Chamoun v District Court of New South Wales

[2018] NSWCA 187

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Chamoun v District Court of New South Wales [2018] NSWCA 187
Hearing dates:	1 August 2018
Date of orders:	01 August 2018
Decision date:	01 August 2018
Before:	Gleeson JA at [1] R A Hulme J at [80] Button J at [81]
Decision:	Summons filed 27 July 2018 dismissed with no order as to costs.
Catchwords:	CRIMINAL LAW – application for judicial review to prohibit a District Court judge from acting further in sentencing proceedings – Supreme Court Act 1970 (NSW), s 69 – whether denial of procedural fairness – where judge refused to recuse herself – where assertion of apprehended bias on the ground of pre-judgment – where comments made by judge during sentencing proceedings – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the sentencing decision   CRIMINAL LAW – application for judicial review - discretionary factors – whether the Court should intervene at an interlocutory stage – where sentencing proceedings adjourned for receipt of further evidence and submissions – where delay in making the recusal application and the judicial review application
Legislation Cited:	Crimes Act 1900 (NSW), ss 93T(1), 193B Criminal Appeal Act 1912 (NSW), s 5F Criminal Assets Recovery Act 1990 (NSW), ss 10B(3)(b), 10A, 27 Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Supreme Court Act 1970 (NSW), ss 17, 69, Third Schedule
Cases Cited:	Antoun v R [2006] HCA 2; (2006) 224 ALR 51 AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425 Anae v R [2018] NSWCCA 73 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gaudie v Local Court of New South Wales [2013] NSWSC 1425 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Lee v Cha [2008] NSWCA 13 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lamb v Moss (1983) 49 ALR 533 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 Sankey v Whitlam (1978) 142 CLR 1 Tarrant v R [2018] NSWCCA 21 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Category:	Procedural and other rulings
Parties:	Mr Sam Chamoun (Applicant) District Court of New South Wales (First Respondent) Director of Public Prosecutions (NSW) (Second Respondent)
Representation:	Counsel: R Macaulay (solicitor) (Applicant) NJ Adams (Second Respondent)   Solicitors: Pryor Tzannes & Wallis Solicitors (Applicant) Office of the Director of Public Prosecutions (NSW) (Second Respondent)
File Number(s):	2018/231435
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 13 July 2018 Before: Hock DCJ File Number(s): 2012/76499

Judgment

1. GLEESON JA: Before the Court on 1 August 2018 was an application by Mr Sam Chamoun for an order by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW), prohibiting a judge of the District Court from acting further in sentencing proceedings relating to a drug supply offence to which the applicant had pleaded guilty.

2. The applicant contended that there had been a denial of procedural fairness during the part-heard sentencing proceedings because the judge (Hock DCJ) had failed to recuse herself when requested by the applicant. That complaint relied upon the assertion of apprehended bias on the ground of pre-judgment, having regard to certain comments made by the judge during the sentencing proceedings.

3. At the conclusion of the hearing the Court dismissed the application and made no order as to costs (reflecting the common position of the active parties on the issue of costs.) My reasons for joining in the orders of the Court follow.

Background

4. The applicant was the owner of the Jax Tyres franchise at Bondi Junction. On 8 March 2012, the applicant and three employees (Mr Ryan Ward, Mr Gregory Hennessy and Mr Nelson Hill) were each arrested and charged with various drug offences.

5. Of the five offences charged on the indictment against the applicant, count 1 involved supplying a prohibited drug (cocaine) in an amount not less than the commercial quantity applicable to that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The alleged offences were committed between September 2011 and March 2012.

6. On 5 April 2012, the NSW Crime Commission obtained orders against Mr Chamoun pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Recovery Act) restraining all of the interests in the property of the applicant. The Commission also sought a proceeds assessments order under s 27 of the Recovery Act.

The course of the applicant’s prosecution

7. On 29 July 2013, the applicant was committed to the District Court for trial. On 25 October 2013, the trial was fixed to commence on 16 June 2014 with an estimate of 20 days. That trial date was vacated on 22 May 2014 (on the applicant’s application, which the Crown opposed). On 20 March 2015 a new trial date was fixed for 2 November 2015. That trial date was vacated on 29 October 2015, again on the applicant’s application.

8. On 18 December 2015 a further trial date was fixed for 22 August 2016. On 28 June 2016, the Supreme Court made an order pursuant to s 10B(3)(b) of the Recovery Act making provision for the payment of reasonable legal expenses of the applicant’s confiscation proceedings and criminal proceedings in the amount of $150,000. On 25 July 2016, the trial date of 22 August 2016 was vacated on the applicant’s application. A new trial date was fixed for 6 February 2017.

9. On 5 August 2016, the Supreme Court made a further order pursuant to s 10B(3)(b) of the Recovery Act for the provision of reasonable legal expenses of the applicant’s confiscation proceedings in the amount of $26,000 and criminal proceedings in the amount of $283,800, being a total of $309,800.

10. On 8 February 2017, the applicant pleaded guilty to count 1 on the indictment. The applicant also asked for two offences on a Form 1 to be taken into account on sentence. Those offences involved possession of cash known to be proceeds of crime ($17,350), contrary to s 193B(3) of the Crimes Act 1900 (NSW) and participate in a criminal group, contrary to s 93T(1) of the Crimes Act.

11. There is a factual dispute in the sentencing proceedings, which it is not necessary to determine on this application, concerning the cause of the very substantial delay in the criminal proceedings. In particular, there is a dispute whether prior to the vacation of the first two trial dates the applicant had made an application for the release of reasonable expenses from restrained assets pursuant to s 10B(3)(b) of the Recovery Act.

12. The agreed statement of facts (signed by the applicant) includes the following:

• that the applicant admitted in his record of interview with the police that he would see customers come into the shop to buy drugs and possibly helped out once or twice in the sale of cocaine (par 124).

• that the applicant accepted that Mr Ward owed him money; that Mr Ward was mainly doing the supplies of the cocaine and that the applicant supplied the premises/location from which Mr Ward engaged in those supplies; that whilst the applicant may not have been conducting the majority of the supplies, he acknowledged that out of the money found at his residential premises, $17,350 was later found by police to be the “buy” money marked by the police in relation to undercover operatives who had purchased cocaine from the Jax Tyres premises at Bondi Junction (pars 134-136).

• that the applicant accepted that he was reckless as to whether this money was from the sale of drugs (par 136);

• that the applicant accepted that he ought reasonably to have known that he was participating in a criminal group which group included Mr Ward, Mr Hennessy and Mr Hill, in that he ought reasonably to have known that his own involvement contributed to the criminal activity of that group (par 137).

13. The matter was stood over for sentencing before Judge Hock on 21 July 2017. Her Honour had previously sentenced two of the co-offenders, Mr Ward and Mr Hennessy.

The co-offenders’ sentences

14. On 22 March 2013, Mr Ward was sentenced in the District Court before Hock DCJ, in respect of one count of supplying not less than a commercial quantity of cocaine (count 1) and taking into account a further count of supply on a Form 1, to a non-parole period of two years and six months and a total term of five years and three months. On count 2, involving participate in a criminal group, Mr Ward was sentenced to a term of imprisonment for one year to be served concurrently with the sentence on count 1. Mr Ward had entered a plea of guilty at the first available opportunity and had given an undertaking to give evidence against others. In total, he received a 45 percent discount on sentence.

15. On 17 April 2014, Mr Hennessy was sentenced in the District Court before Hock DCJ in respect of five counts of supply prohibited drug to which he pleaded guilty. He received an aggregate sentence of 18 months, which was suspended for a term of 18 months. Mr Hennessy had entered a plea of guilty two days after the trial was listed for hearing and was given a discount of 20 percent for his early plea and his undertaking to give evidence against others.

First recusal application

16. On 19 July 2017, the applicant filed a notice of motion seeking an order that Hock DCJ recuse herself on the ground of apprehended bias. That application was heard on 21 July 2017. The applicant’s contention was that there was an apprehension of pre-judgment given that her Honour had sentenced the co-offender, Mr Ward, on the basis of agreed facts, some of which the applicant disputed.

17. Her Honour refused to accede to that application. No complaint is made in that regard on the present application. Nor could it be. As a matter of practice, it is highly desirable that co-offenders be sentenced by one judge given the principle of parity of sentencing between co-offenders: Postiglione v The Queen (1997) 189 CLR 295 at 309, 320; [1997] HCA 26. The desirability of this practice serves the public interest in consistent and transparent sentencing of related offenders: Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 at [33]-[34], [46]; R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [13], [24]; Ng v R [2011] NSWCCA 227 at [77]-[78]; (2011) 214 A Crim R 191.

Course of the applicant’s sentencing proceedings

18. At the sentencing hearing on 21 July 2017 the Crown tendered a sentence summary, but the defence was not able to commence its case as psychiatric and other material was not available. It seems that a pre-sentence report had only been requested that day. The proceedings were stood over to 25 August 2017.

19. On 24 August 2017 at about 9pm, the applicant’s solicitors emailed a large bundle of material comprising 14 separate documents to be relied upon at the hearing the following day to the judge’s Associate and the solicitor at the Office of the Director of Public Prosecutions.

20. On the following day, 25 August 2017, counsel for the applicant, Ms Ghabrial, was sick and unavailable to attend and the matter was adjourned to 6 October 2017. The Crown Prosecutor made a detention application, which was refused by her Honour.

21. On 6 October 2017, counsel for the applicant handed up written submissions of 30 pages, which had not been provided to the Crown Prosecutor until he was in court that day. The matter was adjourned to 24 November 2017, being the first date on which counsel for the applicant was next available. The Crown Prosecutor again made a detention application, which was refused by her Honour.

22. On 23 November 2017, at approximately 4 pm, the applicant’s solicitor emailed a 61-page affidavit to the judge’s Associate, also copied to the solicitor at the Office of the Director of Public Prosecutions, in respect of the issue of delay (in the criminal proceedings). At about 7:26pm that night, further written submissions were emailed by the applicant’s solicitor to the judge’s Associate and the Crown Prosecutor and his instructing solicitors. Those submissions were directed, not only to the issue of delay, but also other matters raised on the applicant’s behalf.

23. On 24 November 2017, the Crown Prosecutor sought an adjournment on the basis of the late service of new material. The matter was adjourned for sentence on 28 March 2018. That hearing date was later vacated on 1 March 2018, given the sentencing judge’s existing commitments in a long-running trial at the Newcastle District Court. The matter was relisted for hearing on 3 August 2018.

24. On 15 May 2018, the applicant filed a notice of motion seeking an order that the sentencing judge recuse herself. That motion was heard on 10 July 2018. On that occasion, Mr Clive Steirn of senior counsel appeared for the applicant. Counsel’s written submissions and the transcript of the hearing on that day were not tendered in evidence by the applicant on the present application.

25. On 13 July 2018, the sentencing judge delivered reasons for judgment for refusing the recusal application. The proceedings were stood over for further evidence, submissions and sentence on 3 August 2018.

Application for judicial review

26. On 27 July 2018, the applicant filed a summons seeking judicial review. A few days later on 31 July 2018, the applicant filed an application for leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Both applications were heard by the same bench constituted as the Court of Appeal and the Court of Criminal Appeal. These reasons address the application for judicial review. Separate reasons have been given by the Court of Criminal Appeal for the refusal of leave with respect to the s 5F application: Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182.

The basis of proceedings in this Court

27. The applicant invokes the supervisory jurisdiction of this Court conferred by s 69 of the Supreme Court Act. Review under s 69 extends to relief formerly available by the writs of certiorari, prohibition and mandamus.

28. Section 17 of the Supreme Court Act relevantly provides:

Criminal proceedings

(1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.

…

29. Paragraph (a1) of the Third Schedule is in the following terms:

(a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment (“indictment” including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court.

30. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 (Chow v DPP), Kirby P explained (at 610) that the purpose of the exclusion of the Court’s jurisdiction by s 17 and the Third Schedule of the Supreme Court Act in certain “criminal proceedings” is to protect orders which are made within jurisdiction. Kirby P continued (at 610), “It is not to exclude the supervisory jurisdiction of this Court, as the final appellate court of the State, to ensure against the making of orders which are outside jurisdiction” (emphasis added). Such orders can arise where, for example, an order is made in breach of the rules of procedural fairness.

31. In this case, the question before the Court is whether the sentencing judge is disqualified by apprehended bias on the ground of pre-judgment. The question is therefore one concerning jurisdictional error. As Kirby P remarked in Chow v DPP (at 610):

Where a judge of the District Court is disqualified by bias (actual or imputed) that judge’s orders and directions are thereafter subject to review upon the basis that they were made outside jurisdiction.

32. If error is established, a further question of what relief should be granted must be addressed. Relief in a case such as the present is discretionary: Lee v Cha [2008] NSWCA 13 at [28].

Applicant’s complaints

33. The applicant’s complaints are directed to comments made by Hock DCJ on three separate occasions: 25 August 2017; 6 October 2017; and 24 November 2017. The applicant does not assert an apprehension of bias on the grounds that the judge has an interest in the proceedings or their outcome, nor any association with any of the parties, nor any extraneous information as to the matters under consideration.

34. The sole question is whether through comments made in the course of the hearings of the sentencing proceedings, the judge had indicated a fixed view in exchanges with counsel for the applicant as to the outcome, prior to receiving all of the material and submissions.

The test for apprehension of bias

35. The test for determining whether a judge is disqualified by reason of the appearance of bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].

36. The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias: Johnson v Johnson at [12]; Michael Wilson & Partners v Nicholls at [33].

37. The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners v Nicholls at [63].

38. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners v Nicholls at [67].

39. In Tarrant v R [2018] NSWCCA 21, the Court of Criminal Appeal (Basten JA, R A Hulme J and Hidden AJ) observed (at [9]) that the so-called “double might” test is by no means easy to apply, noting that its application requires attention to four discrete elements:

(1) First, there is the postulate of the “fair-minded lay observer”. Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as explained in Johnson v Johnson, “the assessment by some judges of the capacity or performance of their colleagues.”

(2) Secondly, the test has been described as “objective”, by which is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias, an assessment of the judge’s own state of mind.

(3) Thirdly, there is said to be a two-stage process required; it is necessary to articulate “the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making.”

(4) Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer “would” have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities. (Citations omitted)

40. As recognised in Tarrant v R (at [12]), there is a level of unavoidable imprecision in the standard of what a person “might” apprehend. Nevertheless, a fanciful or speculative possibility must be put to one side and the reasonable fear of the observer must be “firmly established”: CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 at [36] (Meagher JA).

41. Where, as in the present case, pre-judgment is relied upon for the apprehension of bias, “what must be firmly established is a reasonable fear on the part of the bystander that the decision-maker’s mind is prejudiced in favour of a conclusion already framed, so that he or she will not alter that conclusion irrespective of the evidence or the arguments presented”: Gaudie v Local Court of New South Wales [2013] NSWSC 1425 at [82] (Johnson J).

42. It has been said that it is preferable (at least in a trial by a judge alone without a jury) that the judge should express tentative or preliminary views to the parties so that they might address the judge on those matters: Antoun v R [2006] HCA 2; (2006) 224 ALR 51 at [31] (Kirby J). That accords with the remarks in Vakauta v Kelly (1989) 167 CLR 568 at 571; [1989] HCA 44 by Brennan, Deane and Gaudron JJ:

[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.

43. Similarly, in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2, the joint reasons of the majority (Heydon, Kiefel and Bell JJ) referring to the earlier decision in Johnson v Johnson said (at [132]):

It was accepted that the lay observer must be taken to have some understanding that modern judges, responding to the need for active case management, are likely to intervene in the conduct of the proceedings and in so doing may well express tentative opinions on matters in issue.

44. The effect of a statement that might indicate pre-judgment can be removed by a later statement which withdraws or qualifies it depending on the circumstances of the particular case. That is because “the hypothetical observer is no more entitled to make snap judgments than the person under observation”: Johnson v Johnson at [14] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

45. As Dawson J emphasised in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 372; [1986] HCA 39, the whole of the circumstances to be considered are not confined to the impugned conduct for suspecting a lack of impartiality, they include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures.

46. On the other hand, the fair-minded bystander may have regard to the cumulative effect of comments by a judge: AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at 254-255; [2011] VSCA 425 at [67]-[68]. Thus, later statements may serve to reinforce an impression created earlier: Antoun v R at [2].

47. Where, as in the present case, the recusal application is based on the conduct of the sentencing judge during the various hearings in open court, it is not in doubt that the Court may have regard to what was said and the context in which it was said. Plainly, the source of concern may be clarified by later statements which may be sufficient to eradicate any reasonable apprehension of bias: Re JRL; Ex parte CJL at 372 (Dawson J); Johnson v Johnson at [14].

48. In Tarrant v R, it was accepted that, at least in principle, the reasons given for rejecting a recusal application may constitute a later clarification. The Court explained (at [15]):

They may reveal information which the hypothetical bystander would accept as demonstrating that an earlier opinion was based on a misunderstanding.

49. Nonetheless, as noted in Tarrant v R (at [19]), one reason for placing little weight on the recusal judgment is, in general terms, explained by the joint reasons in British American Tobacco v Laurie (at [137]):

However, recourse to the later statement is not for the purpose of ascertaining whether the judge has expressed a willingness or confidence in his or her ability to maintain an open mind. It is assumed that a judge who is conscious of having formed so clear a view that the judge is unlikely to be persuaded from it would not sit to hear the later case. Ex hypothesi, a court reviewing the decision of a judge to sit to hear a case in circumstances where apprehended pre-judgment is alleged, but not actual bias, will be reviewing the decision of a judge who is confident of his or her ability to decide the case impartially.

50. Another reason why the recusal judgment is of limited assistance in the present case is that neither party put into evidence the applicant’s submissions or the transcript of the hearing before the sentencing judge without which it is difficult to readily comprehend the context of each of the four instances of apprehension of bias which the sentencing judge dealt with in her judgment which are referenced to specified paragraphs in the applicant’s written submissions below.

(a) Comments made on 25 August 2017

51. The first matter in respect of which complaint is made by the applicant is the comment by the sentencing judge on 25 August 2017 that a custodial sentence is inevitable. That comment was made in the context of the sentences imposed on the co-offenders, in particular, Mr Ward, who, as mentioned, had received a discount of 45 percent on his sentence for an early plea and an undertaking to give assistance to authorities, whereas the applicant had pleaded guilty at a late stage.

52. Later, after referring to the sentence imposed on the co-offender and the discounts that were given, her Honour expressed the view that a custodial sentence is inevitable taking into account that the offence involved the supply of a commercial quantity of cocaine and the applicant’s subjective case, which the judge described as in some respects “quite powerful”.

53. Four things may be said about these comments. First, as Price J explained in Anae v R [2018] NSWCCA 73 at [51], given the substantial increase in the criminal caseload of the District Court in recent years and the onerous task of dealing efficiently with such cases which include sentencing proceedings:

A judge is neither prevented from forming a preliminary view of the appropriate sentence to be imposed, nor is a judge obliged to listen endlessly to meritless arguments.

54. Second, read in context, particularly having regard to the need to observe the parity principle and treat like cases alike, and different cases differently: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28], I do not consider that a fair-minded lay observer might reasonably apprehend that her Honour’s comments referring to the sentence imposed on the co-offender, Mr Ward, indicated a conclusion already framed, rather than an expression of a preliminary view. As indicated, it is preferable that a judge should express preliminary views to the parties so that they might address the judge on those matters: Antoun v R at [31]; Vakauta v Kelly at 571.

55. Third, the sentencing judge refused a detention application by the Crown on the same day, shortly after making the impugned comments. A fair-minded lay observer would take that later conduct on the same day into account as being inconsistent with reasonable grounds for suspecting that her Honour had reached a concluded view as to the outcome of the sentencing proceedings.

56. Fourth, the solicitor for the applicant acknowledged in this Court that the statements by the judge on 25 August 2017 would not, by themselves, give rise to an apprehension of pre-judgment.

57. The suggested cumulative effect of the statements on this occasion with later statements by the judge is addressed below.

(b) Comments on 6 October 2017

58. The second matter in respect of which complaint is made by the applicant is that during the course of exchanges with the applicant’s counsel on 6 October 2017, the judge commented that given the evidence put before the Court at that point, she had not changed her view that the applicant is facing an inevitable custodial sentence. The judge also indicated that she had difficulty understanding the submission by the applicant’s counsel that the applicant’s role was less than the co-offender’s, Mr Ward, given the applicant’s guilty plea to supplying 294.38 grams of cocaine, which is just over a commercial quantity.

59. The transcript of that day also records the following comments by the judge:

Her Honour: I have only skim read your submissions but with great respect to you, to submit that an ICO is an appropriate form of punishment for this offence, in circumstances where co-offenders have been sentenced already to gaol terms, understandably because it’s a commercial quantity of cocaine, is not a sensible submission, in my view.

60. These comments occurred during exchanges between the judge and Ms Ghabrial, counsel for the applicant, on a number of topics including: (1) the issue of delay in the prosecution of the applicant, as to which her Honour indicated that she would need evidence about the delay, and (2) submissions by the applicant’s counsel that the sentence of imprisonment could be two years and then an ICO could be imposed, given the applicant’s lesser role in the offending compared to that of the co-offender, Mr Ward.

61. Her Honour’s response to the applicant’s submission that an ICO would be an appropriate form of punishment is to be viewed in the context that the sentencing proceedings would necessarily be adjourned to another date in view of the service of lengthy written submissions by the applicant on that day, and her Honour’s express acknowledgment that she had only “skim read” those submissions. I do not consider that a fair-minded observer might reasonably apprehend that the judge had reached a concluded view as to the outcome of the sentencing proceedings.

62. Further, it was appropriate for her Honour to draw to the parties’ attention for their response, her thinking on the issue of parity of sentencing with Mr Ward, given the agreed facts concerning the applicant’s offending that had been placed before the judge.

63. That her Honour exhorted the applicant’s counsel to provide evidence on the issue of delay would not have conveyed to the fair-minded observer that her Honour had rejected the applicant’s submissions on that issue. Rather, her Honour’s comments conveyed to the parties the need for evidence to support any submissions made concerning the issue of delay.

64. Further, a fair-minded observer would view her Honour’s refusal of the Crown’s detention application on this occasion as also being inconsistent with reasonable grounds for suspecting that her Honour might have reached a concluded view as to the outcome of the sentencing proceedings.

(c) Comments on 24 November 2017

65. The applicant makes complaint about statements by the sentencing judge on 24 November 2017 that the applicant “is facing an inevitable custodial sentence”, and in a response to a submission by Mr Steirn, counsel for the applicant, that there had been substantial delay in the prosecution through no fault of the offender, the judge responded, “some of it is his fault. It must be”.

66. After indicating that she would continue the applicant’s bail, the judge made the following comments:

Her Honour: I make very clear to him I don’t think I’m doing him any favours at all. I cannot see anything in the material, as I say, even taking your material at its highest, that could get his sentence down to two years let alone to then considering an ICO.

…

I don’t think the Crown’s position has ever been that a fulltime custodial sentence is not appropriate. There’s a parity issue. I don’t have to explain this to you, Mr Steirn.

Now, I’m not for one moment suggesting your client’s starting point would be nine and a half years, but there is nothing, every time I look at the matter over and over again, it is quite clear to me that the sentence could not be two years or less, and even … (Emphasis added)

67. The context in which her Honour’s comments were made is important. Given the service of a large volume of material and submissions by the applicant late on the previous day, yet another adjournment of the sentencing proceedings was necessary. The comments by the judge concerning an inevitable custodial sentence were made in the context that her Honour expressly stating that she could not see anything in the new material that indicated a lesser sentence was appropriate. Plainly, the applicant’s new material had not been formally tendered, nor had it been the subject of submissions. The sentencing proceedings were to be again adjourned to allow the Crown to respond to the new material and submissions. That the judge expressed a preliminary view so that the parties might address on that matter at the adjourned sentencing hearing would not convey to the fair-minded observer that her Honour had reached a concluded view on sentence.

68. As to the comments by her Honour that some of the delay in the criminal proceedings must have been the fault of the applicant, the subsequent comments by the judge recorded in the transcript made clear that her Honour did not foreclose submissions on that issue, and that further evidence from the applicant and the Crown would be received. I do not consider that a fair-minded observer might reasonably suspect her Honour’s comments as indicating that she had reached a concluded view on the issue of delay.

69. One further matter should be mentioned. The solicitor for the applicant complained that the sentencing judge invited the Crown to make a detention application on 24 November 2017. According to the submission, that conduct, of itself, gave rise to a reasonable apprehension of bias. When asked to identify the transcript reference supporting that contention, the applicant’s solicitor pointed to the following exchange on 24 November 2017, after a discussion of the timetable for the filing and service of further evidence:

Her Honour: Any further material on which the offender wishes to rely to be filed and served by 4pm Friday, 9 March. Do you want to be heard about bail, Mr Crown?

Abdulhak: No. I’m instructed that the Crown doesn’t oppose bail continuing in the circumstances. I have no instruction to make an application and I communicated that to my friend earlier today.

Her Honour: The matter to some extent is out of your hands because the Crown Prosecutor on the last occasion made a detention application, which I refused to entertain because of Ms Ghabrial’s lack of availability. Now I’m in a situation where you don’t oppose bail continuing.

Abdulhak: I don’t. The difficulty is that the Crown on this occasion hasn’t given notice of an application as required, I think, under s 50. My friend did check with us what our position would be if your Honour was minded to grant the application to adjourn and it was indicated, in consultation with the Crown that has the brief, that there would be no application for detention.

Her Honour: In those circumstances Mr Steirn I’m going to continue your client’s bail. … (Emphasis added)

70. Contrary to the submissions of the applicant’s solicitor, this extract of the transcript cannot be fairly read as the sentencing judge inviting the Crown to make a detention application. Her Honour simply asked the Crown what was the position in relation to bail, in circumstances where her Honour had previously rejected detention application(s) made by the Crown.

Conclusion on cumulative effect of comments

71. Viewed in context, I do not consider that the cumulative effect of the judge’s comments on a fair-minded observer might cause such a person to reasonably suspect that the judge might not approach the part-heard sentencing proceedings with objectivity and detachment and without any element of pre-judgment, regardless of the material presented and the submissions made when the hearing resumed.

Discretionary factors

72. Further, and in any event, three factors militate against intervention in the present case. The first is that the basis for an apprehension of bias is confined to the conduct of the sentencing judge in her exchanges with counsel during the course of the sentencing proceedings, which are part-heard. As indicated, such exchanges must be viewed in context, relevantly, that the sentencing proceedings would necessarily be adjourned to another date for receipt of further evidence and submissions, and it is preferable that a judge indicate preliminary views to the parties so that they might address the judge on those matters.

73. The second matter is that the Court will generally exercise restraint and not interfere in proceedings at an interlocutory stage in the absence of some clear reason to do so, sufficient to outweigh “the undesirability of discontinuity, disruption or delay, in the well-established procedures of the criminal law”: Lamb v Moss (1983) 49 ALR 533 at 545 in the context of intervention in committal proceedings, applying the approach in Sankey v Whitlam (1978) 142 CLR 1 at 25-26 (Gibbs ACJ), 80 (Stephen J) and 81-82 (Mason J).

74. The third matter is that of delay. While the applicant relies on the cumulative effect of comments made by the sentencing judge at the hearings in August, October and November 2017, no recusal application was made in advance of the sentencing hearing listed on 28 March 2018, which was vacated on 1 March 2018. There was no evidence on behalf of the applicant explaining that delay in terms of when transcripts of the earlier hearings were received and when advice was given by counsel that an apprehended bias application was justified.

75. Insofar as the solicitor for the applicant stated from the bar table that “there was a sense of increasing anxiety about what was said to be the apprehended bias and that culminated eventually in the May application”, that does not explain the delay, let alone why a recusal application was not made in advance of the vacation of the 28 March 2018 hearing date.

76. The applicant also delayed for two weeks after the sentencing judge’s refusal to disqualify herself, before filing the summons on 27 July 2018 seeking relief by way of judicial review. The applicant’s solicitor sought to explain this delay on the basis that he “was abroad until Monday last week”, that is, until 23 July 2018. Again, that explanation was not the subject of evidence. I would not regard the absence of the applicant’s solicitor (who is not a sole practitioner), as a satisfactory explanation for the two week delay in bringing the application for judicial review when the sentencing hearing was listed before her Honour on 3 August 2018.

Conclusion

77. In my view, it has not been clearly established that the point has been reached where a fair-minded observer might think that the cumulative effect of the comments by the sentencing judge during the course of the earlier hearings is such that the judge might not approach the sentencing proceedings with objectivity and detachment and without any element of pre-judgment based on her earlier comments, regardless of the material presented and submissions made on behalf of the applicant when the sentencing hearing resumes.

78. Further, and in any event, there are compelling factors which militate against intervention in the present case, given (1) the context in which the impugned comments were made by the judge, in particular, the sentencing proceedings would necessarily be adjourned to another date for receipt of further evidence and submissions; (2) it is preferable that a judge indicate preliminary views to the parties so that they might address the judge on those matters; (3) the need for restraint by the Court in the fragmentation of criminal proceedings; and (4) the applicant’s unexplained delay in making the recusal application before her Honour, and also in bringing this application having regard to the proximity of the adjourned hearing listed on 3 August 2018.

77. For these reasons the summons filed 27 July 2018 was dismissed with no order as to costs.

78. R A HULME J: My reasons for joining in the orders made by the Court on 1 August 2018 accord with those set out in the judgment of Gleeson JA.

79. BUTTON J: The reasons of Gleeson JA reflect my own reasons for joining in the orders of the Court of Appeal on 1 August 2018.

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Amendments

23 August 2018 - Typographical errors amended in pars 27, 39

Decision last updated: 23 August 2018