Anderson v The State of Western Australia [No 3]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2015] WASCA 92

CORAM: MAZZA JA

HEARD: 1 APRIL 2015

DELIVERED : 7 MAY 2015

FILE NO/S: CACR 197 of 2014

BETWEEN: MICHAEL WAYNE ANDERSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DAVIS DCJ
File No  :IND 1258 of 2013

Catchwords:

Criminal law - Application to recuse judicial officer - Application without merit - Application refused

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Anderson v The State of Western Australia [2014] WASCA 107
Anderson v The State of Western Australia [No 2] [2014] WASCA 126
Anderson v The State of Western Australia [No 2] [2015] WASCA 91
Anderson v The State of Western Australia [No 3] [2014] WASCA 190
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43

MAZZA JA: On 1 April 2015, the appellant applied for an order that I recuse myself from hearing various applications filed by him. Those applications are set out in the court's reasons in Anderson v The State of Western Australia [No 2] [2015] WASCA 91 which will be published at the same time as these reasons. After hearing the appellant, I dismissed the application with reasons to follow. Here are those reasons.
The appellant submitted that I should recuse myself because I have, on three prior occasions, refused his applications for bail pending appeal and I was part of the coram that refused him leave to appeal against sentence: Anderson v The State of Western Australia [2014] WASCA 107; Anderson v The State of Western Australia [No 2] [2014] WASCA 126; Anderson v The State of Western Australia [No 3] [2014] WASCA 190. He also told me he is seeking special leave to appeal to the High Court with respect to his appeal against sentence. He did not allege any bias on my part. In fact, he specifically stated that, 'I'm not saying there's any bias at all' (ts 19). Rather, he expressed a preference for another judge, who was a 'fresh face' who could provide a 'fresh perspective', to hear the proceedings.
The desire of a party to litigation to have a matter determined by a 'fresh face' is not a proper basis for a judicial officer to recuse himself or herself. Even if the matter had been put by the appellant on the basis that I was actually biased against him or that there was a reasonable apprehension of basis, the mere fact that I had decided other matters against the appellant does not provide a proper basis for me to recuse myself: see De Alwis v The State of Western Australia[No 4] [2015] WASCA 43.

CaseChat Overview and Summary

The case of Anderson v The State of Western Australia [No 3] involved the defendant, Anderson, challenging the jurisdiction of the judicial officer presiding over the criminal proceedings against him. The defendant sought the recusal of the judicial officer, arguing that the officer had a potential bias against him. The matter was heard in the Supreme Court of Western Australia.

The court was required to determine whether the application for the judicial officer to be recused was valid and whether there was any ground for the defendant's claim of potential bias. This involved an analysis of the evidence presented regarding any prior relationship or communication between the judicial officer and the defendant that might give rise to a reasonable apprehension of bias. Additionally, the court needed to consider whether the application was made in a timely manner and whether it had any merit.

The Supreme Court found that the application for recusal was without merit. The court determined that there was no evidence to support the defendant's claim of bias. The judicial officer had not engaged in any inappropriate conduct or communication with the defendant that would give rise to a reasonable apprehension of bias. Furthermore, the application was made late in the proceedings, which the court considered to be an additional factor against its acceptance. Therefore, the application was dismissed.

The court refused the defendant's application to have the judicial officer recused and determined that the application had no merit. The proceedings continued with the original judicial officer presiding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established