Judgment suppressed
[2018] WASC 325
•24 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CLARKE [2018] WASC 325
CORAM: HALL J
HEARD: 16 OCTOBER 2018
DELIVERED : 24 OCTOBER 2018
FILE NO/S: INS 82 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
AMBROSE JOHN CLARKE
First Accused
XAVIER GERARD CLARKE
Second Accused
Catchwords:
Nil
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Counsel:
| Prosecutor | : | Mr P M Usher |
| First Accused | : | Mr S Brennan |
| Second Accused | : | Mr J A Davies |
Solicitors:
| Prosecutor | : | Director of Public Prosecutions (WA) |
| First Accused | : | Alana Padmanabham Barrister & Solicitor |
| Second Accused | : | Legal Pathways Pty Ltd |
Case(s) referred to in decision(s):
Re JRL; Ex parte CJL [1986] HCA 39
Balic v Director of Public Prosecutions [No 2] (1994) 75 A Crim R 515
Bienstein v Bienstein [2003] HCA 7
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Chin v The Legal Practice Board of Western Australia [2011] WASCA 110
Ebner v The Offical Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael v The State of Western Australia [2007] WASCA 100
R v Kearns [2003] NSWCCA 367
The Director of Public Prosecutions (Commonwealth) v Fattal [2013] VSCA 276
Vakauta v Kelly (1988) 13 NSWLR 502
Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79
HALL J:
This is an application that I disqualify myself from presiding as the trial judge at the trial of the accused.
The accused are charged that on 30 May 2011, they murdered Peter Davis. The original trial of this charge occurred in 2013. On 3 December 2013, after a seven week trial, the accused were both convicted of murder. On 17 December 2013, they were sentenced. I was the trial judge and, accordingly, the judge who sentenced both accused. I made findings of fact for the purposes of sentencing.
The accused appealed against their convictions. On 8 February 2018, their appeals were allowed, the convictions were set aside and a re‑trial was ordered. Although there were a number of grounds of appeal, the aspect of the appeal which was successful was based upon fresh evidence relating to the cause of death.
The re‑trial has been listed for nine weeks commencing on 29 January 2019. In written submissions counsel for the accused have assumed that I will be the trial judge. In fact, no announcement as to the identity of the trial judge has been made. However, at a status conference I advised the parties that I was one of a small number of judges who would be available to preside at the trial and, in these circumstances, if any party objected to me being the trial judge it would be appropriate for them to bring an application for me to disqualify myself. Such an application has been made and was heard by me on 16 October 2018.
The application is brought on the basis that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the questions that would have to be resolved by the trial judge on the re‑trial. There is no suggestion of actual bias.[1] The apprehension of bias is said to arise from the fact that in sentencing the accused following the first trial I made findings regarding the motives of the accused, their respective levels of involvement in the events, the degree of planning that was involved, the means by which the deceased was killed, that there was an intention to kill and the seriousness of the conduct. The accused submit that in making those findings I expressed views about what inferences should be drawn in respect of matters which will be live issues at the re‑trial. It is also submitted that in making findings I expressed a position as to the credibility of Ambrose Clarke, who gave evidence at the first trial.[2]
[1] Transcript of hearing 16 October 2018, 4320.
[2] Submissions of Both Accused on Recusal Application dated 2 October 2018 [15] - [21].
The accused submit that the findings of fact made by me in sentencing after the first trial are the 'hypothetical factor' which might 'cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits'. Defence counsel conceded that, as the re-trial would be before a judge and jury, any questions of fact would be for the jury to determine. Nevertheless, it was submitted that the trial judge would be required to rule upon objections in the course of evidence or to rule on 'other procedural issues'. There was said to be a risk that a notional lay observer who followed both trials might make a logical connection between the facts found in the previous sentencing proceedings and the refusal of any defence objection to evidence or the making of a procedural ruling adverse to the accused.[3]
[3] Submissions of Both Accused on Recusal Application dated 2 October 2018 [22] - [24].
The prosecution submits that the factual findings made on sentencing were findings that were consistent with the verdicts of the jury. A reasonable observer would take this, and the fact that a trial judge is required to make findings of fact on sentencing, into account. The prosecution submits that the findings made are not of a kind as to cause any reasonable apprehension of bias and that the application should be dismissed.[4]
[4] State's Submissions dated 9 October 2018 [14] - [16].
At the hearing of the application, I noted that the trial judge on the re-trial would have to make findings of fact in the event that the accused were convicted. I asked whether it was also suggested that there could be an apprehension of bias in any such fact finding exercise given the previous findings of fact at the first trial. Counsel for the accused answered this question in the affirmative and sought to add this to their grounds for seeking that I disqualify myself.[5]
[5] Transcript of hearing 16 October 2018, 4329 - 4331.
Legal principles
In Johnson v Johnson [No 3][6] the majority of the High Court said:
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 … 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.
[6] Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488 [11].
There are two steps in the application of the principles relating to the apprehension of bias. First, there must be an identification of what it is that might lead a judicial officer to decide a case other than on its legal and factual merits. Secondly, there must be a logical connection between that matter and the risk of a judicial officer deciding the case otherwise than on its merits.[7]
[7] Ebner v The Offical Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8].
In applying the test it must be taken into account that the observer is taken to be reasonable and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.[8] This has been affirmed by the High Court in Johnson v Johnson.[9]
[8] Vakauta v Kelly (1988) 13 NSWLR 502 527.
[9] Johnson [12]. See also, British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [78] ‑ [84], [132], [139].
Where there are matters that a party believes raise an issue of apprehension of bias, they should be raised at a hearing. That is particularly so where the issue is mentioned by the judicial officer and the parties are legally represented.
Whilst it is important that justice be seen to be done, a judicial officer should not disqualify himself or herself on the grounds of bias or reasonable apprehension of bias unless substantial grounds have been established.[10] The reasons for this are obvious; if judges were to excuse themselves whenever an application was made, parties would be able to effectively control who sits in judgment of their cases and effective management of the lists would be impossible.
[10] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; Bienstein v Bienstein [2003] HCA 7 [36].
In regard to concerns arising from a judicial officer having presided in respect to other matters involving the same litigant, the High Court in Livesey v The New South Wales Bar Association said:[11]
[A] fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.
[11] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 300.
In Chin v The Legal Practice Board of Western Australia,[12] Newnes JA considered the principle applicable where a judicial officer is asked to disqualify himself or herself on the ground that they have made previous decisions adverse to the person. His Honour said:
In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, Mason J said that there may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. But Mason J pointed out that this did not mean either that the judge will approach the issues in the case otherwise than with an impartial or unprejudiced mind in the sense in which the expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in that way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. Those comments were indorsed in Re Polites; Exparte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86, by Brennan, Gaudron and McHugh JJ [4].
[12] Chin v The Legal Practice Board of Western Australia [2011] WASCA 110.
In Balic v Director of Public Prosecutions [No 2],[13] the New South Wales Court of Appeal said that a judge ought not to preside over a case involving a trial by jury if a reasonable apprehension is entertained by the parties or the public that the judges mind is tainted by 'prejudgment or bias'. Their Honours said:
Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge (520).
[13] Balic v Director of Public Prosecutions [No 2] (1994) 75 A Crim R 515 [34], [78] - [79]. See also R v Kearns [2003] NSWCCA 367 and The Director of Public Prosecutions (Commonwealth) v Fattal [2013] VSCA 276 [140] - [141].
In Michael v The State of Western Australia,[14] Steytler P said:
In a jury trial the judge is not the ultimate arbiter. However, he or she is frequently called upon to make decisions during the course of the trial in respect of such matters as the admissibility of evidence, the permissible limits of cross-examination and the fair conduct of the proceedings. It is consequently not difficult to envisage a jury trial in which fair-minded people might reasonably apprehend that the judge might not have brought an impartial and unprejudiced mind to the resolution of such questions, with a consequential lack of confidence that the accused person had had a fair trial.
[14] Michael v The State of Western Australia [2007] WASCA 100 [50].
In Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd,[15] Le Miere J referred to the High Court's decision in Livesey on the question of an apprehension of bias said to arise from the judge having presided on a previous case related to the proceedings. His Honour said:
I note that their Honours there referred to two things the judge may have done in the previous case, either of which might give rise to an apprehension of bias. First, the judge may have expressed, in the previous case, a clear view about a question of fact which is a live issue in the second matter. Secondly, the judge may have expressed a clear view as to the credibility of the witness whose evidence goes to a question of fact in issue in the second matter [13].
[15] Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79.
Application to the present case
As I have noted earlier in these reasons, the trial is to be one before a judge and jury. Counsel have made clear that there will be no application for the trial to be by judge alone.[16] In these circumstances, the jury will be the judges of the facts and it will be for the jury to make assessments of the credibility and reliability of the witnesses in determining whether the accused are guilty of the charge. The role of the trial judge will be to control the proceedings to ensure that the trial is fair, make rulings on any questions of law (including in respect of objections to evidence), give directions to the jury as to the law and how it applies to the facts of the case and, in the event of conviction, to make findings of fact based upon the verdicts of the jury and to impose sentence.
[16] Transcript of hearing 16 October 2018, 4320 - 4321.
The State has indicated that the case that it will bring at the re-trial will be essentially identical to that which was brought at the original trial. It intends to call the same witnesses. It has not been suggested that there would be any rulings made at the first trial that the parties would seek to revisit on the re-trial. Further, there were no rulings made at the first trial that were the subject of successful appeal grounds.
It is, however, likely that the defence case will differ from that advanced at the first trial. This is because the accused will adduce at the re-trial the fresh evidence that was led on the appeal. This evidence is relevant to the issue of causation. There will be an issue as to whether the deceased was assaulted and then died of positional asphyxia or was assaulted and died of a cardiac arrest. In either event there will be questions as to the involvement of the accused in any assault and whether they intended to cause the deceased's death or an injury that was likely to be life-endangering. At the first trial the possibility of cardiac arrest was excluded, however the fresh evidence allows for that possibility. This means that the evidence at the re-trial will, in this material respect, be different from that at the first trial. It also means that the jury will have to resolve the issue of how the death was caused and what impact this has on the intention of the accused at the relevant time.
The accused accept that the jury would be the finder of fact, but submit that an apprehension of bias could arise in two respects. First, in the determination of objections to evidence. Second, in the determination of facts for sentencing purposes in the event of conviction. As to the first of these, counsel did not point to any specific matters. It was said that there would be some objections to the prosecution evidence that were not raised at the first trial. In particular, there would be a challenge to the admissibility of the evidence of Dr Victoria Fabian, a neuropathologist to be called as an expert witness by the prosecution. Dr Fabian's evidence was not the subject of challenge at the first trial.
It is not apparent that any of the findings of fact made by me in sentencing after the first trial have any direct bearing on questions of the admissibility of evidence, in particular the admissibility of the evidence of Dr Fabian. The submissions in this regard were pitched at a high level of generality. Counsel simply asserted that because I had made findings of fact adverse to the accused in sentencing them, a reasonable observer would apprehend that I would not bring a fair and unbiased mind to the question of whether evidence was admissible. In my view, this overlooks a number of significant factors which a reasonable observer would take into account:
1.that when sentencing the accused after the first trial, I was obliged to make findings of fact consistent with the verdicts of the jury;
2.none of the findings of fact related to any question of the admissibility of evidence;
3.whether evidence is admissible or not is determined by the application of settled principles of law to the particular facts, though in some cases a discretion may arise;
4.there must be a logical connection between the facts found on sentencing on the previous occasion and the risk that any question of admissibility arising at the trial would be determined other than on the merits.
The accused have not identified any question that would be required to be determined by me during the course of the trial which would have a logical connection with the findings of fact made on sentencing on the previous occasion. Those findings do not dictate or suggest that any evidentiary question would be determined in a particular way. The suggestion seems to be that, having sentenced the accused, I could be viewed in a very general way as being ill-disposed towards them. That conclusion would not be consistent with a reasonable observer. This aspect of the application has not been made out.
In regard to the second aspect of the application, as I have earlier noted, it would be the responsibility of the trial judge on the re-trial to make findings of fact in the event that the accused were convicted. In this respect, the factual issues about which I have previously made findings could conceivably again be in issue. It may be necessary for the trial judge to determine the roles of each of the accused, their motivations, whether or not they had an intent to kill and how death was caused. Having previously made findings in respect of these matters, I accept that a reasonable observer may have an apprehension that I would not bring an unbiased mind to that determination. In these circumstances, I am satisfied that I must disqualify myself from being the trial judge on the re-trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall22 JULY 2019
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