SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Clifton v Duong |
Citation: | [2019] ACTCA 22 |
Hearing Date: | 5 August 2019 |
DecisionDate: | 21 August 2019 |
Before: | Murrell CJ, Burns and Wigney JJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – APPREHENDED BIAS – Where shortly before delivery of judgment the primary judge directly emailed the prosecutors without copying in the appellant’s counsel – Where the communication concerns the difficulty in viewing the CCTV evidence on computer – Where the appellant’s counsel was eventually copied into the chain of emails – Whether the communication gave rise to apprehended bias – Whether failure to object amounts to waiver APPEAL – NATURE OF APPEAL – Appeal from appellate decision – Whether it was open to the primary judge to find that it was open to the magistrate to return a guilty verdict – Whether a fresh attack on the original decision |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 Supreme Court Act 1933 (ACT) s 37N(3) |
Cases Cited: | AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; 34 VR 236 Clifton v Doung [2018] ACTSC 346 |
Parties: | Robert Clifton (Appellant) Alan Duong (Respondent) |
Representation: | Counsel P Edmonds (Appellant) T Hickey (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 1 of 2019 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Penfold J Date of Decision: 20 December 2018 Case Title: Clifton v Duong Citation: [2018] ACTSC 346 |
THE COURT
The appeal
In the Magistrates Court the appellant pleaded not guilty to the charge that, on 15 November 2015, he assaulted and thereby occasioned actual bodily harm to Mr Bugden (the complainant), contrary to s 24 of the Crimes Act 1900 (ACT).
There was a contested hearing before Magistrate Cook (the Magistrate) at which the appellant represented himself. At the hearing, the appellant conceded that he had punched the complainant, causing actual bodily harm. He asserted that the punch had been delivered in self-defence. The Magistrate returned a guilty verdict.
The appellant appealed. On 2 March 2017, Penfold J (the primary judge) heard the appeal. The appellant was represented by his current lawyers. On 20 December 2018, her Honour dismissed…
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- AGLC
- Clifton v Duong [2019] ACTCA 22
- Case
- [2019] ACTCA 22
- Decision Date
CaseChat Overview and Summary
The central legal issue before the appellate court was whether the primary judge's ex parte communication with the prosecutors, concerning the viewing of CCTV evidence, created a reasonable apprehension of bias. A further issue was whether the appellant's failure to object to this communication at the time constituted a waiver of the right to raise the issue on appeal. The court also considered the nature of the appeal, specifically whether it was open to the primary judge to find that the magistrate's guilty verdict was open to be returned, and whether the appeal constituted a fresh attack on the original decision.
The court reasoned that for apprehended bias to be established, it must be shown that a fair-minded lay observer, having considered the facts, would have apprehended that the judge might not have brought an impartial mind to the issues the judge was to decide. The court found that the email communication, while not ideal, did not give rise to an apprehension of bias. The subject matter of the emails concerned a practical difficulty in viewing evidence, and the judge ultimately ensured all parties were aware of the communication. Furthermore, the court held that the appellant had waived any objection to the communication by not raising it at the earliest opportunity. The court concluded that it was open to the primary judge to find that the magistrate's verdict was open to be returned.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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