R v JSM - [2016] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v JSM
[2016] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
4 November 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against conviction.
The appellant was charged with five counts of sexual offences against his daughter. At a trial in the District Court presided over by a Judge, the appellant was found guilty by a jury of all five counts. On appeal, the convictions were set aside and the matter remitted for retrial because the Judge had upheld a prosecution objection to a question asked in cross-examination of the complainant’s brother under the archaic and little known oath belief rule.
At the outset of the retrial, senior counsel for the appellant made an apprehended bias application to the trial Judge to disqualify himself because the Judge had presided over the original trial. The Judge declined to disqualify himself. The appellant was found guilty by the jury of three counts.
The appellant appeals against his convictions on the ground that the Judge ought to have disqualified himself from presiding over the retrial because the Judge had presided over the original trial or alternatively on a new ground advanced on appeal that the Judge had sentenced the appellant after the first trial to imprisonment for 12 years.
Held by the Court:
1   Consideration of the principles applicable in determining whether a reasonable apprehension of bias arises in respect of a judge presiding over a jury trial (at [32]-[38]).
2   No reasonable apprehension of bias arose because the Judge had presided over the original trial (at [58]).
3   No reasonable apprehension of bias arose because the Judge had previously sentenced the appellant or from the Judge's conduct at the second trial (at [72]).
4   Appeal dismissed (at [73]).
Criminal Law Consolidation Act 1935 (SA) s 49, s 58, s 72, s 353; Evidence Act 1929 (SA) s 34P, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; R v Balic (No 2) (1994) 75 A Crim R 515; R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v George, Harris and Hilton (1987) 9 NSWLR 527; Re JRL; Ex parte CJL (1986) 161 CLR 342; R v Kearns [2003] NSWCCA 367; R v Papadopolous (2010) 108 SASR 124; Rendulic v Bevan [1971] SASR 340, discussed.
Braysich v R (2011) 243 CLR 434; R v J, SM (2013) 117 SASR 535; RPS v R (2000) 199 CLR 620, considered.

R v JSM
[2016] SASCFC 120
Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ
THE COURT:

This is an appeal against conviction.
The appellant was charged with one count of gross indecency,[1] three counts of unlawful sexual intercourse[2] and one count of incest[3] against his daughter.
[1] Criminal Law Consolidation Act 1935 (SA) s 58(1).
[2] Criminal Law Consolidation Act 1935 (SA) s 49(3).
[3] Criminal Law Consolidation Act 1935 (SA) s 72(1).
In November 2012, at a trial presided over by a Judge of the District Court, the appellant was found guilty by a jury of all five counts.
In September 2013, this Court on appeal set aside the convictions and remitted the matter for retrial.
The matter was listed for trial in May 2014 but was not reached and was relisted for trial in March 2015.
In March 2015, at the retrial presided over by the original trial Judge, the appellant was found guilty by a jury of one count of gross indecency and two counts of unlawful sexual intercourse. He was found not guilty of the remaining two counts.
The appellant appeals against his convictions on the single ground that the Judge ought to have disqualified himself at the outset of the trial from presiding over the trial on the ground of apprehended bias.
Background
The complainant was born in June 1990. When she was 13 years old, her family moved to a country town.
The complainant gave evidence at the previous trial that when she was 14 years old (2004) and her mother had left for work one morning, the appellant summoned her to his bedroom and directed her to remove her clothing and stand naked before him. She complied out of fear. This was the subject of count 1. She gave evidence that this was repeated a few times over the next two weeks.
The complainant gave evidence that a couple of weeks later, when her mother had left for work one morning, the appellant directed her to remove her clothing and get into bed with him. She again complied out of fear. The appellant began groping her. She resisted by clenching her legs together and attempting to move his hands away. In response, the appellant punched her in the groin, causing her to release her legs. He inserted his finger or fingers into her vagina. This continued for approximately ten to 15 minutes. The complainant cried throughout the ordeal. This was the subject of count 2. The complainant gave evidence that this was repeated about twice a week while they lived at the first country town while her mother was at work.
The complainant gave evidence that when she was in year 10 (2005) the family moved to a second country town, where the conduct continued while her mother was at work. On one specific occasion, the appellant knocked on the wall between his and the complainant’s bedrooms and called out her name but she pretended that she could not hear him. The appellant came into her room, stood over her and said that if she did not come into his bedroom it would occur in her bedroom. She followed him into his bedroom. In the appellant’s bedroom, he groped her and inserted his fingers into her vagina. This was the subject of count 3.
The complainant gave evidence that in 2005 the family moved to a third country town for three months. On one occasion, the appellant and the complainant returned to the family house in the second country town. The appellant directed the complainant to come into his bedroom and lie on the bed. He pulled off her clothes and had vaginal intercourse with her. This was the subject of count 4. The complainant gave evidence that sexual intercourse was repeated until March 2008.
The complainant gave evidence that the last occasion on which the appellant had sexual intercourse with her was on a Friday night in March 2008. This was the subject of count 5. The following night, the appellant told her mother what had been going on.
Evidence was also given by the complainant’s brother and mother. The appellant elected not to give evidence. The appellant was convicted of all five counts.
In January 2013, the appellant was sentenced to imprisonment for 12 years with a non-parole period of six years.
The appellant appealed against his convictions on the sole ground that the Judge erred in upholding an objection to a line of questioning by his counsel of the complaint’s brother as to whether the complainant should be believed on her oath and erred in precluding his counsel from putting a document before the complainant’s brother relevant to the issue of the complainant’s credit.
In September 2013, this Court on appeal upheld the first ground and rejected the second ground and by majority allowed the appeal, set aside the convictions and remitted the matter for retrial.[4]
[4] R v J, SM [2013] SASCFC 96, (2013) 117 SASR 535.
The matter was listed for trial in May 2014 but it was not reached and was relisted for trial to commence on Monday 23 March 2015. The appellant engaged Ms Powell to appear for him at the trial.
On 24 March 2015 at 10.15 am, before the jury was empanelled, Ms Powell applied to the Judge to disqualify himself on the ground that he had presided over the previous trial. Ms Powell put the following submission:
I spoke with [JSM] late yesterday afternoon and informed him that he was able to commence his trial this morning before your Honour. The view he expressed to me was that he would prefer that your Honour not preside over his second trial as your Honour will recall your Honour presided over the first trial….
In this application I cannot point to any specific reference in the last trial, your Honour’s conduct of the trial or sentencing remarks or any other comments made by the Court of Criminal Appeal that perhaps I could pin this application on. I accept there is that hurdle right away. The application is entirely based upon the perception of [JSM] and the difficulties he believes he’s already facing in terms of defending his trial and the difficulty he has personally in his belief that there was some disadvantage to him in the last trial that would be alleviated should it be heard by another judge.
The Judge dismissed the application in the following terms:
Despite my understanding why [JSM] would feel that it would be preferable if another Judge were to hear the matter, I do not think that this is one of the cases in which a Judge might be expected to disqualify himself. The trial is going to be determined not by me but by a jury. I made an error of law in the last trial which was to [JSM’s] disadvantage and there has been a successful appeal. I will not make the same mistake again. So if he is worried that I haven't learnt my lesson, I have. But I see no other reason. There might be grounds upon which an appeal is determined which would call for the judge to disqualify him or herself but I do not see the ground on which this appeal was taken and upheld to be one such itself, it is a relatively discrete topic, which will not occur again, while the law remains as it is. So I decline the application.
At 10.35 am after a brief adjournment, Ms Powell informed the Judge that her instructions had been terminated forthwith. She said that the appellant had expressed some concern about his legal representation late the previous afternoon, having first raised it on the previous Friday, and it had culminated in a loss of confidence after the disqualification application was heard and determined. Ms Powell sought leave to withdraw from the file, which was granted and the same leave was granted to her instructing solicitor. The appellant was then self-represented.
The Judge asked the appellant whether he proposed to represent himself or seek alternative legal representation. The appellant said that he did not know how to proceed. The Judge adjourned the matter to 2.15 pm to give him an opportunity to attend at the Legal Services Commission to arrange urgent legal representation.
At 2.15 pm, Mr Kelly from the Legal Services Commission appeared for the appellant. There was discussion about when the trial might commence. The Judge adjourned to the following morning for mention to enable Mr Kelly to make inquiries and take instructions to ascertain when he would be ready to commence the trial.
On 25 March 2015, there was discussion whether the trial could start on the Friday or the following Monday. The Judge adjourned the matter to Friday for commencement of trial but said that, if the evidence in chief of the complainant were completed before the end of the day, Mr Kelly would not be required to commence cross-examination on that day.
On 27 March 2015, the trial commenced, the prosecutor opened the case and the complainant completed her evidence in chief. On 30 March 2015, Mr Kelly cross-examined the complainant. In the course of her answers, she disclosed a matter to the jury that resulted in the Judge declaring a mistrial.
On 31 March 2015, a new jury was empanelled and the trial commenced. The trial was completed within four days. The appellant again elected not to give evidence.
Disqualification for apprehended bias principles
The High Court has articulated the principles governing applications for disqualification for apprehended bias in several decisions.
In R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group,[5] Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said:
The common law principles of natural justice are well understood though they have been variously expressed… Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.[6]
[5] (1969) 122 CLR 546.
[6] At 553-554.
In Re JRL; Ex parte CJL,[7] Mason J said:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established". Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.[8]
[7] (1986) 161 CLR 342.
[8] At 352. (Citations omitted)
In Johnson v Johnson,[9] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
… The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.[10]
[9] [2000] HCA 48, (2000) 201 CLR 488.
[10] At [11]-[13].
In Ebner v Official Trustee in Bankruptcy,[11] Gleeson CJ, McHugh, Gummow and Hayne JJ said:
Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[12]
[11] [2000] HCA 63, (2000) 205 CLR 337.
[12] At [7]-[8].
Intermediate appellate and first instance courts have articulated the principles governing applications for disqualification for apprehended bias of trial judges presiding over jury trials in several decisions.
In Rendulic v Bevan,[13] Rendulic had on a previous occasion pleaded guilty to two counts of illegal mining after having made a full confession to a police officer. He was sentenced by a Magistrate. He was subsequently charged with another illegal mining offence in which the prosecution relied on an alleged confession by him to a police officer. The trial was listed before the same Magistrate who had previously sentenced him. Rendulic applied to the Magistrate to disqualify himself on the ground of apprehended bias, which application was refused by the Magistrate. Mitchell J allowed Rendulic’s appeal against that refusal. Mitchell J said:
There is no parallel between the situation of a special magistrate hearing and determining a charge summarily where he is the sole judge of fact and the case of a judge sitting with the jury. In the latter situation it is the jury who are the sole judges of fact, and generally speaking it would seem to me to be innocuous for a judge, who had already presided over one trial in which an accused person has been found guilty of a particular offence, to preside over a subsequent trial of that person for a similar offence.[14]
[13] [1971] SASR 340.
[14] At 345.
In R v George, Harris and Hilton,[15] the trial Judge had authorised the use of a listening device in relation to Hilton in respect of a different matter to the subject matter of the trial. The New South Wales Court of Appeal held that a reasonable apprehension of bias did not arise in those circumstances. Street CJ (with whom Yeldham and Finlay JJ agreed) said:
The reasonable apprehension of bias, which is the core of the test, turns very much upon the adjective, “reasonable”. It is not enough that there be some apprehension to some uninformed and uninstructed person. It must be a reasonable apprehension and it must be an apprehension which would be apparent to or entertained by a reasonable person with a full comprehension of the circumstances of each case.
A judge presiding at a trial – albeit, as Mr Roberts emphasised, that he is called upon to make rulings during the course of the trial which can affect the course of its progress and hence affect directly the accused person – is not the ultimate decider of facts on the matter of guilt. If judges who are presiding at trials were to be insulated from all other activities involving the administration of the criminal law and associated fields, the administration of justice would be placed in wholly unnecessary watertight compartments. For example, bail applications are commonly heard by judges involved in trials. Indeed, during the course of a trial, particularly a lengthy trial such as this, the trial judge quite frequently considers whether bail should be allowed during the course of a trial, and in the course of considering a matter of that sort in the absence of the jury all sorts of prejudicial material is properly made known to him.
In the course of the voir dire proceedings in trials material not proper to be to put before a jury is, without the faintest suggestion of concern regarding inducing unfair prejudice on the part of the judge, placed before the judge.[16]
[15] (1987) 9 NSWLR 527.
[16] At 536.

In R v Balic (No 2),[17] Balic and McPherson had been charged in June 1991 with intentionally inflicting grievous bodily harm. Balic was granted bail. Separate trials were ordered in the District Court, with McPherson’s trial to proceed first and Balic’s trial being listed to commence on 21 November 1994. Balic’s matter was listed for mention on 4 November 1994. Balic’s solicitor happened to be in the chambers of another judge shortly before the hearing and overheard the trial judge say that he was “about to spring bail on [his] two accused”, referring to McPherson and Balic. Balic’s solicitor informed Balic and his counsel what he had overheard and Balic made preparations to be taken into custody on that basis. At the hearing, the Judge informed Balic’s counsel that he had heard material during McPherson’s trial that on its face was admissible against Balic giving rise to a very strong Crown case against him and enquired why he should continue his bail. No application was made by the Crown to revoke bail and Balic’s counsel informed the Judge that the Crown did not oppose bail. Balic’s counsel informed the Judge that he would be opposing the admission of tape transcripts on the ground that the listening device was illegally installed. The Crown was not called upon by the Judge. The Judge revoked bail without giving any reasons. On 8 November 1994, Balic’s counsel made an application to the Judge to disqualify himself on the basis that his Honour had prejudged the revocation of bail, evidenced by the statement made by the Judge in chambers and the Judge’s conduct in court. The Judge refused the application.
[17] (1994) 75 A Crim R 515.
The Court of Appeal held that the Judge’s conduct gave rise to a reasonable apprehension of bias by way of prejudgment on the bail application which had a consequential effect on a reasonable observer’s perception as to the Judge’s impartiality at trial. Cole JA (with whom Handley and Sheller JJA agreed) said:
Here any decision as to guilt or innocence at the trial will not be made by the presiding Judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a Judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial Judge.[18]
[18] At 520.
In R v Kearns,[19] Kearns and Parkes were both involved in the management of the Nambucca group of companies. In November 2000, Parkes stood trial in the District Court on seven counts of defrauding companies in the Nambucca group. He was found guilty by the jury on all counts. In December 2002, Kearns stood trial in the District Court on, amongst others, five counts of improperly using his position as an officer of the Nambucca group to pay company monies to his own benefit. Parkes was the conduit between Kearns and those from whom the funds were obtained the subject of these five counts. The same Judge who presided over Parkes’ trial also presided over Kearns’ trial. There were common witnesses in both trials, the role of Kearns was the subject of Parkes’ trial and the role of Parkes was the subject of Kearns’ trial. Kearns made an application that the Judge disqualify himself on the ground of apprehended bias due to the Judge’s involvement in the Parkes trial. The Judge declined to disqualify himself. This decision was upheld by the New South Wales Court of Criminal Appeal. Spigelman CJ (with whom Dunford and Hidden JJ agreed) said:
The fact that the trial judge’s role in a jury trial is limited is not determinative of the matters, however, it is of significance…
…
I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge’s mind, in terms of his or her conduct in the second trial.
These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.
This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair-minded, independent lay observer.^[20]
[19] [2003] NSWCCA 367.
[20] At [34], [38]-[40].
In R v Papadopolous,[21] Papadopoulos applied to the Licensing Court for a review of a decision by a hotel licensee barring him from premises because he was a member of an outlaw motorcycle gang whose members had caused previous problems, in turn giving rise to an apprehension of danger to patrons and staff if entry were allowed. A Judge upheld the barring order after hearing evidence about Papadopoulos and the motorcycle gang. The evidence included details of previous convictions of and suspected offences committed by Papadopoulos. Papadopoulos was subsequently charged with trafficking in methyl amphetamine and his trial was listed before the same Judge in the District Court. He was convicted and appealed against his conviction on the ground that the Judge ought to have disqualified himself on the ground of apprehended bias. This Court (Sulan J dissenting) dismissed the appeal. Duggan J (with whom David J agreed) said:
There are some general considerations which are relevant in this respect. Some recognition must be given to the experience which judges have in not allowing knowledge of this nature to influence their decision making. This is a requirement which arises frequently when matters adverse to a person’s character are made known in the course of interlocutory procedures such as bail applications or when a judge is asked to rule on the admission of evidence.
…
In my view the “hypothetical fair-minded and informed lay observer” referred to by Deane J in Webb v The Queen is also entitled to have regard to the fact that the experience and training of judges is such as to enable them to put out of their minds information about parties which they have gleaned in a general way through their work in the courts.[22]
[21] [2010] SASCFC 30, (2010) 108 SASR 124.
[22] At [15], [21].
Refusal of disqualification application
The appellant contends that the Judge erred in declining to disqualify himself on the application of Ms Powell at the outset of the trial.
The ground advanced on the application was that the Judge had presided over the previous trial, there was some disadvantage to the appellant in the previous trial and this gave rise to a reasonable apprehension of bias.
In approaching the question whether a fair-minded lay observer might reasonably apprehend bias, it is necessary to identify the prospective functions to be performed by the Judge at the trial. Those functions did not include determining the appellant’s guilt or innocence, which was the function exclusively of the jury. The functions of the Judge comprised ruling on evidentiary objections, directing the jury on the law, summing up the case to the jury, and controlling the procedural aspects of the trial.[23]
[23] RPS v R [2000] HCA 3, (2000) 199 CLR 620 at [41]-[42] per Gaudron ACJ, Gummow, Kirby and Hayne JJ; Braysich v R [2011] HCA 14, (2011) 243 CLR 434 at [31]-[33] per French CJ, Crennan and Kiefel JJ.
It is common and generally accepted practice that the fact that a judge makes findings in relation to the credit or conduct of the defendant before or during the course of a trial does not in itself give rise to a reasonable apprehension of bias when the judge is presiding over a jury trial. Several examples may be given. Judges make such findings in the context of disputed bail applications. Judges make such findings in the context of determining issues after hearing evidence from the defendant on the voir dire (such as a challenge to a record of interview on the ground of involuntariness or in the exercise of the impropriety or unfairness discretions). Judges make such findings after hearing evidence from the defendant in the context of determining procedural issues (such as an application for an extension of time in which to elect for trial by judge alone). It is accepted that, for the purposes of the trial in which the judge’s function is not to determine the defendant’s guilt, the fact that the judge may have made adverse findings about the defendant’s credit or conduct does not, in itself, give rise to a reasonable apprehension of bias.
It is common and generally accepted practice that, when a judge declares a mistrial, the same judge usually presides over the subsequent trial. This is the case whether the mistrial is declared early in the previous trial or after the conclusion of evidence or even after the summing up. It is also common and generally accepted practice that, when a jury is unable to agree on a verdict, the same judge often presides over the subsequent trial. In such cases, a fair-minded lay observer would not reasonably apprehend bias merely by reason of the judge having presided over the earlier trial. This is notwithstanding that typically the judge will have ruled on evidentiary objections and will have summed up to the jury in the previous trial. This is not to say that in a particular case there might not be a particular ruling that would give rise to a reasonable apprehension of bias, but the mere fact of the judge having presided over the previous trial does not do so.
When a judge presides over a trial at which the defendant is convicted, the defendant successfully appeals against the conviction and a new trial is ordered, a fair-minded lay observer would not reasonably apprehend bias merely by reason of the judge having presided over the earlier trial. Again, this is not to say that, if the appeal is allowed by reason of something said or done by the judge during the trial, that matter might not give rise to a reasonable apprehension of bias, but it is necessary to consider the particular reason for the appeal being allowed.
In the present case, the appeal was allowed because the appellant’s counsel asked the complainant’s brother whether he regarded her as a person who should be believed before the jury. Although this question was objectionable in form, in upholding the prosecutor’s objection the Judge made it plain that he would disallow questions designed to elicit the opinion of the witness whether the complainant should be believed on her oath. This Court held that under an archaic common law principle for which the name “the oath belief rule” was coined, such a line of questioning is permissible. However, questions in reliance on the rule are extremely rare, the oath belief rule itself is little known by twenty first century lawyers and judges and the rule is contrary to modern principles of the law of evidence.
The issue raised by the prosecution objection related to a question of law entirely independent of the appellant or the facts and circumstances of the case. Approached as a matter of principle, the question was objectionable. The Australian authorities which compelled this Court’s conclusion that the question was nevertheless permissible unless and until the High Court decides otherwise were not drawn to the attention of the Judge. The Judge made it plain before ruling on the disqualification application that his Honour had learnt the lesson and would not make the same mistake again. In the circumstances, the error of law that this Court concluded the Judge inadvertently made at the previous trial did not give rise to a reasonable apprehension by a fair-minded lay observer of bias.
The mere fact that the Judge presided over the previous trial, made an erroneous evidentiary ruling and this Court set aside the verdicts on that ground did not give rise to a reasonable apprehension in the mind of a fair-minded lay observer of bias in relation to the performance of the Judge’s functions at the second trial.
The appellant identifies several rulings adverse to him made by the Judge at the previous trial and contends that there was acrimony or a lack of harmony at the previous trial. The appellant contends that these circumstances need to be weighed in the balance in assessing whether a fair-minded lay observer might reasonably apprehend bias. It is to be accepted that the conduct of the Judge at the previous trial is a matter of which the fair-minded lay observer would be aware in making that observer’s assessment as to reasonable apprehension of bias.
At the beginning of the first day of the previous trial, the appellant applied to vacate the trial on the ground that he had just been served with addendum statements by the complainant and her mother referring to violence perpetrated on the complainant outside the context of sexual acts and a discreditable conduct notice in respect of that proposed evidence. This new evidence arose out of proofing of the witnesses by the prosecutor in the days immediately before trial. The Judge refused the application to vacate the trial, but said that he would give the appellant time to prepare to deal with the notified proposed evidence, would not empanel a jury until at least the following day and would adjourn the question when the trial should commence and any objection to the proposed evidence to 3.30 pm that afternoon.
At 3.30 pm, the appellant objected to the admission of the proposed evidence on the ground that its probative value did not substantially outweigh its prejudicial effect under section 34P(2)(a) of the Evidence Act 1929 (SA). The prosecutor submitted that the evidence was relevant to explain why the complainant submitted to the sexual acts and to put the charged conduct in context. The appellant accepted that earlier witness statements referred to violence in the context of sexual acts and he was not objecting to that evidence being led but contended that the additional evidence added to the prejudicial effect of the previously notified evidence without significantly adding to the permissible probative value. The Judge ruled that the additional evidence was admissible under section 34P. During the course of the argument, counsel for the appellant said that there was no reason why a jury should not be empanelled the following morning and thanked the Judge for the indulgence granted for him to take instructions on the new material.
At the beginning of the second day of the trial, the appellant renewed his application to vacate the trial largely on the same grounds. The appellant had previously issued a subpoena to the Education Department and made enquiries of the Department that revealed that it could not locate files relating to the complainant which would contain a record of any complaint or observations of injuries sustained by the complainant allegedly caused by the appellant. The appellant submitted that he wished to issue a fresh subpoena to the Department of State Records for such documents in the context of the new allegations of violence on additional occasions. The prosecutor offered to provide to the defence a more detailed statement by the complainant as to what injuries she says she had, whether or not they were visible when she returned to school, and whether she ever had any discussions with any teachers concerning any injuries. The prosecutor also offered to make inquiries of the schools attended by the complainant for any records. The Judge decided not to empanel a jury that day and adjourned the matter to 3.30 pm for the inquiries foreshadowed by the prosecution to be made.
At 3.30 pm, the prosecutor informed the Judge that a further statement had been taken from the complainant and served on the defence. The complainant said that she never had any discussions with teachers about injuries and the injuries that she had were not visible. The prosecutor informed the Judge that a student’s file travels from school to school as the student changes schools and it had been confirmed that the last school attended by the complainant was unable to find her file. The appellant pressed the application to vacate the trial for the purpose of making detailed enquiries of the education authorities. The Judge refused that application and ruled that the trial would proceed the following morning.
The appellant does not contend that the Judge’s rulings on the vacation and exclusion applications were erroneous or gave rise to a reasonable apprehension of bias. The appellant contends, however, that the fact of the rulings being adverse to him is to be considered as part of the mix in an overall assessment whether there was a reasonable apprehension of bias at the commencement of the second trial. As observed above, the fact of the rulings is to be taken into account. However, taking them into account in conjunction with the matter referred to at [47] above does not lead to a conclusion that a fair-minded lay observer might reasonably apprehend bias at the second trial.
While it is undesirable that proofing be undertaken by prosecutors of witnesses only shortly before trial, unfortunately it is a common practice and in the majority of trials late addendum statements are served on the defence. Trial judges need to manage trials, including questions of vacation or deferred starts, to accommodate the defence without unnecessarily vacating trials and doing so requires an iterative approach. In this case, the Judge followed an appropriate iterative approach and reached the correct conclusion. The Judge fairly heard both parties on issues of vacation and admissibility. The rulings on the material before the Judge were correct but that is not the issue. The process followed demonstrated to a fair-minded lay observer an impartial approach by the Judge.
The complainant’s evidence was completed before lunch on the fourth day and she was released and left the court. After lunch, the appellant applied for the complainant to be re-called for further cross-examination. The appellant’s counsel said that he had overlooked putting to the complainant that she had told a doctor in July 2009 that she felt safe living with her father. This was in the context that she had given evidence that she moved to live with her father in early 2009 and explained that she felt safe doing so because her partner was with her and also the appellant’s partner was with him. The prosecutor opposed the application on the ground that the statement to the doctor was entirely consistent with the complainant’s evidence. The Judge declined to direct that the complainant be recalled on the ground that the proposed evidence would have negligible if any probative weight.
The appellant does not contend that the Judge’s ruling on the recall application was erroneous or gave rise to a reasonable apprehension of bias. The ruling on the material before the Judge was correct but that is not the issue. The process followed demonstrated to a fair-minded lay observer an impartial approach by the Judge.
The appellant contends that the exchanges between the Judge and defence counsel involved acrimony or a lack of harmony. There is nothing in the statements made by the Judge during the hearing of or rulings on each of the applications addressed above that evidenced any acrimony by the Judge towards defence counsel or any lack of harmony emanating from the Judge. While defence counsel made robust submissions in support of his applications, there is nothing in the exchanges between the Judge and defence counsel that was capable of materially affecting the assessment by the fair-minded lay observer as to reasonable apprehension of bias.

On the ground advanced before the Judge for disqualification, the Judge made no error of law in declining to disqualify himself and the appeal on this ground should be dismissed.
New grounds advanced on appeal
The appellant contends that the Judge ought to have disqualified himself on the ground that the Judge had previously sentenced him on the premise that he was guilty and publicly announced that his conduct merited a penalty of imprisonment for 12 years, giving rise to a reasonable apprehension of bias.
This ground was not advanced before the Judge and no application was made to the Judge to disqualify himself on this ground. On the contrary, senior counsel for the appellant expressly eschewed any contention that there was anything in the Judge’s sentencing remarks that gave rise to a reasonable apprehension of bias.
In January 2013, the Judge sentenced the appellant to imprisonment for 12 years with a non-parole period of six years. The appellant contends that the mere fact that the Judge had sentenced the appellant for the same conduct for which he was again being tried indicates prejudgment of the issues to be tried at the second trial.
In considering whether the fact that the Judge presided over the second trial gave rise to a miscarriage of justice, it is important to identify the role of the Judge in respect of the issues to be tried at the second trial. As outlined above, that role principally related to evidentiary rulings, giving directions of law and summing up the case to the jury. The mere fact that the Judge had sentenced the appellant for conduct found proved by the jury at the previous trial does not entail prejudgment of the issues to be tried at the second trial. It remained the role of the jury in the second trial to make a judgment on the issues to be tried. A fair-minded lay observer would not apprehend that, in ruling on evidentiary objections, giving directions of law and summing up the case to the jury, the Judge might not bring an impartial and unprejudiced mind to the discharge of those functions.
It is unnecessary to consider whether the position would be different if the Judge had, for the purpose of sentencing the appellant, made a finding adverse to the appellant on a disputed issue of fact relevant to sentence. Ordinarily, defendants who have been found guilty by a jury are sentenced on the basis of those facts the jury must have found to reach a verdict of guilty; those facts that follow from the jury’s acceptance of the credit of prosecution witnesses who must have been accepted to reach a verdict of guilty; those facts not in contest at trial, and those facts accepted or acquiesced in by the parties for the purpose of the sentencing submissions. On occasion, particularly where alternative disparate routes to guilt were available to the jury (for example, manslaughter by unlawful and dangerous act versus manslaughter by reason of provocation versus manslaughter by reason of non-objective self-defence), it is necessary for a judge to make a finding after hearing submissions from the parties. On occasion, where a dispute as to a factual issue arises during sentencing submissions, it is necessary for a judge to hear evidence adduced by the parties for the purpose of sentencing and make a finding after hearing submissions from the parties.
No occasion arose in the present case for the Judge to make a finding on a disputed issue of fact arising on the sentencing submissions. The sentencing submissions proceeded on the basis that the jury necessarily accepted the complainant as a witness of truth and the complainant’s evidence not only of the five specific occasions the subject of the five counts but also the course of conduct comprising the uncharged acts of sexual activity and violence. The sentencing submissions proceeded on the basis that this uncharged course of conduct was part of the background or context against which the appellant was to be sentenced (albeit obviously the appellant was not to be punished for that conduct). When the Judge came to sentence the appellant, it was against that background. While the Judge said that he was satisfied that the appellant imposed harsh physical discipline on the complainant, this merely accorded with the basis on which the sentencing submissions were made.
The appellant contends that there was a miscarriage of justice as a result of the Judge presiding over the second trial because the Judge made rulings adverse to the appellant on applications to vacate the trial by the appellant in person and by Mr Kelly, and there was manifested a lack of harmony in a similar manner and on similar issues to that manifested during the previous trial. The appellant contends that the Judge’s rulings gave rise in the mind of a fair-minded lay observer to a reasonable apprehension of prejudgment arising from the Judge having presided over the previous trial and having sentenced the appellant, and that this manifested a miscarriage of justice flowing from the Judge’s continuing to preside over the matter.
On the first day of the second trial, after Ms Powell and her instructing solicitor withdrew, there was a dialogue between the Judge and the appellant about how the matter should proceed. The Judge explained to the appellant that this was quite an old matter, summarised the history of the matter since 2012 and said that it was important to get on with the trial. The Judge explained the alternatives to the appellant, namely that he represent himself or arrange alternative legal representation. The Judge explained that, if the appellant represented himself, the Court would need under the relevant legislation to arrange for a lawyer to represent him in cross-examination of the complainant. The appellant repeatedly told the Judge that he did not know how to proceed and had not given any thought to this when he dismissed Ms Powell. The Judge informed the appellant that Ms Powell was an eminent counsel and inquired whether the appellant wished to consider re-engaging her. The appellant merely persisted in saying that he did not know what to do. The Judge suggested that the appellant attend at the Legal Services Commission and ask them to arrange for a lawyer to appear on his behalf at 2.15 pm.
The appellant contends that the Judge’s treatment of the appellant would have been seen by the fair-minded lay observer as intimidatory and indicative of the possibility of prejudgment and that this manifested a miscarriage of justice flowing from the Judge’s continuing to preside over the matter. This submission must be rejected. The appellant, having dismissed eminent senior counsel, was ostensibly burying his head in the sand and simply not addressing the predicament in which he had placed himself. This called for the Judge to be firm but fair and that was the approach taken by the Judge. The Judge’s conduct was not capable of being perceived as intimidatory and there was no indication of prejudgment. The Judge made no decision at that point, merely adjourning the matter to 2.15 pm to afford the appellant the opportunity to attend at the Legal Services Commission to arrange urgent legal representation.
At 2.15 pm, Mr Kelly appeared for the appellant. The Judge said that his Honour was available to sit the following week in the trial. There was discussion about the possibility of commencing the trial ranging from the following morning (Wednesday) to the following Monday. Mr Kelly said that he would not be in a position to proceed with the trial on the following day but would probably be prepared to do so on the Monday. The Judge adjourned to the following morning to enable Mr Kelly to take instructions and consider when he would be ready to proceed. The Judge said that in any event no jury would be empanelled on the following day.
On the following day, Mr Kelly told the Judge that he had met with Ms Powell and her instructing solicitor the previous afternoon and been provided with information about the matter. He said that there was a considerable body of material to assimilate. He applied to vacate the trial. There was discussion between the Judge and counsel as to how Mr Kelly could be assisted, including the prosecutor providing him with her opening and copies of the two exhibits from the previous trial that he did not have. There was then a discussion whether the trial could start on the Friday or the following Monday. The Judge suggested that the trial start on Friday on the basis that, if the evidence in chief of the complainant were completed before the end of the day and Mr Kelly did not wish to commence cross-examination, the trial would be adjourned until the following Monday. Mr Kelly acquiesced in this arrangement. The Judge adjourned the matter to Friday morning for the commencement of trial.
The appellant contends that the Judge’s interactions with Mr Kelly would have been seen by the fair-minded lay observer as indicative of the possibility of prejudgment and this manifested a miscarriage of justice flowing from the Judge’s continuing to preside over the matter. This submission must be rejected. Again, the Judge was firm but fair during the hearings on Tuesday afternoon and Wednesday morning. There could be no perception of prejudgment by the Judge as to when the trial was to commence. The Judge followed an appropriate iterative approach and reached the correct conclusion. The Judge heard Mr Kelly’s concerns, explored how they could be addressed and employed standard case management techniques to ensure that the matter proceeded without the necessity for the trial to go off yet again, while accommodating the defence to ensure that no injustice was occasioned to the appellant as a result of his last-minute decision to terminate the instructions of his senior counsel as was his prerogative. It is not suggested that any injustice or prejudice was suffered by the appellant as a result of the trial proceeding.
The appellant does not suggest that the Judge made any adverse rulings on evidence during the trial. There was only one objection made during the trial, which was to a question asked of the complainant in cross-examination and Mr Kelly did not press the question. The appellant does not suggest that the summing up to the jury was not fair and balanced.
On the new grounds advanced on appeal, the Judge was not obliged to disqualify himself and the appeal on these grounds should be dismissed.
Conclusion
We dismiss the appeal.