DPP and Samuel Peter Smith

[2014] VCC 376

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00821

DPP

v

Samuel Peter Smith

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JUDGE:	Cannon
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2014
DATE OF RULING:	1 April 2014
CASE MAY BE CITED AS:	DPP and Samuel Peter Smith
MEDIUM NEUTRAL CITATION:	[2014] VCC 376

RULING No.1
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Subject:  CRIMINAL LAW

Catchwords:             Ruling – Assertion made by accused about a possible life threatening illness – Assertion found to have no evidentiary basis - Judicial remarks - Defence Application for recusal – Basis of Application perceived bias           

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Hennessy	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Ms F. Todd	Robert Stary Lawyers

HER HONOUR:

1       Application has been made by defence in this trial for me to recuse myself in circumstances where, in essence, I learnt that there was no evidentiary basis for the accused's assertion, made through his Counsel Ms Todd yesterday, that he had a potentially life threatening medical condition which might necessitate the adjournment of the trial.

2       Having heard from Ms Todd today, I remarked that this matter may well warrant police investigation and made mention of an attempt to pervert the course of justice in that context.  I indicated that the matter would not cloud my judgment in relation to any matter concerning the accused in this trial.  However, upon taking instructions, Ms Todd did apply to have me disqualify myself on the basis of perceived bias, as she submitted that my remarks had the potential to cloud my judgment in relation to rulings and the directions I might give.

3       Having considered this matter, reviewed the transcript and considered the appropriate test, that is whether fair-minded people might reasonably apprehend or suspect that the Judge has prejudged or might prejudge the case, I am of the view that this test is not made out.  Whilst I expressed some disquiet about the accused's conduct in respect of this particular matter, I am able to, and shall, put this matter to one side, as Judges are trained to do, and we will move on.

4       As to whether the conduct in question is investigated or not, this is a matter for the authorities and at no time did I refer the matter for their investigation.  Any fair minded observer would have noted that Defence essentially conceded that the court had been misled, as it has been.  For me to say what I said this morning was to state the obvious.  Having satisfied myself that the accused was not medically unfit to follow proceedings, in no way did those remarks indicate or reflect a pre-judgment of the matters alleged against the accused in this trial, which will be decided by a jury, not me.

5       However, insofar as rulings and directions are concerned, what has transpired will in no way adversely impact on my objectivity.  In my view, it is not the case that a fair-minded observer, having been appraised of what transpired yesterday and this morning, might reasonably apprehend or suspect that I have pre-judged or might pre-judge the case.  Therefore I refuse the application.