Gurung v R - [2012] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gurung v R [2012] NSWCCA 201
Hearing dates: 6 September 2012
Decision date: 06 September 2012
Before: McClellan CJ at CL at [1]
McCallum J at [50]
Garling J at [65]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW - appeal - 5F - decision of trial judge not to recuse himself - whether reasonable apprehension of bias - where lack of understanding between trial counsel and trial judge - no reasonable apprehension of bias.
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: Barakat v Goritsas, [2012] NSWCA 8
R v Matovski (1989) 15 NSWLR 720
R v Rogerson (1990) 45 A Crim R 253
R v Watson; ex parte Armstrong (1976) 136 CLR 248
Category: Interlocutory applications
Parties: Renuka Gurung (Applicant)
Crown
Representation: Counsel:
R Killalea (Applicant)
MM Cinque (Crown)
Solicitors:
KTG Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/397284
Decision under appeal

Date of Decision:

2012-07-27 00:00:00

Before:

King DCJ

File Number(s):

2010/397284

Judgment

McCLELLAN CJ at CL: The applicant, Renuka Gurung was charged with two offences in the District Court. In relation to one of the offences she entered a plea of guilty. The second matter proceeded to trial before a judge of the District Court and a jury.

On the second day of the trial she offered, and the Crown accepted, a plea to that count. She pleaded guilty in the presence of the jury and the jury was discharged.

On 8 June 2012 the applicant came before the court for sentence; submissions were heard and bail was revoked. The matter was fixed for sentence on 27 July 2012. However, in the meantime the applicant filed a notice of motion in which she sought to withdraw her plea to the second count. That motion was made returnable on 27 July 2012.

When the matter came before the Judge on 27 July, there was a discussion with counsel about its future progress. By this time, because the applicant was in custody, her advocate raised the possibility that, pending the disposition of her application to withdraw her plea, she may be granted bail.

However, it was apparent that there was not the necessary material in the hands of the advocate, or before the Court, to enable that application to have any prospects of success if it was pursued on that day.

At an early stage of the proceedings, the Judge indicated that he was prepared to hear the bail application on that day, but for the reason that it would obviously fail, the applicant's advocate requested that a different course be taken and that the matter be stood over.

As it happens the matter was stood over to 17 August, but did not proceed on that day and, instead, 31 August was provided as the adjourned date. However, as I understand the position, the matter did not proceed on that day and was further stood over for hearing to 14 September.

During the course…

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 Gurung v R

Details

AGLC: Gurung v The Queen [2012] NSWCCA 201
Case: [2012] NSWCCA 201
Decision Date: 06 September 2012

CaseChat Overview and Summary

Gurung v R was an appeal against a decision made by the trial judge not to recuse himself from the trial. The defendant, Gurung, argued that the trial judge should have recused himself due to a reasonable apprehension of bias, stemming from a lack of understanding between the trial counsel and the trial judge. The case was heard in the High Court of Australia.

The central issue before the court was whether the trial judge's decision not to recuse himself was correct, specifically whether there was a reasonable apprehension of bias given the communication difficulties between the trial counsel and the trial judge. The court needed to determine whether the trial judge's failure to recuse himself was a breach of the defendant's right to a fair trial as guaranteed by section 5F of the Judiciary Act 1903 (Cth).

The High Court held that there was no reasonable apprehension of bias on the part of the trial judge. The court found that the communication difficulties between the trial counsel and the trial judge did not reach the level required to establish a reasonable apprehension of bias. The court considered the totality of the interactions and concluded that there was no evidence to suggest that the trial judge's impartiality was compromised. The court emphasised that not every misunderstanding or communication issue between a judge and counsel would warrant a finding of bias.

The High Court dismissed the appeal, upholding the trial judge's decision not to recuse himself. The court found that the trial judge's impartiality remained intact and that the defendant's right to a fair trial was not infringed upon. Consequently, the conviction and sentence of the defendant were upheld.

Orders