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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Draoui

Details

AGLC: R v Draoui [2010] SADC 141
Case: [2010] SADC 141
Decision Date: 19 November 2010

CaseChat Overview and Summary

The applicant in this matter, Draoui, was released on licence pursuant to a specified section of the Criminal Law Consolidation Act, 1935 on 27 September 2007, with a limiting term of 10 years. Subsequently, an application was made to revoke the licence. In response, Draoui applied to have the judge who had initially released him on licence disqualified from hearing the revocation application, alleging bias or an interest that might compromise the judge's impartiality. The central issues before the court were whether the judge had a disqualifying interest or was likely to be biased, and if so, whether this would necessitate the judge's disqualification.

The court considered the nature of the relationship between the judge who had released Draoui on licence and the present application to revoke that licence. It was acknowledged that there was no direct personal or financial interest between the judge and Draoui that would disqualify the judge. However, the court also assessed whether the judge's prior involvement in the decision to grant the licence could lead to a perception of bias. The court ultimately determined that while the judge's prior involvement might raise concerns, it did not reach the threshold of apprehended bias that would warrant disqualification. The court reasoned that the mere fact that the same judge was involved in both decisions did not inherently create a bias that would prevent a fair hearing of the revocation application.

The court concluded that there was no disqualifying interest or apprehended bias on the part of the judge. Consequently, the application to disqualify the judge was dismissed. The court further proceeded to hear and determine the merits of the application to revoke the licence without the need for a different judge. The final orders of the court reflect the dismissal of the application for disqualification and the continuation of the proceedings regarding the revocation of the licence before the same judge.

Orders