McFarlane v The King

Case [2023] SASCA 123

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MCFARLANE v THE KING

[2023] SASCA 123

Judgment of the Honourable President Livesey  (ex tempore)

18 October 2023

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

The appellant is appealing against his conviction for murder.  The appellant applied for President Livesey to disqualify himself from hearing the appeal on the ground of apprehended bias.

The apprehended bias was said to arise from the conduct of a previous civil appeal in which the appellant was unrepresented before President Livesey and Justice Bleby.

In addition, the appellant asked that the appeal be determined in a piecemeal fashion pending the completion of an investigation into a claim that the investigating police officer walked into the jury room in the Port Augusta Court complex while the jury was in the jury room during the trial.

The Court held (dismissing the application and adjourning the appeal):

1.It is undesirable that an appeal involving a murder conviction be approached in a piecemeal fashion.  The appeal will be adjourned to a hearing before the Court of Appeal on Monday, 15 April 2024.

2.Depending on the course of the investigation, the appellant has liberty to bring in amended grounds of appeal on notice to the office of the Director.

3.The transcript of the civil appeal proceedings provides no basis for concluding that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the appellant’s appeal against his conviction for murder.

Criminal Procedure Act 1921 (SA) s 158, referred to.
Charisteas v Charisteas (2021) 273 CLR 289; Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Flowers v Finlayson (No 2) [2023] SASCA 12; Ford v The King [2023] SASCA 117; Gassy v The King [2023] SASCA 90; Isbester v Knox City Council (2015) 255 CLR 135; Kingston v The Queen [2022] SASCA 90; Livesey v NSW Bar Association (1983) 151 CLR 288; McFarlane v Reffold [2023] SASCA 44; Police (SA) v Mahon (2022) 141 SASR 374; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Re JRL; Ex parte CJL (1986) 161 CLR 342; Tipping v The King (No 2) [2023] SASCA 17; Webb v The Queen (1994) 181 CLR 41, considered.

MCFARLANE v THE KING

[2023] SASCA 123

Court of Appeal – Criminal:  Livesey P

LIVESEY P (ex tempore):

Introduction

  1. By an application filed on Friday, 13 October 2023, the appellant seeks my disqualification on the ground of apprehended bias. 

  2. The disqualification application is unusual in that what is targeted is my conduct of the hearing of a civil matter on 27 April 2023. It is contended that…

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McFarlane v The King [2023] SASCA 123
Case
[2023] SASCA 123
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CaseChat Overview and Summary

In *McFarlane v The King*, the appellant sought the disqualification of a judge from hearing an appeal. The core of the dispute concerned an alleged apprehension of bias on the part of the judge. The matter came before Livesey Ex Tempore P in the High Court.

The primary legal issue before the Court was whether there was a reasonable apprehension of bias, necessitating the judge's disqualification. A secondary issue, arising from recent High Court authority, concerned the appropriate procedure for dealing with such applications, particularly when they might be renewed before the full bench.

Livesey Ex Tempore P considered the principles governing applications for judicial disqualification. His Honour noted that the application would not automatically require the full bench to adjudicate unless the appellant made it clear that the application was to be pressed before the whole coram. After consulting with the head of jurisdiction and other members of the coram, and in light of the appellant's position, the application for disqualification was dismissed. The hearing of the appeal was adjourned to a later date.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, the High Court’s recent decision in QYFM suggests consultation with the head of jurisdiction and the other members of the coram, especially as the application may be renewed before the whole of the coram.[14] I have done that. Nonetheless it will be necessary for the appellant to make it clear if the application is to be pressed before the whole of the coram. The making and refusal of a disqualification application will not, without more, be treated as requiring the whole of the coram to consider and adjudicate on it.[14] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural (2023) 97 ALJR 419, [100] (Gordon J).Conclusion The hearing of the appeal listed for tomorrow will be adjourned to 15 April 2024. If further directions are required in connection with any new ground of appeal then they can be sought. The application for disqualification is dismissed.

Ratio Decidendi

Legal Principle Established

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