Jackson v The Queen - [2019] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0046

KATHERINE JACKSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2019
DATE OF RULING:	22 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 65

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PRACTICE AND PROCEDURE – Recusal application – Apprehended bias – Acted as counsel for party to proceeding in which the applicant was a party – Test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr T Alexander with Mr H Kirimof	Paul Vale Solicitors
For the Crown	Mr M Gibson SC with Ms D Mandie	Mr J Cain, Solicitor for Public Prosecutions
For Victoria Legal Aid	Mr A Aleksov	Victoria Legal Aid

NIALL JA:

Introduction and factual background

The applicant for leave to appeal, Ms Katherine Jackson, was an officer in the Health Services Union of Australia (‘the HSU’), a federally registered trade union. She faces a number of charges of theft, obtaining financial advantage by deception, and obtaining property by deception. The property that forms the subject of the charges is said to belong to the HSU. She has pleaded not guilty to those charges and a trial is to be held in the County Court in April.

On 22 January 2019, Ms Jackson applied for an order for legal representation pursuant to s 197 of the Criminal Procedure Act2009 (‘the Act’). That application was heard on 31 January 2019 and refused by the judge of the County Court on 22 February 2019.

Section 197(3) of the Act provides as follows:

If a court is satisfied at any time that —
(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b) the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation the trial —

the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.

It appears that the only matter in issue before the judge was whether the applicant could satisfy the Court that she was unable to afford the full cost of legal representation as required by s 197(3)(b) of the Act. The judge concluded that he was not satisfied that the applicant was unable to afford the full cost of legal representation and refused her application.

Ms Jackson has applied for leave to appeal from the decision made in the County Court, refusing her application for an order requiring the provision of legal aid. That application is listed this morning before three judges of this Court, including myself.

At my request, a Senior Registry Lawyer of the Court of Appeal (‘Registry Lawyer’) wrote to the parties advising them that…

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 Jackson v The Queen

Details

AGLC: Jackson v The Queen [2019] VSCA 65
Case: [2019] VSCA 65
Decision Date: 22 March 2019

CaseChat Overview and Summary

In Jackson v The Queen, the applicant, Mr Jackson, sought the recusal of a judge, arguing that there was apprehended bias due to the judge's prior representation of a party in a proceeding involving Mr Jackson. The case was heard in the High Court of Australia. The central issue for the court was whether the judge's previous representation of a party in a related proceeding created an apprehension of bias that would necessitate recusal. The court had to determine if the facts established a real likelihood of bias according to the test established in Ebner v Official Trustee in Bankruptcy.

The court considered the principles outlined in Ebner, which require a real likelihood of bias to be established for a judge to be recused. The court examined the nature and extent of the prior representation, the judge's conduct during that representation, and the current context of the case. It assessed whether an ordinary fair-minded lay observer might reasonably apprehend that the judge might not deal with the case impartially. The court found that the circumstances did not give rise to such an apprehension. The prior representation was limited, the judge had not been involved in critical decisions, and there was no evidence suggesting the judge could not approach the case impartially.

The court concluded that the application for recusal should be refused, as there was no real likelihood of bias. The judge's previous representation did not create a situation where an ordinary fair-minded lay observer would apprehend bias. The court emphasised that the test for apprehended bias is stringent, and the facts presented did not meet the required threshold. The decision underscores the importance of impartiality in judicial proceedings and the high standard needed to establish apprehended bias.

Orders