R v C, D R (No 3) - [2023] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, D R (No 3)
[2023] SADC 54
Ruling of her Honour Judge Fuller
10 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Accused charged with one count of communicating with the intention of procuring a child to engage in or submit to sexual activity and one count of producing child exploitation material - evidence against accused gathered during undercover operation with undercover operative posing as 37-year-old female - accused arrested in carpark of hotel after arrangements made for him to meet fictitious female and her 8-year-old daughter for sexual activity.
Accused applied to exclude evidence of communications the subject of each charge - accused gave evidence on voir dire - credibility findings made during course of ruling on voir dire both adverse and favourable to accused - held on voir dire that accused did not have predisposition to commit offences charged - prosecution made application for trial judge to be disqualified from hearing the trial on the grounds of apprehended bias - application based upon argument that because the prosecution proposed to tender accused's evidence on voir dire in the trial there was a reasonable apprehension that the same findings would be made at trial.
Held: 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. Application refused.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re: JRL; ex parte CJL (1986) 161 CLR 342; R v Hutchinson (1993) 171 LSJS 370; R v Masters (1992) 26 NSWLR 450; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45, considered.

R v C, D R (No 3)
[2023] SADC 54
Introduction

The accused was charged on Information with one count of communicating with the intention of procuring a child for sexual activity. It was alleged that between 15 July 2020 and 24 July 2020 the accused made a communication with the intention of procuring a child under the age of 17 years to engage in, or submit to sexual activity. He was also charged with one count of producing child exploitation material between 15 July 2020 and 24 July 2020.
The alleged offending was detected by police as a consequence of an undercover operation during which Detective O’Callaghan posed as a 37-year-old female [E] on an online website. The accused corresponded with Detective O’Callaghan by sending and receiving messages on the website, and later on another messaging platform, during the course of which it was alleged that he produced child exploitation material by describing sexual activity with a child in those messages and communicated with the intention of procuring the fictitious child (Brie) of the female correspondent [E] to engage in or submit to sexual activity.
On 28 April 2023, following a trial by Judge alone, I found the accused not guilty of the first count and guilty of the second: R v C, D R (No 2) [2023] SADC 48.
Voir dire ruling
In R v C, D R [2022] SADC 144 I gave reasons for my ruling refusing the accused’s application to exclude evidence of the communications the subject of each charge. On the evidence led on the voir dire, I was satisfied on the balance of probabilities that the accused, at the material time, did not have a predisposition to commit offences involving the sexual exploitation of children.
Prosecution application for disqualification – apprehended bias
Following the delivery of my reasons for decision, the prosecutor made an application that I disqualify myself from hearing the trial on the basis of apprehended bias. Prior to hearing submissions, I was advised by the prosecutor that if I refused the application and the trial proceeded before me, the evidence on the voir dire, including the accused’s evidence (subject to any excision of, or a request to disregard inadmissible or irrelevant evidence) would be incorporated as the evidence in the trial proper. Defence counsel indicated that the accused would call further evidence in the trial. After hearing submissions on 3 February 2023, I refused the application and advised counsel that I would provide my reasons for doing so at a later date. My reasons follow.[1]
[1] I have since delivered the verdicts in this matter: R v C, D R (No 2) [2023] SADC 48.
Prosecution submissions
The prosecutor argued that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to bear on the question of the accused’s guilt on count 1, the charge of making a communication with the intention of procuring a child under the age of 17 years to engage in or submit to sexual activity. The prosecutor contended that I had made findings directly relevant to the fault element of count 1 and therefore a fair-minded lay observer might apprehend that I would arrive at the same conclusion following a trial. In other words, an apprehension of prejudgment of an issue would arise. In essence, the argument advanced was that because I had made findings in favour of the accused regarding his state of mind with respect to the conduct the subject of count 1, if the same evidence was led before me at trial, without any additional evidence, I was likely to find in the same way and therefore acquit the accused of count 1.
Defence submissions
Mr Allen, for the accused, referred me to a number of authorities, including Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Mr Allen said that there were two steps in the application of the apprehended bias principle. The first is the identification of what the matter is that might lead a judge to decide a case other than on its legal and factual merits. The second is the requirement that there be a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
Mr Allen said that the matter identified by the prosecution that might lead me to decide the case other than on its legal or factual merits was the finding I had made on the voir dire that the accused did not have a predisposition to commit offences involving the sexual exploitation of children. Accordingly, the prosecution submission was that the feared deviation was prejudgment.
Mr Allen argued that the authorities made it clear that 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 amount to pre-judgment which may require him to disqualify himself 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 will decide the case adversely to one party.
Mr Allen reminded me that the authorities have emphasised that judicial officers discharge their duty to sit and should 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 else thought to be more likely to decide the case in their favour.
Mr Allen argued that what had occurred here was that I was asked to determine an application, during the course of which I heard evidence and made findings. The proper application of the test for apprehended bias would require the fair-minded lay observer to be present during the voir dire and then read the reasons for decision. Mr Allen argued that there was nothing about the way in which I presided over the voir dire hearing, including the findings that I made, some of which were in favour of the prosecution and others in favour of the accused, that would suggest prejudgment or partiality. Further, the voir dire did not involve a final determination of an issue in dispute such that a finding of prejudgment could be made.
Mr Allen also argued that it was disingenuous of the prosecution to make this application given that the foundation for it was the prosecution decision to incorporate the evidence on the voir dire as evidence in the trial proper.
Relevant principles
The test for apprehended bias was articulated in the plurality judgment in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge…the governing principle is that, subject to qualifications relating to waiver…or necessity… a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[2]
…
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 it is said might lead a judge (or juror) to decide a case other than on its legal and 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. Only then can the reasonableness of the asserted apprehension of bias be assessed.[3]
[2] At [6].
[3] At [8].
The requirement that there be an articulated connection between the relevant matter and the apprehended deviation from a merit-based decision is crucial, because it is the means by which one may test whether a reasonable observer might apprehend that the decision-maker might deviate from impartiality. It should be emphasised, as Mason J did in Re JRL; ex parte CJL (1986) 161 CLR 342 that:
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 situations in which previous decisions by 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”.[4]
[4] At 352 (citation omitted).
In R v Hutchison (1993) 171 LSJS 370 the Court of Criminal Appeal considered the issue of whether the trial Judge in a trial by Judge alone should have disqualified himself after making favourable credibility findings on the voir dire regarding a police officer who had interviewed the accused. On appeal, the accused argued that the trial Judge had expressed views about the credibility of the police officer to such an extent that a fair-minded observer might not bring an impartial or unprejudiced mind to the case.
Duggan J, with whom Cox and Debelle JJ agreed, observed:
This ground identifies a difficulty involved in the hearing of criminal matters by judge alone. But whereas trial by judge alone is a relatively recent procedure in this State the same problem has always been present in summary trials before magistrates.
…
And whereas it may happen that disqualification from sitting is rendered necessary or desirable by reason of events occurring at the trial itself, the cases must be rare in which this consequence results from a ruling which, although it reflects on the credibility of a party or witness, is nevertheless required at that stage of the trial.[5]
[5] At 371.
Duggan J cited with approval the following passage in R v Masters (1992) 26 NSWLR 450:
We do not accept the submission on behalf of Richards that a judge would be obliged to disqualify himself from continuing with a criminal trial because, in deciding the admissibility of evidence after a voir dire examination in which the accused gave evidence, he had expressed views critical of the accused’s credit and because it was likely that he may have to determine later in the case another issue involving the credit of the accused on either a further voir dire examination or when imposing sentence…We see no distinction between the situation where the decision in question is made on a voir dire examination during the trial and the situation where the judge has in a pre-trial motion decided an issue against an accused which may well arise again for his decision in the trial itself.[6]
[6] At 472.
His Honour went on to state:
I respectfully agree with this view and in my opinion it can be applied to the case of trial by judge alone where the judge may be required to make rulings during the trial based on evidence heard in the course of a voir dire examination in addition to make findings of fact on the question of guilt.[7]
[7] At 371.
Duggan J said that the comments made by Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 (above) were pertinent.
In R v Masters, the Court held:
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 amount to pre-judgment which may require him to disqualify himself 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.[8]
[8] At 471.E.
In Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 the Judge had ordered separate trials of two charges against the same accused, which were then agreed to proceed without a jury. He had determined the issue of identification against the Crown in the first trial and had then granted the Crown’s application to disqualify himself from hearing the second trial in which the same issue arose. The Court of Appeal held that he should not have done so, stating that the likelihood that the Judge would decide the issue the same way in the second trial did not indicate that one of the parties would be treated unfairly. It was stated that a ruling on a voir dire examination during the course of the trial which was contrary to the arguments of one party could not constitute proper grounds for disqualification.
Application of principles.
In the course of my ruling on the voir dire application, I made findings of credibility with respect to the accused’s evidence which were favourable and unfavourable. The accused sought to establish on the voir dire both the absence of any predisposition on his own part to commit the offences charged and conduct by the police which went beyond the mere provision of an opportunity to commit that offence, and which did in fact induce it. It was necessary for me to rule on these issues and make a finding regarding the presence or absence of any predisposition.
I ruled on the balance of probabilities, that the accused did not have, at the material time, a predisposition to commit offences involving the sexual exploitation of children. I was satisfied that the accused engaged in conversation regarding sexual activity with a child because he believed that in so doing, he would maintain E’s interest in him and that she would agree to meet with him if he continued to suggest to her that he was as interested, as she was, in sexual activity with the child, Brie. On the evidence led on the voir dire, I was satisfied that the accused’s sexual interest was in [E] and not her child, Brie. I was satisfied that the accused communicated a willingness to have sexual activity with Brie and [E] so that [E] would agree to meet him and engage in sexual activity with him.
During the application for me to disqualify myself, the prosecution informed me that the accused’s evidence on the voir dire would be tendered at the trial. It was not obliged to do so. That was a forensic decision by the prosecution.
I accept that the fact that I had ruled on the voir dire in a particular way, and expressed views which were, in part, favourable to the accused’s credibility on an issue that would arise for my consideration in the trial meant that the parties might reasonably apprehend that I may form a similar view of the accused’s credibility on this issue at trial. That, of course, would depend on whether the accused’s evidence on the voir dire was tendered at the trial and whether any further evidence was adduced which might influence me to a different view of the accused’s evidence on that issue.
The fact that I decided an issue in a particular way and the parties might reasonably apprehend that I was likely to decide it in the same way when it arose again, does not amount to pre-judgment which required me to disqualify myself 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. The prosecution did not argue that I would decide the case impartially or without prejudice.
Accordingly, I was not satisfied that the test for apprehended bias had been met and I refused the application.