In the Matter of Steven Smith

[2015] NSWSC 832

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	In the Matter of Steven Smith [2015] NSWSC 832
Hearing dates:	5 June 2015
Date of orders:	05 June 2015
Decision date:	26 June 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Application refused
Catchwords:	CRIMINAL LAW – proceedings against a contemnor – charges brought by the Court – application to presiding judge to disqualify herself – allegation of actual and apprehended bias – tests to be applied
Legislation Cited:	Evidence Act 1995 Supreme Court Rules 1970
Cases Cited:	Balogh v St Albans Crown Court [1975] 1 QB 73 Barakat v Goritsas (No 2) [2012] NSWCA 36 Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540 Clampert v Attorney General of the Commonwealth of Australia [2009] FCAFC 151 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Fraser v The Queen [1984] 3 NSWLR 212 Gaudrie v Local Court (NSW) and Another [2013] NSWSC 1425; (2013) 235 A Crim R 98. Johnson v Johnson (2000) 201 CLR 488 Kwan v Kang & Ors [2003] NSWCA 336 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 R v Bilal Razzak [2006] NSWSC 1366 R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 R v Kennedy [2015] NSWSC 327 R v Masters (1992) 26 NSWLR 450 R v Metal Trades Employers Association; Ex Parte Amalgamated Engineering Union (1951) 82 CLR 208 R v Steven John Smith [2013] NSWSC 1723 Re JRL; Ex Parte CJL (1986) 161 CLR 342 Vakauta v Kelly (1988) 13 NSWLR 502
Category:	Principal judgment
Parties:	Steven Smith (Applicant)
Representation:	Counsel: Ms N Adams SC (Amicus Curiae) Mr D Carroll (Applicant) Solicitors: Crown Solicitor’s Office (Amicus Curiae) Ms S TambyRajah (Applicant)
File Number(s):	2015/77377

Judgment

1. On 5 June 2015 Steven Smith (“the applicant”) made an application that I recuse myself from further hearing proceedings against him, those proceedings having been commenced by the Court for contempt in the face of the court. Although no motion was filed, the application was said to be based upon allegations of both actual and apprehended bias.

2. After hearing evidence and submissions relevant to the application, I refused it. These are my reasons for so doing.

A Brief History of the Matter

3. On 19 November 2010 the applicant and two others entered the home of Mr. Stanley Bruce Davies and, in the course of an attempt to rob Mr. Davies, savagely beat him to death. Each was subsequently charged with Mr. Davies’ murder.

4. The applicant ultimately entered a plea of guilty to the charge, and to two other unrelated armed robbery offences. On 14 November 2013 he was sentenced to a term of 20 years imprisonment for the murder, with a non-parole period of 14 years. His earliest release date is 7 August 2030.

5. The applicant was sentenced on the basis that he had played no part in the physical attack on the deceased and that, after his co-offenders had assaulted Mr. Davies, the applicant had tried to administer first aid to him.

6. One of the applicant’s co-offenders was Raymond Kennedy, who similarly entered a plea of guilty to murder. In relation to Mr. Kennedy there was a factual dispute that had to be resolved prior to the imposition of sentence upon him. The dispute centred on his role in the murder of Mr. Davies and, specifically, whether he had himself visited violence upon Mr. Davies.

7. The hearing of the dispute was listed for 13 March 2015 before me. As part of its case, the Crown proposed to call the applicant to give evidence. He was called from custody on that date.

8. On being called to the witness box the applicant refused to sit down, refused to take an oath or affirmation, and refused to answer any questions asked of him. He refused to give his name, instead swearing fulsomely, and ultimately threatened court and Corrections officers by raising his fists and physically confronting them. He appeared to be about to strike a Corrections officer. His overall demeanour was threatening. For the safety of those in the Court the applicant was removed.

9. Prior to his removal the applicant was warned about his conduct, and warned that the Court could deal with him for contempt. He was cautioned that the penalty for contempt could include a custodial term, and not one which would simply be absorbed into his extant sentence.

10. The evidence that the Crown wished to lead from the applicant in the proceedings against Mr. Kennedy can be gleaned to a degree from some evidence tendered by the Crown (and ultimately rejected by the Court) in those proceedings.

11. On the basis that the applicant was an unavailable witness within the meaning of s.65 of the Evidence Act 1995 the Crown sought to tender a copy of the statement of facts that had been before the court when the applicant was sentenced for his part in the murder of Mr. Davies, together with a transcript of a conversation between the applicant and others that had taken place on 5 November 2011, and which had been recorded by a lawfully deployed listening device.

12. The relevance of the material to the Crown case was that in the recorded conversation, the contents of which was reflected in the statement of facts, the applicant had asserted that he had not himself struck or otherwise assaulted Mr. Davies, the violence having been meted out by his two co-offenders. The applicant had claimed that he had endeavoured to administer first aid to Mr. Davies, this being his only physical contact with him. The Crown sought to rely upon what it had anticipated the applicant would say in evidence (on the basis that he would give evidence consistent with the claims he made during the recorded conversation) to establish that Mr. Kennedy had participated in the assault upon the deceased.

13. Although it is not possible to know fully the nature of the questions that may have been asked of the applicant in cross-examination, it is likely that Mr. Kennedy would have sought to put to and establish through the applicant, that he had not entered Mr. Davies’ house until well after the applicant and the third co-offender had effected entry, and that, contrary to the assertions of the applicant in the recorded conversation, Mr. Kennedy had played no role in the assault upon the deceased.

14. Both parties to the proceedings in R v Kennedy [2015] NSWSC 327 had anticipated that the applicant could give evidence consistent with the case each respectively sought to advance. Both were deprived of the opportunity to place such evidence before the Court by the applicant’s conduct.

15. After he was returned to custody and given an opportunity to reflect on his conduct and what was required of him as a witness, the applicant was required to return to the Courtroom. He refused to do so. Accordingly, the Court convened in the cells at the Court House, and the applicant was asked to reconsider his refusal to testify. He maintained his refusal.

16. He was accordingly orally charged by the Court with three counts of contempt, it being contempt in the face of the court, to be dealt with summarily by the Court. The charges are as follows:

Count 1: Steven Smith you are hereby charged with contempt of court in that, on 13 March 2015, in the Supreme Court of New South Wales at Darlinghurst in the State of New South Wales, in proceedings before me between the Crown and Raymond Kennedy, you did refuse to take an oath or affirmation when called upon to do so as a witness in the proceedings and you did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice.

Count 2: You are further charged with contempt of court in that, on 13 March 2015, in the Supreme Court of New South Wales at Darlinghurst in the State of New South Wales, in proceedings before me between the Crown and Raymond Kennedy, you did refuse to answer questions when called upon to do so as a witness in the proceedings and you did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice.

Count 3: You are further charged with contempt of court in that, on 13 March 2015, in the Supreme Court of New South Wales at Darlinghurst in the State of New South Wales, in proceedings before me between the Crown and Raymond Kennedy, you did threaten unlawful violence against an officer of the court, and you did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice.

17. The charges were laid pursuant to Part 55 of the Supreme Court Rules 1970.

18. The power to punish contempt in the face of the court is part of the inherent jurisdiction of the Supreme Court: R v Metal Trades Employers Association; Ex Parte Amalgamated Engineering Union (1951) 82 CLR 208 at 241 – 243. It is a critical and necessary power to ensure that the authority of the court is maintained: Balogh v St Albans Crown Court [1975] 1 QB 73 at 85.

19. The applicant having refused to give evidence, and having been charged, the proceedings against him were adjourned to allow him an opportunity to obtain legal advice.

20. Although charges for contempt in the face of the court are ordinarily dealt with expeditiously, there was thereafter some delay whilst the applicant obtained legal assistance and readied his case.

21. The Crown Advocate, Ms. Adams SC, was briefed by the Crown Solicitor (as a courtesy to the Court) to provide assistance amicus curiae. Mr. Carroll appeared for the applicant. Counsel provided submissions to the Court as to the way in which the matter should proceed, with each submitting (Ms. Adams SC in written submissions; Mr. Carroll via e-mail agreeing with Ms. Adams) that it was a matter for the Court.

22. Notwithstanding that position, when the matter was mentioned on 28 May 2015 to fix a date for the contempt to be dealt with, the applicant sought to have proceedings referred to the prothonotary to “be commenced” (T1:28 of 28.5.2015). Proceedings having been commenced on 13 March 2015, that application was refused.

23. The applicant thereupon entered a plea of not guilty to each of the three charges against him, and the matter was adjourned for hearing of his defence to 5 June 2015.

24. Pursuant to r3 of Division 2 of Part 55 of the Supreme Court Rules, the procedure for a contemnor brought before the Court and charged, as this applicant was, is to require him to make a defence.

3 Charge, defence and determination

Where the contemnor is brought before the Court, the Court shall:

(a) cause him to be informed orally of the contempt with which he is charged,

(b) require him to make his defence to the charge,

(c) after hearing him, determine the matter of the charge, and

(d) make an order for the punishment or discharge of the applicant.

25. Ordinarily, evidence called in the course of any defence is to be by affidavit.

8 Evidence

(1) Subject to subrule (2), the evidence in support of the charge shall be by affidavit.

(2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit.

26. There is no “prosecution case” as such because the applicant was charged by the Court and the Court is entitled to rely upon the presiding judge’s observations of the applicant’s conduct in the face and hearing of the Court: Fraser v The Queen [1984] 3 NSWLR 212 at 227 per Kirby P and McHugh JA.

The Application Made on 5 June 2015

27. On 5 June 2015, rather than being ready to make his defence to the three charges, the applicant made an application to the Court asking that I disqualify myself from further hearing the matter. Counsel for the applicant relied upon what was asserted in submission to be both actual and apprehended bias to ground the application. As Mr. Carroll put it,

“There is certainly an overriding principle that an application to disqualify yourself is a live matter in these proceedings” (T1:50 – T2:01, 5.6.2015).

28. Reliance was placed upon Clampert v Attorney General of the Commonwealth of Australia [2009] FCAFC 151 in support of the application.

The Applicant’s Case

29. In support of his application the applicant tendered the following material:

1. The transcript of R v Kennedy of 13.3.205;

2. R v Kennedy [2015] NSWSC 327;

3. R v Steven John Smith [2013] NSWSC 1723;

4. Transcript of the recorded conversation of 5.11.2011 involving the applicant;

5. Prosecution Guidelines issued by the Director of Public Prosecutions (“DPPG”), guideline 16 (informer witnesses), guideline 19 (victims of crime), guideline 26 (witnesses);

6. Report of Anita Duffy, psychologist, of 4.11.2013;

7. Printed accounts of e-mail correspondence between my Chambers, the Crown Advocate and the applicant’s representatives during the period of the remand;

8. Statement of Geoffrey Little of 2.6.2015;

9. Statement of John Egan of 1.6.2015;

10. Statement of Stephen Notias of 29.5.2015.

30. Some of this material, such as items (iii) to (vi), seemed to have no relevance to an application to me to recuse myself, and Mr. Carroll did not, despite requests that he do so, articulate the relevance of the material. I rejected the tender of items (iv) and (vi) because of the absence of any submission that could establish relevance.

31. Ordinarily, there is an expectation that the party asking a judge to recuse himself or herself will identify the issues for the determination of the judge, articulate the conduct that gives rise to the apprehension of bias, and set out the connection between the conduct and the issues to be determined: Barakat v Goritsas (No 2) [2012] NSWCA 36 The submissions advanced by the applicant did not approach the matter in this way, and I had some difficulty in identifying precisely what the application relied upon to establish bias.

32. The applicant did not distinguish the evidence relied upon to establish actual bias from that which was relied upon as relevant to apprehended bias. It may be that the whole of the evidence was asserted to establish both actual and apprehended bias, and so I have approached the matter in that way.

33. The application and the case for both actual and apprehended bias appears to have relied upon the following circumstances.

34. During the proceedings in R v Kennedy of 13 March 2015 when the applicant was called to give evidence, and after his refusal to take an oath or affirmation, or to give evidence, I warned the applicant that he could be charged with contempt of court, and that the penalty for such a charge could include a custodial penalty which could be imposed cumulatively upon his existing sentence:

“WITNESS: I’m not fucking talking.

HER HONOUR: You’re in a courtroom.

“WITNESS: I don’t give a fuck, right?

HER HONOUR: All right. Let me warn you of this.

WITNESS: What?

HER HONOUR: You’re serving a sentence now aren’t you?

WITNESS: Yeah.

HER HONOUR: If you behave in the way you are behaving in this Court, if you refuse to answer questions--

WITNESS: What else can you do?

HER HONOUR: If you swear in this Court in the way you are--

WITNESS: What else can you fucking do?

HER HONOUR: Just listen to me--

WITNESS: Just hurry the fuck up won’t you.

HER HONOUR: If you swear in the way you are now you can be dealt with for contempt.

WITNESS: That’s all right.

HER HONOUR: Well it won’t be a sentence for contempt that will just run concurrent with your existing sentence--

WITNESS: I don’t care.

HER HONOUR: It will be time on top, do you understand?

WITNESS: ..(not transcribable)..

COURT OFFICER: Sit down--

WITNESS: I’m not fucking ..(not transcribable)..

COURT OFFICER: Sit down. Do you want me - sit down, come on, sit down.

WITNESS: ..(not transcribable)..

COURT OFFICER: Listen to the judge--

WITNESS: Fuck the judge, fuck you, I’m ..(not transcribable).” (R v Kennedy, (T6:19 – T7:20, 13.3.15)):

35. The applicant submitted that this warning was evidence capable of establishing that the issue of penalty had been pre-judged, before such time as charges had been laid. As counsel for the applicant put it, importing the test for apprehended bias:

“Whether a fair-minded observer would think that the sentence hearing in respect of any evidence of why it has transpired that way and whether or not objectively a reasonable person would think that your Honour’s statement there would not necessarily curtail your sentencing discretion” (T7.09, 5.6.15)

36. The applicant relied upon purported differences between the accounts of the applicant’s conduct in the face of the court on 13 March 2015 given by three court officials (items (viii), (ix), and (x) above), and as particularised in the third charge. How this supported an accusation of actual bias or apprehended bias was not set out by Mr. Carroll and it is not clear to me.

37. Reliance was placed upon [36] and [38] of R v Kennedy to assert that I had concluded that the applicant and Mr. Kennedy had “conspir[ed] to lie to assist” (T7:36 of 5.6.2015). The relevant paragraphs are:

“[36] Mr. Smith, who is presently in custody serving a lengthy sentence which will see him in prison until at least 7 August 2030, refused to take an oath or affirmation, and refused to answer any questions, even to give his own name. In Court he swore extravagantly and threatened physical violence to court staff and Corrective Services officers, actually raising his fists and moving to strike staff on a number of occasions. His conduct was such that he represented a significant risk to the safety of all officials present in the court room, and I had him removed from the Court.

[38] Although the offender did not give evidence and so what he asserts about these events is largely unknown, having regard to evidence before the Court relevant to his application to reverse his plea, it is open to infer that the offender may have expected Steven Smith to resile from the account he gave on 5 November 2011, and support the offender’s claims that he had no prior knowledge of the purpose of attending Mr. Davies’ home, and did not himself ever strike Mr. Davies, touching him only to try to assist him.”

38. Counsel referred the Court to R v Kennedy ibid at [41] to establish that I held an opinion that the basis upon which the applicant was sentenced – that is, on the basis that he had played no part in the infliction of violence upon the deceased and had attempted to administer first aid to him – was incorrect, and that “he is physically responsible for the death of the deceased” (T8:21 of 5.6.2015).

39. Mr. Carroll submitted that, in circumstances where the applicant is a person who functions at a low level intellectually (items (iii) and (vi) above) whether or not I had treated the applicant fairly as a witness before the Court would be a live issue in his case in defence of the contempt charges. The DPP Prosecution Guidelines (item (v) above) were said to be relevant to this aspect of the matter. As I understand the argument, the applicant asserted that, prior to being called to give evidence in R v Kennedy, the Crown Prosecutor should have spoken to him in conference, and the Director’s guidelines relevant to vulnerable witnesses followed, particularly by the allocation to him of a Witness Assistance Officer.

40. Further, legal advice should have been obtained for him by either the Crown or, failing that, by the Court, as there was a risk that he could incriminate himself in other crimes during his anticipated evidence. These crimes are asserted to be offences of conceal serious offence, supply prohibited drug, possess and self-administer a prohibited drug, all from 2011 or thereabouts. Mr. Carroll submitted that the risk of self-incrimination for these offences arose as there were admissions to or depictions of such conduct in the recording of the listening device of 5.11.2011, which may or would be played to the applicant in court during the proceedings against Mr. Kennedy. This submission was made despite the fact that the recording had been before the sentencing court when the applicant was sentenced, and the latter two offences were statute barred.

41. As I understand the applicant’s submission, there was an obligation on the Court to see that the applicant was afforded the services of a Witness Assistance Officer and other courtesies contemplated by the DPPG, and to ensure that he had access to legal advice prior to giving evidence. My purported failure to attend to these things was relied upon as both relevant to actual bias, and as relevant to apprehended bias, in that the applicant proposed to rely upon these “failures” in his defence of the contempt charges.

38. In relation to the e-mail correspondence tendered by the applicant (item (vii) above), counsel was initially unwilling to make any submission as to its relevance to the question of actual or apprehended bias. When pressed to explain what the Court was to make of evidence that he had tendered, it was submitted that the correspondence (between my Associate, the Crown Advocate, and Mr. Carroll) was evidence that I personally had made inquiries as to whether or not the applicant had a current Notice of Intention to Appeal against the sentence imposed upon him for the murder of Mr. Davies, as a means of testing the honesty of counsel for the applicant.

39. In a submission that I continue to find inexplicable, even at some small temporal distance from the events, Mr. Carroll asserted that the fact that my Associate obtained from the Court’s computer record information as to the status of any NIA filed by the applicant, and conveyed it to the Crown Advocate and Mr. Carroll for their assistance, was evidence of an attempt by me to “test my [Mr. Carroll’s] honesty” (T11:30 of 5.6.2015). That purported “test” of counsel’s honesty was relied upon (as I understand it) as evidence of actual bias.

40. Mr. Carroll referred the Court to Clampert at [35] – [39], which he submitted was an example of the application of the law in a case directly comparable to the present matter. Those paragraphs of the judgment (of Black CJ) state:

“[35] Cases of the highest authority warn that the summary power of punishing for contempt, in circumstances where the judge before whom the alleged contempt occurred then goes on to hear the matter, should be used sparingly and only in serious cases: see Lewis v Judge Ogden (1984) 153 CLR 682 at 693 per Mason, Murphy, Wilson, Brennan and Dawson JJ.

[36] Likewise in Keeley v Mr Justice Brooking (1979) 143 CLR 162 at 173-174, Stephen J, having reviewed the authorities, including Balogh v St. Albans Crown Court [1975] QB 73 observed that the conclusion to be drawn from them (a conclusion with which he evidently agreed) was that:

… summary procedure for contempt not only should be employed most sparingly but should rarely be resorted to except in those exceptional cases where the conduct is such that ‘it cannot wait to be punished’ because it is ‘urgent and imperative to act immediately’ to preserve the integrity of ‘a trial in progress or about to start’.

[37] It is obvious and well recognised that the essential problem with a summary hearing before the judicial officer before whom the contempt was allegedly committed is the conflict with fundamental principles of justice that occurs when, in effect, the roles of prosecutor, witness and judge are performed by one and same person: see Keeley 143 CLR 162 at 173 per Stephen J. Specific aspects of the problem emerge when interruptions said to amount to a contempt of court take the form of insults that may be seen to reflect upon, or be aimed at, the judicial officer who will decide the case and who must then exercise the wide discretionary power to impose a penalty; and even the more so when the penalty may be (as here) a term of imprisonment.

[38] There is yet a further problem. Contempt in the face of the court is a criminal offence yet when a person is charged with such an offence in circumstances such as those in this case, the onus of proof is in effect reversed. Instead of a case for the prosecution being presented by a prosecutor and tested by or on behalf of the person accused in proceedings presided over by an independent judge or magistrate, in a case such as the present the accused stands charged and is required to justify or otherwise defend his or her conduct.

[39] Whilst these considerations do not preclude a summary hearing by the judge or magistrate before whom a contempt is said to have occurred, they are at the heart of the concerns expressed about such a procedure in the cases and in academic writings, and they underscore the need for caution. They also point to the matters that must be considered and given appropriate weight in the exercise of the discretion conferred by provisions such as s 17(3) of the Act. If fundamental principles of justice are to be departed from it must surely be for the reason that, quite exceptionally, the broader interests of justice so require. Indeed, this consideration is so strong that if the same person were to act as prosecutor, witness and judge when the broader interests of justice did not manifestly so require, proceedings intended to uphold the authority of the court would be seen to diminish that authority so that the process would, at best, be self-defeating.”

The Submissions of the Crown Advocate

45. It should be noted that Ms. Adams SC appeared in this matter amicus curiae, as a courtesy to the Court extended by the Attorney General. Her role was simply to assist the Court given the unusual nature of the proceedings, and the absence of a traditional prosecutor.

46. She was asked to respond to the applicant’s application without having had notice of it, and without having had the opportunity to consider it fully.

47. The Crown Advocate submitted that, while it cannot be said that an application to recuse on the basis of bias could never succeed in contempt proceedings, that was not the situation in the present circumstances. She submitted that, in order to succeed, the applicant must identify with precision those matters he says may lead me to decide the issues in this matter other than on its factual and legal merits. Further, he must outline the logical connection between those matters suggesting bias and the feared deviation from deciding the matters according to law. Thirdly, the application must be based on material outside the objective acts forming the charges of contempt as observed by the court; that is, the fact that I observed the acts committed by the applicant, and thus formed a view that he was in contempt of court, cannot of itself indicate that I have prejudged the matter such as to justify an application for disqualification.

48. In response to specific matters raised by Mr. Carroll, Ms. Adams SC submitted that the cases where contemnors were afforded opportunity to obtain legal advice prior to being charged with contempt were trial matters involving a jury, where such a course was taken to avoid a danger of the trial aborting, rather than in compliance with principle. Access to a legal practitioner is usually organised by the party calling the witness, rather than the court itself.

49. Ms Adams SC submitted that the warning issued to the applicant on 13 March 2015 as to the possible consequences of his actions was sufficient and in accordance with established authority and legislative requirements.

50. The Crown Advocate referred the Court to Gaudrie v Local Court (NSW) and Another [2013] NSWSC 1425; (2013) 235 A Crim R 98.

Consideration

51. The applicant’s application relied upon assertions of both actual bias, and a reasonable apprehension of bias.

52. The determination of whether there is actual bias involves a determination of fact which must be resolved in light of the matters raised by the applicant (and summarised at [34] to [43] above) and asserted by him to disclose bias. The test of actual bias is a more stringent test than that which applies to apprehended bias: McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [73].That is appropriate, since an allegation of actual bias is a most serious matter. Inhering in it is an allegation that the judicial officer is in breach of his or her oath of office.

53. Where actual bias is alleged, as it is here, the allegation can be made good only by evidence which establishes that the decision maker is actually biased. Brereton J, in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540, said:

"[….] actual bias depends not upon the impression of any reasonable bystander, but upon proof that the decision maker is actually biased" (at [45]).

54. If, as a matter of fact, it is determined that the judicial officer is actually biased, then the judicial officer must recuse himself or herself, because to continue to preside would be to act contrary to the judicial oath.

55. The determination of whether there is apprehended bias involves consideration of the facts established by evidence and the application of the relevant legal tests to those facts.

56. In relation to apprehended bias, the question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial or unprejudiced mind to the issues to be determined: Johnson v Johnson (2000) 201 CLR 488 at 492.

57. The relevant lay observer is taken to be a reasonable and fair-minded individual who, although without legal training or experience, is not wholly ignorant of legal matters, and is informed of the basic issues relevant to a fair assessment of all of the circumstances.

“The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious:” Johnson v Johnson (2000) 201 CLR 488 at 508. [Footnotes omitted.]

58. That the apprehensions of the fair minded lay observer are reasonable is a feature of the test which is of importance: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.

59. If apprehended bias is to be established, the lay observer must reasonably apprehend that the judge’s mind is so prejudiced in favour of a particular opinion formed or conclusion reached as to be unlikely to alter that view or conclusion, notwithstanding the evidence placed before the court or the submissions made to it: Kwan v Kang & Ors [2003] NSWCA 336 at [83]. It is not a question of whether the judge will decide the issue to be determined adversely to a party, but rather that the issue will be decided other than impartially and without prejudice: Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352; R v Masters (1992) 26 NSWLR 450 at 471.

60. It has been held that the courts must apply realistic criteria in considering whether a reasonable apprehension of bias has been made out.

“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them”: Johnson v Johnson (2000) 201 CLR 488 at 493. [Footnotes omitted.]

61. The application of realistic criteria is of particular relevance in a matter such as the present, where the judge who brings a charge of contempt in the face of the court is witness, prosecutor, and judge.

62. The test for apprehended bias is to be applied in two steps:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. 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. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8].

63. It is important that the question of bias or apprehended bias is determined objectively, by the application of legal principle to established fact. It is a difficult, even unpleasant, position for a judge to be asked to consider his or her own conduct, and determine whether that conduct is such as to establish actual prejudice or to cause the fair minded lay observer, with all of the qualities referred to above, to reasonably apprehend bias in the judicial officer. It is therefore particularly important to approach the matter by the strict application of legal principle to evidence, lest a fundamental element of our system of justice – its impartiality – be compromised.

64. If actual bias is established, the judicial officer must without question recuse himself or herself. In cases of apprehended bias the judicial officer should recuse him or herself only where a reasonable apprehension is “firmly established”: R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553 – 554; Re JRL; Ex Parte CJL op cit.

65. As to the latter proposition,

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour”: Re JRL; Ex Parte CJL at 352.

What are the Issues for Determination?

66. In the somewhat unusual circumstances that apply to proceedings for charges brought by the court for contempt in its face, where the court has already concluded that contempt has been committed, and is aware from observation of the facts of the contempt, the issue or issues to be determined in the proceedings relevant to the applicant could only relate to the defence to be advanced by him to the charges pursuant to r.3 of the Supreme Court Rules 1970, and any penalty that may be imposed.

67. Although the full nature of his defence was not identified by the applicant in submission to the Court on the application for disqualification, some aspects of it can be gleaned from what was advanced, being a contention that he was not treated fairly as a witness, and that a Notice of Intention to Appeal filed in relation to the murder and armed robbery matters was of relevance to the applicant’s status as a witness.

68. In the event of a conviction, the other issue for determination would be the appropriate penalty to be imposed.

What is the Conduct Identified as Relevant to Bias?

69. As I apprehend it, the alleged conduct pointed to by the applicant as capable of establishing actual or apprehended bias is:

1. The failure to treat the applicant fairly as a witness;

2. The warning given to Mr. Smith on 13 March 2015 as to the possible consequences of his conduct in court;

3. A conclusion purportedly reached that the applicant and Mr. Kennedy had conspired to lie about the events surrounding the murder of Mr. Davies;

4. A conclusion purportedly reached by me that the applicant was physically responsible for the death of Mr. Davies; and

5. A view that I purportedly held that Mr. Carroll’s personal honesty was to be doubted.

What is the Connection between the Issues to be Decided and the Conduct Identified Such as to Demonstrate Bias?

70. Some of the conduct relied upon by the applicant cannot have any connection to or bearing on the issues to be decided by the Court in the proceedings relevant to contempt, even if the alleged conduct was established as a matter of fact. Other alleged conduct was not established by the evidence.

71. Those matters referred to at [69d] and [69e] above fall into the former category.

72. The conclusion that the applicant imputes to me that he was physically responsible for the death of Stanley Davies ([69d]), even if it could be established that I actually held such a view, or that the fair-minded lay observer might reasonably apprehend that I did, could have no relevance to the issues that the Court is likely to have to determine, being the applicant’s defence to the charges of contempt, and any penalty that may ultimately be required to be imposed.

73. The issue of the applicant’s role in a separate crime on a separate occasion, it being of an entirely different nature to contempt in the face of the court, is irrelevant.

74. Even if it were relevant, the applicant’s assertion as to the view I hold is based upon a misreading of the judgment in R v Kennedy that cannot be supported after sensible consideration of the impugned passages. The reference in that judgment to the applicant’s possible contribution to the physical attack on Mr. Davies was made in the context of assessing the role of Mr. Kennedy, not that of the applicant. That assessment was required as part of the sentencing exercise, and to resolve the disputed facts.

75. Similarly, a view purportedly held by a judicial officer about a particular legal representative ([69e]) can have no connection to the issues to be determined in dealing with the contempt of that legal representative’s client, even were an adverse view in fact held of counsel.

76. There is no basis to conclude that animus between the bench and counsel – if it existed - could ever be a relevant consideration in the determination of an issue before the court involving another individual.

77. Even if alleged animus did or could have a connection to the determination of the relevant issues, here there is no evidence at all to establish actual bias against the applicant by reason of some adverse assessment of counsel. Whilst counsel may have had a perception that I had set out to “test” his honesty when my Associate ascertained the status of any NIA, a perception may be reasonable or unreasonable, but either way falls very far from being capable of proving actual bias.

78. Nor do I consider the circumstances relating to this aspect of the alleged bias as being such as to give rise to a reasonable apprehension in the fair-minded lay observer that I may have been prejudiced against the applicant, and unable to bring an impartial mind to bear on the issues to be decided. Among the many qualities imputed to the notional lay observer is an understanding of the professional training and experience of judicial officers, whose “training, tradition and oath or affirmation requires [the judge] to discard the irrelevant, the immaterial, and the prejudicial”: Vakauta v Kelly (1988) 13 NSWLR 502 at 527 and 584-585.

70. A negative view of counsel, if held by a judge, is readily set aside in accordance with the judge’s training, tradition, and oath. Indeed, one might go so far as to say that this occurs on a regular basis in our courts.

71. For those matters which could have a connection to the issues to be determined in relation to the proceedings for contempt, set out at [69a], [69b], and [69c] above, I do not regard actual or apprehended bias as having been established by evidence.

72. The evidence does not in my view establish my purported failure to treat Mr. Smith fairly as a witness ([69a]).

73. Criteria must be reasonably applied, and here, that must involve attention to the prevailing circumstances. Those circumstances included the fact that Mr. Smith, a man convicted of a particularly violent murder and serving a lengthy sentence for his crime, was an unwilling witness, and may have posed a security risk to the court.

74. Although Mr. Carroll submitted that there was some obligation on the Court to ensure that the applicant was treated in accordance with the DPPG no authority in support of that proposition was identified, and nor have I found any in my subsequent researches. Common sense suggests that there is no such obligation.

75. Firstly, the DPPG does not bind any court. The Guidelines are intended for Crown Prosecutors and others who act for the Director of Public Prosecutions; they do not have even an instructive role for judicial officers. In the proceedings against Raymond Kennedy, it was a matter for the Crown as to whether or not the applicant was called, and whether or not he was treated by the Crown in the same way as, for example, a witness who was an indigenous victim of sexual assault, as Mr. Carroll contended was appropriate. It was no business of the Court to ensure that the Crown Prosecutor spoke to Mr Smith in conference before he was called to give evidence, or to see that a Witness Assistance Officer, being an employee of the Office of the Director of Public Prosecutions, was present to provide support to Mr. Smith in his capacity as a witness.

76. Neither was it the Court’s role to ensure the applicant was provided with legal advice on the speculative basis that he may have been asked a question the answer to which could incriminate him in some crime. The thrust of Mr. Carroll’s argument in this regard was that the Court was aware from the contents of the transcript of the recorded conversation of 5.11.2011 that the applicant had spoken about the commission of other crimes, and was therefore at risk of self-incrimination. That submission overlooks the fact that the relevant transcript had already been tendered to the court that sentenced the applicant for murder, and was in those proceedings relied upon by the Crown as an admission, and not disputed to be such by the applicant. Any danger of self-incrimination was well and truly at large. If the witness had taken an oath or affirmation, and answered questions, and was asked a problematic question, appropriate steps could have been taken at that time to safeguard his rights. That point was never reached.

77. Whilst Counsel referred to other cases in which a witness in danger of being dealt with for contempt was given an opportunity to obtain legal advice, such as R v Bilal Razzak [2006] NSWSC 1366 where Bell J (as her Honour then was) offered that opportunity to a witness subsequently charged with contempt, the cases relied upon involved a trial before a jury (with a consequent risk of the trial miscarrying and a jury being discharged) and, it would appear from the cases, a witness who was not physically threatening those around him.

78. In the proceedings against Mr. Kennedy, there was no jury, and no realistic prospect of polite conversation with a witness who refused even to sit down in the witness box, and whose very demeanour was an unstated threat from the outset.

79. Whilst one can always see in hindsight how matters may have been better managed, there is no obligation on a court dealing with contumacious contempt to do other than warn the witness of the possible consequences of his or her actions. That being the case, the evidence relied upon (being the transcript of 13 March 2015) cannot prove actual bias.

80. Nor can it establish apprehended bias in my judgment, bearing in mind the need to realistically apply the relevant criteria, and imputing to the fair-minded lay observer knowledge of the whole of the circumstances of Mr. Smith’s presentation in the court room on 13 March 2013, and the obligations that operated on the Court.

81. The allegation of pre-judgment of penalty relevant to contempt ([69b] above) relies upon my warning to the applicant on 13 March 2015, set out above at [34], prior to him being charged with contempt in the face of the court. The applicant asserts that the warning given was a pre-judgment, but that mistakes the function of the warning. In all cases where an individual is behaving in such a way as to be in danger of being charged with contempt in the face of the court, the court is obliged to warn the individual of the risk that his or her conduct, if persisted with, may constitute contempt, which carries a penalty including the possibility of a prison sentence.

82. In circumstances such as those that applied in the present case, where the relevant individual was already serving a sufficiently lengthy sentence as to regard himself as immune to any punishment that could be imposed (asking rhetorically “what can you do”), it was important to ensure that it was clearly understood that the penalty could include a sentence that would represent an additional term of imprisonment.

83. I do not accept that anything recorded in the transcript of 13 March 2015 is capable of establishing actual bias.

84. In terms of what a fair-minded lay observer might reasonably apprehend, on the basis that that observer ought be taken to understand the obligation of the court to warn a potential contemnor of the possible consequences of his or her actions, I am unable to conclude that the observer would regard my warning to the applicant as other than such a required warning.

85. The final matter relied upon by the applicant as evidencing actual and / or apprehended bias was that set out at [69c] above, an assertion that I had concluded that the applicant and Mr. Kennedy had conspired to lie in some way (precisely what way is not altogether clear to me).

86. This allegation is based upon a discrete paragraph in R v Kennedy, ([38] of the judgment, extracted at [37] above). The applicant submitted that this paragraph discloses my conclusion that he and Mr. Kennedy had colluded in some way as to the evidence the applicant would give about the circumstances of the murder. The submission is based upon a misreading of the judgment.

87. The impugned section in fact refers to the expectations that Mr. Kennedy might be assumed to have held that the applicant would, if called as a witness, confirm his assertions that he had not entered the house until well after his two co-offenders, and had not himself participated in the assault upon the deceased. It could be assumed that Mr. Kennedy would expect the applicant to give evidence of this nature because Mr. Kennedy had told others (such as a psychologist) that he had not gone into the deceased’s house until some time after his co-offenders and, once inside, had not participated in any way in the attack upon the deceased.

88. Any reasonable consideration of the impugned passage, in the context of the whole of the judgment, could not conclude that what was stated there referred to a conspiracy between Mr. Kennedy and the applicant. That being the case, the relevant paragraph cannot establish actual bias, and nor is it such as to cause the fair-minded lay observer to reasonably apprehend bias on my part.

89. Whilst the applicant relied upon purported differences between the account in Kennedy of his conduct as a witness, and those given by witnesses, how this was relevant to bias, actual or apprehended, was not articulated, and is not further considered.

Conclusion

99. Having considered the evidence adduced by the applicant in support of his application, together with the submissions of counsel in seeking to advance it, I am not persuaded that the applicant has established either actual bias or apprehended bias.

100. Bearing in mind the nature of these proceedings, being proceedings for contempt in the face of the court, where the Court observed the applicant’s conduct and brought the charges against him, it is necessary to guard against the possibility that an application of this nature could be brought by a contemnor in a cynical endeavour to avoid being dealt with by the judge who saw and heard the full extent of the contumacious conduct. Contemnors should not be encouraged in a belief that it is possible to influence the identity of the judicial officer who will finalise the proceedings, in the hope of obtaining a judge more likely to be favourable to the applicant. Such an outcome is inimical to the interests of justice.

ORDERS

1. The application is refused.

2. The matter is adjourned to 17 July 2015.

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Amendments

29 June 2015 - Typographical error at [32] and [40]

26 June 2015 - Typographical error at [35]

Decision last updated: 29 June 2015