R v Georgiadis - [2001] TASSC 47

[2001] TASSC 47

CITATION: R v Georgiadis & Ors [2001] TASSC 47

PARTIES: R

v
GEORGIADIS, John
THEODOSIS, Julie
BELBIN, John
LAMONT, Andrew Wayne
KELLY, Paul Edward
BOSTOCK, John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  237/1999

251/1999

DELIVERED ON:  24 April 2001
DELIVERED AT:  Hobart
HEARING DATES:  24 April 2001
JUDGMENT OF:  Underwood J

Edited edition of reasons for judgment delivered orally

CATCHWORDS:

Procedure - Courts and judges generally - Judges - Disqualification for interest or bias - In general - Reasonable suspicion of bias - Relevant suspicion is that the judicial officer will not decide a case impartially and with an unprejudiced mind.

R v Watson; ex parte Armstrong (1976) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re J R L; ex parte C J L (1986) 161 CLR 342, applied.
Aust Dig Procedure [5]

REPRESENTATION:

Counsel:
           Crown:  D Coates and H Virs
           Accused (Kelly):  G D Wendler QC
Solicitors:
           Crown:  Director of Public Prosecution
           Accused (Kelly):  Butler McIntyre & Butler

Judgment Number: [2001] TASSC 47
Number of Paragraphs: 10

Serial No 47/2001
File Nos 237/1999
251/1999

THE QUEEN v JOHN GEORGIADIS, JULIE THEODOSIS,
JOHN BELBIN, ANDREW WAYNE LAMONT,
PAUL EDWARD KELLY, JOHN BOSTOCK

REASONS FOR JUDGMENT UNDERWOOD J
(DELIVERED ORALLY) 24 April 2001

Six accused persons are joined together upon an indictment containing 14 counts. Apart from the last two, all counts allege the commission of the crime of conspiracy. These counts allege, in effect, that four conspiracies were entered into, each either to defraud, or alternatively, to commit a crime, or alternatively, to pervert justice. Two of the accused persons are alleged to have been parties to all four conspiracies, one of the accused is alleged to have been a party to two of the conspiracies, and the remaining three accused, Andrew Lamont, Paul Kelly and John Bostock, are alleged to have been a party to one of the conspiracies.

The criminal pleadings allege that one of the parties to each of the four conspiracies was a George H Gamble and one of the parties, a party to three of the conspiracies, was a Robert J Jones.

Counsel for Mr Kelly, Mr Wendler QC, submitted that I should disqualify myself from being the trial judge upon the grounds of apparent bias. It was submitted that the bias arose out of the following circumstances.

In 1999, Gamble and Jones pleaded guilty to three and two counts of conspiracy respectively. One of those conspiracies was the same, or arose out of the same facts, as the conspiracy presently charged against Mr Kelly. On 10 February 1999, I sentenced Gamble and Jones upon their pleas of guilty. At the conclusion of my comments on passing sentence, I said:

"Also taken into account is the agreement that both of you have made to give full and truthful answers if subpoenaed to give evidence on…

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 Georgiadis

Details

AGLC: R v Georgiadis [2001] TASSC 47
Case: [2001] TASSC 47
Decision Date: 24 April 2001

CaseChat Overview and Summary

In the matter of R v Georgiadis, the defendants John Georgiadis, Julie Theodorosis, John Belbin, Andrew Wayne Lamont, Paul Edward Kelly, and John Bostock faced a joint indictment comprising 14 counts. These charges were primarily related to various conspiracies to defraud, commit a crime, or pervert justice. The defendants were alleged to be participants in four different conspiracies, with varying degrees of involvement. The court heard an application from Mr Kelly's counsel, G D Wendler QC, requesting the disqualification of the presiding judge, Underwood J, on the grounds of apparent bias. The basis for this request stemmed from a statement made by the judge during the sentencing of two co-conspirators, Gamble and Jones, in which he implied that certain individuals, including the defendants, were the principal offenders.

The legal issue that the court had to address was whether the statement made by the judge during the sentencing of Gamble and Jones constituted a reasonable apprehension of bias that would warrant the judge's disqualification from presiding over the trial of the defendants. The court referred to established legal principles, such as those outlined in R v Watson; ex parte Armstrong, R v Lusink; ex parte Shaw, and Livesey v New South Wales Bar Association, to determine whether there existed a reasonable apprehension that the judge might not approach the case with an impartial and unprejudiced mind.

The court considered the hypothetical fair-minded observer or bystander, who would be aware of the circumstances surrounding the case, including the fact that the statement in question was made during a sentencing hearing in the absence of the defendants. The court also noted that the judge's comment was made without hearing evidence and only in relation to the two co-conspirators being sentenced. The court found that no fair-minded person could reasonably apprehend that the judge would not approach the issues to be determined with an impartial and unprejudiced mind. Consequently, the application for the judge's disqualification was dismissed.

In conclusion, the court held that the statement made by the judge during the sentencing of Gamble and Jones did not give rise to a reasonable apprehension of bias that would warrant the judge's disqualification from presiding over the trial of the defendants. The court found that the judge would approach the case with an impartial and unprejudiced mind, and therefore, the application for disqualification was dismissed.

Orders