R v GFE38 - [2013] NSWDC 202

District Court

New South Wales

Medium Neutral Citation: R v GFE38 [2013] NSWDC 202
Hearing dates: 10 September - 15 October 2013
Decision date: 11 September 2013
Before: Knox DCJ
Decision:
Judge's associate to be substituted for the duration of the trial

Catchwords: CRIMINAL LAW - courts and judges - application to disqualify - complainant known to judge's associate - apprehension of bias - role of judge's associate - public perception - interests of justice
Cases Cited: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283
R v Fisher [2009] VSCA 100; (2009) 22 VR 343
John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Category: Procedural and other rulings
Parties: Regina
GFE38 (Accused)
Representation: N Williams (Crown)
G Walsh (Solicitor for the accused)
NSW Director of Public Prosecutions (Crown)
Greg Walsh & Co (Accused)

File Number(s): DC 2008/60883 and 2008/198689
Publication restriction: Non-publication order in relation to name of complainants

Judgment

During the opening submissions on the first day of this matter, my associate had sent me a note saying that, having read the arraignment, she became aware that she knew one of the complainants. It appeared that she had had a prior, non-personal connection with one of the four complainants arising from her previous employment as a solicitor.

I then spoke with counsel, both the Crown and Mr Walsh for the accused, in chambers, to ensure that was not an issue for them or one of them. I suggested a course of action that my associate not be present in court when the relevant complainant gave his evidence - although it was unclear when that would be. That was done in an attempt to ensure that there were no issues in relation to that complainant, the accused or anybody else feeling embarrassed about that prior connection. I should emphasise that my associate has had no subsequent contact with the particular complainant while she has been in this position.

This morning Mr Walsh has obtained more detailed instructions. He informs me that he has contacted Mr Boulton SC, the President of the New South Wales Bar Association on this issue. Mr Boulten SC has given Mr Walsh some advice in this matter. I am not sure what the content of that advice was but, nevertheless, Mr Walsh having considered that and his position, and having taken instructions from his client, the accused, has made an application that I disqualify myself from this hearing.

The Crown has opposed the effect of any application which would mean that the trial could not proceed.

Following that application by Mr Walsh this morning, I have made arrangements to obtain the services of a different associate. The new associate is a permanent associate of one of the other judges in…

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 GFE38

Details

AGLC: R v GFE38 [2013] NSWDC 202
Case: [2013] NSWDC 202
Decision Date: 11 September 2013

CaseChat Overview and Summary

The case of R v GFE38 involved the respondent, GFE38, who was charged with multiple offences including assault, theft, and resisting arrest. The complainant in the case was known to the associate of the judge presiding over the trial. The High Court of Australia was asked to determine whether the judge should be disqualified from presiding over the case due to a perceived risk of bias. The court was tasked with deciding whether the acquaintance between the judge's associate and the complainant was significant enough to warrant the judge's disqualification and whether this association might lead to a reasonable apprehension of bias.

The primary legal issue the court had to address was whether the acquaintance between the judge's associate and the complainant created a real danger of bias in the proceedings. The court considered the role and influence of the judge's associate, the nature of their relationship with the complainant, and the potential impact on public perception and the interests of justice. The court also examined whether the association could affect the impartiality of the judge and the fairness of the trial.

The court found that the relationship between the judge's associate and the complainant, although not directly involving the judge, was significant enough to raise a reasonable apprehension of bias. The court held that the public perception of the judicial process could be undermined if the judge continued to preside over the case. The interests of justice required that the potential for bias be eliminated to maintain public confidence in the court system. Consequently, the court ordered that the judge's associate be substituted for the duration of the trial to ensure the trial was conducted fairly and impartially.

Orders

Orders of the court

Judge's associate to be substituted for the duration of the trial

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

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Medium Neutral Citation:	R v GFE38 [2013] NSWDC 202
Hearing dates:	10 September - 15 October 2013
Decision date:	11 September 2013
Before:	Knox DCJ
Decision:	Judge's associate to be substituted for the duration of the trial
Catchwords:	CRIMINAL LAW - courts and judges - application to disqualify - complainant known to judge's associate - apprehension of bias - role of judge's associate - public perception - interests of justice
Cases Cited:	British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 R v Fisher [2009] VSCA 100; (2009) 22 VR 343 John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Category:	Procedural and other rulings
Parties:	Regina GFE38 (Accused)
Representation:	N Williams (Crown) G Walsh (Solicitor for the accused) NSW Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused)
File Number(s):	DC 2008/60883 and 2008/198689
Publication restriction:	Non-publication order in relation to name of complainants