Lo Presti v The Queen - [1994] HCATrans 263

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M65 of 1991
B e t w e e n -
JOSEPH FRANCIS LO PRESTI

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 24 MARCH 1994, AT 2.01 PM

Lo Presti

24/3/94

MR D. GRACE:

If the Court pleases, I appear on behalf of the applicant. (instructed by Grace Partners)

MR B.D. BONGIORNO. OC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown.
(instructed by J.M. Buckley, Director of Public
Prosecutions (Victoria))

MASON CJ: Yes, Mr Grace.

MR GRACE:

The first question in this application,

Your Honours, is the issue of bias and the issue is
squarely this: did the circumstances of
Mr Justice Teague's involvement directly or
indirectly with the applicant when His Honour was
president of the Law Institute of Victoria satisfy the test laid down in Grassby so as to require his disqualification from the Court of Criminal Appeal.
This is not a case where the rule of necessity is applicable. It was a simple task for a differently
constituted Court of Criminal Appeal to be
appointed.

TOOHEY J: When you put it that way, Mr Grace, it suggests

that there is no great question of principle
involved, but rather the application of established
principle to the facts of this case.

MR GRACE: There is a question of principle, Your Honour,

and that is this: what are the parameters of the
test that ought to be applied in this particular
case? Secondly, what standard of objective facts
have to be reached before the test is satisfied,
given the factual circumstances of this particular
case?

TOOHEY J: What do you mean by "parameters of the test"?

MR GRACE: Perhaps the two issues are intertwined.

The parameters deal with not putting the standard
of the reasonable bystander or the reasonable
accused at a level where it is almost impossible to

reach so as to apply the Grassby test. In this
case, the court obviously had facts in front of it
which suggested an apprehension on the part of the
applicant that he would not get a fair hearing.
The applicant asserted and submitted that he would
not get a fair hearing because the reasonable
bystander would have a reasonable apprehension of
bias.

MASON CJ: But we are dealing with a reasonable bystander

who is not unintelligent.

MR GRACE: That is squarely the issue, with respect,

Your Honour. The question is whether a reasonable

Lo Presti

24/3/94

bystander, not with the capacity of a lawyer, but
as a member of the public, what he would
attribute - - -

MASON CJ: A reasonable bystander, what he or she would

understand once the circumstances were fully
explained.

MR GRACE:

But one must be very slow to assume, in my

respectful submission, at least when considering

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 Lo Presti v The Queen

Details

AGLC: Lo Presti v The Queen [1994] HCATrans 263
Case: [1994] HCATrans 263
Decision Date

CaseChat Overview and Summary

This matter concerns an application for special leave to appeal to the High Court of Australia by Joseph Francis Lo Presti against a decision of the Court of Criminal Appeal. The central dispute revolved around whether the Honourable Mr Justice Teague, a judge of the Court of Criminal Appeal, ought to have been disqualified from hearing the applicant's appeal due to alleged bias. The applicant contended that Mr Justice Teague's prior involvement with him when His Honour was president of the Law Institute of Victoria created a reasonable apprehension of bias.

The primary legal issue before the High Court was to determine the parameters of the test for apprehended bias, specifically as laid down in *Grassby*, and the objective standard of facts required to satisfy this test in the context of the applicant's apprehension of not receiving a fair hearing. The applicant argued that the reasonable bystander, representing the public's perception, should not be attributed with an overly sophisticated understanding of judicial impartiality, particularly regarding a judge's capacity to set aside prior views. The applicant's submission was that the circumstances surrounding Mr Justice Teague's prior involvement, which included a finding of professional misconduct by the Secretary of the Law Institute and the subsequent appointment of a tribunal by Mr Justice Teague in his presidential capacity, gave rise to a reasonable apprehension of bias.

The High Court considered the nature of Mr Justice Teague's involvement, noting that it primarily consisted of signing a document appointing members to a tribunal, following a preliminary finding of professional misconduct by the Secretary of the Law Institute. The Court also examined the wording of the relevant legislation, which referred to the Secretary being "of opinion" rather than making a definitive "finding" of misconduct. The applicant's argument centred on the perception of bias from a member of the public, who might not appreciate the judicial capacity to remain impartial despite prior involvement. The Court was tasked with assessing whether these circumstances met the threshold for apprehended bias under the *Grassby* test, considering the objective standard of a reasonable, albeit not necessarily legally trained, bystander.

Orders