Pourzand v The State of Western Australia
[2018] WASC 233
•1 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: POURZAND -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 233
CORAM: FIANNACA J
HEARD: 23 JULY & 1 AUGUST 2018
DELIVERED : 1 AUGUST 2018
PUBLISHED : 1 AUGUST 2018
FILE NO/S: INS 290 of 2017
BETWEEN: HOSSEAN POURZAND
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Apprehended bias - Trial of Issues
Legislation:
Nil
Result:
Application granted
Representation:
Counsel:
| Applicant | : | Ms M Barone |
| Respondent | : | Mr L Hobson |
Solicitors:
| Applicant | : | Lemonis & Tantiprasut Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ebner v Official Trustee in Bankruptcy [200] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners v Nicholls [2011] HCA 48 [67]; (2011) 244 CLR 427
Rayney v Legal Profession Complaints Committee [2018] WASCA 73
Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79
FIANNACA J:
Introduction
This is an application that I disqualify myself from hearing any trial of the issues relating to Hossean Pourzand (the applicant) in respect of the offences of arson and attempted fraud to which he pleaded guilty on indictment on 18 December 2017. Judgments of conviction were entered by Hall J on that day, but sentencing was adjourned pending the determination of a number of factual issues. If I accede to the application, it would follow that I would not preside over the sentencing of the applicant, as the judge who presides over the trial of the issues would be expected to sentence the applicant.
The applicant was jointly charged on indictment with Iman Rahimi (Mr Rahimi). Mr Rahimi was also convicted on his pleas of guilty to the same offences on 18 December 2017. I subsequently sentenced Mr Rahimi on 10 May 2018 after a sentencing hearing on 4 May 2018. At the sentencing hearing, Mr Rahimi was permitted to withdraw his plea of guilty in respect of the original arson offence and he subsequently pleaded guilty to a third count that was added to the indictment which pleaded the arson offence in different terms. The original arson offence charged both the applicant and Mr Rahimi with wilfully and unlawfully destroying a building by fire. The new count that was added to the indictment alleged that Mr Rahimi wilfully and unlawfully damaged the same building.
The offences relate to the destruction by fire of a commercial building, owned by the applicant, in order for him to claim insurance in the sum of $20 million. The building was located at 126 to 128 Pilbara Street, Welshpool.
There is a significant dispute between the applicant and the State about the facts on which he is to be sentenced. The facts are to be decided on a trial of the issues. It was intended that, as I had sentenced Mr Rahimi in respect of the same offences, I would also sentence the applicant and would preside over the trial of the issues. The trial was allocated to me accordingly.
The application for me to refrain from sitting in the applicant's sentencing proceedings, including the trial of the issues, does not rely on any suggestion of actual bias. It is brought on the basis of apprehended bias. More specifically, it is submitted on behalf of the applicant that there may be an appearance, in light of findings I made in sentencing Mr Rahimi, that I have prejudged factual matters that will need to be determined in the applicant's trial of the issues.
Legal principles
The legal principles in relation to apprehended bias were comprehensively reviewed by Le Miere J in Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd.[1] For the purposes of this application it is not necessary to revisit those principles in detail. I respectfully adopt his Honour's examination of the law, and note the following specific matters of principle.
[1] Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79 [8] - [16].
The legal test for determining when a judge will be disqualified on the basis of a reasonable apprehension of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[2] The test requires an objective assessment of the connection between (a) the facts and circumstances said to give rise to the apprehension and (b) the conclusion that a judicial officer might not bring an impartial mind to the determination of the issues.[3]
[2] Ebner v Official Trustee in Bankruptcy [200] HCA 63; (2000) 205 CLR 337, 344.
[3] Michael Wilson & Partners v Nicholls [2011] HCA 48 [67]; (2011) 244 CLR 427.
For the purposes of the test, a 'fair-minded lay observer' is one who is reasonable, considers the situation within 'the context of ordinary judicial practice',[4] and knows that the judge is a professional judge who is equipped by training and experience and guided by their judicial oath to decide the matters impartially upon the evidence.[5] However, as the test is concerned only with possibilities, it is not demanding.[6]
[4] Warwick Entertainment Centre PtyLtd v Earlmist Pty Ltd[2016] WASC 79 [10].
[5] Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79 [10]; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492-94 [12] - [14].
[6] Rayney v Legal Profession Complaints Committee [2018] WASCA 73 [2].
As to apprehended bias on the basis of prejudgment, the position was summarised by the High Court in Livesy v New South Wales Bar Association as follows:
[A] fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment 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 a witness whose evidence is of significance on such a question of fact.[7]
[7] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 300 (Mason, Murphy, Brennan, Deane & Dawson JJ).
Application of principles to this case
In the circumstances of this case, the question which arises is whether I have expressed clear views in previous proceedings about:
(1)A question of fact which constitutes a live and significant issue in the applicant's trial of the issues; or
(2)The credit of a witness whose evidence is of significance on such a question of fact.
Factual background
In written submissions, the applicant set out what he understands to be the State's case, in particular the factual allegations which he disputes. The State intends to call Mr Rahimi to give evidence at the trial of the issues. The applicant submits that Mr Rahimi's evidence will be critical to the State's case. In my opinion, on an objective assessment, Mr Rahimi's evidence, if it accords with his witness statement, will be very significant to prove the factual allegations that are in dispute. It may well be critical in some respects.
The circumstances may be summarised as follows.
The applicant and Mr Rahimi were indicted by the State on the basis that Mr Rahimi was the person who set fire to the building, but that he did so at the instigation of the applicant, who stood to benefit financially by making an insurance claim for the total value of the building. Mr Rahimi was a close friend of the applicant and regarded the applicant as a mentor. The State's case is that Mr Rahimi was to receive a financial reward from the applicant for committing the arson.
The applicant and Mr Rahimi were both charged with the arson offence as principal offenders. However, on the State's case, the applicant was more culpable, for the purposes of sentencing, because he instigated the offence and was the one who was to benefit from the crime. Further, the State's case is that the applicant intended either to destroy the building or to significantly damage it, whereas it was accepted in respect of Mr Rahimi that he intended only to damage the building, although the risk of destruction or greater damage than he intended was apparent. It is also the State's case that the applicant gave Mr Rahimi instructions on how to light the fire and other aspects of the planning.
The State's case is that, after the building was destroyed by fire, the applicant fraudulently made a claim on the insurance company in respect of the damage. The applicant was charged with the fraud offence as the principal offender. Mr Rahimi was charged with that offence as an accessory.
It is expected that Mr Rahimi will give evidence that he was approached by the applicant to commit the arson, that he was reluctant, but that the applicant was persistent. It is expected he will give evidence that the applicant planned the arson offence, including the method by which the fire would be set, and that Mr Rahimi followed the applicant's instructions. It is also expected that Mr Rahimi will give evidence that, after the arson was committed, the applicant expressed satisfaction with the outcome, being the total destruction of the building.
At Mr Rahimi's sentencing hearing, the State relied on a covert recording made by Mr Rahimi at a meeting he had with the applicant before the offence was committed, during which the intended arson was discussed. I will assume the State will seek to adduce evidence of the recording at the applicant's trial of the issues.
The applicant disputes that he:
(1)instigated the offending;
(2)intended to destroy or significantly damage the building;
(3)committed the offence in order to make an insurance claim for the total value of the building;
(4)was persistent or otherwise placed any pressure on Mr Rahimi to commit the offence; or
(5)was responsible for planning the offence or giving instructions to Mr Rahimi on how to commit the offence.
Significant and live issues
Therefore, as the applicant identified in submissions, the issues that will need to be determined at the trial of the issues are:
(a)Whether the applicant intended to destroy the premises at 126 to 128 Pilbara Street Welshpool;
(b)Whether it was the applicant or Mr Rahimi who initially proposed the idea to commit the offences;
(c)The comparative roles of the applicant and Mr Rahimi in the planning of the offences, and whether the applicant instructed Mr Rahimi to set fire to the building in the manner that he did; and
(d)Whether the applicant placed pressure on Mr Rahimi to participate in the offending insofar as it is relevant to determining their comparative roles in relation to (b) and (c) above.
Findings in the sentencing proceedings for Mr Rahimi
The applicant has identified a number of findings[8] in my sentencing remarks in respect of Mr Rahimi which he submits are relevant to the significant and live issues in the applicant's trial of the issues and which might lead a fair-minded lay observer to entertain a reasonable apprehension that I might not bring an impartial mind to the resolution of the same factual matters.
[8] The State of Western Australia v Iman Rahimi [2018] WASCSR 82 [13], [14], [20], [23], [9], [45], [47], [55], [56], [57], [96], [65], [63], [19] and [82].
The applicant accepts that the findings I made in Mr Rahimi's proceedings were made on the basis of the evidence tendered in those proceedings, and that different evidence might be led in the trial of the issues. However, the applicant submits that my critical findings were expressed without qualification or doubt, which is significant in determining whether they might give rise to an apprehension of pre‑judgment.
It is not necessary to address all of the findings identified by the applicant. In my opinion, some of the matters on which he relies have not been considered in their proper context, having regard to the whole of my sentencing remarks, and do not support his submission. However, I am satisfied that there were a number of key findings that directly affect the assessment to be made on this application, and it is sufficient to confine these reasons to those matters.
First, I was satisfied on the evidence tendered in Mr Rahimi's sentencing proceedings that the applicant approached Mr Rahimi with the proposition that Mr Rahimi start a fire in the building in order to facilitate a fraudulent insurance claim. I found that the applicant was the instigator and the driving force for the commission of the offence.
Secondly, I was satisfied that the applicant had a degree of influence over Mr Rahimi, because of the nature of their relationship, and that he manipulated Mr Rahimi. Although I also found that it was likely that Mr Rahimi appreciated he was being manipulated and chose to ignore that fact, nevertheless I expressed the view that 'there is little doubt that [the applicant] was manipulative and that [Mr Rahimi was] vulnerable to his manipulation'.[9] In arriving at that conclusion, I had regard to material that included a psychological report in respect of Mr Rahimi and a number of character references.
[9] The State of Western Australia v Iman Rahimi [2018] WASCSR 82 [47].
I accept the applicant's submission that the question of whether the applicant manipulated Mr Rahimi will be significant in the determination of both the applicant's intention in committing the offences and any assessment of the comparative roles of the applicant and Mr Rahimi in the instigation and planning of the offending.
The applicant describes my finding that the applicant manipulated Mr Rahimi as 'strong and unequivocal'. The accuracy of that description might be doubted, when regard is had to the whole of my sentencing remarks. However, I accept that overall my remarks may convey the impression that my prior determination that the applicant was manipulative might influence any determination of the same issue in the applicant’s proceedings.
Relevant to both the issue of who was the instigator and whether the applicant manipulated Mr Rahimi was a third finding, namely that at the last meeting before the arson was committed, the applicant introduced the possibility that a third person may be approached to start the fire, if Mr Rahimi was not willing.
Conclusion
The three key findings I have outlined above all concern, directly or indirectly, live and significant issues in the applicant's proceedings.
The findings were based on the evidence tendered in the proceedings against Mr Rahimi, including his interview with the police, and on the submissions made by the parties in those proceedings. In the applicant's proceedings, the factual issues will be determined on the evidence presented on the trial of the issues and after hearing submissions in respect of that evidence.
However, I accept that my remarks in respect of the three matters I have outlined may be perceived by a fair-minded observer to be clear views about the relevant factual issues, such that he or she might entertain a reasonable apprehension of bias by reason of prejudgment by me about those issues. There are, in any event, two aspects of the case that, in my opinion, are determinative of the outcome of the application.
First, as I noted earlier, Mr Rahimi's evidence is expected to be critical in respect of at least some of the issues in the applicant's proceedings. In Mr Rahimi's sentencing proceedings, I had regard to information about his character that ordinarily would not be properly before a trier of fact in relation to a witness. I made findings about his personal circumstances, including his psychological make-up and his prior character. Although I have not expressed views about his credit as a witness, it is fair to say that the views I have expressed about Mr Rahimi's personal circumstances would be relevant to an assessment of his credit. For the purposes of the test in respect of apprehended bias on the basis of prejudgment, it may be perceived that I have formed a view about the credit of a witness whose evidence is of significance on questions of fact that are live and significant issues in the applicant's proceedings.
Secondly, it is likely that the covert recording made by Mr Rahimi, to which I referred earlier, will also be adduced in evidence at the trial of the issues. In Mr Rahimi's sentencing proceedings, I listened to the recording and made findings about the conduct of both Mr Rahimi and the applicant during that meeting, based on the recording. It is sufficient to say that the findings were adverse to the applicant in respect of his role in the offending, and that a fair-minded observer would likely conclude I had expressed clear views about those factual matters, which are significant and live issues in the applicant's proceedings.
In all the circumstances, I am satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the factual matters to be determined in the applicant's trial of the issues.
Accordingly, I will refrain from presiding in those proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE FIANNACA1 AUGUST 2018
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