De Alwis v The State of Western Australia [No 4]
[2015] WASCA 43
•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 4] [2015] WASCA 43
CORAM: MAZZA JA
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:
Recusal application - Alleged actual or apprehended bias
Legislation:
Nil
Result:
Application for Mazza JA's recusal dismissed
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):
De Alwis v The State of Western Australia [2012] WASCA 146
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
MTI v SUL [No 2] [2012] WASCA 87
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
MAZZA JA: On 10 December 2014, along with McLure P and Buss JA, I heard the appellant's application to set aside orders dismissing his appeals against conviction and sentence for failure to file appellant's cases and for an extension of time to file an appellant's case in those appeals. The appellant did not apply at the hearing for an order that I recuse myself. At the conclusion of the hearing, the court reserved its decision.
After the hearing, and without seeking the leave of the court, the appellant sought to file a document dated 15 December 2013 [sic] entitled, 'Application in an application' seeking 14 orders, one of which (number 4) was that I 'recuse [myself] from hearing, determining and deciding this matter'. The facts on which this order is sought are set out in an affidavit sworn by the appellant on 30 December 2014. Nowhere does the appellant expressly state the legal basis upon which I should recuse myself. I infer that the appellant alleges actual or apprehended bias on my part.
Relevant principles
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).
The test to be applied in 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] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ). See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] ‑ [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
The fair‑minded lay observer is taken to be reasonable, bearing in mind that the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial': Johnson v Johnson [12].
Where a party contends that actual bias exists, the applicant must show that the mind of the decision‑maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72] (Gleeson CJ & Gummow J). Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69].
The affidavit of 30 December 2014
The appellant refers to two matters in his affidavit which he claims justify my recusal. First, that I was part of the coram that unanimously dismissed his appeal against the refusal by Wisbey DCJ to grant him bail after the trial in March 2012 was adjourned: De Alwis v The State of Western Australia [2012] WASCA 146. Second, that I made the 'springing order' on 3 May 2013 which the appellant now seeks to set aside. He says that he is aggrieved by these decisions, the latter of which was made more than 18 months before the hearing of these proceedings and against which he has not sought a review.
Merely because I have decided matters against the appellant and that he feels aggrieved does not provide a proper basis for a claim of actual bias or for a reasonable apprehension of bias: MTI v SUL [No 2] [2012] WASCA 87 [14] (Newnes & Murphy JJA).
There is nothing in the matters raised by the appellant that is capable of giving rise to the conclusion that, whatever evidence or arguments he presents, I have prejudged his applications and that my mind is incapable of alteration. Nor is there anything about them which would cause a fair‑minded lay observer to reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the applications.
The appellant's application for my recusal is dismissed.
7
7
1