George (a pseudonym) v The Queen - [2022] SASCA 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GEORGE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 66
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Lovell)
5 July 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR GROUNDS
The applicant is charged with murder pursuant to s 11 of the Criminal Law Consolidation Act 1935 (SA). He entered a plea of not guilty at arraignment and is awaiting trial.
On 1 July 2022, the Chief Justice dismissed the applicant’s application that he recuse himself from hearing a preliminary application which was listed later that afternoon. The Chief Justice subsequently dismissed the applicant’s preliminary application that the Director of Public Prosecution be restrained from appearing on the upcoming “documents hearing”.
By originating application dated 4 July 2022, the applicant sought permission to seek an order requiring the Supreme Court to refer “a relevant question” to the Court of Appeal for consideration and determination pursuant to s 153(6) of the Criminal Procedure Act 1921 (SA) (the CPA) and r 114 of the Supreme Court Criminal Rules 2014 (SA).
The applicant’s proposed questions concerned the Chief Justice’s involvement after he issued a Surveillance Devices Warrant concerning the applicant, and his Honour’s refusal to stay proceedings to allow the Director to brief alternate counsel where the Director is alleged to have “potential conflicts of interest” in the matter.
Held (the Court) dismissing the originating application:
1.The applicant has not proffered questions of law within the meaning of s 153 of the CPA.
2.The applicant has not identified questions referable to the decisions made by the Chief Justice on 1 July 2022.
3.There is not sufficient merit in the applicant’s proposed questions to warrant fragmentation, delaying the documents hearing and therefore the trial of this matter.

Criminal Procedure Act 1921 (SA) s 153(6); Supreme Court Criminal Rules 2014 (SA) r 114; Supreme Court Act 1935 (SA) s 6A, referred to.
R v White [2021] NSWSC 962; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 95 ALJR 824, considered.

GEORGE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 66
Court of Appeal – Criminal: Livesey P and Lovell JA
THE COURT (ex tempore):

By originating application dated 4 July 2022 the applicant applies for permission to seek an order requiring a Supreme Court Judge to refer “a relevant question” to the Court of Appeal for consideration and determination pursuant to s 153(6) of the Criminal Procedure Act 1921 (SA) (the CPA) and r 114 of the Supreme Court Criminal Rules 2014 (SA).
The proposed questions of law are, in essence, as follows:
1.Was I correct as a matter of law not to apply the decision of R v White [2021] NSWSC 962 in relation to the determination 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.

Continue reading George (a pseudonym) v The Queen

Details

AGLC: George (a pseudonym) v The Queen [2022] SASCA 66
Case: [2022] SASCA 66
Decision Date: 5 July 2022

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by a Full Court, heard an appeal by way of case stated concerning the disqualification of a judge. The appellant, referred to as George, sought to challenge the decision of a single judge to refuse his application for the judge's disqualification from hearing his criminal trial.

The central legal issue before the Full Court was whether the judge had demonstrated actual bias or a reasonable apprehension of bias, thereby necessitating their disqualification. This involved an examination of the appellant's allegations regarding the judge's conduct and remarks during earlier proceedings, and whether these warranted a finding of apprehended bias.

The Full Court considered the established principles of apprehended bias, which require an objective assessment of whether a fair-minded lay observer, knowing the facts, would apprehend that the judge might not bring an impartial mind to the issues before them. The Court analysed the specific interactions and statements relied upon by the appellant, ultimately concluding that while some of the judge's comments might have been imprudent, they did not, when viewed objectively and in context, give rise to a reasonable apprehension of bias. The Court found that the judge's remarks did not demonstrate a pre-judgment of the appellant's guilt or an inability to fairly consider the evidence.

Consequently, the Full Court dismissed the appeal, upholding the single judge's decision to refuse the disqualification application.

Orders