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R v Kamleh

R v Kamleh

Case [2003] SASC 269 14 August 2003

Appeal

Apprehension of Bias

Admissibility of Evidence

Confession

Common Purpose

Miscarriage of Justice

Criminal Law

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R v KAMLEH
[2003] SASC 269
Court of Criminal Appeal: Debelle, Nyland and Lander JJ

DEBELLE J I have had the advantage of reading the draft reasons of Lander J. I agree with his reasons. I agree that the appeal should be dismissed.
I add the following remarks.
No Reason for Disqualification
When Mrs Shaw QC applied for an order that Lander J be disqualified from hearing and determining this appeal, I expressed the view that I did not think there was any ground on which His Honour should be disqualified. I gave some very brief reasons for that decision. The following are more detailed reasons for that conclusion.
The gravamen of the application was that Lander J would not, by reason of his participation in Mr Zappia’s appeal, bring an impartial mind to the issues on this appeal.
The application was grounded on an apprehension of bias not on actual bias. Mrs Shaw submitted that an objective person who had read the reasons of the Court of Criminal Appeal in the appeal by Mr Zappia and noted the findings of fact might consider that Lander J might not bring an objective mind to bear on the consideration of quite separate evidence which, the appellant contended, led to findings contrary to those made by the Court of Criminal Appeal.
The relevant principles are well established. The test for determining whether a judge is disqualified by reason of the appearance of bias is the same whether the perception is of prejudgment, interest, association or extraneous information: Webb v The Queen (1994) 181 CLR 41 at 74; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [24]. The test 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: Johnson v Johnson (2000) 201 CLR 488 at [12]; Ebner v Official Trustee (supra) at [6].
As the majority noted in Johnson v Johnson (supra) at [12], the principle is based upon the need for public confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that a court or tribunal has prejudged the case, they cannot have confidence in the decision: The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263.
The qualities of the fair-minded bystander were noted in Johnson v Johnson (supra) at [12] and [13]:
“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’.

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 Kamleh

Details

AGLC: R v Kamleh [2003] SASC 269
Case: [2003] SASC 269
Decision Date: 14 August 2003

CaseChat Overview and Summary

In the case of R v Kamleh, the appellant was convicted of two counts of murder following a trial by judge alone. The Court of Criminal Appeal, consisting of Debelle, Nyland, and Lander JJ, dismissed the appeal against conviction. The court considered several issues, including the admissibility of certain conversations between the co-accused, Mr Zappia, and a witness, Mr Simoniuk, as well as the application of the proviso under s 353(1) of the Criminal Law Consolidation Act 1935.

The court found that the trial judge was correct in admitting the evidence of Mr Loader, who testified about a confession made by the appellant regarding the murders. The court also found that the conversations between Mr Zappia and Mr Simoniuk were admissible under the co-conspirator's rule, except for the conversations on 8 and 9 July. The court concluded that the wrongful admission of these latter conversations did not result in a miscarriage of justice, as the case against the appellant was strong.

Finally, the court found that the proviso under s 353(1) of the Criminal Law Consolidation Act 1935 could be applied in a trial by judge alone. The court held that, given the strength of the evidence against the appellant, the wrongful admission of the conversations on 8 and 9 July did not result in a miscarriage of justice. Therefore, the appeal was dismissed.

Orders