This decision has been amended. Please see the end of the decision for a list of the amendments.
Supreme Court
New South Wales
Case Title: R v El-Zeyat and Aouad Medium Neutral Citation: [2012] NSWSC 340 Hearing Date(s): 30 March 2012 Decision Date: 26 April 2012 Jurisdiction: Common Law - Criminal Before: Johnson J
Decision: I recuse myself from sitting as the trial judge at the retrial of each Accused
Catchwords: CRIMINAL LAW - murder trial - retrial of Accused following successful appeal against conviction to Court of Criminal Appeal - judge allocated retrial had been member of Court of Criminal Appeal which allowed appeal and dismissed appeal against conviction by each Accused and other persons in related appeal - judgment of judge in related appeal made findings that evidence of persons proffered as fresh evidence was not credible or plausible - Accused likely to call those persons as witnesses at retrial - application that judge recuse himself at retrial - whether reasonable apprehension of bias by reason of prejudgment - application of principles in context of trial by jury - exceptional circumstances surrounding application - judge recuses himself
Legislation Cited: Evidence Act 1995
Criminal Appeal Act 1912Cases Cited: El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2006] HCA 55; 229 CLR 577
Antoun v The Queen [2006] HCA 2; 80 ALJR 497
R v Kearns [2003] NSWCCA 367
R v Lee [2005] QCA 122
R v Sonnet (No. 3) [2007] VSC 287
Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
Cesan v The Queen [2008] HCA 52; 236 CLR 358
Osman v R [2006] NSWCCA 196
Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70
CUR24 v Director of Public Prosecutions [2012] NSWCA 65
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
El Zayet v The Queen; Aouad v The Queen, Darwiche v The Queen; Osman v The Queen [2011] HCATrans 342
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 86 ALJR 14
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283
Cornwell v The Queen [2007] HCA 12; 231 CLR 260Texts Cited: ---
Category: Interlocutory applications Parties: Nasaem El-Zeyat (Accused)
Ramzi Aouad (Accused)
Regina (Crown)Representation - Counsel: Counsel:
Mr MC Ramage QC; Mr IS McLachlan (El-Zeyat)
Mr CC Waterstreet; Ms NS Carroll (Aouad)
Mr CC Patrick (Crown)- Solicitors: Solicitors:
Sydney Criminal Lawyers (El-Zeyat)
George Sten & Co (Aouad)
Solicitor for Public Prosecutions (Crown)File number(s): 2005/2620 (El-Zeyat)
2005/2678 (Aouad)Publication Restriction:
JUDGMENT
JOHNSON J
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- Case
- [2012] NSWSC 340
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the judge's prior involvement in the appeal against the applicants' convictions created a reasonable apprehension of bias such that he should recuse himself from presiding over their retrial. The Court considered whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions he was required to decide. The Court also examined the stage at which the application for recusal was made and the practicality of assigning another judge to the case.
The Court concluded that the judge should recuse himself. It found that the exceptional circumstances of the case, including the judge's prior involvement in the appeal and the potential for the judge to be called upon to rule on the admissibility of evidence that he had previously assessed, created a real possibility of bias. The Court emphasised the importance of maintaining public confidence in the impartiality of the judiciary and noted that in cases of real doubt, a judge may recuse himself to avoid any potential inconvenience that might arise if an appellate court later took a different view on the matter of disqualification.
In light of the above, the Court ordered that the judge recuse himself from presiding over the retrial of El-Zeyat and Aouad. The case underscores the importance of perceived impartiality in judicial proceedings and the need for judges to avoid any circumstances that might give rise to a reasonable apprehension of bias.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It has been said that, in a case of real doubt, where the application for recusal is based upon a substantial ground for contending that the judge is disqualified from hearing the case, a judge may decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification: Ebner v Official Trustee in Bankruptcy at 348 [20]. Matters relevant to that assessment include, amongst other things, the stage at which an objection is raised and the practical possibility of arranging for another judge to hear the case: Ebner v Official Trustee in Bankruptcy at 348 [21].Some Further Considerations Where a Judge is to Preside at Criminal Jury Trial Although the test for reasonable apprehension of bias remains the same whether the judge is to sit with or without a jury, that distinction is pertinent given the different issues which a trial judge may be called upon to determine, which do not include the ultimate factual question of whether the guilt of the accused has been proved beyond reasonable doubt, this being a matter for the jury. The application of the relevant principles in the context of a judge-alone trial were considered by the High Court of Australia in Antoun v The Queen [2006] HCA 2; 80 ALJR 497. The distinction between the functions of judge and jury in a criminal trial are well illustrated by the decision of the Court of Criminal Appeal in R v Kearns [2003] NSWCCA 367. In that case, the trial judge had presided at an earlier trial of a related offender. In these circumstances, it was submitted on appeal against conviction, that the trial judge should not have presided at the trial of the appellant. In the course of rejecting this ground of appeal, Spigelman CJ (Dunford and Hidden JJ agreeing) said at [33]-[40]:"[33] The Appellant contends that his Honour's involvement, even as a presiding judge in a jury trial, gave rise to a reasonable apprehension of bias. It was submitted that as his Honour had heard the alleged fabrications of Parkes and of those whom the Appellant contends are his co-conspirators, ie fabricated allegations against the Appellant, in a trial where those allegations against the Appellant were uncontested, that fact may have prejudiced the trial judge.[34] The fact that the trial judge's role in a jury trial is limited is not determinative of the matters, however, it is of significance. That it is not determinative is shown by the Court of Appeal in the case of Balic (No 2) (1994) 75 A Crim R 515 at 520, where their Honours said:Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.[35] The test for disqualification on the grounds of bias is now well established in Australia and has been set out in Johnson v Johnson (2000) 201 CLR 488 at 492 to 493:... . [T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... . is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide ... . the test is objective ... two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.[36] As I have indicated, in a jury trial the matters which a judge is required to decide include the admissibility of evidence and also the formulation of a summing up. If there is a conviction, he or she must sentence the person so convicted. These are more limited matters than those which arise in the course of a judge-alone trial. Specifically, however, they do not include the determination of issues of credit.[37] Nevertheless, decisions to admit or reject the evidence and the other subtle and indirect influences which were referred to in Balic (No 2), may affect the course of a criminal trial. In a complex trial involving financial questions that will need to be carefully explained to a jury, it is an advantage for a trial judge to have a familiarity with the corporate group of the character that Judge Dodd had on these occasions, even though the particular offending was quite distinct in the case of the Parkes prosecution from the prosecution of the Appellant.[38] I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge's mind, in terms of his or her conduct in the second trial.[39] These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.[40] This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair-minded, independent lay observer."