Brown and Dixon v Police No. Scgrg-98-1401, Scgrg-98-1445 Judgment No. S322

BROWN & DIXON v POLICE
[1999] SASC 322

Magistrates Appeal: Criminal

MULLIGHAN J The appellants were charged with assault occasioning actual bodily harm. It was alleged that on 15th December 1997 they assaulted a man at Christie Downs and caused injuries to him. They both pleaded not guilty and after a trial before a learned Magistrate at the Magistrates Court at Christies Beach, were found guilty, convicted and sentenced to imprisonment. They appeal against the conviction.
The appellant Mr Dixon, in his grounds of appeal, raises a question of apprehended bias on the part of the learned Magistrate. He contends that the learned Magistrate should not have heard the matter and that the conviction should not stand for that reason. He has other grounds of appeal but it is convenient to first consider the matter of suggested bias.
The issue arises in this way. On 28th May 1997 Mr Dixon was charged on complaint with breaching a restraining order contrary to s15(1) of the Domestic Violence Act 1994 and two counts of damaging property contrary to s85(3) of the Criminal Law Consolidation Act 1935. All of these offences were alleged to have been committed on 27th May 1997. He had earlier been before the court as he had been arrested on 27th May 1997 and detained in custody. The same charges were again laid by information on 6th June 1997 and came before the learned Magistrate at Christies Beach on various occasions. On 13th August 1997 he was released on bail and remanded for trial. He appeared before the learned Magistrate on 4th November 1997 on that date and pleaded guilty to each charge. The learned Magistrate imposed one sentence which was imprisonment for twelve months with a non-parole period of nine months. That sentence was suspended upon Mr Dixon entering into a bond to be of good behaviour for a period of eighteen months. He was ordered to pay his former defacto wife, who was the victim of his conduct, $2,000 by way of compensation and a further sum of $60 to the South Australian Police Department also by way of compensation. These offences arose out of a domestic incident involving Mr Dixon and his defacto wife.
The charge which is the subject of this appeal came before a different Magistrate at the Magistrates Court at Christies Beach on 13th January 1998. It seems that he was informed that both appellants intended to plead not guilty. Although charged on separate Informations, the appellants were to be tried together. Thereafter they appeared at the Magistrates Court at Christies Beach on various occasions, sometimes before the learned Magistrate and on other occasions before another Magistrate in the course of pre-trial procedures. At some of those hearings Mr Dixon was represented by counsel and on occasions by Mr Gaite, who appeared for him at the trial and on this appeal. At no time before the trial was called on did he, or any other legal representative of Mr Dixon, raise any objection to the learned Magistrate hearing the charge. The matter was listed for trial before the learned Magistrate on 16th April 1998.
On 15th April 1998 Mr Gaite contacted the Registrar of the Magistrates Court at Christies Beach. As I understand the position, he had been informed that the learned Magistrate was to hear the matter and that he expressed concern to the Registrar. He was advised to take up the matter with the learned Magistrate. On the next day, shortly before the matter was called on for hearing, Mr Gaite told the prosecution of his concern and that he would ask the learned Magistrate to disqualify himself. When the matter was called on he did so. In an affidavit admitted on this appeal, he deposed that he informed the learned Magistrate of the earlier matter and the sentence which he had imposed on 4th November 1997, that the learned Magistrate had been made aware of the facts of that matter and of the history of past offending of Mr Dixon, that the prosecution had made an application to revoke the suspension of the earlier sentence and that in the circumstances he should disqualify himself from further hearing the trial. Mr Dixon has an extensive history of prior offending. There is no evidence to indicate if the prosecutor made any submissions and if so to what effect. The learned Magistrate rejected the application and proceeded with the trial which was part-heard and adjourned. The trial continued on 26th May 1998, 25th June 1998 and 26th August 1998 when the learned Magistrate reserved his decision. He found both appellants guilty on 18th September 1998 and they were sentenced on 15th October 1998.
After hearing some argument on the first occasion this appeal came on for hearing, I adjourned the hearing and requested a report from the learned Magistrate which he provided promptly. In his report he began by making two preliminary observations. The first is that he said that each year he sentences between 2,500 and 3,000 persons for a variety of offences, and unless there is something memorable about the person and or the facts generally, both are soon forgotten. The second matter is that he said that it is the practice in the Magistrates Court at Christies Beach to hold a pre-trial conference conducted by a Magistrate in each matter which is to go to trial. At that time, counsel may raise an issue such as the present issue. Should that occur, appropriate listing arrangements can be made which, no doubt, means that should the Magistrate decide not to hear the matter, arrangements can be made for another Magistrate to do so.
The learned Magistrate went on to say that he had no recollection of dealing with Mr Dixon on 4th November 1997. However, he provided information about what happened on that occasion after perusing his diary and his notes which confirms what I have mentioned except that he said that Mr Dixon had pleaded not guilty to the charges and a trial commenced but, after the opening of the prosecution, the second charge was amended and the appellant pleaded guilty to all of the charges. He said that at no time did he make any findings as to Mr Dixon’s credit.
The learned Magistrate provided a copy of his sentencing remarks on this occasion. In these remarks, the learned Magistrate referred to the circumstances of the incident including that Mr Dixon was intoxicated, forced entry into the premises, damaged a police car and that his defacto wife had left the house. He said that Mr Dixon had an appalling history of criminal offending although there were no offences involving personal violence. However, the learned Magistrate did have before him an affidavit of the defacto wife of Mr Dixon sworn on 11th February 1997 in support of a Domestic Violence Order. She deposed to his violence towards her on previous occasions, his suffering from a psychiatric disorder and his having been in custody. In this affidavit, she described physical violence by Mr Dixon to be in graphic terms and of a serious nature. The learned Magistrate went on to say:
“Your behaviour on 27 May was absolutely appalling. You had obviously decided to see Ms Buckenara. When she would not allow that you obviously lost the ability to control your anger and you reacted violently against her property. There can be no excuse for that sort of behaviour. At the time that you committed the offences there was in place a domestic violence restraint order which as I have said, was made on 17 February this year. That was an order that I made and I most certainly do not view its breach lightly.”
In his report, the learned Magistrate then referred to the proceedings which are the subject of this appeal. He mentioned the pre-trial conference which was to be held on 11th March 1998. Mr Gaite attended but not Mr Dixon, who refused to participate. Another Magistrate presided. The learned Magistrate, in his report, said that it is the practice at the Magistrates Court at Christies Beach for the trial to be conducted by a Magistrate other than the Magistrate who presided at the pre-trial conference. Consequently, he said, the trial was listed before him and, on 16th April 1998, he was the only Magistrate sitting at Christies Beach. He went on to say:
“I have no actual recollection of the detail of that day but from the record and my notes I can say Mr Dixon was represented by Mr Adam Gaite. At the beginning of the trial Mr Gaite did ask me to disqualify myself. My recollection is that Mr Gaite informed me of the detail of the previous matter that I had sentenced Mr Dixon for on the 4th November 1997 (none of which I remembered at the time). I think I commented that I had no recollection of those matters until told by Mr Gaite. I refused to disqualify myself for 3 reasons. Firstly, any such concern should have been raised at the pre-trial conference stage and had it, the magistrate conducting the pre-trial conference could have considered whether to list the trial before a visiting magistrate. Secondly, any such application should have been made prior to the date of the trial when all witnesses were present at Court to give evidence. Thirdly, I had never ruled on Mr Dixon’s credit.”
In his remarks on sentencing on 15th October 1998 the learned Magistrate referred to the earlier matter of the domestic violence restraining order and the breach of that order on 27th May 1997 by Mr Dixon going to the house of his defacto wife, smashing windows at that house, making threats towards her and abusing her. He said that while he did not remember all of the details of those offences he did have a vague recollection of them. He went on to say that he could recall thinking that the defacto wife of Mr Dixon must have been extremely fearful of him.
Whilst I accept that the learned Magistrate had no recollection of the earlier matter when he wrote his report, it seems clear that he did have a recollection of aspects of the matter, which were unfavourable to Mr Dixon, when he sentenced him and that it is likely that he had such a recollection during the trial.
In his reasons for judgment, the learned Magistrate mentioned the four witnesses called by the prosecution who said they had seen the incident, or parts of it, which is the subject of the charge. At the trial, both Mr Dixon and Mr Brown gave evidence and Mr Brown called three witnesses. He refuted the version of events on the prosecution case. In essence, that case was that although the alleged victim of the assault had interfered in the relationship between Mr Brown and his defacto wife and had behaved in a threatening, provocative and insulting manner to Mr Brown about a matter which was of no concern to him, Mr Dixon and Mr Brown did assault him in a serious manner by punching and kicking and, at one stage, by threatening him with a broken bottle. Mr Brown’s case was that both Mr Dixon and Mr Brown consumed alcohol and cannabis and went to see the alleged victim to speak to him about his interference in Mr Brown’s personal affairs. The alleged victim was aggressive and abusive and attacked Mr Dixon. A brief fight ensued between the alleged victim and Mr Dixon and the alleged victim was injured. Mr Dixon’s case was similar to that of Mr Brown. He said he was attacked by the alleged victim and acted in self defence.
The learned Magistrate accepted the evidence of some of the prosecution witnesses but not the evidence of the alleged victim. As to Mr Dixon and Mr Brown, he said:
“Both of the defendants presented as unsatisfactory witnesses who bluntly lied throughout the course of their respective evidence.”

In particular, as to Mr Dixon, he went on to say:

“Adam Dixon quite simply lied about the extent of his involvement in the incident. He sought to justify his action and to explain how it was that (the alleged victim) came to suffer injury.”

He then found Mr Dixon’s version of events to be inconsistent with the injuries sustained by the alleged victim.

That is the background against which this ground of appeal must be considered.
An appropriate statement of the principle to be applied in the present circumstances is that a Magistrate should disqualify himself or herself from hearing, or continuing to hear, a matter where the parties, or a fair minded observer, might entertain apprehension of bias by reason of the prejudgment of the issues on credibility of a witness including a party: The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at pp258-263 and Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at pp293-294. In Livesey, the Court said at p294:
“In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters ‘of degree and particular circumstances may strike different minds in different ways’ (per Aickin J in Shaw (1980) 55 ALJR, at p16). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting.”

The Court went on to acknowledge that the person constituting the court should not automatically stand aside whenever requested by one party to do so. Their Honours then said:

“Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias.”

In Webb v The Queen (1994) 181 CLR 41, Deane J spoke of the fair-minded observer. He said at pp73-74:
“The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court. The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned. If, in the particular case, the proper conclusion is that a fair-minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias.”
Where the allegation is that there is an apprehension of bias because the judge or magistrate participated in other proceedings involving one of the litigants, it is appropriate to have regard to the observations of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Having referred to the increase in the frequency of applications on this ground, he went on to say at p352:
“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’ (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
In considering the difficult question of whether there is a reasonable apprehension of bias despite the assurances of the judge or magistrate to the contrary, it is as well to keep in mind the observations of Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568, at pp571-572:
“In the passage in his judgment in Watson to which we have referred, Jacobs J. pointed to the undoubted fact that ‘it is confidence in his own integrity which supports (a judge) not only in his judgment but in all his words and conduct’. Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge’s approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness’ views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.”

In IOOF Aust Trustees Ltd v Seas Sapfor Forests & Ors (1999) SASC 249 (18th June 1999, unreported) Doyle CJ, after reviewing many of the cases, discussed what knowledge should be attributed to a fair-minded observer: see pp57-59. There he mentioned matters of particular significance in that case, but he went on to say that none “of what I have said detracts from the fundamental obligation of the judge to deal with the case with the appearance and reality of an impartial and unprejudiced mind”.

The contention of the appellant must be approached with those principles in mind.
The subject charge before the learned Magistrate involved allegations of severe physical violence on the part of Dixon. Out of all of the conflicting evidence, including from witnesses whom the learned Magistrate had reason to regard as unsatisfactory, he had to find the facts and decide if the charge had been proved beyond reasonable doubt.
It may be seen that in the context of the earlier case, the learned Magistrate made adverse findings about Mr Dixon and expressed himself in strong terms. With respect to the learned Magistrate, I do not think it is correct to say that he did not make any findings about Dixon’s credit. He accepted that he had an “appalling” history of criminal offending although not involving acts of violence. He was aware of the allegations of personal violence by his defacto wife. All of the observations made by the learned Magistrate lead to the conclusion that he regarded him in a poor light which would very likely affect his credibility in the eyes of the learned Magistrate. I think the reasonable bystander or fair-minded observer, as discussed in the cases, would take that view. I have reached that conclusion having due regard to the observations of Mason J in Re JRL.

The factual circumstances in the present case are not dissimilar to those considered by Mitchell J in Rendulic v Bevan [1971] SASR 340. In that case the appellant and another man were jointly tried before a Magistrate on a charge under the Mining Act 1930. It was clear that there was an issue of credibility as the Magistrate had to decide whether the evidence of a police officer was to be preferred to that of the appellant. Some time earlier, the same Magistrate had the appellant before him on similar charges to which he pleaded guilty. Before the trial on the subsequent charge, the appellant asked the Magistrate to disqualify himself but he declined to do so. Mitchell J concluded that the Magistrate should not have embarked upon the trial. She rejected the contention that he should not have done so because he had been referred to previous offending in the context of s18(vi) of the Evidence Act 1929. She said the Magistrate was a lawyer of many years’ experience and did not need to be reminded that he must decide the case upon the evidence before him. She went on to say at p343:
“Nevertheless this is not the end of the matter. As I have already pointed out it is obvious that the similarity of the allegations against the appellant in the two cases were present in the mind of the Special Magistrate at least on the day on which he delivered judgment, and he may unconsciously have been affected by the similarity in deciding questions of fact which were largely determined by his view of the credibility of the various witnesses including the appellant.”

She concluded, in the circumstances, that there was a real likelihood of bias on the part of the Magistrate and that “right-minded persons” would have thought so. Also, Mitchell J regarded the previous convictions as significant in another respect. She referred to R v Grimsby Borough Quarter Sessions; Ex parte Fuller [1956] 1 QB 36 and R v Hertfordshire Justices [1911] 1 KB 612 where observations had been made about the problems caused by evidence of bad character being improperly placed before the court, in which case a conviction is likely to be set aside. In the former case, the Tribunal was a Recorder. In the present case knowledge of the prior offending is a reason to find apprehended bias.

The appellants in the present case were facing a very serious charge in the circumstances. That much may be established by the sentence of imprisonment which was imposed. Magistrates discharge a very important criminal jurisdiction. I do not think the learned Magistrate should have embarked upon the trial. There was a real risk of bias, even if unconscious. I think the fair-minded observer, if in possession of all of the facts, would have reached that conclusion.
Of course, in the present circumstances, there would have been inconvenience if the learned Magistrate had stood aside. However, as Mitchell J observed in Rendulic, that is a lesser evil than to have a case heard by a magistrate who has already convicted an accused person upon a similar offence. She went on to say at p345:
“There is no parallel between the situation of a special magistrate hearing and determining a charge summarily where he is the sole judge of fact and the case of a judge sitting with a jury. In the latter situation it is the jury who are the sole judges of fact, and generally speaking it would seem to me to be innocuous for a judge, who had already presided over one trial in which an accused person has been found guilty of a particular offence, to preside over a subsequent trial of that person for a similar offence.”
Also, mention should be made of the caseflow management rules. The appellant’s solicitor should have informed the Registry of the Magistrates Court much earlier of the objection to the learned Magistrate hearing the case. No doubt arrangements could have then been made for another Magistrate to sit. The object of caseflow management rules is to enhance the prospects of justice, not to reduce them. I do not think this matter should stand in the way of the removal of the apprehended bias.
I allow the appeal of Dixon and set aside the conviction.
Brown has no appeal on the ground of apprehended bias but I think that there is a real danger that the findings against him suffer from the same problem. I allow his appeal and set aside his conviction.
Clearly, this is a case where there should be a re-hearing. I remit the Informations for trial before another Magistrate.

Catchwords

Bias - apprehended bias - accused charged with serious crime before Magistrate - earlier charge involving violence before same Magistrate - accused convicted and punished - whether Magistrate should have disqualified himself on ground of apprehended bias - found guilty and sentenced to imprisonment - appeal allowed - conviction set aside - information remitted for re-trial.

[1999] SASC 322

6 August 1999