Police v Polinski
[2012] QMC 27
•13 August 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Polinski [2012] QMC 27
PARTIES:
POLICE
(prosecution)
v
AMANDA JANE POLINSKI
(defendant)
FILE NO/S:
MAG73334/12(8)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Application to recuse
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
13 August 2012
DELIVERED AT:
Brisbane
HEARING DATE:
20 July 2012
MAGISTRATE:
Springer BL
ORDER:
Application to recuse dismissed
CATCHWORDS:
PRACTICE AND PROCEDURE – COURTS GENERALLY - RECUSING – whether a magistrate should disqualify themself – whether there is a reasonable apprehension of bias – whether a delay in applying for recusal waives the right to apply
COUNSEL:
Heasley B (sergeant) for prosecution
Bosscher M (solicitor) for defendant
SOLICITORS:
Prosecution on own behalf
Bosscher Lawyers for defendant
The defendant is charged with one count of public nuisance, said to have occurred at Suncorp Stadium in Brisbane on the 13th of November 2011. The defendant is legally represented by Mr Bosscher in the trial.
On the 20th of July 2012, the trial commencement had been delayed due to problems with the technology needed to play footage of the events at Suncorp Stadium. I entered the courtroom at about 10.30 a.m. on the understanding that the matter was then ready to proceed. Mr Bosscher was, as it happened, then not in the courtroom, but his client, the defendant, was. I remained in the courtroom.
It appears when Mr Bosscher entered the courtroom a short time later, he did not see me and queried the Prosecutor, in a friendly way, as to whether the recording was now able to be viewed. I alerted Mr Bosscher to my presence in the courtroom and at that point, after a brief exchanged - after a brief exchange, I asked Mr Bosscher if he had a practicing certificate. That question had no connection to the previous exchange. He said that he did and the trial commenced.
The Prosecutor, Sergeant Heasley, took responsibility for the delay in not having the recording, relevant to the prosecution case, in a format that could be played using the Court equipment and needing to use a Police Service computer to play the recording. Before any evidence was called, the Prosecutor gave particulars of the offence. The trial then continued.
Just prior to the luncheon adjournment and after five witnesses, two police witnesses and three civilian witnesses had given their evidence, the Prosecutor sought to amend the particulars as he said he had made them too specific. That was objected to by Mr Bosscher. I said that I would hear submissions on that point when the Court resumed at 2.15 p.m.
After hearing submissions and standing down to consider the authorities relied on by the Prosecutor, I ruled that I would allow the amendment for the reasons that I gave orally. Immediately following that, Mr Bosscher has made an application that I recuse myself on the basis of apprehended bias.
He initially referred to my question about the existence of a practicing certificate as possibly raising actual bias towards his professional competence and professional standing. He continued his submission that he was not alleging actual bias, but rather, an apprehended bias and that such a concern was raised by his client and made plain that he viewed it as incumbent on him to make the application, given his client's comments to him.
He referred to being prepared to allow my question as to the existence of a practicing certificate, "to go through to the keeper", but it had now been raised by his client. In support of his application, he relied on the decision of the High Court of Australia, in referring to Ebner and the Official Trustee in Bankruptcy 2000 205 Commonwealth Law Reports 337 at 334.
It was, by that time, 4 p.m. on a Friday afternoon and it was clear that if I ruled then on the application to recuse myself, it would still not be possible to finish the hearing of the evidence from the remaining prosecution witnesses who had been present at the Court for the day.
I adjourned the matter for mention to today and decision on the application to recuse myself and gave till the following Friday for Mr Bosscher to make submissions and to provide authorities by electronic communication. There appears to have been a short delay in that.
The submissions and authorities relayed - relied were received by me on the 31st of July 2012. Due to my Court commitments, I was not in a position, in any event, to further consider the matter before that date.
Mr Bosscher's submissions refer to Ebner and the Official Trustee in Bankruptcy and British and American Tobacco Company and Laurie 2011 85 Australian Law Journal Report 348 and Mr Bosscher's submissions refers to the conduct of a Judge, inside or outside the proceedings, which may give rise to an apprehension of bias.
In considering this matter, I turn first to the recent Queensland Court of Appeal decision in Elsafty, E-L-S-A-F-T-Y Enterprises Pty Ltd and the Gold Coast City Council 2011 QCA 84, which in turn, considered the two decisions relied on by Mr Bosscher.
In Elsafty, the Queensland Court of Appeal confirmed, commencing at paragraph 59 and following, that the test to be applied in Australia, "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 that the Judge is required to decide.".
The Court of Appeal continued, "The plurality in British American Tobacco Australia Services Limited and Laurie observed citing Ebner and Official Trustee in Bankruptcy and Forge and Australian Securities and Investments Commission, 'It is fundamental to the administration of justice that the Judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground is disqualification.'".
The Queensland Court of Appeal also referred to the decision of Johnson and Johnson 2000 201 Commonwealth Law Reports 488 at paragraph 11, which concerned remarks made in the course of the trial by Family Court Judge about credit. Gleeson Chief Justice, Gaudron, McHugh, Gammow and Hayne Justices stated, "The hypothetical reasonable observer of the Judge's conduct is postulated in order to emphasise that the test is objective, is founded in 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 Judges in the Johnson case then said, "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law or of the character or ability of a particular Judges" - "a particular Judge, the reasonableness of any suggested apprehension advice is to be considered in the context of ordinary judicial practice.".
In Johnson's case, on the issue of the fictitious bystander, Kirby J had said, "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 the representatives which was taken out of context. A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.".
Chief Justice French in British and American Tobacco and Laurie said he agreed with Justice Kirby's comments on that point. The Chief Justice, as did Justice Gummow, cite with approval a remark from 1986 where his Honour Justice Mason said, "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 that he will decide the case adversely to one party.".
Also in British and American Tobacco, Chief Justice French, at paragraph 38 said, "There is a variety of ways in which the impartiality of a Court may be, or may appear to be compromised.". Dean J in Webb and the Queen identify four of them as a distinct, though sometimes overlapping main categories of case. They were stated by the Chief Justice. They include that relied on by Mr Bosscher, namely conduct, where the Judges engaged in conduct in the course of, or outside the proceedings giving rise to such an apprehension of bias.
At paragraph 39, his Honour stated, "The requirement that an apprehension of bias, based on judicial conduct, be, 'firmly established', is consistent with the most recent decisions of this Court and gives content to the establishment that an apprehension of bias in that class be reasonable.".
The majority Justices in British American Tobacco, those were Justices Heydon, Keifel and Bell, said in paragraph 139, in addition to what the Queensland Court of Appeal quoted in Elsafty that I've already referred to; they said, "Because the rule is concerned with the appearance of bias and not the actuality, it is the perception of the hypothetical observer that provides the yard stick. It is the public's perception neutrality with which the rule is concerned.".
The majority continued at paragraph 140, "Of course Judges are equipped by training, experience and the oath or affirmation to decide factual contents solely on the material that is in evidence. Trial Judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the Judge from further hearing a proceeding.".
In this matter, there was a question put by me about the right of Mr Bosscher to appear at that time. He has earlier appeared before me on multiple occasions for other offenders. His affirmative response to my question finalised the issue. The trial proper started and continued for several hours with examination and cross-examination of five witnesses and viewing of CCTV footage.
In the current matter, the prosecution evidence is not finished and I had previously given an indication that if the defence wished to recall any of those witnesses already called, that would be permitted.
A reasonable member of the public with some knowledge of Court practices would, in my view, expect a Magistrate to be able to put to once side any matters not directly relevant to the issues to be determined. The question I put to Mr Bosscher, objectively viewed, went to his right of appearance. It does not impugn his credibility, nor his ability as a defence lawyer. Objectively viewed, the question does not have any consequence for how I view the witnesses' evidence in determining whether the prosecution has met the onus it carries to establish the element of the charge of public nuisance. The apprehended bias cannot be said to be, "firmly established", nor can it be said to be reasonable.
Further, if it could be viewed that a bias were reasonably apprehended, the defendant has waived the right to object at the time that she did. For example, in the decision of Vaukata, V-A-U-K-A-T-A and Kelley, K-E-L-L-E-Y 1989 167 Commonwealth Law Reports 568, the majority at paragraph 5 said, "Where such comments are likely to convey to a reasonable and intelligent lay observer an impression of bias had 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. 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.".
Although those comments from the Higher Court were made in the context of a civil trial, in my view, they equally apply here. While Mr Bosscher's submission was not made after a decision following the conclusion of the trial, the timing of the submission, after the five witnesses had given their evidence, when it could have been raised before any evidence had been called, in my view, the defendant has waived her right to object.
After considering Mr Bosscher's submissions and various authorities referred to by him and the result of my own research and the submissions generally in this matter, taking into regard the specific conduct complained of, I dismiss the defendant's application that I recuse myself or disqualify myself from continuation of the trial.
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