Adrian Mills v Police No. Scciv-03-1736

[2004] SASC 14

ADRIAN MILLS v POLICE
[2004] SASC 14

Magistrates Appeal

1. DEBELLE J           On 14 November 2003 at the Magistrates Court in Elizabeth, the appellant was charged on complaint with three offences, all alleged to have been committed on 20 July 2002 at Penfield Gardens. The offences were:

   1.Driving an unregistered motor vehicle, contrary to s 9 of the Motor Vehicles Act, 1959.

   2.Driving whilst disqualified from holding or obtaining a driving licence, contrary to s 91 of the Motor Vehicles Act, 1959.

   3.Being a driver of a motor vehicle, failed to answer truly questions asked by a member of the police force for the purpose of obtaining his name and place of residence, contrary to s 42 of the Road Traffic Act, 1961.

   The appellant pleaded not guilty to the first two offences and guilty to the third. As a matter of logic one might ask how it was possible for the appellant to plead guilty to the third and not guilty to the first two offences. However, I do not stay with that question. It is unnecessary for the disposition of this appeal.

2. After a trial before a magistrate the appellant was convicted of the other two offences. The appellant appeals against the convictions. There is only one ground of appeal. It is:

   “Unsolicited comments and questions by the Magistrate to [a] defence witness Mr I Little, [made] before that witness was examined, showed, expressed or implied bias so as to prejudice a fair and reasonable hearing of all the evidence in the matter and a just determination of the charges.”

   Although the ground of appeal uses the word “bias”, the effect of the appellant’s complaint is that remarks and questions made by the magistrate might have caused an independent observer to apprehend that the magistrate was not impartial.

3. The circumstances leading to the trial were as follows. Police officers in a patrol car had seen two men near a stationary motor car on Davoren Road, Penfield Gardens. The police officers stopped and approached the men. The police officers noted that the vehicle was not registered and said so to the men. In the course of the conversation and in answer to questions from the police, the appellant said that he was the driver of the motor vehicle. He gave his name as Michael Maher. In consequence of further inquiries the police ascertained that the appellant had given a false name. With the assistance of photographic records the police officers discovered the appellant’s correct name.

4. The trial proceeded before a magistrate. The prosecution called two police officers as witnesses. They were the police officers who had spoken to the appellant and to a Mr Little who was with the appellant at the motor car. Four exhibits were admitted. They included a certificate proving that the appellant was disqualified from holding or obtaining a driving licence on 20 July 2002. Another exhibit was the police officer’s note of the conversation with the appellant in the course of which the appellant had admitted that he was the driver of the vehicle in question and had given his name as Michael Maher.

5. The defence case comprised evidence from the appellant and from Mr Little. The appellant gave his evidence first. Mr Little was then called. He was asked several questions by the appellant’s solicitor. They can be described as matter of fact if not introductory questions. The magistrate then intervened with the following exchange with Mr Little:

   “Q.Before we proceed, you are under oath. The evidence that you may or may not be giving is corroborative evidence. There is a very severe consequence, I am not suggesting that you are going to do this but in fairness to you, of telling lies in court. By virtue of evidence on oath you are swearing to tell the truth. If you don’t and I find otherwise I can initiate a charge of perjury. Do you understand that?

   A.Yes, I do.

   Q.As long as you understand that.

   A.Yes, I do.”

   The appeal is grounded on that exchange. The evidence of Mr Little then continued and was completed. The magistrate did not again intervene in the course of Mr Little’s evidence except to ask two short questions to which no objection is taken.

6. The magistrate has not expressed himself as well as he might, particularly in the last sentence. However, it would have been plain to Mr Little and to any observer in the courtroom that the magistrate had meant to say, “If you don’t and I so find I can initiate a charge of perjury”. Nothing turns on the manner in which the magistrate expressed that last sentence.

7. The remarks made by the magistrate must be examined and assessed against two fundamental principles. The first is that an accused person has an unqualified right to be tried by an independent and impartial tribunal. The second is that a judicial officer should not sit, or should not continue to sit, if a fair minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question which the judicial officer is called upon to decide: Johnson v Johnson (2000) 201 CLR 488 at para 11; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. See also Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Webb v The Queen (1994) 181 CLR 41.

8. As the majority noted in Johnson v Johnson at para 12, the test is objective and based upon the needs of public confidence in the administration of justice. The majority also stated the manner in which a court should determine the question whether a fair-minded lay observer might have a reasonable apprehension of bias. It said:

   “The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”. (Citations omitted.)

9. Nothing had occurred which required the magistrate to make the remarks quoted above. There are occasions when it is proper for a judicial officer to remind a witness that he or she is under oath, of the need to give truthful evidence, and of the sanctions for failing to do so. However, there was nothing in Mr Little’s evidence to justify such a warning. His evidence had only just begun. He had answered seven questions which were answered in a clear and forthright manner. There is nothing in any of his answers which required the magistrate to make the remarks.

10. However, when viewed objectively, the magistrate’s remarks, though unfortunate, would not, I think, give rise to a reasonable apprehension of bias or lack of impartiality in the mind of a fair-minded lay observer. The magistrate had done no more than remind Mr Little of the obligations of his oath and of the consequences should he be found to have lied. Although the remarks were made at an early stage in his evidence, I do not think the objective bystander would have formed a reasonable apprehension that the magistrate was being other than impartial. That bystander would not have concluded other than that the magistrate was giving a forceful reminder to the witness of his obligation to be truthful and of the consequences should he be found not to have been truthful. The observer might have wondered why the warning had been given, particularly as it had not been given to other witnesses. However, I do not think that it would have led to any concern as to the impartiality of the magistrate, particularly as there was nothing else which could in any sense suggest that these remarks displayed a lack of impartiality. It is important also to note that the magistrate expressly stated that he was not suggesting Mr Little was doing anything other than telling the truth. The magistrate was simply emphasising the need to tell the truth. The objective bystander would have noted that the magistrate expressly said that he was not suggesting that Mr Little was telling lies.

11. Given this conclusion, it is not necessary to deal with the submission, made on behalf of the respondent, that the appellant’s solicitor failed to object or otherwise protest at the magistrate’s remarks. That submission is founded on the observations of the majority of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at 572:

    “Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.”

    Generally speaking, a protest should be made by a party’s legal representative and, in the absence of any protest, the consequence may be that the party has waived his right to object. However, I repeat, it is unnecessary to rely on this ground.

12. For all of these reasons, the appellant has not demonstrated that the fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to the trial of the issues before him. I therefore dismiss the appeal.