Papadopoulos v The Queen [2011] HCATrans 24

[2011] HCATrans 24

[2011] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2010

B e t w e e n -

DIONISIOS PAPADOPOULOS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 FEBURARY 2011, AT 12.07 PM

Copyright in the High Court of Australia

MR J.D. EDWARDSON, QC:   May it the Court pleases, I appear with my learned friend, MR M.H.L. MEAD, for the applicant.  (instructed by Noblet & Co)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS R.L. RICHARDSON, for the respondent.  (instructed by Director of Public Prosecutions (SA))

GUMMOW J:   Thank you.  Mr Edwardson.

MR EDWARDSON:   May it please the Court, this application of special leave raises questions, we submit, of public importance in criminal trials.  In particular, the duties of a presiding judge and, as it happens in this case, the prosecutor, to disclose matters that impact on the appearance of impartiality.  We contend that the failure by the trial and sentencing judge in a criminal trial to make relevant disclosure and to engage in debate referrable to the extraneous information he was privy to, again without disclosure, and to refer to evidence and a judgment previously published by him, again without disclosure, of that fact to the defence and before passing sentence, plainly satisfies the apprehension of bias test.

GUMMOW J:   Just a minute.  Assume there had been disclosure, what then would follow?

MR EDWARDSON:   There were two affidavits that were put before the Court of Criminal Appeal from counsel at first instance and, indeed, I think the client himself, to the effect that there would have been an application that the judge disqualify himself.

GUMMOW J:   Yes, and what would have happened to that application?

MR EDWARDSON:   In my respectful submission, the – I do not know what view ‑ ‑ ‑

GUMMOW J:   Why should the judge have disqualified himself, if all this had been on the table, as you say it should have been?

MR EDWARDSON:   The judge should have disqualified himself because of the extent of the extraneous material which he had in evidence in the liquor licensing matter.  The evidence traversed not only matters that a sentencing judge or trial judge would normally be privy to, namely the antecedents of the accused but much more significantly, the evidence traversed his membership of the Hells Angels but in a particular context.  The evidence disclosed that he held the position of sergeant at arms of the Hells Angels and there was evidence given from two police officers of the significance of anybody who held that position.

KIEFEL J:   But in the licensing court matter his Honour, was not required to turn his mind to any characteristic or behavioural question relating to the applicant.  He had made no finding of credit.  The antecedents were simply noted as not being sufficient to justify the ban, then.  No great weight was put upon them.  In fact, they were not particularly far‑reaching.

MR EDWARDSON:   Your Honour, his Honour Judge Rice at first instance in that judgment made it plain that the simple fact of the antecedents of the accused, or the applicant in that case, would not have been sufficient to justify the order that he ultimately made.

KIEFEL J:   I think it went a little further than that.  I think his Honour said there was nothing really personal to Mr Papadopoulos or the other gentlemen which would have justified the ban.  The question, the issue really did not relate to them at all.  It related to whether or not any member of a bikers club, whether there was a basis in the publican’s view that any member of a bikers club created a problem from being present on the licensed premises.  His Honour had no cause, no occasion to come to any view about Mr Papadopoulos.

MR EDWARDSON:   In the context of whether or not a barring order should be made, that is so.  However, at page 142 of the cases book, in particular paragraph 83, his Honour articulated ‑ ‑ ‑

GUMMOW J:   Just a minute, just slow down a minute.  Where are you taking us to?

MR EDWARDSON:   I am taking you to page 142 of the reasons for decision contained in the table of cases, in particular paragraph 83.

GUMMOW J:   Yes.

MR EDWARDSON:   Again to confirm what your Honour put to me a moment ago, he antecedents of each of the individual applicants standing alone would not be sufficient to justify the order, however, the antecedents of the Hells Angels, generally, and indeed the evidence from the relevant police officers as to the reputation and organised criminal activities of its members in combination was sufficient.  The point we want to make is this, true it is that his Honour did not have to make an adverse finding specifically against the applicant in the sense that his proven criminal activity was somehow adversely reflected on the order that was ultimately made but one has to look at that fact in conjunction with his membership and, more importantly, the finding by the judge that he was the sergeant at arms and that the sergeant at arms of the Hells Angels raised a very specific and important position against the background of established criminal activity said to be associated with that organisation.

KIEFEL J:   What view do you say the trial judge would necessarily have come to about the accused because he knew of the office that he held?

MR EDWARDSON:   That because he held that position consistent with the evidence that he had, he was responsible for the direction and enforcement of the Hells Angels generally, or at least that chapter, an organisation of which its membership involved a catalogue of criminal activity of an organised criminal nature including specifically drugs.  That, we say, becomes important in this regard.  The first time anything was mentioned about what I will call the extraneous material that the judge was privy to by virtue of that liquor licensing matter was in sentencing submissions where his Honour posed the rhetorical question, “Is your client still the sergeant at arms of the Hells Angels?”  That fact was not the subject of any evidence in the criminal trial at all.  It was not published, apart from the liquor licensing matter, in any of the other criminal cases that have been reported in respect of this applicant.

When the question was raised, we now know from the report that was provided to the Court of Criminal Appeal which is set out in the application book at pages 23 to 24.  We now know that the judge knew a number of things.

GUMMOW J:   You seem to postulate some duties on judges to ransack their memories of every case they have heard over what may be many, many years, to discover whether or not they have ever had before them in any capacity any particular litigant in the current case.  It is a very large proposition.  Ordinarily ‑ ‑ ‑

MR EDWARDSON:   With respect, your Honour, I am not.

GUMMOW J:   Just a minute.  It is a good idea to listen to what we say to you.  Ordinarily, these disqualification motions are made upon applications by the person in question.

MR EDWARDSON:   With respect, your Honour, I do not disagree.  Ordinarily, they are made.  They are made because counsel for the accused is on notice of the potential for an apprehension of bias.  In this case, all three members of the Court of Criminal Appeal expressly rejected the submission of the learned Solicitor‑General that because of the failure to make the application there had been waiver.  What we put is this, of course a judge does not have to rack his or her brain over many years of presiding in different cases to ensure that they have not had some direct dealing or indirect dealing with a particular accused.  What is important is the concession that is made, with respect, by the presiding judge as seen in the memorandum to the Court of Criminal Appeal, commencing in the application book on page 23.  When the trial was listed before his Honour, he specifically remembered Mr Papadopoulos from the licensing court case.

KIEFEL J:   Did Mr Papadopoulos say whether or not he remembered the trial judge?

MR EDWARDSON:   No.

KIEFEL J:   Has he said that at any point?

MR EDWARDSON:   No.

KIEFEL J:   Has he said that he did not recognise him?

MR EDWARDSON:   I cannot answer that.

GUMMOW J:   Maybe you should be able to if you now want to get special leave, you see.

MR EDWARDSON:   What I am putting to your Honour is that at trial counsel for him ‑ ‑ ‑

GUMMOW J:   Because, at special leave we are trying to get to the bottom of things to work out the interests of justice.

MR EDWARDSON:   Yes, your Honour.  The affidavits that were filed was that counsel at no time until after sentence had been passed was aware of the fact of the liquor licensing case.  Certainly, no application was made before the judge and certainly no information was conveyed to the defence counsel who was then representing Mr Papadopoulos of that previous association.  In other words, as was put to the Court of Criminal Appeal, the accused never received any specific advice as to what his rights would have been in those circumstances.  The unusual feature about this case was that as it happened, the prosecutor in the case in the criminal trial was also counsel who appeared before his Honour Judge Rice in the liquor licensing matter and therefore, both the judge and the prosecutor were at one but nobody said anything.

KIEFEL J:   How long did the matter in the licensing court go for?

MR EDWARDSON:   It was three days, I think, from memory.  He was represented by civil solicitors.  He was not represented by anybody associated with a criminal matter.  In this case, the judge recognised that he remembered the accused from the liquor licensing matter.  He made the assumption that Mr Papadopoulos had remembered him and did not say anything.

KIEFEL J:   You say that was not a fair assumption after three days?

MR EDWARDSON:   What I say is that a prudent judge, with respect, would raise the matter at least with counsel to ensure that the appropriate advice had been given and to ensure that the accused was not disadvantaged or concerned by that previous association.  Sometimes judges regularly bring matters to the attention of counsel out of an abundance of caution and we say that is a prudent practise and it is the practise that, with respect, should have been adopted on this occasion.

CRENNAN J:   That is your complaint that there was a deprivation of an opportunity of making an application to the judge?

MR EDWARDSON:   Precisely, your Honour.  But it goes a little bit further than that because having raised specifically the issue of the position of sergeant at arms information conveyed to the judge from the other hearing but without saying why it was being raised and in what context, we now know that the trial judge then re‑read before passing sentence his liquor licensing judgment, again without putting counsel on notice that that was his intention or indeed even conveying to those who appeared before him how he might have regard to the contents of that judgment.  That is significant, too, we suggest, because it means that the accused through his counsel was denied the opportunity of putting submissions to the Court as to why anything that was put in the liquor licensing matter was irrelevant or that his Honour could not have regard to or ‑ ‑ ‑

KIEFEL J:   That sounds more like a procedural fairness point, not an apprehension of bias point.  I think you are straying a little away.  You have talked about what it is prudent for judges to do but really the critical test is what the reasonable lay observer would think.

MR EDWARDSON:   What I submit to your Honour is that the reasonable lay observer, if that person knew that the judge was going to re‑read a decision which was not conveyed expressly to counsel and not indicated how and in what context he would use the contents of that judgment or indeed the evidence that was conveyed to him in some way in passing sentence, that would have an apprehension of bias.  The whole point is the failure to make relevant disclosure and the failure to indicate how that extraneous material might be used in the context of determining the appropriate sentence without notice.

It is our respectful submission that his Honour Justice Duggan who wrote the majority judgment fell into error in two material respects, that is that firstly he took the view that because he said there was no adverse finding specifically against the applicant, in those circumstances, the issue of apprehended bias did not arise.  We say that is not borne out by what actually happened.  We say that the ultimate decision was based on a combination of the antecedents, albeit standing alone insufficient to make out the application, but that in conjunction with the criminal intelligence, the position that the applicant, as he then was, held and his membership of the Hells Angels, in combination, meant that he was privy to material which went well beyond simply the antecedents.

Moreover, his Honour took the view that the fact that the judgment was in the public domain would mean that any judge could have read the particular judgment and in those circumstances it could not give rise to apprehended bias.  It is my submission that the difference is this, any judge who might know of the existence of that judgment is not to the point.  The question is, to what extent is the Court to have regard to its contents and if the Court is to have regard to its contents, counsel needs to know how, in what context and, why.  Any other judge, quite apart from the presiding judge in these proceedings, we would submit, could not have relied in any way on the contents of that judgment.  It was irrelevant for the purposes of sentence because the issues that were canvassed, that is apart from his antecedents, related to just general membership, general activities of the Hells Angels, which of course the sentencing court could not have regard to in determining what was the appropriate sentence.

In terms of apprehended bias, I complete my submissions by saying this, there is an apprehension at least, that the judge had regard to the fact that not only was he a member of the Hells Angels but, in particular, his continued membership of that club may lead him to associate with undesirable elements.  He said as much in his sentencing remarks.  There was no admissible evidence before the Court that showed a proper nexus between the appellant’s offending and his membership and we know that the appellant before this case had no prior drug offences and it is submitted that the finding by the learned sentencing judge that the vast majority of the drug in the appellant’s possession was intended to be sold indicates that his Honour may have had regard to the undisclosed extraneous information that he was privy to.

Just to complete that, I should point out the nature of the offending, at least in South Australia, possession was not in dispute.  There was nothing beyond the mere fact of possession but in this State we have a reverse onus position whereby if it is proved beyond reasonable doubt, in this case admitted, that he was in possession of more than the prescribed amount, you are deemed to be in possession for the purposes of sale and the

onus shifts to you to establish on the balance of probabilities that it was not for commercial gain.  Once you are convicted or if you do not discharge the onus, as clearly happened here, it is then incumbent upon the Court to determine the basis upon which you should be sentenced.  This judge sentenced this man against the background of his consideration, admitted consideration of the information that he had from the liquor licensing, that is the Hells Angels, sergeant at arms, what they did and, in particular, their involvement on a large scale with drugs.

We say, the totality of all of that and the failure to make relevant disclosure, genuinely gives rise to an apprehension of bias and does go directly to the question of maintaining the integrity of the judicial process and, indeed, the impartiality of the Court.  May it please the Court.

GUMMOW J:   We do not need to call on you, Mr Solicitor. 

We are not satisfied that a disqualification application to the trial judge by the applicant on the basis of his Honour’s participation in the earlier proceeding would have had any reasonable prospects of success.  In those circumstances, there are no prospects of success on any appeal to this Court against the decision of the South Australian Full Court.  Special leave is refused.

AT 12.26 PM THE MATTER WAS CONCLUDED