AI v The Queen

[2013] ACTSC 140

AI v R
 [2013] ACTSC 140 (6 June 2013)

COURTS AND JUDGES – BIAS – application that judge disqualify themself from hearing trial of applicant – whether 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 a question of admissibility of evidence in upcoming trial – where the trial judge sat on Court of Appeal which criticised elements of report requested by applicant’s solicitors – where evidence to be led at trial still unknown ­– in the circumstances, no reasonable apprehension of lack of impartiality or unprejudiced mind – application refused

Livesey v NSW Bar Association (1983) 151 CLR 288
R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256

EX TEMPORE JUDGMENT

No. SCC 295 of 2009

Judge: Burns J             
Supreme Court of the ACT

Date: 6 June 2013      

IN THE SUPREME COURT OF THE     )
  )          No. SCC 295 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

AI
Applicant

v   

R
Respondent

ORDER

Judge:Burns J

Date:6 June 2013

Place:Canberra

THE COURT ORDERS THAT:

1. The application is refused.

1. This is an application filed by the legal representatives of the accused, AI seeking orders that effectively I disqualify myself from any further participation in the upcoming trial of the accused.  The basis of the application is set out in the application itself, and I quote:

   A fair minded lay observer would reasonably apprehend that His Honour Justice Burns might not bring an impartial and unprejudiced mind to the resolution of questions of admissibility of certain evidence at the trial, which would be required to be decided by the trial judge.

2. I understand that the evidence which is referred to in the grounds of the application is evidence which may be called from Dr Diamond.  The factual basis upon which the applicant submits that a reasonable apprehension of bias might exist is that in April this year I was part of a Court of Appeal, which granted leave to the Crown to appeal from a decision of the Chief Justice on 10 April 2012, severing the Crown’s indictment for all of the co‑accused, and ordering that each of them be tried separately.  On 10 April 2013, the Court, of which I was a member, granted leave to the Crown to appeal from that decision and upheld the appeal, and ordered that each of the accused be joined on an indictment to stand trial together.

3. In the course of the Court’s reasons, the Court was obliged to consider the report of Dr Diamond, which had been obtained by the applicant’s lawyers.  In the course of the reasons of the Court of Appeal, the Court made comments, in relation to the report which had been obtained from Dr Diamond and what Dr Diamond had been requested to do by the applicant’s solicitors in the preparation of that report.  Effectively, the Court criticised what it considered to be the request by the applicant’s lawyers that Dr Diamond speculate as to the intention of the accused at the time that he did the acts alleged by the Crown.

4. The Court was advised by the applicant’s counsel who appeared in the Court of Appeal, Mr Doig, that the applicant did not propose using Dr Diamond’s report at his upcoming trial.  Mr Doig indicated that a further report may be obtained from Dr Diamond, however, as the court noted in its reasons, whether that would occur and what that report may address, could only be speculation.  Mr Livingston appears for the applicant in these proceedings.  Mr Livingston has only come into the matter on very short notice and was content to leave the matter before the Court on the basis of the written submissions that have been filed.

5. He accepts, as I understand it, that it is a hurdle for the applicant in the current application that we do not know what evidence counsel who will appear for AI at the trial may seek to lead from Dr Diamond.  Indeed, as I indicated in argument with Mr Livingston that really appears to be at the heart of the present application.  I accept that the test which I must apply in this application is that which is set out in the case of Livesey v NSW Bar Association (1983) 151 CLR 288. That test was expressed as follows, I quote from the judgment of the Court at 293-4:

   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 he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

6. I also accept what fell from Lord Hewart CJ in R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259 that “Justice should not only be done but should manifestly and undoubtedly be seen to be done.”

7. I note that the comments which appear in the judgment of the Court of Appeal were made with respect to the report of Dr Diamond that was then available.  It was also made in circumstances where counsel then appearing for the applicant disavowed any proposal to use that report or its contents in the upcoming trial.  If ultimately a report is received from Dr Diamond or Dr Diamond is called to give evidence, it will be necessary to rule, as the occasion requires, on the admissibility of whatever evidence he may propose giving.

8. The fact that in the circumstances to which I referred, the Court of Appeal made adverse comments as to the request by the applicant’s lawyers that he effectively speculate as to the intention of the accused at the time that he allegedly committed the acts alleged by the Crown would not, in my view, raise in the mind of a party or a reasonable person, a reasonable apprehension that I may not bring an impartial and unprejudiced mind to the resolution of any question of admissibility of evidence, with respect to Dr Diamond.  I propose to refuse the application.

   I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:                 17 July 2013

Counsel for the Applicant:  Mr R Livingston

Solicitor for the Applicant:  Ben Aulich & Associates

Counsel for the Respondent:  Mr S Drumgold
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  6 June 2013
Date of Judgment:  6 June 2013