R v Harker (No 2) - [2015] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARKER (No 2)
[2015] SADC 74
Ruling of His Honour Judge Stretton
15 May 2015
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
A hearing was held to determine the factual basis upon which the accused was to be sentenced for firearms offending, and to determine whether the accused, who it was agreed was a serious firearm offender by virtue of being on bail at the time of the offences, could establish there were exceptional personal circumstances within the meaning of Division 2AA of the Criminal law (Sentencing) Act. After delivery of that ruling, counsel asked the court to disqualify itself on the basis that the court had erred in several ways and should disqualify itself from further hearing the matter.
Held:
1.      The test for disqualification is whether 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.      A reasonable fair minded lay observer would not have observed any of the claimed errors, and would accordingly not have apprehended any impartiality.
3.      There is no basis made out for disqualification.
R v Harker [2014] SADC 217; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; JRL, Re; Ex parte CJL (1986) 161 CLR 342; Johnson v Johnson (2000) 201 CLR 488; Livesey v New South Wales Bar Association (1983) 151 CLR 288; R v S (RD) [1997] 3 SCR 484; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 9) [1990] NSWCA 154; Australian national Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; President of the Republic of South Africa v South African Rugby Football Union (1999) (4) SA 147, considered.

R v HARKER (No 2)
[2015] SADC 74
Background

As mentioned in an earlier ruling,[1] the accused Benjamin Allan Harker pled guilty in the Magistrates Court and was committed to this court for sentence on charges of possessing prescribed equipment, possession of a Class H Firearm, namely a pen gun, aggravated on the basis that it was loaded, and the offence of failure to store ammunition in a locked container separately from a firearm.
[1] R v Harker [2014] SADC 217
Over a somewhat extended period various submissions have been made, evidence has been called, and the issues of the factual basis upon which the accused should be sentenced and his potential status as a serious firearms offender has been raised and at least to a degree addressed.
Application to disqualify
Now before the court is an oral application by Mr Vadasz on behalf of the accused that I disqualify myself from further hearing this matter on the basis of apprehended bias.
The application is based on a factual ruling the court gave after the calling of certain evidence. As there are a number of factual and procedural elements to the application and relevant to its resolution, it is necessary to summarise the charges, the history of the proceedings and the evidence.
The original charges
On 11 February 2014 the accused was charged on information in the Magistrates Court with a number of offences alleged to have occurred on 17 January 2014; the charges alleged that the accused:
1.On the 17^th day of January 2014 at St Agnes in the said state, without reasonable excuse had possession of prescribed equipment contrary to section 33LA of the Controlled Substances Act 1984. This is a summary offence.
2.On the 17^th day of January 2014 at St Agnes in the said state, having possession of a prescribed firearm namely a pen gun failed to keep the prescribed firearm secured in accordance with the conditions of the licence authorising possession of that prescribed firearm. Regulations 39 and 61 of the Firearms Regulations 2008. This is a summary offence.
3.On the 17^th day of January 2014 at St Agnes in the said state, having possession of a prescribed firearm namely an imitation double barrel shot gun failed to keep the prescribed firearm secured in accordance with the conditions of the licence authorising possession of that prescribed firearm. Regulations 39 and 61 of the Firearms Regulations 2008. This is a summary offence.
4.On the 17^th day of January 2014 at St Agnes in the said state, was in possession of a class H firearm[2] namely a pen gun while not holding a firearms licence authorising possession of that firearm. Section 11(1) of the Firearms Act 1977. This is an aggravated offence. It is further alleged that the circumstances of aggravation are that the firearm was loaded. This is a major indictable offence.
5.On the 17^th day of January 2014 at St Agnes in the said state, was in possession of a prescribed firearm namely an imitation double barrel shot gun whilst not holding a firearms licence authorising possession of that firearm. Section 11(1) of the Firearms Act 1977. This is a major indictable offence.
6.On the 17^th day of January 2014 at St Agnes in the said state, failed to store ammunition in a locked container separately from firearms. Regulations 41(1) and 61 of the Firearms Regulations 2008. This is a summary offence.
7.On the 17^th day of January 2014 at St Agnes in the said state, without reasonable excuse failed to comply with a term or condition of a bail agreement entered into by him at Adelaide on the 20^th day of December 2013. Section 17 of the Bail Act 1985. This is a summary offence.
[2] This was amended from “prescribed”
Course of proceedings in the Magistrates court
The record of proceedings before the Magistrates Court shows that by 15 July 2014 the declarations forming the evidence in support of the charges had been served on the accused. On 22 July 2014 the record of proceedings shows that there was an amendment to count 4 and no evidence was tendered to count 5.
The record of proceedings before the Magistrates Court shows that on 29 July 2014 the accused pled guilty to counts 1, 4 and 6 on the information and was committed for sentence. The accused pled not guilty to breaching his bail and was committed for trial.
Proceedings in the District Court
The accused was arraigned in the District Court on 1 September 2014, and the allocutus was given in relation the matters whereby the accused had been committed for sentence, and at the request of defence counsel the matter was adjourned for submissions until 29 September for submissions in mitigation of penalty.
On 29 September both counsel raised the issue of the Serious Firearm Offender provisions in the Criminal Law (Sentencing) Act (“the Sentencing Act”) that were potentially applicable to the accused. It was common ground that per Division 2AA of the Sentencing Act as the accused had been on bail at the time of his an offence against the Firearms Act 1977, the accused had committed a “serious firearms offence”, and was accordingly a “serious firearms offender”.[3]
[3] Transcript of proceedings on 29 September 2014, p3.
It was also common ground that the consequence of that state of affairs in the accused’s case was that by reason of the legislation in particular section 20AAC of the Sentencing Act, an unsuspended sentence of imprisonment had to be imposed for the serious firearms offence unless the accused obtained a declaration from the Court that the requirement imposed by subsection 20AAC(1)(b) should not apply to him by satisfying the court by evidence given on oath that his personal circumstances were so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e) of the Sentencing Act) and that it was in all the circumstances appropriate to suspend the sentence.
On that day, 29 September 2014, general discussion ensued concerning the meaning of Division 2AA of the Sentencing Act, and the need for a hearing to be held to enable the accused to seek the declaration contemplated by section 20AAC(2).
Then, the matter was set down for hearing in the following terms:
… I will list the matter for 10am Friday, 28 November, with the whole day to be set aside and if everyone can make sure that they do have whatever evidence they want to call that day.
So that will be set down for a hearing pursuant to s.20AAC as to whether the accused’s personal circumstances are so exceptional as to outweigh the primary policy of the criminal law that in effect an unsuspended sentence of imprisonment must be imposed. I’m paraphrasing the interaction of all these sections, but that is essentially what it will be all about, and any other submissions on penalty.[4]
[4] Transcript of proceedings on 29 September 2014, p10.
Discussion was also had as to the evidential material that would be before the court and upon which the court should act, and the status and effect of the evidence already before the court by way of declarations. In short, I indicated that per section 6 of the Sentencing Act that I would ordinarily proceed to have regard to the declarations that had been tendered to the court through the committal process. All agreed that the court should have regard to the all the declarations, that the plea was on the basis of the evidence in the declarations and that the evidence therein was not disputed.
Given the nature of the application now before the court, I set out the transcript of the hearing whereby the evidential material to be relied upon and the nature of the subsequent hearing was established:
… HIS HONOUR:   And so, whilst I'm not sure whether the Full Court has pronounced on this section, it's likely, I think, that they will take the same attitude and it seems that that is likely to be the interpretation. Very well, so I guess, Mr Vadasz, you need to let me know whether you want to make the application or if your client is going to give evidence on oath pursuant to sub‑s.(2) to try and establish that.
MR VADASZ:    Certainly. I suggest that Parliament didn't intend that persons who have one drink too many at a staff Christmas party fall into this category, but yes, there will be an application.
HIS HONOUR:   Very well. How long would you need? Would that be a day do you think?
MR VADASZ:    No, with respect I would have thought slightly more than half an hour.
HIS HONOUR:   I suppose your client will need to give evidence on oath about the circumstances of the actual offending, that is the firearms offending and the possessing prescribed equipment, and then the circumstances of the disorderly behaviour or whatever the summary offence was, he would need to be cross‑examined about all of those things. Certainly he says in his record of interview that he found the pen gun in a couch which may be something the Crown doesn't accept, and also was given the replica shotgun and somehow had it there on display, which again is another thing the Crown may not accept, given the proximity of those weapons to substantial cannabis growing equipment set up in a house.
So whilst I commend your optimism that it would be dealt with in half an hour I would think that he would need at least half a day. Of course I don't know what evidence the prosecution is going to call. They might call evidence about the disorderly behaviour, I don't know anything about that, in fact I'm sure your instructions are that it is a very innocent event and all of that needs to be weighed up and then a decision needs to be made that that is also exceptional, that the policy of the criminal law, that is articulated in s.AAC and indeed in division 2AA needs to be set aside.
Now I suppose this is all fairly new, Mr Vadasz, this legislation, so to some degree we are all finding our way with it, but I would rather set aside a bit of extra time so that, if that time is needed, it can be used.
MR VADASZ:    Very well.
HIS HONOUR:   What do you say Mr Klotz in terms of time?
MR KLOTZ: I was going to suggest two hours at least.
HIS HONOUR:   You will need to have your evidence in relation to the breaching behaviour ‑ I probably shouldn't say breaching behaviour, but the behaviour that brings it within the serious firearms offence provisions, and that is whatever this offence is that he committed and resulted in him being on bail.
MR KLOTZ: It's simply the fact that he was on bail, irrespective of what that offence was. We say that the significant aspect is that he was on bail, whether it's disorderly behaviour or a serious assault, he had a condition and he didn't comply with under that bail agreement. That is the importance.
If my friend can indicate ‑ perhaps not now, but later ‑ whether anything is disputed in the declarations, I don't think the Crown will be leading any evidence, I would need to confirm that but I understand everything ‑ well, I haven't been told of anything that is in dispute in terms of the actual Crown declarations.
HIS HONOUR: Well, I assume I will have regard to all of those under s.6 of the Sentencing Act anyway, but I'm not running your case for you. The area where you might want to have a witness available is the disorderly conduct matter. I don't know. It's a matter for you. This is something where we have little guidance as yet as to the degree to which the bail offence is relevant. It may be quite irrelevant as you submit, or it may be relevant as Mr Vadasz submits. He submits that it is relevant that it was a relatively minor charge so you need to bear all of that in mind, as I am sure you will.
When are counsel available for half a day?
MR VADASZ:    I won't have any time in October. Just on this point of dispute, I have not been advised, and surely Mr Klotz would know, whether any aspect of this matter is in dispute. I have come here on the understanding that he is to be sentenced on the basis of his declarations and there is no issue being raised. Now, if there is to be an issue raised, I would request that Mr Klotz advises the court now.
HIS HONOUR: I think what he is saying is that you need to be the one who raises it. I think he indicated that he is relying on the declarations. I suppose I am foreshadowing that I would ordinarily, pursuant to s.6, take the declarations as read, subject to any submissions or evidence that anyone calls to vary them.
I should indicate that I have some difficulty accepting the truth of what the accused says in his record of interview, that he found a loaded pen gun in his couch, because, well, firstly, the unlikelihood of that happening, secondly, the fact that there is live ammunition elsewhere in his house, thirdly the fact that there is a hydroponic cannabis growing situation there, fourthly because there is a replica shotgun on some ledge positioned above a door.
Now all of that raises the obvious potential inference that that weapon and that replica weapon are there to scare away or actually shoot anyone who is going to come and interfere with the hydroponic situation that is plainly set up in the house. On the declarations, there is numerous transformers, I haven't seen any photos unless they are on the court file.
MR VADASZ:    There are photos. I don't think it's set up as such.
HIS HONOUR:   I see, three rooms according to the police evidence, I think.
MR VADASZ:    Well, there is equipment there.
HIS HONOUR:   Do you have the photos Mr Klotz?
MR VADASZ:    There will be an explanation as to that.
MR KLOTZ: I do.
HIS HONOUR:   Perhaps if they could be provided as they are part of the declarations.
So all I am saying, Mr Vadasz, just to in fairness let you know, that that is the inference that it looks like arises on the declarations. I am just now looking at the photos.
MR KLOTZ: The flagged photos are those of the pen gun.
HIS HONOUR:   I appreciate that.
MR KLOTZ: And the very last photo is the imitation shotgun.
MR VADASZ:    It's not an imitation shotgun, there is no charge as to that.
HIS HONOUR:   It's just set up to look like one. It's plainly not a gun and it's set up to look like one and the inference is that it is to scare people off because the suggestion is that it wouldn't fire. I am just looking to see whether ‑ yes, I see from photo 42 there seems to be nutrients, light globes, 48 there's ‑ 49 there appears to be transformers on the top of a structure in a white room. It's more apparent from p.50, 51 and so on. I'm just looking at these for the first time. P.64 there is ducting and electrical equipment commonly, and more so in 65 there is hydroponic light shades and more equipment. Yes, p.67 there is multiple power points that has been built into ducting and what looks like an extraction fan and so on from those pages. P.67 there is a large amount of hydroponic equipment there. There is more indicia from there on, including remnant plant material. So I am just putting you on notice. I am sure it is something you would be aware of in any event that that is the potential inference that arises out of all of this.
MR VADASZ:    Absolutely.
HIS HONOUR:   And your client can meet that head‑on should he wish to do so.
MR VADASZ:    Certainly. Might I just indicate that a closer examination of the photographs, and your Honour hasn't had that opportunity yet, might show that these premises were in the process of being packed up and cleaned and in fact there is a broom and sweepings and ladders, etc. There is in actual fact a dismantling of the house and tidying up.
It's a matter of setting a time. Just before we do, I have a number of references, one of which I would seek to tender this morning. It's an employment reference and the reason I would like to tender it this morning is that the writer, Mr Adrian Ritoli is here in court today and he may have difficulties getting here on another day.
HIS HONOUR:   Unless there is any objection from the Crown, I'm always happy to accept references at face value.
MR VADASZ:    If the prosecution have any questions, Mr Ritoli, the writer is here today.
HIS HONOUR:   Mr Klotz?
MR KLOTZ: I'm just reading it for the first time now.
HIS HONOUR:   Very well.
MR KLOTZ: No, we don't have an issue.
HIS HONOUR:   Thank you Mr Ritoli for attending today. Your reference is of assistance and you won't need to be cross‑examined on it. That is that issue.
Just looking for a time, I am not hearing that there would need to be any other evidence called Mr Vadasz apart from the issue of the bail offence if you wanted to either provide documentation in relation to that, which again I can accept under s.6 or the witness if you saw fit.
You indicated Mr Vadasz you might have some difficulty in October.
MR VADASZ:    I've got problems in October.
HIS HONOUR:   What about on a Friday or an afternoon some day? If there is a particular day that you have an afternoon free or a half or a whole day, I would enquire with Mr Klotz if that is doable on his behalf and we could see if we could organise that.
MR VADASZ:    I do have serious problems in October.
HIS HONOUR:   Is there someone from your office perhaps able to do it with some notice?
MR VADASZ:    I would rather not go down that path. 7 November is the first Friday.
HIS HONOUR:   That might be a little tricky. What about 28 November?
MR VADASZ:    That's an excellent day. I will just check that.
HIS HONOUR:   Mr Klotz, how are you?
MR KLOTZ: That's fine.
HIS HONOUR:   Again we are a little bit subject to the court listing system however, in the nature of what we will be doing, it will be possible to hear your matter in one of the civil courtrooms, given that a jury is not required. So that is a fallback position for that day.
If that is convenient, I will list the matter for 10 a.m. Friday, 28 November, with the whole day to be set aside and if everyone can make sure that they do have whatever evidence they want to call on that day.
So that will be set down as a hearing pursuant to s.20AAC as to whether the accused's personal circumstances are so exceptional as to outweigh the primary policy of the criminal law that in effect a sentence of unsuspended imprisonment must be imposed. I'm paraphrasing the interaction of all of these sections, but that is essentially what it will be about, and any other submissions on penalty.
MR KLOTZ: Could I perhaps tender the bail agreement that forms the basis of this issue, with my friend's consent.
HIS HONOUR:   Mr Klotz, you might just want to liaise with Mr Vadasz about what can be agreed. I presume it's not in dispute that there is a bail agreement and all of that is satisfied.
MR KLOTZ: Yes.
HIS HONOUR:   You might just want to liaise with him about matters such as this that you want to have agreed and any other matters that he wants to have agreed as well.
MR VADASZ:    Just one other matter if I might. Mr Harker is financing his representation through his wages as a skilled labourer. Now that this matter has to go off to another date and another date after that, would the court allow him access to the transcript without fee?
HIS HONOUR:   Today's transcript?
MR VADASZ:    Today's to start off with, yes.
HIS HONOUR:   Anything to say about that?
MR KLOTZ: No. It is a matter for the court.
HIS HONOUR:   As a general principle, Mr Vadasz, I think everyone should have free transcript. I know that that is not reflected in the current legal situation, but just so that your client has every opportunity to be clear about the parameters of the upcoming hearing, yes, I make an order that you be provided with a copy of today's transcript without charge. I would hope to resolve the matter on the next day but if we do adjourn it off, you can raise that again with me then.
This matter is adjourned to Friday, 28 November at 10 a.m.
ADJOURNED 10.06 A.M. TO FRIDAY, 28 NOVEMBER 2014 AT 10 A.M. FOR HEARING

Accordingly, it was seemingly very clear to all concerned that the evidential declarations were uncontested and before the court, and that a full hearing of the Division 2AA issue would be held to determine whether the accused could establish ‘exceptional circumstances’ and whether he could in all the circumstances persuade the court to declare that subsection 20AAC(1)(b) not apply to him would occur on 28 November 2014, a full day having been set aside for that purpose.
It was also clear that the court indicated to both counsel in the plainest of terms that there was a clear inference arising on the declarations that the firearms offending was committed in the context of the cannabis and hydroponic material that had also been located, and that the court had difficulty in accepting what the accused had said to the contrary in his record of interview, and that counsel needed to be on notice. Indeed I said directly to counsel: “Now all of that raises the obvious potential inference that that weapon and that replica weapon are there to scare away or actually shoot anyone who is going to come and interfere with the hydroponic situation that is plainly set up in the house.”
The matter came on for hearing as contemplated on 28 November 2014. After I asked who would like to commence, Mr Vadasz did so, in the following terms:
HIS HONOUR:    Who would like to commence in relation to the factual issues?
MR VADASZ:    Mr Klotz is not moving ‑ doesn't appear to be anyway ‑ and as it falls upon the prisoner by virtue of the legislation to establish exceptional circumstances, I guess it falls upon me.
HIS HONOUR:    Very well, yes.
MR VADASZ:    I did make some submissions on the last occasion and it is my submission that the nature of this matter gives rise to exceptional circumstances permitting the court to suspend. In particular, your Honour may recall that he was on bail for disorderly behaviour and, clearly, it was a bail condition, but then it is a standard condition in all terms of bail now that a person bailed must not be in possession of firearms, etc.
But he was on bail for the most insignificant of charges in the criminal calendar and I submit it is hardly proportionate, and most probably not within the contemplation of parliament, that persons on bail for very minor matters which could easily be the subject of a summons, and very often are, should face the full rigours of the law in this particular matter. This legislation, in my submission, is plainly intended to cover serious criminals who get bail and then go out and possess firearms for the purposes of further offending. So, that is the first part.
The second part are the circumstances in which he acquired the firearm in question. Mr Harker had owned this property since about 2005. He had bought it and he was paying it off. In early February 2013 he suffered quite a debilitating injury. He crushed both his heels jumping off the jetty ‑ a very foolish act ‑ and he was hospitalised. His mother came down from Port Lincoln, where she and his father live, and moved in with him. I might have to check the dates but I have documents to support his admission to hospital. In February his house was the subject of a home invasion.
HIS HONOUR:    So within a few weeks or a few days after the injury?
MR VADASZ:    Yes. I notice a typographical error in my instructions. The hospital admission ‑ it is a little bit confusing, it is a discharge summary ‑ was 25 January 2013.
HIS HONOUR:    So the February date might be the discharge date, might it?
MR VADASZ:    Yes, it was the discharge date.
HIS HONOUR:    So he went in on 20 January?
MR VADASZ:    The admission date was 25 January 2013. Then his home was the subject of a home invasion. A random group of unknown Aboriginal people picked his house for a home invasion. I think that was on 16 February 2013. His mother was badly injured and admitted to hospital. I have her admission document and the police apprehension report relating to the home invasion. As a result of that, he moved out of the house. His mother returned to Port Lincoln and, amongst her injuries were, I think, a shattered vertebrae and a shattered or crushed shoulder. He moved out of the house. The house was empty. For a short period he lived in different places and then he rented a property on 22 May. It might be easiest if I hand these documents up.
HIS HONOUR:    Certainly, yes, you proceed as you think appropriate.
MR VADASZ:    I will hand them up when my client gives evidence. He went to the property between 22 March and 30 May 2013. We have a document in support of that. He moved out at the end of May and moved in with his estranged partner, Katie Kelson, and their child. Throughout this period he was renting a property at St Agnes. He lived with Katie Kelson from the end of May, when he moved out of his rental property, until 12 November 2013.
He rented his property out at St Agnes, the property in question, from February until November. There were a number of successive tenants, the last of whom was a chap called Jamie Wilson with whom he had lived at his earlier rental property, and Jamie Wilson moved in with some friends, some friends that Mr Harker didn't know.      On about 11 November, Mr Harker was arrested. He was arrested because he was in breach of an intervention order by living with Ms Kelson. There was an intervention order in her favour and, notwithstanding the fact that they lived together over a six‑month period and she was quite clearly a willing party to that, there was an argument, so it seems, police arrived and he was in breach of the intervention order.
He appeared in the Holden Hill Magistrates Court, and I have got a copy of the complaint in relation to the intervention order, on 12 November 2013 when he was granted bail with a condition that he live at St Agnes. He already knew that the tenants disappeared because the rent stopped coming in, and he went around and checked and they had clearly gone. So when he had to have a bail address, up to that morning he thought he was happy living with Katie and his child, he gave St Agnes and he moved back in.
It was clear that cannabis had been grown in the property. Mr Harker cleaned up some of the property. He was working full‑time. He was not spending much time there. At one stage, whilst he was looking for the remote control in the couch, he found this pen gun which he placed and retained there. Christmas came. His work closed down. He went to Port Lincoln to spend an extended time with his family and he returned back to St Agnes a day or two before the visit from the police. He came back to Adelaide to start work again, the same job as he has got now. There will be references to his employment later. So the circumstances of the offending also constitute exceptional circumstances. There are some other personal matters that I will address later on. Given the legislation, there has to be evidence on oath and I call Mr Harker.
From this it would appear that resolution of the ‘factual issues’ and the Division 2AA issue were at clearly at issue, and being addressed by Mr Vadasz.
Mr Harker then gave evidence on oath, which the court summarised in the earlier ruling in the following terms:
The accused gave evidence on oath in this court. He told the court he was 30 years of age, and separated with a four year old child for whom he had some responsibilities. The accused said his partner and child all lived in his Hughes Avenue St Agnes house until separation.
The accused gave evidence that between 25 January and 5 February 2013 he was hospitalised for a crush injury to his heels. Medical records were tendered to support that evidence. The accused gave evidence that on 16 February 2013, his home was the subject of a home invasion. He said the home invasion occurred while his mother was visiting. She was injured as the accused could not protect her in light of his injuries.
The accused said he then moved out and rented a property until May 2013. He explained how he lived at various addresses until he moved back into the Hughes Avenue address. The accused said that during that time, he had rented the property out to more than one tenant and had been paid rent in cash.
He said that by 12 November 2013, he was aware his tenants had moved out. He said he did not know where they had gone. The accused said the premises were left in a poor state. He said he noticed that cannabis had been grown on the property, although he had nothing to do with that. The accused said that due to the pressures of work, he did not start to clear up any of the cannabis or prescribed equipment until shortly before the police attended on 17 January 2014.
The accused said that one day he had been cleaning up around the couch and found the pen gun while he had been looking for the TV remote. He said he just had a look at it and then put it back between the cushions of the couch as he felt that was the safest spot for it. The accused said he thought the owners of it might come back for it. He denied having anything else to do with the cannabis equipment, the gun or the ammunition. The accused also told the court that having the pen gun made him feel safe. The accused was extensively cross examined by counsel for the DPP. He agreed he was on bail at the time he committed the offences.
In the course of his evidence, the accused had tendered documentation to support his evidence in several respects, including the injury, the home invasion, his lease of the other property, and intervention orders and bail conditions supporting that he had to live back at his Hughes Avenue address from 12 November 2013.
In the course of the evidence in chief he denied being involved in any way with growing the cannabis or the hydroponic set up in the house. He was cross examined about those issues by counsel for the DPP.
It was plain that counsel for the DPP was not accepting the evidence given and was testing the accused by taking him over it again. True it is that counsel did not say ‘I put to you that X did not happen’ or ‘I put to you that you were guarding the cannabis crop’, but he did cross examine the accused on the relevant topics of the cannabis material and the weapons.
That the tenor of the cross examination was plainly sceptical of the accused’s evidence that all this hydroponic cannabis activity was carried on by others unbeknownst to him was apparent, in that when the question was pressed that if he was as he claimed concerned that something illegal was occurring in the house why did he not go and have a look inside, and defence counsel objected, I ruled on the objection in the following terms:
Mr VADASZ: I object if that is being asked again. I object on the grounds of relevance now.
HIS HONOUR: I am against you on that. The issue of credibility about the whole period and whether Mr Harker should be accepted generally about what he says he did and didn’t know is live, so I will allow this scope.
When DPP counsel raised the issue that the accused knew what cannabis smelt like and had been previously convicted of growing cannabis, defence counsel objected on the grounds of relevance. The antecedent report to that effect had earlier been tendered. Ultimately the question wasn’t pursued in cross examination, however the fact that the accused’s evidence was not necessarily being accepted by the DPP or the court and whether his firearms offending was related to the cannabis operation was in the contemplation of the court was again revealed in the discussion, which included the court saying:[5]
HIS HONOUR:    I can see a couple of relevant bases. Mr Klotz might be suggesting that the witness is capable of and/or in the habit of growing cannabis and therefore that might be why he had all the equipment around the place.
And a little later:[6]
HIS HONOUR:    I am assuming Mr Klotz is asking all these questions with a view to the issue which is before me now as to whether the factual matrix as asserted by the prosecution, or as asserted by the defence, ought to be accepted by me with a view to then determining whether there are special circumstances …
[5]    Transcript of proceedings on 29 September 2014, p25.
[6]    Transcript of proceedings on 29 September 2014, p26.
There was a discussion about whether a question about previous cannabis growing offended section 18 of the Evidence Act 1929, or whether the evidence might constitute discreditable conduct, and the question was not pursued in cross examination. In that context the court observed:[7]
HIS HONOUR: And quite often that sort of evidence would be sought to be led to show the accused has an interest in growing cannabis and knows how to do it, and that might be relevant to why he has got cannabis and all the equipment to do it.
[7] Transcript of proceedings on 29 September 2014, p28.
Counsel for the DPP continued to cross examine the accused about the cannabis the weapons and the ammunition. The tenor of the cross examination is plainly sceptical of the accused’s evidence as to how he obtained the weapon and the fake shotgun, and the purpose they were at the property.
The accused was re-examined, including about the pen gun and the ammunition.
At the conclusion of the evidence given by the accused, I said to counsel:[8]
HIS HONOUR: Bear in mind, I say this to both counsel, I have all the normal material that I would have in a sentencing situation. I have declarations, I have whatever was tendered on the previous occasion, I have the antecedent report that Mr Klotz mentioned. Unless there is any argument to the contrary I will be taking all of that material into account when I consider the factual issues in the matter.
[8] Transcript of proceedings on 29 September 2014, p45.
Counsel for the DPP then commenced submissions as to whether the accused had brought himself within the exception in section 20AAC. I intervened to make it clear to both counsel that the court was closely considering what facts were to be found, to determine the section 20AAC issue, and for the purpose of sentencing more generally:
HIS HONOUR: Perhaps I can just take you back a step. I'm closely considering what factual matrix I do accept. On the one hand viewed, certainly prior to the evidence given today, there is a lot of circumstantial evidence to indicate that Mr Harker is simply in possession of all of this equipment, may well have been using it, there is no evidence or suggestion of anybody else's involvement in that.
There is no evidence or suggestion of anybody else's involvement in it, that is, the fact that he owns or rents the house, he's the sole occupant of it, a significant amount of hydroponic equipment that's set up there, it's not in a full state of readiness. There's a bag, at least one bag, of marijuana there, in the process of being swept up off the floor. There is a replica gun placed in a position where, on somebody's analysis, it could easily be grabbed to scare off people who might come in and try and steal the crop, there is a pen gun and there's bullets available. So you've got drugs, hydroponic gear, weapons, ammunition, all readily available, and with the accused having the only apparent possessory role in relation to all of that.
Then, if it's relevant, you've got the discreditable conduct indicating from some years before he knows how to grow cannabis and, at least at that point, had an interest in it. So it is a relatively strong circumstantial case he was actively involved in whatever was happening there.
He has given evidence today to say, yes, whilst he agrees he did knowingly possess all of that material, he had been, as it were, lumped with it, and that makes it, on his case, less serious and possibly brings it within the exception, so I want to hear counsel on what facts I should accept at all, as well as what each alternate factual scenario might mean in terms of the particular statutory provision we are talking about.
DPP counsel then made submissions, to the effect that even if the accused’s evidence were to be accepted, there were no exceptional circumstances within the meaning of section 20AAC.[9]
[9] Transcript of proceedings on 29 September 2014, p46-49.
Counsel for the DPP then asked whether the court would also like to hear counsel’s general submissions on penalty. The following exchange occurred:
HIS HONOUR:    What is your preference, Mr Vadasz? Do you want to deal with this matter discretely and get my ruling and make submissions at a later time? Perhaps we will do that.
MR KLOTZ:       That would be my preference.
MR VADASZ:    I think I should go through my client's background because we are talking about personal circumstances here.
HIS HONOUR: Certainly. In terms of s.20AAC, I'm limited to the personal circumstances given on oath.
MR VADASZ:    I can put him back in the witness box if that is the view.
HIS HONOUR:    Why don't you just outline them all and then get him to say 'Yes' in the box?
MR VADASZ:    Very well.
HIS HONOUR:    I'm not trying to be difficult, but that's exactly what the section says.
MR VADASZ:    I might have overlooked that. I ask Mr Harker return to the witness box.
HIS HONOUR:    Come back to the witness box. I did release you, so you will need to be resworn.
MR VADASZ RECALLS
Benjamin Allan Harker SWORN
The accused was then recalled and gave general evidence about his personal history, educational background, income, and response to the police attendance at his house.[10]
[10] Transcript of proceedings on 29 September 2014, p51-54.
It was plain from all of this that the course the court was undertaking, and which all were aware was being embarked on, was to determine the factual matrix upon which the court would proceed and upon which the Division 2AA issue would be determined, and to “get my ruling” on the factual and Division 2AA issue, after which there could still be general submissions in mitigation of penalty.
Mr Vadasz then made detailed submissions as to the facts. He commenced by arguing that the court should accept the version of facts advanced by the accused.[11]
[11] Transcript of proceedings on 29 September 2014, p55 to p57 line 31.
He argued that the accused should be believed, argued that the accused had been expertly and robustly cross-examined by counsel for the DPP and argued that the accused had neither been shaken nor had the DPP pointed to areas where the accused should not be believed. He dealt with a number of potential evidential matters that might point the other way that had arisen in submissions over time, and urged the court to revisit the scepticism that had been intimated at the outset about the accused’s position as initially submitted by Mr Vadasz, and that was eventually the subject of evidence from the accused and by way of other tendered documentary evidence.[12]
[12] Transcript of proceedings on 29 September 2014, p55 to p57 line 31.
Mr Vadasz then turned to the issue of whether the accused had established exceptional circumstances, and made detailed submissions arguing that the accused had indeed established exceptional circumstances.[13]
[13] Transcript of proceedings on 29 September 2014, p57 line 32 to page 60 line 20.
Mr Vadasz cited five factors which he submitted supported a conclusion that the accused had established exceptional circumstances. These were, firstly the nature of the offence for which the accused was on bail. The second factor he argued supported a finding of exceptional circumstances was the accused’s evidence that he had merely found the pen gun, had been lumbered with it, didn’t intend to keep it, was stuck between a rock and a hard place and didn’t think of it as a firearm “in the sense that a traditionally oriented item might be”.[14] The court indicated it would have trouble accepting that submission. The third factor that Mr Vadasz argued supported a finding of exceptional circumstances was the sequence of events, in particular that the accused, he argued, had only been in limited and transitory possession of the weapon. The fourth factor that he argued also supported an exceptional circumstances finding was that he had a dependant, particularly when it came to the issue of suspension. A fifth matter argued was the accused’s employment, and a “final matter” was put that the accused had no prior firearms offending. Mr Vadasz also emphasised the various tendered references.
[14] Transcript of proceedings on 29 September 2014, p58.

Mr Vadasz concluded his submissions by saying:
Unless your Honour has any questions, my submission is that taking into account everything, this is not a run-of-the-mill case, far from it. This is an exceptional case or, to put it another way, exceptional circumstances, to set it apart from other circumstances. They are my submissions.
There were no DPP submissions in reply, and the matter was adjourned for a decision to 19 December 2014. The fact that the only outstanding matter would then be any final submissions on sentence was apparent:
HIS HONOUR: Yes, 9am, and then I can hear any final submissions on sentence and I would then hope to sentence in the new year, unless it’s sufficient for me to do so on the day, which I doubt. I thank counsel for their assistance.
ADJOURNED 12.54 P.M. TO FRIDAY, 19 DECEMBER 2014 AT 9 A.M. FOR RULING AND SUBMISSIONS
Any assessment of the course of proceedings to that time reveals that it was plain that the court was hearing all evidence and submissions relevant to the factual basis upon which the accused would be sentenced, and all evidence and submissions concerning whether the accused could establish exceptional circumstances within the meaning of Division 2AA of the Sentencing Act, and had indeed heard all evidence and submissions that either the DPP or the accused wished to advance concerning both issues.
On 19 December 2014 the court announced its ruling as to both the facts and as to whether exceptional circumstances had been established, in brief terms, indicating that full reasons would be published as well.[15] (The written reasons, R v Harker [2014] SADC 217, were mailed to the parties subsequent to the hearing.) I then enquired when counsel would like to make final submissions on penalty, and some discussion then ensued as to a suitable date. Then, a little to my surprise, Mr Vadasz put the following:
MR VADASZ: Thank you. I did understand that the question of exceptional circumstances was one that was going to be canvassed after your honour’s ruling, if I may revisit that in February?
[15] R v Harker [2014] SADC 217.
I was surprised to hear Mr Vadasz say that the issue of exceptional circumstances was still to be determined, and responded:
HIS HONOUR: You can certainly revisit it. Essentially we heard evidence and[16] submissions on the last occasion based on your client’s evidence on oath in support of their being exceptional circumstances and, on the basis of what I’ve heard to date, that would be my view about it. I’m ultimately not closing that off but essentially we were here on the last occasion, as I understood it, to hear those submissions, which I did, with a view to me ruling today and then further submissions generally in relation to penalty to be made either today or at a future time.
[16] The transcript says ‘of some’ however should read ‘and’.
The matter came on again on 28 April 2015.
Mr Vadasz opened by saying he wanted to:[17]
“… address certain aspects of your honour’s judgement and to make submissions on the question of appropriate sentence. I did understand that your honour was going to hand down a judgement on the factual basis but your honour has reached a conclusion that exceptional circumstances don’t exist there and I would seek to re-agitate that if I may?”.
The court granted the request:
HIS HONOUR: Certainly. If I have not fully appreciated that you had further and submissions on that topic, I do apologise. I’m happy to hear any further submissions you have and I’ll give them full weight.
[17] Transcript of proceedings on 28 April 2015 at p1.
Mr Vadasz commenced submissions, further arguing that the accused’s evidence should have been accepted, and that counsel for the DPP had not put to the accused that the true state of affairs was contrary to the accused’s evidence. Part way through his initial submission, made without any interruption by the court, Mr Vadasz then appeared to come to the view that he might wish to ask me to disqualify myself. He said:
MR VADASZ: … There seem to be aspects of unfairness there and I'm not too sure which way we go now; whether I seek to re‑agitate that point. Maybe Mr Klotz has some views or whether your Honour's factual findings, proceeding as they did on an absence of evidence and on an unfair footing that that was not put to Mr Harker when the opportunity was there to put that to him, whether the appropriate application should not be that your Honour disqualify yourself and I make that application ‑ I need to get some instructions ‑ and we start again in some other way. …
After some further discussion Mr Vadasz applied for and was granted an adjournment for a fortnight to get written instructions.
The court reconvened on 13 May 2015, and Mr Vadasz said he was “instructed to make an application, possibly a number of applications”.[18] As it turned out, there were two applications.
[18] Transcript of proceedings on 13 May 2015 at p1.
The first application was that I disqualify myself from further hearing the matter, and the second was that if I did not do so that I should hear further submissions from Mr Vadasz as to whether there were exceptional circumstances and also allow time and an adjournment for Mr Vadasz to make arrangements for the accused to see a psychologist to obtain a report.
I set out the oral application for disqualification in full:
MR VADASZ: I’m instructed to make an application, possibly a number of applications. The first application, and I can be brief, is that I am instructed to ask that your Honour step down from hearing this matter further or, in effect, disqualify yourself on the basis of an apprehended bias, and the factual basis for that lies primarily in para.14 of your Honour's judgment in the factual findings which fundamentally takes the entirety of the proceedings.
Your Honour said:
“I've carefully considered all of the evidence led in this matter. In my view, the circumstantial evidence is overwhelming that the accused was directly involved in activities occurring in the house.”
And went on to give some reasons for that. As I said last time, that was a matter that was not ever put to Mr Harker. It was not a matter on which the prosecution set out at the outset and indeed, with the greatest respect to Mr Klotz, it was a matter that may have become an afterthought when the evidence was over and completed.
It is in my submission a procedural and substantive unfairness to reach a conclusion which is the foundation of your Honour's conclusions on a matter that was not in dispute, never flagged as being in dispute and a dispute by the director and never put to the accused even though he entered the witness box on two occasions.
Mr Vadasz then put submissions in support of the application to disqualify:
Your Honour then goes to say:
'If I make findings with respect to the firearm.' And, in my submission, there really is nowhere to go. Whatever Mr Harker now puts to your Honour or seeks to argue before your Honour, your Honour's hands are tied by the finding.
In para.16 you said: 'The totality of the circumstantial evidence bears all of the hallmarks.' I won't read the whole lot. You end up saying: 'I do not accept the accused's evidence in the context of a reasonable possibility.'
However, nowhere does your Honour point to or appear to take into account factual matters that support a hypothesis consistent with innocence. For example, he told the police that the premises were rented. Secondly, material was tendered to the court to show that he had a lease to reside elsewhere during some of that period and thirdly, in November 2013 he actually told the police that he was living somewhere else.
They are matters that have wrongly pointed to the fact that he had nothing to do with the premises for a period of time, but they are not matters that your Honour appears to have taken into account. Your Honour has taken into account in the factual findings ‑ not even matters raised by the prosecution ‑ but your Honour has only taken into account, with respect, matters adverse to the accused, and appears to have overlooked any matter that is supportive of his position.
HIS HONOUR:    Well, I refer in detail to his evidence.
MR VADASZ:    You did.
HIS HONOUR:    I thought it was agreed that I have regard to all the declarations and they are evidence before me and then I said 'I have carefully considered all of the evidence'. So your submission is because it has not been referred to, then on balance it appears that I have not considered it. Is that essentially your position?
MR VADASZ:    Well, your Honour has not, and this really goes more to possibly an appeal point, but your Honour does not appear to have considered whether or not there is any hypothesis consistent with innocence. As you pointed out, a circumstantial case ‑ and your Honour would need to be directing yourself that you can only convict if guilt is the only rational inference, and further, as the High Court said in Peabottom in 1913 the accused is entitled to ‑ we are talking about acquittals now, same principle ‑ if there is a reasonable hypothesis consistent with principle.
It may be more than an appeal point. I might have rambled on a bit, but your Honour does not appear to have addressed in any detail, except in a blanket way, the independent items of evidence that are in fact consistent with innocence.
There would have been further matters that I would have put, and wanted to put, as to whether there are exceptional personal circumstances once the factual basis had been determined but, as I said at the outset, it has become difficult because your Honour has reached a conclusion which it is unfair to arrive at without having put that, without the prosecution having put that to the accused at the time he gave his evidence.
I won't make any submissions, that's the basis of my submissions.
As I understand the submissions of Mr Vadasz, which for clarity I have set out in full, the application for disqualification for apprehended bias is on the basis that it was procedurally and substantively unfair to reach a conclusion based on a matter “that was not in dispute, never flagged as being in dispute and a dispute by the director and never put to the accused even though he entered the witness box on two occasions.”
The submissions then made in support of the application were, essentially, that the court had not fully or adequately considered the evidence called on the accused’s behalf, failed to apply the correct test in reaching a factual conclusion based on circumstantial evidence, and that there were other matters that the accused would have wanted to put on the issue of whether there were exceptional circumstances.
Counsel for the DPP submitted there was no basis for disqualification, and that no-one had been under any misapprehension as to the process that had been undertaken, and that it had been clear that the court would consider the factual circumstances and also whether exceptional circumstances had been established. He submitted that he had cross examined the accused on the factual circumstances involving the cannabis and the equipment, and that although he did not directly put to the accused his involvement in the cannabis, the accused had already made his position on that ‘crystal clear’.
Counsel for the DPP submitted it had been clear that the issue of whether there were exceptional personal circumstances had plainly been contemplated and addressed, with the accused returning to the witness box a second time to specifically address that, and with Mr Vadasz making comprehensive submissions on that topic.
Counsel for the DPP submitted that despite the fact that all that was plain, the court had responded to Mr Vadasz’s 19 December 2014 request to re-visit the issue, to indicate the court would allow him to do so.
Counsel for the DPP submitted that it was always plain that all the evidence including the declarations were relevant and that the factual findings were open.
Neither counsel addressed the law or applicable legal tests for when a court should disqualify itself for apprehended bias.
The test for disqualification for apprehended bias
The test for disqualification is whether in the words of the High Court:[19]
“… 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.”
[19] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-5; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48.
The apprehension of bias must be a real and not remote possibility.[20]
[20] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
As a general rule judges should preside over the cases they have been allocated, and should not disqualify themselves unless there is an established basis to do so.[21]
[21] JRL, Re; Ex parte CJL (1986) 161 CLR 342 per Mason J at 352; Johnson v Johnson (2000) 201 CLR 488 at 44 per Kirby J; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294.
The law says that the fair minded lay observer has certain characteristics. The High Court has said:
·The observer is taken to be rational and reasonable;[22]
·The observer is neither complacent nor unduly sensitive or suspicious;[23]
·Whilst not a lawyer, the observer is not wholly uninformed and uninstructed about the law in general, the legal process or the issue to be decided;[24]
·The observer is aware of the context and the entire circumstances;[25]
·The observer is aware that the observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the irrational and the prejudicial,[26] is aware of the strong professional pressures on such adjudicators reinforced by the facilities of appeal and review to uphold traditions of integrity and impartiality,[27] and the observer is presumed to approach the matter on the basis that ordinarily a judge will act so as to ensure both the appearance and the substance of fairness and impartiality although the observer is not presumed to reject the possibility of it;[28]
·The observer is not presumed to have any personal knowledge of the character or ability of the observed.[29]
[22] Johnson v Johnson (2000) 201 CLR 488 at 12 per Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ and at 80 per Callinan J.
[23] Johnson v Johnson (2000) 201 CLR 488 at 44 per Kirby J citing R v S (RD) [1997] 3 SCR 484 at 505.
[24] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 9) [1990] NSWCA 154; Australian national Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 419; Johnson v Johnson (2000) 201 CLR 488 at 53 per Kirby J and at 80 per Callinan J.
[25] Johnson v Johnson (2000) 201 CLR 488 at 55 per Kirby J and at 82 per Callinan J.
[26] Johnson v Johnson (2000) 201 CLR 488 at 12 per Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ.
[27] Johnson v Johnson (2000) 201 CLR 488 at 53 per Kirby J, citing R v S (RD) [1997] 3 SCR 484 at 533; President of the Republic of South Africa v South African Rugby Football Union (1999) (4) SA 147 at 177.
[28] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299.
[29] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299.
Here, although Mr Vadasz’ second application still remains that should I reject the application for disqualification I should allow him to make further submissions and call further evidence, in particular a psychological report which his client hopes to be able to afford to provide in the near future, there was some element to Mr Vadasz’ earlier submission that there would be a problem with that due to the fact that findings have already been made. For completeness and fairness, I will also address that issue.
In Livesey v New South Wales Bar Association[30] and Vakauta v Kelly[31], the courts concerned had expressed strong and concluded views about the credit of witnesses who were about to appear before them, and the High Court held that such a stance would cause the reasonable apprehension of bias. Essentially, where the totality of the circumstances indicated that there had been a concluded prejudgment about the credibility or professional character of a witness or party where that credibility was a live issue in the current case, the court rightly said that there will be a reasonable apprehension of bias.[32]
[30] (1983) 151 CLR 288.
[31] (1989) 167 CLR 568.
[32] Johnson v Johnson (2000) 201 CLR 488; McCreed v R (2003) 27 WAR 554.
Discussion
Drawing together all the matters raised by Mr Vadasz, the essence of Mr Vadasz’ position seems to be that he in fact had not concluded his case on whether there were exceptional personal circumstances within the meaning of Division 2AA, indeed did not think that was yet being addressed by the court, yet the court proceeded to determine the Division 2AA issue against the accused anyway, and in doing so got it wrong by failing to consider or properly consider all the evidence led on behalf of the accused, and failing to apply the correct legal test when considering a circumstantial case.
In his formal final application on 13 May 2015 that the court disqualify itself, the thrust of Mr Vadasz’ submissions were that it was procedurally and substantively unfair to reach a conclusion based “on a matter that was not in dispute … and never flagged as being in dispute”, namely the relationship between the weapons offending and the cannabis operation the accused was seemingly cleaning up.
Inferentially, given that this is not an appeal about the rightness or wrongness of the court’s actions and ruling, but rather an application for disqualification, Mr Vadasz must be suggesting that from what a fair minded lay observer might reasonably apprehend or have observed, that the court might not now bring an impartial mind to the resolution of any remaining questions the court has to decide.
What a reasonable fair minded lay observer would have apprehended
A fair minded lay observer is an observer who knows all the facts.
That observer would in my view therefore have observed the course of proceedings, and noted that the matter was plainly set down to determine both the factual issue, and the Division 2AA issue of whether the accused could establish exceptional personal circumstances.
That observer would also have noted the number of occasions throughout the course of proceedings, only some of which I have recorded above, when the court indicated to the parties that the evidence per the declarations gave rise to the inference that the current weapons offending was to protect the cannabis operation that was in the process of being cleaned up and dismantled by the accused. The fair minded observer would likely observe that all concerned were ostensibly on notice from the outset that the court was contemplating such a conclusion based on the declarations, and that all concerned had every opportunity to contest that, as indeed the accused did contest it.
That observer would have observed the accused call evidence as to both the factual dispute and his personal circumstances, indeed being specifically recalled to give evidence as to his personal circumstances, and the observer would also have observed both counsel making extensive submissions on those topics, with the court then reserving its decision concerning both issues.
Accordingly it would in my view appear to the fair minded lay observer that a full hearing as to the factual basis for sentencing and a full hearing of whether there were exceptional personal circumstances for the purposes of Division 2AA occurred, final submissions as to those two issues were made, then the court adjourned to deliver a ruling, then delivered the ruling, and that it was only after that that Mr Vadasz said he did not think the Divison 2AA issue of exceptional circumstances had been addressed.

The fair minded lay observer would also have observed that notwithstanding the matter had seemingly been fully ventilated, the court was still prepared to hear further from Mr Vadasz on the topic, as he requested.
True it is, that subsequent to the ruling Mr Vadasz sought to re-open and re-ventilate the Division 2AA issue, an issue that had already been decided at that time based on the evidence before the court at that time, however given that there had already been a full hearing, full submissions and a reserved decision, that decision would not have been regarded by the fair minded lay observer as some kind of impermissible pre-judgement displaying bias against the accused.
Conclusion
In my opinion, none of the observations that might be made of the course of proceedings described above would cause a fair minded lay observer to reasonably apprehend the possibility that the court might not bring an impartial mind to the resolution of any remaining issue the court is required to decide.
Accordingly there is no basis to disqualify myself from hearing the matter, and the court is obliged to complete it.