Bayley North (a pseudonym)[1] v Director of Public Prosecutions (Cth)
[2020] VSCA 1
•14 January 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0247
| BAYLEY NORTH (a pseudonym)[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 January 2020 |
| DATE OF ORDERS: | 9 January 2020 |
| DATE OF REASONS: | 14 January 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 1 |
| RULINGS APPEALED FROM: | DPP (Cth) v [North] (Unreported, County Court of Victoria, Judge Tinney, 13 and 19 December 2019) |
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CRIMINAL LAW – Interlocutory Appeal – Apprehended bias – Pending trial of applicant for drug importation, manufacturing, trafficking and possession offences – Co-offender pleaded guilty to related offending and sentenced by trial judge – Trial judge refused application for recusal based on judge’s remarks in pre-trial discussion and when sentencing co-offender – Whether reasonable apprehension of bias arising from judge’s remarks – Trial judge refused to certify – Interests of justice – Application to review refusal to certify refused – Johnson v Johnson (2000) 201 CLR 488 applied; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gild v The Queen [2017] VSCA 367 and Guariglia v The Queen (2010) 208 A Crim R 49 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Nathwani and Ms C M Lloyd | Stephen Andrianakis & Associates |
| For the Respondent | Mr B Young QC with Mr N Modrzewski | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
PRIEST JA
WEINBERG JA:
Introduction
The applicant faces trial in the County Court on an indictment charging him with engaging in the business of importing a commercial quantity of a border controlled drug[2] (two charges — charges 1 and 2); manufacturing a marketable quantity of a controlled drug[3] (one charge — charge 3); engaging in the business of trafficking a marketable quantity of a border controlled drug[4] (one charge — charge 4); possessing a controlled drug[5] (one charge — charge 5); and failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth)[6] (one charge — charge 6). For the purposes of charges 1 to 5, the relevant drug is 3,4‑Methylenedioxymethamphetamine (‘MDMA’ or ‘ecstasy’).
[2]Criminal Code (Cth), ss 307.1(1) and 311.4.
[3]Criminal Code (Cth), ss 11.2A and 305.4(1).
[4]Criminal Code (Cth), ss 302.3(1) and 311.2.
[5]Criminal Code (Cth), s 308.1(1).
[6]Crimes Act 1914 (Cth), s 3LA(5).
Importantly, ‘OR’, who was the applicant’s alleged co-offender on charges 2 and 3, pleaded guilty in the County Court to five Commonwealth charges, including importing a commercial quantity of a border controlled drug, trafficking in a marketable quantity of a controlled drug, attempting to manufacture a controlled drug, possession of a controlled drug and failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth); and one State charge of possessing an unregistered handgun. On 7 October 2019, the same judge who is to preside over the applicant’s pending trial sentenced OR to a notional total effective sentence of nine years and eight months’ imprisonment, with a non‑parole period of four years and 10 months.
Relying on comments concerning the strength of the prosecution case against the applicant made by the judge in the course of pre-trial discussion, and upon a number of remarks made by his Honour when sentencing OR — the nature of which we will return to — on 13 December 2019 the applicant’s counsel made an application to the judge that he disqualify himself from presiding over the applicant’s trial by reason of apprehended bias. The judge refused that application on 13 December 2019 (‘the interlocutory decision’ or ‘the ruling’); and, on 19 December 2019, refused to certify under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’).
In this Court, by Notices dated 19 December 2019, the applicant sought, first, a review of the judge’s refusal to certify under s 295(3) (on a ground which claims that his Honour ‘erred by refusing the application for certification made on 19 December 2019’); and, secondly, leave to appeal against the interlocutory decision (on a ground which asserts that the judge ‘erred in the exercise of his discretion by refusing the application for recusal on the grounds of apprehended bias’).
As will appear, we considered each of the judge’s rulings to be plainly correct. There was no occasion for the judge to certify under s 295(3). On 9 January 2020, we made orders that the application to review the judge’s refusal to certify will therefore be refused. In those circumstances, leave to appeal against the interlocutory decision cannot be granted. Our reasons follow.
The applicant’s charges
It is unnecessary to say much in detail about the factual background. The following will be sufficient to provide the context in which the claim of apprehended bias arose.
In essence, the prosecution case is that between 2013 and 2016 the applicant was involved in the business of importing, selling and manufacturing MDMA. Among other things, these alleged activities involved use by the applicant of the pseudonym ‘Chris Burke’, the email address [email protected] and computer user names such as ‘Fkanga’ and ‘NVSD’ when conducting business via market places on the ‘dark web’, which contains encrypted online content that is not indexed by conventional search engines. The applicant also conducted business via electronic encrypted messaging applications such as ‘Wickr’. It is alleged that on two occasions in 2015, the applicant imported a commercial quantity of MDMA into Australia, assisted by ‘WJ’ in Perth (charge 1) and OR in Melbourne (charge 2). The prosecution alleges that each importation involved the same methodology; that is, obtaining the MDMA from Europe, and sending numerous envelopes each containing relatively small amounts of MDMA powder (about 28 grams, or one ounce). Generally, the envelopes were sent from Europe to the United Kingdom and then forwarded to leased private mail box collection points in Perth and Melbourne, this technique being known as the ‘scattergun’ approach. The prosecution contends that the use of an ordinary envelope reduced the risk of detection, and the individual modest value of the contents of each envelope minimised the extent of any financial loss if some envelopes were intercepted.
The prosecution also alleges that, on a number of occasions in 2016, the applicant sold a marketable quantity of MDMA to an Australian Federal Police officer using an online covert persona via a market place on the dark web known as ‘Alpha Bay’ and also through Wickr (charge 4).
Further, the prosecution alleges that, in furtherance of an agreement with OR, the applicant manufactured a marketable quantity of MDMA (charge 3), the manufacture including the pressing of MDMA powder into pills which bore a kangaroo stamped impression very similar to the Qantas Airways logo (hence the business name ‘Flying Kangaroo’). When the applicant’s house was searched in November 2016, so the prosecution contends, the applicant was found in possession of a small number of the Flying Kangaroo MDMA pills (charge 5). Moreover, it is alleged that when the applicant was arrested on 23 November 2016, he failed to comply with an order under section 3LA(2) of the Crimes Act 1914 (Cth) in that he refused, when requested, to provide information (passwords) which would enable investigators to access data stored on a computer and data storage devices located at his home (charge 6).
The course of proceedings in the County Court
As we have noted, the applicant was arrested on 23 November 2016. A contested committal was conducted on 20 and 21 September 2017. At an initial directions hearing in the County Court on 22 September 2017, a judge directed the prosecution to file the summary of the prosecution opening by 8 December 2017.[7] After a further mention on 16 February 2018, the applicant’s and OR’s joint trial was listed for hearing on 7 May 2018. As it transpired, however, despite earlier orders, the original prosecution opening was not filed until 9 April 2018 (or thereabouts). In the meantime, following plea negotiations, OR pleaded guilty on 21 December 2017 to the six charges earlier referred to.[8]
[7]See CPA, s 182.
[8]See [2] above.
On the day fixed for trial, 7 May 2018, the prosecution indicated that an adjournment was sought in order to obtain material from the United States Federal Bureau of Investigation. On 8 May 2018, the judge adjourned the trial to 4 February 2019. Due to his Honour’s illness, however, the trial could not proceed on that day, and the matter was adjourned by another judge for mention on 25 February 2019.
When the matter was mentioned on 25 February 2019, senior counsel who had, in the meantime, been briefed to prosecute told the judge that a new summary of the prosecution opening — apparently made necessary by a ‘a host of material’ obtained since the initial opening had been prepared — ‘will take probably a minimum of three further weeks to prepare’. After discussion, the judge ordered that the prosecution opening for the applicant’s trial be filed by 22 March 2019 (and that the ‘plea opening’ in OR’s case be served by 5 April 2019). His Honour then adjourned the applicant’s (and OR’s) matters to 5 April 2019 for mention.
At the mention on 5 April 2019, senior counsel for the prosecution informed the judge that, notwithstanding the directions that had been given, he had not been able to complete the new prosecution opening (or, indeed, the plea opening in OR’s case). Following discussion, the judge adjourned the matter for further mention on 2 May 2019.
By the time the matter was again mentioned on 2 May 2019, two (junior) counsel had been briefed to appear on behalf of the applicant. That day, senior counsel for the prosecution indicated that the Commonwealth Director of Public Prosecutions intended to amend the applicant’s indictment to expand the dates of the alleged offence in the first charge. Counsel for the applicant informed the judge that there were ‘numerous’ pre-trial evidentiary (and other) arguments that it was desired to advance, including a submission that the prosecution should not be permitted to file a further indictment (that submission being based on s 163(1)(a) of the CPA, and also s 25(2)(c) of the Charter ofHuman Rights and Responsibilities Act 2006). The judge then adjourned the matter to 7 October 2019, on which date he sentenced OR. His Honour considered that although, in an ideal world, he would defer sentencing OR until after the applicant’s trial had concluded, there had been sufficient, indeed inordinate, delay in finalising OR’s case.
Significantly, on 8 October 2019, leading junior counsel for the applicant — who had long held the applicant’s brief — announced that he was gravely ill and applied for an adjournment of the trial so that other counsel might be engaged to replace him. As a result, the judge adjourned the proceedings for mention to 8 November 2019.
Thereafter, on 22 November 2019, the more junior of the applicant’s two counsel announced that new (junior) counsel had been briefed to lead her. She also informed the judge that, having reviewed the sentencing remarks with respect to OR, new counsel was of the view ‘that we ought to make application for [the trial judge to] recuse [him]self on the basis of apprehended bias’. She told the judge that new counsel’s view was that the judge ‘may have stepped over a certain line in terms of categorising [the applicant] and there has been a lot of commentary about him and his role and those are matters that are still in issue as per our defence response’. The judge then adjourned the matter to 13 December 2019.
On that day, counsel for the applicant made an ‘application that [his] Honour recuse [him]self from any further considerations [sic] in relation to the trial’.
The application for recusal in the County Court
As previously mentioned, in his application to the judge, counsel for the applicant relied on two broad categories of matters which, so it was contended, established apprehended bias. The first concerned comments made by the judge regarding the strength of the prosecution case. The second concerned statements made by his Honour in the course of sentencing OR, which were directed to the applicant’s role and involvement in the relevant criminal enterprise.
Counsel for the applicant submitted that a judge in a criminal trial may be required to make discretionary decisions, may subtly influence the jury and must ultimately determine the sentence if the accused is found guilty.[9] It was submitted that a judge’s conduct in pre-trial hearings, including, for example, bail hearings, might give rise to an apprehension of bias where the judge’s comments or actions indicated that he or she had lost impartiality or objectivity.[10] The applicant’s counsel submitted that, while it might generally be accepted that a judge making a finding of fact in relation to one accused is not recused from trying the co-accused because of apprehended bias, in the present case the judge had gone beyond what was required in finding facts when sentencing OR, to the extent that a fair-minded observer would apprehend that the court would not bring an impartial mind to the resolution of the applicant’s case.
[9]Counsel cited R v Goussis [2007] VSC 171 (King J); R v Balic (No 2) (1994) 75 A Crim R 515 (Handley, Sheller and Cole JJA); and Rozenes v Judge Kelly [1996] 1 VR 320 (Tadgell and Callaway JJA and Crockett AJA).
[10]Counsel cited GP v The Queen (2010) 27 VR 632 (Ashley and Bongiorno JJA and Hansen AJA).
The following emphasised remarks in OR’s sentencing reasons were said to establish apprehended bias:[11]
[11]We have endeavoured to set out the particular statements relied upon in the context in which they appear. Emphasis added.
·[OR’s counsel] made submissions as to your role. There really was no disagreement as to your role. You took on a lot of the day to day acts which were needed to complete the various criminal acts. You were plainly subservient, to a degree, to [the applicant], who was clearly the driving force. He was the ideas man, the architect of this complex scheme; you were the doer. …
·Would you have orchestrated this style of conduct without [the applicant]? I am certain that you would not have. It would have been, really, beyond your contemplation. Could he execute his business plan without someone like you prepared to take on the public face when it was required? Well, he could not have. You matched each other’s needs perfectly. You each had critical roles and you were certainly not some low level player.
·You have pleaded guilty and done so, as I have said at an early stage, and a guilty plea is often, but not always, indicative of some remorse. Here it was a, undoubtedly, a strong Crown case.
·… the report [of a psychologist] is still of use. It sets out your background in detail, as well as your level of functioning, and really the way it is relied upon is in disclosing your level of functioning, your use of drugs at the time, and your style of personality that fitted in so neatly with [the applicant]. As [OR’s counsel] submitted, there were aspects of your personality spoken of by [the psychologist] that made you a perfect fit for [the applicant]; compliant to a more dominant personality, susceptible to influences and a rigid thinker. The report also touches upon your prospects of rehabilitation. I take the report into account in your favour in the ways argued by your counsel …
·You will have substantial further time in custody to reflect on your serious crimes. You were obviously living a very strange life in 2015 and 2016. Maybe you felt invincible in those years and took comfort from the sophisticated and complex structures set up by [the applicant]. But the blow then fell.
·As was conceded, in all of this offending, you had an active and critical role. You knew what drugs were being imported and you must have had some sense of the quantities, though not necessarily the commercial quantity. Plainly, [the applicant] was the architect of the scheme. You were not the planner. You were the visible face, taking risks, but unlike some who take risks, I do not think there is any suggestion you were the lesser partner financially. You were a high level trusted player here.
·This was a highly complicated scheme and deliberately so to reduce the risk of apprehension. You were not the architect of the scheme, but you knew of it. Your acts were under cover of that structure, and there were many acts. You were acting in criminal partnership with [the applicant], who was the architect.
·The trafficking was as an organised criminal business. Again, your efforts were hands on. [The applicant] was the marketer and planner, you ran despatch, if you will. …
·I must and I do pay regard to the principle of totality of sentence. I accept that there must be some moderation here. However, these were different offences with differing elements. It was a business you were in with [the applicant], and so I accept that there is that connection or commonality between the offending.
Counsel for the applicant submitted that, taking the sentencing remarks as a whole, they give rise to a reasonable apprehension of bias in the mind of a fair‑minded lay observer. The remarks went beyond what was necessary to sentence OR, and ‘repeated, reinforced and highlighted a number of matters’ challenged by the applicant. It was submitted that the judge found clearly that the applicant ‘was the driving force of the conspiracy’. The day after OR’s sentence was delivered, the judge was to embark on pre-trial arguments in the applicant’s case, so that a fair‑minded lay observer might apprehend that consideration of those arguments might be attended by bias.
Further, counsel for the applicant submitted that the relevant sentencing remarks should ‘be seen in the context of remarks made by [the judge] during various pre-trial hearings, including when the pre-trial issues were set out by counsel then representing [the applicant]’. Two passages, in particular, were relied upon.
The first set of remarks said to establish apprehended bias was made during the following exchange between his Honour and the applicant’s former counsel on 7 May 2018, when the prosecution applied to adjourn the applicant’s trial:[12]
[12]See [11] above. Emphasis added.
HIS HONOUR: There’s some pretty strong words uttered by Judge Mullaly on 16 February in terms of the weight of the evidence. Anyway, you were there, you were present, your client was present.
All right, I think at this stage then I’ll adjourn the matter off until tomorrow at least, and we’ll see where we go off from there. I mean there is a body of evidence as I understand it available to the Crown from your client’s own phone suggesting at least the use of this particular name, isn’t there?
[APPLICANT’S COUNSEL]: We don’t accept that characterisation of it, Your Honour.
HIS HONOUR: Yes.
[APPLICANT’S COUNSEL]: There’s certainly evidence on my client’s phone that the time he was arrested there were five messages received through the Wickr platform.
HIS HONOUR: Yes.
[APPLICANT’S COUNSEL]: But that’s the extent of the evidence and the Crown would be requiring a jury to arrive at a number of inferences.
HIS HONOUR: Yes, well you’ve been around long enough to know that a jury is not invited to look at a single circumstance.
[APPLICANT’S COUNSEL]: Oh no, we understand that.
HIS HONOUR: They’re invited to look at the weight of the circumstantial evidence placed before them. All of the evidence.
[APPLICANT’S COUNSEL] We understand that.
HIS HONOUR: Circumstantial and direct. Anyway, there are limits to what I can say but as I say you’ve been around long enough to know the realities.
Secondly, counsel for the applicant also relied on the following exchange on 2 May 2019, when various proposed pre-trial arguments were being outlined:[13]
[13]See [14] above.
HIS HONOUR: Well, you need to, and so does your client. You need to actually grapple with some of this. I mean, you’ve got a shopping list of about 15 different matters, and obviously, I’ll hear all of these things.[[14]] But have you actually sat down with your client and gone through this new version,[[15]] it seems that you have. Have you done so carefully and spelt out the – some of the benefits that can accrue to him?
[14]This is a reference to proposed pre-trial arguments concerning the admissibility of evidence (and other matters).
[15]This is a reference to the new prosecution opening, which, at that stage, ran for some 230 pages, together with some 22 appendices, a number of which were lengthy.
[APPLICANT’S COUNSEL]: He understands his position, Your Honour, and his instructions are clear.
HIS HONOUR: All right.
[APPLICANT’S COUNSEL]: If that changes, we’ll obviously update the court. If that changes, we’ve obviously update the court. But right now, I’m proceeding based on the instructions.
HIS HONOUR: Well, there have been matters raised by I think every judge who has come across this matter, and I’ll raise it for the final time, and I have. I’m not going to persist beyond it. But the reality is you look at the nature of the case against him, you’re dealing with some aspects that you’re dealing with and obviously some of those are subject to applications to exclude. As I look at it, there’s the phone, there’s the computer, there’s the cash, there’s the Bitcoin there, the tracking numbers of the cash to the premises. There’s the relationship between the two. There’s the relationship between the premises.
I’ve sat down, I hated the idea of doing it, but I sat down last night and went through the new summary. It strikes me at least, that there’s a fairly powerful body of evidence there. Now you’re seeking to exclude much of it obviously?
…
HIS HONOUR: In terms of garnishing a significant benefit, and not just related to the chronology of where we are now. We could’ve been in this position and you probably should have been in this position a long time ago. So it wouldn’t be treated as a delayed matter. Anyway, I’m not going to mention that again, all right.
[APPLICANT’S COUNSEL]: I understand that.
Counsel submitted that, once the remarks extracted above were made, a fair‑minded, informed observer would have apprehended bias on his Honour’s part. The applicant’s counsel had been setting out in detail a number of relevant legal issues that it was intended to argue. Those arguments were still live and for the judge yet to consider. Whilst counsel was summarising those arguments, however, he was interrupted and told that the strength of the evidence was such that the applicant should be advised to plead guilty. His Honour noted that the applicant should also be advised that if he did so, the plea would not be treated as a late or delayed plea. So much was said to be ‘an inappropriate incentive’ from the judge to plead guilty. Counsel contended before this Court that a fair-minded observer would not have failed to notice that the suggestion to plead guilty was based upon a review of the evidence, much of which remained subject to challenge. Consequently, so it was submitted, ‘a fair-minded observer would conclude [that] the court might not bring an impartial view to the legal arguments based upon that evidence having concluded it was such that [the applicant] should plead guilty’.
The interlocutory decision
The judge’s ruling refusing the application for disqualification was lengthy, but the following extract conveys the gist of his Honour’s reasoning:
[T]here are different statements of the principle in all manner cases, but it really comes back to same issue really. What lies ahead of course is a jury and in that sense I am not the ultimate decision maker in the case, but that is important in considering this application of course because plainly enough if I remain as a trial judge in this case I will be required to make a number of evidentiary rulings, and of course even though not the ultimate decision maker, a trial judge can exercise some level of influence over a jury obviously enough, it should not happen but it can.
And so the fact that the jury will be making the ultimate decision, it is not [sic] the critical issue it might otherwise seem to be that those who are uninformed on the apprehension of bias must be a reasonable one and its concerned with a fair-minded lay observer and not with fanciful or unreasonable apprehensions of bias that might be posited a fair-minded observer will know that judges are required to act with integrity and impartiality and are usually well able to ignore the effect of what is referred to in some of the decisions in this area was consequential effect of decisions that have made or that have been made. So that is within the grasp of a fair-minded observer.
There is a strong presumption really in favour of a single judge dealing with various matters arising out of a single criminal enterprise. Here, of course, it is alleged I have not dissented [scil., descended] to the details of the facts and nor do I intend to. There is an allegation that [the applicant] and [OR] and others for that matter acted together but principally here, [the applicant] and [OR] acted together in committing a variety of criminal offences that are set out in the indictment that has been filed. The allegations are obviously serious of nature. There is no question about that.
They are allegations of course and it goes without saying really that at every stage until a person admits their guilt, prior to that point in time, it is no more than an allegation. That was the position back in May 2018, it was the position back in May 2019, it was the position when I sentenced [OR]. They were no longer allegations against him. They were proven offences but it remains the position in terms of [the applicant]. He is alleged to have committed a crime or crimes and the burden rests upon the prosecution to establish his guilt beyond reasonable doubt.
It is routine really for judges in this state to sentence multiple offenders at different times and to be required to sentence an offender whilst then presiding over the trial of another or others for that matter. It is really a necessary part of our system. The system would really very much break down and as judges who are coming into cases at different stages with different offenders, but all acting together by way of some criminal enterprise then have to grasp in terms of consistency of approach and the like. It is a terribly difficult predicament.
So as I say, the practice is for a single judge to deal with the various matters the subject of a criminal enterprise, be they pleas or trials. It is not set in stone though of course and there are some occasions where it is not possible for that to happen. There are some occasions where appropriately, a single judge cannot do that as a result of findings or for that matter conduct exhibited.
It is necessary though in such a setting as I have described for a judge to fulfil his sentencing obligations when pressed into that task in the case of an offender who is pleading guilty. Often enough, role is raised in that sort of setting. It almost invariably is actually. Disparity of conduct is very often raised and it is often raised of course in the absence of the other parties to the conduct.
Well a sentencing judge cannot just throw his hands in the air and decline to reach a finding. A party is before them on the plea making submissions as to role, making a submissions in a mitigatory sense, which is of course exactly what [OR] was doing at the time that he was before me by way of plea.
The obligation is to sentence that offender on the factual basis placed before the court and that will in no way influence the judgments that are made on a plea of any subsequent offender. As I have said in the course of discussions here today, it is actually not that uncommon and I think a lay observer would need to be fixed for this, level of knowledge at least. It is not that uncommon for a judge to be doing these things, do be dealing with multiple offenders and even for there to be differing factual conclusions made in relation to separate offenders. There might be an allegation made by one against the other, that might find acceptance by the sentencing judge because of course the judge is sentencing that offender. The other offender may then be before the same judge who makes an allegation against the other and may likewise satisfy his burden on the plea.
Again, that is actually not that unusual and it comes down to the ability of a judge, the necessity of the judge having the ability to do his job impartially and to make those judgments that he has to, he or she, has to make.
A lay observer, a fair-minded and reasonable lay observer will have an understanding that that sort of ability arises from the strong professional pressures and obligations to act with integrity referred to in the materials that [the applicant’s counsel] has referred me to.
Well the same applies in terms of findings on a plea relative to a role of a person who then may go to trial. Those sort of sentencing findings made as they were made in the case of [OR] stand for nought in terms of any sort of findings that might ultimately may be made in terms of [the applicant] or even as conveying any sort of suggestion as to his guilt. I am making findings in the plea of [OR], findings I am required to make in his case.
A hypothetical lay observer, as I understand the authorities, knows or is fixed with knowledge that a judge is able to and indeed expect to discard irrelevant or prejudicial or immaterial matters.
…
Now, [the applicant’s counsel] is making an application, plainly he is pointing to the combination of the matters that are referred to in [written] and indeed in his oral submissions. And at this portion of the submission, I posed the question what exactly was I meant to be doing in terms of the sentencing judge hearing the plea of [OR] and how exactly did I go beyond the matters I was required to find in relation to and then it really became perhaps an issue of the style of my sentencing remarks that I said that clearly [the applicant] was the driving force, that he was the ideas man and that I said that more than once, maybe twice or more than that.
…
The applicant’s submissions in this Court
In this Court, counsel for the applicant largely relied on the submissions that had been made to the trial judge. Counsel sought, however, to rely on two additional matters as demonstrating apprehended bias.
First, counsel drew attention to a remark made by the trial judge on 13 December 2019. Two applications were listed before his Honour that day. One was a bail variation — which was unopposed by the prosecution — and the other was the application for recusal. At the outset of the hearing, the applicant’s counsel introduced the bail variation as the easier matter to consider, eliciting the response from the judge: ‘I thought the other one [the recusal application] was the easy matter actually, but anyway, what’s your next application?’. By that stage, the trial judge had received written submissions in support of the recusal application and was aware of the matters advanced in support of it. Counsel submitted that the judge’s remark — that it was easier to consider the recusal application rather than an agreed bail variation — taken with the other matters to which we have referred, would lead a fair-minded lay observer reasonably to conclude that the judge had pre‑determined the recusal application.
Secondly, the applicant’s counsel sought to rely on the ‘procedural unfairness’ the judge supposedly demonstrated on 17 December 2019 when setting the trial date for March 2020. (The trial had previously been fixed for 8 October 2019, but, as we have mentioned, the applicant’s leading (junior) trial counsel had to withdraw because he was seriously ill.)
The applicant’s counsel submitted to the judge that the ten weeks afforded to the applicant between January and March 2020 was insufficient adequately to prepare for trial, in light of all of the additional material that the prosecution had served on the defence (and the history of the case), of which his Honour was well aware. Counsel submitted that, as far back as 4 February 2019, shortly before the proposed trial was to commence, senior counsel for the prosecution had told the judge that he was not in a position to open the case, and had asked for a further three weeks to prepare an opening. On that basis, the trial — estimated to be of six weeks’ duration — had been vacated. Later, on 25 February 2019, senior counsel for the prosecution told the judge that he still needed another four weeks to produce an opening. In response, the judge gave him six weeks. On 5 April 2019, senior counsel for the prosecution asked for yet a further ten days, blaming the size of the case, ‘which is extraordinary’. He was given a further 18 days. Thereafter, on 2 May 2019, senior counsel confirmed that he had filed a prosecution opening. That revised opening, dated 22 March 2019, with further additions post final service dated 23 April, ran for more than 230 pages, and contained reference to some 22 annexures. As previously indicated, some of these annexures were lengthy. Senior counsel flagged, however, that there would be an addendum to that opening, as further evidence had been served. Some months later, a further updated and revised prosecution opening dated 5 September 2019 was filed. That particular version of the prosecution opening ran for some 303 pages. We were told that there are now some 24 annexures, though we have not seen these.
On 13 September 2019, a second volume of notices of additional evidence was filed and served on the defence together with a further statement from the Informant numbering some 300 pages plus annexures.
We were told during oral argument that even this latest version of the prosecution opening may not be the final word on the subject. Investigations are continuing, and it may be that there will be additional notices, and some further amendments to the opening as it presently stands.
In written submissions the applicant’s counsel contended:
On each occasion, the Court acceded to the prosecution applications to adjourn to the detriment of the Applicant. The decision to list the trial in March abrogated the Applicant’s right of procedural fairness and to a fair‑minded lay observer, indicates an inequality of arms. The Crown was afforded over 4 months to prepare properly. The Judge allowed the application for more time on each occasion. The Crown had leading Senior Counsel and Junior Counsel, as well as the offices of the Commonwealth, to prepare the case. [The senior prosecutor] indicated to the Court he was working 14–18 hours a day for several months.
In giving the Applicant less than 3 months (not considering the difficulties attended with obtaining counsel who is available and prepared to undertake work over the Christmas and January period) the same procedural fairness has not been afforded as it was to the Crown.
These two additional matters, taken in tandem with the trial judge’s various remarks made in May 2018, May 2019 and October 2019 are such that a fair-minded observer would apprehend bias on the part of the trial judge towards the Applicant. On that basis, this application should succeed.
The respondent’s submissions in this Court
Many of the respondent’s submissions in this Court — quite properly — were a recapitulation of what had been put to the judge below.
The respondent submitted that, in sentencing OR, his Honour had said nothing that ‘enlivened any reasonable apprehension of bias’, the judge’s sentencing remarks being ‘entirely in accord with the acceptance of the relevant agreed case facts as supplemented by the submissions of both the Prosecution and Defence (oral and written)’. It was submitted that the judge was required to make findings regarding OR’s criminal behaviour founded upon agreed facts defining OR’s role within a long-term criminal partnership with the applicant. The respondent contended that to ‘the extent that the sentencing remarks recorded that [the applicant] was the strategically more commanding but less visible personality within that partnership, those remarks simply affirmed the agreed facts’. The judge could not be criticised for sentencing OR in accordance with the agreed facts.
As to the first of the two additional matters upon which the applicant’s counsel sought to rely,[16] the respondent submitted that when the judge’s remark as to the recusal application being ‘easy’ is looked at in its proper context, it could not constitute a ‘makeweight’. The respondent pointed out that, at the hearing on 13 December 2019, the applicant sought to vary his bail conditions. His counsel asked that the application for variation be dealt with before the recusal application; but, when the prosecution counsel pointed out that the surety was not present, the trial judge stated that this would make the matter ‘very simple’ (that is, the application could not proceed in the absence of the surety). The judge then said, ‘let’s put that easy matter on the backburner because it doesn’t seem to be that easy if you [don’t] have a surety here’. Counsel for the applicant agreed. At that point, the judge said that he ‘thought that the other one was the easy matter [but] anyway, what’s the next application?’. There was then an exchange concerned with what the judge had said on 2 May 2019,[17] which included the following:[18]
[16]See [28] above.
[17]See [24] above.
[18]Emphasis added.
HIS HONOUR: Did I set out the time tabling?
[APPLICANT’S COUNSEL]: You did.
HIS HONOUR: Did I then make it plain that there was not much point dealing with some of the [sic], in the later applications that were to be made, given that the first was one that if it succeeded would render the other ones unnecessary.
[APPLICANT’S COUNSEL]: Of course.
HIS HONOUR: Yes, so a fair minded, reasonable observer was sitting there listening to that, yes.
[APPLICANT’S COUNSEL]: Your Honour, I can understand why — these applications are never easy to make.
HIS HONOUR: No, no, no.
[APPLICANT’S COUNSEL]: I understand why Your Honour gets defensive, to a degree, about it but - - -
HIS HONOUR: Yes, yes, all right, I agree, I agree.
[APPLICANT’S COUNSEL]: I understand that and I said I fully understand as an experienced member of the Bar that these are not easy for any party to have to make or deal with from - - -
HIS HONOUR: Yes. Yes.
[APPLICANT’S COUNSEL]: And I understand we are or I am criticising Your Honour, I accept that and I understand it.
HIS HONOUR: Yes.
[APPLICANT’S COUNSEL]: But I am entitled to make the application.
HIS HONOUR: Of course you are, yes.
[APPLICANT’S COUNSEL]: And I know Your Honour said from the outset that this would be the easier application to make or deal with but I’ll put that to a side - - -
The respondent submitted that the passage immediately above demonstrated that the applicant’s counsel was uncertain as to whether the judge was referring to the recusal application being the ‘easier’ for counsel to make or for the judge to deal with. In those circumstances the judge’s remark added no weight to the recusal application.
With respect to the second additional matter that the applicant sought to rely upon, the respondent submitted that the trial judge had clearly articulated the practical reason for listing the trial in mid-March 2020. No judges being available, the County Court would have no capacity to hear a long trial in May, when the applicant’s counsel would prefer the trial to be held. The respondent submitted that the applicant could not dictate the trial date based on the delayed availability of his chosen counsel, the applicant’s present counsel having been briefed after the trial judge had foreshadowed a trial date in March 2020. It was submitted that, save for assertions from the Bar table, the applicant had provided no evidence that there were no other competent counsel available to conduct a trial in March of this year.
Analysis
In Johnson,[19] the test for a reasonable apprehension of bias was said to be ‘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’.[20]
[19]Johnson v Johnson (2000) 201 CLR 488 (‘Johnson’).
[20]Ibid 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (‘Ebner’).
As was made clear in Ebner, the word ‘might’ in the phrase ‘might not bring an impartial and unprejudiced mind’ refers to ‘possibility (real and not remote), not probability’.[21] It was also made clear that the application of the test involves two steps:[22]
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.
[21]Ebner, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). See also AJH Lawyers v Careri (2011) 34 VR 236, 242 [20] (Warren CJ, Hansen JA and Almond AJA).
[22]Ebner, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Judges should not ‘too readily accept recusal because a party has demanded it’.[23] Moreover, in Ebner it was observed:[24]
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[23]Antoun v The Queen (2006) 224 ALR 51, 60 [34] (Kirby J), citing Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).
[24]Ebner, 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In our view, the thrust of judge’s remarks when sentencing OR was that the applicant was the ‘architect’ (or ‘marketer and planner’) of a sophisticated and complex drug business in which, although OR was ‘a high level trusted player’ who ‘ran despatch’, he was ‘compliant’ and ‘susceptible to the influence’ of the applicant’s ‘more dominant personality’.
Further, the gist of the judge’s comments on 7 May 2018 and 9 May 2019 was that the prosecution case was strong (‘in terms of the weight of the evidence’) — and had been seen to be so by another judge of the court — and was supported by a ‘body of evidence’ (or ‘a fairly powerful body of evidence’), including evidence gleaned from the applicant’s own telephone. Moreover, the judge’s reference to ‘some of the benefits that can accrue’ to the applicant was in context a clear reference to the ‘discount’ on sentence that might flow from a plea of guilty. At the same time, however, the judge observed that the applicant sought to exclude ‘much’ of the evidence — counsel had ‘a shopping list of about 15 different matters’ — and he would ‘hear all of these things’.
As is evident from Guariglia[25] and the cases there considered,[26] there may be a difference of judicial opinion in this State (and elsewhere) as to the propriety of a trial judge expressing an opinion that the prosecution case is strong and suggesting the likelihood of a sentencing discount if the accused pleads guilty, thereby avoiding the need for a trial. Nettle JA (with whom Hansen JA agreed) said that[27]
generally speaking, it is not the function of a trial judge to express views about the strength of the Crown case (except to the extent that is necessary to determine a no-case submission), still less to do so for the apparent purpose of persuading an accused of the advantages of pleading guilty. Moreover, according to long standing authority in this State, it is improper for a judge to couple the expression of such an opinion with an intimation to the accused that a plea of guilty will lead to a more lenient sentence than would be imposed on conviction following a contested trial.
[25]Guariglia v The Queen (2010) 208 A Crim R 49 (‘Guariglia’).
[26]Including R v Pinhassovitch (Unreported, Court of Criminal Appeal, Phillips CJ, Crockett and O’Bryan JJ, 7 February 1994); R v Holden [2009] VSCA 254; R v KCH (2001) 124 A Crim R 233; R v Pugh (2005) 158 A Crim R 302; R v Boyd [2000] NSWCCA 11; R v Turner [1970] 2 QB 321; and R v Goodyear [2005] 1 WLR 2532.
[27]Guariglia, 60 [36].
Guariglia was not, of course, a case of apprehended bias. Rather, it turned on whether the trial judge had exerted improper influence over the applicant to plead guilty, thereby vitiating the applicant’s convictions. The case itself concerned some very strong comments made by the judge in what was plainly understood to be an attempt to persuade the accused of the wisdom of pleading guilty in the face of a particularly strong case. Assuming for the sake of argument, however, that the views expressed by Nettle JA should be accepted as of more general application, and as correct, Guariglia stands for the proposition that it is improper for a judge to couple the expression of an opinion that the prosecution case is strong with an intimation to the accused that a plea of guilty will lead to a more lenient sentence than would be imposed on conviction following a contested trial.[28] It does not follow, however, that a trial judge’s observation that the prosecution’s case is strong, accompanied by a statement that sentencing benefits might flow from a plea of guilty, is sufficient, necessarily, to establish apprehended bias.
[28]A court may give a sentencing indication on the application of the accused. See CPA, ss 207 to 209.
Gild[29] is instructive. The applicant in that case had been charged with a large number of dishonesty offences. In the course of pre-trial argument, the judge told the applicant’s counsel that if his client were to be convicted by a jury ‘after a trial’ it was ‘highly likely’ that he would get a custodial sentence, but ‘it would not be a custodial sentence’ ‘if it weren’t a trial’. As a result of these comments, counsel asked the judge to disqualify himself for apprehended bias. The judge refused (and refused certification under s 295(3) of the CPA). In a joint judgment, Kyrou and Coghlan JJA said:[30]
In our opinion, the judge’s statement about the likely sentencing disposition in the event of the applicant maintaining his plea of not guilty is to be regretted. It was not only premature but was also expressed in excessively forceful terms. The authorities have cautioned against judges giving sentence indications to an accused prior to the accused’s plea. Apart from the risk that such an indication may be erroneous because it is given prematurely and on an uninformed basis, there is also the risk that the accused may misunderstand the nature or implications of the indication or may feel pressured into pleading guilty to offences which he or she intended to contest.[31]
At the time when the impugned statement was made, the jury had not yet been empanelled and the judge was not aware of all the evidence to be adduced. Critically, the judge knew nothing of any mitigating circumstances upon which the applicant might rely on a plea that would inform the proper exercise of the sentencing discretion. It was therefore not appropriate for the judge to say anything about whether a finding of guilt by the jury was likely — let alone highly likely — to result in a custodial sentence.
[29]Gild v The Queen [2017] VSCA 367 (Kyrou and Coghlan JJ).
[30]Ibid [28]–[29] (citation as in the original).
[31]R v Marshall [1981] VR 725, 732–5; R v Pugh (2005) 158 A Crim R 302, 340–5 [176]–[187]; Guariglia v The Queen (2010) 208 A Crim R 49, 59–61 [34]–[42], 62 [46].
Importantly, however, their Honours went on to observe[32] that
notwithstanding the above concerns and the strong language used by the judge, we are not satisfied that the principles relating to apprehended bias are engaged. A fair-minded lay observer who heard the impugned statement in the context in which it was made would not reasonably apprehend that the judge might not bring an impartial mind to the resolution of any question the judge was required to decide. This is because the judge did not say, or by his words convey, that, irrespective of what the applicant submitted on a plea, he would be sentenced to a custodial sentence if the jury returned a guilty verdict. The judge’s statement could not fairly be construed as evincing a closed mind on what the appropriate sentencing disposition would be if the applicant were found guilty. The judge’s discussion with the applicant’s counsel indicates that the judge recognised that such a disposition would have to take into account any matters relied upon by the applicant on a plea.
[32]Ibid [30].
Bearing steadily in mind that each case must turn on its own particular facts, it does appear that the trial judge’s comments in Gild were somewhat more forthright and pointed than those in the present case. Even so, they did not yield the conclusion that they demonstrated apprehended bias. Further, the factual circumstances of the present case differ from those in Gild in a number of other relevant respects. Thus, the expressed concern in this case was not that the impugned remarks might evince a closed mind on the issue of sentence, but rather that, at the time when he made the remarks, the judge was yet to consider and determine a number of arguments primarily concerned with the admissibility (and proposed exclusion) of much of the prosecution evidence. It was submitted that the remarks were an inappropriate incentive to plead guilty, in circumstances where a fair-minded observer would have noticed that the suggestion to plead guilty was based upon a review of evidence, much of which was subject to challenge. And significantly in the present case, unlike the comments in Gild, it neither appears that the judge’s observations were expressed in forceful terms, nor that they were capable of the interpretation that the failure to plead guilty would dictate that a custodial (rather than a non-custodial) sentence would be imposed upon conviction.
Of significance, it could not have escaped the attention of the hypothetical fair-minded observer of the instant case that the judge, whilst acknowledging the apparent strength of the prosecution evidence, also acknowledged that the applicant sought to exclude a deal of that evidence; and made it abundantly clear that he would hear and determine all of the evidentiary (and other matters) that he was called upon to determine. Given those circumstances, we consider that there is no possibility that a fair-minded lay observer might reasonably apprehend from the impugned remarks that the trial judge might not bring an impartial and unprejudiced mind to the resolution of the evidentiary (and other) questions that he was required to decide.
We do not overlook the applicant’s contention that the judge’s comments must not be considered in isolation, but must be considered in combination with various remarks made in the course of sentencing OR. We do not accept, however, that any of the judge’s sentencing remarks — whether considered alone or in combination with his other comments — could possibly lead a hypothetical fair‑minded lay observer reasonably to apprehend that he might not bring an impartial and unprejudiced mind to the resolution of any questions that he was required to determine.
On the issue of fact finding for the purposes of OR’s sentence, the Agreed Facts for Plea (Exhibit A on OR’s plea) contained the following:[33]
[33]Emphasis added.
13.It is alleged that [the applicant] was the more dominant and commanding personality in his criminal partnership with [OR]. [The applicant] frequently gave directions to [OR]. [OR] was frequently — though not invariably — compliant. It is alleged that both were active and willing participants in the criminal partnership — each pursuing their own different roles, for their own personal gain. To the extent that [OR] performed a number of criminal acts in furtherance of the partnership, he reported the outcomes to [the applicant]. To the extent that the profits from the partnership were ever, anywhere quantified, it would appear that the balance — after disbursements — was to be equally split between [the applicant] and [OR].
…
15. It is alleged that [OR] was principally engaged in the visible, hands-on implementation of the business. If a head had to appear in Victoria, if hands had to be applied a task, it was [OR’s]. These acts were at first the initiative of [the applicant] and this thereafter became the accepted and repeated routine. …
16. It is the prosecution case that the extensive history of communications exchanged between [the applicant] and [OR] (in their own names) establishes [the applicant] as being the frequently commanding and controlling personality in their relationship.
Further, the written Prosecution Sentence Submissions produced for the purposes of OR’s plea hearing directed the judge’s attention to s 16A(2) of the Crimes Act 1914 (Cth), and to Olbrich,[34] Storey[35] and Weininger.[36] When describing OR’s role it was submitted (among other things):[37]
39.[OR] acted in criminal combination and often in compliance with the instructions of [the applicant]. ...
40.While [the applicant] is revealed by the evidence as being the strategic leader in the criminal combination, [OR] was prepared to be the visible multiple risk-taker — essential to the success of the criminal enterprise.…
41.It is a well-established sentencing principle that persons who participate in the illicit drug trade, at any level, should expect, and receive, heavy penalties. That does not mean there is not still a need to calibrate, so far as possible, objective criminality and moral culpability — both generally vis-à-vis the offence and relatively vis-à-vis co-offenders alleged to have played a more controlling and commanding role (as is alleged in relation to [the applicant]).
42.It is submitted that [OR] played hands-on roles that were essential in importing the border controlled drug, in the business of trafficking a border controlled drug and in the attempt to manufacture a controlled drug. [OR’s] role can properly described as a trusted and dedicated assistant more prepared to shoulder the burden and risk of personally doing what was necessary to achieve shared criminal objectives.
[34]R vOlbrich (1999) 199 CLR 270 (‘Olbrich’).
[35]R vStorey [1998] 1 VR 359, 369 (‘Storey’).
[36]Weininger v The Queen (2003) 212 CLR 629 (‘Weininger’).
[37]Prosecution Sentence Submissions produced for the purposes of OR’s plea hearing (emphasis added; citations omitted).
It is also noteworthy that in a written outline of submissions provided to the judge for the purposes of the plea, OR’s counsel submitted that it was relevant to an assessment of his offending that the prosecution did not allege that OR ‘was architect or designer of the enterprise, rather he largely [acted] at the direction of [the applicant]’.
In our view, the judge’s sentencing remarks in OR’s case were consistent with the manner in which the case was put against him by the prosecution on his plea, and the way in which OR’s counsel had put the plea in mitigation.[38]
[38]See [20] above.
So far as practical, all proceedings concerned with alleged co-offenders in trial courts should be dealt with by the same judge. That practice promotes uniformity in evidentiary and other rulings, and consistency in the sentencing of co-offenders. It is common, therefore, for a judge to be required to sentence a co-offender (or co‑offenders) in advance of the trial (or trials) of another (or others). It is also commonplace in those circumstances for a judge to be called upon to make sentencing findings as to a prisoner’s involvement in a crime vis-à-vis an alleged co‑accused prior to the co-accused’s trial. Thus, judges often must determine the particular role played in an offence (including his or her place in an alleged hierarchy) of a person who pleads guilty in advance of the trial of co-accused. Without more, the hypothetical fair-minded lay observer could not reasonably apprehend from a judge’s sentencing findings as to the role of one offender that the judge might not bring an impartial and unprejudiced mind to the resolution of any question that the judge is required to determine on the trial of a co-accused. Indeed, the hypothetical and informed fair-minded lay observer would know that judges commonly revise views that they may have expressed in sentencing one offender in light of evidence given in the trial of another. In those circumstances, none of what was said by the judge when sentencing OR — alone or in combination — relevantly could engender any apprehension of bias in a fair-minded lay observer.
Finally, in our view the applicant should not be permitted to rely on the two additional matters that he sought to agitate. They were not argued before the trial judge, let alone the subject of any determination by his Honour. Neither do they constitute new or fresh evidence. They formed no part of the interlocutory decision (or the submissions informing it) that animates this Court’s jurisdiction.
As mentioned, the applicant’s counsel asked the judge to certify pursuant to s 295(3)(b) of the CPA. The applicant sought a review of that refusal in this Court. By virtue of s 296(4), in determining the application for review, this Court is required to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision’. Thus, given that the interlocutory decision does not concern the admissibility of evidence, the Court is required by s 295(3)(b) to be satisfied ‘that the interlocutory decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. And by s 297(1), the Court ‘may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so’, having regard to several enumerated criteria (which it is unnecessary to set out).
For the foregoing reasons, we consider, as we have said, that the judge’s decision refusing to disqualify himself for apprehended bias was correct. There was no basis upon which he properly could have certified under s 295(3).
Conclusion
The application to review the judge’s refusal to certify should be refused.
Two postscripts
The prosecution opening
In the course of preparing for this application, we have considered the revised Crown opening dated 22 March 2019 (as supplemented by the addendum dated 23 April 2019). We have also had regard to the further revised and updated Crown opening dated 5 September 2019. As we have noted, that latest document runs for more than 300 pages, and encompasses some 24 annexures, several of which are said to be very lengthy. The original prosecution opening ran for only about 20 pages.
The judge was highly critical of the prosecution for having produced, ultimately, a document of this extraordinary length and complexity. It seems as though no stone was left unturned in seeking to explicate just how the prosecution proposed to put its case.
This Court should make it clear that the requirement under s 182 of the CPA that the DPP serve on the accused, and file in Court a summary of the prosecution opening means precisely what it says. The summary must outline the manner in which the prosecution will put the case against the accused, and set out the acts, facts, matters and circumstances being relied upon to support a finding of guilt. Yet, it is still a summary, and nothing more. It should not be a detailed rendition of what each witness is expected to say.
Of course, an accused is entitled to proper particulars of the case against him or her. Sometimes, these particulars will have to be provided at considerable length, and in great detail. That process is separate and distinct from the prosecution opening, and the two should not be conflated.
A prosecution opening is intended to assist the judge, the jury, and the defence, by outlining in general terms the prosecution case as it is expected to be presented. The aim must be to ensure that the participants in the trial are able to understand the issues, and the evidence as it unfolds. The document is not intended to set out in meticulous detail every aspect of the case to which every witness will attest, still less, to explore every nuance of the case that may evolve.
In R v Haydon (No 7),[39] Sulan J of the South Australian Supreme Court, whose observations we respectfully endorse, had this to say about a prosecution opening:
There is no fixed formula that must be followed by Crown counsel in opening a case for the prosecution. There is a duty not to mislead or to make assertions which are not supported by the evidence which is proposed to be led. If the prosecutor opens on facts which are not established by the evidence, then that can lead to a mistrial or the overturning of a conviction if an appeal court concludes that the prejudice was such that the defendant could not obtain a fair trial. A mistrial in these circumstances will be exceptional as, in the majority of cases, any failure of the Crown case to live up to the opening can be cured by a direction from the trial judge.
In opening a case, Crown counsel should not embark upon argument or comment. Language likely to excite undue prejudice or emotion should be avoided. Although Crown counsel cannot be expected not to point out the strengths of the case for the Crown, the opening should be balanced and fair. If there are weaknesses in the case, then Crown counsel should not try to disguise them.
The main purpose of the Crown opening is to make the case clear so that the judge, jury and defence counsel are able to comprehend the Crown case and understand the evidence as it unfolds. The opening must be fair to the accused, but that does not mean that the Crown cannot identify and highlight the strengths of its case. The jury should be given an explanation of the relevant law. It should be made clear that the final directions on the law will be given by the judge. The jury should be told that the final arbiter on the law is the judge.
At the conclusion of the opening, the judge and jury should be able to understand the issues in the case and how the Crown will present its case. It is then a question whether the case has been proved.[40]
[39][2005] SASC 21.
[40]Ibid [38]–[41].
Regrettably, the prosecution opening, in its present 300 page plus form, does not meet the underlying requirements of a document of this nature. It is hardly user‑friendly, and in some respects, written in a style that is turgid. Anyone confronted with that document would find it difficult to distil from it, in broad terms, what the prosecution case is really all about. If it were to be read to a jury, or provided to them, it would be of no significant assistance to their understanding of the case. We are not sure that, in its present form, it would be of any great help to either the judge or defence counsel.
It is obvious that, in some respects, this will be a complex trial. The inferences to be drawn from many individual items of evidence, if the prosecution are to succeed in establishing that the applicant was the person behind the various drug offences charged, may not be all that readily comprehensible. Yet, it seems to us that even making full allowance for the special difficulties associated with the so-called ‘dark web’, the case falls well short of the level of complexity sometimes found in major drug cases. Certainly, the case seems to us almost to pale into insignificance when compared with the difficulties associated with some major fraud trials.
We note that s 224(5) of the CPA provides that the trial judge may limit the length of the prosecution opening. If we may say so, this is a case where serious consideration should be given to the exercise of that power.
The trial date
For reasons that cannot fully be explored here, the preparation of this case for trial can fairly be described as something of a shambles. Of course, the fact that counsel retained to appear for the applicant fell gravely ill very shortly before he announced his illness in October 2019 has thrown this case into a further state of confusion. A major problem, however, seems to be that the investigation into these offences has been, and still is, ongoing.
During oral submissions, we were told by senior counsel for the prosecution that the exploration into the various computer files that have now been accessed has turned up a vast amount of additional material. We were further told that the ‘digging’ into this material is still going on at present. This might mean that there would be further notices of additional evidence required, and perhaps some extra material to be added to the, already, bloated prosecution opening.
There is no agreement between the parties as to what the trial judge specifically contemplates, so far as the hearing of this matter is concerned. Counsel for the applicant understand that his Honour has fixed the trial, in its entirety, including all preliminary arguments, for 16 March 2020, on an estimate of some six weeks. Senior counsel for the prosecution does not accept that view as necessarily accurate. He considers that it would be expected that the preliminary arguments, which will be lengthy, are dealt with in the latter part of March, and the trial itself may take place later in the year.
It need hardly be said that this is quite unsatisfactory. The investigation is, as we have said, ongoing, and even senior counsel appeared irritated by the fact that more material continues to be provided, possibly requiring further amendments to be made to the existing documentation.
It seems, from what we were told, that the applicant has not yet been able to retain counsel for the purpose of his defence in this trial. It must be self-evident, that a case of this kind should not proceed without adequate opportunity being given to the defence to prepare its case. If all that is to occur in March is preliminary argument on various points of evidence, it ought to be possible to retain appropriately experienced and competent counsel to handle that part of the proceeding. If there is to be a full trial in March, there must be some question as to whether there is sufficient time, at this stage, for the case to be properly prepared.
Of course, these are matters for the trial judge, and do not fall within the parameters of this interlocutory application. Nonetheless, we consider it important to express our concerns about the current position regarding this case. Certainly, as we pointed out in argument, if there really is no possibility that the defence will be in a position to conduct this trial in mid-March of this year, that needs to be drawn to his Honour’s attention again, and proper material placed before him in support of any application that the defence consider necessary in that regard. Bald assertions from the Bar table are of no assistance, as should be understood.
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