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

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.
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.
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JT; R v AF

Details

AGLC: R v JT; R v AF [2024] NSWDC 27
Case: [2024] NSWDC 27
Decision Date: 13 February 2024

CaseChat Overview and Summary

The case of R v JT and R v AF involved two separate criminal trials before the Supreme Court of Victoria. The applicants, JT and AF, sought recusal of the trial judge on the basis of apprehended bias. The primary concern was that the judge had previously made comments that could be perceived as prejudicial to the applicants. This led to the applicants arguing that the judge could not fairly and impartially preside over their trials.

The legal issues before the court centred on whether the comments made by the judge were so serious that they would lead a fair-minded lay observer to conclude that the judge might be biased. The court had to apply the two-step process outlined in Porter v Magill, which involves first determining if the judge’s comments suggest a real possibility of bias, and if so, whether that bias is such that it would lead a fair-minded lay observer to conclude that the judge could not be impartial. Additionally, the court had to consider whether the applicants were engaging in judge shopping, a practice that courts view unfavourably.

The court found that the comments made by the judge were not of a nature that would lead a fair-minded lay observer to apprehend bias. The judge's remarks were not directed at the applicants or their cases and did not indicate any predisposition or partiality. Furthermore, the court held that the applicants were not engaging in judge shopping as they had not previously sought the recusal of the judge in any other cases. The application for recusal was therefore refused, and the trials proceeded as scheduled.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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)