Dural (a pseudonym) v The Queen - [2021] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0106

STEVEN DURAL (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in the place of the name of the applicant.

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2021
DATE OF JUDGMENT:	31 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 82
JUDGMENT APPEALED FROM:	DPP v [Dural] (Unreported, County Court of Victoria, 18 May 2020, Judge Murphy)

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COURTS AND JUDGES – Bias – Actual bias – Apprehended bias – Unrepresented defendant – Hearing adjourned without notice to defendant – Ex parte communication – Procedural unfairness – Defendant’s understandable grievance – Need for strict observance of notice requirements – Judge’s responsibility to manage hearings – Interventions did not display bias – No basis for disqualification – Application dismissed – Criminal Procedure Act ss 295(3), 296.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr Prosecutor	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA:

The applicant is facing trial in the County Court on a single charge of making a threat to kill, contrary to s 20 of the Crimes Act 1958. To date, he has chosen to represent himself in that proceeding.[2]
[2]In announcing his appearance in this Court, the applicant described himself as being ‘self-represented by choice’.

On 18 May 2020, at a pre-trial hearing conducted before the judge allocated to hear the trial, Judge Murphy, the applicant applied to the judge for him to disqualify himself on the grounds of bias. The judge refused the application.[3] The applicant then applied to the judge for a certificate under s 295(3) of the Criminal Procedure Act 2009. This application was also refused by the judge.[4]
[3]DPP v [Dural] (Unreported, County Court of Victoria, Judge Murphy, 18 May 2020) (‘Bias Ruling’).
[4]DPP v [Dural] (Unreported, County Court of Victoria, Judge Murphy, 18 May 2020) (‘Certification Ruling’).

Subsequently, the applicant filed an application in this Court under s 296(1) for a review of the judge’s refusal to certify. In accordance with Practice Note SC CA 2, the applicant also filed an application for leave to appeal against the judge’s refusal to disqualify himself (although, as s 295(3) makes clear, a party may not seek leave to appeal unless he or she has first been granted certification).

We invited the applicant to advance his substantive complaints about bias in support of the application to review the judge’s refusal to certify. He took up that opportunity and, by reference to the transcript and the video recording of the several hearings before Judge Murphy, gave a clear explanation of why — as he put it — he felt that ‘the scale was really tipped against me all the way’.

As will appear, there were instances of procedural unfairness in the course of the three hearings which make the applicant’s sense of grievance entirely understandable. These events highlight…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dural (a pseudonym) v The Queen

Details

AGLC: Dural (a pseudonym) v The Queen [2021] VSCA 82
Case: [2021] VSCA 82
Decision Date: 31 March 2021

CaseChat Overview and Summary

Dural (a pseudonym) was charged with offences under the Criminal Code. The defendant sought to disqualify the trial judge, alleging bias. The matter was heard in the High Court of Australia. The central issue was whether the judge’s actions warranted disqualification due to apprehended bias. The court considered whether the judge’s conduct during the proceedings was fair and whether any ex parte communications or procedural irregularities were substantial enough to suggest bias.

The court examined the facts surrounding the defendant’s complaints, including the adjournment of the hearing without notice to Dural, and communications between the judge and a party representative. The High Court held that the judge's actions, while arguably procedurally improper, did not reach the threshold of bias that would necessitate disqualification. The court emphasised the importance of strict adherence to notice requirements and the judge’s duty to manage hearings fairly, but found that the judge's conduct did not reflect actual bias or a reasonable apprehension of bias. The interventions made by the judge did not display any partiality or unfairness that would undermine the trial’s integrity.

Consequently, the High Court dismissed the application for disqualification. The reasoning underscored the need for judicial impartiality and procedural fairness, but also highlighted that not every procedural irregularity or grievance equates to bias warranting disqualification. The court found no basis to conclude that the judge was biased or that the defendant’s apprehensions of bias were justified. As a result, the trial could proceed as scheduled.

Orders