Gary Sloan (a pseudonym) [1] v The Queen
[2015] VSCA 240
•8 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0138
| GARY SLOAN (A PSEUDONYM) [1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Applicant.
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| JUDGES: | HANSEN, OSBORN & PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 August 2015 |
| DATE OF JUDGMENT: | 8 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 240 |
| JUDGMENT APPEALED FROM: | R v [Sloan] (Unreported, County Court of Victoria, Judge Mullaly, 3 July 2015) |
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PRACTICE AND PROCEDURE – Criminal proceeding – Interlocutory Appeal – Review of refusal to certify pursuant to Criminal Procedure Act 2009 s 296 – Trial judge refused to certify under s 295 the decision to refuse to recuse himself on the ground of apprehended bias – Decision of trial judge not to recuse correct – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In Person | |
| For the Respondent | Mr Prosecutor with Madame Prosecutor | Solicitor for the Victorian Director of Public Prosecutions |
HANSEN JA
OSBORN JA:
PRIEST JA:
The applicant faces eight charges of arson and one charge of reckless conduct endangering life. Since March 2014 his trial has been managed in the County Court by his Honour Judge Mullaly. On 17 April 2015, this Court refused leave to appeal a decision by the trial judge to refuse to recuse himself for apprehended bias allegedly arising out of his conduct in managing pre-trial matters.[2]
[2]Sloan v The Queen [2015] VSCA 64R (Ashley, Osborn and Priest JJA).
Following further extended pre-trial hearings, the applicant now seeks leave to appeal a further decision of the judge to refuse to recuse himself on 2 July 2015.
More particularly, by ruling of 3 July 2015, the judge refused to certify under s 295(3)(b) of the Criminal Procedure Act 2009 that such further recusal decision was of sufficient importance to justify it being determined on an interlocutory appeal. The applicant now seeks to review the judge’s refusal to certify pursuant to s 296.
On such a review the Court must:
(a) consider the relevant provisions of s 295(3), namely whether the interlocutory decision was of sufficient importance to justify it being determined on an interlocutory appeal; and
(b) whether it is in the interests of justice to grant leave having regard to the matters identified in s 297(1).
Section 297(1) provides that the Court of Appeal may give leave to appeal against an interlocutory decision only if the Court is satisfied that it is in the interests of justice to do so having regard to the following matters:
(a)the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)whether the determination of the appeal against the interlocutory decision may—
(i)render the trial unnecessary; or
(ii)substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.[3]
[3]Criminal Procedure Act 2009 s 297(1).
The grounds of the application for review are:
1.That the matter of a Recusal Application is of sufficient importance to the fair and proper running of the trial.
2.Recusal Application hearing was unfair and denied the un-represented accused procedural fairness due to short preparation time, health, lack of provision of transcript and audio, and due to the large amount of material that needed to be read and reviewed.
3.The decision not to recuse is tended [sic] by sufficient doubt to warrant certification, and the Ruling did not address all the issue [sic] raised during the Application.
It can be seen that the focus of the application is the hearing of a decision in respect of the further recusal application. It is not an application with respect to the correctness of substantive decisions made pre-trial concerning evidence or procedure.
The principles governing the duty of a judge to recuse himself for apprehended bias are well known and elaborated in the previous decision of this Court.[4] The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of a question that the judge is required to decide. The test is not concerned with the apprehension of a litigant or accused but with the hypothetical reasonable apprehension of a fair-minded lay observer.
[4]Sloan v The Queen [2015] VSCA 64R [28]-[31] and the authorities there cited; see also Isbester v Knox City Council (2015) 89 ALJR 609.
Having considered the material advanced by the applicant, we have reached the following conclusions:
(c) as to ground 1, we are not satisfied that the further recusal application had any arguable basis whatsoever and in this sense it had no objective importance;
(d) as to ground 2, we are satisfied that the hearing was not unfair and that the applicant has been given ample opportunity to articulate his complaints; and
(e) as to ground 3, we are satisfied that the decision to refuse to recuse was not attended by any material doubt.
We would add that the interests of justice strongly favour the continuation of the trial before the judge who has hitherto managed it. If the judge were to recuse himself for other than good reason this would inevitably lead to material delay and inconvenience in the trial process. This would be contrary not only to the public interest but also to the interests of the applicant himself.
The pre-trial process has already assumed a tortuous complexity which strongly favours its speedy progress and resolution. Thus on 9 June 2015 the applicant raised the following issues with the judge:
·objection to not being permitted to sit at the bar table;
·injury (concussion) allegedly suffered in transit from prison;
·access to brief at the Melbourne Assessment Prison;
·abuse of search powers at the Melbourne Assessment Prison;
·lack of a belt;
·memory problems;
·a proposed application for adjournment or stay of the trial;
·a proposed application that the matter be sent back to a committal hearing;
·a proposed application for a media suppression order;
·access to exhibits;
·access to electronic transcript;
·access to computer software;
·difficulties in bringing documents to Court;
·need for direct access to the Internet;
·access to technical material relating to DNA evidence;
·access to adequate food during the hearing;
·access to a hole punch;
·access to evidence as to the value of properties damaged by the alleged arsons;
·access to evidence as to injuries allegedly suffered by the applicant on arrest;
·resolution of detailed discovery issues;
·resolution of the proper ambit of subpoenas;
·resolution of the adequacy of responses to subpoenas;
·access to a photocopier;
·access to relevant legal authorities bearing on questions of principle potentially arising during pre-trial debate about evidence;
·clarification of trial procedures;
·the need to play some video evidence in Court prior to trial;
·what jury books and photocopies were to be relied on by the prosecution; and
·the proposed order of witnesses.
Further issues relating to aspects of the evidence including potential issues of public interest immunity in relation to documents, the legality of the taking of a forensic sample for DNA testing, and the availability of access to video recording of pre-trial evidence, have subsequently been raised. There were also what the applicant referred to at one stage as ‘a whole load of little things’.
These and other issues have since been pursued and addressed (with a degree of repetition) before the trial judge over 11 days of hearing. The recusal application took a further two days.
As we have said, it is not the substance of the judge’s responses to particular concerns raised by the applicant which is now before us but rather whether his mode of response gives rise to an apprehension of bias. The summary of issues raised on 9 June 2015 gives some idea, however, of the detailed complexity of the matters agitated by the applicant with the trial judge.
It should also be noted that the judge has progressed a number of these issues in exemplary manner:
(f) the judge has brought a representative of Corrections Victoria before him on numerous occasions and sequentially addressed matters relating to conditions of the applicant’s custody in accordance with the following declaration of approach:
I am telling you that I have the power to ensure that you have a fair trial. That’s my duty. If that means I get Corrections here to tell them that your transport, your food, your equipment has to be at a standard that allows for this to be a fair trial, I will do it and R v Benbrika & Ors (Ruling No 20) is the authority for the proposition.
(g) a large number of detailed issues relating to documentary evidence have been resolved;
(h) a forensic scientist has been cross-examined by the accused in searching detail concerning the analysis of DNA evidence upon which the Crown relies; and
(i) the applicant has been assisted by the bench with the provision of legal authorities bearing on aspects of his submissions.
Not surprisingly there has been some disputation between the applicant and the bench. This has centred principally around the applicant’s contention that the matter should somehow be remitted by the trial judge for a further committal; submissions made by the applicant which assume or contend that the matter cannot presently proceed and/or will not be ready to proceed to trial for a very substantial period of time; questions of relevance raised from time to time by the judge; and the applicant’s perception that statements made by the judge display bias.
Each of these matters raises issues which the judge was bound to address with the applicant. On our reading of the transcript, he did not do so in an unreasonable or unduly confrontational fashion. He has simply endeavoured to keep the matter on track and to progress it towards trial.
We should add that much of the hearing has proceeded relatively smoothly. Moreover, the judge has given the applicant considerably greater latitude than would ordinarily be accorded counsel.
We also note that the judge has been confronted with a number of instances in which the applicant has simply refused to accept the judge’s ruling. The following exchange exemplifies the applicant’s approach:
HIS HONOUR: You can object in the course of a witness being asked questions if it’s a legitimate objection, but when people are making submissions, the usual practice is that they do so uninterrupted.
ACCUSED: You might be right, Your Honour, but the point being is that
HIS HONOUR: Do you think I’m not?
ACCUSED: I’m not saying you are or you aren’t. I’m not a lawyer.
HIS HONOUR: I am right. That’s what happens. That’s the practice. So, we’ll apply that.
ACCUSED: I’m not willing to say it is or is not right, but.
HIS HONOUR: Why not?
ACCUSED: Because I haven’t looked it up.
HIS HONOUR: You won’t accept it from me that the usual practice in criminal trials is that submissions made by one party are not interrupted by the other?
ACCUSED: I wouldn’t accept it unless I looked it up, that’s all. It’s not relevant so
Self-evidently, on occasion, the applicant simply does not accept that the judge has the capacity to determine procedural matters against him. A trial can only proceed satisfactorily if the judge’s power to control proceedings is accepted. It cannot go around in circles in the way that the applicant contemplates.
We do not propose to give extended reasons for our conclusions with respect to the grounds advanced by the applicant. We have read the transcript of hearings between 9 June 2015 and 3 July 2015. In summary, our reasons are as follows:
(j) No complaint is made with respect to the trial judge’s evidentiary rulings in the grounds of the application and, insofar as the applicant’s submissions incidentally challenge their substantive correctness, those submissions must be disregarded.
(k) A process of Basha enquiries has commenced but is not yet completed. The full complexion of the pre-trial evidence is not yet resolved and the judge has not yet made final rulings with respect to the admissibility of aspects of the evidence.
(l) The pre-trial processes yet to be completed have the capacity to address any shortcoming in the committal process which the applicant identifies and which is of real substance.
(m) The transcript of the hearings from 9 June 2015 onwards does not demonstrate any prejudgment of substantive procedural issues. Moreover, the major procedural issues which may fall to be decided prior to the commencement of a trial are yet to be resolved.
(n) The judge was entitled to formulate, put and dismiss propositions that bear on submissions made by the applicant for the purpose of seeking to expedite, comprehend, and resolve those submissions.[5]
[5]GEM v The Queen [2010] VSCA 168 [43] (Maxwell P and Weinberg JA).
(o) The judge’s interruptions have not prevented the applicant from making his points.
(p) The complaint that insufficient time was provided to the applicant to prepare for the recusal application fails to identify any material point which he did not make or evidence which he failed to identify upon that hearing. Further, having considered the transcript, we are not persuaded that the applicant was denied sufficient time to properly prepare and articulate his arguments. The applicant had three days and four nights to prepare his application. After the initial day of hearing, the judge adjourned to Wednesday 1 July allowing a further day of preparation before the hearing resumed. We are not persuaded that the time given was unreasonable in the circumstances of this case.
(q) The transcript of the recusal hearing does not demonstrate any arguable apparent bias on the part of the judge by reason of his conduct of that hearing.
(r) The transcript demonstrates that the applicant was given appropriate opportunity to identify and highlight aspects of the audio recording of previous hearings for the purposes of the recusal application. Furthermore, whilst theoretically questions of tone and tenor might support an inference of apparent bias in a particular case, the pre-trial hearings in the present matter have been so extended that it is highly unlikely that such matters could justify a conclusion of apparent bias in the absence of substantive statements indicative of such apparent bias.
(s) The judge was not bound to respond seriatim in his reasons to every point made by the applicant in submission. The judge was entitled to address the real issues as he understood them within a coherent framework of analysis. Further, the judge did directly address and respond to the core matters argued by the applicant.
(t) It is submitted by the applicant that the judge failed to address in his reasons a call by the applicant for details of prior convictions of the prosecution witnesses. The prosecution had advised the applicant that none had any prior convictions. This was a non-issue.
(u) It is also submitted that the judge failed to deal in his reasons with a complaint that he had been in contact with Mr Langslow of counsel (who had appeared for the applicant in a previous trial) and other third parties concerning access by prisoners to video recordings of trials. The judge had explained that he had not had such contact during the course of discussions with the accused. Moreover, the issue was collateral to a question of practice concerning the availability to prisoners of full video recordings of the trial. The judge had made clear that he would not make enquiries without telling the applicant of his intention to do so. The transcript does not disclose any sensible basis on which a reasonable observer would apprehend bias.
(v) Complaint is also made concerning the judge’s response during the hearing to the applicant’s submission that he had understood he would be able to sit at the bar table. There is nothing in this point. Neither did the discussion of the use of laser pointers disclose bias. It is plain there was some initial misunderstanding between the judge and the applicant but this does not demonstrate any arguable apparent bias.
(w) The applicant’s submissions to the judge concerning the need for a further committal hearing were properly met by the judge from 9 June 2015 onwards with repeated indications that any need for the further pre-trial examination of witnesses could and would be met by the calling of further evidence before him.[6] The judge’s response to the applicant’s submissions concerning a further committal hearing did not demonstrate any arguable apparent bias.
[6]As to the limitations on the power of a Magistrates’ Court after a committal hearing, see Criminal Procedure Act 2009 pt 4.11.
(x) The judge has acceded to requests to modify, break, and reduce sitting hours when the applicant has sought such variation on grounds of asserted health issues, eg, shortly prior to the recusal application the judge held that he would not require the applicant to cross-examine a witness at that point in time due, in part, to the applicant’s assertion that he was not feeling well. Moreover, no medical evidence has been provided to the judge substantiating any material inability on the applicant’s part to participate in the trial process. There is simply no evidence that the applicant has been unable to properly participate in hearings for health reasons despite the fact that it appears from the transcript that he was at one point assessed by his own doctor.
(y) Insofar as the applicant seeks to rely on prejudice arising from material on the Forbidden Trash Media website produced by the applicant himself and relied on by the prosecution in opposition to an application for access by the applicant to a full video recording of the proceeding, such material is, as the judge held, of a character well capable of appropriate judicial response.
(z) The matters now raised do not re-enliven the matters raised on the first recusal application. That application was without foundation for the reasons previously stated by this Court.
(aa) The judge has not purported to pre-judge any application for an adjournment or stay of the trial. Such applications are still to be argued.
We would add a further observation. Considerable flexibility must be reserved to a trial judge to manage pre-trial proceedings involving a self-represented accused. In a very real sense the management of pre-trial matters will not be fully resolved until the judge determines that the matter is ready to proceed to trial and the accused pleads not guilty on arraignment in the presence of the jury panel.[7] Moreover, some rulings may be provisional. They may (as the judge has stated to the applicant) require revision as the trial proceeds. It would not be in the interests of the applicant, in the interests of justice, or in the interests of the community if this Court sought to supervise every intermediate step taken prior to trial by the managing judge in a case such as this. Such a course would effectively derail any prospect of a reasonably expeditious outcome to the trial process.
[7]See Criminal Procedure Act 2009 s 210.
For the above reasons, having reviewed the refusal to certify under s 296 of the Criminal Procedure Act 2009, leave to appeal the interlocutory decision will be refused.
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