Rees v Regina

The issues on the appeal 19 The issues on the appeal are set out at [3]. The third issue raised a question of bias. In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 557, Kirby and Crennan JJ, having observed at [117] that allegations of bias are serious, gave the following 'direction' to an intermediate appellate court: "Allegations of this nature are serious. If made, the party making them is obliged to seek relief reflecting their seriousness. We agree generally with Callinan J's observations about the procedure followed in this case. An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice. The respondents' application for leave to file a cross-appeal should be granted. However, the cross-appeal, addressed to the bias issue, should be dismissed." (Citation omitted) 20 This 'direction' does not find expression in any of the other judgments. Indeed, Callinan J, whose judgment on the question of bias was substantially agreed with by all members of the Court, was of the opinion that as the Full Court of the Federal Court had disposed of the matter on other grounds, it had not been necessary for it to determine the question of bias. It is thus uncertain whether this Court is bound by the approach dictated by Kirby and Crennan JJ. 21 For the reasons which I give below, the appellant has not established a case of apprehended bias. Thus, the question whether this Court is bound to determine the bias issue first is not of critical importance. However, as one aspect of the bias question depends upon the determination whether her Honour's directions to the jury were correct, it will be convenient to consider that matter (ground 4) before dealing with the miscarriage and bias grounds (grounds 2 and 3). In the first instance, however, I will deal with ground 1 of the appeal.

Ground 1: her Honour erred in law in admitting the evidence of Trudy Plackett 22 At the trial, Ms Plackett gave evidence that on 24 November 2006, she was entertaining three friends in her home at Catherine Field when, at about 8 pm, the appellant and the two co-offenders arrived. They stayed for a short time and, when they left, she observed from her living room window that they got into a Ford Laser motor vehicle. The car had been parked in front of the carport which ran alongside the living room window about 3 m away from the window. Ms Plackett recognised the vehicle as Mr Pitman's, as she had seen him drive it on and off over the course of the previous month. She said that Mr Pitman got into the driver's seat, but that Mr Hynds and the appellant remained standing on opposite sides of the car talking to each other over the roof. She heard one of them say, "Let's go and see that guy in Camden" and the other responding, "We'll do that later". The two men then got into the car and they drove away. 23 In cross-examination, Ms Plackett agreed that it was dark when she was making her observations from the living room window. She also agreed that at the time, she was holding her young baby, who was crying. It was suggested to her that her attention was therefore on the baby, rather than on what was going on around her. She denied this was so and explained that she was settling her baby to sleep and that not all of her attention was focused on the baby. 24 Ms Plackett also gave evidence that at about 6.30 pm on Sunday 26 November, she drove past the Laser coming from the opposite direction. She identified Mr Pitman as the driver, Mr Hynds as the front passenger and the appellant in the back seat. She was challenged as to her observation of the appellant being in the car, but she reiterated, "He was sitting in the middle in the back of the car. I could see him clearly". 25 Ms Plackett's partner, Mr Hine, also gave evidence. He said that at about 7.30 pm on 24 November he was sitting in the sunroom when Mr Hynds, Mr Pitman and the appellant arrived. The men stayed for about 15 minutes before leaving. He did not see how they left, but gave evidence that they had arrived in a "beigy" Ford station wagon, which he had seen Mr Pitman driving previously. 26 One of the guests at the Plackett/Hine household that evening was Scott Chapman. He gave evidence that he was there when Mr Hynds, Mr Mitchell and the appellant arrived. He said it was dark, and they stayed for "probably 10, 15 minutes, 5 minutes", leaving by the back gate. As far as he knew, the men had walked to the premises and he did not see any vehicle. However, he was "out the back" when they arrived and did not have an opportunity to observe how they arrived. 27 On its face, Ms Plackett's evidence appears to be uncontroversial. However, it was, in fact, a sanitised version of what had allegedly occurred on 24 and 26 November at the Plackett/Hine household. What was alleged to have occurred on the night of 24 November was that the appellant, armed with a shotgun and in the company of Mr Hynds and Mr Pitman, went to the Plackett/Hine household at Catherine Field and assaulted both Ms Plackett and Mr Hine. The appellant was alleged to have pointed the shotgun at each of them, struck Mr Hine around the shoulder area and used his hands in a choking motion around Mr Hine's neck. He demanded $500 in cash from each of them. 28 Ms Plackett's evidence as to seeing the appellant and the other two co-offenders on Sunday 26 November in a motor vehicle was also a sanitised description of an allegation that the appellant and the co-offenders returned to the Plackett/Hine household on the Sunday evening armed with baseball bats, which they used to break down the front door. Inside the premises, they again threatened Mr Hine and demanded $500. 29 As a result of the allegations relating to 24 November, the appellant was charged with the offences of intimidation; assault occasioning actual bodily harm to Mr Hine; and assault of Ms Plackett. He was also charged with the offence of intimidation in respect of the 26 November incident at the Plackett/Hine household. I will refer to these collectively as 'the Catherine Field charges'. The appellant's trial with respect to the Catherine Field charges was held immediately preceding the trial with which this appeal is concerned. He was found not guilty of those offences. 30 The question as to the admissibility of Ms Plackett's evidence was first raised prior to the commencement of the trial. The Crown informed her Honour that he intended to lead evidence from Ms Plackett which excluded any reference to the intimidating conduct or the assaults which had been alleged against the appellant and in respect of which he had been acquitted. The Crown also indicated that in respect of the incident on 26 November, Ms Plackett would give evidence that she saw Mr Pitman's car driving near her premises, as has been detailed above, but that there would be no reference to the alleged intimidating conduct. 31 The Crown explained the reason for leading evidence from Ms Plackett in this sanitised form was twofold:

(1) it was an element in the circumstantial case upon which the Crown relied that the three men were together on the Friday evening at about 8 pm, about 6 hours prior to the incident at Camden; and

(2) secondly, it went to establishing that the three men left the Plackett/Hine premises in Mr Pitman's car and that there was a conversation between Mr Hynds and the appellant about seeing " that guy in Camden ". 32 The Crown stated that it also intended to rely on the fact that the car in which the appellant was said to have left the Plackett/Hine residence was the same as that which was identified at Camden by Mr Guernier's neighbour. The evidence that Ms Plackett then saw the three men in the car on the Sunday evening was to be relied upon as evidence that the three men were together at a time proximate to the commission of the offences. 33 Counsel who appeared at trial for the appellant, Mr Rasmussen, opposed the Crown being permitted to adduce any evidence of the Catherine Field charges. In a written submission handed to her Honour, he argued: "…

In this case [the appellant] submits that the Crown should not be permitted to adduce any evidence of the Catherine Field matters.

This Court has already ruled that the Catherine Field and Camden matters should not be run together in a joint indictment.

The Court has ruled that there is no tendency or coincidence upon which the Crown is entitled to rely as to the facts in each of the separate indictments.

The Court has already ruled that it does not support a circumstantial case (see the bases upon which the Crown advanced the argument on the joint indictment in his submissions).

The Court has already ruled against the Crown on the basis that supports state of mind (see the bases upon which the Crown advanced the argument on the joint indictment in his submissions).

There is no other valid reason advanced by the Crown for an entitlement to adduce irrelevant and prejudicial evidence.

To permit the Crown to re-litigate the Catherine Field matters in this trial directly contradicts this Court's ruling that there would not be a joint trial [Rogers v R (1994) 181 CLR 251] …

11. It would also be productive of wasted time and resources for no purpose. It will extend the trial by at least 4 days possibly more (to estimate of 2 weeks) and will involve going into to detail of the matters that were raised in the previous trial - including challenging witnesses on evidence that they previously gave.

12. There are no directions that could be given to cure the prejudice that would arise from the joining of the Catherine Field and Camden matters for [the appellant].

13. It will be a trial fraught with the danger of miscarriage …

15. It will be an abuse of the process of this Court by the Crown to permit the prosecution of a trial upon evidence that they were not permitted to run jointly and upon which a jury has found that there was no criminal activity for which he was to be found guilty." 34 In oral submissions to the trial judge in support of these submissions, there was an exchange between her Honour and Mr Rasmussen in which Mr Rasmussen contended that if the Crown was entitled to adduce evidence that the appellant and co-offenders were at Catherine Field at about 8.00 pm on 24 November, the Crown would, in effect, be controverting her Honour's "previous ruling". This, apparently, was a reference to her Honour's ruling that the Catherine Field charges and the Camden offences should not be heard together, because they did not relate to each other. Her Honour pointed out that in this trial (that is, of the Camden offences), she had not made any ruling about the admissibility of evidence that the three men were together on 24 November and that a conversation between them had been overheard. Her Honour stated that the Crown would be and would always have been entitled to have that evidence adduced in the trial. 35 Mr Rasmussen next pressed an argument that the evidence was irrelevant and submitted that it was not probative of any matter relating to the Camden offences. He then raised a further problem. He submitted that if the evidence was to be led of the three men being at the residence at Catherine Field and of Ms Plackett overhearing the conversation between the appellant and Mr Hynds, then Mr Hine and Ms Plackett were being asked to swear an entirely different version of events from that which they had already given on oath in the previous trial. Mr Rasmussen again submitted that if the evidence was admitted there would be a re-litigation of the Catherine Field charges. 36 Her Honour responded: "Mr Rasmussen, I do not intend to have the Crown go into any evidence relating to what happened inside. My ruling would relate only to the fact that the three men were there together that night, they were in a motor vehicle which belonged to Pitman, and that [the appellant] was heard to say, 'Let's go to Camden.'"

Mr Rasmussen replied: "How does your Honour expect me to properly challenge that piece of evidence?" 37 Her Honour said that he could challenge it, but Mr Rasmussen protested: "And how? How can I go into - on the basis - if that's what your Honour is intending to rule, how am I going to challenge the credit of Ms Plackett without going into the lies that she told the last jury?'

Her Honour replied: "I don't know whether she did tell lies. I'd be very surprised about who did tell lies in that last hearing, but I wouldn't sheet them home to Ms Plackett and Mr Hine. However, apart from that, what I'm saying is on my view of the material the Crown would be entitled to have those two matters before the jury as circumstantial evidence."

The exchange continued: "RASMUSSEN: How does your Honour propose to ensure that it's encapsulated in that way? [The appellant] is entitled to challenge Ms Plackett's evidence in any way that is a legitimate forensic purpose to invite the jury to disbelieve the fact that she claimed that she heard these things said.

HER HONOUR: You can cross-examine her on it and say that she's lying about it." 38 The matter proceeded to trial and Ms Plackett gave evidence in the terms outlined above. Mr Rasmussen cross-examined her to the effect that she might have been mistaken about having seen the men get into the car and in overhearing the conversation, because of the distraction caused by the baby crying. Mr Rasmussen did not put it squarely to Ms Plackett that her evidence was wrong. 39 The appellant submitted that in the first trial, Ms Plackett's evidence conflicted in many respects with the evidence of the other Crown witnesses and that, if this evidence was admitted he was put at a significant disadvantage because it would have been 'forensic suicide' to raise before the jury matters relating to the Catherine Field charges. 40 In an affidavit read on the appeal, Mr Rasmussen said that it was an oversight on his part not to have put to Ms Plackett that the conversation she said she had overheard between the appellant and Mr Hynds had not taken place. Mr Rasmussen was cross-examined by the Crown, during which he was shown the transcript of his address to the jury. In that address he had said to the jury that he did not need to challenge Ms Plackett to the effect that she was lying. Rather, he pointed out to the jury that Ms Plackett's attention was not completely on what she was listening to, as she was distracted by her baby. The implication he was asking the jury to draw was that her evidence was unreliable. This approach involved a tactical decision, appropriately made, not to challenge Ms Plackett's credibility, but to challenge the reliability of her evidence. 41 In his written submissions on the appeal, the appellant submitted that he did not rely on any error or oversight by trial counsel but on the error of the judge in admitting the evidence at all. Accepting that submission, the purpose of having Mr Rasmussen give evidence on the appeal was, therefore, curious. No further reference was made to it in the oral submissions. Rather, the appellant contended that the challenge to her Honour's ruling was that she had wrongly exercised her discretion under the Evidence Act 1995, s 135. That section provides: " 135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time."

Whilst no reference was made to s 135 at trial, the trial judge should be taken to be well acquainted with its terms. I should state, however, that it is not clear to me that the challenge to her Honour's ruling was an erroneous exercise of discretion under s 135. No particular submissions were directed to the terms of the section. 42 In my opinion, there was no error in the trial judge's ruling that the evidence of Ms Plackett in its sanitised form, was admissible. This is a process frequently permitted at trial where the evidence, if admitted in full, would be prejudicial. It must also be remembered that, contrary to the submission of counsel at trial, Ms Plackett was not being asked to swear an entirely different version of events from the version she gave at the trial of the Catherine Field charges. Rather, she was being asked only to give the evidence which was relevant to the Camden offences. 43 The correctness of her Honour's ruling that the evidence was admissible can be tested in another way. Assume that the trial for the Catherine Field charges had not taken place before this trial. Evidence that only related to those charges would not be relevant evidence in respect of the Camden offences and undoubtedly would have been objected to on that basis. In that case, it would have been unnecessary to have recourse to the Evidence Act, s 135 and/or s 137. The only evidence relevant to the Camden offences was the conversation between the appellant and Mr Hynds and the men driving away in Mitchell Pitman's car. The evidence of the assaults and the demands for money was only relevant to the Catherine Field charges. It is apparent, in my opinion, that her Honour's ruling was that the evidence relevant to the Camden offences was admissible. That ruling was correct. 44 Alternatively, if her Honour was in fact exercising a discretion under s 135, it has not been demonstrated that there was an erroneous exercise of discretion by her Honour under that section. 45 Accordingly, I would reject ground 1 of the appeal.

Ground 4 46 It is convenient to next deal with ground 4 of the appeal.

Ground 4: her Honour erred in law by failing to direct the jury that, in accordance with the decision of Regina v Merritt they should not convict unless they were satisfied beyond reasonable doubt that the wallet allegedly found in the appellant's bedroom was the wallet stolen from James Park during the course of the robbery and was indeed found in the room occupied by the appellant 47 As I have already indicated, the Crown case against the appellant was entirely circumstantial. There were at least the following seven components to that circumstantial case:

(1) The conversation between Mr Hynds and the appellant, to the effect, " Let's go and see that guy in Camden " (of which Ms Plackett gave evidence);

(2) The accused was seen at Catherine Field in Mr Pittman's car, about four or five hours before the Camden events;

(3) The appellant was in the company of Mr Hynds and Mr Pittman at approximately 2 am at the home of Christine Hynds, Mr Hynds' ex-wife, approximately five to ten minutes drive from the Camden premises;

(4) The description of the assailants generally matched the description of the appellant and his two co-offenders;

(5) The wallet identified by Mr Park as belonging to him was found in the bedroom occupied by the appellant;

(6) The appellant was seen walking with Mr Hynds away from the back paddock at the house in Cobbitty and when the police went to that spot they found two plastic bags, one containing Mr Guernier's jacket and the other containing a number of mobile phones stolen from persons at the Camden premises;

(7) Two baseball bats were found in the room occupied by the appellant. 48 The appellant contended that the question whether a wallet was found in the appellant's bedroom and whether it was Mr Park's wallet, were indispensable intermediate facts and that the jury should have been directed that they had to be satisfied of each of those matters beyond a reasonable doubt. The trial judge gave no such direction. This submission sought to characterise each of these matters as independent 'links in a chain' to use the familiar terminology of Dawson J in Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 (the Shepherd direction). 49 In Shepherd the directions required to be given to a jury in a circumstantial case were considered. Dawson J, at 579 and 585, explained the position in the following terms: "Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so . It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. (at [4]-[5] 579) (emphases added)

Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful." (at [14]-[15] 585) 50 Counsel for the appellant submitted (as had counsel at trial) that this case required a direction to the jury that they had to be satisfied beyond reasonable doubt that the wallet was found in the appellant's bedroom and that it was Mr Park's wallet. Reliance was placed on the approach taken in Merritt, where the Court (Wood CJ at CL, James and Adams JJ) said, at [70]: "… In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting." (emphasis added) 51 In a number of cases since Merritt, the Court has sought to articulate the circumstances in which such a direction should be given: see, for example, R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported); R v Zaiter [2004] NSWCCA 35; Minniti v R [2006] NSWCCA 30; 159 A Crim R 394; 196 FLR 431; and Davidson v R [2009] NSWCCA 150 discussed in Burrell v Regina [2009] NSWCCA 163 (Beazley JA, Grove and Howie JJ) at [90]-[96]. 52 Importantly, in Davidson, Spigelman CJ, at [10], after referring to Merritt, said: "[10] There is an element of redundancy in this analysis. If it be the case that a jury believes that particular facts are 'indispensable links in their chain of reasoning towards an inference of guilt' then it is unlikely that a jury could come to a conclusion that the offence was established beyond reasonable doubt unless that fact were so established. Indeed, that is so unlikely as to need no specific direction. The very hypothesis, that is, that the jury itself regarded a particular fact as an 'indispensable link' would prevent the jury convicting in view of the clear direction always given about the obligation of the Crown to prove guilt beyond reasonable doubt. There may be circumstances in which a jury needs to be informed of a matter that should be obvious, however, in my opinion the proposition in Merritt at [70] that it is 'usually essential' to give the direction therein referred to is not consistent with subsequent authority." 53 Spigelman CJ then discussed the High Court decisions in Velevski v The Queen [2002] HCA 4; (2004) 76 ALJR 402; R v Hillier [2007] HCA 13; (2007) 228 CLR 618; and R v Keenan [2009] HCA 1; (2009) 83 ALJR 243, to which he had referred. See also the discussion in Burrell at [99]-[103]. Given the ample discussion of those authorities in Davidson and Burrell, I do not propose to re-analyse them here. It is sufficient to repeat the statement of Gummow, Hayne and Crennan JJ in Hillier, at [46] 637, that: "… It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (citations omitted)

and the observation of Keifel J in Keenan , at [128] 435, that: "The approach taken by [the trial judge in that case] is consistent with what was said in R v Hillier , namely that a circumstantial case is not to be considered piecemeal. It is of critical importance to recognise, in considering such a case, that 'all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.'" (citations omitted) 54 Counsel for the appellant contended that the finding of the wallet under the appellant's bed was effectively the only evidence that linked him directly with the offences. The finding of other items outside his room was not directly attributable to his involvement in the offences. Counsel for the appellant submitted, therefore, that the location of the wallet (said to be Mr Park's) under the appellant's bed was clearly the most critical piece of circumstantial evidence implicating the appellant in the offences. The appellant's argument was that if the wallet found by police was not Mr Park's wallet, the evidence of finding a brown wallet was irrelevant. If the wallet was not found in the appellant's bedroom, the Crown would be unable to point to any circumstance which would make it more likely that the appellant had brought the wallet back to his bedroom at Cobbitty, rather than Mr Hynds having brought it back to the premises. He submitted, therefore, that because the evidence of the discovery of the wallet could potentially swamp any doubts the jury might have had about the Crown case, a Shepherd direction should have been given. 55 This submission suffers from the same erroneous premise as was identified in Velevski, at [44], namely, that a jury will consider the evidence in separate and isolated compartments. Although the finding of Mr Park's wallet under the appellant's bed was a strong piece of circumstantial evidence, it was not the only evidence that linked him with the commission of the offences. His involvement in the joint criminal enterprise was pointed to by each of the circumstantial matters identified in [47] above. They were entitled to accept or reject any aspect of the evidence, and to give such weight as they chose to any particular piece of evidence which they accepted. Having regard to the evidence the jury accepted and the weight attributed to any particular evidence, the jury was required to weigh up all of the circumstances and decide whether they were satisfied beyond reasonable doubt of the appellant's guilt of the three offences with which he was charged. The trial judge, correctly, so directed the jury. 56 I would reject ground 4 of the appeal.

Ground 2: The trial miscarried when the trial judge criticised a submission made by the appellant's counsel at trial to the jury without affording counsel the opportunity to address her Honour on the issue, despite the fact that counsel had indicated he wished to be heard on the Crown Prosecutor's objections to his submissions.

Ground 3: The trial judge erred in failing to recuse herself and discharge the jury following the matter complained of in ground (2) 57 Grounds 2 and 3 are conveniently dealt with together and are properly considered having regard to my finding in respect of ground 4, namely that her Honour was not required to give a Shepherd direction. 58 The sequence of events at trial was as follows. After counsel for the appellant at trial had addressed the jury, the Crown Prosecutor, in the absence of the jury, complained to her Honour, inter alia, about Mr Rasmussen's statement to the jury that they had to be satisfied beyond reasonable doubt as to the finding of the wallet. The following exchange then occurred between her Honour and counsel: "CROWN PROSECUTOR: Two things in Mr Rasmussen's address. He said that the jury should be satisfied beyond reasonable doubt--

HER HONOUR: Yes I know, I was going to deal with all of that after I've finished these preliminary matters, because Mr Rasmussen seems to be referring to matters as though each link has to be indispensably proved beyond reasonable doubt, which is not the case.

CROWN PROSECUTOR: No your Honour, just the finding of the wallet and the words spoken by Trudy Plackett, he said both of those incidents the Crown--

HER HONOUR: Had to be proved beyond reasonable doubt, yes which was not correct, I agree with that. It's not a case - this is not a case which each … has to be proved beyond reasonable doubt, just the cumulation of circumstances which doesn't have to be proved beyond reasonable doubt.

RASMUSSEN: They're part of the - they're essential to the elements, that's the point. They underpin it.

HER HONOUR: Look I don't want to discuss this now, I want to get them in and they can deal with it." 59 Her Honour then commenced summing up to the jury. In the course of the summing up, her Honour said: "It has been suggested to you by Mr Rasmussen as to certain facts upon which the Crown relies, that is, in the circumstances or evidence which the Crown has pointed, that some of those matters must be proved beyond reasonable doubt. That is not the case, ladies and gentlemen. What must be proved beyond reasonable doubt are the elements that go to make up the charges. I will give you directions as to what has to be proved beyond reasonable doubt on Monday. I will go through each of the charges. I will tell you the elements relating to them, I will give you directions of law relating to how you approach circumstantial evidence, which the Crown relies upon in this case. I will also give you directions of law as to the principle of joint criminal enterprise, which has been referred to by the Crown and upon which the Crown also relies. And in referring to the elements which must be proved I will refer to some of the evidence which has been given by the witnesses. I will also refer shortly to what has been said to you in the addresses made on behalf of the Crown and on behalf of the accused. And of course I will also refer to what the defence has to say about each particular circumstance upon which the Crown relies. As I said, the only matters which have to be proved beyond reasonable doubt before you could return verdicts of guilty are the elements of each of these three charges on the indictment, copies of which you have." 60 The summing up did not conclude that day and the matter was adjourned to Monday, 26 May 2008. At the commencement of proceedings that morning, trial counsel for the appellant made an application that her Honour recuse herself. He complained that, in her summing up to the jury, her Honour had criticised what he had said to the jury without having heard submissions from him as to whether this part of the address correctly stated the law. He said that he had understood from the exchange with her Honour, which had occurred just before her summing up, that he would be given an opportunity to be heard on the point. He then asserted this was a case which required a Shepherd direction and that he had intended to so address her Honour in response to the Crown's complaint. 61 Counsel next asked her Honour to recuse herself on the basis that an independent and fair-minded observer would have a reasonable apprehension that she was biased. Counsel added: "… particularly when it's taken into account with what your Honour said at the end of the Catherine Field matters." 62 Counsel again sought a Shepherd direction should her Honour not recuse herself. 63 The reference to the "Catherine Field matters" was a reference to a comment made by her Honour on 14 May 2008, after the appellant had been found not guilty of the Catherine Field charges. In refusing an application for bail for the period between the conclusion of that trial and the commencement of this trial, her Honour said: "… I don't think [the bail application] will be very successful. The matter will be proceeding on Monday. I'm not going to grant bail in the meantime. [The appellant] was very fortunate, I think, with his jury. That was my view. But in any event, these are serious matters that he will be standing trial for and it's only a matter of some, what, five days time and he'll be before the jury. He may well be walking away in another week or so but I'm not going to grant bail for that short period." (emphasis added) 64 Counsel for the appellant submitted that the apprehension of bias apparent from her Honour's failure to hear Mr Rasmussen on the correctness of his statement to the jury, was strengthened by these comments. As I understand it, this was a submission that it was apparent from her Honour's comment that the appellant "was fortunate" before the jury in the first trial, that she had already formed an adverse view of the appellant. 65 The principles that govern an apprehended bias application are well-known. In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294 the High Court said: "[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." (emphasis added) 66 This test was confirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, where Gleeson CJ, McHugh, Gummow and Hayne JJ said, at [7] 345: "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. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror." 67 Relevantly, for the purposes of this case, their Honours said, at [8] 345: "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. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 68 See also Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]-[14]. Relevant for present purposes is the statement in the plurality judgment, at [14], that a judge's later statement withdrawing or qualifying remarks might remove a perception of bias. In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd Callinan J endorsed the appropriateness of having regard to the reasons for judgment and to read those reasons in conjunction with the transcript references which were said to found the apprehension of bias, to see whether the cumulative effect was one of apparent bias. 69 In Johnson v Johnson the Court also observed, at [12] 493, that the hypothetical observer is taken to be reasonable; and that the person being observed is "a professional judge whose training, tradition and oath or affirmation required [the judge] to discard the irrelevant, the immaterial and the prejudicial". A like comment was made by Callinan J in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd, at [177] 635, where his Honour stated: "It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried." 70 Properly analysed, what happened in this case was that Mr Rasmussen had addressed the jury to the effect that a Shepherd direction was required. The Crown complained. Mr Rasmussen sought to maintain that the legal proposition he advanced was correct. However, her Honour wanted to commence her summing up to the jury, rather than keep the jury waiting. In the summing up, her Honour told the jury that what Mr Rasmussen had said was wrong and then directed them on the Crown's circumstantial case. Mr Rasmussen did not accept that the trial judge's direction to the jury was correct and he again raised the matter and contended that her Honour's failure to hear him, when it was apparent that he wished to make further submissions on this issue, gave rise to a reasonable apprehension of bias. 71 In Ebner it was said that two matters had to be established for a case of apprehended bias to be made out. First, the party alleging apprehended bias must identify what might lead a judge or juror to decide a case other than on its merits; and secondly, there must be an articulation of the logical connection between the matter and the feared deviation from a decision on the merits. 72 In this case, trial counsel had embarked upon an address to the jury which wrongly stated the law. Her Honour's correction of that could not, on any reasonable view, give rise to an apprehension of bias. Rather, her Honour merely did what she was required to do in order to ensure that the jury was not left with a wrong understanding of the law. There was nothing in her comments to indicate that she might not bring an impartial or unprejudiced mind to her judicial task. Her Honour gave a correct direction, having stated in brief and uncontroversial terms that Mr Rasmussen's statement of the law was not correct. Accordingly, the 'first step' identified in Ebner has not been demonstrated as having occurred. It follows that the need for the logical connection required by the second step does not arise. 73 As the required bases for establishing apprehended bias have not been made out, it is unnecessary to consider the comment made by her Honour on the bail application, which was relied upon by the appellant as supporting or strengthening the apprehension of bias. 74 The appellant submitted, alternatively, that in failing to hear Mr Rasmussen, her Honour failed to afford him procedural fairness. He relied upon the principles stated in Antoun v R [2006] HCA 2; (2006) 224 ALR 51. That case involved a trial before a judge alone. At an early stage of the proceedings, the defence indicated it would make a 'no case to answer' submission. The trial judge in that case responded: "I see, well that application will be refused. So how long then will the defence case take?

Mr Steirn: How can your Honour possibly come to that view without having heard one word from either me or Mr Wilkinson?

His Honour: Because I've closed the Crown case, and I have just said it.

Mr Steirn: But you've heard not one word of any submission by either of us upon either the law or the fact.

His Honour: No, I'm simply telling you the application will be refused. I perceive what's in the Crown case, I perceive there's a case to answer. Whether it be answered or not is entirely for - - -

Mr Steirn: Might I ask your Honour to stay your Honour's judicial hand - - -

Mr Steirn: - - - until such time - and please let me finish. Until such time as you've heard submissions by both defence counsel.

His Honour: Right, now when I've heard those submissions will you be in a position to proceed with the defence case?

Mr Steirn: Does that mean by that comment your Honour that your Honour has already considered the position without a word of submissions by - - -

His Honour: I'll consider any submission you put. I'm obliged to consider any position you put." (at [68]) 75 The following morning the trial judge was asked to recuse himself having regard to the above exchange. His Honour refused the application, stating: "I simply point out in relation to whatever application is about to be made in relation to a no case that I have a very, very firm view that as a matter of law, and I am after all in this tribunal not only the tribunal of fact but the tribunal of law, that as a matter of law an application for a no case cannot succeed in this particular trial.

I shall make that clear in the fullness of time, although I could make it clear now. I shall make it clear however at the conclusion of the submissions.

… an application of that description in my considered view on the law is doomed to failure." (at [70]) 76 There was a further exchange in which his Honour was again asked to disqualify himself, having regard to his last-mentioned comments. His Honour refused the application and reiterated that a 'no case to answer' application could not succeed. Later in the trial his Honour, of his own motion, indicated that he proposed to revoke bail. 77 Callinan J, after referring to the test in Ebner, said, at [83]: "It should be noted that the test as stated emphasises that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification. Their Honours also make it clear that the test does not involve, or require an inquiry into the facts or matters which brought the apprehended state of mind of the judge to one of apparent bias. It follows that the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing, and attending carefully and open-mindedly to the submissions of the parties made at appropriate times." 78 His Honour concluded (as did other members of the Court) that a case of apprehended bias had been out. His Honour observed, at [85]-[86]: "It seems to me that in this case the trial judge's conduct did present an appearance, indeed an unmistakable one, of prejudgment. As the passage from Ebner makes clear, when conduct of that kind occurs, it is not relevant to the inquiry as to whether an apprehension of bias has arisen that the strength of one party's case may have brought the judge to the point of making the remarks that he did.

It follows that the apparent strength of the respondent's case, and the weaknesses of the appellants' defence cannot be used as justification or excuse for the trial judge's expressions of a determination to reject submissions foreshadowed, but not yet made and developed." 79 This case is not of that character. Counsel could have sought a Shepherd direction either before the commencement of the trial, before his or the Crown's addresses, or during or after the summing up. In fact, he did seek such a direction, on Monday 26 May 2008. Having first asked her Honour to recuse herself, he sought alternatively that her Honour give a Shepherd direction. That matter was fully argued both by trial counsel and by the Crown prosecutor. Her Honour, correctly, rejected Mr Rasmussen's submission that such a direction was required. There was thus no breach of procedural fairness in any event. 80 Grounds 2 and 3 should therefore be rejected. 81 Accordingly, I propose that the appeal be dismissed. 82 R S HULME J: In this matter I have had the advantage of reading the reasons for judgment of Beazley JA. I agree with those reasons and with the orders proposed by her Honour. I wish however to say something more concerning the second and third grounds relied on on behalf of the Applicant. Those grounds were:- Ground 2: The trial miscarried when the trial judge criticised a submission made by the appellant's counsel at trial to the jury without affording counsel the opportunity to address her Honour on the issue, despite the fact that counsel had indicated he wished to be heard on the Crown Prosecutor's objections to his submissions. Ground 3: The trial judge erred in failing to rescue herself and discharge the jury following the matter complained of in ground (2). 83 At the end of the Crown case, Mr Rasmussen sought a verdict by direction. In the course of his submissions he contended that the Crown case was one comparable to links in a chain rather than strands in a rope and that there was no sufficient evidence of some of the links. Her Honour dismissed the application saying:- "Thank you very much Mr Rasmussen. I think the material before the jury should go to the jury, as there is no reason in my view to isolate each particular circumstance upon which the Crown relies to talk about its weakness or strength. It's a matter where the jury must consider all of the evidence, not in isolation, but together and accordingly I refuse the application. …" 84 Mr Rasmussen then tendered a document that was admitted and closed the Defence case following which her Honour raised the issue of what directions she should given the jury. Mr Rasmussen raised one topic of no present relevance saying that that was the only one. On the following morning, Mr Rasmussen said that overnight he had given some thought to the directions that should be given, handed up another document apparently specifying a number of these and made some oral submissions. The document is now apparently lost but it would seem from the oral submissions that followed that nothing in the document related to the wallet or involved the proposition that the jury had to be satisfied beyond reasonable doubt that the wallet was found in the Appellant's bedroom and that it was Mr Park's wallet. That said, another of the submissions does seem to have involved the proposition that the jury had to be satisfied beyond reasonable doubt of one aspect of the Crown case. Having indicated that she was not disposed to acquiesce in the submissions that were made, her Honour asked, "Was there anything other than that Mr Rasmussen that you wanted --?" Mr Rasmussen's response is recorded as "Thank you your Honour". 85 The Crown prosecutor then addressed the jury followed by Mr Rasmussen. Then events followed as set out in the reasons of Beazley JA at [58] et seq. The jury was obviously then brought in and her Honour commenced to sum up. The transcript records that at that time, a Friday, her Honour's summing up occupied 9 pages. Her Honour completed her summing up on the Monday morning, the transcript of what she then said occupying some 44 pages. What was said on the Friday included instructions as to the burden and onus of proof, that the essential elements of the charges had to be proved beyond reasonable doubt, and that what Mr Rasmussen had said to the effect that some of the circumstances and evidence had to be proved beyond reasonable doubt was wrong. 86 On the Monday morning Mr Rasmussen then made application that her Honour recuse herself. Against the possibility that her Honour would not do so, Mr Rasmussen then asked her Honour to direct the jury that what she had said on the Friday was incorrect, and that four particular facts relied on by the Crown and apparently referred to in the lost document were indispensable facts and must be proved beyond reasonable doubt. The transcript is not clear whether included in those four was the matter the subject of Ground 4 in this appeal but something along those lines was at least the subject of oral submission to the effect that the jury had to be satisfied of it beyond reasonable doubt. Mr Rasmussen developed his submissions over some 3 pages of transcript. After hearing briefly from the Crown her Honour indicated that she did not agree with the Mr Rasmussen's contentions. 87 The substance of the submission made in support of Ground 2 was that it is a fundamental prerequisite of justice that a party be given a fair opportunity to put what they want to put, that Mr Rasmussen had indicated that he wanted to be heard on the topic and that her Honour deprived him of the opportunity. 88 The submission ignores the fact that the right to be heard does not include a right to be heard at any time of counsel's choosing. Mr Rasmussen had, in her Honour's opinion, misinformed the jury as to a matter of law. It seems clear that her Honour wished the jury not to be left with a mistaken impression for longer than necessary and particularly over the week-end. Her Honour was fairly entitled to afford more urgency to that view than hearing Mr Rasmussen's argument. 89 The submission ignores the fact that that in ruling on Mr Rasmussen's application for a verdict by direction her Honour had concluded that "It's a matter where the jury must consider all of the evidence, not in isolation, but together …". In substance, the proposition that Mr Rasmussen wished to advance contradicted her Honour's conclusion and there are clear limits to the time a judge is obliged to expend in listening to arguments, or minor variation of arguments, the substance of which has already been rejected. 90 The submission also ignores the fact that Mr Rasmussen had earlier been invited to make submissions as to what the jury should be told and had not raised the topic that inspired his attempt to address her Honour shortly after he had concluded his address. Nor had he provided any advance warning of his intention to address the jury on what in fact a matter of law, viz. that they had to be satisfied of a particular matter beyond reasonable doubt, and this in circumstances where her Honour had expressed herself in the terms quoted above. 91 While the authorities recognise the desirability of any argument as to the content of a summing up occurring before it commences - R v Sandford (1994) 33 NSWLR 172 at 183 - or even before counsel address - R v Knight (unreported, NSWCCA, 18 December 1990), in many trials there will be no need for such argument. 92 Commonly of course, judges do invite or permit any issues that do arise to be raised and canvassed at a convenient time during a summing up. There is obvious advantage in covering topics once and not complicating a jury's task by making and then withdrawing instructions or remarks and changing or supplementing them particularly at a time that may be far removed from when the original remarks the subject of any change or addition were first made. However, the fact that this is commonly done has not had the effect of turning a convenient practice into a right of counsel to interrupt a summing-up by raising and insisting on arguing an objection at a time of counsel's choosing. in advance of the summing-up's completion. 93 It is appropriate to bear in mind that a trial judge is under no obligation to provide advance notice to counsel as to what he or she proposes to say to the jury in the course of a summing up. Having heard what has been said, counsel have a right to ask for changes and make submissions as to why changes should be made but that right to argue such matters is to do so at the end of the summing-up or just prior to the jury being asked to consider its verdict. 94 In so stating the matter, I do not ignore remarks made in R v Lavery (1979) 20 SASR 430 at 436 that:- "…, if something irregular occurs or is done during the hearing, or if, during the summing-up, counsel receives the impression that the jury could be misled on some matter of law or fact by what the trial judge is saying, it is his clear duty, at the first available and appropriate moment, to mention the cause of his misgivings, and to ask the judge to put right what, in his submission, has gone wrong." 95 Given the obligation of defence counsel to his client I am by no means sure that this passage is entirely accurate but even if it is, it does not provide support for the view that the time for arguing the matter is a matter for the choice of counsel rather than the trial judge. 96 I turn to Ground 3, the principal argument in support of which was that a fair-minded bystander would have had a reasonable apprehension of bias arising from her Honour's refusal to hear Mr Rasmussen when he wanted to address her. 97 A fair-minded observer is taken to know of all the relevant circumstances - see Vakauta v Kelly (1988) 13 NSWLR 502 at 528, 535-6. (In overruling this decision, the High Court made no criticism of this principle.) Attention cannot be confined to the one remark of her Honour and to that part of her summing-up as occurred on the Friday to the exclusion of her ruling quoted above, to the opportunities previously enjoyed by Mr Rasmussen to indicate what directions he sought, to his limited exercise of those opportunities, to the right he had at the end of the summing-up to seek further or different directions - a right he was in fact invited to exercise on the Monday morning - and to the importance of correcting prior to the weekend what her Honour saw as the erroneous advice as to the law that Mr Rasmussen had given the jury. 98 In light of these matters, it is simply absurd to suggest that, because her Honour chose not hear Mr Rasmussen at a time of his choosing, any fair-minded observer would thereby have derived a reasonable apprehension that her Honour was biased against his client. 99 Nor does the addition of the remarks her Honour made to the effect that "(The Applicant) was very fortunate, I think, with his jury (in his first trial). That was my view." provide any further basis for a reasonable apprehension of bias. Any fair-minded observer would have thought it at least as likely, if not more likely, that in her Honour's remark she was reflecting on the verdict in light of the evidence in that trial rather than indicating any personal view or bias against the Applicant. 100 LATHAM J: I agree with Beazley JA. **********

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