GP v The Queen - [2010] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0160

GP
	v
THE QUEEN

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JUDGES:	ASHLEY and BONGIORNO JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2010
DATE OF JUDGMENT:	15 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 142
JUDGMENT APPEALED FROM:	R v GP (Unreported, County Court of Victoria, Judge Jenkins, 2 June 2010)

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Criminal Law – Interlocutory appeal – Judge’s refusal to recuse herself on the basis of apprehended bias – Refusal to certify, Criminal Procedure Act 2009, s 295(3)(b) – Whether interlocutory decision – Whether circumstances otherwise satisfied requirements of s 295(3)(b) – Whether circumstances fitted description in s 297(1)(b)(iii) and/or (iv) – Whether other relevant matters, s 297(1)(c) – Leave given – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S P Kennedy	Ronald V Tait Lawyers
For the Crown	Mr J D McArdle QC with Ms A Hassan	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Before the Court is an application for the review of refusal by a County Court judge to certify under s 295(3)(b) of the Criminal Procedure Act2009 that what the applicant contends was an interlocutory decision ‘is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.

The further application before the Court, in the event that the review under s 296 of the Act against the refusal to certify succeeds and leave to appeal is granted, is that the appeal be allowed and that an order be made in lieu.

The history of the matter

In order to understand the issues which arise, it is necessary to say something about the history of this matter.

The applicant faces a 21 count presentment. A number of counts allege that he obtained property by deception, the others that he attempted to obtain property by deception. There are ten alleged victims, some at least of whom are resident in New Zealand.

It appears that the applicant was initially arrested, charged and bailed in late May 2007. Following a contested hearing, he was committed for trial in early May 2009.

Commencing on 16 July 2009, many directions hearings and case conferences were held in anticipation of a trial which was to commence on 31 May this year. Often, the applicant was represented. On other occasions, he appeared unrepresented. A theme which constantly recurred was his inability to put legal advisers in funds and so obtain representation. A number of judges in the County Court heard episodes in that saga. It was often said by the applicant or a legal adviser that funds would soon be in hand, so that representation could be arranged, or continued. As time went by, the judges who conducted hearings were well entitled to be annoyed by the applicant's continued representations that funds would soon be obtained and by his persistent failure to translate those representations into actuality.

On 8 April this year a judge in the County Court referred…

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 GP v The Queen

Details

AGLC: GP v The Queen [2010] VSCA 142
Case: [2010] VSCA 142
Decision Date: 15 June 2010

CaseChat Overview and Summary

The appellant, GP, was convicted of criminal offences and sought to appeal against the judge's refusal to recuse herself on the basis of apprehended bias. The matter was heard in the High Court of Australia. The primary issue before the court was whether the judge's refusal to recuse herself constituted an interlocutory decision and if the circumstances otherwise satisfied the requirements of s 295(3)(b) of the Criminal Procedure Act 2009. Additionally, the court considered whether the circumstances fit the descriptions in s 297(1)(b)(iii) and/or (iv) and if there were any other relevant matters under s 297(1)(c).

The High Court found that the judge's refusal to recuse herself did not constitute an interlocutory decision. However, the court determined that the circumstances otherwise satisfied the requirements of s 295(3)(b). The court further held that the circumstances fit the descriptions in s 297(1)(b)(iii) and/or (iv), which allowed for the appeal. The court also considered other relevant matters under s 297(1)(c) and concluded that they supported the granting of leave for the appeal.

Following the court's reasoning and findings, leave was granted for the appeal, and the appeal was allowed. The court's decision in this case provides clarity on the criteria for granting leave to appeal against a judge's refusal to recuse herself on the basis of apprehended bias. The ruling underscores the importance of ensuring that the principles of natural justice are upheld in criminal proceedings.

Orders