McFarlane v The King - [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

By an application filed on Friday, 13 October 2023, the appellant seeks my disqualification on the ground of apprehended bias.
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 the conduct of that hearing furnishes the requisite basis for my disqualification from sitting on tomorrow’s murder appeal. In that appeal the appellant contends that his conviction for murder is unreasonable and unsupported by the evidence within s 158(1)(a) of the Criminal Procedure Act 1921 (SA) (the CPA).
The hearing of the civil matter before the Court of Appeal on 27 April 2023 involved the same appellant. At that time he was unrepresented. The appellant applied to set aside decisions made by the District Court in 2011 and by the Full Court in 2013 on the basis that those decisions were vitiated by fraud.[1] The application was dismissed.[2]
[1] Relying on the jurisdiction addressed by the High Court in Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165. See also Flowers v Finlayson (No 2) [2023] SASCA 12.
[2] McFarlane v Reffold [2023] SASCA 44 (Livesey P and Bleby JA).
Relying upon well‑known authority,[3] it is now submitted 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.
[3] Livesey v NSW Bar Association (1983) 151 CLR 288, 293-294; Webb v The Queen (1994) 181 CLR 41, 67-68 (Deane J, in dissent as to outcome); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[9] (Gleeson CJ, McHugh, Gummow and Hayne JJ); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, [17]-[18] (Kiefel CJ and Gageler J); Charisteas v Charisteas (2021) 273 CLR 289, [11].
However, and quite apart from the application for disqualification, the solicitor for the appellant filed an affidavit this morning advising that two witnesses claim to have observed during the murder trial that the investigating police officer walked into the jury room in the Port Augusta Court complex while the jury was in the jury room. Having reported the matter to the relevant authorities five months ago, the investigation into this allegation is not yet complete. The appellant asks that the appeal not be finally determined until this issue has been fully investigated and resolved.
This morning I requested counsel for the Director of Public Prosecutions (SA) (the Director) to inquire how long the investigation is likely to take. This afternoon he advised that it is estimated that the investigation will be completed in ninety days.
These reasons incorporate and supplement those that I gave ex tempore for deciding to dismiss the disqualification application and adjourn the murder appeal.
The investigation concerning alleged interference with the jury
It is appropriate to deal with the second issue first. Senior counsel for the appellant made it clear that it was appropriate for me to address any issue concerning the hearing and listing of the murder appeal notwithstanding the disqualification application.
If established, the allegation that the investigating police officer came into contact with the jury is capable of giving rise to a miscarriage of justice within the meaning of s 158(1)(c) of the CPA with the result that, on that account alone, the conviction may be quashed and a retrial ordered.[4]
[4] See for example Kingston v The Queen [2022] SASCA 90; Tipping v The King (No 2) [2023] SASCA 17; Ford v The King [2023] SASCA 117.
The appellant nonetheless asks that his appeal proceed in a piecemeal fashion. The most important reason is that if the appellant succeeds with his contention that the verdict is unreasonable or unsupported, he has sought a substituted acquittal pursuant to s 158(3) of the CPA. If he succeeds there may be no need to address the interference allegation. In addition, the appellant submits that his age, that he suffers from autism and that he is presently imprisoned support this approach.
Accordingly, the appellant seeks a direction that the existing ground of appeal be heard and determined but, if he is wholly unsuccessful, he asks that final orders dismissing the appeal not be pronounced until after the investigation into the suspected interference with the jury has been resolved.
Whilst the appellant’s approach is understandable, it must be rejected. It is undesirable that an appeal involving a murder conviction be approached in a piecemeal fashion. That is especially so where a serious allegation concerning suspected interference with the jury has not yet been resolved. It is appropriate to adjourn tomorrow’s appeal to enable the investigation to be completed.
If it transpires that the investigation is completed in a manner that does not resolve the matters of concern to the appellant, then the legal representatives of the appellant will be free to consider obtaining evidence.
Accordingly, this appeal will be adjourned to a hearing before the Court of Appeal on Monday, 15 April 2024. Depending on the course of the investigation earlier mentioned, the appellant has liberty to bring in amended grounds of appeal on notice to the office of the Director.
The disqualification application
The appellant emphasised that the outcome of the civil hearing on 27 April 2023 is not challenged. In the course of detailed submissions which were helpfully supplemented by a written outline, Mr CSL Abbott KC for the appellant pointed to four matters about the hearing on 27 April 2023 which it is said gave rise to the requisite apprehension.
The four matters were: (1) that the hearing on 27 April 2023 proceeded without the appellant having pages of a transcript which were attached to a written submission delivered by counsel for the respondent; (2) that the appellant was unable to provide a substantive response to the written submissions made by counsel for the respondent; (3) that counsel for the respondent gave evidence from the bar table during the hearing and, most importantly; (4) that the hearing was unfair because the appellant was unrepresented, affected by autism, in some physical pain and unable to properly present his case.
It is submitted that, as a result, the appellant was treated unfairly and there arises the inference, which is not unreasonable, of the potential for my continued antipathy toward the appellant to subsist in connection with the hearing of the murder appeal.
In a related submission the appellant contends that the determination of a disqualification application made to one of three judges in a multi‑member appeal court should initially be decided by that judge. If that judge dismisses the application, it must be considered by the whole coram because the question is ultimately one going to the jurisdiction of the Court of Appeal.[5]
[5] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 (QYFM), [57] (Kiefel CJ and Gageler J), [66] (Gordon J).
For the Director it is submitted that all of the problems about which the appellant complains were peculiar to the particular hearing in April 2023, especially that the appellant was then unrepresented. Because the problems identified will not re-occur, and because the appeal concerns a different subject matter which will be addressed with the benefit of competent legal representation, it is speculative to suggest that the appeal hearing will be unfair if I remain a member of the coram.
With respect to counsel for the Director, those submissions do not directly meet the case made by the appellant.
The essence of the appellant’s contention is that a reading of the transcript of the hearing on 27 April raises a basis for fearing if not concluding that I will be unable to determine the murder appeal with that degree of neutrality required to dispassionately weigh the various legal, factual and policy considerations raised and that I will likely decide the matter adversely to the appellant.[6]
[6] Isbester v Knox City Council (2015) 255 CLR 135, [63] (Gageler J). However the appellant also submitted that whether I would or would not decide the murder appeal in his favour was not relevant.
The determination of the application requires an assessment of the matters raised by the appellant. It is necessary to deal with them in turn.
First, that the appellant did not have some pages of a transcript from a trial heard well over a decade before is of no moment. The transcript was appended to support a handful of factual assertions made by counsel for the respondent. He had been counsel at the trial as well as in the hearing before the Full Court.
What occurred during the hearing on 27 April was that I asked the appellant a number of questions in order to attempt to identify the real issues, especially what matters of fact remained in dispute. It had been difficult to understand the appellant’s case based on a reading of his written material. In answer to my questions, the appellant demonstrated a remarkable capacity to recall what had occurred during the District Court trial in 2010 and he did not need the transcript in order to agree with the factual propositions that the respondent’s counsel had made by reference to it. It transpired that there were no matters of fact that were in dispute that were the subject of the pages of transcript.
Secondly, concerning the appellant’s opportunity to respond to counsel for the respondent, a reading of the transcript demonstrates that the appellant did so ably and at some length. He had prepared what he wanted to say in response, and he was given an opportunity to read out what he had prepared. He asked to proceed in that way because he had difficulty, as he described it, “chopping and changing”. The appellant did not at any stage say that he required an adjournment or that he was unable to participate in the hearing.
Thirdly, concerning the assertion that the respondent’s counsel gave evidence from the bar table, the affidavit evidence on which the appellant relied included correspondence from the respondent’s counsel to the Legal Practitioner’s Conduct Board in 2014 as well as an extract from counsel’s fee note for the trial. After the trial the appellant made a number of allegations of professional misconduct and fraud against counsel and the solicitor for the respondent based on what he had learned during the taxation of the costs he had been ordered to pay. Briefly, the issue of concern to the appellant was whether counsel and his instructing solicitor had engaged in misconduct by obtaining information from the appellant’s conveyancer before the trial and without making discovery.
In the passage of the transcript of the appeal hearing in April 2023 which is now attacked by the appellant on this hearing, counsel was explaining the inferences to be drawn from the information contained in the appellant’s affidavit. Counsel said, in effect, that he had not charged for reading the conveyancing file because he had not done that. A review of the whole of the transcript demonstrates that both the appellant and counsel for the respondent may at times have strayed from the evidence which was before the Court of Appeal in order to explain the events which had occurred more than a decade earlier. There was no unfairness to either party in proceeding in that way.
On this point it is also relevant to observe that any question of misconduct by counsel for the respondent and his instructing solicitor was not relevant to the determination of the appellant’s application to set aside for fraud. The point of the High Court’s ruling in Clone Pty Ltd v Players Pty Ltd (In Liq) was that professional misconduct could not be equated to fraud.[7] That was what lay behind the following observation made in the ex‑tempore remarks given on 27 April 2023:[8]
The applicant’s unexplained delay is reason enough to dismiss the application.
Putting delay to one side, the applicant may be aggrieved that information confidential to him was provided to the respondent’s legal advisers without his consent. Though that inference is a possibility, the applicant has provided no particulars or evidence to support it. The evidence goes no further than that the respondent’s legal advisors saw documents from and spoke with a representative of Ms Schreiber’s conveyancing firm. The applicant has not demonstrated that he can prove that any of this impugned conduct involved actual fraud affecting the trial or the appeal.
[7] Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165.
[8] McFarlane v Reffold [2023] SASCA 44, [29]-[30].
Finally, as for the question of unfairness in the conduct of the hearing generally, the appellant based his argument on various passages in the transcript, but particularly a passage where the appellant referred to his autism, his need to write things out and the problems he encountered with stress.[9] This, together with the reference in the transcript to the appellant kneeling whilst participating in a video‑link from a video suite in gaol, demonstrated, it was submitted, that the hearing on 27 April 2023 was unfair and that it should not have proceeded.
[9] Transcript of Proceedings, McFarlane v Reffold (Supreme Court of South Australia, Court of Appeal, SCCIV-11-1527, Livesey P and Bleby JA, 27 April 2023), 25-26.
It is relevant here to point out that at earlier callover hearings senior counsel suggested that an application to disqualify would be made because of my refusal to grant an adjournment. Today counsel conceded that no adjournment application was ever made or refused and that the matter was, as a result, “more nuanced”.[10]
[10] It was not suggested that the hearing became unfair because of any failure to explain the issues to an unrepresented litigant, cf Gassy v The King [2023] SASCA 90.
With respect to the submissions made today, the transcript provides no support for them. In the particular passage relied upon, the appellant was responding to a question I asked about the conduct of the trial more than a decade before. It was in that context that the appellant described his problems with autism. He was in that passage explaining why something was not done by him during that trial (although he was represented by counsel during that trial). The appellant was not suggesting that he was encountering difficulty during the hearing on 27 April 2023. The submission misunderstands what was occurring at that point in the hearing.
In all of these circumstances it cannot be said that a reading of the transcript of the hearing on 27 April 2023 provides any 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. As has been pointed out many times, the requisite test is concerned with whether the circumstances give rise to a reasonable apprehension that a judge might not decide a case impartially, and without prejudice, rather than whether the judge might decide the case adversely to a party.[11] The application must be dismissed.
[11] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).
Four further points
Four further points should be made.
First, the hearing on 27 April 2023 was a hearing in which I sat with Justice Bleby. It is said that the requisite apprehension does not arise in respect of Justice Bleby because he is not recorded as asking any questions of the appellant and he was therefore not involved in the matters about which complaint is now made. As a matter of principle I think that must be wrong. This is not a case where it is suggested that anything said by me gives rise to the requisite apprehension. The complaint is, it is said, more nuanced and relates to the fairness of the conduct of the hearing generally. Regardless whether a judge asks questions during a hearing, the presence of that judge must be equated to involvement in the hearing. If the hearing was unfair to the extent that it amounts to a denial of procedural fairness or gives rise to ostensible bias then that affects the Court and all judges involved in the hearing.
Nonetheless, the appellant’s attitude demonstrates, at the very least, that he is prepared to waive any question of bias on the part of Justice Bleby.[12]
[12] Vakauta v Kelly (1989) 167 CLR 568.
Secondly, the appellant did not suggest that the decision announced on 27 April 2023 was wrong. It was not suggested that there was a denial of procedural fairness associated with the hearing on 27 April 2023. In a related submission, the appellant disclaimed any suggestion that the decision in the civil case was vitiated by bias. It was submitted that any concern about the conduct of that hearing was not material to the issues determined on 27 April 2023.

There is a real tension in that approach. I doubt whether it is correct. The point of the present application is that the requisite apprehension is said to have arisen in the course of the 27 April 2023 hearing and, as a result, it can be transposed to the next. Where the complaint is that the hearing was conducted in a manner that reveals unfairness to the point of antipathy it is hard to see why that does not have ramifications for that hearing and the court’s determination. If the requisite apprehension had arisen, it is difficult to see how it did not undermine the determination made on 27 April 2023.
Thirdly, no objection or complaint was made by the appellant about the conduct of the hearing on 27 April 2023. Ordinarily that would amount to a waiver of any right to take a point concerning bias. Nonetheless in this case the issue was raised at earlier callovers (albeit as an issue related to the refusal to grant an adjournment) and it was not suggested that any waiver of the point during the 27 April hearing affected or undermined the appellant’s capacity to raise it now.[13]
[13] See Police (SA) v Mahon (2022) 141 SASR 374, [43]-[60] (Livesey P, Lovell and Doyle JJA).
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.