R v Capaldo

Case [2015] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAPALDO

[2015] SASCFC 56

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)

28 April 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS

Application for permission to appeal against sentence.  Following a search at residential premises, police seized a loaded Glock branded semi-automatic pistol which was found locked in a shed.  The serial numbers on the firearm had been removed.  Five days later, the appellant presented at a police station with her solicitor and provided a written statement to police.  She pleaded guilty in the Magistrates Court at her first appearance to aggravated possession of a class H firearm while not holding a licence, possession of a class H firearm with defaced, altered or removed characters, failing to keep a class H firearm secured and failing to store ammunition in a locked container separately from the firearm.  The defendant was sentenced by a Judge of the District Court following a disputed facts hearing to a period of imprisonment of one year and six months with a non-parole period of five months.  On appeal, the head sentence was not challenged, the only issue was whether the sentence should be suspended. 

Whether the Judge’s conduct gave rise to an apprehension of bias.  Whether the Judge’s discretion not to suspend the sentence miscarried.  Whether to suspend the sentence. 

Held per Gray and Sulan JJ (granting permission to appeal and allowing the appeal):

1.  It is usually for the advocates and not a judge to examine the witnesses to avoid the risk that a judge will appear to favour a party.  The role of a judge is to listen to the evidence, asking questions when it is necessary to clear up a point overlooked or left obscure.  If a judge goes beyond this, the mantle of a judge is dropped and the role of an advocate is assumed.

2.  The Judge’s questioning of counsel for the appellant was inappropriate. 

3.  Much of the Judge’s questioning of the appellant involved extensive cross-examination.  A review of the transcript reveals that the Judge took over. 

4.  The Judge demonstrated pre-judgment which became manifest in the sentencing remarks. 

5.  The Judge’s conduct gave rise to an appearance of bias.

6.  The Judge erred in her treatment of the circumstances of the appellant providing a written statement to the police.  The Judge formed an early opinion that the appellant’s account was a contrivance.  There was no basis for this opinion.  It follows that the Judge sentenced on a misunderstanding of fact and on a matter on which it may be inferred that the Judge…

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R v Capaldo [2015] SASCFC 56
Case
[2015] SASCFC 56
Decision Date

CaseChat Overview and Summary

The case of *R v Capaldo* concerned an appeal against a sentence imposed by a Judge of the District Court. The appellant had pleaded guilty in the Magistrates Court to several charges relating to the possession of a firearm with its serial numbers removed, failing to store it securely, and failing to store ammunition separately. The District Court Judge, following a disputed facts hearing, sentenced the appellant to one year and six months imprisonment with a non-parole period of five months. The appeal focused solely on whether the sentence should have been suspended, with the appellant arguing that the sentencing process itself was flawed due to pre-judgment and an appearance of bias by the sentencing judge.

The central legal issues before the appellate court were whether the sentencing judge had demonstrated pre-judgment and an appearance of bias during the sentencing proceedings, and if so, whether this bias had led to demonstrable errors in the sentencing process, specifically in the decision not to suspend the sentence. The appellant contended that the judge's conduct during submissions and evidence-taking indicated a pre-disposition against her case, thereby undermining procedural fairness.

The appellate court, comprising Gray, Sulan, and Kelly JJ, considered the principles of judicial impartiality and the role of a judge in an adversarial system. They referred to established authorities, including *Yuill v Yuill* and *Jones v National Coal Board*, which emphasise that a judge's role is to preside impartially, listen to evidence, and ask clarifying questions only when necessary. Judges should avoid descending into the arena by excessively questioning witnesses or conducting examinations that could be perceived as taking on the role of an advocate. The court noted that the sentencing judge had expressed concerns about the factual basis for the plea, particularly the appellant's explanation for obtaining the firearm for protection, and had actively questioned the appellant and her counsel, at times extensively cross-examining. This conduct, the court found, could lead to an appearance of bias and a perception that the judge had pre-judged the matter, potentially affecting the fairness of the sentencing decision.

The court allowed the appeal, finding that the sentencing judge's conduct had created an appearance of bias and had led to errors in the sentencing process. The matter was remitted for re-sentencing by a different judge.

Orders

Orders of the court

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Background

Background to the litigation

On 24 February 2015, a Judge of the District Court imposed the following sentences:-In respect of the charges of failing to properly store the firearm and failing to properly secure ammunition, the defendant was convicted without further penalty.-In respect of the aggravated possession of a firearm and possession of a firearm with defaced characters, the Judge imposed one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988. A discount of 25 per cent was given for the plea of guilty. The defendant was sentenced to a head sentence of one year and six months’ imprisonment with a non-parole period of five months.Background On 5 June 2014, police searched residential premises at Underdale. No resident of that premises was present at the time of the search. Police located a loaded, semi-automatic, Glock branded handgun in a garage on the property. The serial number on the firearm had been obliterated. The garage door was locked with a padlock at the time of the search. The firearm was stored in a picnic style bag in a loft inside the garage. The loft area could only be reached by climbing on furniture stored in the garage. There was no ladder or direct access to the loft. On 10 June 2014, the defendant attended at the Adelaide Police Station with her solicitor. She provided police with a prepared, signed statement:...There have been no promises, threats or inducements held out to me to make this statement.The police located a Glock handgun at my premises on 5 June 2014, in the locked shed.The firearm was mine. I had obtained that handgun for protection. My ex-partner, Michael Rawson, has been extremely violent towards me. There have been a number of restraint orders against him. I was concerned that he would carry out his threats to kill me, my family and family members.I obtained the firearm at approximately Easter 2013. I was the only person with a key to the shed.The gun has never been fired while it has been in my possession.This statement is true and accurate to the best of my knowledge....The defendant did not in that statement provide any further details about how she came into possession of the firearm. The police did not seek to interview the defendant on this occasion or on any later occasion. A body of evidence concerning Mr Rawson, and in particular his abuse and violence toward the defendant, was before the Judge. This material included the offender history details from police records and six police incident reports concerning incidents of domestic violence. In each case, the defendant was identified in the report as the victim and Mr Rawson as the perpetrator. The Appeal On the appeal, counsel for the defendant accepted that the defendant’s offending was serious and acknowledged that it was important that the sentence properly reflected the need for deterrence. It was acknowledged that, notwithstanding that it was the defendant’s first offence, it was appropriate to order a term of imprisonment. There was no complaint about the term of imprisonment or the non-parole period that the Judge fixed. However, it was submitted that the Judge erred in exercising her discretion not to suspend the sentence. It was contended that there were demonstrable errors in the sentencing process. It was further submitted that the Judge’s conduct during sentencing submissions and during the taking of evidence demonstrated pre-judgment and an appearance of bias. It was said that these matters provide an explanation for the errors that were said to have occurred. Pre-Judgment and Bias – General Principles

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J
On the appeal, counsel for the defendant accepted that the defendant’s offending was serious and acknowledged that it was important that the sentence properly reflected the need for deterrence. It was acknowledged that, notwithstanding that it was the defendant’s first offence, it was appropriate to order a term of imprisonment. There was no complaint about the term of imprisonment or the non-parole period that the Judge fixed. However, it was submitted that the Judge erred in exercising her discretion not to suspend the sentence. It was contended that there were demonstrable errors in the sentencing process. It was further submitted that the Judge’s conduct during sentencing submissions and during the taking of evidence demonstrated pre-judgment and an appearance of bias. It was said that these matters provide an explanation for the errors that were said to have occurred. Pre-Judgment and Bias – General Principles The role of a Judge in legal proceedings is largely governed by two interrelated rights, each derived from the common law system of an adversarial trial. The first is that the parties have the right to have their trial presided over by an independent and impartial judge. The second is that the parties are entitled to present their respective cases as they see fit. Both rights are aspects of the fundamental requirement of procedural fairness, the former comprising part of the rule against bias and the latter comprising part of the hearing rule. Many authorities have addressed the question of undue interference by a judicial officer in the process of a criminal trial. It is convenient to start with the observations of Lord Greene MR in Yuill v Yuill:[1] … A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue. …[Emphasis added.][1] Yuill v Yuill [1945] P 15, 20. It is also relevant to refer to the judgment of Denning LJ in Jones v National Coal Board:[2]… In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How's that?” His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that “truth is best discovered by powerful “statements on both sides of the question” ? : see Ex parte Lloyd. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and “is liable to have his vision clouded by the dust of conflict”: see Yuill v Yuill.Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales—the “nicely calculated less or more”—but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky, Bock & Co. So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: see Rex v Cain, Rex v Bateman, and Harris v Harris, by Birkett L.J. especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg v Clewer. The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties—nay, each of them—has come away complaining that he was not able properly to put his case; and these complaints are, we think justified.[Footnotes omitted. Emphasis added.][2] Jones v National Coal Board (1957) 2 QB 55, 63-5.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

It is usually for the advocates and not a judge to examine the witnesses so as to avoid the risk that the judge will appear to favour a party. The role of a judge is to listen to the evidence, asking questions when it is necessary to clear up a point overlooked or left obscure. If a judge goes beyond this, the mantle of a judge is dropped and the role of an advocate is assumed.[12][12] R v Baltensperger [2006] SASC 246, [60].Consideration On 20 October 2014, when the matter came before the Judge, counsel appearing for the Director informed the Judge that the underlying factual basis for the plea was not disputed. The Judge raised with the defendant and prosecution concerns she had with the factual basis for the plea. The Judge indicated that she did not accept, in the absence of evidence, that the firearm was obtained for personal protection. The Judge also raised a concern she had about the expertise of the author of a psychological report tendered on behalf of the defendant and invited the defendant to obtain a fresh report. The matter was adjourned for a disputed facts hearing. Sentencing submissions resumed on 10 December 2014. A report of Craig Raeside, a forensic psychiatrist, of 4 December 2014 was tendered by consent. A report of Alan Fugler, a psychologist, had also been tendered. Counsel for the Director confirmed that the Director did not dispute the factual basis upon which the defendant said she had a state of mind about being in fear of Mr Rawson. It is evident from the transcript of 20 October 2014 that the Judge was troubled by the fact that the defendant with her solicitor had gone to the police with a prepared statement. The Judge returned to this topic at the hearing on 10 December 2014 and made the following observation:In this case, there is no evidence, no tested evidence at all from Ms Capaldo, other than the rather contrived situation of her walking into a police station with a solicitor’s letter saying ‘It was my gun and this is the explanation I give’ and not even answering police questions, let alone anyone else’s. The defendant gave evidence in support of her asserted reason for having the gun. Her counsel was the subject of extensive interruptions by the Judge during his questioning. Much of the Judge’s questioning involved extensive cross-examination. A review of the transcript reveals that the Judge took over. On the topic of her attending at the police station and handing in a statement, the following interchange with the Judge occurred:Q. Why were you not prepared to tell us before today. A. The question was - it was asked in the courtroom. Q. Yes. A. But when I was arrested, I was not asked questions. Q. I don't think that you were willing to answer questions, were you.A. I wasn't asked. Q.Why did you go into the police station with a statement in your hand, if you were willing to answer questions from the police. A. To say that it was my gun. That's why I went there. Q. You are saying that the police didn't want to ask you any questions.A. It was never offered to me. Q. Did you ever instruct your lawyers that you didn't want to speak to the police and answer their questions. Or don't you know. A. Yeah, I can't remember if I told my lawyer that. Q. Did you ever tell the police where you got that gun from.A. No.Q. Who is the first person you have ever told where you got that gun from.A. The lawyer. Q. Which lawyer.A. My lawyer.Q. Which lawyer are you talking about. Mr Caldicott.A. Yes, Mr Caldicott. Q. When was that. A. When all this occurred when I was arrested for it. Q.Within a day or so of your arrest you told Mr Caldicott where you got the gun from. A. Not with a name but, yes, I said that I had - Q.When did you first tell anyone about this person that you say gave you the gun, Mr Foster. A. It was after the last court case. Q. Why didn't you tell Mr Caldicott before then. A. I didn't want to get Foster into trouble. Q. He didn't seem to mind, did he. A. I'm guessing he would mind if I got him into trouble. Q. According to you he's never even said anything to you - A. No. Q. - about not saying where you got the gun from. A. No, he hasn't.