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Eastman v The Queen

Eastman v The Queen

Case [2015] ACTCA 24 10 June 2015

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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:

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.…

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 Eastman v The Queen

Details

AGLC: Eastman v The Queen [2015] ACTCA 24
Case: [2015] ACTCA 24
Decision Date: 10 June 2015

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Eastman v The Queen [2015] ACTCA 24

Most Recent Citation

Dunstan v Orr [2022] FCA 1006

Cases citing this decision · 7 of 7 shown

Dunstan v Orr
[2022] FCA 1006 Para 8

…reply submissions, Mr Dunstan sought to liken the circumstances of this case to those that were considered in Eastman v The Queen (2015) 295 FLR 426; [2015] ACTCA 24. The circumstances in Eastman were, however, entirely different. In Eastman , the judge in question had a past professional relationship with a perso…
Andrew Murray v Loretta Alamani Tulikaki
[2022] ACTMC 12

…Tobacco Australia Services Limited v Laurie [2011]; (2011) 242 CLR 283 Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 Eastman v The Queen [2015] ACTCA 24 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 2005 CLR 337 Islam v Director General of the Justice and Community Safety Directorate [2…
Noakes v Star Aviation Services Pty Ltd
[2017] ACTIC 1 Para 4

…rehended bias is that detailed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, as applied in the Australian Capital Territory in Eastman v R [2015] ACTCA 24 at [6]: “...a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the…
Faris v Coulon
[2017] ACTSC 114 Para 1

…In Eastman v R [2015] ACTCA 24; 295 FLR 426 at [30] – [32] the Court of Appeal explained the concept of apprehended bias as follows:…
Eastman v Director of Public Prosecutions (No 13)
[2016] ACTCA 65 Para 30

…case on its merits (step two). [ Ebner at [8].] The test is one of possibilities (real and not remote), not probabilities. [ Eastman v The Queen [2015] ACTCA 24 at [30].] The test involves questions of degree and value judgment and the balancing of sometimes competing considerations. The line is not always easy t…
Brisciani v Piscioneri (No 1)
[2016] ACTCA 30 Para 1

…The principles in relation to disqualification for apprehended bias are well settled and were recently re-stated by this court in Eastman v The Queen [2015] ACTCA 24 ( Eastman ) from [28]. In short, a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an i…
Islam v Director General of the Justice and Community Safety Directorate
[2015] ACTSC 279 Para 1

…e test to be applied in relation to applications for disqualification has recently been articulated by the ACT Court of Appeal in Eastman v The Queen [2015] ACTCA 24 in the following terms (at [28]):…

View all 7 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Eastman (No 2)
[2015] ACTSC 98

…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…
Eastman v Director of Public Prosecutions [No 3]
[2014] ACTSCFC 3 Para 1

…On 22 August 2014, having considered the report submitted by Martin AJ, the Full Court of this Court quashed Mr Eastman’s conviction: Eastman v Director of Public Prosecutions (ACT) (No 2) (2014) 9 ACTLR 178. Amongst other things, the Full Court found (at [253]) that it would be an affront to justic…
Moti v The Queen
[2011] HCA 50 Para 1

…t prosecutorial misconduct can provide a basis for a stay even where it cannot otherwise be concluded that the trial will be unfair: Moti v The Queen (2011) 245 CLR 456; R v Horseferry Road Magistrates’ Court ; Ex parte Bennett [1994] 1 AC 42; R v Latif [1996] 1 AII ER 353.…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 1

…leave, that is not always the case in relation to recusal applications. As the plurality pointed out in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [86], “an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well…
British American Tobacco Australia Services Ltd v Laurie
[2011] HCA 2 Para 1

…ed in, the proceedings: Webb v The Queen (1994) 181 CLR 41 at 74; Ebner at 348-349 [24]; British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 ( British American Tobacco Australia Services ) at 302 [38]. That may include a witness.…
Bugeja v The Queen
[2010] VSCA 321 Para 1

…ent a case to the jury that is unfair, or has the real potential to mislead the jury: Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; Bugeja v R (2010) 30 VR 493 at [58], [60]. He submits that Mr Adams’ breach of this duty was all the more serious given that the trial was a murder trial, involved highly comple…
R v Bui, Bui v R
[2008] NSWCCA 297 Para 1

…inferred that his Honour failed to apply the very test he earlier correctly stated. It relied, in this regard on the dicta of James J in R v Bui [2008] NSWCCA 297.…
Hillier v The Queen
[2008] ACTCA 3 Para 1

…ppeal if it was available, or could reasonably have been obtained, at the time of the hearing: CDJ v VAJ (1998) 197 CLR 172 at [114], [116], [160]; Hillier v The Queen (2008) 1 ACTLR 235. The relevant additional evidence here was plainly available at the time of the hearing before Whealy AJ. It is not enough for Mr Eastman’s…
Bienstein v Bienstein
[2003] HCA 7 Para 1

…The Crown also relied on the decision of the High Court in Bienstein v Bienstein (2003) 195 ALR 225 ( Bienstein v Bienstein ). In that matter, the High Court upheld a judgment of Hayne J not to recuse himself in circumstances where his Honour expressed his conclusion in terms which, in the Crown’s submission, were no…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 1

…The relevant principles in relation to apprehended bias are well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ( Ebner ), Gleeson CJ, McHugh, Gummow and Hayne JJ conveniently summarised the principles in the followings terms at [6] to [8]:…
Johnson v Johnson
[2000] HCA 48 Para 1

…In Johnson v Johnson (2000) 201 CLR 488 ( Johnson v Johnson ) , Kirby J said the following about the attributes of the fictitious bystander (at [53]):…
Fried v National Australia Bank Ltd
[2000] FCA 787 Para 1

…hilst by no means on all fours with this case, some assistance may be gleaned from the reasoning of Weinberg J in Fried v National Australia Bank Ltd [2000] FCA 787. In that matter, Weinberg J’s accountant was to be called as a witness in a case being heard by his Honour. The credit of the accountant was to be in…
Eastman v The Queen
[2000] HCA 29

…ound of appeal concerning whether the Full Court should have considered Mr Eastman’s fitness to plead. The High Court dismissed the appeal: Eastman 203 CLR 1. 100.Martin AJ referred to prosecuting counsel’s repeated emphasis before the jury on the reliability and importance of Mr Barnes’ evidence and found (…
CDJ v VAJ
[1998] HCA 67 Para 1

…urther evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing: CDJ v VAJ (1998) 197 CLR 172 at [114], [116], [160]; Hillier v The Queen (2008) 1 ACTLR 235. The relevant additional evidence here was plainly available at the time of the hearing…
Webb v the Queen
[1994] HCA 30 Para 1

…t or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings: Webb v The Queen (1994) 181 CLR 41 at 74; Ebner at 348-349 [24]; British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 ( British American Tobacco Australia Se…
Vakauta v Kelly
[1989] HCA 44 Para 1

…g, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”: see also Vakauta v Kelly (1988) 13 NSWLR 502 at 527. The reasonableness of any suggested apprehension of bias is to be considered in that context and in the context of ordinary judicial practice: Jo…
Vakauta v Kelly
[1988] HCATrans 331 Para 1

…ge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”: see also Vakauta v Kelly (1988) 13 NSWLR 502 at 527. The reasonableness of any suggested apprehension of bias is to be considered in that context and in the context of ordinary judicial…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 1

…that judges should not too readily accede to suggestions of the appearance of bias lest it encourage “judge shopping”: cf . Re JRL ; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J).…
Whitehorn v the Queen
[1983] HCA 42 Para 1

…a Crown Prosecutor has a duty not to present a case to the jury that is unfair, or has the real potential to mislead the jury: Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; Bugeja v R (2010) 30 VR 493 at [58], [60]. He submits that Mr Adams’ breach of this duty was all the more serious given that the trial wa…
[1994] 1 AC 42
[1994] 1 AC 42 Para 1

…therwise be concluded that the trial will be unfair: Moti v The Queen (2011) 245 CLR 456; R v Horseferry Road Magistrates’ Court ; Ex parte Bennett [1994] 1 AC 42; R v Latif [1996] 1 AII ER 353.…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
430(2), 475 3 mentions (from Para 1)
Evidence Act 2011 (ACT)
144 2 mentions (from Para 1)
Court Procedure Rules 2006 (ACT)
1 mention (from Para 1)