E G v The Queen

[2011] VSCA 453

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0134

E G	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 July 2011
DATE OF JUDGMENT:	6 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 453
JUDGMENT APPEALED FROM:	R v [E G] [2011] VSC 423 (Whelan J)

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CRIMINAL LAW – Plea – Interlocutory application – Attempt to pervert the course of justice, and trafficking in drug of dependence – Apprehended bias – Whether expression of provisional views during plea indicated bias – Application refused – Criminal Procedure Act 2009 s 295(3).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D P Moen	Michael J Gleeson & Associates
For the Crown	Mr P B Kidd	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. The applicant seeks review of a refusal by a judge in the trial division to certify under s 295(3) of the Criminal Procedure Act 2009 (‘the Act’) that an interlocutory decision made by the judge was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.  The decision, which was made on the sixth day of the hearing of a plea upon the  applicant's conviction on  charges of perverting the course of justice and trafficking in drugs, was to refuse to recuse himself when it was  contended that a fair minded observer might entertain an apprehension of bias on the part of the judge.

2. The attempt of pervert the course of justice was harbouring Tony Mokbel by the applicant in a residence at Bonnie Doon.  The drug offence was trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine.

3. The plea was contested in that there were live issues as to the date upon which the harbouring commenced and the applicant’s motive for it, the date upon which the applicant became involved in the drug trafficking enterprise and  the extent of his involvement.

4. In the course of submissions by counsel for the applicant, his Honour appeared to doubt the accuracy of counsel's assertion that there was a legitimate dispute as to the facts, said that he was 'unpersuaded' as to counsel's characterisation of the applicant's involvement, and said that he was of the opinion that the date of the commencement of the applicant's involvement in harbouring Tony Mokbel,

   Wouldn't be all that significant because on the harbouring it does not really make a great deal of difference whether it was July or October.

5. His Honour said that the applicant was ‘dearly heavily involved in Mokbel's harbouring’, and said before submissions had been made, that he was of the view that he could not find on the balance of probabilities who motivated the applicant to become involved in the harbouring or the trafficking.  When counsel asked whether his Honour had judged the matter already he said:

   The area where I am at the moment, I am unpersuaded as to the way you characterise his involvement in the offending so that's where you  need to devote your attention if you want to persuade me.  But the way it appears to me at the moment is not correct.

6. I have some doubts as to whether a ‘proceeding in the trial division of the Supreme Court for the prosecution of an indictable offence’ within the meaning of s 295(1) of the Act includes a plea as to sentence.

7. For present purposes, however, I am content to assume that the plea was a trial but in my view the application should fail because the proposed appeal has no real prospect of success and for that reason it is not of sufficient importance to the trial to justify the correctness of the decision being determined in an interlocutory appeal.

8. The transcript of the plea discloses, in my view, no more than the  expression of provisional views by the judge for the purpose of ascertaining the arguments or evidence that could be marshalled to prevent those views being embodied in a final decision.  A socratic dialogue of that nature is an every day occurrence in our courts.  Indeed judges should be at pains to ensure that counsel are aware of issues that concern the judge  so that counsel can address them.

9. This judge had presided over the plea for some days, and all the evidence had been led.  It would be surprising if his Honour had not  formed views as to the role played by the applicant.

10. In my opinion there is no reasonable prospect that a court of appeal would be persuaded that a fair minded observer with knowledge of the facts might entertain an apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the appropriate sentence to be imposed upon the applicant.

11. I would add that the  utility of an interlocutory appeal in respect of a plea that had almost concluded is not readily apparent.  The applicant can seek leave to appeal against the sentence on the ground of apprehended bias.

12. For the foregoing reasons, I will not grant leave to appeal.

13. The order of the Court is that the application for leave to appeal is refused.

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