R v JT; R v AF

[2024] NSWDC 27

District Court

New South Wales

Medium Neutral Citation:

R v JT; R v AF [2024] NSWDC 27

Hearing dates:

13 February 2024

Date of orders:

13 February 2024

Decision date:

13 February 2024

Jurisdiction:

Criminal

Before:

GRANT DCJ

Decision:

The application is refused.

Catchwords:

RECUSAL APPLICATION – Apprehension of bias – Fair-minded lay observer – Objective test – Two-step process – Judge shopping – Application refused

Cases Cited:

Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;

Gaudie v Local Court of New South Wales [NSW] 2013 NSWSC 1425 at [82];

Green v The Queen (2011) 244 CLR 462;

Johnson v Johnson (2000) 201 CLR 488;

Michael Wilson and Partners v Nicholls (2011) 244 CLR 42;

Postiglione v The Queen (1997) 189 CLR 295;

R v BP [2023] NSWDC 415.

Category:

Procedural rulings

Parties:

Rex (Crown)
JT (Offender)
AF (Offender)

Representation:

Counsel:
Mr Kerr (Crown)
Mr Valentine (AF)
Mr Davies (JT)

Solicitors:
B Sullivan (Crown)
C Suckling (AF)
P Keane (JT)

File Number(s):

2022/84561
2022/97605

Publication restriction:

Automatic non-publication/ suppression order made under s 15A(1) Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

1. AF, JT and BP are co-offenders. On arraignment, BP pleaded guilty, and a sentence date was set for 14 September 2023. JT pleaded guilty on 18 August 2023 and a different sentence date was set for the convenience of counsel. AF pleaded not guilty and his trial was set for 11 December 2023.

2. On 14 September 2023, I sentenced BP. The judgment was published: R v BP [2023] NSWDC 415 (“BP”). I published the judgment for two reasons; firstly, the solicitor for JT requested my sentence remarks; and secondly, the judgment dealt with the principles of sentencing a young person according to law. Copies of the judgment were provided to the solicitors for JT and AF.

3. On 10 October 2023 my associate, at my direction, emailed the parties in AF stating “...in light of his Honour’s sentence in BP can you please advise whether the trial will be proceeding on 11 December 2023?” Subsequent emails were sent.

4. On 11 December 2023, a fresh Indictment in the matter of AF was filed over and AF pleaded guilty. Today is the sentence hearing date for AF and JT.

5. The Director, in a complaint to the Judicial Commission dated 19 December 2023, said that she “directed her staff to apply for my recusal from sentencing AF”. She said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to sentencing AF.

6. Mr Kerr, Crown Prosecutor, now brings an application for my recusal. Mr Valentin, who appears for AF, brings no such application and wants the sentencing hearing to proceed.

7. The Director brings the application that I should recuse myself in the sentence of JT. Mr Davies, Public Defender, does not make an application for recusal and seeks the sentence hearing to proceed. He opposes the application.

8. The application for AF needs to be looked at in the context of 12 listed trials in 2023 resolving shortly before or on the day of trial. I do not have the ability to call upon trials from Court 3.1 of the Downing Centre as judges in Sydney do. It is very difficult to bring trials forward without sufficient notice.

9. My inquiry to the legal representatives of AF was in relation to the jury panel and/or whether a trial in 2024 needed to be brought forward. I have made no prejudgment of AF’s trial (if it was to occur) which was a jury trial or sentence if it was to proceed as a sentencing matter.

10. As a matter of practice, it is highly desirable that co-offenders be sentenced by one judge given the principle of parity of sentencing between co‑offenders: Postiglione v The Queen (1997) 189 CLR 295 at [309] and [320]. The desirability of this practice serves the public interest in consistent and transparent sentencing of related offenders: Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 at [33]-[34] and [46].

11. The test for determining whether a judge is disqualified by reason of the appearance of bias 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 that the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 ("Johnson v Johnson"); Michael Wilson and Partners v Nicholls (2011) 244 CLR 427.

12. The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question as is necessary on an inquiry about actual bias.

13. The application of the apprehension of bias principle requires two steps. The first is the identification of what is said that might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ("Ebner").

14. Accordingly, an allegation of apprehended bias requires an objective assessment between the facts and the circumstances said to give rise to the apprehension and the asserted conclusion the judge might not bring an impartial mind to bear upon the issues that are to be decided.

CROWN SUBMISSIONS

15. The Crown made reference to the citation of BP but did not take me to any passages in the judgment demonstrating apprehended bias in that case or in these cases.

16. After some oral debate, Mr Kerr showed what the application was truly about. The Crown takes the view that the sentence I imposed in BP was lenient and they seek my recusal because they are concerned that I will impose lenient sentences on JT and AF. The Crown’s application is none other than blatant judge shopping and brings the administration of justice into disrepute.

17. I note the Crown has not instituted an appeal in the case of BP, who I sentenced on 14 September 2023.

18. Mr Kerr’s submissions in relation to JT were difficult to comprehend. When a co-accused is sentenced, the Crown, as a matter of disclosure, is required to provide those sentencing remarks to a co-accused. The provision of my judgment at the request of the legal representative of JT was simply that. Mr Kerr, with great repetition, wished to connect the provision of the judgment with the email chain regarding AF. The submission failed to advance any logical connection to the feared deviation from deciding the sentence on its merits for JT.

19. In relation to AF, a number of emails were identified. Those emails demonstrate case management on my part dealing with a panel or alternatively bringing a trial forward. The provision of the sentencing remarks which the Crown was obligated to do may have led Mr Valentin to consider AF’s position. There is nothing unusual about that. In Johnson v Johnson, the High Court made the observation that modern judges respond to a need for active case management. Long gone are the days of judges sitting like a sphinx.

THE POSITION OF JT

20. Mr Davies, who appeared on JT’s behalf, opposed the Crown application. He wished the sentence to proceed. He referred me to Ebner and Johnson v Johnson. He said that my conduct was no more than case management. He said that Mr Kerr’s submissions were entirely speculative.

THE POSITION OF AF

21. Mr Valentin submits that the emails were nothing more than a regional judge engaging in case management. He submits the emails would not lead a judge to decide a case other than on its legal and factual merits. He submits the Crown has been unable to articulate a logical connection between the emails and a feared deviation from the course of deciding the sentence on its merits. His submissions are sensible submissions.

DETERMINATION

22. In the present case, the Crown relies upon prejudgment for the apprehension of bias. What must be firmly established is a reasonable fear on the part of the bystander that the decision maker’s mind is prejudiced in favour of a conclusion already framed so that he or she will not alter that conclusion irrespective of the evidence or the arguments presented: Gaudie v Local Court of New South Wales [NSW] 2013 NSWSC 1425 at [82] (Johnson J).

23. No application was made for my recusal by the Crown when they filed over an Indictment on 11 December 2023 to which AF pleaded guilty to, nor was any application made before 19 December 2023, the date of the director’s complaint to the Judicial Commission about my conduct in the matter of AF.

24. The director refers to “the recusal application was made on the basis...” It reads that an application was made prior to 19 December 2023. No such application was made. The application was not made until the sentence hearing of today, 13 February 2024.

THE JT APPLICATION

25. JT’s solicitor requested my sentencing remarks in the matter of BP. The Crown were obliged to provide them to JT, even if they had not been requested as a matter of disclosure. The provision of the judgment of BP is the provision of the sentencing remarks. Each sentence must be decided upon its merits. I have said nothing about the potential sentence for JT. I fail to understand the Crown’s argument that the provision of my sentencing remarks by the Court to JT’s solicitor, as requested by him, could lead a fair-minded lay observer to might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide, namely what an appropriate sentence is.

26. The director’s argument as it currently stands means that every judge dealing with co-offenders once having sentenced one must recuse themselves from sentencing the other, or others. Such a submission is illogical and lacks merit.

27. I have sentenced BP; I have not expressed any views about a sentence for JT.

28. There is a need to observe the parity principle and treat like cases alike and different cases differently: Green v The Queen (2011) 244 CLR 462.

29. No materials have been tendered on the sentence of JT for my consideration. The matter is a blank canvas. I do not consider that a fair‑minded lay observer might reasonably apprehend that my sentence in BP indicates a conclusion already framed in JT or AF. I refuse the application.

THE AF APPLICATION

30. Mr Valentin who appears for AF opposes the Crown application on behalf of AF. The affidavit of Mr Lawrence in support of the notice of motion sets out a chronology of events. It is the same affidavit in the director’s application for JT which I have refused. It does not contain any submissions as to why I should recuse myself other than asserted “apprehended bias”.

31. The Crown, as a duty of disclosure, were obligated to provide my judgment in BP to the legal representatives of AF. No materials have yet to be tendered in the sentence hearing of AF. It is a blank canvas.

32. It is incumbent upon the Crown to identify what it is said might lead a judge to decide a case other than on its legal and factual merits. The Crown points to emails sent under my direction by my associate to the legal representatives of AF.

33. As I have previously said, I wanted to know what to do with the jury panel and if the matter resolved to bring a trial from 2024 to 11 December 2023. Negotiations took place between the Crown and AF’s representatives. A fresh Indictment was filed over, and AF pleaded guilty. I have said nothing about the negotiations between the Crown and Defence. Both parties determined to resolve the trial and the matter to proceed as a sentence.

34. All I know of the case of AF is that his Indictment is different to the Indictment that BP pleaded guilty to. I know no more.

35. The publication of the sentencing remarks and their provision to the representatives of AF cannot be said to lead a judge to decide the sentence of AF other than on its legal and factual merits. The provision of the sentencing remarks and further emails was a regional judge engaging in case management.

36. Secondly, the Crown has been unable to identify what it is said might lead the judge to decide a case other than on its legal and factual merits and articulate the logical connection between the matter and the feared deviation from the course of deciding the sentence on its merits.

37. During the course of oral submissions, it became apparent as to what the real motive of the Crown was in bringing the applications. Mr Kerr said that the sentence I imposed in BP was lenient, and the Crown was concerned that I would impose lenient sentences on JT and AF.

38. The Director’s application is misconceived and without merit. Never in my 35 years in the law have I seen such a blatant attempt to judge shop. I refuse the application to recuse myself.

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Decision last updated: 21 February 2024