R v Gina Agostinelli R v Gary Lewis No. SCCRM 95/112, SCCRM 95/116 Judgment No. 5279 Number of Pages 15 Courts and Judges Criminal Law Appeal against Sentence

[1995] SASC 5279

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ(2), DUGGAN(1) and NYLAND(3) JJ

CWDS
Courts and judges

Criminal law - jurisdiction, practice and procedure - course of evidence, statements and addresses

Appeal against sentence - appellants convicted of murder - comments made by judge in course of sentencing hearing caused reasonable apprehension of bias in the mind of the appellant Agostinelli - appeals allowed - non-parole periods set aside - matter referred for rehearing concerning the issue of non-parole periods.

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; R v Watson; ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW Bar Association (1983) 151 CLR 288; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, applied. R v Sharp (1993) 3 All ER 225; Jones v National Coal Board (1957) 2 QB 55; Re JRZ; ex parte CJL (1986) 161 CLR 342; Re Keely; ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495, discussed.

HRNG ADELAIDE, 22 June 1995 #DATE 12:10:1995 #ADD 27:11:1995

Counsel for appellant Agostinelli:     Mrs M E Shaw

Solicitors for appellant Agostinelli: Wallace Degaris and Co

Counsel for appellant Lewis:            Mr W P Boucaut

Solicitors for appellant Lewis:         Reilly Basheer Downs
   and Humphries

Counsel for respondent:                 Ms W J Abraham with
   Ms J S Basheer

Solicitors for respondent:             DPP (SA)

ORDER
Appeals allowed.

JUDGE1 DUGGAN J The facts of this matter are set out in the judgment of Nyland J.

2. In my view the matter of most concern in this appeal is the complaint of the appellant Agostinelli that she had instructed her counsel to call her in order to give evidence about certain mitigating circumstances but withdrew those instructions in the course of the sentence hearing when she perceived from the learned sentencing judge's remarks that he had closed his mind to any argument which might be advanced on the basis of such evidence.

3. The learned sentencing judge sentenced both appellants on the basis that the offence was
    "a premeditated and deliberate and cold-blooded act of
    murder carried out by both of you with a plan in place, as
    you saw it, to explain the disappearance of the deceased".

4. Earlier in his sentencing remarks the learned judge commented:
    "Some facts about the murder are clear and some are obscure.
    You, Gina Agostinelli, had, since late 1993 or early 1994
    harboured feelings of dislike, and I use a neutral term,
    towards your husband. Whether or not you were justified in
    those feelings is not clear, but was is clear is that in
    about March you decided that you wanted your husband dead
    and were prepared to have him murdered."

5. It was argued on the appellant Agostinelli's behalf before the learned judge that the killing was not pre-planned in the manner found by his Honour. However it was also put to his Honour that the offence arose out of a desire by the appellant Agostinelli to protect herself, and, in particular, her two sons from what was alleged to have been a continuous course of abusive conduct by the deceased. Mr Rice for the appellant Agostinelli advised the learned judge on more than one occasion in his submissions that his client would give evidence on this issue.

6. At an early stage in the submissions of counsel the learned judge indicated that such evidence would be of little value in the light of the extent of premeditation which he considered existed. The following exchange is an example of a number of passages which indicate his Honour's attitude:
    "His Honour: What are we getting to? I have got a
    premeditated murder to deal with; premeditated over months
    of preparation on the face of it.

Mr Rice: I propose to deal with that.

His Honour: That is what the problem is. She may not have
    been in love with her husband in the months preceding her
    murder. I have evidence that he was a relatively happy man,
    that he worked around the caravan park.

Mr Rice: And maltreated her boys.

His Honour: You say that. There is evidence of striking
    one blow I think. We had that out at the trial. You used
    the word abused and maltreated, but there is no evidence of
    that. You can go on with this business from 1989 onwards
    but if it is to lead up to the fact that she became further
    and further disenchanted with her husband and in 1994 formed
    the view that she would murder him in due course, let it be
    so.

Mr Rice: I was proposing to lead up to how those events
    came to be. I understand that your Honour is primarily
    concerned about the events of late 1993, early 1994, but
    that is not to say they don't have some context.

His Honour: Go on if you feel you are serving your client's
    interests that she became more and more disenchanted that
    she eventually decided to do away with him.

Mr Rice: It wasn't disenchantment that eventually caused
    her to wish him dead. It was the way he treated her boys
    and some of the testimonials I have, and I can call the boys
    themselves, they are here.

His Honour: I think I would probably, looking at these
    victim impact statements, probably hear a lot of evidence to
    the contrary, I should think."

7. Later Mr Rice stated that he wished to put some material before the court relating to this aspect. The discussion continued as follows:
    "His Honour: Is this something about his attitude towards
    the boys, I take it?

Mr Rice: And it's very important.

His Honour: Is it?

Mr Rice: Yes.

His Honour: To justify murdering someone?

Mr Rice: I've never suggested it justifies.

His Honour: If it doesn't justify murder what relevance has
    it got, if it doesn't detract from your client's degree of
    guilt?

Mr Rice: That explains, as I've -

His Honour: I'm prepared to say it explains it, but it
    doesn't excuse or detract from her degree of guilt.

Mr Rice: I said at the beginning of my submissions that it
    provides the reason why she did things, but doesn't legally
    justify it.

His Honour: Nor does it detract from the punishment that
    she's due for. It was a cold-blooded, deliberate murder.

Mr Rice: So far as that night is concerned, yes, that would
    appear to be the case.

His Honour: Let's confine ourselves to that case, a
    preplanned, cold-blooded murder.

Mr Rice: Not preplanned.

His Honour: You can convince me of that by evidence.

Mr Rice: Certainly a plan unfolded that night, and I've
    already expressed, a number of times, that that was a result
    she decided.

His Honour: You can lead evidence to try and satisfy me of
    that if you like.

Mr Rice: I take it, also, that your Honour is not prepared
    to receive any material about -

His Honour: I'll receive whatever Ms Abraham will let you
    put before me, I'll have to look at the rest to see if it's
    got any relevance.

Mr Rice: Relevant to relationship. If the prosecution can
    lead evidence of relationship, why can't the defence, that's
    my point?

His Honour: Your client can speak of it. Anyway, before we
    get to whether we've got any corroboration of it, let's get
    down to the main contestants in this little dispute are the
    first to give evidence. (sic)

Mr Rice: My client has listened to your Honour's comments
    and points of view expressed and does not wish to give
    evidence.

Mr Boucaut: The same applies for Mr Lewis."

8. Without hearing the evidence this court cannot determine the extent, if any, to which any allegations of violence by the deceased would be relevant to the sentence to be imposed. However, in the state of the matter before the sentencing judge and this court, it cannot be said that the foreshadowed evidence was of no relevance whatsoever to the exercise of the sentencing discretion. Notwithstanding this potential relevance the learned sentencing judge gave the impression that, in his view, the evidence could not be of any relevance and it seems clear from all the circumstances that the strong expression of this view resulted in the decision by the appellant Agostinelli not to give evidence.

9. A plea of guilty admits no more than the essential ingredients of the offence and, as Bray CJ pointed out in Law v Deed (1970) SASR 340:
    "The plea does not in itself admit any circumstances of
    aggravation which may be alleged by the prosecution; nor
    conversely does it in itself negative any circumstances of
    mitigation not amounting to exculpation which may be within
    the knowledge of the defendant alone." (See also Chow v DPP
(1992) 28 NSWLR 593 at 605).

10. However it was necessary for the appellant Agostinelli to call some evidence so as to raise the issue and place the onus on the prosecution to negative it or submit that it was irrelevant. (See Law v Deed at p379; Anderson v The Queen (1993) 177 CLR 520 at 539).

11. In my view it was important for the learned trial judge to hear any evidence which the appellant Agostinelli wished to give on this issue of mitigation in order to determine the extent of its relevance. If, as I think happened in the present case, this appellant decided not to give evidence because the trial judge had expressed the view that the evidence she proposed to give had no relevance at all, then a material irregularity has occurred and the sentence must be set aside. As Nyland J has pointed out, this issue also has relevance to the case of the appellant Lewis.

12. I would allow the appeals, set aside the non-parole periods of both appellants and direct that there be a re-hearing on sentence.

JUDGE2 DOYLE CJ In my opinion, for the reasons given by Duggan J and Nyland J, the appeals should be allowed, the order fixing a non-parole period in respect of each appellant should be set aside, and there should be a new hearing on the question of the non-parole period to be fixed in respect of each appellant.

JUDGE3 NYLAND J Gina Maria Agostinelli and Gary Leonard Lewis have appealed against the sentences imposed upon them in the Supreme Court for the murder of Angelo Agostinelli on or about 18 May 1994. Upon their arraignment they pleaded not guilty. The trial commenced before a judge and jury on 6 February 1995. Evidence was given at the trial by a number of witnesses including Helen Miller who was charged with maliciously administering a poison or noxious substance, and her son, Adrian Miller, who was jointly charged with his mother with impeding the investigation of an offence.

2. On 14 February 1995, the appellant Lewis changed his plea to guilty. The following day, the appellant Agostinelli, also changed her plea. The jury then returned a verdict of guilty to the charges of murder and both appellants were remanded for sentence.

3. Gina Agostinelli was previously married in 1980 to a man called Tonellato. There were two children of that marriage, Mark, who was born in 1983 and Shane, who was born in 1984. Tonellato died in September 1986. In June 1989, Agostinelli married the deceased. In 1993, the family moved to Millicent to run a caravan park. It was here that they met the Millers and later, Lewis. There were problems in the marriage, however, and their relationship deteriorated, particularly towards the latter part of November 1993 when, according to Agostinelli the deceased was inter alia making threats to her children. Lewis became friendly with Agostinelli in about January 1994, and their friendship developed as time progressed. From January 1994, Agostinelli started talking about disposing of her husband and Lewis became involved in those discussions. The Millers also became involved in discussions as to methods of getting rid of the deceased. As a result of these discussions, it would appear that on three separate occasions leading up to 18 May 1994, the deceased was drugged: (a) by drugs from Melbourne obtained by Adrian Miller; (b) with prothiaden provided by Helen Miller; and (c) "horse medicine" obtained by Lewis. The learned sentencing judge indicated in the course of his sentencing remarks, however, that he was prepared to sentence on the basis that these three druggings were intended only to calm the deceased and for no other purpose.

4. There were, however, a number of other plans to kill the deceased. Lewis took the deceased to a marijuana plantation, apparently to kill him, but nothing occurred. Lewis later told the Millers that the deceased was suspicious of the four of them and that the deceased thought his wife was trying to kill him. Subsequently, Agostinelli, through Lewis, paid a third party called "Bluey" to kill the deceased. The deceased was lured to a house so that this plan could be carried out, but nothing came of this. The judge made no comment as to whether the "Bluey" incident was a real situation or a figment of Lewis' imagination, but found that Agostinelli believed the arrangement would lead to the death of her husband. In addition, Lewis suggested taking the deceased to the coast in order to push him off a cliff. Lewis did in fact drive the deceased to a beach, where he gave him a beating.

5. According to Adrian Miller, during the period these discussions were taking place, Agostinelli said that she did not want a divorce from the deceased because she "didn't want half what they had, she wanted the lot". In February 1994, the deceased left the caravan park and came to Adelaide for four days. During this period, he made no contact with Agostinelli. This trip occurred immediately after Lewis had taken the deceased to the beach. When in Adelaide the deceased appeared nervous and agitated and when he returned to the caravan park, the arguments were more frequent. Helen Miller described one occasion, and Adrian Miller, two occasions, on which the deceased hit Mark.

6. On 18 May, Agostinelli spoke to Adrian Miller by telephone and told him everything was fixed for Angelo. She said that she was waiting for Lewis to bring the horse medicine which she was going to put in the deceased's food. At about 7 to 7.30 pm, Lewis told Helen Miller that the deceased was drugged in the back of the shop and he would later take him out to the bush. The events thereafter, however, are somewhat confused and neither appellant has offered any real explanation as to what actually occurred. In the course of submissions before the judge, counsel for Lewis told his Honour that the deceased had tried to get up but had fallen over and hit his head, that his right eye was puffy and swollen and that Agostinelli and Lewis had then set off to the Millicent Hospital, with the deceased in the vehicle, in order to obtain some treatment for him. This description of events appears to have been met by the judge with a considerable degree of scepticism.

7. Agostinelli acknowledged that she had urged Lewis to kill her husband but maintained that as far as she was aware only one stab wound was inflicted. The examination of the body disclosed, however, that the right side of the deceased's head had been smashed in with a blunt object, that at least three stab wounds, and probably more, had been inflicted to the body, one of which penetrated the heart. The body was dragged into the bush off a dirt track in the Canunda National Park and was then covered with branches. After the killing, the appellants spread the story that the deceased had disappeared and gave details of that. The vehicle in which the deceased had been placed was cleaned by Adrian Miller and Lewis. The deceased was reported missing about one week after the killing and Agostinelli made a plea on SES8 television for information as to the whereabouts of her husband. The appellants were subsequently arrested and charged with murder on 22 June 1994.

8. In his sentencing remarks the judge described the case as a "joint enterprise" and a "premeditated and deliberate and cold blooded act of murder carried out by both of you with a plan in place as you saw it to explain the disappearance of the deceased". With regard to Agostinelli, he fixed a non-parole period of 19 years and nine months, taking into account the three months Agostinelli had already spent in custody. His Honour fixed a non-parole period of 20 years for Lewis, which was reduced by one year to allow for the plea of guilty.

9. Agostinelli appeals against the sentence on the ground that the non-parole period set by the judge was manifestly excessive. She further appeals on the ground that the sentencing judge failed to adequately take into account her reasons for being party to the offence, her plea of guilty, her prior good character and the effect of imprisonment on her dependents.

10. Submissions were made to his Honour that the murder arose out of Agostinelli's desire to protect her children from abuse by the deceased. However, the judge stated that it was not clear if the feelings of dislike the appellant felt towards the deceased were justified or not. Agostinelli also appeals on the basis that the sentencing judge was in error in failing to admit, for the purpose of sentencing, the statements written by the appellant's children, as well as numerous other documents. With regard to the children's statements, his Honour refused to admit them as no information was provided as to the circumstances in which they were written.

11. Agostinelli further appeals on the ground that the judge was in error in finding that she was aware of the plantation affair and that his Honour was in error in not finding that, on all four occasions, the purpose of drugging the deceased was to calm him down. Finally, she appeals on the basis that there was insufficient material for the judge to find that there was a plan in place to explain the disappearance of the deceased.

12. In the course of his sentencing remarks, the judge said he took into account submissions made on behalf of the appellant. He received into evidence numerous written references on behalf of Agostinelli but stated that they merely bore out the fact that she had previously been of exemplary character.

13. Mrs Shaw, who appeared for Agostinelli on the appeal, submitted that the non-parole period fixed by the judge indicated that he had placed the offence in the worst category. She argued, however, that if the offence had occurred as a result of circumstances peculiar to Agostinelli's family situation, and if her antecedents indicated that there were prospects of rehabilitation, then the offence ought not to have been treated as being in the worst category.

14. Mrs Shaw submitted that the conduct of the judge during counsel's submissions in mitigation prevented counsel from fairly presenting the appellant's case and led to the appellant being dissuaded from giving evidence. As part of the case presented on appeal, the court was provided with a detailed schedule, taken from the transcript, of exchanges which had taken place between counsel for Agostinelli and the judge in the course of the sentencing hearing. Agostinelli was subsequently given the leave of this court to file an affidavit as to the effect of those matters upon her. In that affidavit, she says as follows:
    "...

3. I pleaded guilty to the charge of murder before Mr
    Justice Mohr. I gave instructions to my counsel Mr Paul
    Rice to make submissions in relation to penalty to Mr
    Justice Mohr. I instructed my counsel Mr Rice, prior to
    commencing those submissions, that I wished to give evidence
    on oath to support and expand if necessary, on the
    submissions to be made by him.

4. I had given expansive instructions to my counsel Mr Rice
    in terms of my background, the history of my relationship
    with the victim Angelo Agostinelli deceased, and details of
    his treatment of me and my two sons which lead (sic) to the
    murder. I recall that early in the submissions made by Mr
    Rice, his Honour Justice Mohr interrupted Mr Rice and
    queried the relevance of Mr Rice's submissions. I am unable
    to specifically recall all of the detail of the submissions
    made by Mr Rice on my instructions, nor of the exchange

    between Mr Rice and his Honour. I say however, that the
    judge continually interrupted Mr Rice in his submissions and
    queried the relevance of the submissions being made.

5. I do recall very clearly however, that on more than one
    occasion the judge stated to my counsel that he regarded the
    matter before him as a cold blooded act of murder. I
    understood that statement to indicate the judge was simply
    not interested in hearing my explanation of how it was I
    came to desire the death of the deceased and my involvement
    in that. This behaviour of the judge made me feel
    uncomfortable, distressed and led me to conclude that
    anything that was being put on my behalf was a waste of
    time. It was clear to me that the judge had already made up
    his mind in terms of what he regarded as relevant for his
    consideration and nothing put on my behalf and no matter
    what I might say in evidence would change his mind.

6. I had prior to submissions being given on my behalf
    instructed my counsel that if necessary my son Mark was
    willing to give evidence to the court in relation to the
    treatment of Mark by the victim. Because of the demeanour
    and statements by the judge, I determined that I did not
    wish Mark to give evidence, firstly because I believed it
    would be a waste of time and secondly I did not want him to
    be exposed to rigorous questioning.

7. I still believe that the treatment of my counsel Mr Paul
    Rice on the day that submissions were made was unfair and I
    say that if my counsel had been able to make his submissions
    without repeated interruption, I would have given evidence
    on my own behalf during the submission process. I would
    have given evidence in relation to all of the maters covered
    by my counsel. I recall that Mr Rice had indicated to the
    judge during the course of his submissions that I was
    willing to give evidence. I recall that at the end of his
    submissions the judge allowed Mr Rice an adjournment of five
    minutes to take instructions from me in that matter. I as a
    result of discussion with my counsel during the adjournment
    and because of the behaviour of the judge, I (sic) decided
    not to give evidence because I felt it would simply be a
    waste of time.

..."

15. The conduct of the judge at the sentencing hearing became the significant issue on the hearing of this appeal and it is therefore convenient to deal with that matter before turning to the other grounds of appeal.

16. In the article Appellate Review of Procedural and Factual Error by C T Barry (1991) 65 ALJ 720, the fundamental requirements of the trial process were described to include (p720):
    "(i) an unfettered right to present legally admissible
    evidence in favour of any fact necessary to be established;

(ii) a full opportunity by cross examination or contrary
    evidence to test or disprove a fact sought to be
    established;

(iii) a full opportunity to present submissions seeking to
    persuade a tribunal of fact that the evidence and inferences
    from it support or fail to support any fact necessary to be
    established;

(iv) a fair and impartial mind being brought to bear on the
    evidence and submissions;

(v) ..."

17. In R v Sharp (1993) 3 All ER 225 the Court of Appeal considered whether there had been a material irregularity as a result of the nature and frequency of the interruptions of the trial judge. Stuart-Smith LJ said at p234:
    "There were a considerable number of interruptions by the
    judge in the course of the cross-examination of Mr Brodie
    and Mr Lees, but Mr Tonking has concentrated our attention
    on seven in particular. The law on this matter was stated
by Purchas LJ in R v Matthews (1984) 78 Cr App R 23 at 32-33
    where after reviewing the authorities he said: 'To summarise
    these authorities the following propositions appear to
    emerge: (1) Whilst a large number of interruptions must put
    this court on notice of the possibility of a denial of
    justice, mere statistics are not of themselves decisive; (2)
    The critical aspect of the investigation is the quality of
    the interventions as they relate to the attitude of the
    judge as might be observed by the jury and the effect that
    the interventions have either upon the orderly, proper and
    lucid deployment of the case for the defendant by his
    advocate or upon the efficacy of the attack to be made on
    the defendant's behalf upon vital prosecution witnesses by
    cross-examination administered by his advocate on his
    behalf; (3) In analysing the overall effect of the
    interventions, quantity and quality cannot be considered in
    isolation, but will react the one upon the other; but the
    question which is posed ultimately for this court is "MIGHT
    the case for the defendant as presented to the jury over the
    trial as a whole, including the adducing and testing of
    evidence, the submissions of counsel and the summing up of
    the judge, be such that the jury's verdict might be unsafe?"
    In the presence of conditions in which this Court has been
    alerted in the manner to which we have referred, it appears
    to us that if there is a possibility of a denial of justice
    then this Court ought to intervene.' (Purchas LJ's
    emphasis.)"

18. Stuart-Smith LJ went on to discuss the effect of frequent interruptions by a judge in the course of cross-examination and said:
    "In general, when a cross-examination is being conducted by
    competent counsel a judge should not intervene, save to
    clarify matters he does not understand or thinks the jury
    may not understand ... a judge should not be criticised for
    occasional transgressions ... But there may come a time,
    depending on the nature and frequency of the interruptions
    that a reviewing court is of the opinion that defence
    counsel was so hampered in the way he properly wished to
    conduct the cross-examination that the judge's conduct
    amounts to a material irregularity."

19. In Jones v National Coal Board (1957) 2 QB 55, the Court considered a situation in which a trial judge had intervened during the evidence for a plaintiff in order to understand certain technicalities. The court held that although the judge was actuated by the best of motives, his interventions taken together were excessive and ill-timed, with the result that not sufficient primary facts had been elicited to enable the appellate court to determine the issues as to liability, and there must therefore be a new trial.

20. Denning LJ said (p63):
    "Nevertheless, we are quite clear that the interventions,
    taken together, were far more than they should have been.
    In the system of trial which we have evolved in this
    country, the judge sits to hear and determine the issues
    raised by the parties, not to conduct an investigation or
    examination on behalf of society at large, as happens, we
    believe, in some foreign countries. Even in England,
    however, a judge is not a mere umpire to answer the question
    'How's that?' His object, above all, is to find out the
    truth, and to do justice according to law; and in the daily
    pursuit of it the advocate plays an honourable and necessary
    role. Was it not Lord Eldon LC who said in a notable
    passage that 'truth is best discovered by powerful
    statements on both sides of the question'?: see Ex parte
    Lloyd (1822) Mont 70, 72n. And Lord Greene MR who explained
    that justice is best done by a judge who holds the balance
    between the contending parties without himself taking part
    in their disputations? If a judge, said Lord Greene, should
    himself conduct the examination of witnesses, 'he, so to
    speak, descends into the arena and is liable to have his
    vision clouded by the dust of conflict': see Yuill v Yuill
(1945) P 15, 20; 61 TLR 176; (1945) All ER 183.

Yes, he must keep his vision unclouded. It is all very well
    to paint justice blind, but she does better without a
    bandage round her eyes. She should be blind indeed to
    favour or prejudice, but clear to see which way lies the
    truth: and the less dust there is about the better. Let the
    advocates one after the other put the weights into the
    scales - the 'nicely calculated less or more' - but the
    judge at the end decides which way the balance tilts, be it
    ever so slightly. So firmly is all this established in our
    law that the judge is not allowed in a civil dispute to call
    a witness whom he thinks might throw some light on the
    facts. He must rest content with the witnesses call by the
    parties: see In re Enoch and Zaretzky, Bock and Co (1910) 1
    KB 327. So also it is for the advocates, each in his turn,
    to examine the witnesses, and not for the judge to take it
    on himself lest by so doing he appear to favour one side or
the other: see Rex v Cain (1936) 25 Cr App R 204, Rex v
Bateman (1946) 31 Cr App R 106, and Harris v Harris, The
    Times, Apr 9 1952; Judgments of the Court of Appeal, 1952
    No.148, by Birkett LJ especially. And it is for the
    advocate to state his case as fairly and strongly as he can,
    without undue interruption, lest the sequence of his
argument be lost: see Reg v Clewer (1953) 37 Cr App R 37.
    The judge's part in all this is to hearken to the evidence,
    only himself asking questions of witnesses when it is
    necessary to clear up any point that has been overlooked or
    left obscure; to see that the advocates behave themselves
    seemly and keep to the rules laid down by law; to exclude
    irrelevancies and discourage repetition; to make sure by
    wise intervention that he follows the points that the
    advocates are making and can assess their worth; and at the
    end to make up his mind where the truth lies. If he goes
    beyond this, he drops the mantle of a judge and assumes the
    robe of an advocate; and the change does not become him
    well. Lord Chancellor Bacon spoke right when he said that
    'Patience and gravity of hearing is an essential part of
    justice; and an over-speaking judge is no well-tuned cymbal'
    Essays or Counsels Civil and Moral. Of Judicature."

21. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 the New South Wales Court of Appeal considered the role of the judge in the sentencing process. Kirby P said (p605):
    "3. The role of a judge in sentencing, as elsewhere in the
    criminal trial, is controlled by the accusatorial nature
    which is fundamental to that trial. It is for the
    prosecutor to decide whether a person will be called as a
    witness. Save in the most exceptional circumstances, the
    judge should not take the initiative to call a person to
    give evidence, whether in a contested trial or to prove a
    fact relevant to sentencing which is not agreed: see R v
Apostilides (1984) 154 CLR 563 at 575; cf R v Damic (1982) 2
    NSWLR 750 at 759f and Whitehorn v The Queen (1983) 152 CLR
    657 at 663. The judge may properly invite a prosecutor to
    reconsider a decision concerning the calling of evidence.
    But the judge cannot direct the prosecutor to call or tender
    evidence because of the 'essential independence of that
    office in the adversary system' which, in turn, is integral
    to its proper performance. There are other legal systems
    under which the presiding judicial officer adopts a much
    more active function in eliciting evidence and calling
    witnesses. But that is not our system: see R David and JEC
    Brierley, Major Legal Systems in the World Today 2nd ed
    (1978) Stevens, London at 205. Whatever argument may exist
    for a more "proactive" function on the part of judicial
    officers in civil litigation, different rules govern
    criminal proceedings. This is because of the different
    interests at stake. In criminal proceedings, judges should
    avoid adopting an excessively inquisitorial role. They
    should maintain an appropriately neutral position. They
    should not usurp the function of the prosecutor or, where
    applicable, the jury. When judicial officers assume the
    prosecutor's mantle, it ill-becomes them. ... Such judicial
    officers tend to become notorious, precisely because our
    judicial tradition, particularly in criminal proceedings, is
    one of manifest neutrality, restraint and impartiality;

4. This tradition is not damaged by the candid disclosure
    on the part of a judge of concerns which he or she feels
    about aspects of the case before the court. On the
    contrary, a silent judge is nowadays regarded, more often
    than not, as a menace: see Vakauta v Kelly (1989) 167 CLR
    568 (at 571) disapproving Reg v Watson; Ex parte Armstrong
(1976) 136 CLR 248 (at 294) (where Jacobs J expressed the
    view that judicial 'silence' was a 'counsel of perfection').
    Indeed, circumstances may exist where a failure on the part
    of a judge to disclose matters of concern, or a course of
    conduct contemplated, will themselves amount to a departure
    from the rules of procedural fairness: cf Galea v Galea
(1990) 19 NSWLR 263 at 279; Anderson v Judges of the
District Court of New South Wales (1992) 27 NSWLR 701.
    There is fine line between excessive and unjudicial
    intervention (on the one hand) and candid disclosure of
    matters of concern to invite response (on the other). But
    the line exists. It is recognised by members of the
    judiciary and of the legal profession. Where it is crossed,
    relief will be afforded to those who are adversely affected
    by excessive or inappropriate interventions;"

22. His Honour further said (p608):
    "He repeatedly stated (although there is no evidence to
    support this conclusion) that the case 'smacked of'
    'organised crime'. He insisted on more than one occasion
    that: 'There is an aroma about this matter and I want to
    know what it is about'. With every respect, THERE IS
    MISSING FROM THE TRANSCRIPT THE ELEMENTS OF DISPASSION AND
    NEUTRALITY THAT ARE APPROPRIATE IN THE PERFORMANCE OF THE
    JUDICIAL FUNCTION, PARTICULARLY IN CRIMINAL MATTERS WHERE
    PASSION IS TOO EASILY RAISED. The exchanges, of growing
    intensity and insistence on the part of his Honour, betray
    no inclination to accept the prosecutor's function in
    determining the charge and the accused's right, having
    pleaded to it, to have the matter dealt with upon that basis
    only. His repeated reference to the seriousness of the
    matter and indication that the accused was 'looking at' a
    custodial sentence would have left an observer with a sense
    of real disquiet. Instead of dealing with the matter in the
    manner conventional to our criminal justice system, his
    Honour's interrogation appears much closer to that of an
    investigating magistrate in a civil law country. ...
    Although the line is a fine one, I am satisfied that it was
    crossed in this case. A reasonable apprehension of bias
    required the disqualification of the sentencing judge."
    (emphasis added)

23. Confidence in the integrity and impartiality of the judicial system is of fundamental importance and the recent decisions in the High Court indicate the very high standards of manifest neutrality and impartiality to be adhered to by courts in Australia. The law is briefly stated by Mason J in Re JRL ex parte CJL (1986) 161 CLR 342 (p351):
    "The problem is governed by the principle that a judge
    should disqualify himself from hearing, or continuing to
    hear, the matter if the parties or the public entertain a
    reasonable apprehension that he might not bring an impartial
    and unprejudiced mind to the resolution of the issues: Reg v
    Watson; ex parte Armstrong (supra) at 258-263; Livesey v NSW
Bar Association (1983) 151 CLR 288 at 293-294. This
    principle, which has evolved from the fundamental rule of
    natural justice that a judicial officer should be free from
    bias, reflects a concern with the need to maintain public
    confidence in the administration of justice. This concern
    is expressed in the cognate principle that, not only must
    justice be done, it must be seen to be done."

24. The above test developed by the High Court in Reg v Watson (supra) and Livesey (supra) is adopted in all the recent High Court decisions regarding apparent or ostensible bias. In Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495 at 497, Dawson J relies on the High Court in Grassby v The Queen (1989) 168 CLR 1 at 20:
    "The test which is to be applied when bias is raised has
    been clearly laid down. It is whether in all the
    circumstances the parties or the public might entertain a
    reasonable apprehension that the judge might not bring an
    impartial and unprejudiced mind to the resolution of the
    matter before him ... If so, then the judge ought not to
    proceed to hear the matter. Of course, as Gibbs CJ pointed
out in Reg v Simpson; Ex parte Morrison (1984) 154 CLR 101,
    at 104, the mere expression of the apprehension of bias does
    not establish that it is reasonably held; that is a matter
    which must be determined objectively."

25. The test is thus an objective test of whether in all the circumstances a person might reasonably entertain an apprehension of bias. Expressed in terms of the POSSIBILITY rather than the PROBABILITY of bias (MIGHT entertain a reasonable apprehension that the judge MIGHT not ...), this is not a particularly difficult test to satisfy. The question whether such a reasonable apprehension might exist is to be determined by the standard of the reasonable observer. The reasonable observer is presumed to have a degree of knowledge of the actual circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87, and is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality: Livesey at 299.

26. In this case, the judge understandably took a very poor view of both appellants. On the evidence before him this appeared to have been a premeditated murder with no mitigating circumstances and as such he quite properly categorised it in the worst category of offending. If, however, the judge had heard evidence in the course of the sentencing hearing that Agostinelli had been motivated by concern for her safety and that of the children, his view of the gravity of her actions may have been to some extent ameliorated and reflected in a lower non-parole period than that set by the judge. The nature and frequency of the remarks made by the judge in the course of submissions, however, suggests that the judge was not prepared to entertain such a possibility. I consider when the matter is looked at objectively, the judge appeared to be expressing a predetermined view and therefore failed to maintain "an appropriately neutral position": R v Chow (supra).

27. Agostinelli has stated in her affidavit on oath that it became clear to her that the judge had made up his mind and that as a result of his conduct, she was dissuaded from giving evidence and from allowing her son, Mark, to give evidence. That evidence may have assisted the judge in clarifying issues relative to the non-parole period. In all the circumstances, therefore, I believe that the appellant was deprived of her right to a fair hearing on the question of a non-parole period which requires this court to intervene.

28. In my view, the non-parole period should be set aside and the matter referred for re-hearing before another judge. In view of the proposed order, I consider it is unnecessary to consider the further grounds of appeal.

29. The principle ground of appeal advanced by the appellant Lewis was that the non-parole period imposed on him was manifestly excessive having regard to his age, good work record and previous good character and the possibility of his rehabilitation. It was also his contention that the case involved no factual features of depravity which would render it in the worst category where it could be said that there was no realistic hope for rehabilitation. Although it is unclear whether Lewis would have given evidence concerning these various matters, it was very much part of his case that the background of his involvement was the treatment by the deceased's of Mrs Agostinelli and her children. Matters raised at the hearing of the non-parole period to be imposed upon Agostinelli will therefore be of relevance to Lewis. As the judge found this to be a case of joint enterprise, it is in my view appropriate that Lewis also have the benefit of a fresh hearing concerning the issue of a non-parole period. I would therefore allow the appeal by Lewis, set aside the non-parole period, and refer the matter for re-hearing before another judge. In view of this order I do not propose to deal with any of his other grounds of appeal.