R v White

Factual Background

1. On 10 December 1988, the body of Scott Johnson was discovered at the base of a cliff below the headland at Blue Fish Point, Manly. Mr Johnson had died as a result of multiple injuries. The injuries were equally consistent with Mr Johnson being pushed, tripped or intentionally jumping from the cliff (Paragraph 2.6, Crown Case Statement).
2. Inquests were held into the death of Mr Johnson in 1989 and 2012. A third inquest took place in 2017 and the State Coroner found that Mr Johnson had died as a result of a gay hate attack and the manner of death was "Mr Johnson fell from the cliff as a result of actual or threatened violence by unidentified persons who attacked him because they perceived him to be homosexual" (Paragraph 3.4, Crown Case Statement).
3. In September 2018, a re-investigation of Mr Johnson's death was initiated. In 2019, information was provided to police concerning the Accused, who was interviewed by police in May 2019 (Paragraphs 4.1-5, Crown Case Statement).
4. As a result of events in March 2020, including conversations on 19 March 2020 recorded under a surveillance device warrant, the Accused was arrested on 12 May 2020 and charged with the murder of Mr Johnson.

An Issue Emerges Concerning the Issue of the Surveillance Device Warrant

1. On 19 July 2021, a directions hearing took place before me for the purpose of making procedural orders in advance of the pretrial hearing listed to commence on 5 October 2021.
2. In the course of that directions hearing, the Crown drew to my attention the fact that I had issued the surveillance device warrant which had been utilised in the operation which had given rise to the making of the alleged admissions (T4, 19 July 2021). The Crown indicated that he had brought this matter to the attention of Ms Rigg SC, for the Accused, that morning.
3. Ms Rigg SC observed that there was "nothing to raise at this time in relation to his Honour's involvement with the surveillance warrant" (T4, 19 July 2021). This was an understandable position in circumstances where Senior Counsel for the Accused would not have had an opportunity to take instructions from her client (who is in custody) and who appeared on that day by audio-visual link.
4. As noted in the transcript of 19 July 2021, after the Crown informed the Court about the surveillance device warrant, I indicated that I had no memory of having issued the warrant (T4.17, T5.46, 19 July 2021).
5. A series of directions were made by the Court with respect to the forthcoming pretrial hearing, with the first order in time being the requirement for the Accused to file and serve a Notice of Motion by 6 August 2021 identifying the evidence which is sought to be excluded and the provisions of the Evidence Act 1995 (NSW) relied upon in that respect.
6. After the directions hearing, I considered that it was appropriate to seek limited additional information from the Crown concerning the surveillance device warrant. An email from my Associate dated 23 July 2021, requested the Crown to provide the date of the issue of the warrant and an indication, by reference to paragraphs in the Crown Case Statement, of admissions alleged to have been made by the Accused which had been recorded pursuant to the warrant which I had issued. It was made clear in the email that I did not propose to examine the records concerning the issue of the warrant.
7. By email dated 26 July 2021, the Crown provided a copy of the warrant issued on 2 March 2020, and an indication of the alleged admissions recorded pursuant to the warrant upon which the Crown seeks to rely.
8. It is sufficient to observe that the conversations which were recorded under the warrant took place on 19 March 2020 and the Crown seeks to rely upon extensive parts of those conversations as constituting admissions (Paragraphs 6.4-6.5, 6.7-6.8 and 6.10-6.14, Crown Case Statement).

Function Exercised Under Surveillance Devices Act 2007 (NSW)

1. The surveillance device warrant dated 2 March 2020 was issued by me as an "eligible judge" under s.5 Surveillance Devices Act 2007 (NSW). Applications for surveillance device warrants form a significant part of the work of Judges in the Common Law Division of the Supreme Court, in particular when serving as the Duty Judge within that Division.
2. In determining to issue a surveillance device warrant, the eligible Judge is satisfied that there are reasonable grounds for the suspicion or belief founding the application for the warrant: s.19(1)(a) Surveillance Devices Act 2007 (NSW).
3. With respect to the Listening Devices Act 1984 (NSW) (the predecessor to the Surveillance Devices Act 2007 (NSW)), the High Court of Australia stated that the issue of a warrant involves the exercise of administrative and not judicial power, although the Judge is under a duty to act judicially with respect to the exercise of that function: Love v Attorney General for NSW (1990) 169 CLR 307 at 321-322; [1990] HCA 4; Sepulveda v R (2006) 167 A Crim R 108; [2006] NSWCCA 379 at [108].

Test for Reasonable Apprehension of Bias

1. The test to be applied as to reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ("Ebner") at [6]. The question is one of possibility (real and not remote), not probability: Ebner at [7].
2. The use of the word "might" in both limbs of the test connotes the concept of a real chance or a realistic possibility falling short of a probability: McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [110].
3. In the context of a Judge-alone hearing, the Court of Criminal Appeal (Davies J, Adamson J and myself agreeing) said in McIver v R [2020] NSWCCA 343 at [67] and [72]: "In applying the test, the reasonable bystander will have regard to the fact that the person being observed is a professional Judge whose training, traditions and oath or affirmation requires the Judge to discard the irrelevant, the immaterial and the prejudicial (Johnson v Johnson at [12]). However, a judicial oath is not a guarantee of impartiality and a judge's professional status and experience is but one factor which a fair-minded observer will have in mind when forming an objective judgment as to the risk of bias (Helow v Secretary of State for Home Department at [57] (Lord Mance); Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98 at [103]-[108]). … In considering the present ground of appeal, it is necessary to keep in mind that a judicial officer should not automatically or lightly 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) 151 CLR 288 at 294; [1983] HCA 17; Johnson v Johnson at [45]. However, the principle that a judicial officer should not disqualify him or herself too readily is not 'a blanket that smothers the effect of disqualification where it has already arisen': Antoun v The Queen at [35] (Kirby J); Gaudie v Local Court (NSW) at [81]."

Reasonable Apprehension of Bias After Issue of Warrant by Judge

1. The question has arisen, in a number of cases, as to whether a Judge who has issued a listening device warrant or surveillance device warrant should sit subsequently as the trial Judge in criminal proceedings involving a person who was being investigated under the warrant.
2. In R v George and Others (1987) 9 NSWLR 527, the Court of Criminal Appeal considered a ground of appeal which contended that the trial Judge ought to have disqualified himself from further proceeding with a trial when it emerged, during the course of the summing up, that the trial Judge had, at some stage before the trial, issued a warrant under the Listening Devices Act 1984 (NSW) authorising the use of a listening device in relation to one of the accused persons. It was noted (at 535) that the subject matter of the listening device warrant issued by the trial Judge did not involve anything to do with the charges for which the accused persons were standing trial.
3. After referring to principles concerning reasonable apprehension of bias in Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, Street CJ (Yeldham and Finlay JJ agreeing), in the course of dismissing the ground of appeal, said at 536-537: "A judge presiding at a trial - albeit, as Mr Roberts emphasised, that he is called upon to make rulings during the course of the trial which can affect the course of its progress and hence affect directly the accused person - is not the ultimate decider of facts on the matter of guilt. If judges who are presiding at trials were to be insulated from all other activities involving the administration of the criminal law and associated fields, the administration of justice would be placed in wholly unnecessary watertight compartments. For example, bail applications are commonly heard by judges involved in trials. Indeed, during the course of a trial, particularly a lengthy trial such as this, the trial judge quite frequently considers whether bail should be allowed during the course of a trial, and in the course of considering a matter of that sort in the absence of the jury all sorts of prejudicial material is properly made known to him. In the course of voir dire proceedings in trials material not proper to put before a jury is, without the faintest suggestion of concern regarding inducing unfair prejudice on the part of the judge, placed before the judge. When evaluated in its entirety and with particular reference to the absence of any association with this particular case and the absence of any suggestion of actual bias, I find this ground not to be one that has been made out."
4. In R v Eastman (1994) 121 FLR 150, an application was made to Gallop J, a Judge of the Supreme Court of the Australian Capital Territory, that he disqualify himself before trial upon the basis that he had issued a listening device warrant with respect to Mr Eastman. Gallop J referred to principles with respect to reasonable apprehension of bias, and then considered the decision in R v George and Others. Gallop J distinguished R v George and Others in the following way at 153: "What distinguishes this application from the application made in R v George and Others is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George and Others."
5. Gallop J continued at 154: "Any lawyer who was informed during the course of a trial that the presiding judge had issued warrants authorising the installation of listening devices in the accused's premises would not reasonably apprehend that the same judge might not be impartial in his conduct of a trial, especially where the ultimate issue of guilt or otherwise is to be determined not by the trial judge but by a jury. But I could not be satisfied, judging the matter according to whether the disinterested observer might apprehend bias rather than probably will, or in likelihood will, apprehend bias, that the disinterested observer might not apprehend bias. The test does not embrace the reasonable lawyer observer; it embraces only the reasonable observer."
6. Gallop J disqualified himself from presiding at the trial of Mr Eastman.
7. In Islam v Minister for Immigration and Citizenship (2009) 51 AAR 147; [2009] FCA 1526, Finn J considered whether there was a reasonable apprehension of bias where a member of the Administrative Appeals Tribunal had issued a surveillance device warrant under the Surveillance Devices Act 2004 (Cth), and had thereafter sat as a member of that Tribunal on an appeal by the person under investigation with respect to the refusal of a visa. Finn J said at [37]: "The authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are R v Eastman (1994) 121 FLR 150 and R v George (1987) 9 NSWLR 527. In each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was (Eastman), or subsequently became (George), the accused in the proceedings. In George the particular matter before the judge under the Listening Devices Act did not involve anything to do with the subject of the later charges. In Eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. As he said (at 153): What distinguishes this application from the application made in R v George is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George. In George in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the court having regard to the nature of a criminal trial, the various activities in which judges may be involved in the administration of criminal justice and particularly 'to the absence of any association [of the listening device matter] with this particular case'."
8. Finn J found that a reasonable apprehension of bias arose from these circumstances, saying at [51]-[53]: "[51] As with the Eastman case, I regard the circumstances of this matter as distinctive. While they may be able to be pigeon holed within the four 'elements' referred to by Hayne J in Jia Legeng as the applicant first contended, that process does not sufficiently accentuate what in my view are the essential concerns which the unusual course of conduct followed in this matter exposes. These are to maintain the integrity of the Tribunal's processes and procedures and to provide public reassurance of that integrity. [52] As Eastman illustrates, the potential is there for apparent compromise of an official's decision making whenever a close relationship or association exists between the subject matter of an administrative or judicial decision to be taken by that official, and adverse information obtained (or an adverse opinion formed) relating to that subject matter in the course of, or as a result of, a separate earlier decision taken by the same official for other purposes. Where it might reasonably be said that the having of (or having had) that information or opinion by virtue of a prior official decision might compromise the proper and impartial taking of the later decision, the same official ought not participate in the later decision. To do so would involve the member in the discharge, in the circumstances, of incompatible functions. Such was the case here. [53] It was inappropriate for the Tribunal member, having determined to authorise the issue of the warrant in relation to Mr Islam, to have then made the s 501(1) refusal determination given the association in subject matter of the two determinations - or at least to have done so without the informed waiver of objection by Mr Islam to his so doing. Absent such waiver, I am satisfied that the 'double might' test of the fair minded lay observer would inevitably be satisfied."
9. Finn J observed (at [32]) that a "double might" test is to be applied (see [19]-[20] above), albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. Citing the judgment of Finn J in Islam v Minister for Immigration and Citizenship, Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [18], noted that the purpose of combining the "double might" with the construct of the hypothetical "fair-minded lay observer" is to stress that the bias rule is concerned as much to preserve the public appearance of independence and impartiality, as it is to preserve the actuality.

Application of Principles to the Present Case

1. With respect to the pretrial application listed for hearing in October 2021, the presiding Judge will be called upon to determine whether the evidence of alleged admissions should be excluded under one or more of the provisions in the Evidence Act 1995 (NSW).
2. Even though the pretrial application does not appear to involve a challenge to the validity or legality of the procedure utilised in issuing the warrant under the Surveillance Devices Act 2007 (NSW), it remains the case that the evidence which is sought to be excluded is evidence obtained directly as a result of the issue of the surveillance device warrant by me on 2 March 2020. A fair-minded lay observer would take into account the fact that, in issuing the surveillance device warrant on 2 March 2020, I was satisfied that there were reasonable grounds for the suspicion or belief founding the application for the warrant (see [17] above). In this regard, there is an even stronger case for recusal here than in R v Eastman.
3. At the pretrial hearing, it would be necessary for me to determine all necessary questions of fact and law for the purpose of ruling upon the application to exclude the evidence. Based upon what was said in R v George and Others and R v Eastman, supported by the analysis of Finn J in Islam v Minister for Immigration and Citizenship, I am satisfied that a reasonable apprehension of bias arises in circumstances where I had issued the warrant as part of the investigation of the Accused, which led to the obtaining of the evidence which is now sought to be excluded.
4. Accordingly, I should not sit as the Judge to determine the pretrial application.
5. With respect to the trial itself, which is expected to proceed before a jury, somewhat different considerations may apply. It will be for the jury, and not the Judge, to determine the question of guilt of the Accused. However, that aspect is not determinative where the question arises as to whether there is a reasonable apprehension of bias on the part of the trial Judge: R v Kearns [2003] NSWCCA 367 at [34]. The duty of a Judge in a jury trial extends to the supervision and control of the conduct of the trial: Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 at [4], [102]-[103].
6. I agree with the approach adopted by Gallop J in R v Eastman, in recusing himself from acting as trial Judge, and I reach the same conclusion in the present case.
7. In any event, it has been said that, in a case of real doubt, where the question for recusal is based upon a substantial ground for contending that the Judge is disqualified from hearing the case, a Judge may decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification: Ebner at [20]. Matters relevant to that assessment include, amongst other things, the stage at which the question is raised and the practical possibility of arranging for another Judge to hear the case: Ebner at [21].
8. As a result of the Crown quite properly reminding the Court that I had issued a surveillance device warrant in March 2020, this issue has been raised at an early point and well before the pretrial hearing and the trial itself. There is ample opportunity for appointment of another Judge to preside at the hearing of the pretrial application and at the trial itself.
9. In these circumstances, the appropriate course is that I recuse myself from presiding at the pretrial hearing and at the trial of the Accused. I will inform the Criminal List Judge of this decision so that arrangements can be made for the appointment of another Judge to preside at the pretrial hearing and the trial itself.

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: 21 January 2022