Keene v The King
[2023] VSCA 142
•13 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0003 |
| CHRISTOPHER DOUGLAS KEENE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 June 2023 |
| DATE OF JUDGMENT: | 13 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 142 |
| JUDGMENT APPEALED FROM: | DPP v Keene (County Court, Judge Lyon, 17 October 2022) |
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CRIMINAL LAW – Appeal – Conviction – Judge made comments during trial – Whether comments give rise to reasonable apprehension of bias – Not persuaded first impugned comment directed to applicant – Well open to judge to stamp authority on course of trial in way he did – No adequate explanation for failing to apply for disqualification on basis of comments.
CRIMINAL LAW – Appeal – Conviction – Charge for perverting course of justice by providing false information to Court as to availability of residential address and relationship with person living at address in support of bail application – Whether judge conflated availability of address with false relationship with person – Even if considered discretely would have capacity to mislead – Falsity went to both existence of relationship and applicant’s intention to live at proposed address – Applicant’s contended approach artificial – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr DN McGlone | ||
| Respondent: | Mr DA Glynn | ||
| Solicitors | |||
| Applicant: | Angus Cameron Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
NIALL JA
TAYLOR JA:
Following a trial before a judge alone, the applicant was found guilty of a single charge of attempting to pervert the course of justice. The indictment alleged that between 27 April 2020 and 11 June 2020, the applicant engaged in conduct that had a tendency to pervert the course of justice by attempting to mislead the County Court on 1 June 2020 ‘by putting false information to the Court as to his relationship with Tracey Stephen (‘Stephen’) and the availability of a residential address in support of an application for bail’.
The applicant stood trial together with John Verdesoto (‘Verdesoto’) who was charged with the same offence but on the slightly different basis that he was alleged to have prevailed upon Stephen to give false evidence in relation to the applicant’s bail application. Verdesoto was discharged following a successful no case submission on the basis that the prosecution could not prove, to the criminal standard, that he had prevailed upon Stephen to give evidence as opposed to giving false information to the police.
The prosecution case
Verdesoto and the applicant are friends. They were on remand at the same time (for unrelated offending) at Marngoneet Correctional Centre. Having initially failed in a bail application, the applicant applied for bail a second time in the County Court and in doing so relied[1] on an affidavit from Stephen that they were known to each other and that if bailed, the applicant could live at her house.
[1]The affidavit was provided to the judge and the prosecution on the bail application and discussed but not formally read in Court.
Stephen is a friend of Verdesoto but had never met the applicant. Stephen lived in a house owned by Verdesoto and paid him reduced rent and was willing to lie to police to help Verdesoto.[2] It was the prosecution case that the applicant had arranged for Stephen to give evidence in his bail application on the false basis that they were known to each other and that if released on bail, the applicant could live at her home.
[2]Stephen later pleaded guilty to perjury in respect of her affidavit provided in support of the applicant’s bail application.
Critical to the prosecution case against both accused were three Arunta recorded phone calls involving Verdesoto, Stephen and the applicant.
In a recorded Arunta phone call between Stephen and Verdesoto on 23 March 2020 Verdesoto told Stephen:
a friend of mine is getting out soon but he needs an address to get… released. So I’m giving him your address… He is not gunna live there. It’s just that if they ring you, you can give the okay there is room for him to stay there. That’s all you have to say… his name is… Chris Keene… And just say that… he’s got a room there once he gets out.
In a further recorded Arunta call on 24 April 2020 Mr Verdesoto said to Stephen:
that address there where you are is just — yeah, because you haven’t got a CRN. Okay. Now, if anyone rings you enquiring about him, how do you know him, he is originally from Gippsland. And you were married to someone from Gippsland, weren’t you?… you could just say he’s your ex-husband’s mate or something like that just in case they want to…
So he’ll probably be giving you a call, but, like, I’m just reassuring you not to be — don’t have to go to court. Don’t do that… And like I said, it’s only so he can get bail, you know…
… tell that — if anyone rings that, you know, it’s your ex-husband’s — he is one of his best mates. That’s about it and that you know him a few years ago from Gippsland… But about this bullshit going to court, I’ll have a word to him so I told him that I was gunna give you a call and just to reassure you that he is not an animal or anything like that. And that he won’t be there 99% of the time. It’s just only a place that he can give so he can get bail.
The third call, on 27 April 2020, started with Verdesoto speaking to Stephen and telling her that he would put the applicant on the line as he wanted to have ‘a little chat’ with her. The following conversation was recorded:
MS STEPHEN: Well, the solicitor said I might have to appear in court or via video link and they’ll ask me how do I know you and how long I have known you. And John suggested, cause I used to live in Traralgon---
MR KEENE: Yep.
MS STEPHEN:--- to say that I met you through my ex-husband who was my husband at the time ---
MR KEENE: Yep.
MS STEPHEN: --- um, down in Traralgon, we hadn’t seen one another for ages, I’ve got a son that lives in Clifton Springs and we bumped into one another up at the shopping centre one day.
MR KEENE: Yeah, that — that sounds like a good---
MS STEPHEN: It’s pretty reasonable.
MR KEENE: Yeah, I reckon.
MS STEPHEN: And I’ll just say I gave you — I gave you my number in case you ever need anything to call and you did.
MR KEENE: Yeah, sounds — sounds like a good plan.
MS STEPHEN: Sound all right?
MR KEENE: Yeah, sounds good.
MS STEPHEN: All right.
…
MR KEENE: I was a bit worried about the pressure that they’d sort of put on ya. I’ve got a history, you know what I mean from years ago and they like try and scare people with it.
MS STEPHEN: Nuh, that’s all right. They only told me what you were in for this time.
…
MR KEENE: It’s an awkward set of circumstances but my partner has tried to have it all dropped.
In an affidavit affirmed on 1 June 2020, Stephen deposed:
I first met Mr Keene through my husband in Traralgon. Chris had come to the house to look at a car, he called in a couple more times and we would see him when shopping.
Approx 2 yrs ago I bumped into him at a pizza shop in Drysdale which is where my son lives. I gave him phone number and said if you ever need anything give me a call. I am aware of his history and current allegations, but he still needs somewhere to live other than a jail cell.
I live on own pay low rent which is a verbal agreement and have been there for 5 yrs.
I work approx 60 hrs a week and spend the rest of the time at home.
On 1 June 2020 a facsimile of the Stephen affidavit was provided to the prosecution and the associate to Judge O’Connell who was to hear the application for bail.
The bail application
The applicant was facing charges of violence directed to a former partner. The applicant had earlier been refused bail and the application was brought on the basis of a change in facts and circumstances. The applicant relied on two factors said to be new: the availability of (a) a new residential address which was not available and not contemplated at the previous application; and (b) the Court Integrated Services Program (CISP) Remand Outreach Program. The prosecution conceded that a new address would give rise to new facts and circumstances.
The prosecution resisted bail on the basis that the applicant had not shown exceptional circumstances justifying the grant of bail and that the applicant presented an unacceptable risk of offending while on bail. Counsel for the applicant submitted that the new place of residence addressed both the requirement to show new facts and circumstances and the risk of offending. Asked by the judge to address risk, counsel for the applicant submitted:
Because, Your Honour, and it also tied in with why the existence of a new address is new facts and circumstances. If it were the case that there were multiple available to the applicant, then simply nominating another one would not be a new fact and circumstance but the specific finding of Your Honour was that given the history of the applicant, as unfortunate as it is, the court simply could not countenance releasing him on bail to the very house where the alleged incident occurred into effectively the care of the very complainant that it has allegedly occurred to.
In those circumstances, the availability of a new address some 35ish kilometres from the previous address with suitable conditions put in place, the risk in my submission can be reduced to one that is not unacceptable.
The judge, who had been provided with a copy of the affidavit although it was not tendered in evidence, asked counsel whether Stephen was giving evidence, observing that he did not know whether she had prior convictions. Counsel responded:
Unfortunately, Your Honour, I do not have any information. My instructor confirmed on Friday that with that witness that she would be available to give evidence today, my instructor has reduced work hours due to the current situation and was not in work on Monday. I’ve then sought to confirm yesterday and the witness advised that she was unable to take time off work and would not be present at court today. So it is hoped that some enquiries have been made by the Crown. I’m unable to put it any further than there is a person who has provided on affidavit that she knows the applicant, her personal circumstances and that she’s prepared to have the applicant reside with her.
The judge then observed that the affidavit was ‘the start of the enquiry’ and that the prosecution should be given an opportunity, if it wished, to test the evidence and ‘to probe whether or not what is put forward is as it seems’. Counsel for the applicant successfully applied to adjourn the application so that Stephen could attend. Counsel noted that ‘without a suitable residential address, [the bail application] is doomed to fail’.
The reasons for decision
The judge noted that there were two elements of the offence:
(a)the applicant engaged in conduct that had the tendency to pervert the course of justice; and
(b)the applicant intended for the conduct to pervert the course of justice.[3]
[3]DPP v Keene (County Court, Judge Lyon, 17 October 2022), [46] (‘Reasons’).
As to the first element, the judge held that it was necessary for the prosecution to prove that on the applicant’s conduct, without the need for any further action by him, there was a real possibility or risk that the conduct had the capacity to interfere with the proper administration of justice.
Turning to the facts, the judge said:
I am satisfied from these passages that Mr Keene was aware that the purpose of the call was:
(a) To put him in contact with Tracy Stephen, a person he did not know;
(b) That Tracy Stephen had already spoken to Mr Keene’s lawyer as a proposed address provider;
(c) That John Verdesoto spoke to Ms Stephen about providing false information and Mr Keene was told the nature of the information to be provided; and
(d) Tracy Stephen told Mr Keene that she had been asked by his lawyers to give evidence of her relationship with Mr [Keene] in court at the bail application.
From this, I am satisfied that Mr Keene was aware of and participating in an understanding or agreement for Tracy Stephen to convey to a court false information about her knowledge of and relationship with Mr Keene, and that this false information was to be conveyed for the specific purpose of providing false reassurance, background, and foundational circumstances to the provision of Tracy Stephen’s address as a suitable address at which Mr Keene could reside if bail was granted.[4]
[4]Ibid [111]–[112].
The judge then considered the applicant’s submission, repeated in this Court under cover of ground 2, that he should consider the information as to the relationship separately from the availability of the residential address. In that respect, the applicant submitted that the evidence of a false relationship was on its own incapable of perverting the course of justice and the address was bona fide in that it was actually available for the applicant to reside there.
The judge rejected the submission on the basis that the applicant had attempted to mislead the court into believing that the residential address belonged to someone he knew and who had agreed to let him stay. In any event, the judge did not accept that the offer to allow the applicant to reside at her house was bona fide because it was not contemplated that the applicant would actually live there.
The judge concluded that:
The false information about the relationship is indivisible from making the address available for bail. The sole reason for Tracy Stephen giving the false information about a relationship was to provide Mr Keene with an address for his current bail application. This must be seen against a background that bail was previously refused, at least in part for the fact that Mr Keene did not have an address, or at least a suitable address at which to reside if bail was granted.[5]
[5]Ibid [125].
Ground 1
The applicant submits that comments made by the judge during the trial gave rise to a reasonable apprehension of bias.
The applicant relies on two matters.
The first matter is the following observation by the judge:
HIS HONOUR: Don’t think I don’t look down there and see exactly what’s going on every minute of this trial. And don’t forget I’m the final arbiter in this case, on matters of bail and on the facts and on the law. I don’t misuse my powers, but I will use them to uphold the interests of justice in this case, and if I’m being messed around I will use my powers to ensure that the trial continues in an orderly fashion.
The second exchange occurred during the prosecutor’s closing address. During that address the applicant interjected prompting the following:
HIS HONOUR: Just stop there. Mr Keene I will not have constant interruptions to the prosecuting counsel’s final address.
ACCUSED KEENE: Sorry, Your Honour, I can hear you fine, but I can’t hear everything he’s saying. I’ve got industrial - - -
HIS HONOUR: Your counsel can.
ACCUSED KEENE: Ringing - I just need to be able to.
HIS HONOUR: Speak up a bit.
ACCUSED KEENE: It’s my life here.
HIS HONOUR: But be quiet, otherwise I will have you removed.
After referring to some authorities that articulate the relevant test,[6] the applicant submitted that these comments gave rise to a reasonable apprehension of bias in the form of prejudgment.
The principles
[6]Counsel referred to Webb v The Queen (1994) 181 CLR 41, 47 (Mason CJ and McHugh J); [1994] HCA 30; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39.
In Ebner v Official Trustee in Bankruptcy,[7] the High Court explained that, putting aside cases of actual bias — and we interpolate to note that no allegation of actual bias was made in the present case — where a question arises as to the independence or impartiality of a judge, the governing principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
[7](2000) 205 CLR 337; [2000] HCA 63.
The application of this governing principle requires a two-stage analysis. First, it requires the identification of what it is said that might lead a judge to decide a case other than on its legal or factual merits. The second stage requires the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
In AJH Lawyers Pty Ltd v Careri,[8] this Court identified eight matters that are relevant in considering whether or not there is a reasonable apprehension of bias on the part of a judge. Relevantly the sixth and seventh matters are as follows:
Sixthly, ‘the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer’. The fictional lay observer ‘is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge’. Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern 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’. ‘[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.’
Seventhly, ‘[a] line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings’. A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative.[9]
[8](2011) 34 VR 236; [2011] VSCA 425.
[9]Ibid 243 [23]–[24] (Warren CJ, Hansen JA and Almond AJA) (citations omitted).
Judges are not precluded from displaying ‘irritation or impatience’ and are at liberty to express ‘measured displeasure’ at the manner in which proceedings are conducted. When issues of this kind arise they have to be assessed within their full context.[10]
Decision
[10]Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33, [55] (Ferguson CJ, Whelan and McLeish JJA).
Neither of the matters, either alone or in combination, support the proposed ground of appeal.
It is necessary to provide some context to the first matter. At the conclusion of a witness, the luncheon adjournment was taken for 1 hour to resume at 1:50 pm. At 1:59 pm Verdesoto had not returned to court and the matter was briefly stood down. On resuming:
MR MALIK:[11] Thank you, Your Honour, if Your Honour will permit me, I’ll go have a wander around the court building now and see if I can see him.
[11]Counsel for Verdesoto.
(Short adjournment.)
MR MALIK: Your Honour, Mr Verdesoto appears. He tells me, Your Honour, he has difficulties with his heart. He went to get some food for lunch and on his way back had some real difficulty in walking and had to stop and take a number of breaths and breaks, which of course ---
ACCUSED VERDESOTO: I’ve got a severe weakened heart valve, Your Honour.
HIS HONOUR: Be quiet.
MR MALIK: I’ve stressed upon him the importance of being here on time, suggested there’s a café next door rather than to travel too far away from the court precinct itself in order to get lunch, and he’ll ensure he’s here on time in the future, Your Honour.
HIS HONOUR: Impress upon your client not to treat me like an idiot.
MR MALIK: Yes, Your Honour.
HIS HONOUR: And we’ll talk about bail at the end of the day.
MR MALIK: As Your Honour pleases.
HIS HONOUR: Don't think I don’t look down there and see exactly what’s going on every minute of this trial. And don’t forget I’m the final arbiter in this case, on matters of bail and on the facts and on the law. I don’t misuse my powers, but I will use them to uphold the interests of justice in this case, and if I’m being messed around I will use my powers to ensure that the trial continues in an orderly fashion.
No case to answer, Mr Malik?
The judge then heard the no case submission on behalf of each accused. The judge accepted the no case submission made on behalf of Verdesoto but rejected that advanced for the applicant.
The second matter relates to the exchange that occurred during the prosecutor’s closing address set out above. Again some matters of context are relevant. A short time before that interruption, the applicant had interrupted the prosecutor’s final address.[12] At that point, the following exchange occurred:
HIS HONOUR: Sorry, just hold on. What’s the problem, Mr Keene?
ACCUSED KEENE: He’s not reading it the way it says.
MR McGLONE:[13] Can I just approach my client for a minute now just to explain the procedure?
HIS HONOUR: All right, I’ll stand down for a moment, Mr McGlone. It’ll make it easier for you to speak to Mr Keene.
MR McGLONE: Thank you, Your Honour.
(Short adjournment.)
MR McGLONE: Thanks for that opportunity, Your Honour, I think Mr Keene understands, thank you.
[12]
[T 170][13]Counsel for the applicant.
It was only a very short time later that the applicant again interrupted the prosecutor. It is also relevant that the both of the accused had been late for Court on a number of occasions.
Neither of the impugned passages gives rise to a reasonable apprehension of bias in respect of the applicant.
In the first place, we are not persuaded that the first impugned comment was even directed to the applicant. In this Court, the applicant submitted that the observation was directed to both accused. That does not appear from the transcript. We were not invited to listen to the audio or watch a recording.
Based on a reading of the transcript it seems plain that the judge was concerned that Verdesoto may not have had a genuine excuse for not being in Court on time. The judge was keen to emphasise the authority of the Court and the importance of the proceeding. His observation was stern but unremarkable.
The applicant did not descend beyond reciting the test to explain how the impugned comments would logically give rise to an apprehension of prejudgment. Importantly, neither of the remarks went to the subject matter of the trial. They do not suggest that the judge had formed even tentative views about the prosecution or about the credibility of either accused. Each was directed to the process and the requirement for the accused to be present on time and to not interrupt proceedings. Indeed in looking at the second passage in the context of the first, it is also relevant that although the first passage was directed to Verdesoto, a short time after the judge upheld his no case submission.
There is nothing revealed in the transcript that suggests that the comments were delivered in an intemperate manner and it was well open to the judge to stamp his authority on the course of the trial in the way that he did.
Finally, on this aspect, we note that no application for disqualification was made on either occasion. Although there are cases where a failure to object does not constitute a waiver, it is generally the case that a timely objection is required. In this case, there was no adequate explanation as to why an application was not made. The failure to object is, in this case, also fatal to the proposed ground of appeal.[14]
[14]Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44.
Ground 2
As already foreshowed, in this Court, the applicant repeated a submission he made to the judge that the two aspects of the information conveyed by Stephen were required to be dealt with separately. He submits that the judge erred in conflating the availability of an address for bail with the applicant’s false relationship with Stephen.
There is no merit in this ground.
At the time of the second bail application, the applicant had been refused bail, could not stay at the home of the complainant (who alleged that he had been violent towards her) and needed a suitable address to stay whilst on bail. The applicant arranged with Stephen that she would say that they were known to each other and that the applicant could stay at her house whilst on bail. The first aspect was admitted to be false and the second was rejected on the facts by the judge on the basis that the applicant did not intend to stay at the nominated address. The judge was plainly of the view that it was never intended that the applicant would actually reside at Stephen’s house. In part that finding was made having regard to the judge’s assessment of Stephen as a witness of doubtful credibility and reliability and after rejecting her evidence that she was genuinely willing to have the applicant stay as a safety measure. Having regard to the third Arunta call, in which the applicant approves ‘the plan’ that finding was well open to him to make to the criminal standard.
It follows that even if the two aspects of the information conveyed by Stephen in her affidavit were considered discretely they would still have had the capacity to mislead the judge considering the bail application.
In any event, there is no reason to treat the two parts conveyed by Stephen as if they were separate. As the transcript of the bail application shows, it was inevitable that a judge hearing the bail application would have wished to know something about the proposed address and who was living there. It is plain that the applicant wished to convey to the bail court that the address was suitable, and to that end, the applicant connived to have Stephen say that they were acquainted with one another and she was happy for him to stay. The former aspect explained the latter. It is also relevant that the false relationship masked the truth that Stephen had provided a false statement as a favour to Verdesoto. Verdesoto had told Stephen that the applicant would have stayed with him but it was necessary to find an address of someone who did not have a ‘CRN’.[15] There can be no doubt that the whole scenario was contrived and the evidence of a pre-existing relationship added to convey legitimacy.
[15]A reference to Corrections Reference Number, used by Corrections Victoria to identify a prisoner.
In his conclusion,[16] the judge said he was satisfied that:
(a)the applicant engaged in the conduct alleged, by which the false information was set out to him, and which he knew and expected would be provided to his lawyers and to the Court in the course of his application for bail;
(b)the false information about the relationship between Stephen and the applicant was indivisible from the provision of an address for the purposes of the bail application;
(c)the course by which the false information came before the County Court was a natural progression from the call of 27 April 2020, and known to the applicant;
(d)the applicant thereby attempted to mislead the Court by putting false information before the Court; and
(e)the applicant did so with the intention of enhancing his prospects for bail by supplying a residential address, which was the reason or a major reason why his previous application for bail had failed.
[16]Reasons, [122].
In reaching his conclusions the judge did not misunderstand or mischaracterise the false information that was provided by Stephen in support of the bail application. The judge’s reference to the information being ‘indivisible’ means no more than the two aspects of Stephen’s evidence were intended to be conveyed and understood together. The falsity went to both the existence of a relationship and that the applicant intended he would live at the proposed address.
Approaching the matter in the way contended for by the applicant would be entirely artificial and would not accord with the evidence and factual findings made by the judge. The judge’s conclusion, that the conduct of the applicant in agreeing with Stephen to provide false information had the tendency to pervert the course of justice and was intended to have that effect, was plainly open and we would add, inevitable.
The application for leave to appeal against conviction must be refused.
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