Gary Sloan (a pseudonym) [1] v The Queen - [2015] VSCA 240

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…

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.

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Details

Case: [2015] VSCA 240
Decision Date: 8 September 2015

CaseChat Overview and Summary

In the case of Gary Sloan v The Queen, Sloan, the appellant, sought an interlocutory appeal from a decision of the trial judge. The trial judge had previously declined to recuse himself from the case, a decision Sloan believed was marred by apprehended bias. The Supreme Court was tasked with reviewing the trial judge's refusal to certify the interlocutory appeal, a process mandated by section 296 of the Criminal Procedure Act 2009. The crux of the appeal was whether the trial judge's refusal to recuse himself was correct, and if the decision to not certify the interlocutory appeal should stand.

The legal issues before the court revolved around the standard of proof required to establish apprehended bias in a trial judge, and the subsequent process for reviewing a refusal to certify an interlocutory appeal. The court had to consider whether the trial judge's decision was one that fell within the purview of the Supreme Court under section 295 of the Act. Moreover, it was essential to determine whether the trial judge had correctly exercised his discretion in declining to recuse himself, given the circumstances presented.

The Supreme Court, in delivering its judgment, found that the trial judge had correctly exercised his discretion in declining to recuse himself. The court held that the evidence did not support a finding of apprehended bias. Furthermore, the court ruled that the trial judge's decision not to recuse himself was not one that could be certified under section 295 of the Act, thereby affirming the refusal to certify the interlocutory appeal. As a result, the court denied the appellant's application for leave to appeal.

Orders