Police and Department for Correctional Services v Mahon
[2022] SASCA 76
•4 August 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
POLICE AND DEPARTMENT FOR CORRECTIONAL SERVICES v MAHON
[2022] SASCA 76
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
4 August 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - COURSE OF CONDUCT AT TRIAL - PARTICULAR CASES - FAILURE TO OBJECT TO JUDICIAL BIAS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The respondent was sentenced in the Magistrates Court of South Australia for 26 dishonesty, property and drug offences. During sentencing the sentencing magistrate disclosed to the parties that a victim was “a person known” to her. Counsel for the respondent did not object to the magistrate proceeding to sentence nor take instructions from the respondent. The magistrate sentenced the respondent to 28 months and 32 days’ imprisonment. A non-parole period of 18 months was fixed.
The respondent successfully appealed his sentence to a single judge of this Court, contending that the sentence was manifestly excessive and that the magistrate was disqualified from sentencing on account of apprehended bias. The single judge found that the sentencing process miscarried by reason of “the magistrate raising the issue so late in proceedings and the appellant’s solicitor not obtaining instructions as to whether to raise an objection or make an application for recusal”.
The appellants now seek leave to appeal and appeal against the orders made. The appellants contend that the judge erred in concluding that waiver depended on whether the client had given specific instructions and in determining the appeal by reference to a ground not advanced by either party.
Held (the Court) granting permission to appeal and allowing the appeal:
1.The respondent by his counsel waived any objection to the magistrate proceeding to sentence. Counsel acted within his ostensible authority. There was no miscarriage in the sentencing process.
2.It cannot be said that the sentence imposed by the magistrate was manifestly excessive.
3.The orders made by the judge are set aside and, in their place, there will be an order dismissing the respondent’s appeal from the sentencing magistrate.
Australian Solicitors Conduct Rules 2015 r 8.1; Bail Act 1985 (SA) s 17; Controlled Substances Act 1984 (SA) ss 18, 33L; Criminal Law Consolidation Act 1935 (SA) ss 85, 134, 139, 144; Criminal Procedure Act 1921 (SA) s 158; Firearms Act 2015 (SA) s 31; Magistrates Court Act 1991 (SA) s 42; South Australian Legal Practitioners Conduct Rules r 8.1; Summary Offences Act 1953 (SA) s 41; Supreme Court Criminal Rules 2014 (SA) r 104V(2); Uniform Civil Rules 2020 (SA) rr 217.10, 218.17, referred to.
Ali v The Queen (2005) 79 ALJR 662; Australian Securities & Investment Commission v Lanepoint Enterprises Pty Ltd [2009] FCA 258; Boyle (a pseudonym) v The Queen [2022] SASCA 50; Crampton v The Queen (2000) 206 CLR 161; Dispute Resolution Associates Pty Ltd v Selth (No 2) [2020] FCA 844; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; El Ajou v Dollar Land Holdings Plc [1994] 2 All ER 685; Fox v Percy (2003) 214 CLR 118; Gazepis v Police (1997) 70 SASR 121; Giannarelli v Wraith (1988) 165 CLR 543; Gipp v The Queen (1998) 194 CLR 106; Goode v Kowald (1972) 4 SASR 579; Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; Harvey v Phillips (1956) 95 CLR 235; Helps v The Queen (No 3) [2021] SASCFC 10; Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Howie v Sutcliffe (1988) 49 SASR 225; Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071; Le Cornu v Thomas (2019) 134 SASR 421; Lee v Lee (2019) 266 CLR 129; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; Martin v Henderson [2020] WASC 473; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; Nudd v The Queen (2006) 80 ALJR 614; Pantorno v The Queen (1989) 166 CLR 466; Police v Cadd (1997) 69 SASR 150; R v Gibbings [1936] SASR 36; R v Niesen [2015] SASCFC 165; R v Shepperbottom (2001) 121 A Crim R 39; R v Taylor [2014] SASCFC 112; R v Williams [1914] 1 KB 608; R v Birks (1990) 19 NSWLR 677; R v Miletic [1997] 1 VR 593; Re Polites (1991) 173 CLR 78; Re Ratten [1974] VR 201; Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; Sargent v ASL Developments Ltd (1974) 131 CLR 634; Sharman v Police [2015] SASC 159; Sharman v Thomas [2020] SASCFC 52; Smits v Roach (2006) 227 CLR 423; Stead v State Government Insurance Commission (1986) 161 CLR 141; Strauss v Francis (1866) 1 QB 379; TKWJ v The Queen (2002) 212 CLR 124; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Wilde v The Queen (1988) 164 CLR 365; Zanker v Kupsch [2014] SASCFC 13, considered.
POLICE AND DEPARTMENT FOR CORRECTIONAL SERVICES v MAHON
[2022] SASCA 76Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA
THE COURT:
Introduction
The appellants seek leave to appeal against orders made by a single judge of this Court which effectively upheld the respondent’s appeal against sentence imposed in the Magistrates Court of South Australia (the Magistrates Court). The judge set aside the sentence and remitted the matter for resentence.
Whilst the appeal to the judge raised a complaint about manifest excess, it was complicated by the further complaint that the magistrate was disqualified from sentencing on account of apprehended bias. The respondent contended that the magistrate belatedly raised an association with one of the victims of the offending and, without obtaining specific instructions, counsel failed to object to the magistrate proceeding to sentence.[1] The judge found that the sentencing process miscarried.
[1] Whilst the legal representative for the respondent was referred to as a solicitor in the Courts below, it is convenient to refer to him as counsel for that is the role he performed before the magistrate.
For the reasons that follow, permission to appeal should be granted and the appeal allowed. First, the respondent by his counsel waived any objection to the magistrate proceeding to sentence. It appears that counsel waived the objection and elected to proceed to sentence for the understandable reason that his client wanted the sentencing process resolved quickly. Associated with this conclusion is the further conclusion that there was no miscarriage in the sentencing process. Secondly, given the respondent’s personal circumstances and the circumstances of his offending, it cannot be said that the sentence imposed by the magistrate was manifestly excessive.
Accordingly, the orders made by the single judge should be set aside and, in their place, orders should be made dismissing the respondent’s appeal against the magistrate’s decision.
The sentences imposed in the Magistrates Court
The respondent was sentenced in the Magistrates Court for 26 offences. In addition, a suspended sentence was revoked following the breach of a bond and a term of imprisonment was imposed for a failure to perform community service. This last-mentioned term of imprisonment was made concurrent with the revoked suspended sentence.
All other terms of imprisonment were imposed on a cumulative basis and, in total, the respondent was sentenced to 28 months and 32 days imprisonment and a non-parole period of 18 months was fixed. The 19 sentences which were appealed by the respondent may be summarised as follows:
File number: Offences Maximum penalty Sentence imposed AMC-20-5022: Making off without payment 2 years imprisonment[2] 5 months reduced by 40% to 3 months AMC-20-9841:[3] Unlawful possession $10,000 or 2 years imprisonment[4] 5 months reduced by 40% to 3 months AMC-19-10114:[5] 2 x Deceive another to benefit self – Basic 10 years imprisonment[6] 10 months reduced by 40% to 6 months AMC-20-3866: 5 x Dishonestly deal with property w/out consent – Basic 10 years imprisonment[7] 10 months reduced by 30% to 7 months AMC-20-5188:
Damage building or motor vehicle (not graffiti or unknown) – Basic
Dishonestly deal with property without consent – Basic
10 years imprisonment[8]
10 years imprisonment[9]
5 months reduced by 30% to 3 months 2 weeks AMC-20-5962:
4 x Dishonestly deal with property without consent – Basic
10 years imprisonment[10]
Dishonesty counts: 2 months on each count (8 months) reduced by 30% to 5 months 18 days Acquire, own or possess ammunition w/out license or permit $10,000 or 2 years imprisonment[11] Remaining 4 offences: Convicted with no further penalty Fail to comply with Bail Agreement $10,000 or 2 years imprisonment[12] Prescribe a prescription drug without authority $10,000 or 2 years imprisonment[13] Possess equipment to use with controlled drug $10,000 or 2 years imprisonment, or both[14] [2] Criminal Law Consolidation Act 1935 (SA) s 144(1).
[3] The magistrate’s Remarks on Penalty refer to File 98418/20, which is a typographical error.
[4] Summary Offences Act 1953 (SA) s 41(1).
[5] The magistrate’s Remarks on Penalty refer to File 11014/9, which is a typographical error.
[6] Criminal Law Consolidation Act 1935 (SA) s 139(a).
[7] Criminal Law Consolidation Act 1935 (SA) s 134(1).
[8] Criminal Law Consolidation Act 1935 (SA) s 85(2).
[9] Criminal Law Consolidation Act 1935 (SA) s 134(1).
[10] Criminal Law Consolidation Act 1935 (SA) s 134(1).
[11] Firearms Act 2015 (SA) ss 31(1) and 31(12).
[12] Bail Act 1985 (SA) s 17(1).
[13] Controlled Substances Act 1984 (SA) s 18(1).
[14] Controlled Substances Act 1984 (SA) s 33L(1)(c).
The appeal to the single judge: findings made
The appeal to a judge of this Court raised two appeal grounds. The first was that the sentence was vitiated by apprehended bias on the part of the sentencing magistrate. That complaint arose from the magistrate’s disclosure to the parties during sentencing that a victim of one of the counts of dishonestly dealing with property was “a person known” to the magistrate. It will be necessary to set out that disclosure in a little more detail. The second ground of appeal before the judge was that the sentence was manifestly excessive.
The judge found that it was “impossible” on the limited information available to say that a reasonable apprehension of bias had been established and, in the circumstances, her Honour found that it was unnecessary to determine whether there was apprehended bias under appeal ground 1, and unnecessary to consider the issue of manifest excess under appeal ground 2.[15]
[15] Mahon v Police [2021] SASC 109, [35].
The judge allowed the appeal, quashed the sentence and remitted the matter for re-sentencing by a different magistrate. In so doing, the judge made three key findings. The first was that her Honour was “satisfied that the appellant did not waive his right to complain of apprehended bias”.[16] The second finding, already mentioned, was that it was impossible to say whether a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to sentencing.[17]
[16] Mahon v Police [2021] SASC 109, [31].
[17] Mahon v Police [2021] SASC 109, [32].
The third key finding was that the “sentencing process miscarried by reason of the magistrate raising the issue so late in proceedings and the appellant’s solicitor not obtaining instructions as to whether to raise an objection or make an application for recusal”.[18]
[18] Mahon v Police [2021] SASC 109, [33].
The sentencing history: the magistrate’s disclosure
The judge helpfully and carefully set out the procedural history prior to sentence. The respondent’s appearances in the Magistrates Court commenced on 23 July 2020. Guilty pleas were entered on 14 September 2020 when the respondent’s antecedents were tendered, and a magistrate requested that the prosecution provide a copy of the allegations and the respondent’s solicitor was requested to provide written submissions. The matters were then listed for sentence.
On 12 October 2020, the respondent appeared before a magistrate with new legal representation. The respondent was again remanded for submissions and sentence. On 21 October 2020, the respondent again appeared before a magistrate. At this hearing, the respondent was informed that the matters would be heard by the magistrate who ultimately sentenced the respondent. No explanation was given for the change in magistrate.[19]
[19] Although the allocation of the matter to the magistrate whose sentences are challenged was raised as a basis for apprehended bias, the judge rejected that contention and it was not pressed in this Court, Mahon v Police [2021] SASC 109, [17].
On 27 October 2020, the respondent appeared for the first time before the sentencing magistrate. The matters were again adjourned. On 23 November 2020, there was another appearance before the sentencing magistrate during which the respondent’s solicitor made submissions. The respondent was remanded to appear at a later date for sentence. On 17 December 2020, the respondent was sentenced.
In her Remarks on Penalty the magistrate recorded that the respondent had offended over a 21-month period between 28 September 2018 and 3 June 2020. This offending included offences that were not the subject of the appeal to the single judge. When addressing the offending which was the subject of appeal to the judge, the magistrate considered that these matters and the respondent’s antecedents were “underpinned by strong drug dependency”. The magistrate referred to principles of specific and general deterrence and viewed the respondent’s prospects of rehabilitation as “poor”. The magistrate considered the respondent’s family history, accommodation and employment and accepted that the respondent’s remorse was genuine.
Before turning to sentence, the magistrate then revealed for the first time that one of the victims of the respondent’s offending was known to her. The following was disclosed:
The Magistrate: …, can I say at the outset that in relation to file number AMC-20-3866, one of the victims in that matter is a person known to me. I indicated this to the co-accused when I sentenced him and there was no issue. It is not a person who is close to me but I raised that for the sake of completeness.
Counsel:I understand, and for completeness, I suppose Mr Mahon’s conduct was slightly different from the co-accused in that matter.
The Magistrate: Yes, that is right. I will note there is no difficulty in relation to that.
Insofar as the respondent’s counsel described his client’s conduct as “slightly different from the co-accused”, it was common ground that the co-accused was the person who stole a bank card and mobile phones from guests at a party including from the person known to the magistrate.
The magistrate then sentenced the respondent for the offences charged on each file. For the offending which was the subject of file AMC-20-3866 (which involved the person known to the magistrate as referred to above), the respondent committed five counts of theft in the suburb of Glenunga on 23 February 2020. The respondent had become aware that an acquaintance was at a party and that the acquaintance had stolen a bank card and three mobile telephones. The respondent was travelling as a passenger in a vehicle and, after his acquaintance was collected from the party, the vehicle in which the respondent was traveling was stopped by police. The three telephones and credit card stolen from the party were located in the vehicle. The credit card had been used by the respondent on two occasions and $198 was incurred.
As to these offences, the magistrate imposed a sentence of 10 months imprisonment, attributing two months to each of the five counts. This sentence was reduced on account of the respondent’s guilty pleas to seven months imprisonment. That sentence was ordered to be served cumulatively on the other sentences and an order for compensation in the amount of $297 was made.
The affidavit from counsel
Shortly before the single judge delivered her reasons, the respondent’s counsel swore an affidavit which was received by the judge and available on appeal.
The relevance of the affidavit does not appear to have been addressed by the parties. The parties took no issue with its admission before the single judge. No issue was taken with it before this Court.[20] Insofar as is relevant, counsel deposed:[21]
On 17 December 2020 I appeared at Adelaide Magistrates Court for sentencing before Magistrate McGrath. The appellant appeared by AVL from Port Augusta Prison.
Immediately prior to handing down sentence, Magistrate McGrath raised the issue of her personally knowing a victim of one of the offences for which the appellant was to be sentenced. Magistrate McGrath queried whether I took issue with this. I responded that I did not take issue.
As at 17 December 2020 I was aware that Mr Mahon was very eager to be sentenced and was getting increasingly frustrated with adjourning the sentencing process.
In hindsight I can see that I should have had the matters adjourned or held in the list so that I could take formal instructions with respect to the issue of bias.
The reality is that if another magistrate was required to sentence the appellant, he would have potentially been waiting until February/March 2021 to be sentenced.
[20] Whilst evidence such as this is often led, it is the objective assessment of the decision-making of counsel that is usually relevant rather than any subjective explanation, Nudd v The Queen (2006) 80 ALJR 614, [8]-[10] (Gleeson CJ), discussed below.
[21] Affidavit of Bradley Alan Dittmar affirmed 10 September 2021, [4]-[8].
This affidavit shows that at the time of sentence counsel knew two matters of relevance to this appeal. The first is that counsel recognised that the magistrate gave him an opportunity to object to the magistrate continuing to sentence, based on “the issue of bias”. The second matter is that counsel knew that his client was frustrated with the adjournments of the sentencing process and, if a new magistrate became involved, the matter would again be delayed for a few more months.
It may be debated whether, by this affidavit, there was a waiver of legal professional privilege. The passage concerning counsel’s awareness of his client’s attitude to sentence – that he was “very eager to be sentenced” – has been expressed in terms that do not make it clear whether these were the respondent’s explicit instructions. The affidavit does not expressly waive privilege, nor does it purport to record all relevant instructions.
The reasons of the single judge
After setting out the relevant factual background, the judge considered the principles relating to disqualification for apprehension of bias, relying principally on Ebner v Official Trustee in Bankruptcy.[22] The judge then addressed whether the appellant had waived the right to object and she addressed the decision of the High Court in Vakauta v Kelly.[23] Her Honour emphasised the necessity for a party to have an opportunity to object, absent which there could be no waiver of the right to object. The judge suggested that a “less strict approach” had been taken to waiver in prosecutions for criminal offending, relying on an observation made in a decision of the South Australian Court of Criminal Appeal.[24] It will be necessary to return to that observation.
[22] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[23] Vakauta v Kelly (1989) 167 CLR 568, 573 (Brennan, Deane and Gaudron JJ), 579 (Dawson J).
[24] Zanker v Kupsch [2014] SASCFC 13, [69] (Kourakis CJ, with whom Anderson J agreed) citing Vakauta v Kelly (1989) 167 CLR 568, 578-579 (Dawson J).
Whilst the judge found that the issue of association with one of the victims had not been raised by the sentencing magistrate in two earlier hearings, and that it would have been preferable if she had done so, her Honour made no finding that there was no opportunity to object. As her Honour explained:[25]
… The consequence of the Magistrate not raising the issue at either of the earlier hearings meant that it fell for the appellant’s solicitor to deal with the matter at a time after submissions had already been completed, and whilst the Magistrate was in the course of delivering sentence.
The appellant’s solicitor did not ask for a short adjournment to take instructions … The appellant’s solicitor in proceeding as he did was not acting on his client’s instructions. Further, the Magistrate did not clarify or explain the Magistrate’s association with the victim, which may have potentially resolved the situation.
It would have been preferable for the Magistrate to raise the issue at a hearing prior to sentencing to afford the appellant’s solicitor greater opportunity to consider the legal position and take instructions from his client as to whether to raise an objection and/or make an application for recusal. It was incumbent on the appellant’s solicitor to pause and take some instructions from his client and possibly obtain some advice on the issue.
[25] Mahon v Police [2021] SASC 109, [28]-[30] (David J).
The judge acknowledged that in a busy Magistrates Court list, a disclosure such as was made in this case can be overlooked by a magistrate. Her Honour also acknowledged that it can be difficult for counsel to raise an issue such as an objection on the grounds of apprehended bias during the course of sentencing remarks “given the emphasis placed by the Court on expediency”.[26] Nonetheless, the judge found that:[27]
… in the circumstances of this case, it was necessary for the appellant’s solicitor to ask for time to obtain instructions from the appellant. For those reasons, I am satisfied that the appellant did not waive his right to complain of apprehended bias.
[26] Mahon v Police [2021] SASC 109, [31] (David J).
[27] Mahon v Police [2021] SASC 109, [31] (David J).
On the question whether it was “impossible” to conclude that there was apprehended bias, it is necessary to set out her Honour’s reasons in full:[28]
As to the substantive issue of whether there was an apprehension of bias, the issue was not properly ventilated before the Magistrate. All that is apparent from the record is that one of the victims was a person known to the Magistrate. The extent and nature of their association is unclear. It is impossible to say on the material before this Court whether a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to sentencing the appellant.
[28] Mahon v Police [2021] SASC 109, [32] (David J).
The judge went on to find that, “nonetheless”, the failure of the magistrate to raise the issue until “so late in proceedings” and the failure of counsel in “not obtaining instructions” meant that “the sentencing process miscarried”.[29]
[29] Mahon v Police [2021] SASC 109, [33] (David J).
The appellant’s contentions
At the hearing of this appeal the appellants’ six grounds of appeal were distilled to two issues by the Solicitor-General. Those issues were nonetheless addressed in a detailed manner.
The first concerned the legal significance of counsel communicating his client’s waiver without it being the subject of specific instructions from the client. That issue was framed as whether waiver was ineffective in circumstances where counsel had the opportunity to object and the opportunity to seek specific instructions but had made the forensic decision not to object in circumstances where that decision was consistent with his client’s general instructions earlier provided. This was, effectively, appeal ground 1. Appeal ground 5 concerned whether the sentencing process could be said to miscarry where there was an absence of specific instructions in relation to a matter which was raised late in proceedings.
The second issue concerned the disposition of the appeal by the single judge. That issue was put in terms whether there was an error in disposing of the appeal other than in accordance with her Honour’s findings and, in addition, other than by reference to the respondent’s grounds of appeal. The critical finding relied upon was the judge’s finding at paragraph [32] of her reasons that it was “impossible to say on the material before the Court whether a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the sentencing of the [respondent]”.[30] The submission was that this was, in fact, a finding that the respondent had not established ostensible bias and, accordingly, it was an error not to dismiss ground 1 of the respondent’s appeal to the single judge. This was, effectively, appeal ground 2.
[30] Mahon v Police [2021] SASC 109, [32] (David J).
In other words, instead of determining the grounds of appeal before the Court (appeal ground 3), the appeal was determined by reference to a ground not advanced by either party (appeal ground 4). On the assumption that this was done pursuant to r 104V(2) of the Supreme Court Criminal Rules 2014 (SA), the appellants contended that they were denied procedural fairness in respect of that new ground of appeal (appeal ground 6).
The respondent’s contentions
For the respondent, it was contended that permission to appeal should be refused. The respondent contested the proposition that the judge did not allow the appeal on the ground that there was an apprehension of bias. The respondent submitted that as apprehended bias deals with “real possibilities”, accounting for human frailty, nothing short of a positive finding that a judicial hearing passes the “double might” test precludes an apprehension of bias.
The respondent submitted that, though the finding made by the judge at paragraph [32] might be thought ambiguous, it was open to this Court to cure the ambiguity without the need to grant permission.[31] In fact, the judge found that it was impossible to say whether there was or was not apprehended bias and so it remained possible that a fair-minded lay observer might consider that the magistrate might act without the requisite degree of impartiality. In those circumstances it was appropriate to allow the appeal, as the judge did, on the first ground.
[31] R v Shepperbottom (2001) 121 A Crim R 39, [37] (Doyle CJ, with whom Williams J agreed).
In any event, the respondent contended that the judge was right to find that the respondent did not waive his right to complain of apprehended bias. This question had to be answered from the perspective of the respondent and whether he actually gave any instructions on the point.
Insofar as reliance was placed by the appellants on Nudd v The Queen, the respondent contended that this authority should be read as confined to forensic decisions made by counsel in the course of a criminal trial.[32] However, if the observations of Gleeson CJ could be applied to a sentencing hearing, the decision made by counsel was wrong because it required specific instructions. There was, in any event, no opportunity given to the respondent to provide instructions.
[32] Nudd v The Queen (2006) 80 ALJR 614.
Whether there was waiver
On the hearing of this appeal the parties did not suggest that the respondent by his counsel did not have an opportunity to object to the magistrate proceeding to sentence. The contention was framed by the respondent as one turning on whether he had personally given instructions to waive the objection. Likewise, the parties did not suggest that the conduct of counsel did not amount to a waiver of the right to object to the magistrate continuing to sit. As to this the respondent contended that there had been a miscarriage of the sentencing process.
Both contentions must be rejected.
In this case, both the transcript and counsel’s affidavit demonstrate that counsel had an opportunity to object but did not do so. Whilst it may have been awkward, even embarrassing, for counsel to interrupt the sentencing magistrate to object as she proceeded to pass sentence, that course was nonetheless open. It cannot be said that there was no opportunity to object.
The fact that no objection was taken on the ground of apprehended bias at the time the basis for the objection arises will usually amount to a waiver of the right to later object, at least where it was earlier open to do so, as was held by the High Court in Vakauta v Kelly.[33] As is well-known, the trial judge in that case, sitting without a jury, was critical of evidence given by the defendant’s medical witnesses in previous cases, to whom he referred as “that unholy trinity”. The judge also said that those doctors “think you can do a full week’s work without any arms or legs” and that the doctors’ opinions were “almost inevitably slanted in favour of the Government Insurance Office by whom they have been retained, consciously or unconsciously”.
[33] Vakauta v Kelly (1989) 167 CLR 568. As to the differences between election, waiver and estoppel, see Sargent v ASL DevelopmentsLtd (1974) 131 CLR 634, 655 (Mason J), a case of election. See also Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60, 70 (Lord Wright, with whom Viscount Maugham, Lord Atkin, Lord Romer and Lord Porter agreed): “'waiver' is a vague term used in many senses”.
The High Court held, by a majority, that those statements gave rise to an apprehension of bias.[34] The High Court also held that the failure by plaintiff’s counsel to object at the time those statements were made amounted to a waiver of the right to appeal against an adverse decision on the ground of those statements. Finally, it was held that similar observations made about one of the doctors in the course of the reasons for judgment gave rise to ostensible bias and vitiated the decision because they suggested that the trial judge might have based his assessment on his dealings in previous cases rather than on the evidence in the case before him. As these observations were only made in the reasons, there had been no opportunity to object and so there could be no waiver.
[34] Vakauta v Kelly (1989) 167 CLR 568, 573 (Brennan, Deane and Gaudron JJ), 576-577 (Dawson J, contra), 584-585 (Toohey J).
The failure by respondent’s counsel in this case to object amounted to a waiver of any right to raise what was disclosed by the magistrate as a basis to appeal on the grounds of ostensible bias. That approach to waiver is important because, as the High Court explained in Vakauta v Kelly, to do otherwise is “unfair and wrong”:[35]
It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
[35] Vakauta v Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ). See also Dawson J at 577: “It cannot be the position that a party can wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the ground of bias. See R. v. Sussex Justices; Ex parte McCarthy [[1924] 1 K.B. 256, at p. 259]”.
A number of cases emphasise the necessity for a party to be fully informed of the facts that might support a bias objection before waiver can operate. For example, in Vakauta v Kelly Dawson J explained:[36]
Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice.
[36] Vakauta v Kelly (1989) 167 CLR 568, 577 (Dawson J).
There are two issues. The first concerns the extent of the information that must be available to a party before that party is in a position to waive an objection on the ground of apprehended bias. The second issue is whether the party must personally be aware of both the information that supports the potential objection and the availability of the right to object.
On the first issue, it has been said that a party must have “full knowledge of all the facts relevant to the decision whether to waive or not”.[37] However it has also been said that the party need only know the “nature of the case rather than the detail”.[38] Professor Groves has expressed the view that the “requirement to be informed is not absolute”.[39] The cases show that a great deal turns on the particular circumstances of the case, including what has been disclosed or is otherwise apparent, together with the context in which this occurred.[40]
[37] Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 475 (emphasis added) (Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott VC).
[38] Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [36] (Lord Justice Ward, Lord Justice Waller and Lord Justice Hale).
[39] Matthew Groves, ‘Waiver of Natural Justice’ (2019) 40(3) Adelaide Law Review 641, 651.
[40] Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128, [34] (Basten JA): a case raising excessive judicial intervention, where there was no “inescapable point” at which counsel could object.
In this case, the judge was concerned that more information was required before it could be determined whether an objection could be taken. Whilst counsel could have inquired and sought more information, the disclosure that was made was sufficient to alert the parties to the issue: the potential for disqualification by association.[41] That disclosure was sufficient to found a basis for waiver. The respondent’s counsel knew not only that a potential objection was available but also the nature of that potential objection. In that setting, and no doubt taking some comfort from the terms in which the magistrate made her disclosure, counsel determined not to seek further information or take the objection. Were the respondent unrepresented it might be that more would have been required to be disclosed and exchanged before it could be said that the respondent was in a position to waive any objection on the ground of apprehended bias.[42]
[41] Re Polites (1991) 173 CLR 78, 87 (Brennan, Gaudron, McHugh JJ); Webb v The Queen (1994) 181 CLR 41, 74 (Deane J).
[42] Matthew Groves, ‘Waiver of the Rule against Bias’ (2009) 35(2) Monash University Law Review 315, 343-346.
On the second issue, it was not necessary for the respondent to personally be apprised of the potential for an objection to be taken, as well as the nature of that potential objection. The capacity of counsel to waive the client’s right to object on the ground of apprehended bias did not depend on whether counsel had obtained his client’s specific instructions on that point: counsel acted in accord with his apparent or implied authority under his retainer with the client and the court was entitled to proceed on the basis of that authority.
It has been described as a “cardinal principle” of litigation that “parties are bound by the conduct of their counsel”.[43]
[43] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ).
In Smits v Roach the judge’s brother was the chairman of a large law firm which had been sued for negligence by Roach.[44] The case before the judge concerned the subsequent claim for fees by a former firm, Smits. Smits had earlier represented Roach in the litigation against the large firm and was claiming unpaid fees from Roach. When the judge distributed a draft of his reasons to the parties, indicating that Smits would lose, he disclosed his brother’s role as chairman. When junior counsel for Smits raised a bias objection, the judge pointed out that senior counsel for Smits knew about the association. The High Court held that even if it was assumed that senior counsel had not obtained instructions from his client, the knowledge of senior counsel nonetheless was imputed to the client and the failure to object bound the client. As a majority of the High Court explained:[45]
Let it be assumed, putting aside the unresolved question of fact noted earlier, that it was only senior counsel for the appellants, and not the appellants personally, who knew of the disqualifying relationship. From the point of view of the respondents, that makes no difference. Indeed, in most cases litigants in the position of the respondents, or trial judges, or an appellate court, would have no reliable basis for discriminating between knowledge of counsel and knowledge of counsel’s clients. They are not privy to communications between counsel and their clients. Ordinarily, those are confidential and privileged. When a litigant is legally represented, judges communicate with counsel, not with the litigant. When, as sometimes occurs, a judge makes a disclosure of some matter for the purpose of inquiring whether a party desires to make submissions about possible disqualification, the response will come from counsel, not from the party. The judge may have no way of knowing what, if any, communications have taken place between counsel and client.
[44] Smits v Roach (2006) 227 CLR 423.
[45] Smits v Roach (2006) 227 CLR 423, 440 [45] (Gleeson CJ, Heydon and Crennan JJ).
In this case, it is not known whether the respondent did or did not already know of the association between the magistrate and one of the victims. At one time, the respondent and his co-accused were represented by the same solicitor. Whilst the absence of evidentiary material clarifying the extent of the respondent’s knowledge and instructions does not permit speculation, it does tend to reinforce why the court must ordinarily act on the basis of counsel’s apparent authority.
The majority in Smits v Roach described the relevant principle as one that “involves, but is not limited to, general concepts of agency”.[46] The Court explained:[47]
The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister’s paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes.
[46] Smits v Roach (2006) 227 CLR 423, [45] (Gleeson CJ, Heydon and Crennan JJ) citing Matthews v Munster (1887) 20 QB 141, 142, 144-145.
[47] Smits v Roach (2006) 227 CLR 423, 441 [46] (Gleeson CJ, Heydon and Crennan JJ) citing D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [34]-[36], [111]-[113], [139]-[140]; R v Birks (1990) 19 NSWLR 677, 683; Halsbury’s Laws of England, 4th ed (2005 reissue), vol 3(1), [664].
The majority in Smits v Roach held that a client is affected by the knowledge of counsel in the same way as a principal is affected by an agent’s knowledge:[48]
The considerations according to which a principal is affected by an agent’s knowledge, and the relevance of the circumstances in which the agent acquired the knowledge, depend upon the context in which the problem arises.[49] Having regard to counsel’s role in the conduct of litigation, when a characterisation of the legal nature and quality of counsel’s acts and omissions depends upon knowledge of some fact or circumstance, then counsel’s clients are affected by that knowledge.
[48] Smits v Roach (2006) 227 CLR 423, 441 [47] (Gleeson CJ, Heydon and Crennan JJ).
[49] Bowstead & Reynolds on Agency, 17th ed (2001), Art 97; El Ajou v Dollar Land Holdings Plc [1994] 2 All ER 685, 701-704 (Hoffmann LJ).
It is not usually necessary for the court to inquire into these matters.[50] In Nudd v The Queen Kirby J explained the pragmatic underpinnings of this approach to the authority of counsel:[51]
There are legal and pragmatic reasons why a great deal of latitude must be accorded to counsel appearing in a criminal, or indeed any, trial.[52] Ordinarily, a party is held to the way in which his or her counsel has presented that party's case.[53] This is not merely because the relationship between lawyer and client is grounded in the law governing agency and apparent authority.[54] There are other, highly pragmatic, reasons for this approach that cannot be ignored. The adversarial system of trial (including its variant of the accusatorial criminal trial) could not operate effectively without according a high measure of deference to the multitude of decisions necessarily made by a legal representative in the course of conducting a trial.[55] The appellate approach is thus a practical one, influenced by the realities of our trial process.
[50] In Australian Securities & Investment Commission v Lanepoint Enterprises Pty Ltd [2009] FCA 258, [31] Gilmour J said: it is “not to the point to consider whether counsel … declined to object without instructions being taken … The Court is generally entitled to rely upon what counsel states on behalf of his or her client on such matters”.
[51] Nudd v The Queen (2006) 80 ALJR 614, [79] (Kirby J).
[52] TKWJv The Queen (2002) 212 CLR 124, [74] (McHugh J).
[53] R v Birks (1990) 19 NSWLR 677, 684 (Gleeson CJ). See also Re Ratten [1974] VR 201, 214; R v Miletic [1997] 1 VR 593, 598.
[54] Strauss v Francis (1866) 1 QB 379, 381 (Blackburn J) cited in TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J).
[55] R v Birks (1990) 19 NSWLR 677, 682-685; TKWJ v The Queen (2002) 212 CLR 124, [8] (Gleeson CJ); Ali v The Queen (2005) 79 ALJR 662, [7] (Gleeson CJ).
Indeed, Professor Groves has suggested that the issue of waiver concerning apprehended bias falls within the scope of counsel’s discretion to conduct a case and that this issue does not require specific instructions:[56]
On this view, the failure of counsel to raise a claim of bias would fall within the scope of the discretion to conduct a case and therefore bind the client. It is not something that a lawyer would normally need to seek particular instructions upon in order for the decision of the lawyer, as a matter of law, to be regarded as the decision of the client.
[56] Matthew Groves, ‘Waiver of the Rule against Bias’ (2009) 35(2) Monash University Law Review 315, 339 referring to Smits v Roach (2006) 227 CLR 423.
In civil cases, counsel are often regarded as acting in accordance with their apparent or implied authority, for example, when agreeing to orders or when entering into a compromise of proceedings.[57]
[57] Harvey v Phillips (1956) 95 CLR 235, 241 (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ).
In criminal cases, counsel likewise have ostensible authority to act on behalf of their clients.[58] That authority extends to “everything which, in the exercise of [counsel’s] discretion, he may think best for the interests of his client in the conduct of the cause”.[59] Counsel are free to exercise a wide discretion,[60] whether when conducting any hearing or trial, or in connection with sentencing, including when determining “what issues to contest” and “what lines of argument to pursue”.[61]
[58] TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J); Helps v The Queen (No 3) [2021] SASCFC 10, [202] (Stanley and Doyle JJ).
[59] TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J).
[60] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J).
[61] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ).
Importantly, the conduct of counsel binds the client, even if the client did not actually authorise the conduct, nor intend for it to be taken.[62] That extends to a failure to act, including a failure to take objections: counsel is “not bound to take every objection that is open”.[63] In these circumstances it may fairly be emphasised that counsel bears a heavy professional responsibility when determining how to conduct litigation.[64]
[62] Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, 539 (Templeman LJ, with whom Dunn LJ agreed); Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538, 543 (Rogers J).
[63] Ali v The Queen (2005) 79 ALJR 662, [23] (Hayne J, with whom McHugh J agreed).
[64] Giannarelli v Wraith (1988) 165 CLR 543, 555-556 (Mason CJ); Pantorno v The Queen (1989) 166 CLR 466, 472-473 (Mason CJ and Brennan J); TKWJ v The Queen (2002) 212 CLR 124, [16] (Gleeson CJ), [43] (Gaudron J), [80]-[83] (McHugh J); Ali v The Queen (2005) 79 ALJR 662, [99] (Callinan and Heydon JJ).
The principle that parties are bound by the conduct of their counsel is subject to “carefully controlled qualifications”.[65] These include whether, when viewed objectively, the decision-making undertaken by counsel was other than rational. So, where the conduct of counsel is capable, as a matter of objective enquiry, of representing a rational forensic decision, that forensic decision is imputed to the client and the client is bound by it.[66] The objective nature of the assessment made of the conduct of counsel is reinforced by the way in which the relevant question is put: “the question is whether there could be a reasonable explanation for the course that was adopted”.[67]
[65] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ).
[66] TKWJ v The Queen (2002) 212 CLR 124, [16]-[17] (Gleeson CJ), [107], [112] (Hayne J); Ali v The Queen (2005) 79 ALJR 662, [23]-[25] (Hayne J, with whom McHugh J agreed); Nudd v The Queen (2006) 80 ALJR 614, [9]-[10] (Gleeson CJ); Helps v The Queen (No 3) [2021] SASCFC 10, [145] (Peek J).
[67] Ali v The Queen (2005) 79 ALJR 662, [23] (Hayne J, with whom McHugh J agreed) (emphasis in the original).
In TKWJ v The Queen, counsel failed to lead evidence of good character: the High Court rejected the assertion that the defendant was not bound by the incompetence of counsel because the decision made by counsel was, when viewed objectively, rational.[68] As Gleeson CJ later explained in Nudd v The Queen, were it otherwise, “the adversarial system could not function”:[69]
That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
[68] TKWJ v The Queen (2002) 212 CLR 124, [16] (Gleeson CJ), [26]-[27] (Gaudron J), [95] (McHugh J), [107] (Hayne J).
[69] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ).
Gleeson CJ went on to explain that there might nonetheless be cases where it may be necessary to understand why decisions were taken by counsel when assessing the conduct of counsel, including cases where counsel reveals that those decisions were made with the benefit of instructions from the client. That, however, raises a number of other considerations:[70]
A full explanation, and understanding, of why decisions are taken in the conduct of a trial will often require knowledge of information held, and opinions formed, by counsel, the revelation of which could be invidious, and contrary to the interests of an appellant. Furthermore, counsel whose conduct is in question is not a party to the appellate proceedings, is unrepresented, and may be in a position of conflict of interest with his or her erstwhile client. While there may be circumstances in which it is unavoidable, this can be an awkward procedure. A court of criminal appeal is an unsatisfactory forum for assessing the performance of trial counsel, and appellate courts, recognising that difficulty, seek to avoid such assessment unless it is unavoidable. … Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the inquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel.
[70] Nudd v The Queen (2006) 80 ALJR 614, [10] (Gleeson CJ).
The principles described in Nudd v The Queen are of general application and it cannot be said that they apply only to criminal trials or that they do not apply to sentence hearings.
None of this means that it is not usually necessary, and in accordance with good practice, for counsel or their instructing solicitors to obtain instructions, whether general or specific instructions, on the matters that arise in the course of carrying out a retainer to act. With the full benefit of hindsight, and assuming the issue had not already been addressed or subsumed by over-riding instructions (for example, to finalise the sentencing process regardless of the issue) it may well have been preferable if counsel had in this case interrupted the sentencing process so as to ensure that specific instructions on the question of bias and waiver were obtained from the respondent. Obviously, a legal practitioner must follow a client’s lawful, proper and competent instructions.[71] Instructions such as these should be confirmed in writing.
[71] South Australian Legal Practitioners Conduct Rules r 8.1; Australian Solicitors Conduct Rules 2015 r 8.1.
Similarly, it would have been preferable if the sentencing magistrate had in this case raised the issue of her knowledge of a victim at an earlier hearing and before she embarked on sentence. That would have given counsel time for reflection and specific, written instructions. Even after embarking on sentence, it would have been preferable if the magistrate had interrupted sentence and paused to expressly give counsel the opportunity to obtain specific instructions (assuming in each case that this was necessary).
Whilst these observations on what is good practice are important, they do not detract from the breadth of counsel’s ostensible authority or the capacity of counsel to bind the client.
When the sentencing history of this matter is considered, it is not hard to see rational explanations for what was done by counsel in this case: there appeared to be no point to be taken in support of an objection on the ground of ostensible bias because the magistrate appeared to be describing what was, at worst, an acquaintanceship and not a friendship, and any defendant in the respondent’s position would likely have been keen to finalise these long-running criminal proceedings.
That objective view of what occurred is only reinforced by the disclosure made by counsel in his affidavit. Counsel knew that his client wanted to finalise these proceedings. Indeed, the affidavit is important for what it does not disclose. As mentioned, the affidavit does not set out all of the respondent’s instructions, nor does it suggest that the respondent has given instructions that he would, if properly advised, have asked counsel to take an objection on the ground of ostensible bias. The affidavit does not suggest that counsel would have been instructed to make inquiries about the nature of the magistrate’s relationship with the victim.
Finally, it is appropriate to return to the judge’s reference to the observation that a “less strict” approach is taken to waiver in prosecutions for criminal offending.[72] In Zanker v Kupsch the following was said:[73]
In Vakauta, Dawson J also explained (again in a statement of principle which is not in doubt), even though he dissented in the result in Vakauta, that a party may waive the right to object on the ground of bias but that a less strict view of waiver is taken in prosecutions for criminal offences.[74]
[72] Zanker v Kupsch [2014] SASCFC 13, [69] (Kourakis CJ, with whom Anderson J agreed)
[73] Zanker v Kupsch [2014] SASCFC 13, [69] (Kourakis CJ, with whom Anderson J agreed).
[74] Vakauta v Kelly (1989) 167 CLR 568, 578-579.
The reference made to the reasons of Dawson J in Vakauta v Kelly is to pages 578 to 579. Before those pages, Dawson J said the following at page 577:[75]
There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J., in Dickason v. Edwards [(1910) 10 C.L.R. 243, at p.260], was clearly of the view that a party may waive the objection. He said:
“So that the principle seems to me to be this - that, if the person whose presence is challenged can fairly be said to be biased, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications. Even in a public prosecution a party may waive the objection. One of the strongest examples of this is the case of Wakefield Local Board of Health v. West Riding and Grimsby Railway Co. [(1865) 6 B. & S. 794 [122 E.R. 1386]]. There the Statute provided that the justices should be disinterested parties, but the words were held not necessarily to prevent waiver. A distinction has been drawn between public judicial tribunals and private judicial tribunals, but I am not satisfied that that is a sound distinction.”
[75] Vakauta v Kelly (1989) 167 CLR 568, 577 (Dawson J).
Respectfully, there is nothing on pages 578 to 579 of the reasons of Dawson J in Vakauta v Kelly to support the observation that a less strict view is taken of waiver in criminal matters. Many of the cases discussed are civil cases. Dawson J concluded on page 579:[76]
In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.
[76] Vakauta v Kelly (1989) 167 CLR 568, 579 (Dawson J).
Nonetheless, in the passage extracted from page 577 (set out above), Dawson J qualified the approach to waiver by saying that in “a criminal prosecution where the public is directly interested in the outcome”, the approach “may be different”. That is, notwithstanding the availability of waiver in a criminal matter, there may nevertheless arise the potential for “danger of the appearance of injustice”.
It is difficult to regard this qualification as supporting any marked difference in the relevant principles to be applied in civil and criminal cases.[77] For example, there is no doubt that counsel may waive a client’s right to object in both civil and criminal proceedings.[78] In addition, and despite the public’s interest in criminal proceedings, where the right to make an objection has been waived, that waiver generally precludes interference by the appeal court.[79]
[77] However, see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, [76] (Gummow ACJ, Hayne, Crennan and Bell JJ): It is well established … that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. (It may well be that the principle extends to criminal proceedings but that issue need not be considered.)”
[78] R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ, McInerney J); Crampton v The Queen (2000) 206 CLR 161, [18] (Gleeson CJ); Ali v The Queen (2005) 79 ALJR 662, [25] (Hayne J, with whom McHugh J agreed); Nudd v The Queen (2006) 80 ALJR 614, [9]-[10] (Gleeson CJ).
[79] See, for example, R v Williams [1914] 1 KB 608, 613-614 (Channell J, with whom Rowlatt and Atkin JJ agreed); Prowse v Bartlett (1972) 3 SASR 472, 476 (Bray CJ); Howie v Sutcliffe (1988) 49 SASR 225, 228-229 (von Doussa J); and Zanker v Kupsch [2014] SASCFC 13, [76] (Kourakis CJ, with whom Anderson J agreed).
What this qualification may however suggest is that there is some scope in a criminal matter, unlike a civil matter, to raise the danger of the appearance of injustice notwithstanding what appears to have been an effective waiver of a client’s rights. The qualification expressed by Dawson J is fleeting and far from emphatic. When or on what facts this danger might arise remains unclear. Nonetheless there may be cases where the reasonable apprehension of bias is so obvious, and the basis for the objection so clear, that any waiver of the right to object to the judge sitting results in the danger of the appearance of injustice. One might point, for example, to a case where the victim before the court is very well known to or a close relative of the judge. Were counsel to explicitly waive the right to object in that kind of case, it might well be said that there arises the danger of the appearance of injustice. This is an issue arising more naturally in a criminal case given that the public interest in a criminal matter is more evident than in a civil matter. On these hypothetical facts counsel’s ostensible authority might also be doubted because there inevitably arises a real question about whether there could be any rational explanation for the decision-making of counsel.
It will be necessary to return to the possible qualification raised by Dawson J when addressing the issue of a miscarriage of justice.
However even if it is to be assumed that something more is required to evidence waiver in a criminal case, on any view that is satisfied in this case. A reading of the transcript and the affidavit, set out earlier, clearly show that counsel was rationally acting within his ostensible authority when he explicitly waived any right that his client may have had to object to the magistrate continuing to sentence.
In these circumstances, subject to the issue regarding a miscarriage in the sentencing process, the appeal should be allowed.
Was there was a denial of procedural fairness?
It is not necessary to rule on the appellants’ complaint that, because the judge effectively decided the appeal on a new appeal ground, they were denied procedural fairness. The transcript of the hearing tends to expose the thinking of the judge. Nonetheless, with hindsight, it may have been preferable if the question of a miscarriage in the sentencing process had been put to the parties and made the subject of a separate appeal ground.[80]
[80] Cf Gipp v The Queen (1998) 194 CLR 106, [52] (McHugh and Hayne JJ): “In a criminal appeal, the adversarial nature of the proceedings is maintained. The appellant frames the issues for determination by the appellate court by selecting the grounds upon which he or she relies ... The court plays no part in framing the grounds of appeal” (in dissent on the outcome); [130] (Kirby J).
Having said that, the respondent’s contention that the judge found that there was apprehended bias, and that she thereby made a decision upholding appeal ground 1, must be rejected.
The parties to this appeal sought to make too much out of paragraph [32] of the reasons of the judge.
A reading of her reasons as a whole demonstrates that the judge was concerned that there was no opportunity to take instructions and the respondent had not personally given specific instructions on the question of bias. On these bases her Honour found that there had been a miscarriage in the sentencing process. The judge did not determine whether there was ostensible bias because she thought it was impossible to do so without first obtaining more information from the magistrate.
Accordingly it cannot be said, contrary to the appellants’ submission, that any objection based on apprehended or ostensible bias effectively failed.[81]
[81] Because the onus of establishing an allegation of apprehended bias rests with the party alleging it: Martin v Henderson [2020] WASC 473, [49] (Allanson J); Dispute Resolution Associates Pty Ltd v Selth (No 2) [2020] FCA 844, [120] (Collier J).
It is now appropriate to address the finding that there was a miscarriage in the sentencing process.
Whether there was a miscarriage of justice?
Where an appeal is taken from a decision of a magistrate pursuant to s 42 of the Magistrates Court Act 1991 (SA) (the Magistrates Court Act) the appeal is by way of rehearing,[82] and the Supreme Court is required to reconsider the materials before the magistrate and “make up its own mind”, albeit without disregarding the judgment under appeal.[83]
[82] Magistrates Court Act 1991 (SA) s 42(1); Uniform Civil Rules 2020 (SA) rr 217.10(1)(a), 218.17(1)(a). See generally, Police v Cadd (1997) 69 SASR 150, 189 (Lander J); Sharman v Police [2015] SASC 159, [15] (Vanstone J).
[83] R v Taylor [2014] SASCFC 112, [18] (Stanley J, with whom Kelly and Peek JJ agreed) regarding rehearings under s 42(5) of the Magistrates Court Act 1991 (SA). See also Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
There has for some time been debate about whether an appellant must demonstrate a “miscarriage of justice” on an appeal from a magistrate pursuant to s 42 of the Magistrates Court Act. In Gazepis v Police, Doyle CJ explained:[84]
The powers of this Court on hearing the appeal are to be found in s 42(5) of the Magistrates Court Act. The power is expressed in a form which is quite common, and includes the power to “confirm, vary or quash the judgment subject to the appeal.”
Such provisions in this State have been interpreted as not requiring or permitting the Court to allow an appeal, despite an error in the Court below, if the Court is satisfied that there has been no miscarriage of justice: see, for example, Newman v Byrne [1969] SASR 350 at 353 per Mitchell J and O’Leary v Daire (1984) 13 A Crim R 404 at 416 per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.
[84] Gazepis v Police (1997) 70 SASR 121, 129 (Doyle CJ, with whom Lander and Bleby JJ agreed).
It has been suggested that the use of the term “miscarriage of justice” is unfortunate because it invites confusion with the common form criminal appeal provision, s 158(1) of the Criminal Procedure Act 1921 (SA), which does not apply to appeals taken under s 42 of the Magistrates Court Act.[85]
[85] See Le Cornu v Thomas (2019) 134 SASR 421, [30]ff (Peek J, with whom Bampton and Lovell JJ agreed).
Recent authority tends to favour the view that, even where an error is made out, where the charge was so clearly proven that it is inevitable that the magistrate would have found it proven irrespective of the error, the appeal must be dismissed.[86] That is, the appeal will be dismissed where the error had no effect upon the outcome. It is for the respondent to the appeal under s 42 of the Magistrates Court Act to demonstrate that no miscarriage of justice has occurred.[87]
[86] Le Cornu v Thomas (2019) 134 SASR 421, [30] (Peek J, with whom Bampton and Lovell JJ agreed), followed in Sharman v Thomas [2020] SASCFC 52, [11]-[13] (Stanley J, with whom Kourakis CJ and Hughes J agreed) and Boyle (a pseudonym) v The Queen [2022] SASCA 50, [133]-[135] (Livesey P, Lovell and Bleby JJ): “In practical terms, there is probably little difference between the tests under the common form proviso and that suggested in Le Cornu”.
[87] Le Cornu v Thomas (2019) 134 SASR 421, [30] (Peek J, with whom Bampton and Lovell JJ agreed) citing Pelham v Homes [1928] SASR 105; Pope v Ewendt (1977) 17 SASR 45: Police v Theophilus (2011) 110 SASR 420, 438-440 (Peek J).
The complaint on appeal to the judge in this case concerned the question whether there was ostensible bias, that is, whether there was a failure to afford the then appellant procedural fairness in connection with the sentencing process. If there was, it was for the then respondents to demonstrate that “compliance with the requirements of natural justice could have made no difference”.[88]
[88] Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [29] (Kiefel CJ, Gageler and Keane JJ), [40] (Nettle J), [72] (Edelman J); MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [31] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
As has been seen, no ruling was made on the question of apprehended bias by the judge. The judge found that there was a miscarriage in the sentencing process because there had been no opportunity to take instructions and because the respondent had not personally given specific instructions on the point.
As both propositions must be rejected there cannot be said to have been any denial of procedural fairness nor a miscarriage in the sentencing process. Any failings by counsel or the magistrate to adhere to good practice did not amount to a failure in the sentencing process which rendered that process relevantly unfair or unjust. For example, it cannot be said that the conduct of counsel in this case, or even the conduct of counsel combined with the conduct of the magistrate, resulted in a process that was so unfair that this of itself represented a miscarriage:[89]
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel's conduct might have affected the verdict.
[89] TKWJ v The Queen (2002) 212 CLR 124, [76] (McHugh J), referring to Wilde v The Queen (1988) 164 CLR 365. See also Nudd v The Queen (2006) 80 ALJR 614, [80]-[90] (Kirby J). In the latter case the Court however emphasised the need for the appellant to demonstrate that counsel’s conduct caused a miscarriage of justice: [8]-[9], [20] (Gleeson CJ), [25]-[34] (Gummow and Hayne JJ), [78]-[81], [104], [110] (Kirby J), [158]-[162] (Callinan and Heydon JJ).
In this case it cannot be said that there was “such a departure from the essential requirements of the law that it goes to the root of the proceedings”.[90] On the contrary, the magistrate disclosed an association with a victim and counsel determined to proceed to sentence, declining to take the objection. To act in this way was on the evidence both rational and in accord with, at the least, the ostensible authority of counsel.
[90] Wilde v The Queen (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ); Nudd v The Queen (2006) 80 ALJR 614, [35] (Gummow and Hayne JJ).
It cannot be said that this is a case where, despite what appears to have been an effective waiver of the right to object on the ground of apprehended bias, there nonetheless exists some danger of the appearance of injustice. Whether the issue is addressed having regard to the evidence and material available to the magistrate, or whether the issue is addressed having regard to the totality of the evidence and material now available to this Court, there was no basis for the magistrate, and there is no basis for this Court, to question the authority of counsel to waive the right to object on the ground of apprehended bias.
There was no miscarriage in the sentencing process.
Were the sentences manifestly excessive?
As the question whether the sentence was manifestly excessive was not addressed in the Court below, it is necessary to address it now.
Excluding the 26 dishonesty, property and drug offences before the magistrate, the respondent had approximately 200 prior convictions.[91] These included matters as serious as armed robbery, aggravated assault causing harm and aggravated serious criminal trespass. They also included numerous dishonesty, property, driving and drug offences.
[91] Antecedent Report dated 4 March 2021 exhibited to Affidavit of Stuart Alexander Rees affirmed on 17 May 2021 (SAR-8).
The magistrate was correct to conclude that there was “minimal” scope for leniency, and that the prospects for the respondent’s rehabilitation were “poor”.[92] Nonetheless, the magistrate accepted that there was genuine remorse.
[92] Goode v Kowald (1972) 4 SASR 579, 581-583 (Walters J); see also R v Gibbings [1936] SASR 36, 37 (Murray CJ, with whom Parsons and Richards JJ agreed).
When one considers the prescribed maximum penalties, the magistrate’s notional starting points were, proportionately, low. The ultimate sentence which was imposed was within the range that could be justly imposed.[93]
[93] R v Niesen [2015] SASCFC 165, [23] (Stanley J, with whom Nicholson and Lovell JJ agreed).
Although the ultimate overall sentence might appear comparatively high for offences of this general kind, the respondent fell to be sentenced for a total of 26 offences for offending over a 21-month period between 28 September 2018 and 3 June 2020, in addition to having a suspended sentence revoked and unperformed community service statutorily translated into a prison term. Notably, the vast majority of the offending was committed whilst the respondent was already on a suspended sentence bond.
In all of these circumstances, it cannot be said that the sentences, when viewed individually were, or the sentence when viewed as a whole was, manifestly excessive. The appeal to the judge on this point should be dismissed.
Conclusion
The following orders should be made:
1.The appellants are granted permission to appeal.
2.The appeal is allowed.
3.The orders made by David J are set aside and, in their place, there will be an order dismissing the respondent’s appeal from the sentencing magistrate.
44
50
1