Mahon v Police

[2021] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

MAHON v POLICE & ANOR

[2021] SASC 109

Judgment of the Honourable Justice David 

16 September 2021

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - DISPENSING WITH RULE AGAINST BIAS - WAIVER

This is an appeal against the sentence imposed by a Magistrate on 17 December 2020 in the Adelaide Magistrates Court. During sentencing remarks, the Magistrate indicated that one of the victims of the appellant's offending was known to the Magistrate. The appellant appeals on the basis this was apprehended bias by the Magistrate. The appellant's solicitor took no objection at the time. The respondent contends that the lack of objection by the appellant constitutes a waiver of the apprehended bias rule.

Held, per David JA, allowing the appeal:

1. The appellant did not waive his right to complain of apprehended bias.

2. The sentencing process miscarried.

3. The matters are remitted to another Magistrate for resentence.

Bail Act 1985 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) ss 85, 134, 139 & 144; Controlled Substances Act 1984 (SA) ss 18 & 33L; Firearms Act 2015 (SA) s 31; Summary Offences Act 1953 (SA) s 41, referred to.

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; Vakauta v Kelly (1989) 167 CLR 568; Zanker v Kupsch [2014] SASCFC 13, considered.

MAHON v POLICE & ANOR
[2021] SASC 109

Magistrates Appeal:         Criminal

1. David JA:         This is an appeal against the sentence imposed by a Magistrate on 17 December 2020 in the Adelaide Magistrates Court. On that date, the Magistrate sentenced the appellant for numerous offences, not all of which are the subject of this appeal.  For ease of reference, the offences and the respective sentences imposed, which form the subject of this appeal, are set out in the table below:

File Number & Date	Offences	Sentence imposed after discount for guilty plea
AMC-20-5022 12/01/2019	Making off without payment Maximum Penalty: Imprisonment for 2 years[1]	5 months reduced by 40% to 3 months (cumulative)
AMC-20-9841 05/10/2019	Unlawful possession Maximum Penalty: $10,000 or imprisonment for 2 years[2]	5 months reduced by 40% to 3 months (cumulative)
AMC-19-10114 08/10/2019	Deceive another to benefit self – Basic (two counts) Maximum Penalty: Imprisonment for 10 years[3]	10 months reduced by 40% to 6 months (cumulative)
AMC-20-3866 23/02/2020	Dishonestly deal with property without consent – Basic (five counts) Maximum Penalty: Imprisonment for 10 years[4]	10 months reduced by 30% to 7 months (cumulative)
AMC-20-5188 18/04/2020	Damage building or motor vehicle (not graffiti or unknown) – Basic Maximum Penalty: Imprisonment for 10 years[5] Dishonestly deal with property without consent  – Basic Maximum Penalty: Imprisonment for 10 years[6]	5 months reduced by 30% to 3 months and 2 weeks (cumulative)
AMC-20-5962 03/06/2020	Dishonestly deal with property without consent – Basic (4) (counts 1, 4, 5 and 6) Maximum Penalty: Imprisonment for 10 years[7] Acquire, own or possess ammunition without license or permit (count 2) Maximum Penalty: $10,000 or imprisonment for 2 years[8] Fail to comply with Bail Agreement (count 3) Maximum Penalty: $10,000 or imprisonment for 2 years[9] Prescribe a prescription drug without authority (count 7) Maximum Penalty: $10,000 or imprisonment for 2 years[10] Possess equipment to use with controlled drug (count 8) Maximum Penalty: $10,000 or imprisonment for 2 years, or both[11]	In respect of counts 1, 4, 5 and 6: 2 months on each count cumulative (8 months) reduced by 30% to 5 months and 18 days

[1]     Criminal Law Consolidation Act 1935 s 144(1).

[2]     Summary Offences Act 1953 s 41(1).

[3]     Criminal Law Consolidation Act 1935 s 139(a).

[4]     Criminal Law Consolidation Act 1935 s 134(1).

[5]     Criminal Law Consolidation Act 1935 s 85(2).

[6]     Criminal Law Consolidation Act 1935 s 134(1).

[7]     Criminal Law Consolidation Act 1935 s 134(1).

[8]     Firearms Act 2015 ss 31(1) and 31(12).

[9]     Bail Act 1985 s 17(1).

[10]   Controlled Substances Act 1984 s 18(1).

[11]   Controlled Substances Act 1984 s 33L(1)(c).

1. The sentences of imprisonment were ordered to be served cumulatively on a revoked suspended sentence of one month imprisonment,[12] which was to be served concurrently with unperformed community service hours equivalent to 19 days imprisonment.[13]  In total, the Magistrate imposed a head sentence of 28 months and 32 days imprisonment.[14]  A non-parole period of 18 months was fixed.  The sentence was ordered to commence from the date the appellant was taken into custody, that being 3 June 2020.[15]

   [12]Appeal Book at 28.

   [13]   Appeal Book at 28.

   [14]   On 25 May 2021, an order was made correcting the Court Record in MCCHB-20-1660 (being the vehicle for the consolidated files of AMC-20-5022; AMC-20-9841; AMC-19-10114; AMC-20-3866; AMC-20-5834; and AMC-20-5962) to show that the appellant was sentenced to a total head sentence of 28 months and 32 days imprisonment, Certificate of Record SCCRM-21-49.

   [15]   Appeal Book at 31.

2. The appellant relies upon the following grounds of appeal:[16]

   1.The apprehended bias of the Magistrate by virtue of the Magistrate knowing one of the victims on AMC-20-3866; and

   2.That the sentence imposed is manifestly excessive.

   [16] Written Submissions of the Appellant at [5].

   Procedural history

3. On 23 July 2020, the appellant appeared before a Magistrate in respect of the files charging the offences which form the subject of the appeal.  The matters were adjourned and the appellant was remanded to appear on a later date.[17] 

   [17]   Written Submissions of the Appellant at [10(a)].

4. On 14 September 2020, the appellant appeared before the same Magistrate and pleaded guilty to the relevant offences.[18]  The appellant’s antecedents were tendered to the Court and the Magistrate requested that prior to the next hearing the prosecution provide a copy of the allegations and the appellant’s solicitor provide written submissions to the Court.[19] The matters were then listed for sentence before the Magistrate.[20]

   [18]   Written Submissions of the Appellant at [10(b)].

   [19]   Written Submissions of the Appellant at [10(b)].

   [20]   Written Submissions of the Appellant at [10(b)].

5. On 12 October 2020, the appellant appeared before the Magistrate with new legal representation.  The appellant was remanded to appear on a later date for submissions and sentence.[21]

   [21]   Written Submissions of the Appellant at [10(c)].

6. On 21 October 2020, the appellant again appeared before the Magistrate.  At this hearing, the appellant was informed that the matters would now be heard by the sentencing Magistrate.[22]  There was no explanation provided to the parties at any hearing for the change in Magistrate.[23]

   [22]   Written Submissions of the Appellant at [10(d)].

   [23]   Written Submissions of the Appellant at [10(d)].

7. On 27 October 2020, the appellant appeared for the first time before the sentencing Magistrate.  The matters were adjourned for submissions to be heard on a later date.[24]

   [24]   Written Submissions of the Appellant at [10(e)].

8. On 23 November 2020, the appellant appeared again before the sentencing Magistrate and the appellant’s solicitor made submissions on his behalf.  The appellant was remanded to appear on a later date for sentence.[25]

   [25]   Written Submissions of the Appellant at [10(f)].

9. On 17 December 2020, the appellant was sentenced.

   Sentencing remarks

10. In the sentencing remarks, the Magistrate noted that the appellant had offended over a 21-month period from 28 September 2018 to 3 June 2020 (which included some offences that are not the subject of this appeal).[26]The Magistrate initially proceeded with the applications for the enforcement of the breached bond and breach of the community service order.  The Magistrate then turned to deal with ‘General Matters’, including the appellant’s antecedents, which were considered to have been ‘underpinned by strong drug dependency’.[27]  The Magistrate referred to principles of specific and general deterrence and assessed the appellant’s prospects of rehabilitation as ‘poor’.[28]

    [26]   Appeal Book at 26.

    [27]   Appeal Book at 27.

    [28]   Appeal Book at 27.

11. The Magistrate then considered the appellant’s ‘Personal Matters’, including his family history, accommodation and employment.  The Magistrate referred to the appellant’s remorse, which was accepted as genuine.[29]

    [29]   Appeal Book at 27.

12. Before turning to sentence the appellant for the relevant offences, the Magistrate indicated that one of the victims of the appellant’s offending was known to the Magistrate.  In relation to that victim, the Magistrate said:[30]

    HH:

    …, can I say at the outset that in relation to file number AMC-20-3866, one of the victims in that matter is a person known to me.  I indicated this to the co-accused when I sentenced him and there was no issue.  It is not a person who is close to me but I raised that for the sake of completeness.

    SOLICITOR:

    I understand, and for completeness, I suppose Mr Mahon’s conduct was slightly different from the co-accused in that matter.

    HH:

    Yes, that is right. I will note there is no difficulty in relation to that.

    [30]   Appeal Book at 27.

13. The Magistrate then proceeded to impose sentence on the offences charged on each file.  As to the circumstances of the offending which is the subject of file AMC-20-3866, on 23 February 2020, the appellant committed five counts of theft in the suburb of Glenunga.[31]  The appellant had become aware that an acquaintance was at a party and had stolen a bank card and some mobile telephones.[32]  The appellant was travelling in a vehicle (of which he was not the driver) and shortly after collecting his acquaintance from the party, the appellant was stopped by police.[33]  Three telephones and a credit card stolen from the party were located in the vehicle in which the appellant was travelling.[34]  The credit card had been used by the appellant at a service station at Kingswood on two occasions, spending $198 in total.[35]

    [31]   Appeal Book at 11-12.

    [32]   Appeal Book at 30.

    [33]   Appeal Book at 30.

    [34]   Appeal Book at 30.

    [35]   Appeal Book at 30.

14. As to these offences, the Magistrate imposed a sentence of 10 months imprisonment.  The Magistrate attributed two months imprisonment to each of the five counts.[36]  On account of the appellant’s guilty plea, the sentence was reduced to seven months imprisonment.[37]  This sentence was to be served cumulatively on other sentences.[38]  An order for compensation in the amount of $297 was also made.[39]

    [36]   Appeal Book at 30.

    [37]   Appeal Book at 30.

    [38]   Appeal Book at 30.

    [39]   Appeal Book at 30.

    Ground 1 - Apprehended Bias

15. The appellant contends there was an apprehension of bias on the part of the Magistrate because first, the Magistrate indicated that a victim of the offending was a person known to the Magistrate, and second, the apprehension of bias was exacerbated by the appellant’s files having been administratively transferred, without explanation, from the initial Magistrate hearing the files to the sentencing Magistrate.

16. In respect of the second point, it appears that the files were transferred from the initial Magistrate to the sentencing Magistrate because the sentencing Magistrate had previously sentenced the appellant’s co-offender.[40]  I do not consider there is any merit in the second point raised by the appellant.

    [40]   Appeal Book at 27.

17. In any event, the appellant does not suggest the sentencing Magistrate demonstrated actual bias against him. 

18. The principles in respect of the disqualification of a judicial officer for apprehension of bias are well settled.  Where a question arises as to the independence or impartiality of a judicial officer, the governing principle is that, subject to the qualification of waiver, a judicial officer is disqualified if a fair‑minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the matters.[41]

    [41]   Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

19. The application of the principle requires two steps. First, it requires the identification of what might lead a judicial officer to decide a case other than on its legal and factual merits.[42]  The relevant circumstance giving rise to an apprehension of bias may be by reason of a judicial officer’s conduct or interest in the proceedings or association with a party to the proceedings, or some other circumstance which suggests they might not bring an impartial mind to the issue.[43]  Second, there must be a logical connection between the circumstance giving rise to the appearance of bias and the possibility of the judicial officer’s departure from impartial decision-making.[44]

    [42]   Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

    [43] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

    [44]   Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

20. As the High Court said in Ebner v The Official Trustee in Bankruptcy:[45]

    It is not only association with a party to litigation that may be incompatible with the appearance of impartiality.  There may be a disqualifying association with a party's lawyer, or a witness, or some other person concerned with the case.  In each case, however, the question must be how it is said that the existence of the "association" or "interest" might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits.  As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an "association" will not suffice to answer the relevant question.  Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.

    [45] [2000] 205 CLR 337 [30] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

21. In this appeal, it is first necessary to consider whether the appellant waived the application of the apprehended bias rule by failing to raise a timely objection when the Magistrate raised their knowledge of one of the victims.

22. During the sentencing hearing, the Magistrate indicated that one of the victims was ‘known’ but was not a person ‘close’ to the Magistrate.[46]  At that time, the appellant’s solicitor took no objection and the transcript reveals that the Magistrate in fact noted there was ‘no difficulty’ in relation to that circumstance.[47]  The respondents contend that the lack of objection by the appellant at that time constitutes a waiver of the application of the apprehended bias rule.

    [46]   Appeal Book at 27.

    [47]   Appeal Book at 27.

23. The issue of waiver of the right to complain of bias was considered by the High Court in Vakauta v Kelly.[48]  That matter involved a personal injuries case, during which the trial judge made statements critical of the evidence of several medical doctors relied upon by the appellant.  Counsel for the appellant at trial did not object to the remarks and made no application for recusal of the trial judge. The trial judge repeated some of those criticisms in respect of one doctor in a reserved judgment in favour of the plaintiff.  The High Court held that by not objecting to the trial judge’s remarks, the appellant had waived any right to appeal against the decision on the basis of what had been said by the trial judge during the hearing.[49]  However, the adverse remarks made in the judgment were held to give rise to an apprehension of bias and displayed a lack of impartiality towards the appellant’s case generally.[50]  The High Court held that as judgment was reserved, the appellant had no opportunity to object, and there was no waiver of the right to object.[51]

    [48] (1989) 167 CLR 568.

    [49]   Vakauta v Kelly (1989) 167 CLR 568 at 573 per Brennan, Deane and Gaudron JJ.

    [50]   Vakauta v Kelly (1989) 167 CLR 568 at 573 per Brennan, Deane and Gaudron JJ, 579 per Dawson J.

    [51]   Vakauta v Kelly (1989) 167 CLR 568 at 579 per Dawson J.

24. The Court stated:[52]

    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.

    [52]   Vakauta v Kelly (1989) 167 CLR 568 at 572 per Brennan, Deane and Gaudron JJ.

25. A less strict approach to waiver is taken in prosecutions for criminal offences.[53]

    [53]   Zanker v Kupsch [2014] SASCFC 13 at [69] per Kourakis CJ citing Vakauta v Kelly (1989) 167 CLR 568 at 577 per Dawson J.

26. In this appeal, the respondents submit that the lack of objection by the appellant’s solicitor constitutes a waiver of the application of the apprehension of bias rule.

27. The difficulty with the respondent’s submission is that the Magistrate’s knowledge of one of the victims was first raised during the middle of sentencing the appellant.  The issue was not raised during the two earlier hearings.[54]  The Magistrate clearly realised one of the victims was a person known to them because it had been raised with the appellant’s co-offender when he was sentenced.[55]  The consequence of the Magistrate not raising the issue at either of the earlier hearings meant that it fell for the appellant’s solicitor to deal with the matter at a time after submissions had already been completed, and whilst the Magistrate was in the course of delivering sentence.

    [54] Affidavit of Mr Dittmar affirmed 10 September 2021 at [9].

    [55]   Appeal Book at 27.

28. The appellant’s solicitor did not ask for a short adjournment to take instructions on whether to raise an objection or make an application for the Magistrate’s recusal.  The appellant’s solicitor in proceeding as he did was not acting on his client’s instructions.[56]  Further, the Magistrate did not clarify or explain the Magistrate’s association with the victim, which may have potentially resolved the situation.

    [56] Affidavit of Mr Dittmar affirmed 10 September 2021 at [7].

29. It would have been preferable for the Magistrate to raise the issue at a hearing prior to sentencing to afford the appellant’s solicitor greater opportunity to consider the legal position and take instructions from his client as to whether to raise an objection and/or make an application for recusal.  It was incumbent on the appellant’s solicitor to pause and take some instructions from his client and possibly obtain some advice on the issue.

1. I acknowledge that in a busy Magistrates Court list such matters can be overlooked by a Magistrate until late in proceedings.  It can also be difficult for a solicitor to raise an issue such as an objection or application for recusal for apprehended bias during the course of the Magistrate’s sentencing remarks, given the emphasis placed by the Court on expediency.  However, in the circumstances of this case, it was necessary for the appellant’s solicitor to ask for time to obtain instructions from the appellant.  For those reasons, I am satisfied that the appellant did not waive his right to complain of apprehended bias.

2. As to the substantive issue of whether there was an apprehension of bias, the issue was not properly ventilated before the Magistrate.  All that is apparent from the record is that one of the victims was a person known to the Magistrate.  The extent and nature of their association is unclear.  It is impossible to say on the material before this Court whether a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to sentencing the appellant.

3. Nonetheless, the sentencing process miscarried by reason of the Magistrate raising the issue so late in proceedings and the appellant’s solicitor not obtaining instructions as to whether to raise an objection or make an application for recusal.

4. The matters will be remitted to another Magistrate for resentence.

   Ground 2 - manifestly excessive

5. I do not need to consider this ground of appeal given my decision on the first ground.  

   Orders

6. The appeal is allowed.  The sentences on the files which are the subject of the appeal are quashed.  The matters are remitted to another Magistrate for sentence.