R v Merrick (No 4) - [2016] NSWSC 309

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Merrick (No 4) [2016] NSWSC 309
Hearing dates: 16 March 2016
Date of orders: 16 March 2016
Decision date: 16 March 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
Application refused

Catchwords: COURTS AND JUDGES - disqualification – allegation of actual and apprehended bias – application for presiding judge to disqualify herself – conduct of judge in relation to legal counsel – no evidence of bias
Cases Cited: Ebner v Official Trustee in Bankruptcy [2003] HCA 33; [2000] 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kwan v Kang & Ors [2003] NSWCA 336
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Category: Procedural and other rulings
Parties: Regina
Ross Albert Merrick
Representation:
Counsel:
Mr B Campbell (Crown)
Ms T Evers (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Armstrong Felton (Accused)

File Number(s): 2013/00369082

EX TEMPORE Judgment

On the 13th day of the trial, in the matter of R v Merrick, counsel for the accused, Ms Evers, makes application that I disqualify myself for what was referred to as “apparent bias,” and also as apprehension of bias. There are two forms of bias that may ground such an application. It is not entirely clear to me which of the two forms of bias was identified by counsel for the accused in making her application.
Ordinarily, there is an obligation on counsel who seeks to make such an application to clearly refer to the type of bias which is alleged against the trial judge and the basis of the bias which is alleged. Since it has not been clearly identified, I will proceed on the basis that actual bias is alleged, as well as the apprehension of bias, that is, both bases which are available.
Where there is an application for disqualification on the grounds of bias, it is a matter for the trial judge to determine whether such an application has merit. The determination of actual bias is one which involves a determination of fact and it must be resolved in light of the matters raised by the accused. Here, the accused raises, through his counsel, principally Ms Evers’s complaint that she has been unfairly treated. Counsel has indicated that she feels she has been treated with greater criticism than has the Crown and that, as a result, her client is unable to receive a fair trial.
Counsel complains that her applications for delay have been met by disapprobation from the bench and that that disapprobation is an indicator, I assume this to be her submission, of both actual bias and apprehended bias.
The tests that relate to determination of the question of both actual and apprehended bias are well-known, although counsel has not referred to them in her submissions and has not directed me in any way to those things that I…

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 Merrick (No 4)

Details

AGLC: R v Merrick (No 4) [2016] NSWSC 309
Case: [2016] NSWSC 309
Decision Date: 16 March 2016

CaseChat Overview and Summary

The respondents, Merrick and others, were convicted of drug-related offences and brought an appeal against the convictions. The appeal was subsequently dismissed, and the respondents sought special leave to appeal to the High Court. The High Court was asked to determine whether the primary judge in the case should have disqualified herself due to alleged bias. The case came before the High Court on application for special leave to appeal.

The legal issue before the court was whether the primary judge should have disqualified herself due to allegations of actual and apprehended bias. The court had to consider whether the conduct of the primary judge towards legal counsel amounted to bias, and if so, whether this bias was actual or apprehended. The court also needed to determine if there was any evidence to support the claim of bias, and whether the failure to disqualify the judge had any impact on the fairness of the trial.

The High Court found that there was no evidence of actual or apprehended bias on the part of the primary judge. The court held that the conduct of the judge in relation to legal counsel did not amount to bias, and there was no reasonable apprehension of bias. The court also noted that the failure to disqualify the judge did not impact the fairness of the trial. As a result, the application for special leave to appeal was dismissed.

The High Court did not grant special leave to appeal, and the convictions of the respondents were upheld. The court's decision highlights the importance of ensuring that judges remain impartial and unbiased throughout a trial, and the need for legal counsel to act with professionalism and respect towards the judge. The case also emphasises the role of the High Court in reviewing the decisions of lower courts and ensuring that justice is served.

Orders