Leonard Dillon (a pseudonym)[1] v The Queen - [2014] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0170

LEONARD DILLON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 August 2014
DATE OF ORDERS:	1 August 2014
DATE OF JUDGMENT:	7 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 164
JUDGMENT APPEALED FROM:	DPP v [Dillon] (Unreported, County Court of Victoria, Judge Chettle, 31 July 2014)

---

CRIMINAL LAW – Interlocutory Appeal – Apprehended bias – Trial judge’s refusal to certify – Interests of justice – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J J Lavery	Pica Criminal Lawyers
For the Crown	Ms D Manova with Mr M Cenacchi	Mr C Hyland, Solicitor for Public Prosecutions

WHELAN JA:

I have read in draft the reasons of Priest JA in which he has set out the circumstances in relation to this application, the relevant statutory provisions, and the applicable authorities.

The complaints in relation to the judge’s conduct fall into three groups. The first concerns remarks made on the final directions hearing. The second concerns the revocation of bail. The third concerns conduct of the judge in relation to the evidentiary basis for the prosecution case.

In relation to remarks made at the final directions hearing, when the matter was first put to this Court on behalf of the applicant what was asserted to have occurred was the following:

After discussion of pre-trial issues, the judge enquired of the first accused’s counsel whether the matter would really proceed as a trial. When informed that it would, he said he would bear that in mind when he sentenced that accused. He repeated the question and the comment to the following accused.

When the transcript and audio visual recording of the hearing was obtained, it became clear that that is not what had happened. In fact, in the course of an interchange which I think is fairly described as ‘conversational’ as to whether the respective counsel were ‘positive’ that the matters would be proceeding to a contested trial the judge observed:

These will all be remembered, of course, on the plea.

There is no indication of any adverse reaction to that comment by any of the counsel present. Priest JA has suggested the comment was probably an attempt at humour. I would describe it as flippant.

The interpretation placed upon what was said by the applicant initially was entirely unwarranted. Once the transcript had been obtained and it was clear what had been said, counsel for the applicant had little, if any, further submission to make about that matter.

In relation to the revocation of bail, the trial judge was somewhat peremptory. It seems to me from the transcript that the judge himself then realised that he had taken counsel by surprise. His attempts to redress 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.

Keep reading for free

Create a free CaseChat account to read Leonard Dillon (a pseudonym)[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSCA 164
Decision Date: 7 August 2014

CaseChat Overview and Summary

In the matter of Leonard Dillon (a pseudonym) against The Queen, the High Court of Australia addressed an interlocutory appeal concerning the trial judge's refusal to certify an apprehended bias, which the appellant claimed was necessary for an appeal. The dispute revolved around the appellant's argument that the trial judge exhibited bias during the proceedings, warranting an appeal on the grounds of apprehended bias. The court was tasked with determining whether the trial judge's refusal to certify the bias was justifiable under the principles of the interests of justice.

The primary legal issue before the court was whether the trial judge's refusal to certify an apprehended bias was appropriate and whether the court should grant leave to appeal based on the alleged bias. The court examined the trial judge's conduct and the circumstances surrounding the case to determine if the refusal to certify the bias was warranted. The appellant argued that the trial judge's actions indicated bias and that the refusal to certify this bias prevented a fair appeal. The court needed to weigh the appellant's claim against the trial judge's decision and the broader principles of justice.

The High Court concluded that the trial judge's refusal to certify the apprehended bias was justified. The court found that the trial judge had not acted in a manner that demonstrated bias and that the refusal to certify the bias did not prejudice the appellant's right to a fair appeal. The court held that the trial judge's decision was in line with the interests of justice, as it did not undermine the fairness of the proceedings. Consequently, the court denied the appellant's application for leave to appeal, affirming the trial judge's decision.

No further orders were made by the court in this interlocutory appeal.

Orders