Milsom v R

In the case of Milsom v R, the applicant appealed against his sentence following a guilty plea to a charge of robbery in company while armed with an offensive weapon. The primary issues before the court were whether the sentencing proceedings had miscarried due to irregularities in the judge's conduct, and if the principles of procedural fairness had been observed. The applicant contended that the sentencing judge's conduct had been inappropriate and had amounted to apprehended bias.

The court examined several instances where the sentencing judge had intervened in the proceedings, such as cross-examining the applicant, requesting specific documents, and communicating with counsel outside the presence of the applicant. The court considered whether these actions constituted a breach of procedural fairness and whether they demonstrated apprehended bias. The applicant argued that these irregularities led to an unfair outcome and necessitated a re-hearing of the sentence by another judge.

In evaluating the applicant's claims, the court noted the importance of maintaining the adversarial system, where the judge must not intrude upon the roles of counsel. The court found that the sentencing judge's actions, including the revocation of bail without application, refusal to disqualify himself despite an application for apprehended bias, and inappropriate communications with counsel, constituted significant procedural irregularities. These actions created an impression that the judge had predetermined the sentence and was seeking justifications for it, rather than considering all factors impartially.

The court concluded that the irregularities in the sentencing proceedings were substantial enough to undermine the fairness of the process. It found that the applicant had been denied procedural fairness and that the sentencing judge's conduct demonstrated apprehended bias. Consequently, the court determined that the sentence proceedings should be re-heard by another judge to ensure a fair outcome.