Hunter Quarries Pty Ltd v Morrison (No 3)
[2014] NSWIC 1
•22 October 2014
Industrial Court
New South Wales
Case Title: Hunter Quarries Pty Ltd v Morrison (No 3) Medium Neutral Citation: [2014] NSWIC 1 Hearing Date(s): 29 May 2014 Decision Date: 22 October 2014 Before: Walton J, President at [1];
Staff J at [3];
Boland AJ at [4]Decision: The appellants' recusal applications are refused. Costs are reserved.
Catchwords: PRACTICE AND PROCEDURE - applications by appellants that Full Bench not sit to hear appeals - reasonable apprehension of bias in the form of prejudgment - Full Bench in interlocutory proceedings made findings regarding whether appellants be granted leave to serve summonses to produce on certain parties Legislation Cited: Criminal Appeal Act 1912
Occupational Health and Safety Act 2000
Uniform Civil Procedure Rules 2005Cases Cited: Barakat v Goritsas (No 2) [2012] NSWCA 36
Bradshaw v The Queen, unreported, CCA SCt of WA; Library No 970228, 13 May 1997
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283
Bugeja & Johnson v The Queen [2010] VSCA 321; (2010) 30 VR 493
Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150
Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49; (2013) 236 IR 180
Hunter Quarries Pty Ltd v Morrison (No 2) [2013] NSWIRComm 98
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Liberti v R (1991) 55 A Crim R 120
Mallard v R [2005] HCA 68; (2005) 224 CLR 125
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Lucas [1973] VR 693
R v William Vincenzo Favero [1999] NSWCCA 320
Regina v James Saleam [1999] NSWCCA 86
Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179Texts Cited: "Duties of Bar and Bench: Some Reflections on Case Management and Judicial Bias". Speech by Chief Justice of New South Wales to NSW Bar Association CPD Conference, 29 March 2014 Category: Interlocutory applications Parties: Hunter Quarries Pty Ltd (Appellant - IRC 1111 of 2012)
Richard Badior (Appellant - IRC 1126 of 2012)
Rodney Morrison (Respondent)Representation - Counsel: B G Docking of counsel (Appellant - IRC 1111 of 2012)
D H Nagle of counsel (Appellant - IRC 1126 of 2012)
M B J Lee SC with A Rao of counsel (Respondent)- Solicitors: McDonald Johnson Lawyers (Appellants)
Crown Solicitor's Office (Respondent)File Number(s): IRC 1111 and 1126 of 2012
INTERLOCUTORY JUDGMENT
Walton J, President
In this matter, the appellants, Hunter Quarries Pty Ltd and Richard Alexanda Badior, made application for my recusal from these proceedings for apprehended bias.
Having considered the submissions of counsel on behalf of the appellants, and having had the opportunity to consider the draft judgment of Boland AJ in this matter, the application is refused for the reasons provided by his Honour. Costs of the application should be reserved.
Staff J
The application should be refused for the reasons stated by the President.
Boland AJ
Hunter Quarries Pty Ltd and Richard Alexanda Badior ("the appellants") have made an application that each justice constituting the Full Bench in Hunter Quarries Pty Ltd v Morrison (No 2) [2013] NSWIRComm 98 ("Hunter Quarries (No 2)") recuse themselves from further hearing the appeals in these matters (Matter Nos IRC 1111 and 1126 of 2012). For reasons I now give, the application should be refused.
There is obviously a background to the applications. In Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179, the appellants pleaded guilty to offences committed under the Occupational Health and Safety Act 2000 ("OHS Act"). Backman J convicted the appellants and imposed sentences. Subsequently, her Honour made consequential costs orders against the appellants.
The prosecutions related to an incident involving the death of a plant operator, Darren Smith, on 14 June 2005 at a quarry owned and operated by Hunter Quarries Pty Limited ("Hunter Quarries"), known as Karuah Quarry. Mr Badior was, at the time of the alleged offence, a director of Hunter Quarries and concerned, in particular, in the management and operation of Karuah Quarry as quarry manager.
In Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49; (2013) 236 IR 180 ("Hunter Quarries (No 1)") the Full Bench of the Court dealt with applications by the appellants for an extension of time in which to appeal against the convictions and sentences imposed by Backman J and her Honour's consequential costs orders. The main ground of appeal (set out at [17] of Hunter Quarries (No 1)) was that the prosecution failed to disclose material and evidence some of which had come to light in other proceedings involving the prosecution of Grahame Antony Chevalley (Matter No IRC 956 of 2007) and Hilton Ross Grugeon (957 of 2007). Mr Chevalley was a director and managing director of Hunter Quarries and Mr Grugeon was chairman of the board of directors of Hunter Quarries (after lengthy proceedings the prosecution eventually decided, without explanation, not to proceed against Mr Chevalley or Mr Grugeon and the charges were dismissed: see Hunter Quarries (No 1) at [6]). The Court determined in Hunter Quarries (No 1) that leave should be granted to the appellants to extend time to appeal.
In Hunter Quarries (No 2) the appellants, by notice of motion, sought three types of orders:
(1)Leave to issue three summonses to produce on respectively the prosecutor, Rodney Morrison, the Crown Solicitors Office ("CSO") being the prosecutor's solicitors, and the State of New South Wales (Department of Trade & Investment - Resources and Energy) ("DTI") (orders 1 - 3). The State was previously known as the State of New South Wales (Department of Primary Industries) ("DPI").
(2)Compliance with the law of New South Wales in respect of prosecutorial disclosure (order 4).
(3)Leave be granted to the appellants to use any document summonsed, disclosed or otherwise produced in Nash (formerly Morrison) v Chevalley and Grugeon, Matters No IRC 956 and 957 of 2007, but not tendered or otherwise placed in the public domain (order 5).
The draft summonses were relevantly identical. The summonses identified the material called for in 90 paragraphs. The first two paragraphs sought material in relation to the reasons why the prosecution decided not to proceed against Mr Chevalley and Mr Grugeon. Paragraphs [3]-[90] inclusive of the schedules to the draft summonses sought documents or records not disclosed by the prosecution to the defence in the proceedings before Backman J.
In relation to paragraphs [3]-[14], DTI and CSO had no objection to the issue of the summonses addressed to them although they foreshadowed opposition to access being granted to a number of documents on the grounds of legal professional privilege.
DTI and CSO objected to the production of material sought in paragraphs [1] and [2] and [15]-[90] of the schedules to the draft summonses, on the grounds that the material would serve no legitimate forensic purpose, that it was not 'on the cards' that the material would materially assist the appellants' case, that it would not be necessary and expedient in the interests of justice to have to produce the material and that the time and cost involved in complying with the draft summonses made them oppressive. In relation to the draft summonses proposed to be issued to Mr Morrison, he filed and served a schedule indicating he had nothing to produce.
After considering the evidence and submissions of the parties, and providing its reasons in Hunter Quarries (No 2), the Full Bench made the following orders:
1) The appellants' notice of motion is refused save and except for:
(a) paragraphs [3]-[14] in Attachments A and C to the notice of motion in respect of which leave is granted to issue the summonses; and
(b) order 5, in respect of which leave is granted.
2) Costs are reserved.
Basis of application to recuse
The basis of the recusal application was what the appellants referred to as the "double might" test, namely, that statements in Hunter Quarries (No 2) might cause a fair minded lay observer to reasonably apprehend that the Full Bench might not bring an impartial and unprejudiced mind to the resolution of the question or issues the Full Bench is required to decide: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 ("British American Tobacco"); Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427. The appellants contended that the statements by the Full Bench in the judgment meant that there existed the possibility of prejudgment of the appeals.
It is important to understand the context in which the High Court decided British American Tobacco, because the context is quite different to that in respect of which the recusal applications are made in the proceedings before this Full Bench.
In relation to Wilson, it appears that the appellants in this proceeding only rely on that authority for the statements of principle. In Wilson, the High Court ruled there was no appearance of bias in the form of prejudgment. Nevertheless, to understand the application of the relevant principles it is also necessary to provide the context in which those principles were applied.
British American Tobacco
In proceedings unrelated to the appeal before the High Court, Judge Curtis, a judge of the Dust Diseases Tribunal, found that the appellant, British American Tobacco Australia Services Limited ("BATAS"), developed and adopted a fraudulent business policy. The existence of that policy was in issue in proceedings that were brought against BATAS by Mrs Laurie. Mrs Laurie's claim had been listed for hearing before Judge Curtis. His Honour refused to accede to a motion by BATAS that he disqualify himself from presiding in the subsequent proceedings. On appeal, the Court of Appeal by majority agreed with Judge Curtis. BATAS appealed to the High Court. The question raised by the appeal was whether the apprehension of bias rule disqualified his Honour from hearing Mrs Laurie's claim. The apprehension raised was of pre-judgment. As the majority (Heydon, Kiefel and Bell JJ, French CJ and Gummow J dissenting in separate judgments) observed at [104], "it is an apprehension that, having determined the existence of the policy in the earlier proceeding, Judge Curtis might not be open to persuasion towards a different conclusion in Mrs Laurie's proceeding."
The fraudulent business policy found by Judge Curtis in the unrelated proceedings was that BATAS had drafted or adopted its Document Retention Policy for the purpose of a fraud. The question of whether BATAS adopted and implemented a document retention/destruction policy for the purpose of destroying documents adverse to its interests under the guise of a non-selective policy was "a live and significant one in the Laurie proceedings": at [122].
The majority described the apprehension of bias rule at [104] and later discussed the relevant test to be applied at [139]:
[104] The rule requires that a judge not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.
...
[139] It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-345 [6]-[7] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 at 77 [66] per Gummow, Hayne and Crennan JJ; [2006] HCA 44. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
At [140] the majority observed that trial judges were frequently required to make rulings excluding irrelevant and prejudicial material from evidence and that routine rulings of this nature were unlikely to disqualify the judge from further hearing the proceeding. The majority said, however, this was not the case before it. The majority stated:
[140] At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour's reasons for that finding....
The majority referred to Judge Curtis' findings at [141]-[142] (footnotes omitted):
[141] .... His Honour considered that it was remarkable that BATAS had replaced a long-standing detailed policy comprised of 45 pages, which prescribed mandatory retention and destruction periods for documents falling within each of 14 categories, with the 1985 policy. He noted that the 1985 policy, in two pages, reduced the categories of documents to three, of which the third, "valuable business documents ... in the sense that the business cannot do without it", was subject to the direction that these were to be retained only after the document had been "carefully reviewed to establish that it is truly valuable".
[142] Judge Curtis discussed Mr Gulson's evidence concerning an English firm of solicitors that had sent a team of three lawyers to Australia to ensure the implementation of the Document Retention Policy. This followed Mr Gulson's report that sensitive smoking and health documents were being held at BATAS's scientific library. Of this evidence, Judge Curtis said:
This is direct evidence, which has not been challenged or contradicted. In the absence of evidence from BATAS, I find it difficult to understand how it was thought necessary that three English lawyers attend a scientific library to implement a Document Retention Policy which only permitted destruction of documents which were not 'valuable business documents'. If BATAS was not selectively destroying scientific documents prejudicial to its position in future litigation, how is it that lawyers rather than scientists were assigned to judge the value of research material? This may be explained at the trial; however, the evidence of Mr Gulson gives rise to an obvious inference that has not yet been rebutted by BATAS. (emphasis added by majority)
The majority said that the force of the rhetorical question put by Judge Curtis was not lessened by his Honour's concluding sentence. The majority continued at [145]:
[145] Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson is distinguishable.
The reference to Allsop P was a reference to the dissenting judge in the Court of Appeal whose judgment the majority summed up at [124] (footnotes omitted):
[124] His Honour characterised Judge Curtis's finding as an unqualified one of dishonesty and fraud. In his view, the gravity of the finding was such that a fair-minded lay observer might reasonably doubt that Judge Curtis could eradicate the effect of it when endeavouring to deal fairly and impartially with the same issue in the Laurie proceedings. The problem, as Allsop P saw it, lay in the gravity of the conclusion of fraud and in Judge Curtis's persuasion of BATAS's moral delinquency to the degree warranting that conclusion.
The appeal was allowed.
It is apparent, in what the majority described as an "unusual case", that the majority was influenced by Judge Curtis' unqualified finding of fraud, the fact that he expressed himself in terms "indicating extreme scepticism about BATAS's denials", his "strong doubt about the possibility of different materials explaining the difficulties experienced by the judge" and his Honour's finding that the nature of the fraud was extremely serious.
As I have noted, in the unrelated proceedings involving BATAS, Judge Curtis made an unqualified finding that BATAS had engaged in fraud in relation to its Document Retention Policy. The Document Retention Policy was to be a "live and significant issue" in the Laurie proceedings. The present proceedings involve nothing like the issues in British American Tobacco. As I shall shortly explain, the Full Bench is sitting on appeals from a single judge who, on the basis of pleas of guilty, convicted the appellants of offences under the OHS Act and imposed sentences. Before proceeding to hear the merits of the appeals the Full Bench had been required to determine, as an integral part of the appeal process, whether the appellants should be granted leave to serve summonses on various parties in order to obtain evidence that the appellants contend would materially assist their cases on appeal. In carrying out that function, as part of the appeal process, the Full Bench was required to apply certain tests including the "on the cards" test on the basis of the evidence before the Full Bench.
Unlike the circumstances addressed in British American Tobacco the Full Bench is not straitjacketed by "unqualified findings". The findings may well be displaced by further, different evidence in the appeals proper. The Full Bench did not express itself in terms of indicating "extreme scepticism" and did not express "strong doubt about the possibility of different materials" on the hearing of the appeal throwing a different light on the appellants' claims.
Wilson
In Michael Wilson & Partners Limited v Nicholls ("Wilson") the appellant was a law firm and business consultancy. The appellant employed a solicitor, Emmott, as a partner, and two of the respondents, Messrs Nicholls and Slater, as lawyers. Some years later, Messrs Emmott, Nicholls and Slater left the appellant. The appellant claimed that each of them had wrongfully caused it loss by taking clients with them or by assisting or conspiring with others to do so.
Emmott's contract of employment required arbitration of any dispute with the appellant. The appellant commenced an arbitration against Emmott. The appellant claimed, inter alia, that Emmott breached a fiduciary duty owed to the appellant. The appellant then commenced the proceeding in the Supreme Court against the respondents, including Messrs Nicholls and Slater. The appellant alleged that they had knowingly assisted Emmott's breach of fiduciary duty and were liable to the appellant on that basis as well as in tort.
Before the trial, the appellant applied, without notice to the respondents, for permission to use, for foreign proceedings and criminal investigations, affidavits of Messrs Nicholls and Slater in the Supreme Court proceeding. Einstein J granted the appellant's application and six similar applications over approximately a year, relying on the appellant's uncontested affidavit evidence. On each occasion, the application was heard in closed court and orders were made preventing the respondents from knowing, or knowing fully, about the appellant's applications. When, before trial, the confidentiality orders were lifted, the respondents became aware of the appellant's applications and applied to Einstein J to disqualify himself from hearing the case further. His Honour refused their applications and tried the action.
His Honour gave judgment for the appellant against the respondents. The Court of Appeal held that the trial judge should have disqualified himself. The High Court overturned the Court of Appeal's decision.
The plurality (Gummow ACJ, Hayne, Crennan and Bell JJ, Heydon J agreeing) discussed the apprehension of bias test at [31]-[33] (footnotes omitted):
[31] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) 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 the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.
[32] As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias....
The plurality returned to the test at [67], stating that:
[67] As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
At [68]-[73] the plurality explained why it considered the Court of Appeal was wrong:
[68] The Court of Appeal was wrong to take account as it did of the reasons for judgment published by Einstein J after the trial in deciding whether in this case there was a reasonable apprehension of bias. The central and determinative question for this aspect of the matter was: might what was done in connection with MWP's ex parte applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial...
[69] Here, however, it was said that "the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern". That concern was identified as the possibility "in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure" (emphasis added). But the existence of a "concern" described as the possibility of placing the evidence led at trial into a "pre-existing mental structure" does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial....
[71] All of the applications MWP made to Einstein J without notice to the opposite parties were applications about the use that MWP or Mr Wilson could make of the disclosure affidavits made by Messrs Nicholls and Slater and associated correspondence or of documents produced on subpoena. More particularly, a central question in each application was whether that material could be supplied to others.
[72] In none of the applications was Einstein J required to make, and in none of the applications did he make, any determination of any issue that was to be decided at trial....
[73] Neither the hearing nor the disposition of any of the ex parte applications could found a reasonable apprehension of prejudgment of the credit of those who gave evidence in support of the applications. Their credit was not challenged in the ex parte hearings and no decision had to be made about their credit beyond determining that the unchallenged evidence they gave was apparently credible. Nor could the hearing or the disposition of the applications found a reasonable apprehension of prejudgment of the credit of those who had given no evidence in relation to the applications and who first were heard to give evidence at trial. There was, therefore, no sufficient basis to conclude that there was reasonable apprehension that Einstein J might have, as Young JA said, "put himself into the mindset of accepting that [MWP or MWP's witness] is the 'good guy' and thus the opponent is otherwise". And the Court of Appeal concluded that there was such a reasonable apprehension only by (impermissibly) reasoning backwards from what was decided at trial, and how it was decided, to the conclusion that it might reasonably be apprehended that the judge might have prejudged those matters.
In addition to restating the reasonable apprehension of bias test, Wilson is authority for the particular proposition that in order to establish a reasonable apprehension of bias it is "necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment."
The appellants relied on Wilson to contend that, unlike in that case, the Full Bench in Hunter Quarries (No 2) did make findings about the reliability of any party or witness and did make a choice between competing versions of events.
Later authorities
Three authorities that the appellants did not refer to, but which were drawn to my attention by the respondent were: Barakat v Goritsas (No 2) [2012] NSWCA 36, GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 and Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359.
In Barakat at [9], Basten JA (with whom Young JA and Sackville AJA agreed) referred to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337:
[9] It is has been said that the test [of reasonable apprehension of bias] involves a two step process. Thus, in Ebner v Official Trustee in Bankruptcy... at [8], Gleeson CJ, McHugh, Gummow and Hayne JJ stated:
Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
At [11]-[12] and at [40] Basten JA relevantly stated:
[11] These comments illustrate the risk which can arise if the term "prejudgment" is used imprecisely. Properly used, it must refer to the apparent formation of a view on the part of the trial judge in respect of an issue which will (or may) need to be determined at the trial. Adapting the "central and determinative question" identified by the plurality in Michael Wilson & Partners, at [68], it is necessary to ask, "might what was done in connection with [the interlocutory] applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?"
[12] It is, accordingly, incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues. There was a tendency in the applicants' submissions to gesture rather too sweepingly towards statements made by the judge expressing frustration with the applicants or, more usually, their counsel, without seeking to articulate the relevant reasoning by which the fair-minded lay observer would attribute a level of prejudgment warranting recusal.
...
[40] No authority is needed for the proposition that an apprehension of bias, in the sense of an apprehension of prejudgment, does not mean an apprehension that the case will be determined adversely to the interests of the complaining party. It means a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party.
In GlaxoSmithKline the Full Court of the Federal Court made a number of "preliminary observations" at [37]-[41] that are relevant:
[37] Secondly, the fair-minded lay observer is assumed to know the actual circumstances of the case: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87.
[38] Thirdly, the fair-minded lay observer will note the possibility of a change in the evidentiary position between earlier and later proceedings: see, for example, British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [145] ("Laurie").
[39] Fourthly, the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion.
[40] Fifthly, it is important to recognise that "disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party": Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]; see also Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352.
[41] There is nothing in the transcript or the reasons for judgment to suggest that the primary judge rejected Mr Hunter's evidence because he had formed an adverse view of his credibility. It is true that that is not the end of the inquiry. An apprehension of bias by reason of prejudgment might also arise where (absent necessity, special circumstances or consent) a judge sits to hear a case after (s)he has in a previous case "expressed clear views ... about a question of fact which constitutes a live and significant issue" (Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 300).
In Ipp at [64] and [147]-[149] Bathurst CJ (Barrett and Ward JJA agreeing, with additional observations) stated:
[64] It was also common ground between the parties that the test would be applied on the assumption that the hypothetical fair-minded observer would have a general appreciation of the powers and the functions of the Commissioner and the Commission. They accepted as correct the comment by Spigelman CJ in McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [6]- [7] that the statute under which the decision-maker in question carries out his or her functions must be part of the assessment process from the outset and that the content of what the test requires will vary from one statutory context to another.
...
[147] I agree with the submission of the applicant that the application of the second limb of the Ebner test does not require an inevitable conclusion to be drawn from the facts that a fair-minded observer would consider there was a possibility that the decision-maker had pre-judged the issue. The test to be applied is framed at all stages at the level of possibility. What is required is that a fair-minded observer might perceive a logical connection between the matters raised and the possibility of the decision-maker not bringing an impartial mind to the issue.
[148] That being said, it must be emphasised that the connection must be one capable of being drawn as a possibility by a reasonable and fair-minded observer. In R v Lusink; Ex parte Shaw supra at 50, Gibbs ACJ stated that it must be "firmly established" that such a suspicion may be reasonably engendered in the minds of the public or the parties. See also R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554.
[149] In this context it was submitted by the applicant that it was inappropriate to consider what might be described as alternative possibilities to that of apprehended bias in determining whether the second limb of the Ebner test was made out. I do not agree. A consideration of the possible reasons why the particular course may have been taken may be of assistance in determining whether the logical connection required by the second limb of the Ebner test is made out. For example, if it was clear that the reason for the action taken by the decision-maker said to give rise to the possibility of bias was unconnected with any pre-judgment of the issue, consideration of that reason would be appropriate in determining the issue of whether a reasonable and fair-minded observer might see a logical connection between the acts complained of and the possibility of bias.
Relevant issues arising from later authorities
As the respondent submitted, the matters arising from the later authorities that are of particular relevance to the present applications are as follows:
(1)It is incumbent upon the parties seeking recusal to identify the issues which will need to be determined at the final hearing, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues: Barakat at [12].
(2)An apprehension of bias, in the sense of an apprehension of prejudgment, means a reasonable apprehension that the tribunal has formed a fixed view, to which it may be expected that the tribunal will adhere, regardless of the evidence or the submissions made by the complaining party: Barakat at [40].
(3)The fictional fair-minded lay observer will be imbued with "a fair understanding of all the relevant circumstances" (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [53]) and it is appropriate, when assessing if there is a logical connexion between the allegedly offending conduct and the impartial determination of the final issues, that there be a "consideration of the possible reasons why the particular course may have been taken [as it] may be of assistance in determining whether the logical connection required by the second limb of the Ebner test is made out" : Ipp at [149].
I would add what French CJ stated in British American Tobacco at [45]:
[45] The scrutiny required of claims of bias based on prior findings by a decision-maker was emphasised, in relation to administrative decisions, by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal. Their Honours, after referring to R v Australian Stevedoring Industry Board, Angliss and Shaw, said:
"When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her." (emphasis added)
The requirement that an apprehension of bias, based on judicial conduct, be "firmly established" is consistent with the most recent decisions of this Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.
Connection between conduct and issues
The appellants have attempted to make the connection between the issues and the conduct by setting out, in the headings and first column of a table ("the Table") contained in their submissions, the conduct complained of (that is, the paragraphs from the Full Bench's decision in the Hunter Quarries (No 2) that they contend give rise to the necessary apprehension of bias) and identifying in the second column of the table (albeit not in every instance) the issue that is to be determined on the appeal and how the conduct complained of gives rise to the possibility that the Full Bench may not decide the case impartially.
Adherence to fixed view
The appellants contended that Hunter Quarries (No 2) revealed the Full Bench had formed a fixed view, such that it will not be "open to persuasion by any additional evidence or submissions from [the appellants]". Whether this is so depends on the context in which the Hunter Quarries (No 2) judgment was delivered and the views expressed by the Full Bench in those paragraphs about which the appellants complain.
Accordingly, whether the Full Bench did form fixed views will be considered below when I come to examine the impugned statements of the Full Bench.
Context
As the respondent submitted, the fictional fair-minded lay observer will be imbued with "a fair understanding of all the relevant circumstances" (Johnson at [53]) and to that end where the decision-maker's power is sourced from statute "the statute under which the decision-maker in question carries out his or her functions must be part of the assessment process from the outset and ... the content of what the [Two-Step] test requires will vary from one statutory context to another": Ipp at [64].
As I have explained, Hunter Quarries (No 2) was an interlocutory judgment - not a final one - on a notice of motion filed by the appellants seeking leave of the Full Bench to issue summonses to produce. The source of the Court's power to grant such leave is found in s 12 of the Criminal Appeal Act1912 ("CA Act"). That section relevantly provides:
12 Supplemental powers of the court
(1) The court may, if it thinks it necessary or expedient in the interests of justice:
(a) order the production of any document, exhibit, or other thing connected with the proceedings, and
...
It was observed by the Full Bench in Hunter Quarries (No 2) at [37] that it was not in issue that if orders to produce were to be made the appellants must: (i) identify a legitimate forensic purpose for which the documents are sought; and (ii) establish that it is 'on the cards' that the documents will materially assist their cases. However, the Full Bench stated at [38]:
[38] ... [W]hile the legitimate forensic purpose test and the 'on the cards test' are proper and appropriate inquiries for the Court to undertake when determining whether to order the production of documents, the exercise of the Court's power under section 12 of the CA Act, is conditioned on it being "necessary or expedient in the interests of justice".
The respondent in the present proceedings submitted, correctly in my opinion, that Hunter Quarries (No 2) and the so-called 'findings' made must, therefore, be viewed through the prism of the applications that were before the Court: whether it was, on the evidence before the Court, necessary or expedient in the interests of justice that the Court make orders compelling the production of documents.
In determining whether it was "on the cards" that the documents sought by the appellants would "materially assist" the appellants in their appeals it was "necessary to consider the evidence presented... to establish the possibility that [evidence of illegality or impropriety] might emerge from the documents": Regina v James Saleam [1999] NSWCCA 86 at [27].
I do not think there could be any doubt the Full Bench was entitled, when considering whether it was on the cards that the documents called for by the proposed summonses would materially assist the appellants, to examine the evidence presented to it on the applications. Equally, s 12 of the CA Act empowered and required the Full Bench to scrutinise the apparent relevance (or lack thereof) of the documents called for to the real issues on the appeal.
Despite some of the appellants' contentions, it is not part of the Full Bench's function to, in effect, give the appellants the benefit of the doubt so that if the evidence in the interlocutory proceedings was not sufficient to allow the appellants to succeed the Full Bench could be assured there was further evidence to be adduced on appeal that would make good the appellants' cases.
The question is whether the Full Bench, in expressing its opinion about the relevance of the material sought by the appellants to be produced (whether there was a legitimate forensic purpose for those documents to be compulsorily produced, or whether it was on the cards it would materially assist the appellants), might cause a fair-minded lay observer to reasonably apprehend that the Full Bench might not bring an impartial and unprejudiced mind to the resolution of the questions or issues the Full Bench is ultimately required to decide.
An important consideration is whether the fair-minded observer would understand that any statements made by the Full Bench as to what might had been 'proven' or 'not proven', were statements of the Full Bench reflecting fixed views about the issues to be finally decided on the appeal, or were statements, based on the evidence led on the interlocutory applications, as to whether the evidence was sufficient to establish the possibility that the information the appellants were seeking to support their cases on appeal might emerge from the documents sought, and that there was a legitimate forensic purpose for those documents to be compulsorily produced.
One of the considerations the fair minded observer would take into account is that at [29] of the Hunter Quarries (No 2) the Full Bench stated:
[29] Whether the appellants can make good these allegations will depend on the evidence and submissions on the appeal. What we are concerned with at this stage of the proceedings, in applying the 'legitimate forensic purpose' test and the 'on the cards' test, is whether certain material particularized in the draft summonses should be produced to the appellants so that they may use it (or not) on the appeal....
Whether statements by Full Bench give rise to a reasonable apprehension of bias
As I earlier explained, the appellants constructed a Table setting out, in general terms in a series of headings, the issues about which they complain arising from statements by the Full Bench that they contend give rise to the necessary apprehension of bias, then in the first column the actual statements in Hunter Quarries (No 2) about which they specifically complain, and then, in the second column of the Table, the issue that is to be determined on the appeal and how the statements complained of give rise to the possibility that the Full Bench may not decide the appeals impartially.
Role of the appellant's trial and sentencing counsel
The first issue raised by the appellants concerned the role of the appellants' trial and sentencing counsel. This issue was said to arise in eleven paragraphs ([13], [14], [18], [19], [20], [59], [60], [79], [97], [104] and [128]) of the interlocutory judgment in Hunter Quarries (No 2). The appellants' grounds of appeal included (at ground 7) that "there were failings and errors of counsel representing the Appellant[s] that comprise material irregularity and there is a significant possibility that they affected the outcome".
Counsel for the appellants submitted that in Hunter Quarries (No 2) the Full Bench made determinations on issues that were to be decided on the appeal. This occurred, it was submitted:
(1)notwithstanding none of the documents sought in the summonses for production dealt with the role of the appellant's trial and sentencing counsel;
(2)after it being raised by the respondent in submissions, the appellant's written reply submission argued the appellants were yet to fully put their appeal cases concerning the irregularities and incompetence of first instance defence trial and sentencing counsel. The appellants submitted these cases would extend to adducing affidavit evidence and presenting full appeal arguments. For example, that there was zero defence forensic advantage and justification for not objecting to the tender and admissibility of all of the prosecutor's expert reports based on the prosecutor failed to comply with obligations of experts and the Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005.
The appellants submitted that the above circumstances supported the proposition that a fair-minded lay observer might reasonably apprehend that the Full Bench found a state of affairs to have existed about the role of the appellant's trial and sentencing counsel and might not be inclined to depart from that view in the substantive appeal.
In the interlocutory judgment the Full Bench stated the appellants were represented by senior and junior counsel experienced in the Court's occupational health and safety (OHS) jurisdiction. This was a matter of fact, well known to the members of the Full Bench because both senior and junior counsel had regularly appeared before them in the jurisdiction.
The statement regarding counsel was made in the context of considering the foundations upon which the appellants sought to convince the Court of the soundness of their applications to obtain further material to assist their respective appeals. The Full Bench addressed a number of matters, including the fact that the appellants were represented by experienced counsel, that led it to say the foundations were not strong. This was said against the background of the fact that, with the assistance and advice of experienced senior and junior counsel, the appellants had pleaded guilty to charges following amendment of the charges in relatively minor ways, notwithstanding that Messrs Grugeon and Chevalley, in what could be regarded as related proceedings, had entered not guilty pleas (see [19]) and having regard to what Kirby P stated in Liberti v R (1991) 55 A Crim R 120 (Grove and Newman JJ agreeing) at 122:
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence. See R v O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59; R v Sagiv (sic) (1986) 22 A Crim R 73 at 81.
The Full Bench was entitled to approach the appellants' applications with a degree of circumspection.
The appellants submitted that the Full Bench made determinations on issues that were to be decided on the appeal notwithstanding none of the documents sought in the summonses for production dealt with the role of the appellant's trial and sentencing counsel. That is not correct.
At [50]-[60] of Hunter Quarries (No 2) the Full Bench was dealing with a submission by counsel for the appellants that the parties to whom the summonses had been directed should be ordered to produce material (identified at [35] of the summonses) in relation to when, where and/or how the principal witness for the prosecution, Mr Sunol, was (a) made aware of the duties of an expert for preparing an expert report; and/or (b) provided with a copy of the expert Code of Conduct. The material was sought so that the appellants "may fully put their argument that the prosecutor failed to comply with obligations of experts and the Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules." It was submitted that Mr Sunol had no familiarity with the obligations of an expert witness when his first report was completed in 2006 and it was not possible to retrospectively comply as attempted by the prosecutor in putting forward as the expert report in the proceedings, the report that Mr Sunol signed off on as an expert in 2008.
Mr Sunol did prepare a 2006 report. As the Full Bench observed, however, at [54], the evidence suggested that under counsel's guidance Mr Sunol then went through an extensive review of that earlier report for the purpose of ensuring he met the requirements of the expert's Code. Out of that review Mr Sunol produced the 2008 expert report, which was tendered in the proceedings before Backman J without challenge from trial counsel for the appellants as to its admissibility.
Whilst the material in [35] of the summonses was sought to assist the appellants' attack on the prosecutor, it was plainly the case that part of the purpose in the appellants seeking the material was to assist the appellants in making out their appeal ground 7 that "there were failings and errors of counsel representing the Appellant[s] that comprise material irregularity and there is a significant possibility that they affected the outcome". It was also undoubtedly sought to assist the appellants in making out grounds 4 and 5 of the appeal:
4. Prosecution expert reports that were tendered by the Respondent offended the following propositions:
a) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation.
b) Solicitors and counsel must not settle the evidence of an expert.
c) Lawyers should not be involved in the writing of reports by experts in relation to the substance of the reports.
5. Prosecution expert reports and evidence did not comply with rules and tests of admissibility and were therefore wrongly received or should have been afforded no weight.
At [60] of Hunter Quarries (No 2) the Full Bench expressed the view that it could not be assumed that because counsel did not challenge the 2008 expert report of Mr Sunol going into evidence that circumstance "was of such a nature... as to have led to a miscarriage of justice". The Full Bench opined that there could have been a reasonable explanation why counsel chose not to challenge and that it was difficult to envisage experienced counsel not being alert to the opportunity to explore the issue of whether Mr Sunol complied with the expert witness Code if that was considered to be in the appellants' interests.
The appellants appear to be now submitting that given this opinion was expressed about counsels' role, this meant the Full Bench had found a state of affairs to have existed about the role of the appellants' trial and sentencing counsel and might not be inclined to depart from that view in the substantive appeal.
It must be borne steadily in mind, however, that an issue for the Full Bench was whether it was on the cards that the material sought in [35] of the summonses could conceivably result in the convictions being quashed or the sentences being reduced because, amongst other considerations, counsel incompetently failed to challenge the report going into evidence and, therefore, a miscarriage of justice occurred.
One cannot read [60] in isolation. At [54]-[59] the Full Bench stated:
[54] There is no evidence to suggest the prosecution's experts were not familiar with their obligations at the time they came to prepare their expert reports. What evidence is available suggests that at least in respect of Mr Sunol, counsel for the prosecution did take steps to ensure compliance with the expert witness code in August 2008, noting that Mr Sunol signed his expert report on 19 September 2008.
[55] Whilst Mr Sunol did prepare the 2006 report, the evidence suggests that under counsel's guidance he then went through an extensive review of that earlier report for the purpose of ensuring he met the requirements of the expert's code. Out of that review Mr Sunol produced the 2008 expert report. After describing his extensive experience, expertise and qualifications, Mr Sunol stated in his expert report that he had read the Code of Conduct and agreed to be bound by it.
[56] In Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279, Young JA, in considering principles to be applied to the admission of expert reports, stated, inter alia, at [63]:
[I]n the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence.
[57] It is apparent that each case must be considered on its merits (Hodder Rook at [63] per Young JA) and that "it is necessary to consider all the circumstances of the case in order to determine whether the objectives sought to be secured by UCPR r 31.23 have been affected by the non-compliance": Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 at [35] per Ball J.
[58] In Welker, Ball J was not satisfied that he should make an order dispensing with compliance with UCPR r 31.23 in respect of any of the reports in that case. However, Welker may be distinguished. In that case the experts merely swore affidavits saying that they had now read the code and confirmed the opinions expressed in their reports. As we have explained, that was not the situation with Mr Sunol.
[59] In any event, and this goes to the test in s 12 of the CA Act, namely, "necessary or expedient in the interests of justice", in the initial trial proceedings before Backman J, the appellants were represented by experienced counsel who had the 2006 report as part of the prosecution brief and the 2008 expert report as part of the evidence in the proceedings. There was every opportunity to explore the issue of compliance with the expert witness code and to oppose the admissibility of the expert report, which was a centrepiece of the prosecution case. That did not occur. Instead, pleas of guilty were entered to amended charges and agreement reached on a statement of facts that reflected the findings and opinions in the expert report. (emphasis added)
It will be noted in particular:
(1)the available evidence suggested, in respect of Mr Sunol, counsel for the prosecution took steps to ensure compliance with the expert witness Code in relation to the 2008 expert report;
(2)Mr Sunol stated in his expert report that he had read the Code of Conduct and agreed to be bound by it;
(3)the appellants were represented by experienced senior and junior counsel who had Mr Sunol's 2006 report as part of the prosecution brief and the 2008 expert report as part of the evidence in the proceedings;
(4)in possession of the two reports, there was every opportunity for the appellants' trial counsel to explore the issue of compliance with the expert witness Code and to oppose the admissibility of the expert report, which was a centrepiece of the prosecution case. That did not occur;
(5)instead, pleas of guilty were entered to amended charges and agreement reached on a statement of facts that reflected the findings and opinions in the expert report.
In these circumstances, the Full Bench considered that although counsel did not challenge the admissibility of the 2008 report, it could not be assumed that would result in a finding that there had been a miscarriage of justice.
It was incumbent on the Full Bench, given the tests it was required to apply, to consider whether it was on the cards that because the appellants' counsel at trial did not challenge the admissibility of the 2008 report it would result in the convictions being quashed or the sentences being reduced. It was not a matter that could have been ignored.
The appellants submitted they had not fully put their cases on appeal and that they intended to adduce further evidence concerning the irregularities and incompetence of first instance defence trial and sentencing counsel. It should be noted the appellants were given every opportunity to file any evidence upon which they intended to rely in the interlocutory proceedings regarding the summonses. The Full Bench could only deal with the appellants' interlocutory application on the material filed having regard to the grounds of appeal and the submissions of the parties.
I do not accept that a fair-minded lay observer might reasonably apprehend that as a Member of the Full Bench deciding Hunter Quarries (No 2) I might not bring an impartial and unprejudiced mind to the resolution of the appeals because of the statements made by it regarding trial and sentencing counsel.
Agreed facts on sentence
In the proceedings before Backman J, her Honour was provided with a document that constituted the Agreed Facts. The appellants referred to what the Full Bench stated at [59], [106] and [130] regarding the Agreed Facts:
[59] ... pleas of guilty were entered to amended charges and agreement reached on a statement of facts that reflected the findings and opinions in the expert report.
...
[106] The appellants did not seek to impugn the agreed facts. So regardless of the issue of the interval between servicing, it was an agreed fact that the last service on truck 28 failed to identify significant defects. Combined with Mr Badior's evidence, it was clearly open to her Honour to find "that the defendants knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements, prior to the accident."
...
[130] ... Her Honour arrived at this conclusion based on the Agreed Facts, the opinions of Mr Sunol expressed in his expert report and the evidence of Mr Lewis.
In their submissions regarding this issue, the appellants referred only to the alleged failure of the prosecution to disclose material which allegedly ought to have been disclosed, being the conduct said to found appeal grounds 2 and 3. Those grounds were that:
2. The prosecution failed to disclose material or evidence to the Appellant contrary to the prosecution's obligation of disclosure.
3. There was a deliberate non-disclosure or suppression of material or evidence by the prosecution arising from the policy reflected in the "Mine Safety Investigation Manual" in relation to "Examining the department's role leading up to the incident."
The appellants then referred to authorities that explain that for "the purpose of establishing such an allegation of unfairness [arising from non-disclosure] it is not necessary for the applicant to be able to point to conduct of an identified person or persons concerned in the prosecutions as having been blameworthy": Mallard v R [2005] HCA 68; (2005) 224 CLR 125 at [16]; Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [388] citing R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575; R v Lucas [1973] VR 693 as cited in Bugeja & Johnson v The Queen [2010] VSCA 321; (2010) 30 VR 493 at [60]; Bradshaw v The Queen, unreported, CCA SCt of WA; Library No 970228, 13 May 1997.
At [84], the Full Bench was doing no more than observing that despite the appellants claiming they were not casting aspersions on counsel or the prosecutor, the manner in which the appellants framed their allegations necessarily had the effect of impugning the reputation and integrity of those against whom these allegations are made. That was undoubtedly the case. The Full Bench was not making any statement as to whether 'misconduct' or 'fault' was an element of unfairness arising from non-disclosure.
I note that, in any event, the Full Bench was not dealing with appeal grounds 2 and 3 at [84] of its judgment regarding non -disclosure, but rather grounds 4 and 5 of the appeal: see [61] of Hunter Quarries (No 2).
Whether there was no evidence or any other indication to suggest that counsel required Mr Lewis to change his draft in the manner that occurred
The appellant referred to what the Full Bench stated at [135]. However, in order to provide context I should quote what was said at [131]-[137]:
[131] Mr Lewis tested the retarder valve on 24 February 2006 in the presence of Mr Sunol. In the earlier version of the report that was eventually tendered in the proceedings, Mr Lewis had said:
While the function of the spool appears to be normal, the amount of compressed air that is wasted during its operation could hinder the operation of the air brake system.
[132] In his expert report eventually tendered in the proceedings, Mr Lewis stated:
In my opinion based on my testing and observation of this component, while the function of the spool appeared to be normal, the amount of compressed air that was wasted during its operation could hinder the operation of the air brake system.
Although I do not have specific experience of valve spools and do not have specific knowledge of their function I am able to bring my mechanical knowledge and experience to their operation and am of the opinion following my testing and observation that air was being wasted and hindered its function.
[133] Following their obtaining in 2012 of Mr Lewis' earlier draft, the appellants said they discovered that counsel for the prosecutor had required amendments to the draft. Mr Lewis was cross-examined about these matters in the Chevalley/Grugeon proceedings on 24 July 2012. Mr Lewis stated in answer to a question:
The valve was given to me to check a function because our test gear could check it and I did say to Mr Sunol I know nothing about this particular piece of equipment.
[134] The appellants complained that the prosecutor did not identify or disclose that Mr Lewis had made the foregoing statement to Mr Sunol. The appellants also submitted that the involvement of the prosecutor led to a report being tendered that did not satisfy admissibility requirements for expert evidence because Mr Lewis knew nothing about the retarder valve.
[135] There was no evidence or any other indication to suggest that counsel required Mr Lewis to change his draft in the manner that occurred. Mr Lewis said in his cross-examination on 24 July 2012, that he did not remember why he made the change and did not remember if anyone asked him to "put something additional in", but that "I may have discussed this with my boss and he possibly said you haven't covered your backside with this you better make a disclaimer".
[136] Mr Lewis said in his cross-examination that he did not accept that the statement in his tendered report was outside his area of expertise and when one considers the statement it is clear that Mr Lewis accepted he did not have specific experience of valve spools and did not have specific knowledge of their function. However, in applying his mechanical knowledge and experience in brake mechanics (apparently not contested) to the operation of the component, he was of the opinion, following his testing and observation, that air was being wasted and hindered the function of the component.
[137] In those circumstances, we do not believe it is on the cards that the information the appellants seek would materially assist their case on appeal....
The appellants submitted that clear views were expressed in Hunter Quarries (No 2) and there was a choice made by the Full Bench between competing views. As to the latter, it was submitted the choice was made notwithstanding the written representations in the prosecutor's bill of costs "attending G Lewis, expert automotive engineer, on the telephone discussing amendments counsel requires to draft report" and "Perusing draft report of G Lewis, expert automotive engineer and amendments suggested by counsel". It is submitted that the "double might" test has been satisfied in these circumstances.
The Full Bench did not accept the appellants' submission that the evidence contained in the bill of costs indicating that counsel had requested some changes to Mr Lewis' report meant that counsel had specifically requested the inclusion of the extra paragraph in his expert report and that the report was, therefore, inadmissible.
The Full Bench was required to decide whether it was on the cards that counsel had proposed to Mr Lewis he change his report to add the extra paragraph qualifying his opinion. The Full Bench had no other evidence before it other than what was stated in the bill of costs, which drew no concrete connection between counsel suggesting amendments and the extra paragraph. Furthermore, Mr Lewis stated in his evidence that he could not recall why he made the change and did not remember if anyone asked him to "put something additional in", but that "I may have discussed this with my boss and he possibly said you haven't covered your backside with this you better make a disclaimer".
I am unable to accept that a fair-minded lay observer, who recognises that judges are capable of departing from an earlier expressed opinion, would consider that, notwithstanding different additional evidence being adduced on appeal, the Full Bench might not depart from its view that there was insufficient evidence to support the claim that counsel had proposed to Mr Lewis he change his report to add the extra paragraph to his expert report, thereby rendering it inadmissible.
Whether a contrary finding regarding the effect of the leak in the retarder valve would make no measurable difference to the outcome
The appellant referred to statements in [137] of the judgment. I quoted the first sentence of [137] in addressing the immediately preceding complaint. The full paragraph was in the following terms:
[137] In those circumstances, we do not believe it is on the cards that the information the appellants seek would materially assist their case on appeal. What is more, it seems to us that even if we granted leave to issues the summonses in respect of paragraphs [46]-[58] and that led to a contrary finding regarding the effect of the leak in the retarder valve, it would make no measurable difference to the outcome given that, in addition to finding that the air leak would have caused a resultant loss of braking performance of the truck, Backman J also found (as summarised at [222]), that:
(4) The presence of the oil mixture on the right-hand centre brake precluded it from functioning effectively;
(5) The level of brake fluid in the front brake reservoir was very low in that it was at least as low as the centre discharge pipe as a result of an internal leak through it, and this low fluid level operated to render the two front brakes effectively inoperable;
(6) There was a pre-existing air leak on the front brake air circuit from a split in the air hose which affected the pressure in the main air reservoir.
(7)...
(8) The extent to which the park brake was out of adjustment would have removed the capacity of the park brake to hold stationary the loaded truck on the haul road and would have provided no braking force in the event of an emergency.
(9) Because of equipment defects at the time of the accident, only three of the disc brakes were working to their design capacity and the performance of those three brakes was reduced due to the air leaks in the braking system.
(10) On the day of the accident, had the engine failed for any reason while descending, the air compressor would have ceased to operate, the retarder would have disengaged, and within a very short period the air pressure in the braking system would have dropped to a point where the brakes could not bring the truck to a halt.
The appellants submitted the lay observer might reasonably apprehend that a judge who had found a state of affairs to exist, namely, "it would make no measurable difference to the outcome", may not be inclined to depart from that view in a subsequent case. This concluded view, it was submitted, was determined in the absence of hearing full arguments and in the absence of having before the Full Bench all of the evidence to be considered on appeal.
The Full Bench expressed the view that "it seem to us" that even if the Full Bench granted leave to issues the summonses in respect of the relevant paragraphs and that led to a contrary finding regarding the effect of the leak in the retarder valve, it would make no measurable difference to the outcome. The reason that seemed to be so was that in addition to finding that the air leak from the retarder valve would have caused a resultant loss of braking performance of the truck, Backman J also found a whole series of other defects compromising the braking capacity of the vehicle.
It was not put to the Full Bench, despite it being an obvious issue, that if it were to grant leave to issue the summonses in respect of the relevant paragraphs and that led to a contrary finding regarding the effect of the leak in the retarder valve (that is, there was no leak or if there was it did not affect the braking capacity of the truck), it was on the cards the other defects found at [222] by Backman J were inconsequential. In other words, the findings by Backman J regarding the failings by the appellants in relation to the maintenance and servicing of the truck's braking system could not be sustained.
The appellants have foreshadowed further evidence on the appeal. A fair minded observer would not, in my view, believe the Full Bench might maintain a fixed view that a contrary finding regarding the effect of the leak in the retarder valve would make no measurable difference to the outcome if additional evidence was adduced on the appeal to prove that was not so.
Evidence of compliance (or lack thereof) with the law of State of NSW in respect of prosecutorial disclosure
The appellant referred to what the Full Bench stated at [144]-[145]:
[144] As we earlier observed, the prosecutorial duty of disclosure does not require an indiscriminate and wholesale delivery to a defendant of every document produced or obtained by the prosecutor in the course of conducting a prosecution.
[145] Moreover, we are yet to see any evidence of "unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information" in these matters. Order 4 is no more than a fishing expedition and the order is refused.
The relevant grounds of appeal were 2 and 3, which I quoted earlier. Those grounds concerned an alleged failure to disclose.
The appellants submitted that having read the determination in Hunter Quarries (No 2) that "we are yet to see any evidence" (at [145]) a fair-minded observer might apprehend that the Full Bench might not be open to persuasion to a different conclusion in the appeal proceedings.
The appellants explained that the only evidence, and that it was undisputed evidence, on lack of disclosure in respect of the role of the State of NSW (Department of Primary Industries), corroborated the legitimacy of that apprehension. In their written submissions in chief to the Full Bench, based on the evidence they had filed, the appellants sought to make out their case for an order (order 4) seeking compliance by the prosecution with the law of the State of NSW in respect of prosecutorial disclosure. After receiving the appellants' material the prosecution then produced two lever arch folders of documents to the appellants prior to the Full Bench hearing the oral submissions of the parties and prior to the appellants filing their submissions in reply. These documents had not been disclosed previously to the appellants.
In their reply submissions the appellants drew attention to a recently disclosed document from the prosecution, which suggested that an Inspector Chilman had carried out a "Total quarry site" inspection on 21 April 2005. However, the appellants submitted that inconsistent with the document and "objectively contrary to the truth", the prosecutor had submitted in writing on sentence before Backman J, "It is not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of every aspect of the operations".
The appellant's submission seemed to be that because the Full Bench apparently did not accept the belated disclosure of documents that revealed an alleged inconsistency between a business record of the DPI and a submission made by the prosecutor on sentence, a fair minded observer might reasonably apprehend that the Full Bench might not be open to persuasion that there was "unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information".
It is to be borne in mind that what the Full Bench was being asked was to make order 4, which was in the following terms:
In addition to what is already captured by either or both of Attachments A, B and C, to this Notice of Motion, the prosecution must disclose documents which are material, if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b).
The Full Bench was not being asked to make a finding that there was "unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information". Nevertheless, I should deal with the unfairness contention said to arise from the alleged inconsistency between Inspector Chilman's report that he inspected the "Total Quarry site" (on 21 April 2005, not 22 April 2005) and the prosecutor's submission that "It is not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of every aspect of the operations".
One of the issues was whether, in the course of his inspection, Inspector Chilman had earlier inspected the haul road on which the truck was to travel when it went over the embankment, killing the driver. A submission made by the appellants was that Inspector Chilman, having seen the haul road (Mr Badior's evidence, not apparently challenged, was that he and Inspector Chilman drove down the haul road), did not identify any deficiencies in the design of the road and, therefore, it was not reasonably foreseeable for the appellants to have done so.
In the sentencing proceedings the appellants submitted there was never any suggestion by the appellants that Inspector Chilman was at the Quarry site to only inspect the haul road or to approve the same. Rather, the appellants understood it was part of his overall attendance at the site. There was no evidence that Inspector Chilman, other than driving down the haul road, carried out an inspection of the road with a view to considering whether it was safe
The appellants' position appears to be that it was unfair and improper that the prosecution had not disclosed Inspector Chilman had completed an "Event Details" pro forma and inserted under the heading "Part of Mine Inspected", the words "Total quarry site". It seems to be submitted that in the knowledge that document was in existence the prosecutor was being untruthful in making the submission "It is not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of every aspect of the operations".
It may be the case that the failure of the prosecution to disclose Inspector Chilman's report was unfair because it may have provided the appellants with the opportunity to pursue whether or not Inspector Chilman had carried out a safety inspection of the haul road. That is a matter that may be pursued on appeal.
However, the question for the Full Bench was whether the alleged inconsistency was sufficient to make order 4. The appellants seem to infer that because the prosecutor allegedly acted improperly in not disclosing Inspector Chilman's report, it is on the cards the prosecutor did not disclose other material in accordance with the prosecutor's duty to do so.
Although the report of Inspector Chilman was not disclosed in a timely way, it was disclosed. Given that was so, it does not constitute a proper basis on which the Full Bench would have made order 4. In any event, that order is virtually borderless. It relies on the prosecutor making a "sensible appraisal" of whether documents - unknown to the Full Bench - should be disclosed. There is no way for the Full Bench to determine whether such a "sensible appraisal" has been carried out.
Orders
I decline to grant the appellants' recusal applications. Costs are reserved.
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