Luke Spencer v The Queen

[2013] ACTCA 36

LUKE SPENCER v THE QUEEN
[2013] ACTCA 36 (11 September 2013)

APPEAL AND NEW TRIAL ­– application for leave to appeal ­– refusal of sentencing judge to disqualify himself – whether arguable case on appeal – apprehended bias – whether fair minded lay observer would apprehend bias on the part of the sentencing judge – where sentencing judge in discussion with counsel gives indications of sentence to be imposed – where sentencing judge under mistaken belief had heard all the evidence – where judge subsequently acknowledged mistake

PRACTICE AND PROCEDURE – application for stay of proceedings – whether appropriate case for exercise of discretion ­– where stay would cause undesirable fragmentation of criminal process – where right to appeal sentence remains

Supreme Court Act 1933 (ACT), s 37J(1)(a)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 54 – 2013
No. SCC 7 of 2013

Judge: Burns J  
Court of Appeal of the Australian Capital Territory

Date: 11 September 2013        

IN THE SUPREME COURT OF THE       )          No. ACTCA 54 – 2013
  )          No. SCC 7 of 2013
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

LUKE SPENCER

Applicant

v      

THE QUEEN

Respondent

ORDER

Judge:     Burns J
Date:      11 September 2013
Place:     Canberra

THE COURT ORDERS THAT:

1. The applicant is given leave to make an application out of time for leave to appeal from the decision of the sentencing judge on 30 August 2013.

2. Leave to appeal from the decision of 30 August 2013 is refused.

3. The application for a stay of proceedings is refused.

IN THE SUPREME COURT OF THE       )          No. ACTCA 54 – 2013
  )          No. SCC 7 of 2013
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  LUKE SPENCER

Applicant

v      

AND:  THE QUEEN

Respondent

Judge:  Burns J
Date:  11 September 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The applicant in this matter is to appear this afternoon for sentence with respect to certain matters before a judge of the ACT Supreme Court.  An application has been filed in this court seeking leave to appeal the interlocutory decision made by the sentencing judge on 30 August 2013 not to disqualify himself from further hearing the sentencing proceedings.

2. Leave is further sought to make this application though the notice was filed more than 7 days after the day the decision was given. Finally, an order is sought that the sentencing proceedings involving the applicant be stayed pending the resolution of any appeal.

3. In my opinion, the application should be refused.  The basis of the application is the refusal by the sentencing judge to disqualify himself from further hearing the sentence proceedings against the applicant on the basis of apprehended bias, and the failure to give reasons for that refusal.  In an affidavit which was affirmed by the applicant today those matters which are relevant to the application which was made before the sentencing judge to disqualify himself on 30 August this year are set out.

4. On 26 July, the applicant appeared before the sentencing judge for sentence.  When the matter was to be adjourned a question was raised as to the conditions of bail of the applicant.  A variation of bail was applied for that would allow the applicant to reside at a residential rehabilitation facility.  An exchange then occurred between his Honour and the applicant’s counsel, Mr Archer.  That exchange is set out at paragraph 35 of the applicant’s affidavit:

   HIS HONOUR: Is there a reason for him wanting to change his residence for a week?
   MR ARCHER: Well, there’s an opportunity to begin a process of rehabilitation. It’s available now.
   HIS HONOUR: Well, him residing at the CRS for one week won’t much deter my decision.
   MR ARCHER: Well, I guess that ultimately is a matter for your Honour.

   In my opinion one cannot read from that any pre-judging of the question of sentence by his Honour. 

5. The second matter which the applicant relies upon is set out in paragraph 38 of the applicant’s affidavit.  That sets out an exchange that occurred between his Honour and Mr Archer on 30 August.  The exchange commenced concerning, as I understand it, the legal effect of the applicant not having signed an undertaking to be of good behaviour with respect to a sentence that had been imposed on him in June 2011.  That appears to be a matter that has assumed some significance in the proceedings before the sentencing judge.

6. His Honour said “Well it’s unfortunate for your client because frankly it’s delaying the day that he is sentenced to imprisonment”.  Mr Archer then pointed out that his Honour had not heard all of the evidence in the case.  His Honour said “Well I thought I had before today”.  There was thereafter a continuing exchange of that nature where Mr Archer indicated that there had been no defence case but his Honour said that he thought that there had been.

7. Ms Hunter who appeared for the Crown then addressed his Honour particularly in terms of the desirability of imposing a sentence which would assist in the rehabilitation of the offender.  Thereafter there was a comment made by his Honour that he would get rehabilitation courses in custody.

8. In my opinion, a fair reading of that exchange between his Honour and the Crown indicates that his Honour was not of the view that rehabilitation could only take place in a non-custodial setting, and that his Honour was of the view that rehabilitation was possible within a custodial setting.  In my opinion, no reasonable fair-minded lay observer would think that his Honour had formed a concrete view as to the sentence that he was going to impose based upon that material. 

9. His Honour then noted that Mr Archer had said that he had not heard the offender’s case yet and Mr Archer responded that he had not.  There was again some to-ing and fro-ing before his Honour finally said “Well I am mistaken”.  Thereafter the application was made by Mr Archer for the judge to disqualify himself.  His Honour declined to do so.

10. In my opinion, the evidence does not support an arguable case that a fair-minded lay observer would conclude that the judge had formed a view as to the outcome of the sentencing process.  His Honour’s earlier comments must be seen in the light to which I have referred and in the light of the fact that his Honour was apparently mistaken in his belief that he had already heard all of the evidence in the case.

11. After his Honour accepted that he was mistaken in that regard he did not in any way repeat any of the earlier suggestions that he had made about the potential outcome of the case.  As I have said, in my opinion, when looked at on a fair reading of the material, there is simply no arguable case of apprehended bias. 

12. It appears to me that where there is a finding that there’s not an arguable case of apprehended bias, that the appeal ground of failing to give reasons falls away.

THE APPLICATION FOR A STAY

1. In any event, even if I were wrong in that regard, the remedy that is sought by the applicant is a discretionary remedy and there are good reasons in my view why such a remedy should not be given in this particular case.

2. The staying of the proceedings which are currently before his Honour would be an undesirable fragmentation of the criminal process.  In my opinion, the appropriate course is to allow the criminal process to proceed and I note that in that regard the applicant has an alternative remedy in that he has a right of appeal should he or those who represent him form the view that any sentence imposed by his Honour is excessive or tainted by error.

ORDERS

1. Appeal courts should be very cautious about granting leave to appeal interlocutory decisions and that is all more the case where we are dealing with criminal proceedings. 

2. I grant leave to make the application for leave to appeal out of time.

3. Section 37J(1)(a) of the Supreme Court Act 1933 (ACT) gives me power to hear and decide an application for leave to appeal. In those circumstances I refuse the application.

4. The application for a stay will be refused. 

   I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:     9 October 2013

Counsel for the Applicant:  Mr K Archer

Solicitor for the Applicant:  Kamy Saeedi Lawyers

Counsel for the Respondent:  Ms M Hunter
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  11 September 2013
Date of Judgment:  11 September 2013