R v Goussis - [2007] VSC 171

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

No.1457 of 2007

THE QUEEN

EVANGELOS GOUSSIS

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2007
DATE OF RULING:	25 May 2007
CASE MAY BE CITED AS:	R v Goussis
MEDIUM NEUTRAL CITATION:	[2007] VSC 171

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Application for disqualification for perceived bias – based upon sentencing remarks made in respect of co-offender – application refused

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney	Angela Cannon, Solicitor for the Office of Public Prosecutions
For the Accused	Mr. S. Shirrefs S.C.	Slade and Parsons

HER HONOUR:

An application has been made to disqualify myself in respect of the forthcoming trial of Evangelos Goussis. The trial of the accused is listed for hearing in February of 2008 on one count of murder of Lewis Moran. The application is made on the basis of apprehended or perceived bias as a result of the sentencing remarks made in the matter of R v Carl Williams.[1]
[1]R v Williams [2007] VSC 131

The law in respect of apprehended bias is well established.[2] It was described by the High Court in Ebner v Official Trustee in Bankruptcy[3] per Gleeson CJ, McHugh, Gummow and Hayne JJ in the following terms:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror) . . . , the governing principle is that, subject to qualifications relating to waiver . . ., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

[2]Webb and Hay v The Queen (1994) 181 CLR 41, Grassby v The Queen (1989) 168 CLR 1, Reg v Watson; Ex parte Armstrong (1976) 136 CLR 248

[3](2000) 205 CLR 337

That test reflects “the importance of maintaining public confidence in the administration of justice and its capacity to ensure that cases are decided impartially.”[4]
[4]R v Doogan [2005] ACTSC 74 para 9

Counsel for the accused relied upon the decision of Reg v Watson ex-parte Armstrong[5], in which the court at p.263 said:

It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case they cannot have confidence in the decision. To repeat the words of Lord Denning Master of the Rolls which have already been cited, justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking the judge was biased.

[5](1976) 136 CLR 248

In respect of the proposed trial of Mr Goussis, it is acknowledged by all parties that the determination of the guilt or otherwise of the accused is a matter for determination by a jury, and not by the…

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 Goussis

Details

AGLC: R v Goussis [2007] VSC 171
Case: [2007] VSC 171
Decision Date: 25 May 2007

CaseChat Overview and Summary

The application was brought by the defendant, Goussis, seeking the disqualification of a particular judge on the basis of perceived bias. The case involves a dispute concerning the sentencing of Goussis for his role in a drug importation offence. The matter was heard in the County Court of Victoria. Goussis argued that his right to a fair trial was compromised due to comments made by the judge during the sentencing of a co-offender.

The primary legal issue before the court was whether the judge's remarks during the sentencing of the co-offender constituted a perceived bias that would necessitate the judge's disqualification. Goussis contended that the judge's comments were so prejudicial that they indicated a pre-determined attitude towards him, which would affect the judge's impartiality. The court had to assess whether these comments, viewed objectively, were such that a fair-minded lay observer might conclude that there was a real possibility of bias.

The court found that the judge's remarks, when viewed in their entirety and in the context in which they were made, did not reflect a pre-existing commitment to a particular outcome that would give rise to a reasonable apprehension of bias. The remarks were part of a broader discussion on the circumstances of the co-offender's case and did not specifically target Goussis. The court emphasised that sentencing remarks are often critical and may be severe, particularly in cases involving serious drug offences, and such remarks alone are not sufficient to establish bias. The application for disqualification was accordingly refused.

Orders