Koch v The Queen
[2013] VSC 677
•9 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 02062
| CHRISTOPHER PHILIP KOCH | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2013 | |
DATE OF JUDGMENT: | 9 December 2013 | |
CASE MAY BE CITED AS: | Koch v The Queen | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 677 | |
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ADMINISTRATIVE LAW – Judicial review of a decision of the County Court of Victoria –Applicant convicted – Whether conviction infected by apprehended bias – Whether Applicant out of time to commence proceedings – Whether special circumstances exist to justify an extension of time – Whether Applicant waived entitlement to object to the constitution of the Court by failing to raise the issue at trial or on appeal – No special circumstances – Application refused – Supreme Court (General Civil Procedure) Rules2005 (Vic) O 56 – Smits v Roach (2006) 227 CLR 423 – Vakauta v Kelly (1989) 167 CLR 568.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr A Dinelli | Commonwealth Director of Public Prosecutions |
HER HONOUR:
The Applicant seeks an extension of time pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules2005 (Vic) to bring a proceeding for judicial review of convictions for various criminal offences in the County Court of Victoria in July 2010. Rule 56.02(1) provides that a proceeding for judicial review under O 56 shall be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose. Rule 56.02(3) provides that the Court shall not extend the time fixed by paragraph (1) except in special circumstances.
On 22 July 2010, following a trial in the County Court, the Applicant was convicted of 15 counts of obtaining property by deception, seven counts of obtaining a financial advantage by deception and one count of making available a prescribed interest, contrary to s 1064 of the Corporations Law.[1]
[1]Taken to be included in the Corporations Act 2011 (Cth) by virtue of s 1401 of that Act. He was sentenced in respect of those offences to a total effective sentence of 13 years and two months’ imprisonment with a non-parole period of ten years.
On 8 December 2009, some six months before the trial, a mention hearing was conducted before her Honour Judge Douglas in the County Court. The Applicant was represented by counsel, Mr Daniel Porceddu. During the mention hearing, the judge informed the parties that she knew a person named in the prosecution brief of evidence, namely, Dr Jack Fidler, that he was a personal friend of her husband and that she had seen him a number of times with her husband, but that Dr Fidler had never discussed the Applicant or anything about the case in front of her Honour. Judge Douglas observed that Dr Fidler was not a witness in the case.
Both counsel for the Crown and for Mr Porceddu indicated that they would seek instructions in relation to her Honour’s disclosure. Further mention and preliminary hearings were conducted prior to trial. It appears that Dr Fidler was not mentioned again. Certainly, Mr Porceddu said nothing further and made no application that the judge disqualify herself.
The Applicant has now filed an originating motion seeking judicial review of the convictions, alleging a substantial miscarriage of justice because the judge did not automatically disqualify herself from presiding at the trial on the ground of apprehended bias. The Applicant alleges, in substance, that the judge was much closer to Dr Fidler than she disclosed and/or that she must have contacted him directly to know that he was the person named in the relevant document (which referred only to the J Fidler Staff Superannuation Fund) and/or that he had lost money. In making these allegations, the Applicant relies on statements or comments made by her Honour that are recorded in transcript for the hearings on 8 December 2009 and 2 February 2010.
The Originating Motion contains further allegations that, in stating that Dr Fidler was not going to be called as a witness four months prior to the trial formally commencing, the judge unlawfully prevented the Applicant from exercising his right ‘regarding witness examination and attendance’ and that the judge conspired with the prosecutor and defence lawyers to fraudulently conduct the trial and deny him natural justice.
The Originating Motion is dated 28 February 2013, and the decision of which he complains (which I take to be his conviction on the charges) was made on 22 July 2010. The Applicant is well out of time to bring the judicial review proceeding. He seeks to bring the proceeding more than 2½ years after the date on which the convictions were entered and more than three years after the events at the preliminary hearing or hearings at which the question of the judge’s connection to Dr Fidler was first raised.
Since that time, the Applicant has appealed against his conviction and sentence. On 15 December 2011, the Court of Appeal quashed the Corporations Law conviction, but otherwise dismissed the Applicant’s appeal against conviction.[2]
[2]The sentencing discretion having been re-opened, the Court of Appeal re-sentenced the Applicant to a total effective sentence of nine years and ten months’ imprisonment, with a non-parole period of seven years and six months.
The complaints now sought to be made by the Applicant concerning the conduct of his criminal trial were not the subject of his appeal to the Court of Appeal. The appeal grounds concerned evidence admitted and directions given on the use of evidence relating to flight and consciousness of guilt, the failure to discharge the jury based on a particular line of cross-examination and an allegation that the juror had addressed the Applicant directly, and alleged that the Corporations Law charge was unreasonable or otherwise amounted to a miscarriage of justice and/or could not be supported having regard to the evidence.
None of these grounds were related in any way to the grounds the Applicant now seeks to agitate under O 56. The Applicant says that he could not have raised the ground of apprehended bias on appeal because the judge made no ruling that could be appealed. The Applicant would no doubt also say that he could not have raised as a ground of appeal the denial of his right regarding ‘witness examination and attendance’ because no ruling was made that he could not call Dr Fidler as a witness.
The reason for the lack of any ruling or decision is, of course, that no complaint or application of the relevant kind was made by him prior to or during the trial itself.
The Applicant therefore relies on what he describes a ‘fundamental flaw’ and miscarriage of justice in the trial that is not, apparently, referrable to any particular ruling or decision made by the County Court, but which he says is properly ventilated in a proceeding for judicial review rather than in a criminal appeal. It is based on what the Applicant says was the judge’s obligation to ‘automatically’ disqualify herself on the basis of her ‘close, familial, personal relationship’ to a person who was not only a witness in the trial but a victim.
I do not accept this submission. The transcript of the hearing on 8 December 2009 shows the judge to have disclosed that Dr Jack Fidler was a close personal friend of her husband’s. Her Honour said:
If I could say this: as I understand he is not a witness so his credibility is not involved and although I have seen him a number of times with my husband, he has never discussed the case. I mean this came as a shock to me because I didn’t know, he has never discussed Mr Koch or anything about this case in front of me but I thought I ought to make that disclosure and perhaps you can speak to your client about it.
Counsel for Mr Koch replied:
Your Honour, I will seek to get some instructions on that matter and let the court know what the position is.
It is clear from this exchange that the judge was not ‘automatically’ disqualifying herself and that it was a matter for the parties to make application that she do so if they considered such an application to be warranted in the circumstances. In the event, neither party did so.
In Smits v Roach,[3] the High Court confirmed having held on a number of occasions that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. The High Court quoted the passage from the judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly,[4] in which their Honours considered apprehended bias in the context of comments made by the trial judge in the course of proceedings:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.[5]
[3](2006) 227 CLR 423.
[4](1989) 167 CLR 568.
[5]Ibid 572.
There are therefore good reasons why, if an allegation of apprehended bias is to be made, it must be made at the earliest opportunity. Litigants cannot reserve their position to see how the proceeding unfolds before taking steps to have the tribunal disqualify itself or to impugn its decisions. The right to object will be waived.
In this case, the judge did not make comments in court of a kind that might have betrayed a lack of partiality, but identified to counsel her relationship with a person apparently affected by the Applicant’s conduct and invited counsel to consider the implications of the disclosure and to take action if thought appropriate. However, the same principle applies: the parties cannot stand by until the content of the judgment is known if there has been a failure at an early stage to observe the requirement of the appearance of impartial judgment.
The Applicant submits that he could not have acted any earlier as he did not have access to the relevant transcript. He says that he needed to have the transcript of the mention hearings in order to carry out the necessary forensic analysis showing that the judge was such a close friend of Dr Fidler that she contacted him to ascertain whether he was associated with the J Fidler Staff Superannuation Fund and learned that he had ‘lost money’ in the investments forming the basis for one of the charges. This, according to the Applicant, would also explain her Honour describing herself as ‘shocked’ to learn that Dr Fidler was involved. It was a question of ‘joining the dots’, having regard to various comments and statements made by her Honour in the course of the hearings.
The Applicant told the Court that he did not seek access to the transcript until shortly after the Court of Appeal had handed down its decision on 15 December 2011. Although I accept that the Applicant was put to considerable trouble to obtain the transcript, and that he experienced a number of ‘hiccups’ when trying to lodge documents to commence the present proceeding, that does not explain or excuse the significant delay in commencing the proceeding. The time to obtain transcript in order to be in a position to object to the constitution of the court on the grounds of bias or apprehended bias was in the lead up to or at the time of the trial or, at the very latest, prior to commencing the appeal.
The Applicant told the Court that he was in court when each of the exchanges upon which he now relies took place. He was represented by counsel in each instance. It follows that none of the matters upon which the Applicant now seeks to rely were unknown to him or his counsel at the time of trial, or indeed at the time that he brought his appeal.
I do not accept that, because the Applicant (and subsequently the Applicant’s appellate counsel) did not have access to the transcript that discloses the asserted error (that is, the transcript of the hearings on 8 December 2009 and 2 February 2010), he could not have taken the point that he now wishes to take much, much earlier.
I am therefore not persuaded that the Applicant has shown that special circumstances exist warranting an extension of time in which to bring the judicial review proceeding.
I am conscious that an allegation of bias or apprehended bias against a judicial officer is a serious matter and the Applicant ought not to be lightly shut out of the opportunity to fully ventilate his concerns. However, there are further good reasons why an extension of time should not be granted to bring the proceeding.
The Applicant was represented throughout the criminal trial and in the appeal. Forensic decisions were made by his counsel and he is bound by those decisions. In Nudd v R,[6] Gleeson CJ said:
A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. … As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function.
[6](2006) 225 ALR 161, 164 [9].
In my view, that principle is applicable in this case and justice does not demand an exception to it.
Furthermore, in Kuek v Victoria Legal Aid,[7] the Court of Appeal, dealing with whether judicial review was available when a would-be appellant had failed to act in a timely fashion to bring an appeal under s 109 of the Magistrates Court Act 1989 (Vic), said:
… it cannot be that a would-be appellant, who fails to act in a timely fashion under s 109, can recast his or her appeal as an application for a judicial review under O 56 where the time limit is not 30 days but 60.[8]
[7](2001) 3 VR 289.
[8]Ibid 293.
The Court of Appeal cited with approval the decision of Ashley J in Stefanovski v Murphy[9] in which his Honour expressed serious doubt about whether the O 56 procedure was available where a final order had been made by a Magistrates’ Court and where the matters sought to be raised by the originating motion could be agitated on appeal under what was then s 92 of the Magistrates’ Court Act. The Court of Appeal went on to express the view that unless there were exceptional circumstances, a litigant could not raise for determination under O 56 a matter or thing which was proper for determination on an appeal where the very litigant had a right of appeal under s 109 of the Magistrates’ Court Act.
[9](Unreported, Supreme Court of Victoria, Ashley J, 24 May 1994) 7.
In my view, that principle is also applicable in the circumstances of this case.
The Applicant has exercised his right to bring an appeal and has been partially successful in that respect. He should not now be allowed to ventilate what is, in reality, an additional ground of appeal through O 56 when he has exhausted his rights of appeal.
The matters raised in argument before me concerning the empanelment of the jury were also matters that were well able to raised in the appeal.
As a final matter, I observe that the theory sought to be advanced by the Applicant concerning the judge’s concealment or failure to disclose her ‘close, familial, personal connection’ with Dr Fidler rests on shaky ground. The fact that the judge disclosed an association with ‘Dr Jack Fidler’ when only the ‘J Fidler Staff Superannuation Fund’ and ‘Mr J Fidler’ were referred to in the documentation then available to her Honour does not, in my view, give rise to an inference that the judge must have contacted Dr Jack Fidler to ascertain that he was involved. A cautious judge would make a disclosure on the basis that it was possible that Dr Jack Fidler was or was associated with the person or entity named. As to imputing to the judge knowledge that Mr Fidler had lost money, a closer reading of the relevant part of the transcript suggests that the judge was asking a series of questions as to what was alleged rather than making a statement of fact. The question related to all of the investors in what was alleged to be a prescribed interest scheme. In this regard, I note that Dr Fidler was one of a large number of investors who were listed in connection with the Corporations Law charge of aiding and abetting a person other than a public corporation (Koch & Associates Pty Ltd) to make available a prescribed interest. As I understand it, it was not relevant to this charge whether the investors lost money. Dr Fidler was neither a ‘witness’ nor a ‘victim’ as alleged by the Applicant.[10]
[10]In his affidavit sworn on 25 October 2013, Sean Patrick Sullivan, a lawyer employed by the Commonwealth Director of Public Prosecutions, deposes that he was informed by the principal investigator involved in the Applicant’s prosecution, Mr Joseph Zubcic, that a number of statements were obtained from some additional persons, but no statement was ever obtained from Dr Fidler in relation to the matter and it was never envisaged that Dr Fidler would be a Crown witness in relation to the Applicant’s prosecution. Dr Fidler did not give evidence at the committal hearing.
The application for an extension of time in which to bring the judicial review proceeding is refused.
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