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 2016DIVISION:
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 madeORDER:
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 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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