De Alwis v The State of Western Australia [No 3]
[2015] WASCA 41
•10 MARCH 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DE ALWIS -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2015] WASCA 41
CORAM: McLURE P
HEARD: 10 DECEMBER 2014 & ON THE PAPERS
DELIVERED : 10 MARCH 2015
FILE NO/S: CACR 274 of 2012
CACR 275 of 2012
BETWEEN: VIJITHA GAMINI DE ALWIS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :IND 1086 of 2011
Catchwords:
Criminal law - Application for recusal - Bias - Turns on own facts
Legislation:
Nil
Result:
Application for recusal refused
Category: B
Representation:
Counsel:
Appellant: On the papers
Respondent: On the papers
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
McKenzie v McKenzie [1970] 3 All ER 1034
Santos v The State of Western Australia [No 2] [2013] WASCA 39
The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
McLURE P: On 10 December 2014 this court heard the appellant's applications to set aside springing orders and for an extension of time to file the appellant's case in each appeal (the extension applications).
After the final hearing of the extension applications on 10 December 2014, the appellant filed an application seeking multiple orders, one of which is that I recuse myself from determining the extension applications. The claim is one of 'imputed' bias, which I understand to mean apprehended bias.
The application is supported by a 51-page handwritten affidavit sworn by the appellant. It appears the basis for the application is the refusal of leave for the appellant's daughter to assist him as a McKenzie friend and a comment relating to the appellant's history of collapsing in court (ts 72). Otherwise the affidavit is devoted to the appellant's evidence of his medical and health conditions. The recusal application cannot be used as a vehicle to fill the large gaps in the evidence adduced at the hearing. Leave to re-open has not been sought or granted. I propose to deal with the recusal application on the papers.
In the case of apprehended bias, the test 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 that the judge is required to decide: The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 [64].
The questions before this court involve two primary issues: first, whether the appellant's gross delays in prosecuting the appeals were satisfactorily explained by sworn evidence, in admissible form, filed in the appeals and second, the merits of the grounds of appeal.
Preparation for the hearing of the extension applications included informing myself of the procedural history leading up to and including the appellant's trial, his sentencing and the appeals. I had also identified other litigation in this court involving the appellant of which I was aware. There is a high level of consistency in the appellant's conduct of litigation, involving a history of delays and adjournments, including health related forced adjournments the subject of my comment. The comment was in response to a submission made by the appellant and was on a matter relevant to the merits of grounds in the conviction and sentence appeals. Awareness of the appellant's litigation history from published judgments cannot give rise to a reasonable apprehension of bias.
At the hearing of the extension applications the appellant's daughter was permitted to make oral submissions on behalf of the appellant, which goes beyond the more limited role of a McKenzie friend: McKenzie v McKenzie [1970] 3 All ER 1034, 1036; Santos v The State of Western Australia [No 2] [2013] WASCA 39 [10]. After the appellant took over the role of making oral submissions, the appellant's daughter assumed the role of a McKenzie friend.
The matters relied on by the appellant cannot give rise to a reasonable apprehension of bias. I refuse to recuse myself.
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