Minister for Home Affairs v Benbrika (No 2)
[2021] VSC 684
•21 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2021 03214
| MINISTER FOR HOME AFFAIRS | Plaintiff |
| v | |
| ABDUL NACER BENBRIKA | Defendant |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 October 2021 |
DATE OF JUDGMENT: | 21 October 2021 |
CASE MAY BE CITED AS: | Minister for Home Affairs v Benbrika (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 684 |
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COURTS AND JUDGES – Apprehended bias – Judge who previously made a continuing detention order (‘CDO’) under the Criminal Code 1995 (Cth) allocated to hear a review of the CDO less than 12 months after its making – Strong adverse findings made in CDO decision as to risk posed by the defendant and as to his credit – Application for recusal – Dispute as to true nature of test on review – Uncertainty as to knowledge to be imputed to fair-minded lay observer as to the test – Defendant’s application relied principally on apprehended bias – Fallback position that judge should decline to hear review based on the prudent course discussed by High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Judge declined to make definitive decision on recusal application, in circumstances where it was determined it would be prudent not to sit in any event – Decision not to sit on review.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Berger QC with Mr M Hosking and Ms A Lord | Australian Government Solicitor |
| For the Defendant | Mr D Star QC with Mr J Hartley | Doogue + George Defence Lawyers |
HIS HONOUR:
Introduction
On 24 December 2020, I made an order that the defendant be subject to a continuing detention order (‘CDO’) under s 105A.7(1) of the Criminal Code Act 1995 (Cth) (‘the Code’). The effect of the order was to commit the defendant to detention in a prison for the specified period of three years.
By operation of law,[1] the plaintiff was required to apply to the Supreme Court for a review of the CDO before 24 December 2021. In accordance with that requirement, on 3 September 2021, the plaintiff applied for a review of the CDO.
[1]The Code, s 105A.10(1A).
The review is listed for hearing on 8 December 2021, and I am allocated as the judge to hear the review.
The defendant seeks to have me disqualify or recuse myself from hearing and determining the review on the basis of apprehended bias.
Chronology
The defendant was one of 13 men charged with terrorist offending committed in the period 1 July 2004 to 8 November 2005. He was found guilty by a jury in December 2008 of knowingly being a member of a terrorist organisation, directing the activities of a terrorist organisation, and possession of a thing connected with preparation for a terrorist act. On 3 February 2009, the defendant was sentenced to a total effective sentence of 15 years’ imprisonment with a non-parole period of 12 years.[2] The defendant was never released on parole. His sentence expired on 5 November 2020. Prior to that, on 27 October 2020, I made an interim detention order (‘IDO’). As indicated already, I made the CDO on 24 December 2020. The applicant has been detained in custody on the force of the IDO and then the CDO since the end of his sentence.
[2]On appeal, the conviction of the defendant on the possession charge was set aside and a retrial ordered. The total effective sentence remained the same. A retrial did not proceed.
The facts of the defendant’s offending, a chronology of events following his conviction and sentence, the evidence advanced in the application for the CDO and my reasons for making the CDO are set out in some detail in the decision of the Court.[3]
[3]Minister for Home Affairs v Benbrika [2020] VSC 888 (‘the CDO judgment’).
On 2 October 2020, the defendant applied for an order reserving a question for the consideration of the Court of Appeal concerning the validity of the legislative scheme for CDOs contained in the Code. I reserved the question on 8 October 2020. On 30 October 2020, on the application of the Attorney-General of the Commonwealth, the question was removed into the High Court. On 10 February 2021, the High Court handed down its judgment confirming the validity of the legislative scheme.[4]
[4]Minister for Home Affairs v Benbrika [2021] HCA 4 (‘Benbrika’).
Following the making of the CDO, the defendant exercised his right of appeal to the Court of Appeal by way of a rehearing.[5] The appeal is listed to be heard on 26 October 2021.
[5]The Code, s 105A.17(2).
The submissions in brief terms
The Court was assisted by written and oral submissions of a high standard by counsel on both sides. The submissions were supported by reference to a large number of the authorities in the area which were provided to the Court by counsel. My summary of the submissions will be brief, and will perhaps not do justice to the submissions actually advanced. Nor will I summarise all of the legal aspects upon which submissions were made.
The defendant’s submissions
Mr Star QC, who with Mr Hartley appeared for the defendant, applied for me to recuse myself on the basis of the principle of apprehended bias, founded on a number of specified findings contained in the CDO judgment. The particular findings are set out in the defendant’s outline of submissions. The findings concerned the future risk of the defendant committing a serious Part 5.3 offence and the matter of his credit insofar as he had claimed a change in ideology.
It was submitted, on the authority in particular of British American Tobacco Australia Services Limited v Laurie,[6] that a fair-minded lay observer might reasonably apprehend, based on my having expressed, in the CDO judgment, clear views about questions of fact being live and significant issues in the review, and about the credit of the defendant, that I might not be open to persuasion towards a different conclusion in the review proceeding.
[6](2011) 242 CLR 283 (‘Laurie’).
Mr Star set out the steps in the test for apprehended bias as indicated by the authorities, namely:
i. The identification of the factor which it is hypothesised might cause a question to be resolved other that as a result of a neutral evaluation of the merits;
ii. Articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits; and
iii. An assessment of the reasonableness of the apprehension of that deviation being caused by that factor.
Mr Star submitted that it is clear on a proper application of the principle enunciated in Laurie and numerous other cases that I should not hear and determine the review by reason of the principle of apprehended bias.
In the alternative, or as a fallback position, Mr Star submitted that even if I was against him on his primary submission as to apprehended bias, I should make a decision not to sit in the case in accordance with the prudent approach considered by the majority of the High Court at [20] in Ebner v Official Trustee in Bankruptcy,[7] as further discussed by the Court of Appeal in Mandie v Memart Nominees Pty Ltd.[8]
[7](2000) 205 CLR 337 (‘Ebner’).
[8][2017] VSCA 177 (‘Mandie’).
Mr Star addressed detailed submissions as to the knowledge and attributes of the hypothetical lay observer in the circumstances of this case and the nature of the decision that would be required on the review. On the latter score, he drew the Court’s attention to the description by the plurality of the High Court in Benbrika of the power conferred by s 105A.5 of the Code to detain a terrorist offender in prison after the completion of sentence as being ‘an extraordinary power’,[9] and the status of the annual review as one of the important safeguards to this power. Mr Star submitted that the reasonable lay observer would understand the extraordinary nature of the power to make a CDO and would understand that the review proceeding is not ordinary civil litigation. Mr Star compared the review provisions with those relevant to the making of a CDO and described them as ‘relevantly identical’.[10] The review is not limited to a situation in which there has been a change in circumstances. The Minister, upon whom the onus of proof rests, will be required to satisfy the same test which applied at the time the CDO was made. Relying on the authorities to which he took the Court, Mr Star submitted that in the review, the earlier findings of the Court would not bind the Court. It would be open to the defendant to challenge any previous findings on the statutory question. As he put it, ‘everything’s up for grabs’.[11]
[9]Benbrika [38].
[10]Transcript 64.
[11]Ibid 71.
As for the knowledge to be attributed to the reasonable fair-minded observer, Mr Star submitted, first, that such an observer would understand the fundamental nature of the provisions in question, and the extraordinary power with which they are concerned. Secondly, the observer would be aware of the statutory tests for the making and review of the CDO. Thirdly, it would flow from that that the observer would understand, the language of the statutory question being the same, that it would involve the same statutory question being decided by the same judge within a short period of time. Fourthly, it would be understood by the reasonable lay observer that there would be the same or very similar live common and significant issues to be decided on the review as had been the case a year earlier. Whilst Mr Star acknowledged that there may be good reason why it may not be appropriate to rule now as to the nature of the test on review, the question of apprehended bias should be decided on the basis that his interpretation of the test on review may be correct.
Finally, Mr Star submitted that the fair-minded lay observer should be assumed to have read the CDO judgment, containing the various statements and conclusions upon which the application for recusal was based.
Mr Star submitted that the reasonable lay observer imbued with the knowledge discussed above, and conscious of the extremely strong adverse findings in the judgment as to the risk posed by the defendant and as to his credit, in a decision which was not a ‘lineball’ one,[12] might reasonably apprehend that I might not bring an impartial mind to the resolution of the question in the review proceeding.
[12]Ibid 80.
Mr Star submitted that the proper working of the legal system would require me to recuse myself on the basis of apprehended bias. In the alternative, as indicated already, it was submitted that even were I not satisfied that apprehended bias had been made out, this would be a case in which it would be prudent for me not to sit in light of the extraordinary nature of a CDO, the importance of the review, and the waste of time which would be involved if an appellate court in future took a different view.
The plaintiff’s submissions
At the heart of the submissions of Mr Berger QC, who appeared with Mr Hosking and Ms Lord for the plaintiff, was the contention that on a review of the CDO, the Court must take as its starting point the fact that when the CDO was made, the Court was satisfied of the matters in s 105A.7(1) of the Code. The focus of the review will be on whether in light of the evidence in the review at the time, the Court is satisfied of the matters in s 105A.12(4) of the Code.
On this score, that is, the proper scope of the review, the plaintiff and the defendant were strongly at odds.
Mr Berger took the Court through the relevant principles. It would be correct to say that in most respects, the two sides were at one as to these. The principles are set out in the many authorities to which I was taken by both sides. I will not detail them here.
Mr Berger emphasised amongst the principles of law the proposition that the relevant question is not whether a fair-minded lay observer might reasonably apprehend that I might decide the review adversely to the defendant, but rather, whether such a person might reasonably apprehend that I might approach the review so committed to a conclusion already formed as to be incapable of alteration of that view, no matter the evidence or arguments advanced.
Mr Berger submitted that the relevant principles are to be applied bearing in mind that an objection to a judge hearing a matter ‘should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case’.[13] An allegation of apprehended bias must be ‘firmly established’[14] and a conclusion of apprehended bias ‘is not to be reached lightly’.[15] He further submitted, in light of the defendant’s reliance upon the prudent approach discussed in Ebner, that it would not be appropriate for recusal to occur in a case of ‘real doubt’.
[13]Ebner [8].
[14]Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).
[15]CNY17 (2019) 268 CLR 76.
In support of the central contention referred to in [20] above, Mr Berger submitted that the nature of the powers the Court would be permitted to exercise on the review, namely to affirm, revoke or vary the CDO, confirm what is apparent from the text and structure of Division 105A, that is, that the review of a CDO is not the same as an application for a new CDO. As he put it, had the two processes been intended to be equivalent, the Parliament could simply have provided that a CDO cannot be in force for longer than 12 months. He submitted that subject to any new evidence relating to the period before the CDO was made, the focus of the review will be on facts and circumstances arising since the CDO was made.
Mr Berger further submitted that the doctrine of issue estoppel, whilst not governing the outcome of the review, would prevent the parties to the review from denying the ultimate facts necessary to the making of the CDO.
In light of these matters, Mr Berger submitted that it is unsurprising that frequently, orders are made and subsequently reviewed, even more than once, by the same judge in comparable statutory contexts.
Mr Berger submitted that the defence submissions fail to grapple with the difference between an application for a CDO and the review of a CDO. The issues that will arise at the review are not precisely the same as those on the original application.
He submitted that the fair-minded lay observer is taken to be aware of the nature of the review process, in which the starting point must be that when the CDO was made, the Court was satisfied of the matters in s 105A.7(1), and the focus of the review will be on whether, in light of facts and circumstances arising since the CDO was made, the Court is satisfied of the matters in s 105A.12(4).
Mr Berger submitted that the particular statutory context in which a review takes place sets this case apart from those in which courts have found that previous finding made by a judge about a particular issue give rise to a reasonable apprehension of bias. In the circumstances, it cannot be said a fair-minded observer might reasonably apprehend, by reason of the relevant findings I made in the CDO judgment, that I might approach the review with something less than an impartial mind.
Rather, as he put it, the fair-minded observer would appreciate that the findings I made in the CDO judgment would represent the starting point for any member of the Court hearing and deciding the review, and that the task for the Court on the review would not be to revisit those findings, but to determine whether, at the time of the decision on the review, in light of facts and circumstances arising since the CDO was made, the Court is satisfied of the matters in s 105.12(4).
Mr Berger submitted that there was nothing in the CDO judgment which would indicate that I might approach the evidence with anything other than an impartial and unprejudiced mind.
Mr Berger distinguished the position in this case with those which applied in Laurie and Livesey v The New South Wales Bar Association.[16] In each of those cases, what was in issue was a conclusion or view of a judge as to an historical fact; a question which was fixed in time. By contrast, in this case, the unacceptable risk posed by the defendant is not an historical fact. It is very much a fluid question about which a decision can be made. The fact that the defendant posed an unacceptable risk as at 24 December 2020 does not mean that he would remain so 12 months later. The fair-minded observer would expect a judge to decide the fluid issue on the material relevant to the issue at the time of the review, not on a past view of that issue.
[16](1983) 151 CLR 288 (‘Livesey’).
Another difference between this case on the one hand, and Livesey and Laurie on the other, is that those cases involved previous findings made in unrelated cases, whereas in this case, the review is a related case to the decision on the CDO.
Insofar as Mr Star relied upon an adverse view having been formed as to the credit of the defendant, Mr Berger submitted that the findings of the Court did not concern the credit of the defendant as a witness, but rather, in circumstances where the defendant did not give evidence, a conclusion based on a weighing of the documentary and expert evidence relevant to the genuineness of his claimed change in ideology. That conclusion was reached on the basis of the evidence at the time when the CDO was made, and says nothing about developments since that time. The conclusion previously reached by the Court would not indicate that I might approach the evidence on review with anything other than an impartial and unprejudiced mind.
Analysis
As my brief summary of the respective submissions may convey, it was the strong contention of counsel on each side that the decision to be made on this application for me to recuse myself from hearing the review is a very clear cut one.
Having carefully considered the matter, I think that unlike the situation in many of the cases upon which reliance was put before me, and indeed, in cases of which I have had personal experience myself, the decision to be made on this application is far from clear cut.
There are a number of complicating features, not the least of which is the fact that the very nature of the test to be applied in the review is strongly in dispute between the parties. As things currently stand, the judge hearing the review will be called upon to decide that issue. I would question whether it would be appropriate for me to make that decision now, almost two months before the review is to be heard, with little knowledge of the evidence likely to be led on the review. The correct answer to the question about the nature of the test on review would, it seems, have a bearing on the knowledge or understanding to be imputed to the hypothetical fair-minded lay observer. As things currently stand, there is uncertainty about this matter.
It is true that I did make strong findings about the risk posed by the defendant at the time of the CDO judgment, and as to the validity or truthfulness of the claims he had made as to a change in his beliefs. That is not to say that such findings by a judge in my position, called upon to decide whether it had been established to a high degree of probability that a person posed an unacceptable risk of committing a terrorist offence if released into the community, would necessarily disqualify the judge from future involvement in a review of a CDO. The type of findings which would justify the making of a CDO would necessarily be forthright ones. Mine certainly were. Whether the findings were correct is subject to future consideration by the Court of Appeal.
The review upon which, as things currently stand, I would embark within twelve months of reaching and expressing those views, is clearly of great importance. It is of note that it will be the first such review to take place under s 105A.12 of the Act. It will occur in the context of an overall case which has already once made its way to the High Court. As things currently stand, there are proceedings listed in the Court of Appeal which may or may not be resolved before the hearing of the review.
In Ebner, the plurality, having discussed the duty resting on judges to exercise their judicial functions, and having emphasised that the objection of a party to a judge sitting should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing the case, noted:
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.[17]
[17]Ebner [20]-[21].
In Mandie, the Court of Appeal, having set out the above passages, stated:
The ‘prudent’ approach described by the High Court is, as the passage above demonstrates, not bounded by any fixed rules or criteria. We were not taken to any case in which an appellate court had reviewed a judge’s decision of this kind. In our view it is potentially misleading to describe the judge as having a ‘discretion’ in these circumstances. In truth, it is a capacity to ‘decide not to sit’, in the exercise of a judge’s view of what is ‘prudent’. It assumes that it has not been established that there is a legal impediment to the judge hearing the case. So understood, a judge’s decision whether or not to sit, there being no legal impediment to doing so, is not readily susceptible to appellate review in the ordinary way. The matter is to be decided according to the judge’s view of what prudence requires, unrestrained by prescriptive legal rules. Therefore, at least ordinarily, it will not fall to an appellate court to substitute its own view as to what prudence requires.
This is not to deny that a judge’s assessment of what prudence requires will be influenced by the kinds of considerations to which the judgment in Ebner referred. The passages from the authorities which we have cited earlier emphasise the importance of the judicial duty to sit on an allocated case and that a judge must not accede too readily to suggestions of an appearance of bias. As the primary judge observed, a judge’s decision not to sit, after rejecting a recusal application, would involve an exceptional departure from the ordinary duty of a judge to sit on a case to which the judge had been assigned.[18]
[18]Mandie [81]-[82] (citation omitted).
As I have already indicated, the decision to be made on this application is a particularly difficult one. In the circumstances, I have decided that no definitive decision on the recusal application is necessary for the disposal of this matter.
This is because I have concluded in the particular circumstances of this case that even were I to make a decision that under the principles applicable to an application for recusal on the basis of apprehended bias a recusal would not be warranted, which decision I refrain from making, it would be prudent for me not to sit in this case in any event. In my view, the objection taken on behalf of the defendant to my sitting on the review could not be described as insubstantial. Bearing in mind the real uncertainty about the nature of the test to be applied on review, the undesirability of a definitive decision on that matter being made at this early stage, the consequent difficulty in determining what knowledge to impute to the fair-minded lay observer, the history of this matter including the pending appeal to the Court of Appeal by way of a rehearing, the considerable importance of the review to be conducted, and the stage at which the recusal application was made and the availability of another judge to hear the review, I have decided that as a matter of prudence, I should not sit in the case.
Conclusion
For the reasons I have stated, I have decided not to sit in the review of the CDO. Another judge of this Court will be allocated to the hearing.
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