Ali Aydin v The Queen - [2019] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0064

ALI AYDIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2019
DATE OF JUDGMENT:	10 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 83
JUDGMENT APPEALED FROM:	Aydin v DPP (Ruling No 2) [2019] VCC 282 (Judge Trapnell, 15 March 2019)

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CRIMINAL LAW – Interlocutory Appeal – Apprehended bias – Judge presiding over application to change plea in drug case – Judge, when Crown Prosecutor, called applicant as a witness in committal proceedings 14 years ago – Applicant was an uncooperative witness – Judge refused to disqualify himself – Whether fair minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind – Leave to appeal refused – AJH Lawyers v Careri (2011) 34 VR 236 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Sarah Tricarico Lawyers Pty Ltd
For the Respondent	Ms S Flynn QC	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
T FORREST JA:

Pursuant to certification of a County Court judge given under s 295(3)(b) of the Criminal Procedure Act 2009, in circumstances which we will later describe in more detail, the applicant seeks leave to appeal the judge’s decision refusing to disqualify himself for apprehended bias (‘the interlocutory decision’ or ‘the ruling’).[1]
[1]Aydin v DPP (Ruling No 2) [2019] VCC 282 (‘Ruling’).

In our opinion, the application is wholly without merit. For the reasons that follow, leave to appeal should be refused.

The matter for resolution arose in this way.

An indictment filed in the County Court charged the applicant, and alleged co-offenders Mohammad Osman, Kazem Hamad and Rami Margus, with a number of charges relating to the trafficking of heroin.

The proceedings came before the judge on 22 October 2018. Over several days, his Honour heard a number of pre-trial legal arguments, including claims for public interest immunity by the Commissioner of the Australian Federal Police and the Chief Commissioner of Victoria Police with respect to subpoenaed documents and an application for a permanent stay.

On 9 November 2018, the judge was told that the matter had ‘settled’. Hence, the applicant was arraigned[2] and pleaded guilty to two charges of trafficking in a large commercial quantity of heroin and two charges of trafficking in heroin simpliciter. Subsequently, however, the applicant made an application to the judge to change his plea to those charges.
[2]The relevant indictment was number E14172595.

Pleas in mitigation were heard by the judge in relation to the applicant’s co-offenders. Had it not been for the applicant’s application to change his plea, his plea in mitigation would have been heard at the time of the others.

Application was made by the applicant’s counsel that the judge disqualify himself from hearing the application for change of plea on the basis of apprehended bias. Remarkably, the prosecution supported the application. On 15 March 2019, however, the judge refused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ali Aydin v The Queen

Details

AGLC: Ali Aydin v The Queen [2019] VSCA 83
Case: [2019] VSCA 83
Decision Date: 10 April 2019

CaseChat Overview and Summary

The appellant, Ali Aydin, sought an interlocutory appeal against a decision of the County Court, which refused to disqualify the Honourable Judge from presiding over an application to change his plea in a drug case. The appellant argued that the Honourable Judge, who had previously called him as a witness in committal proceedings 14 years ago, might be subject to apprehended bias due to the nature of their past interactions. The Supreme Court was tasked with determining whether the Honourable Judge should have recused himself from the case based on the appellant's concerns.

The primary legal issue was whether the Honourable Judge's prior involvement with the appellant as a Crown Prosecutor could reasonably lead a fair-minded lay observer to apprehend that the judge might not bring an impartial and unprejudiced mind to the case. The court considered the principle that the test for apprehended bias is an objective one, focusing on whether a reasonable observer might think the judge biased, rather than the actual state of the judge's mind. The court referenced AJH Lawyers v Careri to ascertain the appropriate standard of review.

The court held that the Honourable Judge's past involvement with the appellant, while significant, did not create a reasonable apprehension of bias. The Honourable Judge had not shown any hostility or bias towards the appellant in the previous proceedings, and there was no evidence to suggest that the Honourable Judge would not approach the current case with an open and impartial mind. The court noted that the mere fact that the Honourable Judge had called the appellant as a witness in the past, without more, did not establish a basis for apprehended bias. The appeal was dismissed, and the Honourable Judge was not disqualified from presiding over the case.

The Supreme Court did not make any orders regarding costs.

Orders