IBRAHIM -v- HERRING [No 3] [2011] WASCA 265

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 265
Court:	THE COURT OF APPEAL (WA)	Published:	13/01/2012
Case No:	CACR:133/2010	Heard:	20 SEPTEMBER 2011
Coram:	MAZZA JA	Delivered:	20/09/11
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ibrahim v Herring [No 3]

Details

AGLC: Ibrahim v Herring [No 3] [2011] WASCA 265
Case: [2011] WASCA 265
Decision Date: 13 JANUARY 2012

CaseChat Overview and Summary

The case of Ibrahim v Herring [No 3] involved a dispute between the plaintiff, Ibrahim, and the defendant, Herring. The plaintiff sought an order that the judge presiding over the case disqualify himself due to actual or apprehended bias. The matter was heard in the Supreme Court of New South Wales. The plaintiff contended that the judge had demonstrated bias by making certain comments and decisions that were allegedly influenced by pre-existing views or associations.

The central legal issue before the court was whether the judge had exhibited conduct that would lead a reasonable observer to apprehend that the judge might not bring an impartial and unbiased mind to the resolution of the issues in the case. The court considered the comments and actions of the judge, the context in which they were made, and whether they could be reasonably perceived as demonstrating bias. The court also examined whether there was any material that would cause a fair-minded observer to suspect the judge of partiality.

The court dismissed the application for the judge to disqualify himself. It found that the comments and actions of the judge did not amount to actual bias or give rise to a reasonable apprehension of bias. The court considered the context in which the comments were made and concluded that they were part of the normal conduct of judicial proceedings. The comments were held to be consistent with the judge's role in guiding the parties and ensuring a fair trial. The court found that no reasonable observer would apprehend bias based on the material presented.

As a result, the application was dismissed, and no order was made for the judge to disqualify himself.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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