Cosgrove, Christopher James v the Queen

[1984] FCA 370

370

IN THE FEI?EPAL CQlJRT OF AFSTRALIA	) )
AUSTQAL,IAN rAPITAL TERP?TORP	)
) No. ACT G337 of 1984

REGISTRY	DJ_S_TRICT	I
)

GEIIE2AL DIVISION )

Applicant

.AND : OIJEEN THE

Respondent

,JUFGE MAKING ORDER: Neaves J .

DATE OF ORDET.: 12 November 1 9 8 4

WHEXE MADE: Canberra

THE COURT ORDERS THAT t'pe appllcatlon be dlsmlssed.

';m : Neaves J.

-m:	12 November 1984
Neaves J. :

This 1 s an apelication umler section 2 4 of the

.-.	redera: Court of Australia Act l976 for leave to appeal from
=hat 1s descrlbed In the appllcatl-n as "the Judqment of his
Honour Mr Justlce Gallop ulven on Tuesday, 30 Octsber l984
at Canberra in the Supreme Court of the Australian Capital
Territory".

Chrlstopher Jamec Cosgrove ("the applicant") is to

appear before the Supreme Court of the Australian Capltal

Territory on 13 November 1954 on two charges of armed

robbery and one charge of possession of property stolen outslde the Australian Capital Territory. The d f e n c e s are alleged to have 3een commltted on or about 11 October 1982.

m e applicant was commltted for tclal on those charses on 5

Jdnuary 1983. _ _

The Collrt was Informed. as was Gallop J. on 30

;)ctober 1984, Chat the applicant pro-,Tses to plead ~ u l i t : ~

when arraluned on those charges cn 13 Noveaber 1984.

Vpcn the apDllcant becominu sware that the Supreme

Court of the AustrslLan Cdpltal Territory when hesrmq the char7es agalnst hlm would be constltuted Sy G a l l ; ~ p , J . , an approach was made thrcuah the Clerk to the JuLges of that rourt invltlnu the 1e3rned Judge to dlsqualif:; hlmself f rom hearlnq the Frcceedlnus.

HIS Sonour sat In open court on 30 October 1984 to enable the natter to be canvassed. Counsel for the .tppllcant referred to the basis of the appllcatim and submltted that the circumstances were such that hls Honour should dlsquallfy hlmself. Counsel f o r the Crown Informed hls Honour that the Crown ralsed no objectlon to hls Honour

hearinq the proceedlngs, placlng some reliance on the

clrcumstance that the proceedlngs were to be for sentence

only. After hearlnq the submlssions Gallop J. decllned to dlsquallfy himself. It is from that pronouncement of Gallop

J. that the appllcant seeks leave to appeal.

To supFort ?he appllcatlon made to Gallop S. that he should disquaL1f:J hlmself from hearlng the proceedlnqs.

..

the appllcant relled on certaln statements whlch hls Honollr had made when sentenclnu the 3pplicant on 2 8 March 1983 to terms of imprlsonment (ordered to be served concurrFntly) for certaln offences cornmltted In 1981. Three offences were Involved, one of f ormqerv, one of utterlnu and OR? of recelvlnq.

In passlng sentence In relatlon to thJSe ~ f f % n c ~ s

hls Honolx stated the facts concernlnq the offences,

referrerl to the appilcant's crlm~nal record and discussed vhether he should glve any 4:redlt ir. the sentences he was 3bout to lmgose for the periods durlng w h c h the applicant had been in custody since the commlsslon of the offences.

HIS Honour referred tc the appllcant's escape from custoty

on two occasions and hls re-arrest after short perlcds at llberty. He also referred to the matters which in nls view

could properly be taken Into account In favour of leniency.

In the course of referring to the appllcant's crimlnal record the learned Judge sald:

"Thls is yet another case of a young man, 2 0

years of age, who has had a long assoclation

4 .

wlth the crlminal law and has a really

disgraceful record for a man of 2 0 years of

age. ' I

Later h1s Honour sald:

. - .

"He was arrested agaln on 16 October 1982 and he has been ln custody at the Belconnen Remand Centre slnce then. The acc*Jsed has been lt7

lnstitutions in New South Wales and has been a

tremendous social nuisance. I sccept the observatlons of the velfare gfficer that the accused 1 s manlpulative, lacklng emot.-mal warvth. calculatlng m d has a lack of concern or anx1et:I for m:lbody cr people's propert:;. or for m y fqrm nf authcrlty.

He s2ems 60 lack self-control in a most serious

-day . Whether thls 1 s due to him b e m g

emotlonally disturbed or mentally dlsturbed has yet to Se investlgated. I am afraid I see klm as beyond redemption. I thlnk that probably what the future holds for thls young man 1 s a llfe of crlme. a llfe of helm detected and sentenced to terms of Imprisonment. accordlngly. hence he wlll live all his l l f e In and out of qaol. come out, llve on his wits for a littie whlle, commlt some more crimes, get caught and

go back In. A classic recldivist."

It vas upon these quoted passages that the

3.ppilcant relled. No critlcism was offered of the remarks

mace by the learned Judge on the previous occasion. Indeed,

lt was expressly acknowledged on behalf of the appllcdnt

that hls Honour was perfectly entitled, on the material t h m before hlm, to make those remarks. It was not suggested that the learned Judge was actually blased or pre2udlced sqainst the applicant. What was sald was that, by reason of the remarks which hls Honour had made cn the prevlous occaslon, the partles or the publlc might entertaln a

5 .

reasonable apprehenslon that, by reason of pre-ludqment, :?e

might not brlnq an lmpartlal and unpre;udlced mlnd to the

resolutlm of the questlnns lnvolqled In the proceedlngs

zhlch were t o come before the Ccurt on 13 November 1934.

geference was made to L:vesev v . New south Wales Bar

Associatlon (1983) 4 7 A . L . R . 45.

There 1 s a threshnold question whlch, 1n my

g,plnlan. 1 s fatal to the applicaElon. The issue whlch the applicant wlshes to ralse before a Fuil Court of this Court

by wa:? of appeal 1 s wheth2r. In all the clrcumstances, the

due admlnlzcratlon of Iustlce requlres that Gallop J. riot slt to hear the proceedlngs auainst the applicant. the

applicant havlng taken ob~ectlon to hlm s o sittlnq. An appeai, nowever, does not l l e to this Court from the Supr5me Court of the Australian Sapltal Territory except from a ludqment. decree n r order of that Court, whether flnal or lnterlocutcr:/, or from a sentence imposed by t:lat Court. 'Pat apFears from the provlslons of section 24 ar.d the deflnltlor. of "judgment" In sectlon 4 of the Feder31 Court

of A u z t r s l l a Act 1076.

What was done by Gallop J. on 30 October 1984 clearly dld not amount to a sentence. Equally cle?irly what was done dld not amount to a ~udqment or decree. Dld lt,

howe*fer, amqunt to an order?

6

In n:r oplnlon thls questlon admlcs of no other than

a neuatlve answer. All that hls Honour dld w a s C O make a statement, In relatlon to proceedlnqs whlch were to come before the Supreme Court in due course, that he did not regard himself as disquallfled. Such a statement 1s not, In my oplnlon, aptly descrlbed as an operatlv? 2udlclal act determlnlng ~r settlinu the rlghts or llabllitles of the applicant. c r of any other person. m d lt 1 s . therefor?, not an order from whlch an anpeal may be brought to this Ccurt

(see The Commcnwealth v. Muilane (136i; 1 2 6 C.L.R. i66!.

I should. however, add that, had. I been of the contrarlr view, I would not, in the exercise 3f my dlscretron. ?.a.Je granted leave to anpeal In the clrcumstances c€ t h l s case.

The princlple to be applied where it 1s. suqaected

that a :udqe should not hear a proceeding on a ?round such

as that relled upon In thls case 1s ciearl:~ ostabllshed:

see P - V . Watson; Ex parte Armstr-7- (1976) 136 C.L.R. 348

at pp. 259-263 and Llvesey V . New South Wales Bar

Associatlcn. suDra at p.48. In the latter case the High

Court said (at pp.48-49):

"In a case such as the present where there 1s no

allegatron of actual blas, the questlon whether a ludge who 1s confident of hrs own ablllty to

determlne the case before hlm fairly and

lmpartlally on the evidence should refraln from sitting because of a suggestlon that the views

l .

which he has exressed In h1s Judgment In some prevlous case may result In an appearance of pre-Judgment can be a dlffzcult one lnvoiving matters 'of degree and particular c~rcumstances

may strlke different mlnds In different wa:Js'

. . . If a judge at flrst Instance considers that

there any is real poss;b;:~ty that h l s

.. partlclpatlon In a case mlqht lead to a

reasonable apprehenslon of pre-!udgment or blas.

he should, of course, refraln from 51ttlcg. On

the other hand, ~t would be an abdlcatlon of ~udiclal function and an encouragement of orocedural abuse for a 3ud;ge to adopt the

ipproach that he should automaticsllg disquallfy

hlmself whenever he w a s reqllested by one party

so to do on the grounds of a posslble appearance

of pre-~udgmenc or blas. regardless gf whether the other party desired that the matter be dealt

-.nth by him as the 3udae to whom the hearinq of

the case had been entrusted by the ordlnary procedures and practlce of the particular court,.

Once lt is accepted that a judge should not

automatically stand sslde whenever he 1s requested so to do, ~t 1 s lnevltable that appellate courts, removed from the pressure of a posslble need for immedlate decislon and enjoylnq the advantages both of hlndsiaht and, concezvably, further materla1 and lnformatlon, m 1 1 on occasion ccnclude that a declslon of a ~udge at flrst instance that he shculd sit was mlstaken and has resulted In a sltuatlon where one of the partles or a falr-mlnded observer mluht entertaln a reasonable apprehension of blas or pre-?udqment. Such a conclusion does not Involve any personal criticism of the ~udge

at flrst Instance or any assessment of hls

qualltles or of his ablllty to have dealt wlth the case before hlm fairly and wlthout pre-ludgment o r bias. It 1 s simply an instance of the ordlnary worklnq of the appellate process In whlch the views of the ludqes who constltute

the appellate court prevall over the vlews of

the ~udge or ~udges who constltuted the court

from which the appeal is broL,cht."

It IS, of course, no part of my function In hearlng the present application to express a vlew upon the questlon which would arise for decision by a Full Court If leave to appeal were granted and I refraln from dolnq s o . But I am

far from satisfied that the appllcant has establ~shea a.

case €or the lnterventlon of thzs Court at, the present staqe

of the proceedlngs In the Supreme Court. If there 1s

substance In the polnt whlch the appllcant seeks to make It

wlll remaln available to hlm after sentence has Seen passed

In that Court. From that sentence the applicant may appeal

as of rqht to thls Court and the Courr: wlll, as the High Court lndic3te.l In the passaue clted above. then be 12 a posltion to conslder the matter wlth the advantages of

hinds-aht includlnq lnfornatlon as to the course of the

proceedlngs before the Supreme Court. O%her conslderatlons

mluht prevail if the proceedings ln that [Court were l l k e l y

to be protracted. Hcwever. that is not the posltlcn In the present case. If the pomt is to be persisted ln, the more spproprlate caurse, In m13 opynlon. 13 fcr t h e matter to be

ralsec? ,as a grcund o f lppeal agalnst sentence.

I certify that this and

the preceding 7 pages are

a true copy of the Reasons

for Judgment herel? of the

Honcurable Mr Justice

Ne.sves.

Dated: 12 November 1984