when counsel is not in a position to proceed.
If one turns to the test of actual bias that I have already set out, I do not regard that test as having been satisfied. Indeed, I do not regard what has been advanced as even remotely approaching satisfaction of the test.
If one turns to the test that I have already set out for the apprehension of bias and applies that test from the point of view of the reasonable minded and fair observer, with some understanding of legal issues and some understanding of the issues before the Court, the test in my view, has not been satisfied.
The question of bias or apprehended bias is determined objectively. Legal principle is applied to established fact. It is an unpleasant application for a judicial officer to have to determine, because it involves a review of the conduct of the Court and a consideration of whether that conduct is such as to establish actual prejudice or to cause a fair minded, reasonably well-informed lay observer to apprehend bias. Because of the unpleasant nature personally of such applications one must endeavour to apply legal principle to established fact, with rigor, lest a fundamental element of our system of justice, its impartiality in the administration of justice, be compromised.
I am not satisfied that anything advanced by counsel does more than demonstrate the dissatisfaction that the Court has expressed with the readiness of counsel to deal with matters. Whilst I accept and understand that that can be personally difficult for counsel, it does not in my view, demonstrate bias. It does not, in my judgment, demonstrate either actual bias or apprehended bias. That being the case the application is refused.
[3]
Amendments
01 April 2016 - Amended non-publication restriction
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: 01 April 2016