Long v Mr Halliday, Stipendiary Magistrate at Brisbane

[2001] QSC 105

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DOUGLAS J

[2001] QSC 105

NO 57 OF 2001

ROBERT PAUL LONG  Applicant

and

MR HALLIDAY

STIPENDIARY MAGISTRATE AT BRISBANE  Respondent

BRISBANE

.. DATE  03/01/2001

ORDER

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HIS HONOUR:   This is an application by Robert Paul Long for a review of a decision of a Magistrate, Mr Halliday SM, not to disqualify himself from the hearing of a committal proceedings against Mr Long involving one charge of arson and two counts of murder arising out of a fire which occurred at the Palace Backpacker Hostel in Childers in the year 2000.

The committal proceedings commenced before Mr Halliday in the Brisbane Magistrates Court on 2 January 2001 in what was quite a blaze of publicity involving the presence of television  cameras  and  press  cameras  in  the  Court  room.    Such  a  demonstration  of willingness to admit the press to this type of proceeding has not occurred, to my knowledge, in Queensland before yesterday.

I am not being, necessarily, critical of the fact that that occurred but what I say later may give some clue as to why things occurred that way.  There were some preliminary matters dealt with and then the three charges were read out and shortly after that, the learned Magistrate said this:

“I  want  to  say  that  to  put  in  its  proper  context  the  purpose  of  these proceedings today, that is, for an examination of all of the evidence which is  going  to  be  alleged  against  Mr  Long,  and  for  that  evidence  to  be appropriately analysed by this Court.

The  incident  that  gives  rise  to  these  proceedings  has  attracted  great publicity and media coverage and it is also of public interest.  The tragic event and the effect that it has had on many lives makes it appropriate, in my  view,  for  there  to  be  a  public  expression  of  condolence  and  I accordingly express my sympathy and condolences and that of the Court

to the family, relatives and friends of the deceased and their sad and tragic losses (my underling).

I am acutely aware of my duties and role in these proceedings and, in particular, the role or the right of an accused person to a hearing before a completely unbiased tribunal.  I believe that my expressions so made do not infringe upon or compromise such a role and it is not intended to do so.”

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I have underlined the words “and that of the Court” because I asked Mr Halliday’s counsel to seek express instructions as to whether he, in fact, had the authority of the general body of the Bench of Magistrates to make the apology he made.  I did so because I took the passage to read that he did have that authority.

The instructions came back that the apology proffered was that of Mr Halliday alone and the

reference to the Court was a reference to the Court over which he presided.

I will not, for the moment, deal with the question of whether there is a decision capable of review under the  Judicial Review Act 1991. If the Magistrate made a decision capable of being reviewed under the Act, it is clear that it can be. See Lamb v Moss and Brown (1983)

76 FLR 296 at 321.

The question for me to decide, ultimately, and I will go to it straight away, is whether the Magistrate by his conduct and statement has created a reasonable apprehension of bias.  As Lord Hewitt said in The Queen v Sussex Justices ex parte McCarthy (1924) 1 KB 256 at 259:

“It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”

Both counsel, Mr Glynn SC and Mr Campbell, put to me various extracts from Johnson and

Johnson (2000) 74 ALJR 380. That, of course, was a case (as was Webb v The Queen (1994)

181 CLR 41) which dealt with judicial officers carrying out judicial work in the true sense,

that is, deciding between the parties their final rights and entitlements.

The role of a Magistrate is somewhat different when hearing committal proceedings.  I make

it plain that this judgment refers only to this Magistrate’s role in conducting committal

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proceedings and not in his role as Coroner.  In Halsbury’s Laws of Australia, paragraph [130-

13420], the nature of committal proceedings is set out as follows:

“Committal    proceedings    (also    called    examination    of    witnesses, preliminary  examination  or  preliminary  hearing,  depending  upon  the jurisdiction), are conducted by a Magistrate or a Justice for all indictable offences which either cannot, or will not, be dealt with summarily.  They are generally necessary before an indictment can be presented for the trial of the accused person …  

The  hearing  of  a  committal  proceedings  is  an  administrative  and  not judicial  function  although  the  person  conducting  the  hearing  must  act judicially.  Committal proceedings have been said to be an important part of the criminal process but there are differing views about the necessity of committal proceedings for a fair trial.”

It  can  be  seen,  then,  that  committal  proceedings  are  no  more  than  the  examination  of witnesses and all that a Magistrate is required to do, at the end of the evidence, is to decide whether or not there is sufficient evidence upon which to commit a person for trial.  Or, in other words, as it has been put, whether there is sufficient evidence which, if placed before a properly instructed jury, that jury may convict of the offence charged.

The comments made by the Magistrate in my view were clearly inappropriate.  It is not the role of the Magistrate at that stage in the criminal process to make any of apology at all.  If an apology is eventually to be made it should be made by the judicial officer presiding at the trial of a convicted person after that person has been convicted.  The law already has in place in  Queensland  a  system  whereby  victim  impact  statements  are  collected  by  the  Crown Prosecutor and presented to the Judge after a conviction so that those impact statements may be taken into account by the Judge in determining what penalty may be imposed upon a convicted person.

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Victims in that context include for instance the immediate family of a person in this case killed  in  the  fire.    The  mere  recognition  of  that  process  in  our  law  shows  the inappropriateness of the apology proffered by a Magistrate in these proceedings.

I am also of the view that the nature of the proceedings yesterday indicated a degree of grandstanding or self importance, perhaps, on the part of the Magistrate who was admittedly involved in the hearing of an important committal proceeding in this State but whether that inappropriateness, which I also consider to be injudicious, amounts to conduct which may give a perception of bias on the part of the reasonable person or observer in another matter.  I am of the view that on the authorities put to me it does not amount to such.  I myself would not have conducted myself in the way that the Magistrate did for the reasons I have already expressed but I do not think that his comments impinge upon his ability to carry out the further examination of the witnesses in the next two weeks.  He made it plain in other comments, at the time, that he fully understood the nature of his role and the limited extent of it; that is to examine witnesses and to determine whether or not there is sufficient evidence to place Long upon his trial for the charge of arson and those of murder.

In the event, then, it is not necessary for me to decide whether there is a decision which is capable of being referred and this not being an appropriate case on the way I see the facts I dismiss the application.

…  

HIS HONOUR:  Well I make no order as to costs.