H v Director of Public Prosecutions
[2007] TASSC 96
•3 December 2007
[2007] TASSC 96
CITATION: H v Director of Public Prosecutions [2007] TASSC 96
PARTIES: H, P
v
DIRECTOR OF PUBLIC PROSECUTIONS
IN THE MATTER OF THE CRIMINAL JUSTICE
(MENTAL IMPAIRMENT) ACT 1999, s37
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 104/2002
373/2002
DELIVERED ON: 3 December 2007
DELIVERED AT: Hobart
HEARING DATES: 14 August, 2, 22 October 2007
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure – Courts and judges generally – Disqualification for interest of bias – In general – Reasonable suspicion of bias – Nature of suspicion – Fair minded lay observer.
Johnson v Johnson (2000) 201 CLR 488, followed.
Aust Dig Procedure [5]
REPRESENTATION:
Counsel:
Applicant: C D Mackie
Respondent: J Hartnett
Solicitors:
Applicant: Mackie Crompton
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 96
Number of Paragraphs: 18
Serial No 96/2007
File Nos 104/2002373/2002
P H v DIRECTOR OF PUBLIC PROSECUTIONS
IN THE MATTER OF THE CRIMINAL JUSTICE
(MENTAL IMPAIRMENT) ACT 1999, s37
REASONS FOR JUDGMENT SLICER J
3 December 2007
The applicant seeks the discharge of a restriction order in accordance with the Criminal Justice (Mental Impairment) Act 1999 ("the Act"), s37(3)(b). The application was returned to Court on 14 August and 2 October for directions as to the proposed necessary assessments and reports. Mr Jacobs appeared as counsel for the respondent and, understandably, did not indicate whether or not the Director opposed the discharge. The matter was adjourned until 22 October. On 2 October, Mr Jacobs advised the Court that he would be on leave at that time, but indicated that alternate counsel would be available.
On 22 October, by arrangement, the matter was relisted. On that day, Ms Hartnett, who appeared as counsel for the respondent, requested that I disqualify myself from hearing the matter "on the basis of apprehended bias". I declined to disqualify myself and indicated that I would provide reasons at a later stage. These reasons are confined to the issue of disqualification.
I will apply the relevant principles as I did in an earlier case of Mentyn v The Law Society [2004] TASSC 24. Those principles have been stated by the High Court in cases such as Livesey v New South Wales Bar Association (1983) 151 CLR 288; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In relation to apprehended bias, the specific test is conveniently stated in the headnote of the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488 as:
"The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias 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 the question he or she is required to decide."
The test relevant to these proceedings is that of an "informed" observer. It is thus necessary to outline the history of earlier criminal proceedings, the condition and status of the applicant, correspondence and some limited reference to material placed before the Court which is to be the subject of the hearing.
Mr H was convicted on 20 November 2002, following a jury verdict, of the crimes of committing an act intended to cause bodily harm and attempted wounding for acts which had occurred on 20 July of that year. Following the verdict, a second indictment was put to Mr H to which he pleaded guilty. By agreement, pleas were entered to three counts of assault committed on 19 October 2001. The two events were connected. The events of 19 October involved his removal by police from hostel accommodation, his flight and eventual apprehension. He was detained on that occasion under the provisions of the Mental Health Act 1996. The July 2002 violence occurred during his arrest on warrant for failure to attend court in relation to the October matters. He was living, with the consent of a minister of religion, in a small shed attached to suburban church premises and had reacted to the interruption of his construction of a "perpetual motion machine". Police photographs taken inside the shed show complex and carefully constructed machines.
On 21 March 2003, I sentenced Mr H to two years' imprisonment, backdated to 30 July 2002, the date when he had been taken into custody, suspended portion of that term as and from 21 March 2003, and made him subject to a restriction order in accordance with the Act. The "informed observer" would have read my comments in passing sentence pronounced publicly on 21 March 2003, which included:
"The scientific beliefs of Mr H form no part of this sentencing process. He is entitled to his beliefs. The history of science is replete with examples of courageous individuals who defied conventional thinking to enhance our knowledge. The history of quantum mechanics is counter intuitive, and, at the time of formulation, ran counter to many of the then accepted theories. Mr H believes that many of his problems have been caused because of his long held belief. This Court does not regard his belief to be in any way a direct factor in the determination of penalty.
However, the assessment of sentence is complicated by Mr H's history and current mental condition. He has an extensive history of hospitalisation. A consistent diagnosis has been that of paranoid schizophrenia. It is the risk of harm to others which lies at the heart of this sentencing process. It is for that reason that the Crown has sought an order permitted by the operation of the Sentencing Act, Part 10, and the Criminal Justice (Mental Impairment) Act 1999. In accordance with the Sentencing Act, s72, the Court has made an assessment order which has resulted in the advice provided by the Clinical Director of Forensic Mental Health, dated 28 February 2003. The Court accepts that advice and two other reports dated 27 November 2002 and 18 March 2003."
Mr H has been in custody since the order of 30 July 2002.
His application for the discharge of the restriction order was filed on 24 July 2007, returnable on 14 August. It was referred by the Court Registry to me as the sentencing judge.
The informed observer in deciding whether he or she perceived bias, would need to be aware of the following:
(1)Mr H has been at all times an inmate of the Wilfred Lopes Centre since its opening. The psychiatric unit is within the prison complex, but subject to a separate statutory and administrative regime. Presumably inmates are accorded the right or privilege of writing letters.
(2)Mr H was a frequent and energetic letter writer, many of which were addressed to me as a judge. The letters were a mixture of religious beliefs, scientific progress and complex drawings, plans or mathematical diagrams. They were polite and discursive. Mr Jacobs advised the Court that he (or his office) had likewise received correspondence from Mr H. In accordance with practice, the letters would be provided, unopened, to my Associate. Not all have been retained, but at some stage, the first one being dated 9 November 2004, they were placed on file. Most predated the application, but continue since the August and October hearings.
(3)The informed observer would have access to a letter sent by my Associate to Mr H on 1 May 2007, some two months before the application, and one sent by Ms Hartnett, as Crown Counsel, to my Associate dated 17 October. Both have been referred to in open court on 22 October. The first, sent with my approval states:
"1 May 2007
Mr P H,
C/- Wilfred Lopes Centre,
PO Box 125,lindisfarne tas 7015
Dear Mr H,
His Honour Justice Slicer has asked me to write to you thanking you for your letter of 17 April 2007 and the attached drawing. He has kept your letter and read of your thoughts and careful and exquisite drawings. His Honour is not sure of the protocols which govern the sending of material to you at the Lopes Centre. However, if you are permitted to receive books, his Honour has asked me to enclose a book by Roger Penrose on computers and the laws of physics and some thoughts of where technology is taking us. If you are permitted to receive such literature, then please accept this as a small gift. If there are problems with this, I would be grateful if the relevant authorities would write to me advising of the requisite protocol.
Ann-Marie Nuttall
Associate to the Hon Justice Slicer"
In the light of the application, I would not change one word. The drawings were careful and exquisite. I was not aware of the administrative protocols. The book was a "gift" not intended to be returned. Penrose is a serious writer on scientific methodology, thought processes, and the questions of "artificial intelligence". It would not be easy for Mr H, as an intelligent man, albeit preoccupied, to remain an inmate within a closed institution for a long period of time. If receipt of the book was regarded as harmful to medical treatment, then the "relevant authorities" were invited to advise.
The letter from Ms Hartnett states:
"I refer to the abovementioned application.
Whilst preparing the matter it came to my attention that on 2 May 2007 Mr H claims to have received a letter and gift from His Honour. Mr H told a clinical nurse that he had received a gift by mail from His Honour. Mr H indicated he had received a book from His Honour with a covering note thanking him for his letters. Mr H has indicated that that book demonstrates that Justice Slicer appreciated his knowledge of physics and religion and his invention.
I ask that you raise with His Honour this matter as I enquire whether, given Mr H's reported belief, His Honour wishes to continue to hear the matter."
(4)Mr H, in turn, forwarded a book to me, via my Associate, entitled "Disclosure". It was and remains available to the respondent to copy or read.
All other matters, apart from the contents of Mr H's letters, would be known to the observer present in open court on 14 August, 2 and 22 October. At the commencement of the hearing on 14 August, the following exchange occurred between myself and Mr Jacobs:
"his honour: Thank you. I'll leave you alone for the moment, Mr Jacobs. Just let me go back to Mr Mackie and I'll just do this slowly. But before I do that, you should be aware, Mr Jacobs, that over the course of, I think, two years, Mr H has been writing me, and giving copies to me of letters to other people, and sending me diagrams of mathematical equations and so on. I had – and there's nothing wrong with that, he's just telling me about the state of the world and –
mr jacobs: And I'm very happy that your Honour has had the benefit of that assistance.
his honour: And to date, Christian sort of principles and hexagons and so on. But I had sent a copy of, I think, the last one or two, to Mr Mackie, and I have no difficulty with either Counsel going through the letters which have been sent to me, and I think I replied, through Mr Mackie, saying that there were limited matters that this Court could do, but this was one of them. So any rate, they're there, Mr Jacobs. Whether they – I don't think that they're going to assist you very much.
But why I've slowed this down is because in his letter – sorry, in his affidavit, he's making application under Section 37(3)(B) of the Discharge of Restriction Order, and then in one of the letters to me of about the same time, he made some complaint about a decision of the Tribunal, and I think he referred to a Ms Deborah Rigby, and it seemed that it hadn't gone at all well
Now in the affidavit he attaches a decision of the Tribunal, and they simply issue a certificate to allow him to argue his case in the Supreme Court. That's the next step, is it. And what Mr Jacobs is saying is that he has no trouble with my calling for a report, which what, addresses that question?
…
there were two problems from before. One was that, and secondly, just the resort where he was living. He was living – now in one of his letters to me, which I go back to what I started with Mr Jacobs, he made reference to his children, I think, or the children, and being reunited with his children.
mr jacobs: They live in the Czech Republic.
his honour: Well I think that's right, they aren't here.
mr jacobs: Yeah, there was evidence about this, or material that came out following the trial, that he'd left two very young children when he left – came to Australia under a false name, having originally, I think, gone to Italy.
his honour: I think I knew that.
mr jacobs: And that he'd gone back some time – now the children were teenagers or young adults, and I imagine they're now well into their twenties, if not thirties.
his honour: I would think so.
mr jacobs: I imagine that the Mental Health Authority here would not be disappointed if he wanted to return permanently to the Czech Republic, if we're going to –
his honour: No, no, I – that I understand, and thank you for that. That's why I've slowed all this down. Then under (G) –
…
And the matter is adjourned sine die, and you'll come back to me. And, Mr Jacobs, those letters are there if you want to look at them.
MR JACOBS: Thank you.
HIS HONOUR: Simply contact my Associate. Thank you, Counsel."
The hearing proceeded with consideration of the Act, s26(3), the findings of the Tribunal and the ordering of a report from the Chief Psychiatrist.
At the resumption of the hearing on 2 October, counsel and the Court had received copies of the report of the Chief Psychiatrist and there was a general discussion about the problem he raised in relation to supervision and the requirements of the Act, s34. I drew the attention of Mr Jacobs to the mandatory requirement for notification of the original victims, and relevant to the bias application, the following references were made to the correspondence:
"mr jacobs: Because it might be why we are in fact here. Secondly, and perhaps it's not relevant also, but it's an unfortunate fact that the circumstances that led to Mr H being in Court for the crime concerned were a fairly trivial matter which rose, and nobody in the Magistrates Court, the police, had the discretion to just let the matter lie. What was a most trivial thing would have left – could have been ignored, and we wouldn't be where we are. But we are, in the circumstances, using a bit of lateral thinking. And whilst it's a long bow, it seems to me one long term possibility that ought to be considered is the possibility of his returning to the …, where at least there wouldn't be the language problem, because it seems to me his future in Tasmania is going to be one of incarceration of some type or the other.
his honour: Now I thought someone turned their mind to that in one of the reports, or it might have been in a letter he's got, that there is real no – I think it might come from one of his –
mr jacobs: Some question of con – some contact with his brother.
…
Is there is [sic] nothing else that I can help Counsel – I'm glad for the both of you with this. We knew what the problems were before we started. Mr H, we're just working through complex areas. Okay. And that offer to the DPP, Mr Jacobs, remains. Material that I have that I haven't had copied and so on, the State is more than welcome to them.
mr jacobs: I've got my good share also, thank you. Very colourful too."
The basis of the application for disqualification was articulated by counsel at the commencement of the 22 October hearing, in the following terms:
"submissions - ms hartnett: Thank you, your Honour. This – I mean obviously, this is a removal of a restriction order, which sees Mr H detained in a secure mental health unit until that order is discharged by this Court. And in my respectful submission there needs, as in all cases, that that be approached dispassionately and without prejudgment and as the law provides, justice needs to be seen to be done as well as done. And my submission is that a fair minded and well informed member of the public might entertain a reasonable apprehension in the circumstances where two months before this application was commenced, Mr H is of the belief that he received a book and a note from your Honour, and that that appreciation has been reciprocated by Mr H providing something – a gift to your Honour during the proceedings. The material that was provided – or Mr H attributes to your Honour is the Emperor's Crown, although I think your Honour's correcting me it's the Emperor's Mind. A lot of Mr H's mental illness and preoccupation lies with his delusions in relation to mathematical and physic type arrangements, and in light of those circumstances, it may be that a fair minded and informed member of the public would have a reasonable apprehension that there's some degree of sympathy for his plight and his detainment at the Wilfred Lopes Centre, and an apprehension that there's been, perhaps, a prejudgment in relation to the delusions that he has and whether they're real or not, and the risk that those delusions cause to the society, because that's the issue that will need to be determined essentially, is the risk to the public in relation to his mental illness. And given those circumstances and what has transpired both before and during these proceedings my respectful submission would be a fair minded well informed member of the public would have a reasonable apprehension of bias in relation to the matter.
…
it's not the receipt of the material by your Honour, or his writing it, it's the acknowledgement – or in his belief the acknowledgement of the material that leads to the apprehension that there may be some sympathy with the fair minded – members of the public may see as some form of sympathy for his plight, some sort of, perhaps, indication that his mental illness and the delusions, because part of his complex – and I note, delusion system is based on the perpetual motion, machines, physics and mathematics, and they lead to an intense preoccupation that leads to allegedly his non-compliance with medication and the risk. So if there's some indication that risk or the delusions are being looked at as having some reality, my respectful submission is that can lead to a apprehension of bias."
I would trust that any judge would show some degree of sympathy for the plight and detention in a psychiatric institution for over five years. I doubt that the sender of a serious scientific publication to a person afflicted with a long term disorder would be regarded as biased because of that act. It was, after all, this judge who had made the order requiring that detention. I trust that a fair minded, well informed member of the public would not see the letter, sent before the application for discharge was made, as evidence of prejudgment in relation to whether the delusions were real or not, or that such representative of the public would so little trust the integrity and intellectual competence of a judge that he or she would assume that the judge shared the affliction suffered by the applicant. I have difficulty in understanding the nexus between the May letter and an indication that there is a "risk or that the delusions are being looked at as having some reality". The second part of the submission is more problematic. The submission appears to be that when a person committed to an institution believes the judge to be sympathetic to his views, a fair minded member of the public would more readily accept that the judge could be biased in favour of the patient or inmate. If that be the reasoning, then it is not accepted.
There is one further matter which relates to the communication or contents of communications between Mr H and a treating nurse to counsel for the respondent. There is, of course, no difficulty with publication of the letter to the Court, but communications made direct to the prosecution and not through the Chief Psychiatrist or the reporting officer, might be fraught with legal complexity and danger.
It might be appropriate to further consider that concern on the resumption of this hearing.
It is for the above reasons that I refused to disqualify myself on 22 October 2007.
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