Appeal of Brent Thomas James Slater

[2008] NSWDC 170

CITATION:	Appeal of Brent Thomas James Slater [2008] NSWDC 170
HEARING DATE(S):	22 April, 27 May 2008
EX TEMPORE JUDGMENT DATE:	27 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Application by Crown to disqualify judge from hearing this appeal granted.
CATCHWORDS:	JUDGES AND COURTS - Apprehended bias - Appeals to District Court from Local Court - appeals - jurisdiction - procedure
LEGISLATION CITED:	Crimes (Appeal and Review Act) 2001
CASES CITED:	R v Sin NSWCCA 18 April 2008 Ebner v Official Trustee (2000) 205 CLR 337 John Fairfax Publications Pty Ltd v Kriss (2007) NSWCA 79
PARTIES:	Brent Thomas James Slater (Appellant) Crown (Respondent)
FILE NUMBER(S):	Wollongong 2008/0452
COUNSEL:	N Keay (Appellant) D Degnan (Crown)
SOLICITORS:	Legal Aid Commission NSW DPP

JUDGMENT

1 HIS HONOUR: This is an application by the Crown for me to disqualify myself from hearing this appeal.

2 This matter first came before me on 22 April. I was under the impression, possibly mistaken, that the matter was an appeal against conviction listed for hearing on that day. In fact, that turned out not to be the case.

3 The Crimes (Appeal and Review) Act, s 18, provides in subsection (1) that an appeal against conviction is to be by way of rehearing, on the basis of certified transcripts of the evidence given in the original Local Court proceedings, except as provided by s 19. It is my practice, especially when the list is heavy, to read in advance the transcripts of evidence on the court file, in order to save time. So far as I am concerned, that is the evidence, on the basis of which the appeal is to proceed, although I know it is the practice of some Crown Prosecutors to tender the transcript.

4 In my view, the Court is seized of jurisdiction to entertain the matter as soon as the notice of appeal is lodged.

5 There may be many criticisms and shortcomings of the procedures for appeals against conviction in the Local Court. In many ways, the procedure that pertained formerly was, in my view, infinitely preferable, but there is a procedure laid down by statute, and it is the obligation of judicial officers to do what is necessary to make the courts function efficiently.

6 I was subsequently told that the matter was listed to fix a hearing date, but that there was a bail application. Because of what I had read, it may well have been necessary for me to read the transcript, or parts of it, in any event, in order to determine the bail application, and it is quite possible that anything that I said on that occasion might have been said on a bail application, in any event.

7 I must say that the reading of the transcript, notwithstanding what the Crown Prosecutor has said today, convinced me that there were possibly some serious errors of law, apart from questions of credit, apparent on the face of the transcript, and it seemed to me that it was a proper application for bail, and I granted it. It also appeared to me that, on the basis of what I had read, that a costs application might be appropriate if the appeal succeeded. I said so, on the basis of what I read in the transcript.

8 I had not then, and I do not now, take any final position, without hearing submissions from both the Crown and the appellant. I do not think there is any question that the proper operation of the criminal law requires that people not be detained in custody, where there appears, on the material before the Court, to be a reason why they should be granted bail, and I formed such a view in this case, without, in any way, forming a concluding view on the essential issues to be determined in the appeal.

9 The Crown has referred me to a decision of Latham J in a case of Sin on 18 April 2008 where her Honour was asked to discharge herself on the basis of some comments that her Honour had made, which, in the case of the offender, possibly should have resulted in a more serious charge. Her Honour said that she had some problems, and she indicated, quite clearly on that basis, that she proposed to take a particular course of action, in relation to the agreed facts which had been tendered. She then adjourned the matter. Senior counsel for the accused acknowledged that her Honour had properly expressed a view, but subsequently applied for the judge to disqualify herself, and she entertained that application, applying the test laid down by the High Court in Ebner v OfficialTrustee (2000) 205 CLR 337 where a majority of the Court said, at para 7, that the question is one of possibility, real and not remote, not probability. In John Fairfax Publications Pty Limited v Kriss (2007) NSWCA 79 the Court of Appeal pointed out that that was a low threshold. Her Honour considered that, in the circumstances of that case, she should disqualify herself. It is, in my view, important to realise that her Honour was dealing with a case where the comments that she had made were possibly adverse to the offender, and they were definite and clear comments as to what course of action her Honour would take.

10 In my view, the comments that I made on 22 April 2008 express a concern, but do not in any way indicate a course of action that I would take in determining the appeal.

11 The Crown also says that, if I deal with the appeal, it would mean that this offender would leapfrog, as it were, other appellants, as this matter would normally have been dealt with in the Court at Goulburn. I should say that I had no idea, when the matter came before me, until the solicitor, who appeared for the prosecution, informed me of the fact that, normally, this is an appeal that would go to Goulburn. I thought it was an appeal that was being dealt with in Wollongong. It should be dealt with, in the ordinary course of events, in these sittings. If I had understood that at the time, I probably would not have taken the course of action that I have in relation to the facts. However, as I say, this was a bail application. It may well have been necessary for me, in any event, to read the transcript as I did, and if I had, I have no doubt that I would have made the same comments as I did.

12 Notwithstanding that, it does seem to me that there is a low threshold, and it is possible that an informed lay observer might form the view that I had prejudged this case, and I therefore will disqualify myself from this case. However, I am not disposed to return the case to Goulburn. I am aware that the appellant now does not live anywhere near the Crookwell area. I think it should be dealt with here in Wollongong and I will stand it over to a date to be dealt with here.

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