Anthony Todd Ronayne v John Lindsay Ellis, George Zbigniew Blocks, Gregory James Harding, Grant Francis Watterson, Thomas Rowbottom, Wayne Robert Korber and Margaret Bernadette Elliot No. SCGRG 93/255 Judgment No...

[1993] SASC 4131

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Courts and judges - Bias - Magistrates - Magistrate considering sentence - Another magistrate prof fers opinion to the sentencing magistrate as to appropriate sentence - Views expressed in absence of parties - Reasonable apprehension that magistrate might not bring impartial mind to the matter of sentencing - Sentence set aside - Fresh sentence determined Livesey v New South Wales Bar Association (1983) 151 CLR 288; re JRL; ex parte CJL (1986) 161 CLR 342; Laws v Australian Broadcastinq Tribunal (1990) 170 CLR 70; In re Polites (1991) 173 CLR 78 and City of St Kilda v Evindon Pty Ltd (1990) VR
771, applied.

HRNG ADELAIDE, 26 March 1993 #DATE 12:11:1993
Counsel for appellant:         Mr J A Gibbons
Solicitors for appellant:     P R Dixon and Associates
Counsel for respondents:     Mr A Moss
Solicitors for respondents:    Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 DEBELLE J The appellant has appealed from a sentence of imprisonment ordered by Mr Gumpl SM, a magistrate sitting in the Para District Court of Summary Jurisdiction. On 23 October 1992 the appellant had pleaded guilty to 42 offences committed over a period of six months. Mr Gumpl noted in the course of his sentencing remarks that they were serious offences including two major indictable crimes. The appellant had what Mr Gumpl described as "an appalling criminal record dating back to 1980". The 42 offences included 29 separate counts of dishonesty. After hearing submissions, Mr Gumpl remanded the appellant in custody while he determined an appropriate sentence. 2. On 27 October 1992 Mr Gumpl sentenced the appellant to a total head sentence of 69 months to commence at the expiry of a sentence then being served by the appellant. The total sentence was 78 months and 1 day commencing on 14 August 1992. A non-parole period of 43 months was fixed. 3. The appellant appealed from that sentence. There was only one ground of appeal, namely, that the magistrate had taken into account information conveyed to him in private by another magistrate which information had not been made known to the appellant when he was sentenced. An affidavit was filed by the appellant's solicitor, Ms Dixon, outlining the circumstances which gave rise to the appeal. She swore, inter alia, that a short time after the appellant had been sentenced she had appeared in the Adelaide Children's Court on a number of occasions in proceedings concerning the care of a child who was a child of the de facto relationship of the appellant and a Ms Angel. She alleged that, at one of those appearances on 24 November 1992, Ms McInnes SM had referred to the appellant and what she perceived to be the appellant's bad influence on Ms Angel. Dialogue followed between Ms Dixon and Ms McInnes SM to which Ms Dixon refers in her affidavit:
     "9. I said words to the effect that Ms McInnes SM need
    not be too concerned about the appellant, as he had just
    received a lengthy term of imprisonment, and would not be `on
    the scene' in the near future."
     10. Although I cannot remember exactly what she said, the
    learned magistrate Ms. McInnes S.M. then said words to the
    effect of: `The term of imprisonment which has been imposed on
    Tony Ronayne is not long enough as far as I'm concerned. I was
    there when Mr. Gumpl was preparing the sentence and I was
    telling him that he should increase the penalties.' It is my
    recollection that Ms. McInnes S.M. inferred that although the
    penalties had been increased in consequence of what she had
    said, she did not consider they had been increased sufficiently.
    It was my distinct impression as a result of what she had said
    that she believed that her comments to Mr. Gumpl S.M. had had
    the effect of increasing the sentence which the learned
    magistrate then went on to impose.
     11. Following these comments by Ms McInnes SM in court, I was
    somewhat stunned by her revelations and I said: `I'm shocked.'
    Nothing more was said in relation to the matter." 4. Ms Dixon has sworn that she later considered the matter, took advice from senior counsel, and then advised the appellant who instructed her to institute this appeal. There was another affidavit from a social worker present at the Court but her affidavit does not take the matter any further. 5. Given the ground of appeal and the nature of Ms Dixon's allegations, I held a preliminary hearing with counsel of the parties. With their consent, I requested a report from the two magistrates concerned. Both magistrates have reported at length. In their report, both magistrates have denied any impropriety or any intention to act in an improper way. I accept that assurance. 6. The magistrates' reports were made available to both parties. After receiving the report, the appellant sought and was granted leave to amend his notice of appeal to substitute the following ground: "That the learned special magistrate was in breach of a fundamental rule in the administration of justice in that he did not sentence only on the basis of that which was admissible evidence against the appellant and before the Court but he also sentenced on the basis of that which had been put forward out of court and in the absence of the appellant." 7. I set out the relevant portions of the report by Mr Gumpl SM:
    "At the time I sentenced the defendant I was a Magistrate
    at Para District. Ms. McInnes was the visiting Children's Court
    Magistrate who had been a Magistrate at Para District the
    previous year. I have a vague recollection of a conversation I
    had with her on one of her visits which included reference to
    the defendant Ronayne. The bulk of the conversation was no more
    than polite social chatter. At that time I learnt that she knew
    I was dealing with the defendant. I learnt that she had
    sentenced the defendant for a number of offences in the past and
    that she appeared to have some interest in the defendant's
    progress through the court system. She did not inquire and was
    not informed by me about the facts of any of the offences. She
    did not inquire and was not informed by me about any submissions
    made to me. I did not ask her for her opinion about anything
    pertinent to the defendant or to the matters before me. I
    necessarily knew that the defendant had a bad record and also
    knew that some of the other Magistrates at Para District had
    sentenced the defendant in the past. ...Ultimately all
    decisions in the sentencing process are one's own. This is not
    a case where I sought Ms. McInnes' views, nor did she tell me
    anything that did or could have assisted or influenced me in
    deciding how to sentence the defendant. Simply put:- Ms.
    McInnes knew that I was in the process of having to sentence the
    defendant; she had sentenced him in the past and expressed the
    view that if she were sentencing him he could expect a lengthy
    term of imprisonment. No specifics were discussed. She did not
    say anything to me that I took as being improper, nor did I feel
    as if she was trying to influence me in any way. The
    conversation was short, unremarkable and unmemorable. ...Since
    this case has re-emerged I have again consulted the court files,
    reports, criminal history cards and my sentencing remarks. My
    view is that I would sentence the defendant in exactly the same
    manner today as I did then, whilst at the same time accepting
    that Ms. McInnes or any other judicial officer may arrive at a
    different overall result. Whatever was or was not said by Ms.
    McInnes in court; whatever her reasons; whatever Ms. Dixon
    heard, inferred; interpreted, understood or misunderstood, is a
    matter for them. I can only say that nothing that Ms. McInnes
    ever said to me concerning the defendant did or could possible
    have influenced me in the proper discharge of my sentencing
    responsibilities." 8. Although Ms McInnes admits saying to Ms Dixon that she did not consider the sentence imposed on the appellant to be lengthy and admits expressing that view to both the appellant and Mr Gumpl, she denies the words attributed to her by Ms Dixon and denies also saying anything which would have justified the inferences drawn by Ms Dixon. Given what is stated in Mr Gumpl's report, it is unnecessary to refer at any length to what is contained in the report of Ms McInnes or to seek to resolve any real or apparent conflict between her report and the affidavit of Ms Dixon. Mr Gumpl has unequivocally reported to the effect that Ms McInnes proffered an unsolicited opinion that, had she been sentencing the appellant, he could expect a lengthy term of imprisonment. I deal with the matter on that footing which I think is consistent with what Ms Dixon has said in her affidavit. 9. It is necessary, however, to refer to one aspect of Ms McInnes's report. It is evident that she had a grave concern for the future of the appellant's child and what she perceived to be his bad influence on Ms Angel. Ms McInnes had on a number of occasions between 1989 and 1992 sentenced the appellant. She was aware that on a number of occasions he had breached his parole. She was aware also that the appellant and his partner are both heroin addicts and that, when the appellant was released from custody, he and his partner resumed their use of heroin thus causing what she believed to be "a high risk period for the child". The views might have been justified. It is neither necessary nor desirable that I should comment on that. I refer to these views for the purpose only of noting that Ms McInnes was not an entirely disinterested observer. Her views as to the length of the sentence were coloured, at least in part, by the concern for the child and Ms Angel. The report by Mr Gumpl makes it clear that he was not influenced by what Ms McInnes had said. This is not, therefore, a case where a magistrate has acted on a private communication. Instead, the issue is whether the fact of the private communication is sufficient to undermine confidence in the impartiality of the judicial officer concerned and afford a reasonable apprehension that the magistrate was improperly influenced by what had been said to him. 10. Confidence in the impartiality and integrity of the judicial system is maintained because rigorous standards are imposed upon judicial officers. One fundamental principle intended to uphold the integrity and impartiality of and the administration of justice is that a judge must not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case: re J.R.L.; ex parte C.J.L.
(1986) 161 CLR 342 per Gibbs CJ at 346-347. The principle is based on the premise that a judicial officer should not act in a way which affords a reasonable suspicion that he has received communication behind the back of a party for, if something is done which affords a reasonable basis for such a suspicion, confidence in the impartiality of the judicial officer is undermined: R v Magistrates Court at Lilydale; ex parte Ciccone (1973) VR 122 at 127 approved in re J.R.L. ex parte C.J.L. (supra). 11. The principles were examined in detail by Mason J in re J.R.L.; ex parte C.J.L. (supra) at 350-351:
    "A central element in the system of justice administered
    by our courts is that it should be fair and this means that it
    must be open, impartial and even-handed. It is for this reason
    that one of the cardinal principles of the law is that a judge
    tries the case before him on the evidence and arguments
    presented to him in open court by the parties or their legal
    representatives and by reference to those matters alone, unless
    Parliament otherwise provides. It would be inconsistent with
    basic notions of fairness that a judge should take into account,
    or even receive, secret or private representations on behalf of
    a party or from a stranger with reference to a case which he has
    to decide. This principle immediately distinguishes the
    judicial branch from other branches of government, except in so
    far as they may be relevantly affected by the rules of natural
    justice. In conformity with the principle, every private
    communication to a judge made for the purpose of influencing his
    decision in a case is treated as a contempt of court because it
    may affect the course of justice: In re Dyce Sombre (1849) l
Mac and G 116 at p 122 (41 ER 1207 at p 1209) per Lord
    Cottenham LC. Indeed,it is regarded as a serious contempt." 12. At 351-352 Mason J added:
    "This proscription does not, of course, debar a judge
    hearing a case from consulting with other judges of his court
    who have no interest in the matter or with court personnel whose
    function is to aid him in carrying out his judicial
    responsibilities. The same standard is applied in the Code of
    Judicial Conduct for United States Judges, approved by the
    Judicial Conference of the United States: see Canon 3 and
    commentary. ... the receipt by a judge of a private
    communication seeking to influence the outcome of litigation
    before him places the integrity of the judicial process at risk.
    A failure to disclose that communication will seriously
    compromise the integrity of that process. On the other hand,
    although the terms of a subsequent disclosure by the judge of
    the communication and a statement of its effect in some, perhaps
    many, situations will be sufficient to dispel any reasonable
    apprehension that he might be influenced improperly in some way
    or other, subsequent disclosure will not always have this
    result. The circumstances of each case are all important. They
    will include the nature of the communication, the situation in
    which it took place, its relationship to the issues for
    determination and the nature of the disclosure made by the
    judge. The problem is governed by the principle that a judge
    should disqualify himself from hearing, or continuing to hear,
    the matter if the parties or the public entertain a reasonable
    apprehension that he might not bring an impartial and
    unprejudiced mind to the resolution of the issues: Reg. v.
Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263
Livesey v. NSW Bar Association (1983) 151 CLR 288, at
    pp 293-294. This principle, which has evolved from the
    fundamental rule of natural justice that a judicial officer
    should be free from bias, reflects a concern with the need to
    maintain public confidence in the administration of justice.
    This concern is expressed in the cognate principle that, not
only must justice be done, it must be seen to be done." 13. The decision in re JRL; ex parte CJL concerned a communication made to the judge in the course of the trial but in the absence of the parties. The majority of the Court applied the principle in Livesey (supra), although the decision in Livesey concerned bias in the sense of prejudgment: see also re Judge Leckie; ex parte Felman (1977) 52 ALJR 155. 14. The principle in Livesey is expressed in terms of possibility and not probability: "That principle is that a judge 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." 15. As the judgments in Australian National Industries Ltd v Spedley Securities Ltd (in liq.) (1992) 26 NSWLR 411 illustrate, there may be room for a difference of opinion as to whether the tests in Livesey, as explained in later cases, requires the probability or only a possibility of impartiality. However, although it may be possible to detect in the later judgments a shift away from the test in Livesey, that is still the test to be applied. 16. The fact that a communication has been made to the judge in the absence of one of the parties does not necessarily mean that the judge will be disqualified: see Mason J in the remarks quoted above. The question is whether, in all the circumstances, knowledge of the fact of such a communication would raise a reasonable apprehension that the judge will not or cannot deal with the case fairly and impartially: see also Gibbs CJ in re Judge Leckie (supra) at 158. 17. It must be noted also that a court will not lightly conclude that there is a reasonable apprehension that a judge might not impartially resolve the issues before him; the reasonable apprehension must be firmly established. In R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553-554 the High Court said:
    "Those requirements of natural justice are not infringed
    by a mere lack of nicety but only when it is firmly established
    that a suspicion may reasonably be engendered in the minds of
    those who come before the tribunal or in the minds of the public
    that the tribunal or member or members of it may not bring to
    the resolution of the questions arising before the tribunal fair
    and unprejudiced minds. Such a mind is not necessarily a mind
    which has not given thought to the subject matter or one which,
    having thought about it, has not formed any views or inclination
    of mind upon or with respect to it." 18. That principle has been followed and applied in re Shaw; ex parte Shaw
(1980) 55 ALJR 12; re JRL; ex parte CJL (supra) at 352, 360 and 371-372; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100; and re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 85-86. In re Polites the High Court in a unanimous decision referred (at 86) with apparent approval to the "real likelihood" test in Reg v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116. But in that case the court was concerned to note a limitation on the test in Livesey when qualification for membership of a tribunal was concerned as distinct from an apprehension of pre-judgment stemming from a previous decision in a like matter. The decision in Polites adds emphasis to the observation in Livesey (at 299) that it is impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances. 19. Though the rule in Livesey poses the question whether in all the circumstances the parties and the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues, the question whether such a reasonable apprehension might exist is to be determined by the standard of the reasonable observer: Livesey at 298-299; Laws v Australian Broadcasting Tribunal at 87. The reasonable observer is presumed to have a degree of knowledge of the actual circumstances of the case: Laws v Australian Broadcasting Tribunal at 87. 20. As already mentioned, the proscription against a judge receiving a private communication does not debar him from consulting with other judges of his court who have no interest in the matter or with court personnel whose function is to aid him in carrying out his judicial responsibilities. Judges and magistrates confer from time to time with one another in general terms on issues pertaining to the sentencing process or any other issues concerning their judicial duties. I do not think that there is any impropriety in a magistrate consulting with disinterested colleagues concerning the sentencing of a particular offender. What occurred in this case could not be regarded as consultation with a fellow magistrate. The vice in this case is not that the question of the sentencing of a particular offender was discussed but that a person, not entirely disinterested, volunteered a view that a particular offender should receive a lengthy sentence. There was, as I understand Mr Gumpl's report, nothing which called for that expression of opinion. It is true that Ms McInnes had no direct or partisan interest in the outcome. Her interest stemmed from her concern for the child of the de facto relationship with Ms Angel and I accept her statement that she intended no impropriety. But her interest was such that it was preferable to refrain from expressing her views as to an appropriate sentence. 21. In one sense there is very little difference between a consultation with a fellow magistrate who has no interest in the matter and an unsolicited opinion of this kind. When a judge or magistrate consults with a colleague, he is at liberty to accept or reject the views expressed by his colleagues. Should a colleague proffer an unsolicited opinion, he is equally at liberty to accept or discard that opinion. Although a consultation with a disinterested colleague is more likely to produce a considered, principled and objective decision, the fact remains that in both instances the judge or magistrate in the independent exercise of his discretion is at liberty to accept or discard what has been said to him, to pay heed to whatever part, if any, of the advice tendered, be it sought or volunteered, as he thinks appropriate. In all likelihood, an unsolicited opinion of the kind expressed here is the more likely to be discarded. The reasonable person would be aware that magistrates in common with other judicial officers are experienced in resolving issues and dealing with submissions made by and on behalf of parties, submissions which might often be vigorously or persuasively advanced. With that knowledge and the knowledge that magistrates ordinarily act with fairness and impartiality, he might be prepared to assume that the magistrate will in either instance independently exercise his sentencing discretion uninfluenced by what had been said to him. 22. Mr Gumpl has reported that nothing which was said by Ms McInnes influenced him in the discharge of his duty. I accept that. But the question is not whether Mr Gumpl was or was not influenced by what was said to him but how a reasonable and fair-minded person might view what has happened and it has been held that, in those cases where there has been a private communication, the court will not embark on an enquiry as to the likelihood of prejudice:

    "The courts have always refused, for obvious reasons, to
    embark upon an enquiry whether a judge will determine the issues
    impartially and with an unprejudiced mind. It would be idle for
    this court to say that it is confident that the judge will act
    impartially. We have to ask ourselves how the matter would
    appear, viewed reasonably, to the public and the parties:" re
    JRL; ex parte CJL (supra) per Mason J at 356-357; see also
Vakauta v Kelly (1989) 167 CLR 568, 585. The reasonable person
    is not presumed to have any knowledge of the characters and
    abilities of the magistracy: Livesey (supra) at 299. The
    principle is a rigorous one. It has the appearance of denying
    the very qualities judges and magistrates are assumed to have.
    The rule reflects the principle that justice must not only be
    done but must manifestly be seen to be done. Some reasons for
    the principle are conveniently set out by the Full Court of the
    Supreme Court of Victoria in City of St Kilda v Evindon Pty Ltd
(1990) VR 771 at 776-777: "There are very good reasons for the
    existence of these precepts of conduct and it is most unwise to
    depart from them. While litigation produces winners it also
    produces disappointed losers who are prone to look for reasons
    for their failure other than a lack of strength and merit in
    their cases. If a judicial officer has been placed in a
    situation which arouses a suspicion of unfairness or partiality,
    human nature is likely to lead the loser to harbour the
    suspicion and to allow it to grow to a belief that the loss was
    due to unfairness or partiality of the judicial officer. That
    tends to destroy the community confidence in the judicial
    officer. Confidence in those who constitute its courts and
    tribunals is a basic necessity for a successful civilised
    democracy." 23. There are two aspects of the matter which, even with the knowledge that magistrates will sift and weigh what is said to them, would cause the fair-minded observer to have a reasonable apprehension that the judge might have improperly influenced by what had been said to him. First, the observer would be presumed to know that Ms McInnes was hearing proceedings in which the care of the appellant's child was an issue and the extent of the contact of the appellant with his child would be a relevant matter to consider. The knowledge that Ms McInnes believed that the interests of the child required that that contact be limited would create a reasonable apprehension that Mr Gumpl might have been influenced by that fact when sentencing the appellant. At the end of the day, it is a question of fact and degree whether it can be determined that an objective bystander might entertain a reasonable apprehension that the magistrate might have been improperly influenced by what had been said to him. But, having regard to all of the circumstances, I think the objective observer might have had a reasonable apprehension that he had been improperly influenced. 24. Secondly, any reasonable apprehension the fair-minded observer might have would be sharpened by the manner of disclosure. Knowledge of the fact that a private communication contrary to his interest has been made will invariably induce a feeling of grievance in a party who is adversely affected by the decision. That grievance stems from the fact that he does not know what has been said, the circumstances in which the remarks were made, and how vigorously or persuasively those views were expressed. In short, what he cannot know is the extent to which those views have influenced the other magistrate. Knowledge of the communication produces doubts and reduces confidence in the impartiality of the magistrate's decision in the sense of it being uninfluenced by what had been communicated. There would be reasonable cause for an apprehension that the decision as to the length of the sentence might have been influenced by factors in the other proceedings. That sense of grievance will be the more acute where disclosure has been made in a somewhat roundabout way and after the decision when the appellant has no opportunity to remedy the situation short of appeal. Disclosure after the sentence can only sharpen an apprehension that the decision was not that of the sentencing magistrate. 25. Disclosure of the communication before the sentencing decision was made would, I think, have removed any reasonable apprehension that the magistrate might have been improperly influenced. Had the magistrate announced the fact of the communication to the parties, explained the circumstances of the communication, and stated, as he has in his report, that he had not been influenced by it, it is unlikely that either of the parties would have asked him to disqualify himself. It would have been desirable also for the magistrate to have invited the parties to make such further submissions as they thought necessary. Had the magistrate made such a disclosure and called for submissions, he would, I think, have dispelled any reasonable apprehension that he might have improperly influenced by what had been said to him. He would have demonstrated that he wished to reach his own conclusion uninfluenced by any improper communication. 26. For these reasons, I think the objective bystander might have had a reasonable apprehension that Mr Gumpl might have been improperly influenced. It follows that the orders for imprisonment must be set aside. I do not think it is appropriate to remit these matters to the Magistrates Court for sentence. Instead, I will hear the parties on the question of penalty.