R v Towney

Supreme Court of NSW|2015-12-18|Before: Fagan J, Johnson J

Judgment

The trial of Trent Towney on a charge of murder commenced before me in Orange on 7 September 2015. The accused is alleged to have stabbed John Frail, fatally, on 20 July 2013. After the jury had retired to consider their verdict certain misconduct of one of their number was brought to my attention. I discharged the jury before they had reached a verdict, on 18 September 2015.
The retrial of Trent Towney is to commence on 1 February 2016, again at Orange, and I have been allocated to preside. The date was fixed at a callover before Johnson J on 2 October 2015. On 14 December 2015 the solicitor for the accused notified my chambers that an application would be made that I disqualify myself. He was requested by my associate to provide urgently the materials upon which this application would be made.
I listed the application for hearing on the earliest date available to myself and defence counsel, being Friday 18 December 2015. Crown counsel assigned to the retrial and who had prosecuted at the first trial was unavailable for that date but the application had to proceed. 18 December 2015 is the last court sitting day before the date fixed for the retrial in Orange, taking into account the Court's fixed long vacation through late December 2015 and January 2016. These are my reasons for dismissing the application.

Delay in bringing the application for recusal

When this matter was before Johnson J on 2 October 2015 for callover to appoint a date for retrial, the Crown and defence were informed that the retrial was allocated to me. No objection was then taken to my presiding at the retrial, nor was any reservation expressed. From 2 October to 14 November 2015 no communication was made from the accused's representatives to the Court foreshadowing an application of the nature now brought or suggesting that instructions would be taken regarding any difficulty that might be thought to arise if I should conduct the second trial.
I have now been informed by Mr Nash who appeared for the accused at the trial and who appears for him on this notice of motion that the reason for the application being deferred until what is in practical terms the last possible moment before commencement of the retrial is that it was not determined by those instructing him that he would be counsel for the retrial until late November. I do not consider that a justification for the delay. Whatever uncertainty there may have been regarding trial representation, Mr Nash's instructing solicitors should have ascertained from him at the latest by the date of the callover whether he saw any objection to my being the judge at the second trial.
It is common practice in this Court for a judge who has conducted a trial which has aborted also to conduct the retrial (see [90], below). It should have been anticipated that that practice would be followed and counsel who had appeared at the first trial should have been asked to advise his instructing solicitors whether or not that would present any difficulty - so that it could be foreshadowed to the list judge on callover. Whether or not he was briefed for the retrial it would have been Mr Nash's duty to volunteer to the solicitors who instructed him in the first trial that he thought continuity of the trial judge would be objectionable, if that were the case. It is regrettable that this application, which could have been and should have been foreshadowed at the callover and brought immediately thereafter, has instead been brought at a congested and difficult closing stage of the law term.

The Crown case at the aborted first trial

A short summary of the Crown case at the last trial is necessary in order to give context to these reasons. The Crown alleges that on 19 July 2013 and into the early hours of 20 July the accused hosted a gathering of friends and relatives at his home at 200 Warren Road, Gilgandra. This is on the corner of Warren Road and Federation Street in that town. Evidence was called to prove that the deceased attended this gathering during the evening of 19 July but left when asked to do so.
He returned to the premises not long before 3am on 20 July 2013. At that time, after a physical confrontation between the accused and the deceased outside the front of the house, evidence was given that the deceased moved away from the house on foot across Federation Street. There was further evidence given that the accused then went inside the house to the kitchen and took up a knife. The Crown witnesses said he re-emerged through the front door and ran after the deceased, caught up with him on Federation Street and stabbed him. These witnesses described the deceased then moving across Federation Street and collapsing against a wall of a building on the far side, where he died.
According to the post-mortem report, the fatal stab wound was inflicted to the right side of the base of the neck. The knife had passed from there through to the left lung where it terminated in the upper lobe. Vital arteries in the neck were transected as was the trachea. The oesophagus was partly transected. The approximate depth of the wound was 17 centimetres.

Principles regarding disqualification for apprehension of bias

The disqualification application was brought on notice of motion filed by my leave in court on 18 December 2015, supported by an affidavit of the accused's solicitor sworn 14 December 2015. This affidavit merely identifies the entire transcript of the trial and states that the solicitor obtained instructions on 9 December 2015 to apply for me to disqualify myself. Such an application is required to be made to and decided by the judicial officer whose recusal is sought: Bainton v Rajski (1992) 29 NSWLR 539 at 544 and 548; Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 at 12.
The present application invokes principles relating to apprehended bias. Actual bias is not alleged. This is made clear in the terms of the order sought in the notice of motion as follows: "1. His Honour Fagan J be disqualified from presiding at the trial because of a reasonable apprehension of bias."
The written submissions filed on behalf of the accused dated 16 December 2015 confirm that the application is based only upon apprehended bias, in this passage at p 3: "That impression, in turn, establishes the possibility that a fair-minded observer might reasonably apprehend or suspect that his Honour had prejudged the case, at least in respect to those aspects".
The principles applicable to a recusal or disqualification application upon this ground are stated in the following passages. In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 - 345, the authors of the joint judgment stated as follows (citations omitted): "[6] 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), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability… [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits… ."
In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492 - 493 the following statements appear in a judgment joined in by five of the justices (citations omitted): "[11] It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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. [12] That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public 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'. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, 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'."
In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 Deane J listed the different categories of circumstances which might give rise to an apprehension of bias as follows (citations omitted): "The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias."
This may not be an exhaustive or exclusive list of the categories, as was observed by the authors of the joint judgment in Ebner v The Official Trustee in Bankruptcy at [23]. The present application is clearly in the second category. It is said that my conduct constituted by portions of the summing-up would give rise to a reasonable apprehension of bias in a fair minded lay observer. Specifically, upon this recusal application, criticisms were made of the summing-up on intention, on self defence and on intoxication.

The summing-up on intention

First, with respect to intention. The jury, if they were to convict, would have had to infer from circumstantial evidence that the accused had intended either to kill the deceased, John Frail, or to cause him grievous bodily harm. The evidence was capable of satisfying them that the fatal wound was caused by a knife thrust by the accused which entered the base of the deceased's neck and caused the wound which I have described at [19].
The Crown put to the jury in final address that they would infer from a stab wound of this nature, which it was not disputed had been delivered by the accused, that he must have intended to kill or at least to cause grievous bodily harm. It may have been significant to the jury's deliberation upon this to consider whether the knife blow which inflicted this wound was delivered whilst the deceased was upright (in which case the accused would have to have raised the knife above the level of the deceased's shoulder and plunged it downward) or whether the blow was sustained when the deceased was in some different posture. I put the cases of the Crown and of the accused respectively about this in the following passages from pp 58 and 59 of the summing-up: "With respect to intention, the Crown's principal argument was that you would infer that he intended at least to inflict grievous bodily harm but quite possibly to kill and you would be satisfied of that beyond reasonable doubt, just from looking at the way that he attacked with the knife, that that - I used the word earlier - that attack bespeaks an intention to inflict at least grievous bodily harm. … On the other hand, Mr Nash, first of all with respect to the blow, the fatal blow, said that the Crown's argument depended upon some assumptions that when the Crown said that the fatal blow was such to bespeak an intention as per the elements I have given you, that in saying that the Crown was assuming that it was a savage downward stroke at the man's neck and that the evidence would not really persuade you beyond reasonable doubt that that was so, and he referred to the evidence of Stevie Smith and Sharlette Williams, both of whom described a swinging of the arm, both of them gave it in terms of the right arm coming somewhere to the level of the accused's head, but he said that to infer that that sort of swinging blow was the one that caused the fatal wound and that therefore to strike a man like that and thereby to inflict that wound you would infer the intention that assumes other things, for example, that he was upright, that the deceased was upright when he was hit."
The complaint made about the summing-up on the subject of how the deceased received the fatal blow concerns a passage which immediately followed the last of those which I have just quoted. This extended from pp 59 - 60 and is said to exhibit what a reasonable bystander would interpret as bias against the accused: "Now, you are entitled in weighing up those two arguments on that particular point, the inference from the nature of the blow, you are entitled to use commonsense and common knowledge and a consideration to the entirety of the evidence and indeed of things that were not in evidence. Mr Nash referred to the evidence of Rebecca Trudgett which suggested that the knife strike was ahead of herself, but you are entitled to take into account the post-mortem report, which I read earlier. You may conclude from that and from your knowledge of the human body that in the circumstances as described the only way that could have been struck was much as Sharlette Williams and Stevie Smith described. That is not a wound that could be inflicted, you may infer, by a pushing sort of a stroke. You can reason about it. You can consider well, is there any position of the deceased's body in which he may have contacted or been contacted by the accused which could have by a pushing stroke led to that. For example, if he had his head down and charged at the accused, that could occur, but you can take into account that nobody has suggested that. There is no evidence to suggest, no description by any witness that the deceased bent forward or put his head down and ran at the accused. The evidence described an altercation in which that sort of suggestion did not arise."
The criticism made about this is that the impugned passage: "Had the effect of undermining significantly, if not entirely, the arguments put on behalf of the applicant as to other possible circumstances in which the fatal blow was inflicted."
It was said that this undermining took place by my reference to, amongst other things, the absence of any evidence that the deceased bent down and ran at the accused. But that was an accurate statement on my part. There was not a word of evidence to the effect that the deceased had bent over and run at the accused in a manner which could possibly have caused the fatal blow to result from him running into a knife either held out or thrust out horizontally or near horizontally in front of the accused. Notably, defence counsel had never put such a proposition to any witness.
Counsel for the accused submitted the following, on the present application: "While it is accepted that there was no evidence that the deceased 'bent down and ran at the excused', there was evidence that there was an on-going altercation between the two men after they came back together on Federation Street and before the fatal blow was struck. Transcript 316 and 292."
In oral argument on this application I attempted in vain to elicit from the accused's counsel what he meant by "an ongoing altercation between the two men" and how, if he could identify evidence which would satisfy that description, it would contradict my reminder to the jury that there was "no description by any witness that the deceased bent forward or put his head down and ran at the accused". In this sentence I identified to the jury a very specific concept of which I said no witness gave a description. My statement is not rendered erroneous by Mr Nash identifying vague and imprecise generalities in some witnesses' descriptions of what took place between the two men.
The reference, in the passage of the written submission which I have quoted at [32], to the transcript at p 292 seems inappropriate. This is part of the evidence of Karah Towney. There is nothing there that bears on the topic. At pp 289 - 290 there is a relevant passage of Karah Towney's evidence which I quote: "Q. Now, what happened then, you said he went towards John, what did you next see? A. Trent swinging him arm. Q. By this time where were they? A. (No verbal reply) Q. Do you need a break Ms Towney? A. I think they were on the road. Q. They were on the road by that time? A. Yeah. Q. Is that Federation Street? A. Yes. Q. And you saw Trent swing the knife? A. Yes. Q. What happened next? A. This is, I don't know I'm not sure, my memory starts to get a bit-- Q. When he swung the knife did you see whether it hit John or not? A. No I didn't see where it hit it, where it hit him. Q. Were they close together at the time? A. I think so. Q. All right. Do you know whether John was facing Trent or facing away at the time? A. He was facing Trent."
At T 294 lines 18 - 35 there is another relevant passage of Karah Towney's evidence, as follows: "Q. You said to the police in your statement 'John was standing in the middle of the roadway, in that side street, when Trent ran over to him'? A. Yes. Q. 'John was still trying to fight with Trent when he got to him'? A. Yes. Q. So, and the next thing - then it says, you said 'I don't know why he just didn't run'? A. Yes. Q. And it then says 'Next thing, I just saw Trent swing his right hand with the knife in it, it looked like he hit John on one of the sides of his torso'? A. Yes. Q. And when you gave that statement, that was your best recollection of the events-- A. Yes. Q. --that had occurred? And can you describe in any more detail what you saw John do that made you say that John was still trying to fight with Trent? A. Them just both still going towards each other, that's all I could really remember."
The last part of Karah Towney's evidence relevant for present purposes is this, at T 295, lines 1 - 11: "Q. When you describe in your statement John still trying to fight Trent, can you describe that in any more detail? A. No, just that he wouldn't leave, and when Trent came back out he went at Trent, like they just, they both just went at each other. A. Yes. Q. They came together, both moving forward toward each other, that's your memory? A. Yeah."
These are the nearest passages to the reference given by the accused's counsel (T 292) that appear to have anything to do with a description of the fatal physical altercation. The effect of them is that the accused went towards the deceased "swinging his arm" with the knife in his hand. Karah Towney said that the deceased was facing the accused at the time this occurred. When reminded of the statement she had given police and her evidence at committal she added that the two men had been "going towards each other" when this occurred and that John Frail had been "still trying to fight with Trent" and "they both just went at each other". There is nothing in this which constituted any evidence of John Frail ever adopting any bent over position such as would have been necessary for the fatal knife thrust into his neck to have been made by the accused with a horizontal or pushing stroke. If this is what the accused's counsel relies upon as evidence "that there was an ongoing altercation" then it has no bearing whatever on the accuracy of the impugned passage of my summing up.
The passage at T 316, upon which counsel relies in the extract from his submissions quoted above at [32], is at T 316 line 14 to T 317 line 32. This was evidence of Rebecca Trudgett: "Q. Where was Veronica's son at the point when Trent ran out with the knife? A. Well he must have - well, he was still on the grass at the time, but that's when he, when Trent ran out of the house he must have seen him running towards him and he, that's when John jumped the railing on the side of the house, onto Federation Street. Q. All right, so at that point you remember seeing John jump the railing, is that right? A. That's right. Q. Well where was Trent? A. He was coming behind him. Q. Behind him. How far from him? A. Oh, couple of metres behind him I suppose, because once-- Q. And Trent had the knife? A. Yes. Q. What happened then? A. Well as when John jumped over the railing, Trent just sort of ran quickly around the other side of the railing and met him on the road. Q. And then what happened? A. Well that's when they had a bit of a fight and Trent was, yeah. Q. I appreciate this is difficult, madam, you said that they had a bit of a fight, what exactly took place? A. Well they were still arguing with each other and whatnot, next minute I guess Trent just started it. Q. What happened? A. (No verbal reply) Q. Just tell us what happened next that you saw? A. Eventually, Trent, Trent had the knife, he had it in front of him. Q. Are you okay to go on? A. Yeah. Q. Right, Trent had the knife, what did he do? A. Oh well he pointed it towards John and then I'm sure he might have gave him a couple of whacks. Q. I'm sorry? HIS HONOUR: "I'm sure he gave him a couple of", something. CROWN PROSECUTOR Q. Gave him a couple of whacks was it? A. Not a whack, he more or less-- Q. Sorry? A. Stuck the knife out towards him and I think he got him. Q. What happened then? A. (No verbal reply) Q. You say you think he got him with the knife after he stuck it at him a couple of times? A. (No verbal reply) Q. What happened then? A. Well obviously Trend [sic] did - stabbed him a few times. Q. What happened next? A. Well after a couple of times Trent leaned the knifed [sic] into him, sort of like, they went towards, over to near the other side of the road."
This is the evidence that the accused knifed the victim with a pushing stroke having "had the knife… in front of him", "pointed it towards John" and "a couple of times Trent leaned the knifed into him." But it contains no description of John Frail having assumed any posture such that knife strokes "in front of" the accused and "out towards" the deceased, whereby the accused "leaned the knifed into him" could have caused the wound which penetrated from the right side of his neck through his trachea to the upper lobe of his left lung. If the jury accepted that knife blows were struck as Rebecca Trudgett described, apparently intended by her to convey that the knife was thrust horizontally in front of the accused, then in the absence of any evidence that John Frail was bent over with his torso more or less horizontal at the time, the jury would not have had any basis upon which to conclude that any of these were the knife strokes which caused the fatal wound.
In the passage of my summing up on this issue which is now attacked (see [29]), I referred to the evidence of Sharlette Williams and Stevie Smith. Sharlette Williams observed the final and fatal confrontation between the two men from the front passenger seat of a motor vehicle stationary in Federation Street. She saw the stabbing take place on the roadway near to the left side of the car. She described it as follows at T 202 line 25 to T 203 line 21: "Q. I'm sorry, I beg your pardon, Trent ran from the house-- A. Trent, yes. Q. --and he jumped the railing? A. Yes. Q. And did you see him catch up with John? A. Yeah. He was there and he stabbed John, I seen it. CROWN PROSECUTOR Q. You saw him stab John, was that once or more than once? A. Only once and then I put my head down and screamed. Q. Now you said you saw that he had a knife? A. Yes. Q. Can you describe the knife, perhaps as to its size or type that you saw? A. It was a bit bigger than a kitchen knife, do you know what I mean. Q. And when you saw him stab, what was the motion that he used? Was it downwards, upwards, sideways? A. Up. Q. Sorry? A. I don't get it, what do you mean? Q. Well you said you saw him stab him? A. Yes. Up, upper, like up. HIS HONOUR Q. Perhaps you could just demonstrate the arm action, Ms Williams, could you just move your arm in the way that you remember Trent swinging his arm when he stabbed? A. Well just over, like that. CROWN PROSECUTOR Q. So it was an, was it an over and downward motion that you've just indicated? A. Yes. HIS HONOUR: So the witness indicated her right arm, half extended a little bit behind herself and swung over with the hand coming to about head level and then down to John. Q. Is that right, Ms Williams? A. Yes."
Stevie Smith witnessed the event from the driver's seat of the motor vehicle. At T 163 line 49 to T 165 line 32 she gave this evidence: "A. John was on the left hand side of my car, just in front of the rear vision mirror, on the left. Q. Near the front mud guard? A. Yes, so you've got the rear vision mirror and then he was sort of standing just in front of there. Q. Okay. On the road? A. Yes. Q. And you said Trent came over the barrier? A. Yes. Q. And you saw something in his hand? A. Yes. Q. Could you see what it was? A. No. Q. And then you said that you saw - did you say you saw him stabbing at John? A. In the shoulder, in the arm sorry. Q. What was John doing at that stage? A. Walking. He was walking around to the front of my car. Q. Around what around the front of the car? A. To go in front of my car, but I took off as I saw Trent's arm go up. Q. When you say you saw Trent's arm go up, you lifted your arm, can you demonstrate what you saw of Trent's arm? A. Yep, just up like that. I just saw his arm go up like that and that's when I took off and as I was doing that, as I was driving off, I saw him go in his arm. Q. So you saw Trent's arm go up to, if I can describe this for the record, to a position where his hand was near the side of Trent's head? A. Pardon? Q. You said you saw Trent's arm go up and you raised your arm, when I asked you to demonstrate? A. Mm hmm. Q. To a position where your hand was beside your ear, in effect? A. Yep. Q. And then you said you started to drive off? A. Yeah. HIS HONOUR Q. Is that what you saw Ms Smith, that his hand came up to about the level of his ear? A. Yes. Q. You'd said earlier that you saw, as Trent came over from the house, that he had something in his hand but you couldn't see what it was? A. Yes. Q. And at that point when he raised his hand, could you see whether that was the hand that had something in it? A. No, pardon? Q. When he raised his hand, was that the hand that had something in it? A. Yes. Q. And did you see what it was at that point? A. No I didn't. Q. And you said that Mr Frail moved around in front of your car? A. He wasn't right in front, he was in the motion of moving to the front of my car. Q. And how far ahead of the front bumper bar of your car was he when he was moving towards crossing the direction in which your vehicle was facing? A. He would have been on the left hand side right up near my light, but not in front of the light. So just past the front tyre. Q. I think you said that you started to drive off and it gives a bit of an impression that you might have been nearly about to run him over or is that right or? A. Can I draw---- Q. How did you move off if he was moving across your path? A. Well he wasn't in front of my car, he was still on the side of it near the front tyre, near the front left hand tyre. As he was walking towards there I was driving off."
In the impugned passage of the summing up at p 59 (quoted at [29] above), when I told the jury that it was open to them to find ("you may conclude…") that the only way the fatal blow could have been struck was "much as Sharlette Williams and Stevie Smith described" I was referring to the evidence quoted at [40] and [41]. That is, evidence that the accused raised his right hand to a position slightly behind himself and swung the knife over and downward to the victim. Having further reviewed that evidence I am not persuaded that there was any error in telling them that it was open to them to find that the only way the mortal wound, as earlier described, could have been inflicted was by a stabbing action such as described by Sharlette Williams and Stevie Smith and that they could reason to a conclusion that it could not have been caused by a pushing stroke such as described by Rebecca Trudgett unless the deceased had been bent over facing towards the accused, of which there was no evidence.
The direction I gave to the jury in the passage quoted at [29] was that there was an absence of evidence of the deceased having assumed a posture which could have resulted in him receiving the fatal blow in any way other than by the type of stroke which the two witnesses, Williams and Smith, described, namely, raising the knife high and plunging it downward. I consider that this observation was fully justified having regard to the relevant passages of evidence the totality of which have been extracted at [34] - [41] above. It was for those reasons that I did not see fit to re-direct upon this - as referred to at [7] and [8] above, where I have mentioned what was said at p 71 of the summing-up.
As for apprehension of bias, I fail to see how it would arise out of this aspect of the summing-up. The evidence does not show that I was mistaken in the manner in which I put this to the jury.
Even if I had been mistaken, what is it that I would be deciding in the re-trial which this passage might suggest I have pre-judged? If evidence emerges in the re-trial of some other way in which the fatal blow could have been struck, then it would necessitate that I should sum up differently. Even if the evidence should be the same, there is no saying that the issues at the end of the evidence will be the same or that this point will ever be taken. I do not see how any misstatement of the evidence in the impugned passage of the summing up, if there is a misstatement, could be taken by any reasonable bystander to indicate bias.
There are numerous statements in the authorities about the extent to which a trial judge may appropriately make comment to the jury upon the evidence. In B v The Queen [1992] HCA 68, (1992) 175 CLR 599 at 605, Brennan J, with whom Mason CJ and Deane J agreed, said this (citations omitted): "A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'."
In R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 the Court pointed out (at 56) that the trial judge is entitled to express opinions on the facts provided it is made clear to the jury that factual disputes are exclusively for them to decide. In this case I told the jury many times that factual questions were exclusively for them. In the passages that are complained of I repeatedly stated that they "may conclude", or similar, and that they "can reason about" the evidence. This was expressed in the orthodox language of a summing up which made it abundantly clear to them that the judgment on these evidentiary and factual points was theirs.
In the course of argument on this motion, counsel for the applicant submitted to me that I had told the jury that they "must" decide this issue of fact by finding that the fatal knife swing by the accused occurred as described by Sharlette Williams and Stevie Smith. I reject that submission. I did not at any stage tell the jury that they "must" decide any factual matter. This is apparent in the transcript of the summing up. Such a direction from me would almost undoubtedly have provoked a request for a re-direction. If I had inadvertently said such a thing and had been made aware of it I would have corrected myself. It would have been completely contrary to a central theme of the summing-up.
In R v Meher [2004] NSWCCA 355 the following was stated at [87]: "Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution."
I refer also to the judgment of Blanche CJ in R v Malone (Court of Criminal Appeal (NSW), 20 April 1994, unrep): "In this case it is clear that the remarks complained of were made by the trial judge in the context of criticisms made of the Crown case not foreshadowed during the course of the trial and not anticipated by the Crown Prosecutor in his address. This Court has drawn attention before to the fact that judges may find it necessary to become involved in forensic argument insofar as it is necessary to deal with matters raised by defence counsel who make the last address to the jury - see for example R v O'Donoghue (1988) 34 A. Crim. R. 397, R v William Booth, (C.C.A. (N.S.W.) unreported 29 September, 1993 and R v Gluscheski (1987) 33 A. Crim. R. 193."
Further in relation to the impugned passage of my summing-up at pp 59 - 60 concerning evidence of the posture of the deceased when the fatal blow was received, the accused now submits: "There was no expert evidence that 'the only way' the fatal injury could have been inflicted was much as Sharlette Williams and Stevie Smith described."
The absence of expert evidence on the bio-mechanics of what postures the deceased and the accused respectively would have had to assume in any scenario in order for the fatal blow to have been struck did not invalidate what I put to the jury. It was quite appropriate in my view to inform them that they could use their own common sense and apply their own reasoning to work out what postures of the respective parties would have been consistent with such a blow being occasioned and then to consider that against the evidence of Crown witnesses which described the respective movements of the accused and the deceased at various times. The absence of expert evidence does not invalidate the impugned passage.
Next it was submitted on this point that: "The singling out of the evidence of Ms Williams and Ms Smith in this important respect highlighted an earlier argument made during the summing-up (but not by the Crown) that they were in a better position to observe the altercation than others at the scene. SU28." The expression "singling out" is explained further in this passage of the accused's submissions by reference to two other witnesses who had given evidence about, to put it neutrally, the arm actions of the accused at the critical point of the physical confrontation. One of the witnesses referred to by the accused's counsel was Rebecca Trudgett. But I did refer to her evidence in the very passage of the summing up at pp 59 - 60 which is now attacked. I did not "single" the evidence of Sharlette Williams and of Stevie Smith out from that of Rebecca Trudgett. I drew the jury's attention to the evidence of Rebecca Trudgett and the respect in which it differed from that of the other two.
The other evidence to which the accused's counsel has referred is that of Kade Mackenzie, who was in the rear passenger seat of Stevie Smith's car, stationary in Federation Street, when the fatal altercation took place. His evidence at T 227 lines 5 - 23 is as follows: "Q. All right-- [T 227.6] A. And then that's when John has, John turned around and Trent's coming towards him, he started backing away, and that's when Trent started throwing the punches. Q. Did you see anything in either of the hands of Trent? A. In his right hand he was holding a knife. Q. Can you describe it? A. From memory it was about, I'm not sure of the exact distance, maybe 30 centimetres from handle to the tip. Q. What, are you talking about the total length of-- A. The knife. Q. --the knife? Including the handle? A. Yes. Q. Okay. And what colour was it? A. I can't remember the exact colour. [T 227.25] Q. And you said you saw Trent started throwing punches? A. Yes. Q. With what hand? A. His right hand. Q. And that was the hand with the knife? A. Yes. Q. What was John doing? A. As John started backing away he tried to, like, defend and hit Trent's right hand away, as he was backing away. Q. So he was doing something with his arms, was he? A. Yes. Q. What happened next? [T 227.42] A. After he started throwing punches and backing away, that's when Stevie proceeded to drive up to the corner of Bobs Street and called triple 0."
The description of "throwing punches" which seems to have been attributed to both the accused (at lines 6 and 25) and the deceased (at line 42) is completely general and does not give any description of a knife stroke by the accused which would contradict or qualify the description of the knife stroke given by Sharlette Williams and Stevie Smith. I fail to see how it can meaningfully be said that I "singled out" their evidence regarding the knife stroke from that of Kade Mackenzie when he gave no specific description of any thrust which could possibly have caused the fatal wound, at all. "Throwing punches" with a knife was an empty generality which neither counsel attempted to have clarified by the witness. At T 231 lines 40 - 42 counsel for the accused merely had the witness reiterate this broad description: "Q. You said, sir, that when the two men came back together, you saw Trent throwing punches with the knife in his hand? A. Yes." Counsel for the accused also obtained these answers at T 232 lines 6 - 12: "Q. And you also saw what you thought was Trent swinging the knife around the other male's arms or under them? A. Yes. Q. You didn't see - you saw the knife go near the other male's body, but you didn't see it actually hit the other male's body, correct? A. Correct."
This was not evidence of actions by the accused which could have caused the fatal wound. "Swinging the knife around [John Frail's] arms or under them" could not result in a deep penetrating wound from the right side of the neck through the throat to the upper lobe of the left lung. To the extent that the impugned passage of my summing-up "singled out" the evidence of Sharlette Williams and Stevie Smith from these two answers I consider it was entirely appropriate to do so. The subject on which I was attempting to remind the jury of relevant evidence and to instruct them regarding the manner in which it would be open to them to reason with respect to it was the subject of what conclusion they might draw about the nature of the blow which inflicted the critical wound. It would have been an irrelevance and a distraction to include reference to this evidence of Kade Mackenzie (quoted at [54]) which was of other knife strokes immaterial to the matter at hand.
As to the complaint (in the submission quoted at [53]) that I "highlighted an earlier argument made during the summing-up (but not by the Crown)", the passage at p 28 of the summing-up was in these terms: "Then you have a third category of witnesses who are the three in the car, Stevie Smith driving, Sharlette Williams in the front passenger seat and Kade Mackenzie. When you evaluate the evidence one thing that you may wish to take into account is the different perspectives of these witnesses on critical events. There have been extended submissions made to you about whether you would find that the deceased moved back towards the accused and that has been raised in the context of whether or not you would be satisfied beyond reasonable doubt that the accused's actions were not self defensive. Now, you can take the distances and the angles of perspective and so on of the respective witnesses from the sketches of the roadway and so on and you will see that where the car that Stevie Smith drove came round into Federation Street. There does not seem to be any question that it was on the left side of Federation Street and you can see that there is only a short distance therefore between the car wherever exactly it was in the lane and the barrier. On the other hand, the witnesses who were back towards the front of 200 Warren Street are a somewhat greater distance away and they were viewing the two men as they came together from behind the accused. The three in the car were seeing the accused come towards them so you can take into account those aspects if you like of the geometry of the situation in evaluating the descriptions witnesses have given in weighing up what you think is the relevant opportunity to observe the conflict when it finally occurred on the road, the relative opportunity of those who were in the car looking at the accused as he approached the deceased as against those who were somewhat further away back towards the house looking across towards the accused as he moved away from them."
This passage does not involve an "argument made during the summing-up" at all. It involves the jury being directed that in evaluating the evidence of various witnesses, including conflicting witnesses, it would be appropriate that they take into account the opportunity for observation that the witnesses respectively had. Whether the Crown had referred to this or not, it was my duty as the trial judge to point it out. There were witnesses who had viewed this final confrontation from different angles. Whether defence counsel or Crown counsel said anything about the relative advantage of observation enjoyed by one witness over another, I was bound to point out to them that they should consider this when weighing up the evidence and deciding which witness or which parts of any witness's evidence they felt they could rely upon. A generic instruction about having regard to witnesses' opportunities for observation is a standard component of the trial judge's directions in most criminal trials in this State. I consider it appropriate and desirable to give a direction on this point in specific terms in relation to any factual issue that may be significantly affected by witnesses' relative opportunities to observe.
If, contrary to what I have said above, I was in error at the trial in telling the jury that it was open to them to accept the evidence of Sharlette Williams and Stevie Smith as to the nature of the fatal knife stroke (at summing-up p 59) and in inviting them to consider relative opportunities for observation by the witnesses respectively (at summing-up p 28) and if I am still wrong in the assessment of those matters which I have given here, nevertheless I do not think it would be open to a reasonable bystander to conclude that such error on my part as may be found should give rise to a reasonable apprehension of bias.

The summing-up on self-defence

Secondly, with respect to excessive self-defence. This was not opened by the accused's counsel. I considered that it had to be left to the jury because of the description given by Karah Towney at T 294 - 295 (quoted above at [35] and [36]) of the physical confrontation between the accused and the deceased which occurred in Federation Street immediately prior to the fatal stab wound being inflicted. She said that the deceased "was still trying to fight Trent".
The fact that self-defence and excessive self-defence had to be left to the jury raised a subsidiary factual question as to whereabouts on the road surface the stabbing had occurred. Depending upon where the jury found that the stabbing had occurred, they might conclude either that the deceased had moved back towards the accused before being fatally stabbed or that he had not done so. Whether the deceased had moved back towards the accused as the latter ran out from his home with a knife might have been considered by the jury to have a bearing upon whether the deceased had acted in a manner from which the accused reasonably apprehended that he would have to defend himself.
Defence counsel had addressed the jury on the basis that the position of blood stains on the road indicated the location of the stabbing. Part of my remarks in the summing-up, which is now impugned on this application, was intended to draw the attention of the jury to the circumstance that before they could draw the suggested inference as to where the stabbing had taken place, they would have to consider whether it followed that the location of the blood on the road was the location where the victim had stood when stabbed.
The part of the summing up that is criticised in this respect is at summing-up pp 64 - 65, as follows: "Although Kade Mackenzie said that it did not happen, that actually John Frail was backing away, other witnesses did acknowledge that there was at least a step towards. You will recall the evidence that he cited to you of Sharlette Williams that the deceased moved towards the accused putting his arms up and defending himself. Now in connection with that he relied upon not only in particular the evidence of Karah Towney and that of the witnesses in the car but also the positioning of the bloodstains on the ground. He pointed out that there were a couple of bloodstains on the left-hand white line marking the edge of the bitumen. A larger bloodstain was a bit further out at marker number 4 in the photographs. In order to rely upon that kind of physical evidence again you have to make some preliminary assessments. The small quantities of blood on the white line you have to, you would have to make an evaluation of whether you think that might have been a spurt or a spatter of blood across to that direction or whether it might have been that the two men actually came together right on that line. You can look at the larger quantity of bloodstaining which is at about marker 4 a bit further out in the laneway, weigh those things up to determine where you think the contact may have been made."
Counsel now says on behalf of the applicant that there was no evidence of "spurt or spatter". There did not need to be direct evidence that in fact blood had spurted or spattered from the victim for it to be appropriate to issue to the jury this caution about the use of the circumstantial evidence of the location of blood stains as a basis for inferring the location of the fatal stabbing.
This was an orthodox application of the principles governing the use of circumstantial evidence and of the way in which a jury is customarily instructed about these principles. Elsewhere in the summing up I gave a general direction about the use of circumstantial evidence, pointing out, as is usual, that before they drew an inference from circumstances they should ask themselves whether the inference really in logic followed. Here, defence counsel in final address clearly was asking the jury to infer from the presence of bloodstains on the road that the victim had stood at the location of those stains when the stab wounds were inflicted. The jury had to consider whether that really followed or whether it might be possible or even probable that blood might have fallen to the ground at some distance from where the deceased, whose blood it was, was standing when he was struck.
What I put to the jury in this instance, as criticised, was not as the accused has now submitted "speculative". It was a possibility that they needed to consider and it arose as a matter of common sense and everyday knowledge. If drawing to the attention of the jury the fact that they had first to make a decision about whether the blood on the road had fallen directly down from the location of the stabbing or had spurted or spattered from some point more distant had the effect of diminishing the defence argument, then that was because the argument which had been run depended upon an assumption that the blood found on the road after the incident fell directly downward from the point of stabbing. As trial judge, holding the balance between the parties I was not bound to refrain from reiterating, with specific reference to this factual issue, the standard direction that I had elsewhere given the jury as to the proper process of inferential reasoning.
In his final address, after reminding the jury of evidence given by eye witnesses about where on the roadway the accused and John Frail had finally come together, defence counsel put this to the jury at T 567/9 - 48 (extracted so far as relevant): "Members of the jury that is all evidence, as I say, that comes from humans. have [sic] said to you already some things about all of that. But what about the crime scene, what was left at the scene? What does that say, objectively, about where these two men came back together? Well members of the jury, Exhibit A, photograph 32 is a picture of Federation Street with the markers placed, I think, by Officer Cheeseman at points that were relevant to the investigation. The numbers of the markers are on those diagrams that have been given to you at various sizes. I think I am right in saying that the yellow marked to the far left of photograph 32 is marker one. You heard Miss Frail identify that as John Frail's jumper. You heard the evidence of Kade Mackenzie that that was a jumper, I suggest, that was picked up or that he saw Mr Frail pick up, as he came over the railing and walked towards Federation Street. Well Officer Austin, I think it was, who was there very shortly after this incident described the jumper being there. That the trail of blood commenced there and went across Federation Street. Officer Cheeseman said that there was blood at marker two and three which are on the far left had [sic] side of Federation Street. His understanding, and there's no evidence to the contrary, is that all of the blood on Federation [sic] is Mr Frail's blood. That those two markers are where blood was. That there was, you remember the evidence about the rain and the covering and so on, but there was a trail of blood, according to Officer Austin, that commences on the far left hand side of the left hand lane as you look at that photograph. There was rain and so but there was - then there is a deal of blood at marker four and the DNA evidence is that that was undoubtedly, the evidence is that all of this blood was Mr Frails [sic]. That blood there was tested and it was confirmed. Well member so [sic] the jury doesn't that support, corroborate, give you some objective evidence that if Mr Frail, as Mr Mackenzie described, was on the double painted lines when Mr Towney came over the railing. That what Miss Towney, Miss Karah Towney said that these two men came back at each other is consistent with that. Now there is no evidence about how the jumper got back to the railing but again if what Mr Mackenzie, Kade Mackenzie saw is right, that it was picked up as he came across Federation Street. Well again does that provide some support that the two men came back together as a consequence of Mr Frail coming at Mr Towney."
This submission completely failed to acknowledge to the jury that it depended upon an assumption that the blood on the ground must have fallen directly vertically from the victim as he stood on the spot where the blood was subsequently found. It was not acknowledged in this passage of the address that any element of inference from this assumed circumstance was involved. As trial judge I was not bound to let this incomplete analysis pass.
Again, whether I was right or wrong at the trial to have summed-up to the jury in the manner which I did on the subject of inferring the victim's position on the roadway from the location of bloodstains and whether I am right or wrong in the analysis of this subject now given in these reasons, it does not appear to me that any reasonable bystander could reasonably apprehend that bias against the accused might underlie the terms in which I put these matters to the jury.

The summing-up on intoxication

The third aspect of the summing-up which the accused now complains about as exhibiting a basis upon which bias might be apprehended concerned the degree to which the accused may have been intoxicated at the time when the stabbing took place.
On this subject, the Crown had addressed the jury at T 530 lines 6 - 9 as follows: "The question of whether Trent was so intoxicated as to be incapable of forming such an intention or so intoxicated to have some bearing on the question of provocation or the question of self-defence depends on the evidence of but two people. Emma Towney and Rebecca Trudgett."
The Crown Prosecutor then read from the transcript of evidence of Emma Towney and Rebecca Trudgett, which included Emma Towney's statement that at some unidentified point during the night the accused "did look intoxicated" (T 242 line 35) and the evidence of Ms Trudgett that, again at an unidentified point in the night, the accused "wasn't that affected, he was getting a little bit tipsy but that's about it" (T 311 lines 10 - 11).
At T 531 lines 7 and 10 the Crown Prosecutor concluded on this subject as follows: "That is the whole of the evidence on Trent's intoxication at this trial save and except for what Trent told the police the following morning which was that he was intending to have a party but had gone to sleep instead, he had a few drinks before that."
In closing address, answering this portion of what the Crown Prosecutor had to say, at T 546 line 34 to T 547 line 6, the following was said by the accused's counsel: "The other thing that I want to say about intoxication is that what my friend said to you about the evidence of intoxication, and I think he said it more than once, the only evidence of intoxication was Emma Towney and Rebecca Trudgett. Well again member [sic] of the jury that was wrong and it is another reason why you need to consider all of the evidence. Whalan Williams, the second of the young men that you heard evidence from last week at page 117. These were questions asked by the Crown Prosecutor himself. "Q. What about Trent was he drinking? A. Yes. Q. How was he when you were there, was he drunk or not? A. Yes. Q. He was? A. Yeah." So Whalan Williams is more evidence that he was drunk. There's evidence that there was a lot of alcohol brought. You will remember the evidence of Brody Roach. There's other evidence that people, everybody was drinking and of course this is 3am, in the early hours of a Saturday after a Friday night."
In summing-up I reminded the jury of the Crown's address on the subject of intoxication as follows: "Secondly, the Crown said you would not be deflected from deciding that he had that intention, deciding it beyond reasonable doubt, by evidence about intoxication, because he said that the evidence of the degree of intoxication of the accused at the time of this incident was very scant and was not such as would enable you to conclude that the degree of intoxication would lead you to think that he might as a reasonable possibility not have had the intention which otherwise the knife blow suggests."
At summing-up pp 60 - 61 I reminded the jury of defence counsel's argument on intoxication. It is this passage in respect of which complaint is now made to the effect that the reasonable bystander could infer from it that I hold a bias against the accused: "Now, again with respect to intoxication, Mr Nash said there was more. He said there was also the evidence of Whalan Williams, who had described the accused as being drunk. As I pointed out to you earlier in categorising the witnesses, of course Whalan Williams evidence was that he left 200 Warren Road. It seems to be around about midnight, at about the time Karah and Emma Towney arrived. So there is three hours gap between that and this occurrence approximately. You need to consider the evidence which reveals that gap and determine by reference to that what weight you would put on that extra piece of evidence to which Mr Nash has referred to you about intoxication."
I have mentioned already, at [11] and [12] that a redirection was sought on this and not given (see summing-up pp 69 - 72).
It has been pointed out on this application that in the course of summing-up I referred to the evidence of Emma Towney as being to the effect that she had said the accused did not look intoxicated. That was incorrect, as can be seen from T 242 line 35 quoted above at [72]. The Crown had addressed the jury correctly, that Ms Towney had said he did look intoxicated (at T 530). The error on my part was inadvertent. On this application the accused's counsel has expressly disclaimed any suggestion that a reasonable apprehension of bias could arise from this error. Neither counsel noted my mistake in this respect at the time. There would be no possible inference of bias arising from it.
What is said about the passage from my summing-up at pp 60 - 61 is that I "singled out" the evidence of Whalan Williams as the other evidence of the applicant's intoxication. It is then complained that my reference to the three hours between when Whalan Williams made his observation and the time which was relevant for the jury to ascertain the accused's state of intoxication suggested to the jury that there was time for the applicant to sober up. As the accused's counsel put it, "This accordingly added weight to the Crown's argument, as summarised, that there was very 'scant' evidence of intoxication."
This was another instance of my simply pointing out to the jury that they needed to take account of a relevant witness's opportunity for observation in evaluating his evidence. The Crown had submitted to the jury that the only observers of the accused's state of intoxication at a time relevant to his formation of the requisite intention were Emma Towney and Rebecca Trudgett. The accused's counsel had countered with the submission this was wrong, that there were more witnesses - and named Whalan Williams. He was not a witness who had had the opportunity to observe the accused at the time of the fatal confrontation in order to be able to say anything at all about his state of intoxication at that time.
It would have been completely misleading for me to have left the jury with this point of disagreement between the Crown and the defence without pointing out that Whalan Williams had not made his observation at a relevant time. To suggest that my doing so "added weight to the Crown's argument" is a distortion of what occurred.
Further, in relation to this point the proposition that I had "singled out" the evidence of Whalan Williams was sought to be made good on the application by suggesting that there was more evidence beyond that of Whalan Williams which had bolstered or perhaps expanded upon the evidence of Emma Towney and Rebeca Trudgett and to which I should have made reference in summing up.
Reference was made in argument to the witness Brody Roach. Defence counsel had referred to him in the passage which I have quoted above at [74] when responding to the Crown's claim that there were only two witnesses relevant to intoxication. But when one looks at the evidence of Brody Roach (T 73 - 104) it provides nothing specific about the degree of intoxication of the accused at the relevant time at all. In addressing the jury counsel had done no more than tell them that they "will remember the evidence of Brody Roach", without quoting any of it. When summing-up I could not find anything in the evidence of this witness concerning the degree of intoxication of the accused at the time of the fatal confrontation, for the purpose of reminding the jury of it. Brody Roach agreed that "at some point in the evening", "people were drinking" (T 79). He said people were sitting around in the lounge room drinking (T 81) but he did not notice how much of the drink which had been brought to the premises had been consumed (T 82). In cross-examination Brody Roach said that John Frail was "charged up", "very drunk" at the time he was asked to leave the party (before returning quite some time later): T 94 - 95.
The accused's counsel in support of this part of his argument suggested that there was a deal of other evidence about large amounts of alcohol being at the premises during the evening, about most people present consuming alcohol and a great deal of drinking going on and so on. This general evidence was not such that the jury needed to be reminded of it, or of which it would have been appropriate for me to remind them, in drawing to their attention the competing arguments of the Crown and the defence about what evidence was available to establish the accused's degree of intoxication when he stabbed the deceased.
The witnesses' generalities about drinking going on, as now identified by the accused's counsel, simply could not have been relied upon by the jury to prove anything about how much the accused, in particular, was affected by alcohol shortly before 3am when he stabbed the deceased. To a reasonable bystander properly informed about the evidence, the addresses and the summing-up, it could not be reasonably apprehended that I was actuated by bias pointing out that Whalan Williams' evidence of the state of the accused's intoxication was with respect to a time at least three hours too early to be relevant and that there was no other specific evidence about the accused's state of sobriety at the time of the knife attack which should be taken into account by the jury together with the evidence which the Crown had identified of Emma Towney and Rebecca Trudgett.

Conclusion

For these reasons, I consider that no reasonable bystander, understanding the evidence and arguments presented in closing addresses, aware of the contents of my summing-up as a whole and familiar with the duties incumbent on the trial judge in giving the jury their final charge, would apprehend from any of the matters raised by the accused on this application that I would approach the retrial with a bias against him in relation to any matter. There is no basis for any reasonable person with knowledge of the full circumstances to infer that as presiding judge in the retrial I would act out of bias in the manner in which I would direct the jury on any factual issue, in the rulings I might give upon the admissibility of evidence, in the exercise of discretions which might be in my hands with respect to procedural matters, in formulating the law to the jury or in anything else within my province.
In considering what has been argued and in reaching this conclusion I have been guided by statements of principle on the application of the law relating to disqualification for bias particularly in respect of criminal trial judges, having regard to their limited decision making role. In R v El-Zeyat [2012] NSWSC 340 Johnson J said: "[21] A 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. [22] A 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. [23] Where, 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]. … [27] The 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."
In Balic (No 2) (1994) 75 A Crim R 515 at 520 it was said by Cole JA, Handley and Sheller JJA agreeing: "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."
Balic (No 2) was cited with approval in R v Kearns [2003] NSWCCA 367 and was cited and applied by Johnson J in R v El-Zeyat.
I have taken carefully into account Cole JA's recognition, in the passage quoted at [88], that there are aspects of the functions of a trial judge in a criminal trial which might be subject to influence by bias, if any were held. For the reasons given, I do not consider it could be reasonably apprehended that, in making decisions of the kind referred to by Cole JA, I would hold or be influenced by any pre-judgment concerning the accused on the basis of the matters put to me on this application. As Johnson J pointed out in El-Zeyat at [29]: "There 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."
The orders of the Court are: 1. The accused's notice of motion filed in Court by leave on 18 December 2015 is dismissed. 2. The retrial of Trent Towney is to proceed before Fagan J at Orange commencing 1 February 2016.

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: 11 February 2016

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