Police v Lehmann
[2006] QMC 1
•20 June 2006
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Lehmann [2006] QMC 001
PARTIES:
POLICE
(respondent)
v
BRIAN DAVID LEHMANN
(applicant)
FILE NO/S:
MAG223404/05(7)
DIVISION:
Magistrates Court
PROCEEDING:
Application for magistrate to disqualify themself
ORIGINATING COURT:
Magistrates Court at Atherton
DELIVERED ON:
20 June 2006
DELIVERED AT:
Atherton
HEARING DATE:
9 June 2006
MAGISTRATE:
Braes TJ
ORDER:
Application dismissed
CATCHWORDS:
PROCEDURE – RECUSING – when should magistrate disqualify themself
COUNSEL:
D Hodgens (sol) for the applicant
SOLICITORS:
The preamble to this matter is set out in the introduction of the written submissions made by Mr Murray on behalf of Mr and Mrs Lehmann.
The parties submit that I should disqualify myself from hearing these matters on the grounds of bias, both apprehended and real.
Mr Murray does not mention it, but I have also had other matters before me involving Mr and Mrs Lehmann. Mrs Lehmann appeared, I recall on behalf of herself and Mr Lehmann as claimants in the Small Claims Tribunal. The claim arose out of a tenancy dispute with the mother of the child complainant in the criminal charges against Mr Lehmann. In the first instance after hearing from Mrs Lehmann in the absence of the respondent I gave judgment for Mr and Mrs Lehmann. I subsequently allowed a rehearing of the matter on the application of the respondent as she advised that she had not received notification of the original hearing. After hearing Mrs Lehmann and the respondent I dismissed the claim. I believe that these two hearings were dealt with after the sentence of Mr Lehmann on three counts of indecent dealing, being the sentence to which Mr Murray refers.
Mr Murray also advises that in respect of Mrs Lehmann I dealt with her on a Weapons Act offence plea of guilty and placed her on a good behaviour bond without recording a conviction.
The submission that I should disqualify myself on the grounds of bias is made on behalf of both Mr and Mrs Lehmann. Mr Lehmann is to appear in the Atherton Magistrates Court charged with two offences under the Weapons Act to which I understand he intends to plead not guilty, and Mrs Lehmann has lodged an appeal against a decision by the authorised police officer to revoke her weapons licence subsequent to her plea of guilty to the Weapons Act charge previously referred to. Mr Murray first raised this submission in the Atherton Magistrates Court on the 9th May, 2006. Once raised I requested that written submissions be put forward so that the submission could be properly argued and considered. On this occasion I indicated to Mr Murray that I could not recall the exact expression of the principle of law, which I did have written in a note on the bench of my court in Mareeba, but not Atherton. I did not give the submission consideration, having called for written submissions. I did not intend to make any statement on that day about the principle of law involved. The reason for asking for written submissions was so that I could give proper consideration to the application. I am therefore surprised that Mr Murray should now submit that my off the cuff, unprepared, qualified statement amounts to a legal error, and evidence of actual bias.
I am grateful for the assistance of Magistrate Heilpern and the paper prepared and presented by him at the 2004 New South Wales Magistrates annual conference. With his permission I will refer extensively to that paper.
Magistrate David Heilpern
1. Introduction
This issue has particular relevance for the Local Court as Magistrates are determining facts as well as law in each matter. Accordingly, we are confronted regularly with issues that trouble higher courts with less frequency. The issue has even greater importance for those who sit on country circuits – the very nature of being a country Magistrate means that almost every day we are confronted with situations that have the potential for the issue of bias to be raised.
The courts and academic commentators have reported an increase in the frequency of applications by litigants that judicial officers should disqualify themselves in particular cases on account of their participation in previous proceedings involving one of the litigants or on account of conduct during the proceedings.[3]
[3] Allars, Prof M, “Procedural Fairness: Disqualification required by the Bias Rule”, The Judicial Review Vol 4 No 3 (1999) p 269 and Re Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295 15 October 2003.
Broadly, there are two types of overlapping matters that are to be considered. The first is where the judicial officer has previously dealt with the same defendant, witnesses or factual situation in previous proceedings. The second is where there is a statement or finding during the course of proceedings that could be considered prejudging an issue.
The issue also has importance for those managing the local courts – where a Magistrate is disqualified there is often the cost of replacing them, the delay that may be occasioned when a matter cannot be heard, and even the abandonment of some part-heard proceedings that may need to be begun again. There is clearly a tension between principles of case management involving intervention before and during trials, and the rule against bias.[4] The Australian Law Reform Commission has even questioned whether the rule against bias should be amended or abolished to take account of increased judicial intervention in civil cases.[5]
[4] Duthie L, Case Management: “The Case for Judicial Intervention”, Law Institute Journal, April 2002, 80 at 82. See also Lewis G, “When in doubt, out! Judicial Conflict of Intersest”, Law Institute Journal, December 1994, 1176.
[5] ALRC Issues Paper 20 para 5, 15.
An analysis of this issue is made more difficult by the different approaches taken by various courts and single judges over the years. In particular, in New South Wales the Court of Appeal and the Court of Criminal Appeal have had differing approaches at various times.[6] To a large extent, these differences have been ironed out by the leading case discussed below.
[6] See for example Masters (1992) 59 A Crim R where the Court of Criminal Appeal found that it was not bound by the Court of Appeal. The CCA declined to follow the majority in ANI v Spedly Securities Ltd(1992) 26 NSWLR.
Several of the cases below involve jury trials, and it is arguable that different standards apply to situations where the judicial officer is finder of fact. However, in R v Kearns [2003] NSW CCA 367 (1 December 2003) Spigelman CJ commented (at 34):
“The fact that the trial judge's role in a jury trial is limited is not determinative of the matters, however, it is of significance. That it is not determinative is shown by the Court of Appeal in the case of Balic (No 2) (1994) 75 A Crim R
515 at 520, where their Honours said:
Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge."
Further, many of the leading cases involve either judge only trials, or hearings in non-jury jurisdictions. In my view, the principles to be applied are the same.
2. Bias - Determination in Prior Cases.
Livesey v NSW Bar Association (1983) 151 CLR 288 represents the high water mark of cases where disqualification was required and the application of the rule in this case led to an increase in the frequency of applications to disqualify on the basis of bias.
This case involved an application by the Bar Association for a declaration that Peter Livesey was not a fit and proper person to be a member of the Bar. The Court of Appeal heard the application including evidence from Wendy Bacon. Two of the Judges of the Court had previously sat on the application of Wendy Bacon to be admitted to the Bar. Evidence in both cases centred on the arranging of bail for Stephen Sellers. In the Bacon matter, both Judges had found that, in relation to the bail of Sellers, her evidence was not credible and that she had not told the truth. Indeed they found she was part of a corrupt conspiracy, which included Livesey and found that they both knew where the money had come from.
It is important to note that they had not only previously found Bacon not credible, they had specifically made findings adverse to Livesey as a partner in a corrupt conspiracy relating to precisely the same set of facts in the subsequent case.
Despite an application that they disqualify themselves, the two judges sat on in the matter of Livesey, again finding that Bacon’s evidence was not to be believed and that Livesey was part of the conspiracy in regard to the bail. The High Court upheld Livesey’s appeal on the basis of bias by reason of pre-judgement.
Although not willing to set down an inflexible rule the court found that
“a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgement if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of witness whose evidence is of significance on such a question of fact”
Clearly this is a broad and sweeping statement. As will be seen below that broadness has been significantly eroded in recent times and does not represent the approach of the courts at present.
A more modern approach is found in Re Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295 15 October 2003 where Court of Appeal was considering whether a Magistrate ought be disqualified by reason of bias. They considered the earlier matter of Klewer v Dutch (discussed below), and found that that finding, on the facts found by Hill J appropriate.
Klewer had made an application for the Magistrate to disqualify himself on the basis of apprehended bias on two grounds. Firstly, Klewer had made complaints to the ICAC regarding the Magistrate, another Magistrate, court staff and the police. Secondly, the Magistrate had presided over previous matters in which Klewer was a party. At first instance Klewer appealed to the Supreme Court and the matter was dealt with by Levine J who found in relation to the first ground, that
“A judicial officer should not lightly recuse and the test of reasonable apprehension of bias is one that sets a high bar”.
He also found that the manner in which the Magistrate had previously dealt with those matters
“could not found any reasonable apprehension that his Worship would not bring to bear, in accordance with the requirements of his office, the impartiality expected of him”.
The Court of Appeal concurred with those comments, even though those previous matters involved findings of fact adverse to Ms Klewer.
On the second ground, Levine J found in favour of Klewer for reasons not abundantly clear, and the Court of Appeal did not agree with this finding. In considering this issue, the court made some important comments regarding bias in general.
“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p 14; ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
"But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be “real”. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded”.
The court agreed with Levine J as follows:
"Without doubt no litigant whether represented or otherwise should consider that the making of a complaint to an investigatory body such as ICAC or the Judicial Commission about a Judge hearing that litigant's case will automatically involve that Judge self-disqualifying. The reasons are obvious. It would be a mechanism of much mischief in the administration of justice if that course could be taken with such facility.
Unsubstantiated allegations of this type made by disappointed litigants provide no basis upon which a judicial officer, who has been allocated to a particular matter, should recuse”.
In the original hearing the Magistrate had commented that it was “good policy” to avoid hearing cases where there had been a complaint. The court found that
“His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part.”.
In Klewer v Dutch [2000] FCA 509 the Federal Court was considering an appeal from a decision of Magistrate Doring. Ms Klewer was seeking that he disqualify himself from hearing her case as he had previously not accepted her evidence in numerous other cases – at least six are specifically mentioned. The court listed several occasions where the magistrate had rejected her evidence on credit at the criminal standard of proof. Ms Klewer had lost all her cases before Mr Doring. Hill J found that in all the circumstances this was a case where the parties or the public might entertain a reasonable apprehension that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the issue before him.
This case is distinguishable for the number of prior matters where the Magistrate had made adverse findings. Clearly, there is a line where a reasonable apprehension of bias could occur where there have been many prior adverse findings.
In Fitzgerald v DPP (Unrep 11 September 1991 Court of Appeal) a trial judge had determined that two matters of fraud ought be heard separately and they were heard by Judge alone. In the first case the Judge directed that the defendant be acquitted as he was not satisfied beyond reasonable doubt as to identification. During the course of that finding he said that “although it seems more likely than not that indeed the accused was in fact in possession of both that property and the cheque book”. However, that finding because of its level of proof, or because of its lack of materiality, was not capable of establishing the prosecution case.
The defence sought that the second matter be tried forthwith, and it was obvious that such a course would lead to the acquittal of the second charge had the Judge made the same findings on identification. The prosecution sought that the Judge disqualify himself and he did so. The Court of Appeal found that there was no proper cause requiring the Judge to disqualify himself.
“The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not, in my view, indicate pre-judgement.”
In R v Kearns [2003] NSW CCA 367 (1 December 2003) the Court was presiding over a jury trial immediately having heard the jury trial of a co-offender. He was asked to disqualify himself. The first trial had heard evidence relating to Kearns, and the judge had referred to his role in summing up on 61 occasions. Spigelman CJ:
“I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge's mind, in terms of his or her conduct in the second trial.
These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.”
3. Bias - prejudgement by comment or finding in the instant case
In R v Watson: Ex parte Armstrong (1976) 36 CLR 568 the trial judge had stated categorically at the commencement of the trial that his opinion of the parties was such that credit was a “non issue” and that he would not believe either of them unless his or her evidence was corroborated. It was held by the High Court that the judge had created a reasonable apprehension of bias in the form of prejudgement.
In Vakauta v Kelly (1989) 167 CLR 568 Hunt J was dealing with a civil matter involving expected expert evidence from three medical practitioners for the GIO. He referred to them in preliminary proceedings as “that unholy trinity” and as “the GIO’s usual panel of doctors who think you can do a full week’s work without any arms or legs”. He made further comments in his judgement referring to one practitioner’s evidence as “as negative as it always seems to be – and based as usual on his non-acceptance of the genuineness of any plaintiff’s complaints of pain”. Brennan, Deane and Gaudron JJ:
“It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical experts who are frequent witnesses in his or her court. In some cases and notwithstanding the professional detachment of an experienced judge, it will be all but impossible to put such preconceived views entirely to one side in weighing the evidence of a particular medical expert. That does not, however, mean that the judge is disqualified from hearing the particular action or any other action involving that medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on ... a question of fact" which "constitutes a live and significant issue" in the case.
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. 5
By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. 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.
Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.
While, as we have indicated, the line between comments which would be likely to have that effect and comments which would not is necessarily an imprecise one, we have come to the conclusion that, when they are read in the context of what was said in the course of the trial, his Honour's comments in his judgment fall on the wrong side of that line”.
In Masters, Richards and Wonderlich (1992) 59 A Crim R 445 the trial judge made a determination as to bail prior to the trial. In it, the judge made adverse findings as to credit and stated the accused was likely to commit further serious offences if granted bail. The court acknowledged that it may be assumed that “if in the trial which was to follow the appellant were to give evidence of the voir dire in support of an objection to evidence, he could reasonably apprehend that the judge may form a similar view as to his credit in relation to that evidence”.
The court found that this does not amount to pre-judgement which requires disqualification in order to avoid an apprehension of bias:
“The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party.”
To find otherwise, the court found, would “make nonsense of the justice system”
The trial judge had also heard a previous case involving the same police operation and other co-offenders. In sentencing after that trial, the judge had paid tribute to the police involved in the difficult police investigation, and in particular had paid tribute to Inspector Brammer, the informant. It was argued that those comments gave rise to an appearance of bias in any future determination of those officers evidence in a voir dire with respect the current defendants. This ground was also rejected, stating that an objective determination did not lead to the appearance of bias as claimed.
In Balic (1994) 75 A Crim R 515 the trial Judge had just completed the trial of a co-offender and the defendants matter was listed for mention. He had been on bail for three years. The judge was heard to say in chambers “I’m about to spring bail on my accused”. With reference to evidence admitted in the co-offenders trial, the judge said that there was a very strong case against Balic. Despite arguments from Balic’s counsel that the evidence may be different in the new trial, and that the prosecution did not oppose bail, he was refused bail. The Court of Appeal found that a fair minded member of the public could reasonable hold the view that any subsequent trial presided over by the trial judge may not have been impartial. 7
Note that there was nothing wrong with back-to-back trials involving the same witnesses. The issue was that Court J gave the impression from his comments on bail that his conduct of the new trial would be affected by evidence from the previous one.
In R v Lars (1994) 73 A Crim R at 91 the Court of Criminal Appeal was considering a trial at which the Judge on a voir dire had made a finding on an accused person’s credibility. The issue was admissibility of an admission, and there was conflicting evidence by police and the accused. The trial judge rejected the evidence of the accused effectively finding that it was untruthful. The court found that this did not require him to disqualify himself. The trial Judge was required to make such a finding as an ordinary incident of his presiding at the trial.
In Gibson v O'Keefe (Einstein J, Supreme Court of New South Wales, 20 May 1998, unreported) the Commissioner for the ICAC was hearing a matter involving Gibson with allegations he was corrupt. He made public comments outside the hearing involving Gibson during a recess. Gibson sued the commissioner for defamation. The Commissioner gave a conditional apology but refused to disqualify himself from the hearing. Einstein J held that there was an appearance of bias in that a fair-minded observer would apprehend that the Commissioner had a preconceived negative attitude to the character and views of Gibson.
In Johnson v Johnson [2000] HCA 48 7 Sept 2000 Anderson J in the Family Court had made the following statement in the course of proceedings:
“As I indicated a couple of times earlier in the proceedings, I will be certainly looking to the independent people and independent documents in the search for truth in this matter”
As a result, a party asked him to disqualify himself based on R v Watson: Ex parte Armstrong (above). He declined to do so and the matter was appealed first to the Full Court of the Family Court, and then to the High Court. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) found as follows:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which in the present case was said to take the form of prejudgement) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”
“The hypothetical reasonable observer of the judges conduct is postulated in order to emphasise that the test is objective, is founded on the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial”
“The reasonableness of any suggested apprehension is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of a judgement, as inscrutable as the Sphinx…..Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgement”.
The Court found that an apprehension that Anderson J had formed a concluded view on the credibility of the witnesses, and would not bring an open mind to bear when he decided the case, would have been unwarranted and unreasonable.
Kirby J agreed, and analysed the history and context of the matter from a much broader perspective. On the issue of the expression of tentative views, he found that
“Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that court have settled the adjudicators undisclosed concerns”
On the issue of the fictitious bystander, he found that
“Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context….a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”.
In Flack v DPP [2000] NSWSC 125 (9 March 200) a Magistrate was part heard in a bail hearing, which had gone over two prior days. At the completion of the prosecution case on bail on the third day the defence sought an adjournment as the defence instructing solicitor was ill. The Magistrate acceded to the request for an adjournment, but invited the DPP to renew their application that bail be revoked until the matter could be listed. He then revoked bail and set the matter down for the balance of the bail hearing saying “he was not closing the door on the totality of material” he would ultimately have to consider. He was asked to disqualify himself on the basis of prejudgement and declined. On the issue of disqualification, Hidden J found that by refusing bail a fair minded member of the public could reasonably conclude that the Magistrate had prejudged the outcome of the proceedings for review.[7]
[7] Interestingly, he found that the Magistrate had no jurisdiction to revoke the plaintiff’s bail because the review proceedings had not been completed and there was an absence of “further events or fresh evidence”.
In my view this decision is difficult to reconcile with the general trend and cases such as Masters above. Indeed, the Magistrate had specifically left the door open - stating a tentative view. The reasons for the finding that the Magistrate ought to have disqualified himself are, even on a detailed reading of the case, unclear.
Further, the decision is inconsistent with a very recent decision of David R v Joseph Antoun, R v Antoine Antoun [2004] NSWCCA 268. In that case the trial judge made two determinations the subject of appeal on the basis of a failure to disqualify. In the first, the judge was enquiring as to the expected length of the defence case, Senior Counsel for Joseph foreshadowed an application the following day for a decision that there was no case to answer. The judge replied, "I see well that application will be refused. So then how long will the defence case take?" Senior Counsel protested that the judge had not heard any submissions by the defence. The judge replied, "… I'm simply telling you the application will be refused. I perceive what's in the Crown case, I perceive there's a case to answer". The next day the following exchange took place;
Steirn: My submission is that if your Honour is of that view still then it would be pointless in making a no case submission at this stage.
His Honour: It’s entirely a matter for you, Mr Steirn.
Steirn: Because you’ve already just said it cannot succeed.
His Honour: In my view it cannot.
In the second determination complained of, the judge refused bail mid-trial after hearing part of the defence case despite no application or submission by the Crown that bail be revoked. On appeal under the Bail Act, Sully J had found that bail was wrongly refused and
“(it) seems to me to lead as a matter of course to the conclusion that the deficiencies in the way in which the learned trial judge dealt with the bail revocation question did entail that a fair minded observer might reasonably have apprehended or suspected that his Honour had prejudged, or might prejudge, the cases then before him.”
Smart J in the Court of Criminal Appeal found as follows:
It would be discouraging for Senior Counsel to be told at the outset that the submission of no case to answer could not succeed. However, despite his firmly stated views the judge gave Senior Counsel the fullest opportunity to put his submissions and attended to them. Senior Counsel at least knew the difficulties which he faced. The biggest hurdle which the appellants faced was that the no case to answer application could not succeed in view of the evidence which had been led. In most cases trial judges have a view about whether there is a case to answer at the close of the Crown case. It is a matter to which a trial judge directs his attention as the trial proceeds. Such applications are usually dealt with quite briefly and the judge usually indicates a view at an early stage, but often not in terms as emphatic as those used by the judge in the present case. From the transcript it does not appear that the judge treated the appellants' submissions as a formality, or that he had a closed mind. At the end of them his initial views were reinforced. Lack of delicacy in expression and expressing views forcefully are not sufficient to amount to an apprehension of bias if attention is paid to the submission that there was no case to answer. That submission failed on the merits. The Crown case had to be taken at its highest. There has been no miscarriage of justice.
Trial judges frequently have to make decisions before and during a trial which adversely impact upon an accused. These include decisions upon the voir dire and bail applications. Sometimes these decisions may involve the credibility of the accused. In the normal case where there is a jury it makes the ultimate decision and will not be aware of what the judge has decided. These appellants opted for trial by judge alone. By so opting they must be taken to have accepted that the tribunal deciding the facts may have to make adverse rulings prior to verdict. It would have been unnerving to the appellants and their counsel that the judge, of his own motion rather than the Crown, raised the question of revocation of bail. The judge had been following the evidence closely and obviously thought that it was time to act. The judge heard full submissions from the appellants as to the proposed revocation of bail. The continuance or revocation of bail is a matter for the trial judge. Even if the judge made an incorrect determination as to bail, this does not mean that he was biased or that what had occurred gave rise to a reasonable apprehension of bias.
It could be thought that “unnerving” and “discouraging” are understatements. Dowd J, for similar reasons, expressed the same view.[8]
[8] From the initial posting on Lawlink it appears that Hislopp J agreed with Smart “Judges are there to decide cases, not to excuse themselves whenever a litigant doubts, without cause, the judicial qualities of those assigned to sit in judgement. Litigants should not be encouraged to treat judges like members of a jury whom they can challenge off the case with or without cause.” Pannick D, Judges, Oxford University Press, 1987.
It should be noted that this case went on appeal to the High Court of Australia. I do not read the decision of the High Court as changing the law in respect of claims of bias. I refer in particular to the following parts of the judgment:
Kirby J
34 It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL[30], this Court has "loudly and clearly" expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose amongst the judicial officers who will conduct the trial[31]. This principle has been reasserted and applied in many cases[32]. It was not questioned in this appeal.
35 The duty to discharge judicial functions is necessarily subject to any disqualifying conduct on the part of the judge subject to a recusal submission. The observations in Re JRL are a corrective to over-ready disqualification. But they are not a blanket that smothers the effect of disqualification where it has already arisen.
36 That is the case here. Once the line was crossed, as I have held it to have been, it was not repositioned by the fact that the trial judge, seemingly acting under sufferance because he was obliged to, submitted to the procedure of hearing the no case arguments and then (as he had predicted and repeated) rejected them immediately[33].
Hayne J
51 The principle to be applied in determining these appeals is not in doubt. If "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide"[56], the judge is disqualified from trying the case. The qualifications to that principle, relating to waiver or necessity, are not presently relevant.
Callinan J
The question in these appeals is whether a judge hearing a criminal trial without a jury so conducted himself as to give rise to a reasonable apprehension of bias.
The test of apprehended bias is not in doubt. It was stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy[72]:
"The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror."
It seems to me that in this case the trial judge's conduct did present an appearance, indeed an unmistakable one, of prejudgment. As the passage from Ebner makes clear, when conduct of that kind occurs, it is not relevant to the inquiry as to whether an apprehension of bias has arisen that the strength of one party's case may have brought the judge to the point of making the remarks that he did.
I interpret the decision as a re affirmation of the principle of law as I understand it to be, and as I have noted on the bench in my court at Mareeba, namely;
“ unless the applicant can show reasonable apprehension that I will not act impartially or without prejudice then I must refrain from disqualifying myself ”.
4. Commentary
It is possible to identify several themes from the cases discussed.
A: It is apparent that there has been a shift away from the strict approach of earlier cases, recognising the professionalism of the modern judicial officers, the reduction in jury matters and the involvement of judicial officers in case management.
B: Judicial officers have a duty to sit, and not be too ready to recuse. As Pannick puts it
C: There is no general rule that disqualification will result from
· previous findings of fact, credit or law involving the same witnesses or factual situations
· complaints against the judicial officer
· comments regarding witnesses or evidence
· interlocutory findings regarding admissibility of evidence or bail where findings of fact, credit or law are made
D: Preliminary comments from the bench regarding evidence, witnesses and other matters are to be encouraged. Even firm comments can be remedied by hearing submissions.
E: Comments regarding expert witnesses are even less likely to found a disqualification.
F: Complaints to other authorities against a judicial officer ought not lead to disqualification.
G: An application for disqualification by a party must be made at the first opportunity or the objection may be waived.
H: Comments outside the hearing (in chambers or in public) will found a strong basis for disqualification.
I: The lay observer has a reasonable knowledge of the legal system and is not unduly suspicious or sensitive.[9]
J: The onus is on the party seeking the judicial officer’s disqualification to show a high probability of real, substantial or firmly established bias.
Thanks to Hugh Donnelly of the Judicial Commission of New South Wales, and Jack Hourigan from the Library for their assistance in researching this paper.
[9] See also Pesce G, “Disqualification for Judges - the “reasonable man” test renamed”, Australian Law Journal, 70, 484 (1991). Analyses the history and various terms that have been used over the years to describe this hypothetical visitor to the court. Worth reading for analysis of how wise and knowledgeable this observer has been said to be. See also Kelly G, “Reviewing the Observer of Bias”, Australian Law Journal, Vol 67 340 (1994)
Have the applicants established the grounds for succeeding in the application.
The prosecution has elected not to make any submissions or express any attitude to the application.
Mr Murray submits that there are a number of reasons why I should disqualify myself from hearing the appeal of Mrs Lehmann and the criminal charges brought against Mr Lehmann.
Mr Murray contends that the ultimate question to be decided in the matters still before the court is whether Mr Lehmann is a fit and proper person to hold a weapons licence. He contends that in sentencing Mr Lehmann in respect of three counts of indecent dealing of a child I exhibited such conduct that a reasonable lay observer would have a reasonable apprehension that I would not act impartially and without prejudice towards Mr Lehmann or his legal representatives in the matters that remain before the court.
Mr Murray submits that on the 30th March, 2006 I imposed sentences on Mr Lehmann which were found on appeal to be manifestly excessive.
This is correct. This does not amount to evidence of bias to the standard discussed above.
Mr Murray submits that a reasonably short time will have elapsed from the sentence on the 30th March, 2006 and the determination of the matters that remain before the court.
I expect that if I was to list these matters for hearing now the hearings would not be set down until some time in September or October, 2006. I sit in three courts most weeks. I generally hold three callovers each week. I expect that I would ordinarily deal with 150 to 200 individuals on those three days. A lot of water will have flowed under the bridge by the time these matters are called on for hearing.
Mr Murray submits that a fair reading of the sentencing transcript indicates that I felt some indignation about some aspects of Mr Lehmanns conduct. The offending passages are not referred to. I have been unable to find any passages that would be evidence of such and that would, “ compromise the appearance of impartiality that is required of judges ”
Mr Murray submits that a fair minded lay observer who had been present in court during the sentencing hearing might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question of whether Mr Lehmann was or is a fit and proper person to hold a weapons licence. The offending passages of the transcript are not referred to. I have read the transcripts and cannot find evidence to support this submission. I have reviewed the cases as above , there is nothing in my conduct in the sentence of Mr Lehmann that might be regarded in the same light, or similar light, as the judge in the Antoun case.
Mr Murray submits that; “ apart from the level of sentencing, the hearing seriously miscarried, to the point that the defendant was denied procedural fairness and natural justice in some important respects. Your honour went to some lengths to justify denying the Defendant any real benefit regarding his plea of guilty, remorse, and co-operation with police. Firstly, without giving counsel any indication that Your Honour held this view, Your Honour stated that the defendant had attempted to withdraw his guilty plea – Decision pp7-8. If the issue had been fairly raised with counsel, the Defendant could have placed his side of the matter on record for Your Honour’s consideration. These submissions are not the appropriate vehicle in which to traverse the issue, however, I will note that the defendant was acting on legal advice, and it was not his intention to do more than withdraw his election to be dealt with summarily. Your Honour’s approach to this issue effectively denied natural justice to the Defendant. It is worthy of note that on appeal, Judge White DCJ held that the Defendant deserved credit for his guilty plea ”
The record shows that:
. The defendant appeared in the Magistrates Court Atherton on the 14th February, 2006 with his solicitor Ms Hodgens, and entered a plea of guilty.
. The following are extracts of the transcript of proceedings in the same court on the 28th February, 2006.
“MS HODGENS: I appear for Mr Lehmann, your Honour. Since the last mention on this matter my client has had counsel’s advice and on counsel’s advice my client elects to withdraw his plea and have this matter dealt with by way of indictment . ”
“ SNR CONST MASON: Your Honour , before you note the file in that regard, I actually oppose this application. Your Honour it is no small thing, in my respectful submission, to withdraw a guilty plea placed on a record ”
“ SNR CONST MASON: Thank you, your Honour. An election made and a guilty plea entered on the last date. It’s my respectful submission that it’s no small thing to reverse a guilty plea on the record. Your Honour, there are countervailing arguments and there are cases on the point, but my friend never advised me until on the doorstep of the Court that she was making this application. I’m not in a position to argue the point at this time, and there are cases I wish to get in place before your Honour in argument. Your Honour, it is a situation where the amendments made last – on the last appearance date and the pleas entered were all done subject to submissions to me by my friend. In consultation with investigating police, in consultation with the complainant child and the family and the matters set down today after those pleas being entered – the-the-the amendments being made, the election being given to this jurisdiction, the plea being placed on the record and after all that consultation, your Honour, it meant there child complainant and her family are here today, the child complainant’s here with her counsellor, the family has come along for closure on this matter today, the situation is it’s – will just cause additional trauma and distress to the child and her family if this thing’s not resolved. And as I said the prosecution has gone to inordinate lengths to comply with my friends submissions and to take the course urged on the prosecution by my friend only today to find after putting all those things in place and in the interim period of time working with the complainant child and her family in – in an order to facilitate the closure of matters today from – defined at the 11th hour. But that – but the outlying matters put to me by my friends, complied with by the prosecution are suddenly reversed.”
“ SNR CONST MASON: Your Honour, I just – I just want my objection placed on the record that this just causes further upset and distress for the – I’m not – not opposing – not reflecting on your Honour’s decision, not at all, but – but I just want it noted for the record that----”
“ BENCH : And – and – they are matters which Mr Lehmann and his counsel no doubt considered, that may be taken into account at some appropriate point in the future ”
. The defendant’s solicitor wrote to the court on the 7th March, 2006 confirming that her client did not wish to pursue his application to withdraw his current election.
. On sentence I said at page 11 and 12 –
“ I take the defendant’s plea of guilty into account, and reduce the sentence that I would otherwise have imposed. I take into account the provisions of section 9 of the Penalties and Sentences Act in relation to the only purposes for which sentences may be imposed on an offender. I have regard to section 9 (5) and 9 (6) of the Penalties and Sentences Act. I also take into account the principles in section 9.2 (b) to (n) of the Penalties and Sentences Act, and also anything else prescribed by the Act to which I must have regard. And any other relevant circumstance. For the record and for those who are not familiar with the Penalties and Sentences Act, section 9 subsection 2 is to the effect that a sentence of imprisonment should only be imposed as a last resort, and a sentence that allows the offender to stay in the community is preferable. However subsection 5 says that that subsection does not apply to the sentencing of an offender for an offence of a sexual nature committed in relation to a child under 16 ” ,
. At page 23 of the sentence transcript I confirm my belief that the defendant had not expressed remorse for his actions,
. I have been unable to find any reference on appeal where the Appellant Court referred to the defendant showing remorse for his actions,
. The defendant was represented by Mr Murray on sentence and had plenty of opportunity to canvas matters of importance. Refer page 23 line 10, page 23 line 30,
24 line 10,and page 24 line 20 particularly.
. I specifically said at pages 7 and 8 of the sentence transcript that I gave weight in mitigation to the defendant’s plea of guilty subject to the other matters that I referred to.
Mr Murray submits that although not preventing submissions in respect of the victim impact material, the reasonable observer would have been left with the clear impression that any attempt on behalf of the defendant to explain or otherwise deal with the material would be pointless.
My recollection of the proceedings as supported by the transcript is that I omitted all except one paragraph of the statement of the child’s mother, and disregarded quite a lot of the child’s statement. I summarised the use made of the statements at page 9 of the sentence transcript as follows;
“ Those statements are very useful, but they do no more than confirm the impact on the child that a right thinking person would realise. I do not overemphasise the weight or value of these impact statements ”. At the time I anticipated that the childs mother might object to the little weight that I attributed to those statements.
Mr Murray’s submission is rejected.
Mr Murray submits that I ignored the fact that Mr Lehmann voluntarily ceased offending and attributed to Mr Lehmann an allegation that the motivation for the complaint was the cessation of her employment.
The transcript shows that Mr Murray was invited to make such submissions to me as he determined appropriate. The Prosecutor also made submissions relevant to these matters, I refer particularly to the transcript of proceedings pp10,and 25 . I also refer to Mr Murrays submission on sentence at page 13:
“So you have a situation where the complainant was employed by the defendant for a period of probably - working it out roughly, probably about six weeks after the last incident, and that the complaint materialised after that.
I'm not in any way being critical of the fact of when the complaint was made, but I do submit that that's something your Honour can take into account when you consider the impact, because obviously - well, there are two aspects to it: The suggestion of [indistinct] is, I suggest, rather [indistinct] when it is recalled that she did work at his property for a reasonably significant period after the last incident, and no suggestion that he made any further attempt.
I submit that's an important factor. It's not a case like so many are where the dealing is stopped by the making of the complaint. What he did was wrong - you could say inappropriate, but it was - it's regarded as criminal. But he stopped it before her employment was terminated, and before any complaint was made to anyone.”
I did on sentence make a comment at page 9 ,
“ by inference the submission is that the complaint was made because the employment ceased ” .
I am of the opinion that that was an inference open to me on Mr Murray’s submission. I do not accept that I took the matter as high as Mr Murray submits. The following passage of the sentence transcript records that I said , “ However, I wonder what the complainant was going through. The uncertainty she felt and suffered during the period after the last episode and before the employment ceased ”.
As Mr Murray submits, and as I raised this was a matter to “ take into account when you consider impact ”.
This was a sentence of a man who had pleaded guilty to three sexual offences. It fell to me to impose a sentence in respect of those offences. On appeal those sentences were found to be manifestly excessive.
I do not believe that there is anything in the conduct of the proceedings that would raise a reasonable apprehension in the mind of a lay observer present during those proceedings that I would not/will not act impartially or without prejudice in respect of Mr and Mrs Lehmann.
Mr Murray submits that I should find otherwise, and submits further that if I do not find in favour of apprehended bias that I should find in favour of a submission of actual bias.
For the reasons expressed and the principles referred to in the various cases mentioned both submissions are rejected. The applications are dismissed.
0
10
0