Clifton v Duong

Case [2019] ACTCA 22


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
Dziduch v The Queen (1990) 47 A Crim R 378
Eastman v DPP (No 13) [2016] ACTCA 65
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
ED v The Queen [2019] ACTCA 10
EOX17 v Commonwealth [2019] FCA 1118
John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; 276 ALR 221
Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6
Legal Practitioner v Law Society of the Australian Capital Territory [2018] ACTSC 351
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Mulcahy v The Queen [2012] ACTCA 3
R v Forsyth [2013] ACTSC 174
Roberts v Rhodes [2014] ACTCA 20
Vakauta v Kelly (1989) 167 CLR 568

Zecevic v DPP (Vic) (1987) 162 CLR 645

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

  1. 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).

  1. 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. 

  1. 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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Details
AGLC
Clifton v Duong [2019] ACTCA 22
Case
[2019] ACTCA 22
Decision Date

CaseChat Overview and Summary

The appeal concerned allegations of apprehended bias against the primary judge. The dispute arose from an email communication sent by the primary judge directly to the prosecutors, without initially copying the appellant's counsel, regarding difficulties in viewing CCTV evidence. Although the appellant's counsel was subsequently included in the email chain, the appellant argued that this communication gave rise to an apprehension of bias. The appeal was heard by Murrell CJ, Burns and Wigney JJ.

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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