AB v Director of Public Prosecutions

[2016] NSWCA 73

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AB v Director of Public Prosecutions [2016] NSWCA 73

Hearing dates:

16 March 2016

Date of orders:

15 April 2016

Decision date:

15 April 2016

Before:

McColl JA [1]
Leeming JA [2]
Emmett AJA [3]

Decision:

1.   Extend nunc pro tunc the time for filing the summons up to and including 19 October 2015.

 

2.   Summons filed on 19 October 2015 be dismissed.

 

3.   Applicant pay the costs of the first respondent.

4. Publication of the name, and the disclosure of any other information tending to reveal the identity, of the applicant (who may be referred to as AB), AB’s former wife or the complainant (who may be referred to as LR) be prohibited in accordance with s 37 of the Public Health Act.

Catchwords:

ADMINISTRATIVE LAW (judicial review) – appeal from Local Court to District Court under Crimes (Appeal and Review) Act – whether defendant told victim that he was HIV positive before having unprotected sexual intercourse – evidence – bias – severity of sentence – failure to allow a witness to be called in first appeal – whether primary judge excluded possibility that ex-wife colluded with victim

Legislation Cited:

Public Health Act 1991 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW

Cases Cited:

B v Director of Public Prosecutions [2014] NSWCA 232
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
Michael Wilson & Partners v Robert Nicholls [2011] HCA 48; (2011) 244 CLR 427
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Category:

Principal judgment

Parties:

AB (Applicant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
AB (Applicant self-represented)
B Baker (Respondent)

File Number(s):

2015/305627

Publication restriction:

Yes. See paragraph [27(4)].

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

New South Wales

Date of Decision:

12 December 2014

Before:

Finnane DCJ

File Number(s):

2012/386507

Judgment

1. MCCOLL JA: I agree with Emmett AJA.

2. LEEMING JA: I agree with Emmett AJA.

3. EMMETT AJA: By summons filed on 19 October 2015, the applicant (AB) seeks an order under s 69 of the Supreme Court Act 1970 (NSW) (the Supreme Court Act) setting aside a decision made by the District Court on 12 December 2014. By that decision, a judge of the District Court (the primary judge) dismissed an appeal by AB from a conviction in the Local Court. The primary judge confirmed the conviction and the sentence imposed by the Local Court.

4. The first respondent, the Director of Public Prosecutions (the Director), provided the Court with comprehensive written submissions opposing the grant of relief claimed by AB. While AB’s summons was filed outside the time limited by r 59.10.1 of the Uniform Civil Procedure Rules 2005 (NSW), the Director does not oppose the grant of an extension of time for the filing of the summons. The second respondent, the District Court of New South Wales, has filed a submitting appearance.

Background

5. By Court Attendance Notice dated 11 December 2012, AB was summoned to answer a charge of an offence under s 13 of the Public Health Act 1991 (NSW) (the Public Health Act). It was alleged that, between 12.00 pm on 1 July 2012 and 12.00 pm on 10 July 2012, at Jindabyne, New South Wales, AB had sexual intercourse with a woman (LR) without having previously informed LR that AB, at the time of having sexual intercourse, was infected with a sexually transmitted medical condition, namely human immunodeficiency virus (HIV). After a hearing on 25 July 2013, Pearce LCM found the offence proved beyond reasonable doubt and convicted AB. His Honour imposed a fine of $1,500 and ordered AB to pay costs of $85.

6. On 26 July 2013, AB filed a Notice of Appeal to the District Court in respect of his conviction in the Local Court. AB subsequently made two interlocutory applications in those appeal proceedings. The first was for leave to adduce further evidence on the hearing of the appeal. The second was for leave to cross examine prosecution witnesses on the hearing of the appeal. On 4 October 2013, for reasons then given, Haesler DCJ refused both applications.

7. On 21 November 2013, AB’s appeal was heard and determined by Hosking DCJ. Hosking DCJ dismissed the appeal. AB then sought judicial review in this Court of the decision of Hosking DCJ. On 21 July 2014, after a hearing on 8 July 2014, this Court ordered that the decision of Hosking DCJ be quashed and that the matter be remitted to the District Court for redetermination in accordance with law. [1]

   1. See B v Director of Public Prosecutions [2014] NSWCA 232.

8. Upon remitter of the matter to the District Court, AB’s appeal against the conviction in the Local Court came before the primary judge for hearing on 25 November 2014. AB appeared in person. After hearing submissions from AB and from the Crown, his Honour reserved his decision. On 12 December 2014, his Honour published his reasons for confirming the conviction and sentence in the Local court.

9. In his reasons, the primary judge observed that it was “difficult to imagine a more stark case”. His Honour said that the case mounted by the prosecution was that LR had no idea whatsoever that AB suffered from HIV and was shocked to think that he would have sexual intercourse with her whilst having that condition. His Honour observed that LR gave evidence that she at no point gave any consent to his having sex with her whilst knowing that he had HIV.

10. The primary judge said that Pearce LCM had accepted LR’s evidence, as his Honour did, and that LR’s evidence was credible. His Honour also said that it was hard to see that LR would not have had the reaction that she claimed to have had when she was told about AB’s condition. His Honour then said that he did not accept AB’s claims, that Pearce LCM did not accept AB’s claims and that AB’s claims were “fanciful and ridiculous”. For those reasons, his Honour dismissed AB’s appeal.

11. AB’s summons in this Court states that the ground upon which he seeks relief under s 69 of the Supreme Court Act is as follows:

That biast (sic) was shown to [LR] and discrimination towards people living with HIV was shown.

12. In addition, AB has provided the Court with two documents outlining the bases upon which he seeks relief. In addition to assertions of bias, AB made reference to two possible further grounds as follows:

●   Haesler DCJ erred in refusing to admit the fresh evidence that his Honour rejected; and

●   The primary judge erred in finding beyond reasonable doubt that AB had committed the offence with which he was charged.

13. However, on the hearing of the summons, AB confirmed that he did not rely on any basis for impugning the primary judge’s decision other than the ground of bias set out in the summons.

Bias

14. In his written documents, AB referred to observations made by Pearce LCM that, even though she was a little naïve in her attitude, LR was “credible”. AB asserted that that showed that Pearce LCM was biased in favour of LR. He also asserted that Pearce LCM had made his judgment before he had heard the case and already had a preconceived notion that all people who are suffering from HIV do not tell their partners of their condition. Bias on the part of Pearce LCM, of course, is not a relevant issue in these proceedings. The proceedings in this Court are concerned with the decision of the primary judge and whether there was actual bias or there was an apprehension of bias on his Honour’s part.

15. The transcript of the hearing before the primary judge indicates that, at an early stage in the hearing, AB sought to raise the question of revisiting his application to adduce fresh evidence. His Honour said that he would not hear that application again. AB then said to his Honour that that rejection led to the bias shown in the earlier hearing in the District Court at Campbelltown, when his appeal was first dismissed by Hosking DCJ. His Honour responded that he was dealing with AB’s appeal from Pearce LCM and that he was not concerned with what “the District Court, at Campbelltown or anywhere else, had to say”. His Honour said that it really did not matter that some other judge might have shown bias. His Honour said that he was not showing any bias.

16. AB is recorded as saying the following in response to those comments by the primary judge:

No, I know. I’m not saying you are at all, Your Honour. It’s not you that I am questioning. It was the decision by the District Court at Campbelltown. They would not allow that evidence because it discredited [LR’s] statements before and that is a big part that showed that her statement was incorrect completely.

17. After hearing further from AB, the primary judge said that he was trying to point out to AB that he was not hearing an appeal from another District Court judge but was hearing an appeal from the Local Court. His Honour said that, whatever a judge might have said on some earlier occasion, he was not conducting an appeal from that judge.

18. In the documents lodged with this Court, AB asserted that the primary judge came onto the bench and straight away said “in a very stern voice” that he was not going to be biased in his decision. In those documents, AB also said that the primary judge did not approach any of the issues raised in the earlier proceedings in this Court and did not discuss the issue of whether or not previous judges were biased in favour of LR. AB also asserted that the primary judge was renowned for not overturning a decision by another judge in another court and that he had been told that the primary judge is a “very hard person to deal with” and that “he does not always show sympathy towards people who appeal”. Although some allowance must be made for the fact that AB appeared without legal representation, there was no demonstrated foundation for these assertions which should not have been made. They should be given no credence whatsoever. They are certainly no basis for concluding the actual bias or apprehended bias.

19. The test for apprehension of bias on the part of a decision maker is whether a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question that the decision maker is required to decide. [2] Before determining that there is an apprehension of bias, it is first necessary to identify what it is that might lead the decision maker to decide a case other than on its legal and factual merits. It is then necessary to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merit. [3]

    2. Michael Wilson & Partners v Robert Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31].

    3. Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8].

20. Judges do not enter upon the task of deciding cases as if they had no experience of life. Decision makers, including judges, will sometimes approach the task of decision making with a tendency of mind, or predisposition, without being accused or suspected of bias. [4] A reasonable observer does not entertain a reasonable fear that a decision maker will bring an unfair or prejudiced mind to an enquiry merely because the decision maker has formed a conclusion about an issue involved in the enquiry. A fair and unprejudiced mind may well have given thought to the subject matter or formed a view or inclination of the mind upon or with respect to the subject matter. [5]

    4. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [71].

    5. Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100.

21. Apprehended bias must be firmly established. It is insufficient if a reasonable bystander merely had a vague sense of unease or disquiet. [6] Further, the fair minded lay observer is taken to be reasonable and is not entitled to make snap judgments. Nor is the fair minded lay observer to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge. Rather, the fair minded lay observer will have regard to the fact that the person being observed is a professional judge, whose training, tradition and oath or affirmation require the judge to discard as irrelevant the immaterial and the prejudicial. [7]

    6. Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 364.

    7. Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12].

22. In his written documents, and in oral submissions, AB drew particular attention to the observation made by the primary judge that his claims were “fanciful and ridiculous”. He asserted that that showed that his Honour did not realise that people who have HIV can have unprotected sex and that it occurs on a large scale. He asserted that his Honour did not know that and did not take that into consideration.

23. AB also asserted in his oral submissions that the evidence of LR should not have been regarded as credible because she made four mistakes. The first was that she and AB had been in a relationship for 18 months, when in fact it had been 30 months. Secondly, she said that she visited Jindabyne with a friend when in fact it was her daughter. Thirdly she referred to AB’s son by an incorrect name when she knew his name. Finally, she falsely asserted that she and AB did not have sexual intercourse on that first meeting. AB asserted that, after he had provided a statement to the police, LR corrected some aspects of her original statement. In those circumstances, he said, accepting LR’s evidence as credible indicated bias.

24. AB’s case before Pearce LCM was that he had fully explained to LR the risks of HIV before having intercourse and that he went into “some little detail” about those risks. Pearce LCM concluded that that evidence was inconsistent with a Facebook message sent by AB to LR some four days after he was charged. In that message, AB said:

I did tell you that I was HIV positive, maybe you did not hear me. I do not know, but I did tell you.

25. In his oral submissions to this Court, AB asserted that the Facebook message was sent shortly after his relationship with LR began. That is clearly wrong and the inconsistencies of his case with the remarks made in the Facebook message are clearly capable of supporting the primary judge’s conclusion that his case was “fanciful and ridiculous”.

26. Having regard to the basis upon which the decision of Hosking DCJ was set aside, it may have been desirable for the primary judge to refrain from making observations to the effect that AB’s case was “fanciful and ridiculous”. Nevertheless, the observation, coupled with the statement that it would be hard to see that LR would not have had the reaction that she claimed to have had does not amount to evidence of bias on the part of the primary judge. There is no basis for concluding that a fair minded lay observer would have apprehended bias on the part of the primary judge.

Conclusion

27. In his summons, AB claims the following order:

Case be dismissed entirely.

28. Clearly, AB is not entitled to that relief or any other relief under s 69 of the Supreme Court Act. The proceedings should be dismissed. Having regard to the nature of the claims in the proceedings, there should be an order under s 37 of the Public Health Act.

29. The orders of the Court should be as follows:

1.   Extend nunc pro tunc the time for filing the summons up to and including 19 October 2015.

2.   Summons filed on 19 October 2015 be dismissed.

3.   Applicant pay the costs of the first respondent.

4. Publication of the name, and the disclosure of any other information tending to reveal the identity, of the applicant (who may be referred to as AB), AB’s former wife or the complainant (who may be referred to as LR) be prohibited in accordance with s 37 of the Public Health Act.

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Endnotes

Decision last updated: 15 April 2016