R v Bartlett [No 8]
[2014] WASC 49
•25 FEBRUARY 2014
R -v- BARTLETT [No 8] [2014] WASC 49
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 49 | |
| 25/02/2014 | |||
| Case No: | INS:107/2012 | 16 DECEMBER 2013 & 21 JANUARY 2014 | |
| Coram: | EM HEENAN J | 21/01/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN PETER MERVYN BARTLETT RONALD GEORGE SAYERS |
Catchwords: | Criminal law Procedure Judge Trial by jury Application for disqualification on grounds of reasonable perception of bias Retrial of accused |
Legislation: | Criminal Code (Cth), s 135.4(3) |
Case References: | BHP Billiton Ltd v District Court of South Australia [2012] SASC 62; (2012) 112 SASR 494 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Frigger v Professional Services of Australia Pty Ltd [No 2] [2013] WASCA 93 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Michael v The State of Western Australia [2007] WASCA 100 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 R v Balic (No 2) (1994) 75 A Crim R 515 R v Kearns [2003] NSWCCA 367 Re JRL, Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
PETER MERVYN BARTLETT
First Accused
RONALD GEORGE SAYERS
Second Accused
Catchwords:
Criminal law - Procedure - Judge - Trial by jury - Application for disqualification on grounds of reasonable perception of bias - Retrial of accused
Legislation:
Criminal Code (Cth), s 135.4(3)
Result:
Application dismissed
Category: A
Representation:
Counsel:
Prosecution : Ms Tatas on 16 December 2013 & Mr P Roberts SC on 21 January 2014
First Accused : Mr C Boyce
Second Accused : Mr D G Staehli SC & Mr A E Eyers
Solicitors:
Prosecution : Director of Public Prosecutions (Cth)
First Accused : Clifford Chance
Second Accused : Clifford Chance
Case(s) referred to in judgment(s):
BHP Billiton Ltd v District Court of South Australia [2012] SASC 62; (2012) 112 SASR 494
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Frigger v Professional Services of Australia Pty Ltd [No 2] [2013] WASCA 93
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Michael v The State of Western Australia [2007] WASCA 100
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
R v Balic (No 2) (1994) 75 A Crim R 515
R v Kearns [2003] NSWCCA 367
Re JRL, Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
1 EM HEENAN J: This application by the accused Peter Mervyn Bartlett and Ronald George Sayers is that I should disqualify myself from presiding at the retrial of this indictment which is listed for hearing later in the year. It was heard on 21 January 2014 and at the end of the hearing I gave brief oral reasons for refusing the application. In doing so, I indicated that I would give fuller reasons later. These are those reasons which should be regarded as incorporating the short reasons which I gave at the end of the hearing that day.
2 Over the period from 2 September 2013 until 13 November 2013 Peter Mervyn Bartlett and Ronald George Sayers with two others stood trial before me sitting with a jury. The other two persons were Gregory John Dunn and Deborah Jeanne Grace. By the one single indictment, each of those four was charged that between about 15 August 2002 and 17 July 2004 at Perth in the State of Western Australia and elsewhere Gregory John Dunn, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace did conspire with each other and with Trevor Neil Thomson with the intention of dishonestly causing a loss to a Commonwealth entity, contrary to s 135.4(3) of the Criminal Code (Cth). Each of the four accused pleaded not guilty to that charge. Trevor Neil Thomson, who was named in the indictment as a co-conspirator, had previously been charged with the same offence and had been convicted after his plea of guilty. He was sentenced to a term of imprisonment by McKechnie J on 13 May 2010 and since then has been released from prison on completion of his sentence. He was a witness for the prosecution at this joint trial.
3 At the end of the trial, which lasted for over 10 weeks, the jury found the accused Dunn guilty as charged and the accused Grace not guilty. The jury was not able to agree upon a verdict in relation to either of the accused Bartlett or Sayers. The consequence, therefore, was that Dunn was convicted as charged and Mrs Grace was acquitted of that charge and discharged. Messrs Bartlett and Sayers were remanded on bail for retrial. After several directions hearings dealing with the matter, the date for the commencement of their retrial has now been set for 4 August 2014. Notice has been given by the prosecution that a new indictment will be presented and filed over the former indictment presenting, essentially, the same charge against Messrs Bartlett and Sayers but without any reference to Deborah Jeanne Grace as an alleged co-conspirator in view of her acquittal.
4 At a directions hearing held on 16 December 2013 dealing with arrangements for the retrial I informed counsel and the parties that the retrial was to be listed for hearing before me and another jury in due course. On that occasion, counsel for Messrs Bartlett and Sayers foreshadowed making an application that I should disqualify myself from presiding at the retrial on grounds of a reasonable perception of bias. Directions were given for written submissions to be filed and exchanged between the parties. An oral motion for me to disqualify myself from presiding at the retrial was made on 16 December 2013 and, after the written submissions had been exchanged, the application was heard on 21 January 2014 as already stated.
5 The application that I should disqualify myself from presiding over any retrial of these two accused has been made on the basis of an alleged existence of a reasonable apprehension of bias. Counsel for each accused expressly disclaimed any allegation or suggestion of the existence of actual bias but in their written and oral submissions relied wholly on the alleged existence of a reasonable apprehension or possible perception of bias. As I shall describe more fully later, the basis for these submissions was said to arise out of certain directions or observations which I made in the course of my final direction to the jury at the joint trial of the original four accused in November last.
6 The trial had been long and complicated and there had been extensive addresses by counsel for the prosecution, by the accused Dunn, who was appearing in person, and by counsel for each of the other three accused after all the evidence had been taken. Those addresses commenced on 22 October 2013 (ts 3483) and continued until the afternoon of 30 October 2013 (ts 3932), a total of nearly seven days. This was followed by my direction to the jury commencing on the morning of 31 October 2013 (ts 3964) and continuing (with some substantial interruptions due to applications brought by counsel and argued in the absence of the jury) until the afternoon of 6 November 2013 (ts 4275), a period of four and a half days. The time spent in dealing with applications by counsel in the absence of the jury which took approximately in total (ts 3976 - 3997; 4064 - 4066; 4069 - 4084; 4138 - 4153; 4206 - 4239) nearly one day of sitting time.
7 After having been directed to retire and consider their verdicts on the afternoon of 6 November 2013, the jury returned on 8 November 2013 to deliver verdicts on the charges against Dunn and Grace, being, respectively, guilty and not guilty. After delivering those verdicts, the jury continued to deliberate upon the charges against Messrs Sayers and Bartlett. On 11 November 2013 (following the intervening weekend) the jury requested a further direction in relation to certain evidence and directions which I had given involving a number of documentary exhibits which it was alleged had been signed by either Mr Bartlett or Mr Sayers. A further direction in that regard was given, after hearing submissions from counsel in the absence of the jury. That direction is to be found at ts 4301 – 4322, after which the jury again retired to consider. The jury reported on the morning of 12 November 2013 that they were then unable to agree on a unanimous verdict in respect of both the remaining accused, following which I recalled the jury and gave a Black direction – Black v The Queen [1993] HCA 71; (1993) 179 CLR 44.
8 The jury thereafter continued to deliberate but on the morning of 14 November 2013 reported that there was no prospect of them reaching a unanimous verdict. Accordingly, I discharged the jury and remanded each of the remaining two accused for retrial.
9 The grounds of the application that I should disqualify myself from presiding at the retrial and the submissions to the contrary effect made by the prosecution are to be found in:
(a) submissions of the applicants of 13 December 2013;
(b) Crown's submissions in response filed 20 December 2013; and
(c) reply submissions by the applicants dated 17 January 2013.
10 The applicants have submitted that in four separate ways when directing the jury at the end of the evidence at the joint trial I gave directions or made observations of such a nature as to give rise to a reasonable apprehension of bias - that is, a reasonable perception of lack of impartiality.
11 The four specific complaints which have been made are:
(a) that in directing the jury I constructed and demolished in devastating fashion a 'straw man' defence that had never been relied on by the accused - that is, that the issue of the partly paid units in the false interest scheme (FIS) had in fact taken place during the 1999 financial year as the documents relied upon by the prosecution as being false had purported to record. This was in circumstances where, at the trial, each of the accused Bartlett and Sayers adopted the position that if those backdated documents had in fact been signed by either Bartlett or Sayers in September 2002, as alleged by the prosecution, that occurred because they may have been led to believe by their advisors, Thomson and/or Dunn, that the transactions recorded by those documents signed in 2002 had, in fact, taken place in 1999 and that the contemporaneous resolutions may have been lost. Against that contention there was evidence for the prosecution in the form of a letter written by the solicitors for both Bartlett and Sayers to the Australian Taxation Office dated 30 March 2007. This included the following paragraphs:
Your office has alleged that the resolutions amount to a sham and that the minutes were not brought into existence at the time which is apparent from them. The date upon which the minutes were brought into existence is of little, if any, significance.
What is important is whether the resolutions were actually passed as set out in those minutes. As we understand it, your allegation is they were not. This allegation is denied by our clients.
- There was, accordingly, a difference in the position which had been adopted by Messrs Sayers and Bartlett in their dealings with the authorities before any charges had been laid and in the position for which they contended in the course of the trial.
(b) the second complaint was to the effect that in directing the jury with respect to the existence and nature of any motive by either accused for the commission of the alleged offences I introduced the possibility of a new motive which had not been relied upon by the prosecution. The basis for this submission was that in the course of his opening and closing addresses to the jury counsel for the prosecution had submitted that there were two motives relied upon by the Crown for the accused joining in the alleged conspiracy - namely, the protection of the 'Appointor Arrangement' and the related desire to keep the facts of the Appointor Arrangement in conformity with the instructions provided to a Queen's Counsel who had given advice about the validity and effectiveness of the then proposed Appointor Scheme and who had advised that, upon specific stated conditions, the Appointor Arrangement was defensible at law.
The complaint is that when directing the jury I observed that if the jury doubted the motives identified by the prosecution they could also consider whether or not either of these two accused was motivated by a general desire to utilise the supposed advantages of the Appointor Arrangement to reduce liability to taxation generally which, I went on to describe, amounted, in effect, to the same thing.
In developing this complaint, counsel for the applicants also submitted that when giving directions about the significance of different depreciation rates recommended or adopted for the Barminco Unit Trust, I raised the subject that a possible explanation for the use of those particular depreciation rates was as a further tax reduction measure. I pointed this out as a possible consideration for the jury to bear in mind having regard to a line of cross-examination followed by counsel for Mr Bartlett that the particular depreciation rates chosen or recommended by Mr Thomson had been selected in his own self-interest in order to encourage Mr Bartlett to put further profits through the Appointor Scheme in order to advantage Mr Thomson personally by sharing, together with Dunn, in the greater pro rata commissions that would result from more revenues being put through the Appointor Scheme.
(c) the third area of complaint about the direction to the jury was submitted to be a failure to relate the law of dishonesty to the issues presented at trial - namely, a reasonable hypothesis consistent with innocence which had been relied upon by the two accused. This relates to a subject already described - namely, whether the prosecution had proved beyond reasonable doubt that these two accused had agreed to implement the FIS without believing (notwithstanding the scheme's objective falsity) that it was false because the special units described had in fact issued in 1999 or, similarly, that there was no dishonesty by either of them because each of the accused executed the documents in September 2002 without realising their full effect and impact because each relied and trusted the professional advisors (Thomson and/or Dunn) who had put the documents to them for signature in circumstances where they had reason to believe that they were regular and lawful. By contrast, the submissions for the prosecution were to the effect that this possibility was fully canvassed and put to the jury in the course of my direction.
(d) the fourth area of complaint was in relation to directions which I had given to the jury as to the potential significance of Nebraska Pty Ltd being named as a party to the minutes recording the false interest scheme which were dated in 1999 but were, in fact, signed in September 2002 and the consequent alleged signature of Mr Sayers on those documents. During the trial it was contended on behalf of the accused, and particularly by Mr Dunn, that it was incongruous that Nebraska Pty Ltd should be named as a party to those instruments or that they should be signed on its behalf by Mr Sayers. The basis for this was that Nebraska was not unit holder in the Barminco Unit Trust. Its 50% unit holding in that trust was held secretly and indirectly by a separate Bartlett family trustee company, Bremerton Pty Ltd.
Hence it was contended that it was unnecessary for Nebraska to be a party to instruments which evidenced, whether falsely or correctly, that further partly paid units in Barminco were being issued to and accepted by the existing unit holders. This had been relied upon by Mr Dunn to contend that, with his claimed knowledge and expertise in the law and procedure of trusts, he would not have drafted or submitted for execution such a document as either of those used to record the FIS when they unnecessarily included Nebraska Pty Ltd as a party. The position adopted by Messrs Bartlett and Sayers in relation to this aspect of the case was more obscure but it entailed the contention that it was possible that the FIS documents were prepared solely by Mr Thomson (who had less knowledge about the law and procedure of trusts) and that this lent support to the possibility that he surreptitiously, and dishonestly, put the documents before Messrs Bartlett and Sayers for their execution on the basis of their long reliance and confidence in him.
13 This was in a context where there was an issue over whether or not Mr Sayers had signed those FIS minutes as a director of Nebraska Pty Ltd. This was a direction given after there had been differing and contradictory contentions advanced by counsel for Mr Sayers and counsel for the Crown in their respective addresses to the jury in regard to this issue. Counsel for the prosecution had submitted that it was necessary for Nebraska Pty Ltd to be a party to the FIS resolutions because it was an equitable unit holder in Barminco and that the passage in Mr Sayers' statement to the authorities to the contrary was just a lawyer's point and wrong. Counsel for Mr Sayers had addressed the jury on the basis that there was no legal necessity for Nebraska to be a party to either of the FIS minutes or for Mr Sayers to sign either document. There was, therefore, accordingly, a controversy about these points and the approach which should be taken to them which I considered it necessary to address in my directions to the jury.
14 Finally, but compendiously, the applicants submitted that all of their four areas of complaint about the manner in which the Crown case was left to the jury could be grouped together as part of a general contention that my charge was unbalanced in favour of the Crown. This resulted in a further submission that the view of what the evidence revealed, as contained in my charge to the jury, was 'divorced from the manner in which the parties put their respective cases and one that weighed heavily in favour of the Crown'. So it was submitted that as Judge I 'descended into the arena'.
The test for reasonable apprehension of bias in the form of prejudgment
15 The parties were agreed that the test for whether or not any basis has been shown for reasonable apprehension of bias is whether 'a fair minded lay observer' with knowledge of the material objective facts might reasonably apprehend that the judicial officer in question might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [33]; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]; and Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [31].
The issue where a Judge is sitting with a jury
16 It had been submitted for the prosecution that it would be difficult to conceive how it could ever be said that a Judge's summing up in a jury trial demonstrates bias by prejudgment because it is the jury which is entrusted with the ultimate task of decision making. However, I do not consider that is a reason to discount or to modify the applications of the principles which have been discussed in the authorities already cited. More to the point, the authorities are clearly opposed to that contention. In R v Balic (No 2) (1994) 75 A Crim R 515 the NSW Court of Appeal explicitly stated that a Judge ought not to preside over a case involving a trial by jury if a reasonable apprehension is entertained by the parties or the public that Judge's mind is tainted by 'pre-judgment or bias'. Their Honours observed at 520:
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.
17 That approach has been approved in R v Kearns[2003] NSWCCA 367 [34], [78] – [79], and in Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276 [140] – [141]. The same point has been made explicitly in this State by the Court of Appeal in Michael v The State of Western Australia [2007] WASCA 100 [56], [58] (Steytler P). In the first of those observations the learned President said:
[56] … In a jury trial the Judge is not the ultimate arbiter. However, he or she is frequently called upon to make decisions during the course of the trial in respect of such matters as the admissibility of evidence, the permissible limits of cross-examination and the fair conduct of the proceedings. It is consequently not difficult to envisage a jury trial in which fair-minded people might reasonably apprehend that the judge might not have brought an impartial and unprejudiced mind to the resolution of such questions, with a consequential lack of confidence that the accused person had had a fair trial.
18 In the same case at [62] Steytler P reinforced the point and gave warning of the need to analyse such a submission more closely in relation to the conduct of a jury trial. This is because of the observations of the High Court in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 where Gaudron ACJ, Gummow, Kirby & Hayne JJ had said at [11]:
The appellant's contention was cast in terms of apparent bias but it was not clear exactly what was meant by this. In particular, it was not clear whether it was being suggested that a fair-minded observer would have concluded that the judge had predetermined some issue. And, if that was what was being suggested, it was far from clear what issue or issues would fall for decision by the judge (as opposed to the jury) would have appeared to have been prejudged. When pressed on this aspect of the matter, counsel for the appellant suggested that the trial judge had been antagonistic to counsel who had appeared for the appellant and that the conduct of the trial generally tended to undermine the defence case and bolster that of the Crown. But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. This is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge.
19 In the present case, it is important to observe and preserve these distinctions. There has, as I have said, been no suggestion of any actual bias. When it comes to the allegations of a reasonable apprehension of bias, there has been no submission or complaint made about any rulings made in the course of the trial about any admission or rejection of evidence. Nor has there been any submission or complaint made of antagonism towards counsel or to any particular accused or any witness. Nor has there been any complaint or submission of reasonable grounds for alleged bias in any part of the conduct of this 10-week trial other than in relation to the course of the direction to the jury during its last days.
20 In relation to the four areas of complaint which have been advanced by the applicants, I content myself with observing simply that:
1. As to the 'straw man' defence which it is submitted I set up and demolished, there are the following considerations which prompted the direction given.
(i) It was part of the prosecution case that the details of the FIS, and in particular the precise amounts of the moneys involved, could only have originated from the discovery of the unexpected profits of Barminco from the 1999 tax year which had not been discovered until about July 2002. Accordingly, it was necessary to point to features of the case bearing on whether or not the evidence supported a possibility that events as they were known to exist in mid-1999 could be consistent with the details of the resolutions implementing the FIS scheme which were shown to have been executed in September 2002.
(ii) There were implications in the cross-examination by Dunn of the witness Thomson and by other cross-examination of the witness, Mr Hewitt, to suggest that at one of the critical meetings in September 2002 when it is alleged the FIS was being proposed or being put into effect there were words spoken by Dunn and/or Thomson to suggest that there had, in fact, been an earlier minute, apparently since lost, which had contemporaneously recorded the alleged 1999 resolution for the issue of the special partly paid units in Barminco.
(iii) As earlier stated, a letter written by the solicitors for Messrs Bartlett and Sayers to the Australian Taxation Office at an early stage when the FIS was under investigation by the ATO and the ACC and where the ATO was alleging that the FIS minutes of 1999 had been falsely backdated, their solicitors specifically denied the allegation that the resolutions had not been passed as set out in those minutes.
2. With regard to the second complaint that my direction to the jury introduced for the first time the possibility of a new motive by the accused for the commission of the alleged offences, the so-called new motive was nothing more than an invitation to consider the possibility of a general desire to reduce tax which, on the view which I then formed, was part and parcel of and consistent with the motive or motives identified by the prosecution.
3. The third ground of complaint, already described, was the submission that there was a failure to put, or to put adequately, the contention of these two accused that if the jury was satisfied that Messrs Bartlett and Sayers were parties to the documents evidencing the FIS, there was no dishonesty on their part because they had been led to believe, by advisors whom they had reason to treat as trusted and responsible, that the documents put to them for signature were correct and legitimate or, alternatively, that they were induced by the same sources to believe that some earlier document or documents recording the FIS transactions had been made but were then lost. As to this, this aspect of the cases for these accused was put to the jury as constituting parts of the cases for each of these two accused.
4. As to the directions given on the issue of whether or not it was necessary for Nebraska Pty Ltd to be a party to the FIS minutes signed in 2002 and what the implications were either way on that issue, I have already set out why I consider those directions to have been necessary and material.
21 There are frequently grounds of appeal put to an appellate court on an appeal from a conviction at a trial before a Judge and jury that the Judge misdirected the jury in relation to some specific matter of law or fact or that a trial Judge failed to direct a jury in relation to some matter of law or fact which required specific direction and explanation from the Judge in the final direction in order to allow the jury properly to understand and reason towards a verdict. There have been numerous occasions in which appeals from convictions after a trial by jury have been upheld on these or associated grounds because of an error or errors made by a trial Judge in the course of the direction to the jury which cannot be disregarded or ignored on the grounds that they clearly did not result in any miscarriage of justice. Despite the frequency with which appeals are upheld on these grounds, it is rare indeed, and no case of it occurring has been cited to me, where an error or errors of this kind has been regarded or treated as a demonstration of reasonable grounds of an apprehension of bias or prejudgment. This illustrates the observation cited from RPS v The Queen that contentions of the failure to receive a fair trial on the one hand and the establishment of a case of reasonable apprehension of bias are distinctly different and separate concepts.
22 With respect, I do not consider that this is an occasion on which I should attempt to review the accuracy or adequacy of the directions which I gave to the jury at the joint trial. That should not be my role. That approach is what is required of a Court of Appeal hearing and determining an appeal on specified grounds alleging specific errors or law or fact whether by omission or commission in the course of the direction given to the jury. This current application is not in the nature of any appeal, nor do I have any jurisdiction to review the correctness or adequacy of the direction which I gave to the jury at the first trial.
23 I remain of the view that the directions which I gave to the jury in relation to these various matters which have been identified as the grounds for specified complaints about the directions were necessary and were justified, as well as being correct. However, as I have already said, it is not the task of this present hearing to determine whether or not that is actually so and if it were necessary for that to be determined that decision could not be one made by the trial Judge who gave the direction. While not in any way conceding that this is so, I am prepared to approach the determination of the present application on the footing that there may have been an error or errors in the directions given, but even if there were, and all the matters which are the subject of the present complaint were to be shown to have been erroneous, the result, even in combination, would not amount to any demonstration of the existence of grounds for a reasonable apprehension of bias or prejudgment.
24 It has been accepted that the test for the establishment of such a ground requires an objective assessment of the connection between the facts and circumstances said to have given rise to the apprehension and the asserted conclusion that a Judge might not bring an impartial mind to bear on the issues that are to be decided as described: Michael Wilson & Partners v Nicholls. The application of that test has recently been applied in Frigger v Professional Services of Australia Pty Ltd[No 2] [2013] WASCA 93 [30] and in Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 [31]. See also BHP Billiton Ltd v District Court of South Australia [2012] SASC 62; (2012) 112 SASR 494 [21] - [22] (Gray J).
25 One example of where a Judge was prohibited from hearing further or determining a case because of emphatic conclusions which the Judge had made in a previous finding without qualification or doubt is to be found in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283. In that case, French CJ made it clear at [45] that that was a case of a claim for bias based on an express prior finding by a decision maker, and the learned Chief Justice then referred to the decision in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 and other cases dealing with claims based on prior findings before referring to Laws and the statement at 100:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. (emphasis added)
26 The Chief Justice then observed that the requirement of an apprehension of bias, based on judicial conduct, be 'firmly established' is consistent with the most recent decisions of this [High] Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable. It is hardly necessary to point out that this present application is not founded upon, nor has it been suggested that there has been, any prior finding made which would support any aspect of the application.
27 With these principles in mind, it is timely to refer to the statements of principle made by Gummow A-CJ, Hayne, Crennan and Bell JJ in Michael Wilson & Partners v Nicholls:
[31] 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 (in this case, in the form of prejudgment) 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. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.
[32] As the plurality in Johnson v Johnson (2000) 201 CLR 488 at 493 [12] explained, '[t]he 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 of performance of their colleagues'.
28 In the present case, it is necessary to consider that the complaints made by the applicants relate to four specified aspects of a very long direction given to a jury after a long trial with many complicated issues and with four accused persons and another alleged co-conspirator. No doubt there may be many views about the relative importance, potentiality and implications arising from disputed issues and whether a particular view or views of contested issues is or are the only ones which may reasonably be entertained. Other minds, including, one hopes, the objective, fair-minded observer, could be expected to realise that this was a case of many layers of complexity and with positions adopted by different parties open to contention or refutation on numerous grounds, including grounds which may arise by inference or deduction from specific issues which had been expressly raised. That a particular party may not agree with the weight or emphasis given to particular issues in a direction by the trial Judge to the jury, when the task of the Judge is to put before the jury considerations which may fairly be regarded as arising from positions adopted by the parties, does not mean that the direction is necessarily wrong, still less that it demonstrates any reasonable grounds for perceiving an apprehension of bias or prejudgment.
29 As I said in the brief reasons given on 21 January 2014, I concluded that there is no occasion for me to disqualify myself and no basis for the submissions that there is any demonstration or indication which would give rise to a reasonable apprehension of bias. Judges have been abjured to be cautious not to disqualify themselves too readily in the face of an application of this kind because of the importance of the Judge allocated to a trial carrying out the duty to conduct and preside over the trial without fear or favour, let alone affection or ill will. The High Court has repeatedly said that a Judge should not disqualify himself or herself on the basis of an allegation of reasonable apprehension of bias unless substantial grounds are established: Re JRL, Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 and Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [36]. I have concluded that nothing has been demonstrated to require or justify me disqualifying myself from presiding over the retrial and, accordingly, the application was refused.
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