Eastman v The Queen

Case [2015] ACTCA 24


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Eastman v The Queen

Citation:

[2015] ACTCA 24

Hearing Date(s):

14 May 2015

DecisionDate:

10 June 2015

Before:

Wigney J, Walmsley and Robinson AJJ

Decision:

The Court orders that:

(1)   The appeal is allowed.

(2)   The order made by Whealy AJ on 24 April 2015 dismissing the appellant’s application that Whealy AJ recuse himself from hearing the appellant’s application that his trial be permanently stayed is set aside.

(3) Whealy AJ be disqualified from hearing the appellant’s application that his trial be permanently stayed.

Category:

Interlocutory application

Catchwords:

APPEAL – Application for judge to disqualify himself from hearing an application for permanent stay of the accused’s trial – apprehended bias – where apprehended bias claimed to arise from past professional association between judge and witness -  whether incorrect test for apprehended bias applied – whether judge should have recused himself on the basis of apprehended bias.

Legislation Cited:

Crimes Act 1900 (ACT), ss 430(2), 475
Court Procedure Rules 2006 (ACT), Division 5.4.2
Evidence Act 2011 (ACT), s 144

Cases Cited:

Bienstein v Bienstein (2003) 195 ALR 225
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283
Bugeja v R (2010) 30 VR 493
CDJ v VAJ (1998) 197 CLR 172
Director of Public Prosecutions (ACT) v Martin (2014) 9 ACTLR 1
Eastman v Director of Public Prosecutions(ACT) (No 2) (2014) 9 ACTLR 178
Eastman v The Queen (1997) 76 FCR 9
Eastman v The Queen (2000) 203 CLR 1
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fried v National Australia Bank Ltd [2000] FCA 787
Hillier v The Queen (2008) 1 ACTLR 235
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Moti v The Queen (2011) 245 CLR 456
R v Bui [2008] NSWCCA 297
R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42
R v Latif [1996] 1 AII ER 353
Re JRL; Ex parte CJL (1986) 161 CLR 342
Vakauta v Kelly (1988) 13 NSWLR 502
Webb v The Queen (1994) 181 CLR 41
Whitehorn v The Queen (1983) 152 CLR 657

Parties:

David Harold Eastman (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr C Boyce SC and Ms L Line (Appellant)

Mr M Thangaraj SC and Dr P Dwyer (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

ACTCA 18 of 2015

Decision under appeal: 

Court:  Supreme Court of the Australian Capital Territory

Before:  Whealy AJ

Date of Decision:          24 April 2015

Case Title:  R v Eastman (No 2)

Citation: [2015] ACTSC 98

THE COURT:

  1. The test for a judge to apply in considering an application for disqualification or recusal on the basis of apprehended bias is well settled and relatively easy to state.  It is, however, not always easy to apply.  It involves questions of degree and value judgment and the balancing of sometimes competing considerations.…

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AGLC
Eastman v The Queen [2015] ACTCA 24
Case
[2015] ACTCA 24
Decision Date

CaseChat Overview and Summary

The appeal in *Eastman v The Queen* concerned an application by the appellant for a judge to disqualify himself from hearing an application for a permanent stay of the appellant's trial. The apprehended bias was claimed to arise from a past professional association between the judge and a witness. The appeal was heard by Wigney J, Walmsley and Robinson AJJ.

The central legal issue before the appellate court was whether the judge below had applied the incorrect test for apprehended bias and, consequently, whether the judge should have recused himself from hearing the application for a permanent stay.

The Court allowed the appeal, finding that the judge below had erred in his application of the test for apprehended bias. The appellate court set aside the order dismissing the appellant's application for recusal and disqualified the judge from hearing the application for a permanent stay.

Orders

Orders of the court

The Court orders that:

(1) The appeal is allowed.

(2) The order made by Whealy AJ on 24 April 2015 dismissing the appellant’s application that Whealy AJ recuse himself from hearing the appellant’s application that his trial be permanently stayed is set aside.

(3) Whealy AJ be disqualified from hearing the appellant’s application that his trial be permanently stayed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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