Baron v Tasmania
[2009] TASSC 97
•21 October 2009
[2009] TASSC 97
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Baron v Tasmania [2009] TASSC 97
PARTIES: BARON, Thomas Peter
v
TASMANIA (STATE OF )
FILE NO/S: 837/2007
DELIVERED ON: 21 October 2009
DELIVERED AT: Hobart
HEARING DATE: 16 October 2009
JUDGMENT OF: Crawford CJ and Evans J
CATCHWORDS:
Procedure – Courts and judges generally – Judges – Disqualification for interest or bias – Particular relationships or circumstances – Prior relationship of legal advisor and client or opponent – Trial judge had acted against accused in relation to his marital break-up nine years previously.
Johnson v Johnson (2000) 201 CLR 488, Ebner v Official Trustee (2000) 205 CLR 337, Bienstein v Bienstein (2003) 195 ALR 225, applied.
Aust Dig Procedure [12]
REPRESENTATION:
Counsel:
Appellant: A G Melick SC
Respondent: J N Perks
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 97
Number of paragraphs: 25
Serial No 97/2009
File No 837/2007
THOMAS PETER BARON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
21 October 2009
I agree with the reasons for judgment of Evans J. The ground of appeal based on apprehended bias has no merit.
File No 837/2007
THOMAS PETER BARON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
21 October 2009
On 24 October 2007, the appellant, Thomas Baron, was found guilty on three counts of conspiracy contrary to the Criminal Code Act 1924, s297(1)(d), and acquitted on a further eight counts of that charge.
In very broad terms, nine of the counts alleged that during various periods between 16 March 1994, and 25 November 1997, Mr Baron had conspired with either or both David Alistair McCulloch and Haydn Dodge to defraud investors in the McCulloch Solicitors Mortgage Register, or the Lewis Driscoll & Bull Mortgage Register as to loans from either register to be secured by first mortgages over real property. The other two counts alleged that Mr Baron had conspired with Mr Dodge to defraud the Law Society of Tasmania by entering into loan agreements calculated to hide the identity of the true borrowers.
Some appreciation of the criminal conduct that resulted in Mr Baron's convictions can be obtained from the particulars to the three counts on which he was convicted, together with the learned trial judge's reference to the facts on those counts in the course of sentencing Mr Baron. This material is as follows:
Count 2:
"PARTICULARS
DAVID ALISTAIR JAMES McCULLOCH and THOMAS PETER BARON at Hobart in Tasmania between on or about the 23rd August, 1995 and the 28th August, 1995 conspired with each other to defraud investors in the McCulloch Solicitors Mortgage Register (the Register) by entering in respect of real property namely 'The Lodge' situated at Brighton and 'The Barracks' situated at Sorell an agreement whereby DAVID ALISTAIR JAMES McCULLOCH would lend to THOMAS PETER BARON $30,000 such monies to be drawn from the Register, to be secured by first mortgage over the said properties contrary to the Rules of Practice 1994 made under the Legal Profession Act 1993 in that the amount was loaned absent an appropriate security valuation in respect of 'The Lodge' within three months of the advance and such that the total amount advanced, namely, $585,000 exceeded two thirds of the most recent security valuations in respect of the said properties thereby imperilling the economic interests of the investors in the said Register."
Comments on Passing Sentence:
"As to count 2, that involved an agreement between the two of you for an amount of $30,000 to be lent from the McCulloch mortgage register to you Mr Baron. The loan was to be secured against properties you already owned called The Lodge and The Barracks. Those properties were already the subject of mortgages to the McCulloch mortgage register. This lending was done in the absence of an appropriate security valuation as required by the Rules of Practice 1994 and further breached the rules in that the lending exceeded two thirds of the last security valuations in respect of the properties.
…
The jury clearly accepted that the valuation of Mark Johnson dated 23 August 1995 in respect of the Lodge at $700,000 could not, even on a superficial reading, have been accepted as a security valuation by an experienced commercial solicitor. The jury also had to have accepted that, in acting on that document as you did and lending by reference to it, you both acted dishonestly. The jury verdict carries with it an acceptance that your conduct was not merely that of negligent solicitors or an error of judgment. It was deliberate dishonest conduct."
Count 7:
"PARTICULARS
DAVID ALISTAIR JAMES McCULLOCH and THOMAS PETER BARON at Hobart in Tasmania between on or about the 1st August 1996 and the 9th August, 1996 conspired with Haydn James Dodge and each other to defraud investors in the McCulloch Solicitors Mortgage Register (the Register) by entering in respect of real property situated at 15–17 Castray Esplanade an agreement whereby DAVID ALISTAIR JAMES McCULLOCH would lend to Haydn James Dodge $120,000 drawn from the Register to be secured by first mortgage over the said property, knowing that the said Haydn James Dodge was experiencing financial difficulties and was unlikely to be able to repay the said monies and knowing that the sole or overriding purpose of the said loan was to enable the said Haydn James Dodge and THOMAS PETER BARON to pay arrears of interest they owed to the McCulloch Solicitors Mortgage Register thereby imperilling the economic interest of the investors in the said Register."
Comments on Passing Sentence:
"As to count 7, that involved a transaction which followed a meeting in August 1996 at the offices of McCulloch & McCulloch … The jury has accepted that at that meeting you two, together with Dodge, agreed that $120,000 would be lent by the McCulloch mortgage register to Dodge secured against the Castray Esplanade property. The agreement was entered into for the main purpose of having the interest payments due by both Dodge and you Mr Baron to that register on 1 August 1996 paid in circumstances where you and Dodge owed significant monies to that register, had not paid interest from sources other than borrowings earlier that year and could or would not from your own resources other than perhaps the sale of assets pay that interest. The jury has accepted that it was also in circumstances where all parties knew that Dodge was experiencing financial difficulties and was unlikely to be able to repay monies he had borrowed. Again the jury by its verdict has accepted that the conduct of both of you was dishonest and that you were aware you were putting investors funds at risk.
It cannot be said that you Mr McCulloch made any personal financial gain from the transactions covered by these counts although, as a consequence of count 7, you Mr Baron certainly did because your interest was paid.
…
Counts 2 and 7 on the indictment involved lending of investors funds in respect of a number of properties secured by mortgages over those properties. The borrowers, in this case you Mr Baron and Dodge, defaulted in respect of those mortgages. It cannot be said with certainty those eventual defaults were a direct consequence of the particular crimes of which you have each been found guilty. However given the evidence about the financial positions of both Dodge and you Mr Baron at the time of the offending, I can be satisfied the particular crimes being dealt with were contributing factors in those defaults."
Count 9:
"PARTICULARS
THOMAS PETER BARON at Hobart in Tasmania between on or about the 1st October, 1996 and the 18th November, 1996 conspired with Haydn James Dodge to defraud the Law Society of Tasmania, by entering in respect of real property situated at Pennington Drive, Sorell an agreement whereby THOMAS PETER BARON would lend to Dessipur Pty Ltd $220,000 to purchase the said property from DAVID ALISTAIR JAMES McCULLOCH and Quentin John McCulloch such monies to be drawn from the Lewis Driscoll & Bull Mortgage Register (the Register) to be secured by first mortgage over the said property, knowing that Dessipur Pty Ltd was created for the purpose of hiding the real and true identity of the borrower, namely, Haydn James Dodge thereby deflecting the Law Society of Tasmania from carrying out its functions and powers under the Legal Profession Act 1993 with respect to supervision of the Register."
Comments on Passing Sentence:
"As to count 9 this involved you Mr Baron and Haydn Dodge only. One of the functions of the Law Society of Tasmania was to supervise the operation of solicitors mortgage funds. It had an employee called a trust account inspector who went into firms and inspected not only their trust accounts but also the records they maintained if they had a mortgage register. That inspector reported to the Law Society and pursuant to the Legal Profession Act 1993 the society had certain powers to deal with issues arising in respect of such funds. The inspector at a regular inspection of the Lewis Driscoll & Bull mortgage fund had noted that there was a preponderance of lending from that fund to Dodge and associated entities. By its verdict the jury has accepted that you Mr Baron and Dodge agreed to set up Dessipur Pty Ltd and lend money to it as opposed to Mr Dodge for the purpose of hiding Dodge's involvement in a transaction and thus deflecting the Law Society from properly assessing the operations of the Lewis Driscoll & Bull mortgage fund.
The lending was at a time when the company, save for the property it purchased, had no other assets or income, its only director had only modest means and its only shareholder was already deeply in debt to the particular mortgage fund. The jury has accepted by its verdict that you had to have been aware of a risk to the interests of investors in your mortgage fund."
Mr Baron has appealed against his convictions. These reasons deal with a ground of appeal that "the trial miscarried because the learned trial judge erred in failing to disqualify herself when the circumstances were such as to establish an apprehension of bias".
On 4 September 2007, the day the trial of Mr Baron and Mr McCulloch was to commence, counsel for Mr Baron applied to the learned trial judge to disqualify herself from conducting the trial because of a reasonable apprehension of her bias. After hearing evidence and submissions, her Honour gave detailed reasons for rejecting that application.
It is well established by a series of decisions of the High Court that the test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide", Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, par11.
The application of the apprehension of bias principle requires two steps:
"First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge … has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." Ebner v Official Trustee (2000) 205 CLR 337 at 345, par8.
Whilst it is significant that the role of a judge on a jury trial is limited, the fact that a trial is by jury does not dispose of a claim of apprehended bias, R v Kearns [2003] NSWCCA 367, Spigeleman CJ, Dunford and Hiddon JJ, par34. However, where the trial under consideration is by jury, it is important to focus on the role of the judge in the particular trial and the questions, if any, that the judge may be required to decide. Whilst in some cases the basis for the asserted apprehension of bias could be so overwhelming as to call into question the judge having any role in the trial process, this was not such a case.
In gauging the hypothetical reasonable observer's views about the asserted interest of the judge and any connection between that interest and an apprehension that the judge might fail in some way to conduct the trial on its merits, considerable assistance can be obtained from the way in which counsel for the party asserting bias puts that case. It is reasonable to assume that counsel for that party will have scrutinised everything that might provide some basis for asserting bias with far more rigour than might be expected of the hypothetical reasonable lay observer.
As to the apprehended bias of the learned trial judge, Mr Baron's appeal counsel listed in his written submissions the following "salient" matters he had extracted from that which was put before her Honour.
·When in private practice as a legal practitioner, for a period of approximately seven months, between 4 December 1997 and 1 July 1998, her Honour acted for Mr Baron's then wife, Paula Baron, against Mr Baron in a family law dispute. Mr Baron, as a practitioner, acted for himself, and there was correspondence between him and her Honour.
·During the course of that correspondence there was some criticism of Mr Baron by her Honour and there were several exchanges disclosing Mr Baron's precarious financial circumstances.
·The indictment covers a period from on or about 16 March 1994 until 28 November 1997 and there is a great deal of evidence, including exhibits, contained in the Crown papers relating to Mr Baron's financial situation.
·The Crown papers included two statutory declarations from Mrs Baron which, inter alia, deposed to the fact that she had very little involvement with her husband's financial affairs during the period of the indictment, although they seem to have been fairly precarious.
·Her Honour appears to have had very limited recollection of the family law matter.
·One of the issues upon the trial, according to the Crown papers, was the capacity of Mr Baron to meet mortgage payments as and when they fell due and her Honour, when acting for Mrs Baron, was provided with information as to Mr Baron's financial circumstances and his ability to make payments immediately after the period covered by the indictment.
An affidavit sworn by Mr Baron was read before the learned trial judge. To that affidavit Mr Baron annexed copies of his correspondence with the trial judge during the period that she acted for Mrs Baron. As to the bulk of that correspondence, Mr Baron's trial counsel acknowledged that it was not of any significance, save for establishing the period during which her Honour acted for Mrs Baron, showing that her Honour had a less than complete appreciation of the financial problems that beset the marriage of Mr and Mrs Baron, and showing that her Honour had some understanding of the way in which the financial affairs of that marriage had been conducted and managed. Trial counsel, in substance, expressed concern that one of the issues on the trial was the capacity of MrBaron to meet mortgage payments as and when they fell due in 1997, and that Mr Baron had provided her Honour with some information that related to that issue. Trial counsel made specific reference to the following portions of the correspondence:
·A letter written to Mr Baron by her Honour dated 4 December 1997, that began:
"I have now received instructions to act for your wife.
I have to hand copies of
(a)Mrs Tilley's letter to you of the 19th November, 1997, and
(b)your reply to her.
While your reply to her may have achieved delay, it clearly did not in any constructive way advance this matter. You and your wife have now been physically separated since at least July of this year. There is no doubt that in the circumstances she is entitled to take steps to sever her financial ties with you."
Trial counsel submitted that in the first sentence of the third paragraph above her Honour mildly criticised Mr Baron.
·The penultimate paragraph of a letter written by her Honour to Mr Baron dated 18 February 1998, which was:
"In any event, you have still failed despite requests to make any attempt to clarify the overall financial position. While my client believes it is probably bad, your lack of cooperation prevents her from knowing the precise details. In those circumstances, she can have no idea what benefit there may be in selling the few items she has and paying the proceeds to creditors. Again you have not sought to particularise what creditors nor what steps you are taking from your personal resources to meet debts."
Trial counsel submitted that in this passage her Honour was criticising Mr Baron but added, "I don't say it's an unfair criticism."
In the following submissions to the learned trial judge, Mr Baron's trial counsel summarised the effect of the information that had been put before her Honour:
"So in my submission the material demonstrates that your Honour had carriage of the affairs of the accused's former wife in the family law jurisdiction from some time either late or early in December of 1997 to July the following year, some six months, during the course of which your Honour and the accused, Mr Baron, engaged in correspondence relevant to his financial circumstances and that of his wife, that as part of that process your Honour and Mr Baron exchanged information but more correctly he provided it to your Honour in some form relating to some of the properties which are the subject of this indictment and he had things to say to your Honour during that period relevant to his capacity in a financial sense generally and in particular in respect of his ability to meet mortgage payments as and when they fell due and in relation to his capacity to meet land tax and other fees and charges associated with the ownership of property, some of which are relevant to this indictment.
Clearly your Honour would have taken instructions from Mrs Baron during the course of that six months or so, some of which of course is evidenced by some of the letters which your Honour wrote to Mr Baron. Clearly there is at least the possibility that your Honour was supplied with information by Mrs Baron over and above that which is recorded in the letters, that's because there may have been no need for your Honour to reveal your hand as the practitioner for Mrs Baron at that stage as to any of those issues. But clearly the possibility exists, it's a reasonable inference to draw that your Honour was supplied with information by Mrs Baron relevant to the financial circumstances of the parties and relevant to Mr Baron's financial situation at that time."
"[A]s part of the responsibility of being legal practitioner for his former wife your Honour was made privy to financial information by this accused that is relevant to the issues in this indictment. That it's a reasonable inference to draw that your Honour was also made privy to financial information by your Honour's then client which is relevant to those issues the nature and extent of which is not known and cannot be known to the accused Mr Baron. It is an historical fact, and it's not a criticism that your Honour was moved to gently chastise the accused for what your Honour perceived, no doubt correctly, as being less than fulsome cooperation on his part in providing your Honour with information in connection with those Family Law proceedings."
Trial counsel also referred to the fact that the Crown papers included statements from Mrs Baron which indicated that she was to be called to give evidence of her knowledge of the financial circumstances as between her and Mr Baron at a time when the trial judge was acting for Mrs Baron.
As to the logical connection between the above matters and the apprehension that the trial judge might deviate from conducting the trial on its merits, trial counsel submitted to her Honour:
"It becomes the position, unless something is done about it before, that in the event that the jury does convict Mr Baron in that event your Honour will be called upon to sentence him and your Honour will therefore be, if that occurs, in the position of sentencing the husband of a wife for whom you acted in connection with crimes that arose out of some dealings with property about which your Honour was privy to information in your capacity as his wife's legal practitioner. It will also be the position that during the course of the trial if, and I attach less significance to this but it is still an important matter, that the Crown propose to call Mrs Baron. Your Honour will be listening to an account given in a witness box by someone about whom your Honour may or may not feel constrained to make a comment to the jury where your Honour has had a former professional relationship of solicitor/client and may have heard in connection with that the same version of events about which the witness gives evidence of a different version of events about which the witness gives evidence and your Honour can't be in a position where your Honour says, ‘Well now, stop, you can't say that to me because back in 1997, 1998 you told me in private this'. It's an impossible position for your Honour to be in, in my submission, if her evidence becomes a matter of importance about which comments need to be made to the jury about how they should assess the weight and significance of that evidence."
Counsel for Mr Baron on this appeal submits that in addition to the above matters, many critical decisions during the course of the trial, including decisions as to the admissibility of evidence and a ruling on a submission of no case to answer, might have been affected by the trial judge's past interest in the matrimonial affairs of Mr and Mrs Baron.
When determining whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial and unprejudiced mind to that which the judge is required to address, it is to be remembered that:
"The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'." Johnson v Johnson (supra) par12.
A number of authorities have emphasised that when dealing with applications for disqualification for bias, a judicial officer should not accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek disqualifications without sufficient justification, for reasons such as the strategic advantage of interrupting lengthy proceedings, Re J R L; Ex parte C J L (1986) 161 CLR 342 at 352, and Johnson v Johnson (supra), par45. "[I]t would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party to do so on the grounds of a possible appearance of pre-judgment or bias … ", Livesey v NSW Bar Association (1983) 151 CLR 288, at 294.
In Bienstein v Bienstein (2003) 195 ALR 225, McHugh, Kirby and Callinan JJ, at par33, said the following in relation to an assertion of a reasonable apprehension of bias arising from a judge's personal relationship with a party or interested person:
"Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corporation Pty Ltd, this Court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise. Similarly, ordinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge."
Nothing in the information put before the trial judge or this Court, suggests that her Honour had a substantial personal relationship with Mrs Baron, or an adverse personal relationship with Mr Baron of any substance. With the decisions in McCreed v R (2003) 141 A Crim R 417 and Muldoon v R; Carter v R [2008] NSWCCA 315 in mind, appeal counsel for Mr Baron attached particular significance to the fact that the matter as to which her Honour, when a lawyer, acted against Mr Baron, involved the break-up of his marriage. Those decisions are authority that a judicial officer did not err, on the facts of those particular cases, in refusing to disqualify himself from presiding over the criminal trial of a person who the judicial officer, when a barrister, had prosecuted for a crime. Counsel distinguished those cases on the basis of the obvious difference between matrimonial proceedings and a criminal prosecution and the proposition that the tension associated with the break-up of a marriage is so great that a judicial officer who, when a lawyer, has acted for a party to matrimonial proceedings should be disqualified from presiding over a criminal prosecution of that party's spouse. I reject this proposition. Whilst the nature of the matter in relation to which the judicial officer, in a former role, had an involvement with the party to be tried is relevant to apprehended bias, it is not decisive. It is but one of the considerations to be taken into account in determining whether a fair-minded lay observer might apprehend bias in the circumstances of the particular case. In this case, her Honour's exchange of correspondence with Mr Baron occurred before the institution of proceedings between Mr and Mrs Baron. Whilst matrimonial break-ups can generate significant animosity, and that animosity can, in some instances, spill over to a legal representative of a party, there is no suggestion that the Barons' was such a break-up. What emerges from the correspondence between her Honour and Mr Baron is that at that time the level of acrimony involved in the break-up was comparatively modest compared with that involved in many marital break-ups. There is no prospect that a fair-minded lay observer might reasonably apprehend that by reason of her Honour's comparatively inconsequential involvement with Mr and Mrs Baron's matrimonial dispute nine years prior to Mr Baron's trial, her Honour might not bring an impartial and unprejudiced mind to all that was required of her in the conduct of Mr Baron's trial.
Turning to the matters specifically adverted to by Mr Baron's trial counsel, the first matter raised was that if Mr Baron was convicted, her Honour could be in the position of sentencing the husband of a wife for whom her Honour had acted in connection with crimes that arose out of a dealing with property, about which her Honour was privy to information in her capacity as the wife's legal practitioner. Even if this was so, it is simply not possible to conjure up any reason why it might give rise to a reasonable apprehension of bias. The conspiracies that were the basis of the charges faced by Mr Baron were centred on loans secured against real property. That any loan may have related to a property dealing of which her Honour had some knowledge is of no consequence whatsoever. A judge who conducts a criminal trial that results in a conviction is almost invariably aware of information adverse to the defendant which must be disregarded for sentencing purposes. The potential sources for the information are many and varied and include: bail hearings, voir dire hearings as to prejudicial evidence and the like, uncalled evidence in the Crown papers, evidence referable to counts on which the defendant was acquitted, and information about pending charges. It is well accepted that sentencing judges must and do disregard information of this nature that is not before the judge for sentencing purposes. As to this, see R v George (1987) 9 NSWLR 527, at 536. The sort of information that might have been provided to her Honour when acting for Mrs Baron pales into insignificance when compared with the sort of adverse information a sentencing judge must commonly disregard when sentencing an offender.
The second matter raised by Mr Baron's trial counsel was that if Mrs Baron gave evidence which differed from something she may have told her Honour in the course of their professional relationship, then her Honour could not interfere to stop Mrs Baron and say that back in 1997 Mrs Baron told her something different. That this possibility could arise is, to say the least, far fetched. In any event, the gravaman of the concern is one that is commonly confronted by a trial judge, albeit not in relation to something said to the trial judge by a witness some years previously, but in relation to a statement of the witness that is in the Crown papers before the judge. When that occurs, judges have no difficulty in refraining from pointing out to the witness that the evidence that he or she has given is different from that which appears in the witness's statement. Even if this was of concern, it has no relevance to the question of bias. It does not go to the resolution of any question that her Honour was required to decide, or any action that her Honour was required to undertake in the conduct of the trial. There is no substance in the suggestion that because of this possibility her Honour was put in an impossible situation if Mrs Baron's evidence about the parties' financial circumstances became of importance and it became necessary for her Honour to comment to the jury on how they should assess its weight and significance. It is not unusual for a judge to be aware of statements or other information referable to a witness, that is contradicted by the evidence given by that witness. This does not present the judge with any difficulty when directing the jury on how they should assess that person's evidence.
When acting for Mrs Baron, her Honour was provided with information in relation to Mr and Mrs Baron's financial circumstances which bore on Mr Baron's inability to meet loan liabilities as they fell due during the period covered by the indictment. I am, however, unable to see how her Honour's knowledge of this information might have caused a fair-minded lay observer to reasonably apprehend bias on her part even if Mr Baron's capacity to meet those liabilities had been in serious issue on his trial. As it was, Mr Baron's capacity to meet his loan liabilities was not in serious issue. Prior to the trial, agreement had been reached on a statement of facts, together with copy exhibits to be put before the jury that ran to in excess of 800 pages. The agreed facts concerned the various and numerous transactions that were the subject of the indictment. Appeal counsel for Mr Baron acknowledged that it was clear from the agreed facts that Mr Baron was unable to meet his loan liabilities as they fell due.
Appeal counsel for Mr Baron submitted that critical decisions during the course of the trial, including decisions as to the admissibility of evidence and a ruling on a submission of no case to answer, might have been affected by the trial judge's past involvement with Mr and Mrs Baron. Counsel did not however provide any persuasive reason why that involvement or any information that her Honour might have recalled arising from it might have impacted on those decisions and that ruling. I am unable to see how they could have. I conclude that there is no prospect that a fair-minded lay observer might reasonably have apprehended that her Honour might not bring an impartial and unprejudiced mind to her conduct of Mr Baron's trial.
Her Honour did not err in rejecting the application that she disqualify herself from conducting the trial because of apprehended bias.
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