R v Draoui - [2010] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DRAOUI
[2010] SADC 141
Reasons for Decision of His Honour Judge Muecke
19 November 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - PROCEDURE
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
Applicant released on licence pursuant to s 269O of the Criminal Law Consolidation Act, 1935 on 27 September 2007 - Limiting term of 10 years fixed - Application to revoke the licence - Application that the judge who released the applicant on licence be disqualified from hearing the application to revoke the licence for apprehended bias.
Criminal Law Consolidation Act ss 269O, 269P, referred to.
Saxmere Co Ltd & Ors v Wool Board Disestablishment Co Ltd [2010] 1 NZLR 35, applied.
Draoui v District Court of South Australia & Anor [2010] SASC 151, considered.

R v DRAOUI
[2010] SADC 141

By Application filed on 8 June 2010 Abdou Khalil Nassar Draoui (the applicant) applied to this court to revoke a supervision order made pursuant to s 269O of Division 4 of Part 8A of the Criminal Law Consolidation Act 1935 (the Act). The supervision order was made by me on 27 September 2007. By that order I released the applicant on licence on conditions decided by me and specified in the licence. Pursuant to s 269O(2) I fixed a limiting term by reference to the sentence that I would have imposed if the applicant had been found guilty of certain offences and without taking account of his mental impairment. The limiting term I fixed was for a term of ten years. The applicant’s appeal as to the length of that term was dismissed by the Court of Criminal Appeal on 9 July 2008. His application for special leave to appeal to the High Court of Australia was refused on 1 May 2009.
I had, prior to 27 September 2007, declared the applicant to be liable to supervision under Part 8A of the Act. I had decided that he was mentally unfit to stand trial and I had recorded a finding to that effect. I had then proceeded to hear evidence and representations put by the Prosecution and the Defence relevant to the question whether a finding should be recorded under s 269M of the Act that the objective elements of the offences are established. I was satisfied that the objective elements of the offences were established and on 15 March 2007 I declared the applicant to be liable to supervision under Part 8A of the Act.
The supervision order I made on 27 September 2007 followed a series of hearings over some time. They related to allegations of fraud against the applicant. He was alleged to have committed 84 offences of that type. In the events that transpired in July and August 2010 it is unnecessary for me, for the purposes of these reasons, to set out in detail the history of the matter before 27 September 2007.
On 26 November 2008 the applicant filed an application to revoke the supervision order I had made. There were a number of Directions Hearings in this court as to that application. Ultimately the hearing of the application was scheduled to commence before me on 12 November 2009. That day and the next day were set aside. Expert witnesses were booked to give evidence on both days.
On 10 November 2009 the applicant’s solicitors requested a Directions Hearing in that matter. I acceded to that request and one commenced at 9.03am on the next morning, 11 November 2009. At this hearing Mr Mancini appeared for the applicant. I shall refer to this hearing in more detail later as it is important to the matter I now have to decide. Suffice to say, at the moment, I was invited to consider disqualifying myself. I was then orally advised by Mr Mancini that the applicant would no longer be pursuing the application for revocation of the supervision order, but would be applying to vary it instead. I refused the invitation to disqualify myself. I adjourned to 10am the next morning.
In court the next morning, 12 November 2009, I was advised by Mr Niarchos, of counsel for the applicant, that the applicant did not pursue and withdrew his application made on 26 November 2008 “in its entirety”. I was advised by Mr Niarchos that the applicant had “elected at this point not to proceed and having taken advice on the matter”. I was advised that the applicant was “not pursuing the application. The application is not pressed”.
I refused and dismissed the applicant’s application filed on 26 November 2008 and I directed, pursuant to s 269P(2) of the Act, that no further application may be made for variation or revocation of the order that I had made on 27 September 2007 for a period of eighteen months.
Those orders and direction were the subject of judicial review by the Supreme Court of South Australia. That application for review was argued on 28 April 2010 and judgment was delivered by David J on 28 May 2010. It is judgment [2010] SASC 151. The material put before David J on the Application for Judicial Review is not before me on this application.
In his judgment David J set out that the applicant for judicial review of my decision relied on three grounds. First, that I fell into jurisdictional error by deciding an application that was not before me because it had been withdrawn (jurisdictional error). Secondly, that the applicant was not afforded procedural fairness because he was not given an opportunity to be heard on the issue of the time limit (procedural fairness on the time limit). And thirdly, that the applicant was not afforded procedural fairness because a reasonable observer would have apprehended bias on my part (apprehended bias). The applicant sought an order quashing the orders (and presumably the direction) I made on 12 November 2009.
On 28 May 2010 David J quashed the orders and the direction I made on 12 November 2009. It is not necessary for me to set out in detail David J’s reasons for making those orders. The reasons he published speak for themselves. Suffice to say now that he granted the application for judicial review and quashed my orders and direction on the jurisdictional error ground and on the procedural fairness on the time limit ground. He made no other orders and gave no directions.
It is important for me to refer to part of David J’s reasons for his finding that the apprehended bias ground should not succeed. David J first set out the argument of Mr Niarchos, of counsel for the applicant, on this ground. He stated that Mr Niarchos argued that the hearing conducted by me on 12 November 2009 “by way of appearance it simply looked like a predetermination” and that “(t)he fictitious bystander … looking at what was happening in the court, might … reasonably apprehend that the judge (that is me) had not brought an impartial mind to all that was before him”. He stated that Mr Niarchos had submitted to him that a reasonable lay observer would apprehend bias on my part if they were aware of the following factors: My prior dealing with the applicant’s matter, in particular making the original supervision order in 2007; my refusing an application to vary the supervision order in 2009, and by my not disqualifying myself when asked at a Directions Hearing on 11 November 2009. David J concluded on this apprehended bias ground (in para 32):
I have considered the alleged apprehended bias because of the judge’s prior involvement, and refusing to disqualify himself. Based on these factors, and the way the judge dealt with the matter, I find that a reasonable lay observer would not apprehend that the judge was not bringing an impartial mind to the case. The judge’s prior involvement did not require him to make any findings about the credibility of the applicant, and having previously heard the matter, it was sensible for him to hear the application for variation. There can be no apprehension of bias by refusing to disqualify himself on the day prior, when there was no reason to suggest he should be disqualified.
On 8 June 2010 the applicant caused to be filed in this court an application to revoke the supervision order I made on 27 September 2007.
This application first came on before me on 23 June 2010. Mr Mancini told me that he was not proposing that day to make submissions for a formal application that I disqualify myself from hearing the application. He indicated that that is what the applicant was proposing to pursue. Notwithstanding that he then indicated that it may be that I would be minded to stand down in any event. The transcript of this hearing is exhibited to the applicant’s affidavit sworn and filed later, on 22 July 2010.
I indicated that I was not going to make a decision then but would hear any application filed on behalf of the applicant at a time when it was convenient to everyone. I adjourned the application filed on 8 June 2010 to 16 July 2010 to hear then any application made on behalf of the applicant as to my hearing the application filed by him on 8 June 2010.
On 22 July 2010 an application was filed on behalf of the applicant seeking an order that I “be disqualified from hearing the application for revocation of supervision order herein dated 3 June 2010” (filed on 8 June 2010). The grounds of that application were stated to be that disqualification should be ordered “for apprehended bias” on grounds set out in the affidavit of the applicant. Such an affidavit was sworn and filed on 22 July 2010.
On 23 July 2010 the matter came on again before me. Counsel for the DPP informed me that the application for disqualification and the affidavit of the applicant were only received by his office the night before. He saw them for the first time that morning. He did not have the applicant’s outline of argument, nor his list of authorities. He applied for an adjournment as the Crown was embarrassed by the late provision of materials. He indicated that he did not know at that stage whether there should be an affidavit in reply.
I made some remarks about things that had occurred to me when I read the applicant’s affidavit. I referred to the long history of the matter. I referred to the applicant’s affidavit where it referred to my not publishing any reasons for a number of rulings I earlier made. I referred to whether the applicant was relying on a history of adverse rulings I made as part of his application that I be disqualified from hearing the application for revocation. I referred to whether any inference in the affidavit that I was responsible for significant delays in the applicant’s trial was part of his application for my disqualification.
Mr Niarchos, of counsel for the applicant at this hearing, responded to my remarks by putting it “absolutely clearly on the transcript that the applicant … will not be relying on whether or not (I) had published or not published the reasons for any decision made prior to 12 November 2009, whether that relates to substantive matters or ancillary matters as they arose from whenever it was during 2004”. He indicated that the applicant will be relying on nothing that occurred prior to 12 November 2009 on his application for my disqualification. He indicated that the basis of the applicant’s application for disqualification does not rely on any decision of mine prior to 12 November 2009. These assertions by Mr Niarchos as to decisions of mine prior to 12 November 2009 would include what happened on 11 November 2009. Finally, Mr Niarchos told me that he not only had no objection to my reading the Reasons of David J (which I had not then read), but that his outline of argument (which I also had not then read) addresses what was said by his Honour. He told me that it has extracts of the judgment in it. He said that my reading of David J’s judgment would, of course, not become a further ground for disqualification.
I adjourned the application for disqualification to 26 August 2010.
An affidavit sworn by George Mancini was sworn and filed on 24 August 2010. By that affidavit Mr Mancini merely deposed to the fact that certain matters in the applicant’s affidavit sworn 22 July 2010 were matters of which he informed the applicant. No affidavit was filed on behalf of the Director of Public Prosecutions.
On 26 August 2010 I heard the applicant’s application that I be disqualified.
Mr Niarchos informed me that as he had previously identified the applicant was not seeking to argue on this application that any of my decisions prior to 12 November 2009 give rise to any apprehended bias in relation to the hearing of the application filed on 8 June 2010. He informed me that the applicant’s substantive arguments for my disqualification are set out in the outline filed on 22 July 2010.
The first nearly ten pages of the outline refer to some background and preliminary matters and to the reasons of David J. A significant part of David J’s judgment is reproduced in the outline. The outline concludes as follows:
A second application pursuant to s. 269P:
12.    On 3 June 2010 the applicant commenced proceedings by way of an application seeking an order revoking the supervision order made on 27 September 2007 [‘the second application’].
13.    His Honour Judge Muecke has had the second application listed before himself for hearing and determination. The applicant has made application that his Honour Judge Muecke be disqualified from hearing the second application on the grounds of apprehended bias.
14.    No other Judge of the District Court of South Australia has made any earlier orders or determinations in these proceedings and no other Judge would be disqualified from hearing the second application. There is no legal or administrative reason and no impediment in the way of a Judge of the Court other than his Honour Judge Muecke hearing the second application.
Submissions on apprehended bias on the second application:
15.    For the reasons set out in the affidavit of the applicant sworn 22 July 2010 and filed herein in support of the application for disqualification and paragraphs 1 to 13 hereof, it is submitted that a reasonably informed and fair-minded lay observer also called in this context, ‘the fictitious bystander,’ (Johnson v Johnson (2000) 201 CLR 488 per Kirby J at 508-509) ‘might reasonably apprehend his Honour ‘might not bring an impartial mind to the resolution of the question’ arising on the second application that being whether the supervision order made by his Honour on 27 September 2007 out to be revoked, see Ebner v Official Trustee (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 344 [6].
16.    The applicant therefore seeks that his Honour be disqualified from hearing and determining the second application.
The applicant’s outline reproduced para 32 of David J’s judgment. That is the paragraph I set out earlier in these reasons. That is the paragraph in which David J found “that a reasonable lay observer would not apprehend that (I) was not bringing an impartial mind to the case.”. That is the paragraph in which David J said that “it was sensible for (me) to hear the application for variation. There can be no apprehension of bias by (my) refusing to disqualify (myself) on the day prior, when there was no reason to suggest (I) should be disqualified”.
As I ultimately understood the submission made on behalf of the applicant to me on 26 August 2010 it was that David J’s judgment on an alleged apprehended bias ground that should justify a quashing of my orders and direction made on 12 November 2009 was confined (amongst other matters that preceded that date) to my refusal to disqualify myself on 11 November 2009 at a Directions Hearing which I convened at very short notice after a telephone request by the applicant’s solicitor the afternoon before that. It was submitted, as I ultimately understood the argument on 26 August 2010, that David J’s judgment did not concern at all what happened on 12 November 2009 but was confined to what happened before and on 11 November 2009.
The full transcript of the Directions Hearing before me on 11 November 2009 is annexed to the applicant’s affidavit sworn on 22 July 2010. I was told by Mr Mancini that the matter was sought to be called on “to perhaps invite (me) to consider standing down, so to speak, from the matter so that perhaps a fresh judicial mind might be brought to bear in respect of the matter, given that it has had a long and convoluted history”. Mr Mancini indicated that that was a matter that he should have raised in July 2010. Mr Mancini told me that that was all he wished to say about that matter.
I then raised a matter with Ms Telfer, then counsel for the DPP, concerning the need under Division 4 of Part 8A of the Act to consider a report most recently submitted to the court by the Minister. I indicated that she may need to think about that before the next day when the application was to be heard. I referred also to a victims and next of kin report.
I then raised with Mr Mancini that there were no grounds set out in his application for the supervision order to be revoked. Mr Mancini then informed me that the applicant would not be pursuing a revocation of the licence but rather a variation of its conditions. To that end he was preparing a draft, which would be circulated to the psychiatrists and to counsel for the DPP, and which draft would set out what the applicant was proposing. He indicated that that may result in a resolution, or at least may affect the DPP’s attitude, and the psychiatrists might also have a view about that. I asked Mr Mancini if the applicant could file and serve by 4pm that day any variation of the application filed on 26 November 2008 and any grounds in support.
I then indicated that I had raised the mattes I wished to raise and I informed Mr Mancini that his application (or invitation) in respect of my hearing the matter was refused. The application at that time was anticipated to be an application for variation of the conditions of licence, not for revocation of the licence. I was informed when the doctors were organised to attend at court on the day following, being 12 November 2009, and the day after that. I adjourned to 10am the next day.
At 9.10am on 12 November 2009 my office received a voice message from Mr Mancini. The message was:
Hello George Mancini here.
??Refer Mr Draoui
About the application today before HH. We’ll be not proceeding and will be formally withdrawing it when we attend.
9.10am from diverted outside call
This message was sent on November 12 at 9.10am
By diverted outside call
The matter came on before me in court at 10.02am on 12 November 2009. The transcript for that attendance is annexed to the applicant’s affidavit and is referred to in David J’s judgment of 28 May 2010.
On 26 August 2010 I initially thought that the applicant confined his application for disqualification on the ground of apprehended bias to the fact that a judge of the Supreme Court had held, on 28 May 2010, that I had committed a jurisdictional error on 12 November 2009 and that I had not afforded procedural fairness to the applicant on that day because it was found that the applicant was not afforded adequate notice regarding what issues he had to address on that day as a result of which he was unaware of my impending order and he was not afforded the right to be heard on the time limit issue before my decision was made on 12 November 2009. He was not relying on any bias that may have been apprehended that related to any events that had occurred prior to 12 November 2009. Mr Niarchos had, on a number of occasions, said that there was nothing prior to 12 November 2009 that was relied upon. He did also say, however, that the applicant was relying on the substantive arguments set out in the Outline.

David J dealt with the issue of apprehended bias at paras 27 to 33 in his judgment of 28 May 2010. As already indicated I am not aware of the material that was put before David J. Para 27 of his judgment however, refers to a contention on behalf of the applicant that the alleged source of apprehended bias was based on my prior dealing with the matter, and in particular the original supervision order in 2007, on my refusing an application to vary the supervision order in 2009, and by my not disqualifying myself when asked at the directions hearing on 11 November 2009. That paragraph indicated that Mr Niarchos submitted before David J “that a reasonable lay observer would apprehend bias on the part of (me) by being aware of these factors, and continuing to hear the matter in the way that (I) did”. I must say I read that as a submission that a reasonable lay observer would have apprehended bias on my part in the orders and decisions I made on 12 November 2009 in light of what had preceded that day. The orders and decisions I made on that day were, after all, the ones the applicant was asking the Supreme Court to review and quash. Whilst it is true that in para 32 of David J’s reasons he referred to his view that there could “be no apprehension of bias by refusing to disqualify (myself) on the day prior (being 11 November 2010), when there was no reason to suggest (I) should be disqualified”, earlier in that same paragraph David J found that “a reasonable lay observer would not apprehend that (I) was not bringing an impartial mind to the case” based on my prior involvement and my refusing to disqualify myself (presumably on 11 November 2009), “and the way (I) dealt with the matter”. I interpreted that comment as referring to how I had dealt with the matter on 12 November 2009 because that was the day I made orders and direction that were challenged on the ground of apprehended bias.
I must confess to some difficulty in thinking that David J was confining his remarks in para 32 of his judgment of 28 May 2010 to 11 November 2009 and what happened before and on that day, and was not referring at all to what happened the next day, 12 November 2009. That seems to strain a natural reading of his Honour’s remarks in para 32 of his judgment.
Notwithstanding that, I am prepared to consider the current application on the basis that the applicant relies on nothing that occurred prior to 12 November 2009 (including what happened on 11 November 2009) and that he relies on this application that bias would be apprehended solely on what happened on 12 November 2009 and on the fact that David J held on 28 May 2010 that I committed jurisdictional error and I did not afford the applicant a right to be heard on the time limit issue before I made my decisions on 12 November 2009.
I shall confine my decision to a consideration of the above matters and not on any apprehended bias that might be said to have arisen by the facts and circumstances that predated 12 November 2009. I do so because I accept Mr Niarchos’ clear and unambiguous assurances to the court on a number of occasions that the applicant did not rely on anything that happened prior to 12 November 2009. I rely on those assurances notwithstanding the fact that Mr Niarchos indicated that he relied on his outline of argument which, in paragraph 15 on page 11, might be read to indicate that it was submitted that for the reasons set out in the applicant’s affidavit sworn on 22 July 2010 a reasonably informed and fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question arising on the application made on 8 June 2010 that the applicant’s licence be revoked. Apart from possible inferences from matters stated in that affidavit the applicant deposes to his belief “that a fair-minded lay observer might reasonably apprehend that (I) might not bring an impartial mind to the application as it is my third application in respect of the supervision order made by (me)”. That could only refer to applications made before the one filed on 8 June 2010.
The question here then is whether a reasonably informed and fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the question raised in the applicant’s application filed 8 June 2010 by reason of the fact that I made the decisions I did on 12 November 2009 which decisions a judge of the Supreme Court held on 28 May 2010 to be the result of jurisdictional error by me and that that judge also held that I had failed to afford a right to the applicant to be heard on the time limit issue before I made a decision on that issue.
In a relatively recent case in the Supreme Court of New Zealand five justices of that court sat to determine, inter alia, whether or not a judge should have heard a particular case that arose in that country. The case was Saxmere Co Ltd & Ors v Wool Board Disestablishment Co Ltd [2010] 1 NZLR 35.
In paras [55] to [86] of the judgment McGrath J set out the common law principles on disqualification for bias. He indicated that such a common law rule is necessary to public confidence in the administration of justice. He said that the rule for disqualification of judges and those exercising judicial functions, where there is a reasonable apprehension of bias, is long established in Australia. He then very usefully sets out many of the Australian authorities and some in England on the common law rule. I shall not here set out all of that to which he referred. I also shall not set out in detail what he said in paras [87] to [94] when he dealt with the test for disqualification. That test was that a “judge should not sit if a fair-minded and informed lay observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (para [89]). While “the test is one of possibility, not probability, it is not enough that the circumstances create a vague sense of unease or disquiet. It is always for the person who asserts there is a situation giving rise to a reasonable apprehension of bias firmly to establish that is the case” (para [94]).
It is useful, however, if I set out what he said at paras [95] to [99] on “the fair-minded observer”. It is as follows:
[95] That brings me to the question of the process by which the reasonable apprehension of bias test is to be applied. It is now established in the Commonwealth jurisdictions that its application should be by ascertaining the perspective of the fair-minded lay observer. There remains, however, considerable uncertainty as to the inputs into this hypothetical person’s decision making. Ms Owen has argued that if too much knowledge is imputed there is a risk that the reality will be that the perspective is not that of a lay observer at all.
[96]   As already indicated, some matters are clear. As the person is a lay observer, rather than a lawyer, no detailed knowledge of the law is to be imputed. And as the test is an objective one, the observer is not to be taken to be aware of any attributes, such as integrity and judicial ability, of the individual judge in question.
[97]   The Commonwealth case law does recognise that in this area attributing knowledge of information to the hypothetical observer may transform the process from one of ascertaining the perception of a member of the general public, so that it becomes that of an insider in the legal world. I accept that common law technique of looking at an issue through the eyes of a reasonable person is amenable to that sort of transformation. For example, the common law standard of care in the law of negligence is that expected of a reasonable person. But where a situation involves use of special skill, the standard ceases to be that of the ordinary citizen and becomes that of a skilled one. The overall trend in the cases I have discussed recognises, to my mind correctly, that the perception that there is a reasonable apprehension of bias must be both a rational and reasonable one before a judge is disqualified. A sufficient level of knowledge of the context in which the justice system operates is required to make such an assessment. The reasonable person must have a knowledge and understanding of the judicial process and the nature of judging. I am accordingly satisfied that the hypothetical observer must be sufficiently appraised of these matters to reach a decision on whether the circumstances of the particular case give rise to a reasonable apprehension of bias, that is an apprehension which is not a matter of superficial impression. Nothing less will provide a reasonable decision. There should, however, be no greater degree of sophistication attributed than is required for that end. It should also be borne in mind that in those cases which are said to involve a material pecuniary interest, contextual knowledge is unlikely to be of significance.
[98]   Consistent with this approach, the fair-minded observer should take a balanced and intelligent view, being, as Kirby J has put it, “neither complacent nor unduly sensitive or suspicious”. And while informed of matters of legal tradition and culture, the fair-minded observer will in appropriate circumstances be prepared to question them.
[99]   This approach to ascertaining if there is disqualifying bias is a principled one which will require judges to be guided by reasonable public perspectives. Properly administered by the courts, it will be capable of engendering the necessary public confidence in the integrity of the judicial system in this aspect of administration of justice. (Footnotes omitted).
In my view it is important in the context of the application before me that the reasonable person must have a knowledge and understanding of the judicial process and the nature of judging. The hypothetical observer must be sufficiently appraised of these matters to reach a decision on whether the circumstances of this case give rise to a reasonable apprehension of bias, that is an apprehension which is not a matter of superficial impression. It is also important that the fair‑minded observer should take a balanced and intelligent view and be “neither complacent nor unduly sensitive or suspicious”.
On my appointment I was required to take and did take an oath to “do right to all manner of people after the laws and usages of this State, without fear or favour, affection or ill-will”. The importance of that commitment to independence and impartiality during judicial service is substantial, as was noted by McGrath J in the Supreme Court of New Zealand in the case to which I have just referred. He also noted that that oath is “a continuous strong force for judicial neutrality” and “is the guiding principle in every decision that a judge takes”.
It is my no means unusual or uncommon for appellate courts to find that judges at first instance erred in the findings of fact they made, or in their statement of legal principles or of the law, or in the application of their findings of fact to legal principle and to the law, or in all three. Furthermore, it is not at all uncommon for appellate courts to quash orders made by trial judges because of errors made, and remit the matter to the same judge for re-hearing according to the law as the appellant court has held and expressed it to be. This course could not be considered in this case because there was nothing to remit to any court or judge. The application filed on 26 November 2008 was withdrawn on 12 November 2009.
I do not consider that a fair-minded lay observer would consider that such a trial judge could not bring an impartial mind to bear on the re-hearing or the further hearing of the case according to his or her oath, which is the guiding principle in every decision that a judge makes.
Whatever be the proper construction of para 32 of David J’s judgment of 28 May 2010 there is no doubt that he said in that paragraph that my “prior involvement did not require (me) to make any findings about the credibility of the applicant, and having previously heard the matter, it was sensible for (me) to hear the application for variation”. If that remark is to be confined to any decision I made on 11 November 2009, David J thought that it was sensible for me to hear on that day the application for variation and that a refusal to disqualify myself on that day would not reasonably give rise in a fair-minded lay observer on that day an apprehension of bias.
If a fair-minded lay observer would not reasonably apprehend that I could not bring an impartial mind to the resolution of whatever application was current before 12 November 2009, my view is that such an observer would not reasonably apprehend that I could not bring an impartial mind to the resolution of the application filed on 8 June 2010 based on what happened on 12 November 2009 and on what David J held on 28 May 2010. Even if the fair-minded observer was not aware of what was said by David J in para 32 of his judgment of 28 May 2010, I consider that such an observer would not reasonably apprehend that I could not bring an impartial mind to bear on the resolution of the application by the applicant because of what happened on 12 November 2009 and what David J decided on 28 May 2010.
I shall refuse the applicant’s application filed on 22 July 2010 for my disqualification from hearing the application filed on 8 June 2010 for revocation of the supervision order made on 27 September 2007.