R v Bowley & Bowley - [2012] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOWLEY & BOWLEY
[2012] SADC 53
Reasons for Ruling of His Honour Judge Brebner
24 April 2012
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
Application to judge assigned to preside at a criminal trial to disqualify himself on the ground of apprehended bias said to arise out of association. Application rejected.
Crimes Act (1914) Cth, referred to.
Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Webb and Hay v The Queen (1994) 181 CLR; Smith v Roach (2006) 227 CLR, applied.
Poniatowska v Commonwealth Director of Public Prosecutions [2011] HCA, considered.

R v BOWLEY & BOWLEY
[2012] SADC 53

The accused are husband and wife. They are charged on information with a number of offences contrary to the Crimes Act 1914 (Cth) and the Criminal Code (Cth). The information has been presented to the court by the Commonwealth Director of Public Prosecutions. The trial is to be by judge and jury. It is anticipated that the trial will occupy several weeks. The trial has been assigned to me.
Counsel for each accused have submitted that I should disqualify myself from presiding at the trial on the ground of apprehended bias. No actual bias is suggested.
The applications are rejected. My reasons are as follows.
Relevant facts
The application rests on the fact that my daughter is a solicitor employed in the Adelaide office of the Commonwealth DPP.
The application proceeded on the basis that my daughter is not the solicitor with the conduct of the prosecution file, that she knows nothing about the file and that her only contact with the file was to perform some photocopying quite some time ago, and that she did not read anything she copied. It is not suggested that she is in any position of authority in relation to those who have the conduct of the file or that she is authorised to give instructions to prosecuting counsel, should the need arise.
Counsel for the male accused, Mr Clarke, submitted that these circumstances give rise to an apprehension of bias and that I should disqualify myself accordingly. Counsel for the female accused, Ms Micallef, adopted Mr Clarke’s submissions.
Principles
The relevant principles are well settled. They are to be found in Johnson v Johnson (2000) 201 CLR 488 in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [11]-[13] where their Honours said:
“ … 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 this case was said to take 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.
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair minded people reasonably apprehend or suspect that the tribunal has pre-judged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s 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 of 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”.
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 judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation… “.”
(emphasis added– citations omitted)
The test is thus not one of the whether the judge will not bring an unbiased and unprejudiced mind to the issues that he or she might be called upon to resolve, it is one of whether the judge might not do so.
However, the possibility that the judge might not apply an unbiased and impartial mind to the particular case must be real and not remote. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ said at [7]:
“Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that had 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.”
The application of the principle propounded in Johnson involves two steps. As the majority in Ebner also said at [8]:
“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal or factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making is articulated. On then can the reasonableness of the asserted apprehension of bias be assessed.”
(emphasis added)
Issues
Plainly, the decisions I might be called upon to make include the resolution of a number of pre-trial applications that have been foreshadowed, the determination of objections which will almost inevitably be made during the course of the trial, the structure of the summing up, including whether any warnings, or other special directions, might be required, and whether, and in what way, I might make any comments about the facts.
The issue thus becomes one of whether the circumstances might bring a fair minded observer to apprehend that I might not bring an impartial and unprejudiced mind to bear on the decisions that I might have to make during the course of the trial because my daughter is employed by the relevant prosecuting authority.
Analysis
Mr Clarke did not articulate exactly why a hypothetical fair minded observer would apprehend that I might not bring an impartial and unprejudiced mind to bear on the decisions I might have to make from the mere fact that my daughter is employed by the relevant prosecuting authority. However, it seems implicit in his submissions that his point is that a hypothetical observer might think that I might somehow be swayed, perhaps subconsciously, in my decision making by some interest my daughter might have in the outcome of the proceedings. The application thus rests on association with a person said to be interested in the proceedings: Webb and Hay v The Queen (1994) 181 CLR 41 at 74 Deane J.
Mr Clarke did not point to any connection between my daughter’s employment and why a hypothetical observer might apprehend that I might deviate from strict impartiality. It is thus difficult to see how his submission amounts to one of anything more than “bare association: Ebner above.
Mr Clarke referred me to Smits v Roach (2006) 227 CLR 423. Although Smits was a case where it was said that the trial judge had a familial connection with someone who might be affected by the outcome of the proceedings, even though that person was not a party the proceedings, the facts are not directly comparable. As far as apprehended bias is concerned, Smits simply boils down to the application of the settled principles to the facts of the case. However, the approach taken by Gleeson CJ, Heydon and Crennan JJ at [50]-[54] where their Honours make it plain that a logical connection between the relevant facts and the feared departure from impartially must be established, is nonetheless instructive.
Mr Clarke pointed to the recent decision of the High Court in Poniatowska v Commonwealth Director of Public Prosecutions [2011] HCA 43. Although his submission about that case was not entirely clear, I have taken him to mean that Poniatowska’s Case will eventually be cited in argument either before or during the trial. Poniatowska has assumed a degree of notoriety and it establishes principles which may have a bearing on the trial. Mr Clarke submitted that the reasons in Poniatowska would have been the subject of much discussion amongst the members of the Office of the Commonwealth DPP. It is plain from the reasons of the Court that the decision in Poniatowska has significant ramifications for many Commonwealth prosecutions. I thus accept that the reasons would have been the subject of general discussions within the Office of the Commonwealth Director. However, there is nothing before me to suggest that my daughter was involved in any specific discussions about the reasons in Poniatowska in the context of this particular prosecution.
Again Mr Clarke did not point to any specific connection between any general discussions about Poniatowska’s Case and why a fair minded observer might apprehend that I might deviate from the straight and narrow of strict impartiality. Moreover, any decisions I might make and any reason I might give about the proper interpretation and application of Poniatowska would not be authority binding on any other court. Again it is thus difficult to see how his submission amounts to anything more than bare association.
Plainly, a reasonably informed and fair minded observer would not for a moment think that I have any direct interest in the outcome of the trial. There is no evidence which directly suggests, or which logically gives rise to any reasonable inference, that my daughter would be advantaged or disadvantaged in any way whatsoever in her employment by the outcome of the trial, or by any rulings I might make before, or during the trial or by the manner in which I ultimately sum up, were I to preside. It thus follows that the essential connection has not been established. The application is thus based on nothing more than bare assertions of association.
I thus consider that, and having considered all the circumstances, a hypothetical fair minded observer would not entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the decisions I will be called upon to make.
The applications are rejected accordingly.