R v Dennis Arthur Bellchambers

[2009] NSWDC 296

CITATION:	R v Dennis Arthur BELLCHAMBERS [2009] NSWDC 296 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 November 2009
EX TEMPORE JUDGMENT DATE:	23 November 2009
JURISDICTION:	DC Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Application for judge to disqualify himself is refused
CATCHWORDS:	Criminal Law - Re-trial - Application for judge to disqualify himself from presiding over the trial on the basis that it would be "preferable" that another judge preside.
PARTIES:	The Crown Dennis Arthur Bellchambers
FILE NUMBER(S):	DC 2008/11/1120
COUNSEL:	M Hobart SC - Crown A Bellanto QC - Accused T Watts - Accused
SOLICITORS:	NSWDPP Ziman and Ziman Solicitors - Accused

JUDGMENT

1 HIS HONOUR: The trial of Dennis Arthur Bellchambers is listed before me. Before commencing the trial Mr Bellanto told me that he had an application to make. He said it would be “preferable” (and I quote Mr Bellanto in the use of that word,) that I not do the trial. When I inquired why, it was apparent that no legal reason could be articulated for that application.

2 The most that perhaps can be said is that in an earlier trial I made a ruling that some evidence would be admissible as tendency evidence. That trial resulted in a hung jury. Subsequently another trial was held before another Judge who ruled that although the evidence to which I have referred was admissible, it was admissible as relationship evidence.

3 That trial resulted in a conviction which was overturned on appeal, the appeal having nothing to do with the admission of the evidence. It is said that perhaps I might be influenced by the earlier decision that I have made concerning the admissibility of the evidence. I made no ruling as to Mr Bellchambers’ guilt or otherwise. Mr Bellanto does not suggest that I made any comments suggesting that I formed a view as to Mr Bellchambers’ guilt. I can see no possibility that there could be any suggestion that a fair-minded observer would have an apprehension that I might be biased one way or the other in this case.

4 The Crown Prosecutor also suggested it would be “preferable”, again using that word, that I not do the trial. He suggested that perhaps Mr Bellchambers might have an apprehension that I would be unable to bring an unprejudiced mind to this case, but the basis for that observation was never really made clear to me.

5 The matter is listed before me, matters should not likely be shuffled from judge to judge without good reason. There is no good reason, I propose to do the trial.

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