Director of Public Prosecutions (SA) v Disorganized Developments Pty Ltd - [2020] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v DISORGANIZED DEVELOPMENTS PTY LTD
[2020] SASC 139
Judgment of The Honourable Justice Lovell
11 August 2020
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
The applicant brought proceedings seeking restraining and forfeiture orders over a property at Ponde, which belongs to the respondent, Disorganized Developments Pty Ltd. The basis of the application is the location of a damaged Toyota Echo, buried on the property, suspected to be linked to the murder of Mark Boyce.
In June 2019, Joshua Grant was convicted of murdering Boyce. He appealed his conviction to the Court of Criminal Appeal ('CCA') and his appeal was refused.
Application for recusal where Judge has previously sat on CCA matter – facts disputed in these proceedings accepted as established beyond reasonable doubt in CCA matter– whether there is a reasonable apprehension of bias.
Held:
1. The application for recusal is allowed.
Criminal Assets Confiscation Act 2005 (SA) s 24, s 220, referred to.
Livesey v New South Wales Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re JRL; Ex Parte CJL (1986) 161 CLR 342, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v DISORGANIZED DEVELOPMENTS PTY LTD
[2020] SASC 139
LOVELL J.
Overview

The applicant, the Director of Public Prosecutions, brought a claim under the Criminal Assets Confiscation Act 2005 (SA) (‘the Act’) for restraining and forfeiture orders over a property at Ponde (‘the Ponde property’) owned by the respondent, Disorganized Developments Pty Ltd.
On 21 June 2019, Joshua Grant was convicted of murdering Mark Boyce (‘the deceased’). At trial, the prosecution alleged that Grant, in the company of two others, arrived at the scene of the murder in two vehicles, one of which was a blue Toyota Echo. In September 2019, police located a damaged Toyota Echo, buried on the Ponde property. The location of the Toyota Echo on the Ponde property is the basis of the claim for the restraining order.
Grant appealed his conviction to the Court of Criminal Appeal on which I sat as a member of the coram. Before judgment was delivered in Grant v The Queen,[1] I informed the parties of this potential issue. Counsel for the respondent, Mr Wells QC, applied for me to recuse myself from determining these proceedings.
[1] [2020] SASCFC 61.
After hearing submissions, I recused myself from the matter, with reasons to follow. These are my reasons for making that order.
Background
On 30 January 2017, the deceased was confronted by three men while sitting in a vehicle outside of his house on Hill Street, Elizabeth South. The deceased got out of his car and was chased down the street. One of the men chased the deceased on foot, before restraining and assaulting him. The other men followed the chase in their cars. Once they reached the deceased and the other man, the men got out of their cars and joined in the assault of the deceased. On 8 February 2017, the deceased died in hospital as a result of the injuries sustained in the attack.
The prosecution alleged that three attackers arrived at the scene of the murder in two vehicles, one of which was a blue Toyota Echo. Grant was the only suspect arrested for the murder. He was convicted on 21 June 2019. Grant appealed against his conviction to the Court of Criminal Appeal. I was a member of the coram hearing that appeal.
Police suspected two other men, A and B, of being involved. Between 1 January 2017 and 31 March 2017, a blue Toyota Echo was registered to A. The previous owner of the car noted that it had faded paint on its roof and a “hot dog exhaust”. Witnesses of the incident described the Toyota Echo having the same features.
On 18 September 2019, police located a blue Toyota Echo at the Ponde property. The car was damaged significantly and was buried four metres underground. The location of the car gave rise to the Director’s application for restraining and forfeiture orders over the Ponde property.
Legal principles
The principles in this area are well-established. A judge should not hear a case if in all the circumstances a fair-minded lay observer may reasonably apprehend that the judge may not bring an impartial mind to the resolution of the question the judge is required to decide.[2] The onus of establishing that matter is on the party applying for recusal.
[2] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 per Mason, Murphy, Brennan, Deane and Dawson JJ.
As set out by the High Court in Johnson v Johnson:[3]
The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and 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”.
[3] (2000) 201 CLR 488 at 491 [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
Where a judge has previously expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact, a fair‑minded observer might entertain a reasonable apprehension of bias by reason of prejudgment.[4]
[4] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300 per Mason, Murphy, Brennan, Deane and Dawson JJ.
These principles give effect to the requirement that justice should both be done and seen to be done.[5] However, it is important that judicial officers should be careful not to accede too readily to suggestions of appearance of bias as such may 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.[6]
[5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 244 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[6] Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352 per Mason J.
The application
For a restraining order pursuant to sub-ss 24(1)(b) and (5) of the Act, the Director must prove, on the balance of probabilities, that a person is suspected on reasonable grounds of having committed a serious offence and that the property is the property of the suspect. In this regard, the Director will rely on the suspected involvement of A in the murder of the deceased and the subsequent use of the Ponde property to dispose of the Toyota Echo used in that offence.
Grant’s trial and appeal proceeded on the basis that A was involved in the offending. In particular, it was admitted by Grant that:
1A was present at the murder and was the principal offender in the assault on the deceased;
2A was the driver and registered owner of the Toyota Echo; and
3the Toyota Echo was present at the incident and was driven by A.
These facts will be disputed by the respondent at the trial of the present proceedings.
Mr Wells submitted that a fair-minded lay observer may reasonably apprehend that I might bring to the determination of the Director’s application, my understanding of those facts which were agreed at Grant’s trial and on appeal. He submitted that for his client to succeed in this matter I would have to make findings of fact inconsistent with the facts admitted in Grant’s trial.
Counsel for the Director, Mr Longson, submitted that Grant’s admissions at trial (regarding A’s presence) was a tactical decision. He submitted that the fair‑minded lay observer would be informed of the reasons for those admissions and would not apprehend that I would not bring an impartial mind to the determination of these proceedings. Mr Longson, however, submitted that if a co-accused of Grant was arrested and charged with murder, my involvement in Grant’s appeal would disqualify me from hearing the co-accused’s trial, if he elected for trial by judge alone.
Consideration
The question to be resolved is whether a fair-minded lay observer may reasonably apprehend that I may not bring an impartial mind to the determination of the Director’s application. The crux of the submission is that my resolution of the matter may be coloured by the facts which I accepted as a member of the Court of Criminal Appeal but which are disputed in these proceedings.
The trial Judge will be required to rule on the reasonableness of suspecting A in the murder of the deceased. Grant’s trial proceeded on the basis that A was not only suspected to be involved, but that he was the principal offender. It was accepted at Grant’s trial that A drove to the deceased’s home in the blue Toyota Echo the subject of this matter. These facts were taken as proven beyond a reasonable doubt on appeal. To make the restraining order under the Act, the trial Judge need only be satisfied of these facts on a balance of probabilities.[7]
[7] Criminal Assets Confiscation Act 2005 (SA) s 220(2).
In making my decision, I have considered Mr Longson’s concession that I would have to recuse myself from hearing a trial by judge alone of Grant’s alleged co-accused. The difficulty in proceeding is that I have expressly embraced a version of events which is fundamentally inconsistent with the respondent’s position in this matter.
The legal test of recusal involves an evaluative judgment and the test does not offer a bright line where cases clearly fall on one side or the other. In this case, there are respectable arguments both for and against recusal. However, and not without hesitation, I find that the respondent has discharged the burden of proof.
For those reasons, I allow the application for recusal.