R v Kay; Ex parte

Case [2016] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kay; Ex parte Attorney-General (Qld) [2016] QCA 269

PARTIES:

R
v
KAY, Reginald James
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 241 of 2016
DC No 109 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

District Court at Ipswich – Unreported, 5 September 2016

DELIVERED ON:

25 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2016

JUDGES:

Fraser and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The question raised by the amended reference be answered “not in every such case”.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – MISCELLANEOUS MATTERS – QUEENSLAND – CASE STATED AND REFERENCE OF QUESTION OF LAW – where the respondent is to be tried on one count of serious animal cruelty in the District Court – where pursuant to s 590AA Criminal Code (Qld) a judge of that court ruled certain evidence was admissible in the respondent’s trial – where in a separate s 590AA application in a similar trial, another judge of that court ruled similar evidence was inadmissible, excluded other evidence, and accepted defence counsel’s no case submission over the prosecutor’s objection – where, when it became apparent that the second judge would then preside over the trial of the respondent, the prosecutor applied for the judge recuse himself on the basis of apprehended bias because of his rulings in the other application – where the judge made a ruling and direction that he would try the matter the following day but provided no reasons for dismissing the prosecutor’s application – where the Attorney-General refers to the Court of Appeal under s 668A Criminal Code (Qld) for its consideration and opinion the question of whether a judge must give sufficient reasons for refusing an application to recuse himself or herself – where the respondent contends that the reference is invalid – whether the judge’s ruling was a ruling or direction “as to the conduct of the trial” – whether the reference is of a question of law of “general application and importance” – whether a judge, when refusing to recuse himself or herself, must give reasons for refusing the application that are sufficient for a fair-minded lay observer to appreciate why that observer could not reasonably apprehend that the judge may not bring an impartial mind to the performance of his or her duties

Criminal Code (Qld), s 590AA, s 590AA(1), s 668A, s 669A

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited
Commissioner of Police v Stehbens [2013] QCA 81, cited
Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462; [1995] QCA 187, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered
Hatfield v Health Insurance Commission (1987) 15 FCR 487; [1987] FCA…

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AGLC
R v Kay; Ex parte [2016] QCA 269
Case
[2016] QCA 269
Decision Date

CaseChat Overview and Summary

The matter in R v Kay involved the respondent facing a trial for serious animal cruelty in the Queensland District Court. A significant point of contention arose when a judge initially ruled that certain evidence was admissible, only for a different judge to rule it inadmissible in a similar case. This led to a situation where the judge who had ruled the evidence inadmissible was to preside over the respondent's trial, prompting the prosecutor to apply for the judge's recusal due to apprehended bias. The judge dismissed the recusal application without providing reasons, leading to a referral by the Attorney-General to the Court of Appeal under section 668A of the Criminal Code (Qld). The central legal question was whether the judge was required to give sufficient reasons for refusing the recusal application.

The primary issues before the Court of Appeal were threefold. Firstly, whether the judge's ruling and direction to proceed with the trial constituted a ruling "as to the conduct of the trial" within the meaning of section 590AA of the Criminal Code (Qld). Secondly, whether the question referred was one of law of "general application and importance." Lastly, the Court had to determine whether a judge must provide reasons for refusing a recusal application that are sufficient for a fair-minded lay observer to understand why the judge could not reasonably be apprehended to be biased.

The Court of Appeal held that not every refusal to recuse must be accompanied by reasons sufficient for a fair-minded lay observer. The Court found that the judge's ruling and direction were not a ruling "as to the conduct of the trial" within the meaning of section 590AA, and thus did not fall within the scope of the section. The Court also found that the question referred did not pertain to a matter of law of general application and importance. Consequently, the Court answered the question raised by the amended reference as "not in every such case."

The Court's decision was definitive in clarifying the circumstances under which a judge must provide reasons for refusing a recusal application. The Court's ruling provided a clear guideline for future cases, ensuring that the requirements for recusal applications are appropriately balanced with the need for judicial efficiency and procedural fairness.

Orders

Orders of the court

The question raised by the amended reference be answered “not in every such case”.

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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