Ibrahim v Herring [No 3]
[2011] WASCA 265
•13 JANUARY 2012
IBRAHIM -v- HERRING [No 3] [2011] WASCA 265
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 265 | |
| THE COURT OF APPEAL (WA) | 13/01/2012 | ||
| Case No: | CACR:133/2010 | 20 SEPTEMBER 2011 | |
| Coram: | MAZZA JA | 20/09/11 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MOHAMED TAREK IBRAHIM RAL STEPHEN HERRING |
Catchwords: | Courts and judges Application for judge to disqualify himself Actual or apprehended bias |
Legislation: | Criminal Appeals Act 2004 (WA), s 9(1), s 9(4)(a), s 18 Road Traffic Code 2000 (WA), s 73, s 126(2) Supreme Court (Court of Appeal) Rules 2005 (WA) |
Case References: | Ibrahim v Herring [2010] WASC 190 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- HERRING [No 3] [2011] WASCA 265 CORAM : MAZZA JA HEARD : 20 SEPTEMBER 2011 DELIVERED : 20 SEPTEMBER 2011 PUBLISHED : 13 JANUARY 2012 FILE NO/S : CACR 133 of 2010 BETWEEN : MOHAMED TAREK IBRAHIM
- Appellant
AND
RAL STEPHEN HERRING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HALL J
Citation : IBRAHIM -v- HERRING [2010] WASC 190
File No : SJA 1091 of 2009
Catchwords:
Courts and judges - Application for judge to disqualify himself - Actual or apprehended bias
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(4)(a), s 18
Road Traffic Code 2000 (WA), s 73, s 126(2)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ibrahim v Herring [2010] WASC 190
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
(Page 3)
1 MAZZA JA: By application filed 13 September 2011 and supported by his affidavit, the appellant sought certain orders, including an order that I disqualify myself from the hearing of the application for leave to appeal which was listed for 20 September 2011. On that day, I heard the application to disqualify myself sitting alone. I dismissed the application and indicated that I would publish my reasons later. These are my reasons.
2 The short background to the proceedings is as follows. On 6 August 2009, after a two-day trial, the appellant was convicted in the Magistrates Court at Perth of failing to obey a traffic lane arrow, contrary to s 73 of the Road Traffic Code 2000 (WA) (the Code), and failing to give way to a truck, contrary to s 126(2) of the Code. Another charge was dismissed.
3 The appellant sought leave to appeal against the convictions. Hall J dismissed that application: Ibrahim v Herring[2010] WASC 190. The appellant then sought leave to appeal to this court against that decision.
4 On 11 February 2011, I conducted a directions hearing in relation to the appeal to this court. The matter was brought on by the court because the appellant had not filed his appellant's case and the time specified by the Supreme Court (Court of Appeal) Rules 2005 (WA) had expired. However, on the morning of the hearing, just before it started, the appellant filed his appellant's case.
5 The appellant informed me that he was not sure whether he had done his 'best job' in the appellant's case that he had filed and that he might want 'to try and amend the grounds of appeal in two weeks or so'. I told him that was a matter for him, but the question of leave would be determined on the material he had filed that morning. I described, in general terms, the practice and procedure of this court relating to the granting of leave to appeal: 11/2/2011, ts 3. At the conclusion of the proceedings the matter was adjourned sine die.
6 On 14 February 2011, the appellant filed an application to, in effect, amend his appellant's case. On 16 February 2011, I made an order in chambers, without the appellant being present, giving him leave to file a substituted appellant's case by no later than 4 pm on 31 March 2011, failing which the application for leave to appeal would be determined on the appellant's case filed 11 February 2011.
7 On 1 April 2011, the appellant filed his substituted appellant's case. Nothing turns on the fact that it was one day late.
(Page 4)
8 The application for leave to appeal was listed on 20 May 2011. The appellant did not attend at the hearing. The appellant says that he did not receive notice of this hearing from the court. In any event, the matter was adjourned and subsequently relisted.
9 With respect to the appellant, it is not clear whether his application is based on actual or apprehended bias. Nor was he clear as to what it was that gives rise to the allegation of bias.
10 In his affidavit, the appellant alleges, in effect, that he is the victim of a number of injustices in relation to his convictions and that what I did on 11 February 2011 is 'part of whatever is going on'.
11 In his oral submissions, the appellant said that his application was not just based on what occurred on 11 February 2011, but included what happened after that date. In particular, he alleges that the listing of the hearing on 20 May 2011 without, as he says, being informed of the hearing, somehow 'benefited' the respondent.
12 Where a party contends that actual bias exists, the party must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Actual bias will exist where the decision-maker has prejudged the case against the party or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the party and was not open to persuasion in favour of him or her. An allegation of actual bias must be 'distinctly made and clearly proved': Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [36], [69], [72] and [127].
13 The test to determine 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 the judge is required to decide: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 [31]. Thus, the determinative question is: might what occurred in the directions hearing on 11 February 2011 reasonably cause a fair-minded lay observer to apprehend that I might not bring an impartial mind to the resolution of this appeal?
14 The proceedings on 11 February 2011 were procedural in nature and did not involve any discussion or consideration of the merits of the appeal. The focus of the hearing was principally upon the appellant wishing to file
(Page 5)
- amended grounds of appeal. He was permitted to do so by order made five days later. In due course, he filed his substituted appellant's case.
15 Relevantly to appeals of this kind, leave to appeal is required for each ground of appeal: s 9(1) and s 18 of the Criminal Appeals Act 2004 (WA). The court may decide the question of leave with or without oral submissions: s 9(4)(a) of the Criminal Appeals Act. It was decided to give the appellant the opportunity to make oral submissions on the question of leave. This was the purpose of the hearing on 20 May 2011. It is consistent with the regular practice of this court. This process is not adverse to the appellant or favourable to the respondent.
16 I am not in a position to judge whether the appellant was notified of the hearing on 20 May 2011. The information on the court file indicates that a notice was sent to him. Whatever the situation, apart from the proceedings being adjourned, nothing happened on 20 May which in any way affected his appeal or favoured the respondent. The listing of the hearing on 20 May 2011 is not a matter in which I was involved.
17 There is nothing which indicates either actual or apprehended bias on my part. Nothing I did is capable of showing that I have prejudged the case against the appellant, whatever arguments may be presented. Nor might what occurred reasonably cause a fair-minded lay observer to apprehend that I might not bring an impartial mind to the resolution of the appeal.
18 It is for these reasons that I declined to disqualify myself.
19 I now turn to deal briefly with the other orders sought by the appellant in his application. They are as expressed by the appellant:
…
2. the court orders a police investigation of corruption in the Supreme Court judicial [sic].
3. The respondent [sic] submission to be dismissed.
4. An interstate judge to be appointed.
5. The hearing to be adjourned until an interstate judge is appointed.
- The court has no power to order the police investigation sought by the appellant.
(Page 6)
20The respondent has not filed any submissions. As I decided not to disqualify myself there was no need to appoint another judge, let alone an interstate judge to sit in my place, and no need to adjourn the proceedings.
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