Flavel v Morsby

[2012] VSC 433

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. S CI 5208  of 2012

HOWARD THOMAS FLAVEL	Plaintiff
v
GEOFFREY MORSBY	First Defendant
and
THE MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2012
DATE OF JUDGMENT:	12 September 2012
CASE MAY BE CITED AS:	Flavel v Morsby
MEDIUM NEUTRAL CITATION:	[2012] VSC 433

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ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Bias - Application for review of interlocutory decision in criminal proceeding - Whether apprehension of bias – Whether fragmentation of criminal proceeding justified – Discretionary considerations.

MAGISTRATES’ COURTS – Apprehended bias – Application for review of decision to reject disqualification submission made during hearing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Simon	Power & Bennett
For the First Defendant	Mr A Cockayne (Solicitor)	Department of Primary Industries
For  the Second Defendant	No appearance

HIS HONOUR:

1. I have before me an application by originating motion for relief in the nature of certiorari following the refusal of a magistrate to disqualify himself from continuing to hear criminal charges at Horsham on the grounds of apprehended bias.  The plaintiff has been charged with 55 counts under the Prevention of Cruelty to Animals Act 1986.  The charges relate to the circumstances of treatment of horses.

1. The hearing of these charges, to which the plaintiff has pleaded not guilty commenced at the Horsham Magistrates' Court on Tuesday 11 September 2012.  It has not yet concluded.  During introductory discussions in the matter, the magistrate advised the court that he had an involvement or an interest in horses and he hoped that the case would not be too distressing.  It appears that that statement did not result in any application being made to the magistrate.

1. Each of the prosecution and the defence completed opening statements.  The detail of those matters, or at least what was said by way of opening statements, is not before the court. 

1. By the afternoon of 11 September 2012, the prosecution was calling its second witness.  During the course of the evidence, the magistrate remarked, "Is this the horse the subject of the charge of aggravated cruelty?"  The prosecutor replied, "Yes".  The magistrate remarked, "No wonder".

1. It is not clear from the affidavit what the evidence was that resulted in that exchange.  The examination of the witness then continued and the magistrate interrupted counsel's examination of the witness addressing a remark to Mr Marshall who appeared for the plaintiff.  The following exchange occurred. 

1. His Honour:

Mr Marshall, can I just say this.  I am telling you now, not prejudging the matter in any shape or form as you indicated in your defence what your defence was, the evidence relating to horses one, two, three and five is pitiful – extremely distressing and painful to listen to. 

(Discussion ensued)

1. So the magistrate then said to Mr Marshall:

It is very upsetting and just appalling that a horse could be left with that quantity of sand in it.  It's just pitiful.  You might convey that to your client. 

1. Mr Marshall then requested that the magistrate stand the matter down briefly.  Before doing so, the magistrate said,

It can't get any worse.  If it can be and I have to suffer it, I will.  It's just terrible.

1. The following day, on behalf of the plaintiff, Mr Marshall applied to the magistrate that he disqualify himself for apprehended bias, referring to the magistrate’s comments that I have set out.  Mr Marshall invited the magistrate to consider LAL v The Queen.[1]  Mr Marshall also invited the magistrate to listen to his comments on the tape recording of proceedings that was apparently available. 

   [1](2011) VSCA 111.

1. The magistrate then ruled that he would not disqualify himself on the basis that a reasonable impartial observer would not have formed a view of bias in the comments that he had made.  The matter was then stood down as Mr Marshall indicated to the court that he had instructions to make this application.  It is to resume tomorrow.

1. The application has been brought on urgently in the Practice Court, out of hours. 

1. In British American Tobacco v Laurie,[2] the High Court again considered the authorities in relation to apprehended bias.  As the majority noted at [139]:

Because the rule is concerned with the appearance of bias and not the actuality, it is the perception of the hypothetical observer that provides the yardstick.  It is the public's perception of neutrality with which the rule is concerned.  In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist or who has come to a clear view about the credit of a witness may not be inclined to depart from that view in a subsequent case.  It is a recognition of human nature.  Of course all judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence.  Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing of the proceeding.  This is not a case of that kind.  It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned.  At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read His Honour's reasons for that finding.

[2][2011] HCA 2.

1. The principles applying before the magistrate are settled.  Each case turns on the particular circumstances and one of the relevant circumstances in this case is that the proceeding is yet to be completed.  I have been informed from the Bar table that the scheduling of the magistrate's commitments at Horsham will mean that the hearing of this matter will not be completed this week and is likely to resume at some future time.

1. The fact that the hearing is incomplete raises the extent to which the court should permit the fragmentation of the criminal process in the lower courts by application of this sort.  An applicant will only obtain interlocutory judicial review during a criminal proceeding when the court is satisfied there are special or exceptional circumstances to warrant the grant of relief.  I do not consider there are special or exceptional circumstances demonstrated that warrant immediate intervention in this hearing.[3]  I am reluctant to interrupt this proceeding for that reason and, further, on the affidavits before me I am not satisfied that bias can reasonably be apprehended.

   [3]Sankey v Whitlam (1978) 142 CLR 1; R v Iorlando (1983) 151 CLR 678; Lamb v Moss and Brown (1983) 76 FLR 296; Yates v Wilson (1989) 168 CLR 338; Beljajev v Director of Public Prosecutions (1991) 173 CLR 28; Harland-White v Gibbs [1993] 2 VR 215; Re Rozenes; Ex parte Burd (1994) 68 ALJR 372. Rozenes v Beljajev [1995] 1 VR 533; Flynn v DPP [1998] 1 VR 322; Atlas v DPP (2001) 3 VR 211; Guss v Magistrates Court of Victoria at Dandenong [2005] VSC 153; and Mokbel v R  [2009] VSC 372.

1. If the plaintiff is not acquitted of the charges, whether or not the proceeding is infected with apprehended bias will more clearly appear on a consideration of the whole of the circumstances in which the plaintiff was convicted.  If the plaintiff were convicted, he may seek judicial review under Order 56 on the ground of apprehended bias and in those circumstances the question of bias would be evaluated in the context of the whole of the proceeding that occurred before the magistrate.  That application, should it become necessary, will not be prejudiced by the observations that I am now making.  Alternatively, the plaintiff could appeal to the County Court where the charges would be reheard de novo by a County Court judge.  In those circumstances, the question of bias would fall away.   Of course, the plaintiff may well desire to avoid having to go through a second trial.  As I have said, he has a choice.  Counsel for the plaintiff sought to submit to me that the existence of that choice was a difficulty for the plaintiff but I do not think that it is.

1. The other circumstance relevant to my decision not to intervene turns on the limits of the evidence of what actually occurred.  On the one hand, it is clear that the use of the expression, "You might convey that to your client" was intended by the magistrate to convey the extent to which he was upset and appalled by the manner in which the horse that was the subject of the evidence had been treated.  I was informed from the Bar table that the reference to, "leaving a horse with that quantity of sand in it" related to the discovery of a significant quantity of sand in the horse's gut. 

1. However, it is not entirely clear to me what significance that comment may have in relation to the overall disposition of the charges.  It might be thought that the magistrate was expressing a view about the quality of the conduct towards the horse, that is that it was cruelty, and so predetermining an issue.  There is insufficient context for me to determine whether that is so.  The reasonable lay observer observes the hearing and is, at least hypothetically, not limited to the affidavit read on a judicial review application.  However I can only apply the test to the evidence about what happened in the hearing as it is revealed to me.  The magistrate did not appear to consider that he had pre-judged any relevant issue while expressing a view that he would continue to hear the evidence of treatment if necessary.  It is equally open to consider that the magistrate was being exposed to distressing evidence, or detail, that was unnecessary to properly consider the issues in the case and that all that was occurring was that he was giving an indication of a view that was open to him about the characterisation of that conduct when he came to finally determine the proceeding.

1. I note that the magistrate introduced his remarks to Mr Marshall with the remark that he was not prejudging the matter in any shape or form and referring to the defence that was being taken.  He also concluded his remarks with the observation that, "If the evidence got worse and I have to suffer it, I will".  I do not under stand the significance of his reference to the defence that was being taken.  Possibly, it was a technical defence that did not turn on the characterisation of the defendant’s conduct towards horses.

1. Further, it is clear that when invited to disqualify himself, the learned magistrate appreciated the appropriate test that had to be applied and indeed was referred to recent Court of Appeal authority in which that test is explained.  Although that authority predates the most recent decision of the High Court on apprehended bias, it is nonetheless a decision that explored issues where the tribunal hearing criminal charges dealt with issues of distress in the reaction of the judicial officer to the circumstances of the charges.

1. The hypothetical lay observer whose reaction to the circumstances forms the basis of the test to be applied is assumed to be an intelligent and informed observer, one who appreciates the attitude and roles of professional decision-makers, particularly their oath of office, and who understands that it is the whole of the evidence that needs to be considered.

1. In the end, I do not consider it is appropriate to intervene in the hearing of these charges on the basis of the material that has been placed before me on affidavit.  True it is, as I have already stated, that at least two of the remarks made by the learned magistrate indicate his distress and concern at the nature of the evidence that was being led before him.  But I am not satisfied in all of the circumstances that a reasonable lay observer would, from those observations, apprehend bias on the part of an experienced magistrate in the discharge of his duties.  That reticence to draw that inference is exacerbated by the fact that the proceeding has not yet resolved and will not resolve for some period of time. 

1. The proceeding is dismissed.

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