R v Papadopoulos - [2010] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PAPADOPOULOS
[2010] SASCFC 30
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
8 September 2010
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence – appellant convicted of trafficking offence after trial by jury in District Court – trial Judge sentenced appellant – trial Judge previously presided over Liquor Licensing Court matter involving appellant – whether Judge should have disqualified himself on the ground of apprehended bias – whether Judge should have disclosed his involvement in Liquor Licensing matter – whether sentence manifestly excessive.
HELD: (Duggan and David JJ) (Sulan J dissenting) appeals dismissed – the Judge did not make inferences adverse to appellant in Liquor Licensing matter, other than membership in motorcycle gang – no basis for holding that a reasonable apprehension of bias arose in relation to the Judge presiding over the subsequent trial – Judge did not acquire information in course of Licensing Court hearing capable of giving rise to apprehended bias relevant to Judge's role in subsequent trial – miscarriage of justice did not result – sentence and non-parole period within appropriate range.
Liquor Licensing Act 1997 (SA) s 21, s 125, s 128; Controlled Substances Act 1984 (SA) s 32(3); Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Appeal Act 1912 (NSW) s 6(1), referred to.
Review of Barrings HQ (Newmarket Hotel) [2007] SALC 11; Johnson v Johnson (2000) 201 CLR 488; R v Kearns [2003] NSWCCA 367; R v Balic (No 2) (1994) 75 A Crim R 515; Webb v The Queen (1993 - 1994) 181 CLR 41; Ebner v Official Trustee (2000) 205 CLR 337; Vakauta v Kelly (1989) 167 CLR 568; Cesan v The Queen (2008) 236 CLR 358; Wilson v Wilson (1967) 69 SR (NSW) 23; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23, considered.

R v PAPADOPOULOS
[2010] SASCFC 30
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J: A jury convicted the appellant of trafficking in methylamphetamine following a trial in the District Court. The District Court Judge who presided over the trial sentenced the appellant to five years’ imprisonment cumulative upon an existing sentence. The trial Judge had previously presided over a Liquor Licensing Court matter involving the appellant. The matter was a review of an order barring the appellant from licensed premises on the basis that he was a member of “an outlaw motorcycle gang”. The appellant now appeals against conviction and sentence on the trafficking charge. The principal issue in the appeal is whether the trial Judge should have disqualified himself from presiding at the trial on the ground of apprehended bias. A related question is whether the Judge should have disclosed his involvement in the licensing matter to the prosecution and defence before embarking on the trial. The appeal against sentence also complains that the sentence imposed by the trial Judge is manifestly excessive.
The history of both sets of proceedings is set out in the reasons prepared by Sulan J. It is unnecessary to repeat the circumstances surrounding the trial. However, for the purposes of these reasons, it is appropriate to comment on the nature of the Licensing Court proceedings.
Section 125 of the Liquor Licensing Act 1997 (SA) (“the Act”) provides that a licensee of premises licensed under the Act may serve an order on a person barring that person from entering or remaining on the licensed premises for a specified time.
On 21 October 2006 the appellant and two other men were served with a barring order by the licensee of the Newmarket Hotel. The reason for the barring was stated in each order as follows:
the person is a known member or associate of an outlaw motorcycle gang and having regard to past behaviour and problems experienced at these and/or other licensed premises, it is a reasonable apprehension of management that a danger to patrons and staff is likely to result by allowing entry into the licensed premises.
It was common ground that the three men were properly attired and they were not behaving in a disorderly manner. There was no reason given for the order other than they were members of “an outlaw motorcycle gang”.
Section 128 of the Act provides for a review of such orders. Ordinarily the applications for review in this case would have been dealt with by the Liquor and Gambling Commissioner (“the Commissioner”), but the Commissioner referred the review for hearing by the Licensing Court pursuant to s 21 of the Act, which permits a referral on various grounds including a case in which the proceedings involve questions of substantial importance. The basis of the referral in this case was to determine whether:
membership of “an outlaw motorcycle gang” is capable of constituting a reasonable ground for barring of a person from licensed premises.
In order to determine whether the ground of apprehended bias is made out it is necessary to have regard to the findings of the Judge on the review.
His Honour considered the reason for the barring order in the following passage:[1]
However, in my view, the reason for the barring order was not membership, simpliciter, of the Hell’s Angels Motorcycle Club. Membership was the first step which was then linked “...to past behaviour and problems experienced at these and/or other licensed premises...” such that there “...is a reasonable apprehension of management that a danger to patrons and staff is likely to result by allowing entry into the licensed premises.” It is necessarily implicit in that reason that the past behaviour and problems have been caused by members or associates of the “outlaw motorcycle gang”.
It is clear from the stated reason that management was concerned about the danger arising from the past behaviour or conduct of members or associates of this club or gang. But what is also clear is that, consistently with Mr Rose’s [the licensee] evidence, it is not the conduct or behaviour of these three applicants in particular, previously or on this occasion, that was the reason for the order.
His Honour then posed the question whether the conduct or behaviour must be that of the person against whom the barring order is made. He referred to s 125(1) of the Act which provides as follows:
[1]    Review of Barrings HQ (Newmarket Hotel) [2007] SALC 11 at [64]-[65].
125—Licensee barring orders
(1)A licensee or a responsible person for licensed premises may, by order served on a person, bar the person from entering or remaining on the licensed premises for a specified period, not exceeding any applicable limit fixed by this section—
(aa)   if the licensee or responsible person is satisfied that the welfare of the person, or the welfare of a person residing with the person, is seriously at risk as a result of the consumption of alcohol by the person; or
(a)     if the person commits an offence, or behaves in an offensive or disorderly manner, on, or in an area adjacent to, the licensed premises; or
(b)     on any other reasonable ground.
The Judge directed his attention to subsection (1)(b) and held that “any other reasonable ground” included the conduct or behaviour of others and did not have to be the conduct of the person barred.
The Judge concluded that the licensee had reasonable grounds to issue the order because members of outlaw motorcycle groups had caused trouble by their conduct in the past. He found that the licensee was motivated by concern for the danger which might result to patrons and staff of the hotel.
The Judge said there was a further basis upon which he would confirm the orders:[2]
For this purpose, quite apart from all the matters referred to by Senior Sergeant Williamson and Senior Constable Bourke, I have admitted and examined the antecedents of the three applicants.
The applicant Papadopoulos has little by way of antecedents and may have an outstanding charge relating to the events at the Royal Pines Resort, Queensland, in March, 2006.
The applicant Oukar (sometimes spelt Aoukar) also has little by way of antecedents. I note he appears to have outstanding charges of robbery and blackmail.
The applicant Nicolitsi has little by way of antecedents and he also has outstanding charges of robbery and blackmail. It appears to be the same matter upon which the applicant Oukar is charged.
That material would not be sufficient to justify the order. However, the antecedents of many of the other members of the Hell’s Angels, in conjunction with the evidence of Mr Rose, Senior Sergeant Williamson and Senior Constable Bourke, are sufficient to justify confirmation of the order. The Hell’s Angels and other such groups or gangs not only justify their reputation but police investigations show they have a culture of random and gratuitous acts of violence, are associated with prostitution, protection and intimidation, and are associated with the manufacture, sale, supply and distribution of illicit drugs both generally and in licensed premises. These matters alone justify the orders and their confirmation.
(Emphasis added)
As I understand these remarks, the Judge was not basing his decision on anything which the applicants had done, but rather on the antecedents of other members of outlaw motorcycle gangs and the general reputation of those gangs.
[2] Review of Barrings HQ (Newmarket Hotel) [2007] SALC 11 at [79]-[83].
It would appear from the Judge’s reasons that he did not make any inference adverse to the appellant other than to observe that he was a member of an organisation which had a bad reputation. Although he made a comment about the appellant’s antecedents, he appears to have treated them as not amounting to very much.
If this analysis is correct, it is my view that there is no basis for holding that a reasonable apprehension of bias arose such as would have prevented the Judge from presiding over the criminal trial by reason of the actual decision which he made in the Licensing Court matter.
The next question is whether the Judge acquired information in the course of the Licensing Court hearing which gave rise to a reasonable apprehension of bias relevant to his role as the trial Judge at the subsequent trial. In the course of the Licensing Court hearing the Judge was given information relating to the previous convictions of the appellant and there was also evidence that the appellant may have been involved in the other incidents referred to by the police officers in their evidence. I have already referred to the Judge’s comment about the limited extent of the appellant’s police record. He was told of the appellant’s possible involvement in other matters but he considered that all of this material would not be sufficient to justify an order barring the appellant from the licensed premises. The main component of the Judge’s reasoning related to the reputation and activities of the Hells Angels Motorcycle Gang and other similar groups. Nevertheless, I do not think that this added information was sufficient to establish a reasonable apprehension of bias of such a nature as to disqualify the Judge from presiding over the trial in the present proceedings.
There are some general considerations which are relevant in this respect. Some recognition must be given to the experience which judges have in not allowing knowledge of this nature to influence their decision making. This is a requirement which arises frequently when matters adverse to a person’s character are made known in the course of interlocutory procedures such as bail applications or when a judge is asked to rule on the admission of evidence.
The test to be applied in determining whether a judge is disqualified on the ground of apprehended bias is set out in the judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson:[3]
It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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[4].
That test has been adopted, in preference to a differently expressed test that has been applied in England[5], for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done[6]. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”[7]. 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”[8].
[3] (2000) 201 CLR 488 at [11]-[12].
[4]    eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.
[5]    cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.
[6]    cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ.
[7]    R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, per Barwick CJ, Gibbs, Stephen and Mason JJ.
[8]    Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-585, per Toohey J.
In R v Kearns,[9] a District Court Judge presided over the trial of the appellant in a corporate fraud matter. The Judge had previously presided over the trial of a man named Parkes who had been charged with fraudulent conduct in relation to a company over which the appellant had effective control. It was the prosecution case that the appellant and Parkes had acted independently of one another in relation to the respective offences with which they were charged. However, the role and activities of the appellant arose frequently during the trial of Parkes and the appellant was referred to on 61 occasions during the summing up.
[9] [2003] NSWCCA 367.
The appellant contended that the trial Judge’s involvement in his trial gave rise to a reasonable apprehension of bias by reason of the association with the trial of Parkes in that the Judge had heard uncontested allegations made against the appellant at the trial of Parkes.
In Kearns Spigelman CJ (Dunford and Hidden JJ concurring) referred to the earlier New South Wales Court of Appeal decision in R v Balic (No 2)[10] where it was pointed out that, when considering whether a judge was disqualified from presiding in a jury trial, it was relevant to take into account the fact that the Judge may be required to decide on the admissibility of evidence and may also influence, in subtle ways, the attitude of a jury.
[10] (1994) 75 A Crim R 515 at 520.
However Spigelman CJ pointed out that, although the consideration that the trial Judge’s role is limited is not determinative of the issue of apprehended bias, it is nevertheless of significance. His Honour continued:[11]
As I have indicated, in a jury trial the matters which a judge is required to decide include the admissibility of evidence and also the formulation of a summing up. If there is a conviction, he or she must sentence the person so convicted. These are more limited matters than those which arise in the course of a judge-alone trial. Specifically, however, they do not include the determination of issues of credit.
Nevertheless, decisions to admit or reject the evidence and the other subtle and indirect influences which were referred to in Balic (No 2), may affect the course of a criminal trial. In a complex trial involving financial questions that will need to be carefully explained to a jury, it is an advantage for a trial judge to have a familiarity with the corporate group of the character that Judge Dodd had on these occasions, even though the particular offending was quite distinct in the case of the Parkes prosecution from the prosecution of the Appellant.
I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge’s mind, in terms of his or her conduct in the second trial.
These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.
This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair‑minded, independent lay observer.
The appeal against conviction on this ground was rejected.
[11] [2003] NSWCCA 367 at [36]-[40].
In my view the “hypothetical fair-minded and informed lay observer” referred to by Deane J in Webb v The Queen[12] is also entitled to have regard to the fact that the experience and training of judges is such as to enable them to put out of their minds information about parties which they have gleaned in a general way through their work in the Courts.
[12] (1993-1994) 181 CLR 41.
The history of the present matter illustrates this point. Perhaps the most serious allegation which was made about the appellant’s own conduct during the Licensing Court hearing was the assault of the security officer on 13 January 2007 and the threat which was made to him subsequently.
By the time of the trial in this matter the appellant had pleaded guilty to offences arising out of this incident and had been sentenced. There had also been an appeal against the sentence to a single Judge and a further appeal to the Full Court. The fact that the appellant was a member of the Hells Angels Motorcycle Club was referred to in both judgments. The judgments were published and circulated. The reasons of the Judge in the Licensing Court matter summarising the evidence of the police officers who gave evidence before him had also been published and were available online within a short time of their delivery.

As a consequence, the information acquired by the trial Judge was in the public domain by the time of the trial and was easily accessible by any judge rostered to preside over the trial. In my view the acquisition of information derived from a reading of the material which was in the public domain could not constitute a ground for disqualification from presiding at the criminal trial and I do not think a different conclusion is required by reason of the fact that the Judge in this case acquired the information through his role as the Judge who sat on the previous matter. It would be different, of course, if the nature of the decision made by the Judge in the Licensing Court matter had given rise to an apprehension of bias. However, I have attempted to explain my view that this was not the case.
In my opinion it would have been appropriate for the Judge to refer to his role in the previous matter. It is usual for judges to exercise abundant caution in such circumstances. In his report to this Court the Judge said he assumes he did not do so because the appellant knew of his involvement. We were advised that counsel for the appellant at the trial was unaware of the Judge’s role in the Licensing Court matter and the appellant did not realise that the Judge had been involved in that matter.
I agree with Sulan J’s view that the appellant did not waive his right to object to the Judge presiding over the trial. However, for the reasons I have given I do not think that a miscarriage of justice resulted from the events as they occurred.
The appeal against sentence
The police searched the appellant’s house after he was arrested on a charge of blackmail and found a parcel of methylamphetamine. It was of high purity. The drug weighed 5.88 grams and contained 4 grams of pure methylamphetamine. The appellant was sentenced on the basis that some of the drug was for personal use, but the vast majority was intended for sale.
At the time of sentencing the appellant was serving a sentence of imprisonment for three years and three months with a non-parole period of 18 months. The trial Judge imposed a sentence of imprisonment for five years cumulative upon the sentence the appellant was then serving. This resulted in a head sentence of imprisonment for eight years and three months. The non‑parole period was reviewed and a non-parole period of four years and six months was fixed.
Counsel for the appellant submitted that the trial Judge should not have sentenced the appellant on the basis that there was a commercial element in the offending.
The appellant agreed that he was in possession of the drug, but claimed that it had been left at his premises by a guest. He said that he put it in a drawer for safekeeping. In view of the quantity of the drug, the onus was on the appellant to prove that he was in possession of the drug for a purpose other than sale. It is apparent from the verdict of the jury that he did not discharge that onus.
According to the evidence, the drug mixture was capable of being cut and divided into approximately 800 street deals with a potential value of $80,000. Glucodin, a cutting agent, was found on the premises as were a number of plastic bags suitable for packaging drugs for sale.
In my view the evidence was sufficient to support the trial Judge’s finding that the appellant intended to sell most of the drug.
The appellant has previous convictions for assault and blackmail. In my opinion the sentence and non-parole period imposed by the trial Judge were within the range appropriate for an offence of this nature.
It was also submitted on behalf of the appellant that the finding by the trial Judge that the majority of the drug in the appellant’s possession was intended to be sold indicates that the trial Judge is likely to have had regard to the information of which he became aware when presiding over the Licensing Court hearing that the appellant was a member of the Hells Angels Motorcycle Club.
In his sentencing remarks the trial Judge did not link the appellant’s membership of the motorcycle club to his finding in relation to the purpose for possessing the drug. The only reference to this aspect was the following comment by the Judge in his sentencing remarks:
Obviously you are not to be punished for your membership of the Hells Angels Motorcycle Club. It is not an illegal organisation. However, your admitted lifestyle and continued membership of that club may lead you to associate with undesirable elements.
Furthermore the knowledge that the appellant was a member of the motorcycle club would have become known to the trial Judge prior to sentencing the appellant even if he had not acquired that knowledge during the Licensing Court hearing. By the time of sentencing the trial Judge had read the sentencing remarks in the blackmail matter and a Full Court decision on an appeal by the appellant against sentence on an assault charge. Both referred to the appellant’s membership of the Hells Angels Motorcycle Club. The circumstances of the previous offences were relevant to the sentence which the Judge had to impose, although membership of the motorcycle club had little or nothing to do with the sentencing process.
In my view the sentence is not manifestly excessive and the circumstances of the trial Judge’s involvement in the sentencing do not give rise to any apprehension of bias relevant to this stage of the proceedings.
I would dismiss the appeals against conviction and sentence.
SULAN J: The appellant was convicted in the District Court of trafficking in methylamphetamine. He was sentenced to five years’ imprisonment, to be served cumulatively upon a sentence of three years and three months’ imprisonment which the appellant was then serving. The Judge set a non-parole period of four years and six months’ imprisonment, the sentence and the non-parole period to commence on 26 June 2009.
The appellant appeals both the conviction and the sentence. Both appeals raise the question of apprehended bias and the failure of the trial Judge to disclose to the appellant and his advisers that he had been the Judge in an application by the appellant in the Licensing Court for a review of an order which barred the appellant from attending certain licensed premises.
In the Licensing Court proceedings, the Judge had been provided with information about the appellant, including details of associates of the appellant and their membership of the Hells Angels Motorcycle Club. The Judge made critical observations about the appellant and his associates. The appellant contends that there was a miscarriage of justice, as he was deprived of the opportunity to apply to the Judge to disqualify himself on the grounds of apprehended bias.
As to the sentence, the appellant relies upon the ground of appeal against conviction and the additional ground that, in all the circumstances, the sentence is manifestly excessive.
The trial
The appellant was charged with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The particulars of the offence were that, on 27 May 2008 at Renown Park, he trafficked in a controlled drug, namely, methylamphetamine.
The prosecution case was that, on 27 May 2008, a number of police officers attended at the appellant’s home at Renown Park. The appellant lived in a flat at the back of the house, in which his parents reside. The appellant was not at home when the police searched the flat. In a drawer of a dressing table, they seized a container in which there was four grams of methylamphetamine. They also found a small, pressed sealed bag in a refrigerator. The bag was analysed and revealed traces of methylamphetamine inside. They located a DVD case which disclosed traces of methylamphetamine. The police located another bag which contained glucose. The methylamphetamine was of high quality and capable of being diluted into smaller amounts. It was the prosecution case that methylamphetamine was commonly mixed with glucose for sale.
The facts are largely undisputed. The issue in the case was whether the appellant had the drugs in his possession for trafficking. The quantity of methylamphetamine seized at the appellant’s premises exceeded the amount prescribed, with the consequence that the appellant was presumed to have the drug in his possession for the purpose of trafficking. The appellant was required to prove, on the balance of probabilities, that he did not possess the drugs for the purpose of sale.
The appellant gave evidence that he regularly entertained his friends at his home. It was customary for his friends to bring alcohol and different drugs which were then available for anyone who wished to consume them. The appellant said he hosted a party some two days before the police raided his home. He claimed that the drugs were left by someone who had attended the party. This was not an unusual occurrence. He was asked to name the people who might have left the drugs, or who were at the party. He refused to do so, for the reason that he did not wish to “dob” on his friends.
The Judge was aware from the Licensing Court proceedings that many of the appellant’s associates were members of the Hells Angels Motorcycle Club.
The prosecution case was that the appellant made up the story about the party. The Judge would have realized why the appellant was reluctant to name his associates.
The appellant complains that, unknown to him or his legal counsel, the Judge had presided over a contested application in the Licensing Court in which the appellant had applied for the discharge of a barring order which prohibited the appellant and other associates from entering the Newmarket Hotel.
The Licensing Court proceedings
The appellant, and two other applicants, were subject to an order barring them from entering licensed premises known as the Newmarket Hotel. Each sought a review of the order which was referred to the Licensing Court. The same counsel who appeared for the Liquor and Gaming Committee also prosecuted at the appellant’s trial.
The reason given for the barring order was that the appellant is a known member, or associate, of an outlaw motorcycle gang. The order was in the following terms:
The person is a known member or associate of an outlaw motorcycle gang and having regard to past behaviour and problems experienced at these and/or other licensed premises, it is a reasonable apprehension of management that a danger to patrons and staff is likely to result by allowing entry into the licensed premises. (Underlining is mine)
The appellant acknowledged that he was a member of the Hells Angels Motorcycle Club. It was not in dispute that, on 21 October 2006, he and the other applicants attended at the Newmarket Hotel, at which time they were denied entry and served with the barring order. When the appellant and his associates sought entry to the hotel, they were properly attired and were not behaving in a manner which would have otherwise justified the proprietor in refusing or barring them from entry. The barring order was obeyed by the appellant. There was evidence that further orders would be issued in the future because the proprietor of the hotel considered that entry into the premises by members of motorcycle gangs was an ongoing problem.
The Commissioner of Police intervened in the proceedings in the Licensing Court. The first witness was Senior Sergeant Williamson, who is an experienced police officer who, for a number of years, was a member of a squad investigating the activities of motorcycle gang members. Sergeant Williamson gave evidence about the Hells Angel Motorcycle Club. He listed the various illegal activities in which members of that club were involved.
The antecedents of 49 members of the club, including the applicant’s antecedents, were tendered. It was alleged that those antecedents demonstrated that some members of the club were of notoriously bad character.
Senior Constable Burke gave evidence that he had been involved in investigating associates of the three applicants for drugs and firearms offences. Constable Burke gave evidence that, on 2 July 2006 in the early hours of the morning, police attended a nightclub at North Terrace where there had been a disturbance involving Hells Angels Motorcycle Club members and associates. Police ascertained that this group had continuously been causing problems over some weeks. It is not alleged that the appellant was one of that group.
Constable Burke stated that, on 19 July 2006, police were again called to the same premises, after it had been reported that a window had been smashed at the home of one of the owners of the premises. The incident involved a fire bomb, which caused some $50,000 damage. Constable Burke said the arson attack was directly due to the barring of members and associates of the Hells Angels Motorcycle Club from the premises. On 24 July 2006, premises of an associate of the appellant were searched by police. A large number of ecstasy tablets were located. That associate had the telephone number of the appellant stored in his mobile telephone. On 10 September 2006, a group of men demanded entry into a club known as HQ. They were denied access. They then attended at another club at North Terrace, Adelaide. The appellant was one of the group. At those premises, there was a mêlée involving about 30 males. A number of men known to Constable Burke could be seen on the CCTV, which filmed the incident outside the premises. The appellant was not one of those filmed at the mêlée. Some of the participants in the mêlée were wearing clothing which suggested that they supported the Hells Angels. Constable Burke’s statement about the appellant’s participation in that mêlée is as follows:[13]
Although I am unable to identify PAPADOPOULOS being involved in this incident he was located a short distance away and arrested on an outstanding warrant issued by the Queensland Magistrates Court for his alleged involvement in the Royal Pines Kickboxing fight on the 18^th of March 2006. This involved members of the Finks MCG and Hells Angels MCG having a significant fight at a licensed kickboxing tournament where persons were shot, stabbed, assaulted with no concern being displayed for the safety of the patrons at the premises and without any regard to the fact that the event was televised and that two police officers were present at the event. From the television footage obtained and viewed of this incident PAPADOPOULOS can be seen with various South Australian Hells Angels MCG members.
[13] AB 105 [19].
Constable Burke said that when the appellant was arrested, it was observed that he had a large gold ring covering a knuckle on his right hand. The ring was suspected of being the Sergeant at Arms office-bearer’s ring of the Hells Angels North Crew Chapter. The appellant denied any knowledge of the importance of the ring. The Sergeant at Arms of a motorcycle gang is very influential, and the person holding that office is generally in charge of discipline. The appellant had his chest tattooed with insignias consistent with membership of the Hells Angels Motorcycle Club. He denied that he had any position of authority with the Hells Angels. Constable Burke observed that the appellant appeared to be under the influence of drugs.
Constable Burke informed the Court that, in the early hours of the morning of 13 January 2007, at Hindley Street, the appellant was identified on video footage as present when a security officer who refused the appellant entry into premises in Hindley Street was assaulted. After the appellant had been spoken to about the incident, it is alleged that he threatened the victim. The appellant was said to have breached police bail on various occasions.
The Judge reviewed and confirmed the barring orders. The Judge observed that the appellant had little by way of antecedents, and that the material personal to the appellant would not be sufficient to justify the barring order. The Judge was satisfied that members of the Hells Angels Motorcycle Club have a culture of random and gratuitous acts of violence, are associated with prostitution, protection and intimidation, and are associated with the manufacture, sale, supply and distribution of illicit drugs both generally and in licensed premises. He concluded that the appellant’s association with the Hells Angels Motorcycle Club was sufficient to justify the barring order.
The trial
The Judge did not inform counsel for the appellant of his prior knowledge of the appellant. Counsel for the prosecution did not inform the appellant’s counsel of the proceedings in the Licensing Court. The trial proceeded with the Judge and counsel for the prosecution having the information to which I have referred. The Judge’s involvement in the Licensing Court proceedings became known to the appellant’s legal advisors after the appellant had been sentenced. Counsel submits that the appellant was deprived of the opportunity of making an application to the Judge that the Judge should disqualify himself.
The appeal
The Judge provided a report to this Court in which he stated that it did not occur to him, at the time of the trial, to disclose the fact that he had been the Licensing Court Judge and had knowledge of Mr Papadopoulos and his connections. He stated that, at the time of the sentencing submissions, he had re‑read his decision in the Licensing Court case. During sentencing submissions, he made no reference to his knowledge about the appellant, although he did ask whether the appellant was the Sergeant at Arms of the Hells Angels Motorcycle Club. He had read a decision of the Full Court in respect of an appeal by the appellant relating to an assault charge. He had also read another District Court judge’s remarks on sentence in respect of a matter upon which the appellant had been charged and convicted and was serving a sentence.
Counsel for the appellant submits that the trial Judge should have disclosed his knowledge of the appellant to counsel at the trial. In particular, the Judge should have advised counsel that he had received information about the appellant’s character and the character of persons with whom the appellant associated. Counsel submits that, if disclosure had been made, the appellant would have sought to have the trial Judge disqualify himself. Counsel contends that the failure of the Judge to inform counsel and to disqualify himself has resulted in a miscarriage of justice. The conviction should be set aside and the matter remitted for a re‑trial.
The appellant contends that there has been a miscarriage of justice because it is fundamental that the trial be conducted by an independent and impartial tribunal.[14]
[14] Ebner v Official Trustee (2000) 205 CLR 337, 343 [3].
Counsel submits that the governing principle is that:[15]
A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. (Citations omitted)
[15] Ibid 344 [6].
In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ explained the principle, as follows:[16]
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. (Underlining is mine)
[16] Ibid 345 [7] – [8].

Counsel for the appellant submits that the fact that there is no complaint about the Judge’s summing up, is not to the point when the Court considers whether the Judge should have disqualified himself on the grounds of apprehended bias.
In respect of the first step referred to by the majority in Ebner, it is submitted that a fair-minded lay observer might reasonably apprehend that a Judge, who had the knowledge of the Judge in this case, might not bring an impartial mind to the resolution of the question that the Court had to decide. That question was whether the appellant had satisfied the jury on the balance of probabilities that his possession of the methylamphetamine was for personal use of the appellant and his friends.
As to the second step, there is a connection between the knowledge of the Judge and the issues to be determined at trial. Although the ultimate decision in the case is made by the jury, the role of the Judge cannot be separated from the jury. The Judge must be impartial and, if there is a perception of partiality, that is sufficient to result in a miscarriage of justice. Counsel submits that the appeal court should not have regard to the conduct of the trial. The question of apprehended bias is to be considered as if the application had been made in this case at the commencement of the trial.
The Solicitor-General, who appeared for the Crown, submits that the mere assertion of an interest or association is not sufficient. He submits that it must be demonstrated that the Judge’s prior knowledge is, in some way, linked to the possibility that the matter will not be resolved impartially. That raises the question of whether a distinction should be drawn between cases where the judicial officer is the decider of fact, as distinguished from a case in which the judge sits with a jury.
The Solicitor-General accepts that a trial must be presided over by a judge who is impartial and independent and in circumstances which do not give rise to an apprehension of a lack of impartiality or independence. He does not dispute that the principle of apprehended bias, as stated in Ebner applies.
The Solicitor-General makes three submissions in answer to the appellant’s submission on the appeal against conviction. First, he contends that the appellant has failed to satisfy the Court that the appellant has not waived his right to object to the trial proceeding. Secondly, he submits that there is a distinction between the notion of miscarriage of justice and the appearance of miscarriage of justice. In considering whether a miscarriage of justice has occurred, the Court should have regard to whether there was an actual departure in the conduct of the trial from proper standards. He submits that the intersection of s 353(1) of the Criminal Law Consolidation Act 1935 (SA) and the apprehension of bias principle is such that the apprehension of bias principle is to be applied in the knowledge of what has occurred. Thirdly, the Solicitor-General submits that this case is not a case in which the failure of the Judge to disqualify himself on the ground of apprehended bias could have caused the trial to miscarry.
Waiver
Counsel submits that the appellant must satisfy the Court that no waiver has occurred. He referred to the observations of Brennan, Deane and Gaudron JJ in Vakauta v Kelly,[17] that courts operate in the real world of litigation. They observed:[18]
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirements of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.
[17] (1989) 167 CLR 568, 570.
[18] Ibid 572.
Dawson J agreed that a failure by counsel to object and to raise the question of bias or apprehended bias at the time it arises can amount to a waiver. Toohey J said:[19]
There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case.
[19] Ibid 587.
Affidavits of counsel and the solicitor who represented the appellant at trial were tendered on the appeal. They deposed that they were not aware that the trial Judge had been privy to information prejudicial to the appellant. Counsel deposed that, had he known that the trial Judge had become aware of the information about his client which had been received in the Licensing Court proceedings, he would have made an application to the Judge to disqualify himself.
I am satisfied that the appellant’s solicitor and counsel were unaware of the material that had been provided to the Judge in the Licensing Court proceedings. I am satisfied that the appellant did not realise the Judge at his trial had been the Judge who had heard his application in the Licensing Court. I reject the submission that the appellant had failed to establish that he had not waived his right to object to the Judge hearing the trial.
Was there a miscarriage of justice?
In Cesan v The Queen,[20] French CJ discussed the meaning of miscarriage of justice in reference to s 6(1) of the Criminal Appeal Act 1912 (NSW). That section is in similar terms to s 353(1) of the Criminal Law Consolidation Act 1935 (SA), which provides that the Full Court shall allow an appeal against conviction if it considers that there has been a miscarriage of justice. In Cesan, the trial Judge had fallen asleep on a number of occasions during a trial in which the appellant and another were accused of conspiring to import ecstasy into Australia: French CJ said:[21]
As these reasons indicate, the case invited consideration of the duty of the judge in a trial by jury. That duty extends to the supervision and control of the conduct of the trial. Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice. Putting to one side minor lapses, a substantial failure of that kind in the judge’s duty may have imponderable effects upon the outcome of the trial which cannot be assessed by an appellate court. The trial in such a case is flawed in a fundamental respect. However apparently strong the evidence against the accused person may have been, it cannot generally be said with any confidence that there has been no substantial miscarriage of justice. The trial in this case was so flawed. There was a miscarriage of justice. It could not be said that the miscarriage was not substantial. (Underlining is mine)
[20] (2008) 236 CLR 358.
[21] Ibid 362 [4].
Later in his reasons, when considering what may constitute a miscarriage of justice, he observed:[22]
In the second edition of the Oxford English Dictionary “miscarriage of justice” is defined as “a failure of a court to attain the ends of justice”. Applied to a system of laws the ends of justice will incorporate normative requirements relating to the way in which laws are applied and dispositions made under them. The conviction of an innocent person would be recognised by all observers as a miscarriage of justice. But the concept goes beyond that, particularly in a criminal justice system that is committed to fair process. One general definition from a perspective external to the system is:
“A miscarriage occurs as follows: whenever suspects or defendants or convicts are treated by the State in breach of their rights, whether because of, first, deficient processes or, second, the laws which are applied to them or, third, because there is no factual justification for the applied treatment or punishment; fourth, whenever suspects or defendants or convicts are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others; fifth, whenever the rights of others are not effectively or proportionately protected or vindicated by State action against wrongdoers or, sixth, by State law itself.”
To the extent that that definition incorporates perceived deficiencies in the law it runs wider than any definition that could be applied in a statutory setting. Within the statutory framework for criminal appeals under consideration in this case, the range of events, acts or omissions which can constitute a miscarriage of justice will depend upon the necessary conditions of “justice” in the criminal justice system. One class of necessary condition can be gathered under the general rubric of judicial process. A broader concept, which embraces but is not limited to trial process, is that of “due process of law”. (Citations omitted)
[22] Ibid 378-9 [66].
He referred to Wilson v Wilson, in which Asprey JA stated:[23]
What will constitute a miscarriage of justice may vary, not only in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law.
[23] (1967) 69 SR (NSW) 23, 35, as cited in Cesan v The Queen (2008) 236 CLR 358, 380 [69].
An essential requirement of the judicial process is the appearance of impartiality. If the public is to maintain confidence in the administration of justice, decisions of the courts must be seen to have been made by an impartial judge and jury. If the public does not have confidence in those who make decisions, then the judicial system will have failed. For the courts to function effectively, the community must have confidence in those who administer justice in those courts. As part of maintaining the integrity of the court, trials should, wherever possible, be conducted openly, the press should be permitted to engage in informed comment about trials, the identity of accused people should be public, the identity of witnesses and their evidence should be given in public, and that evidence should be open to scrutiny by the public.
Equally, it is necessary, in order to maintain the confidence of the community, that judges and juries who decide cases are seen to have an open mind and not to be influenced by extraneous information, or by material which is not admissible in evidence. This is particularly so when the accused’s credit is central to the determination of the case.
In Cesan, French CJ said:[24]
There are elements of the judicial process which can be said, at least in a metaphorical way, to play a part in maintaining public confidence in the courts irrespective of their relationship to the actual outcome of the process. The appearance of impartiality is one such. In North Australian Aboriginal Legal Aid Service Inc v Bradley the joint judgment quoted with approval the observation by Gaudron J in Ebner v Official Trustee in Bankruptcy: “Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system.” The somewhat elusive criterion of “public confidence” is in some cases, such as the appearance of bias, subsumed in what a fair and reasonable observer would think. The courts nevertheless depend in a real sense upon public confidence in the judicial system to maintain their authority. The maintenance of that authority depends, inter alia, upon that element of the judicial process which requires that parties before the court be given and be seen to be given a fair hearing. It is necessary to a fair hearing that the court be attentive to the evidence presented by the parties and to the submissions which they make. The appearance of unfairness in a trial can constitute a “miscarriage of justice” within the ordinary meaning of that term.
The appearance of a court not attending to the evidence and arguments of the parties and control of the conduct of the proceedings is an appearance which would ordinarily suggest to a fair and reasonable observer that the judicial process is not being followed. That is not to say that every minor distraction, inattention, sign of fatigue or even momentary sleepiness constitutes a failure of the judicial function. The courts are human institutions operated by human beings and there must be a margin of appreciation for human limitations. Otherwise the judicial system would be rendered unworkable by the imposition of unachievable standards. Nevertheless, it would be an unnecessarily narrow view of the judicial duty to say that appeal courts are to judge such lapses solely by reference to their effects upon the outcome of the case. In so saying, it must be accepted that the question will ordinarily fall for consideration in the application of statutory language, in this case the common form provision for criminal appeals reflected in s 6(1) of the Criminal Appeal Act. (Citations omitted)
[24] Cesan v The Queen (2008) 236 CLR 358, 380-1 [71] – [72].
French CJ, when discussing the functions of the judge and jury in a criminal trial, observed:[25]
In a jury trial it is not the judge but the jury which finds the facts. It reaches a verdict by applying to the facts the law as explained to it by the judge. But the judge’s function in such a trial is not exhaustively described by saying that he or she rules on questions of law including the admissibility of evidence, sums up to the jury, directs the jury on matters of law and otherwise acts as a kind of referee between prosecution and defence. These are all attributes of a more broadly expressed function of supervision and control of and participation in the trial process. That is a function which has long been understood. (Citations omitted)
[25] Ibid 381 [74].
The fact that the decision about guilt is to be decided by a jury is, in my view, not determinative of whether a miscarriage of justice has occurred. If there has been a departure from the essential requirements of a fair and impartial trial, or the appearance of such, then a miscarriage of justice will have occurred. It does not follow that because a jury is charged with making the final decision on the facts, then the principle of apprehended bias has no application, unless it can be demonstrated that there are specific decisions of the judge which have influenced the course of the trial.
I agree with the observation of Cole JA, with whom Handley and Sheller JJA agreed, in R v Balic (No 2):[26]
Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.
[26] (1994) 75 A Crim R 515, 520.
The contention of the Solicitor-General that the Judge was not required to rule on contentious evidence, and that there was no complaint about the summing up, should be rejected.
Nevertheless, not every departure from appropriate behaviour will constitute a failure of the judicial function and result in a miscarriage of justice. Trials cannot always deliver perfect justice to an accused.[27] For example, a trial judge may have prior knowledge of an accused person’s antecedents. The judge may have heard an application for bail in which information about the accused’s character has been disclosed, but which is not admissible in the trial. There may have been a voir dire hearing in which evidence not admissible before the jury has been given. The judge may have to consider an accused’s credit in deciding whether evidence of the accused’s admissions are admissible The administration of the criminal law would become unworkable if every such instance would require a judge to disqualify himself or herself. Ultimately, it is a question of balance in each case.
[27] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23, 49.
Nevertheless, there are instances in which a judge should disqualify himself or herself on the ground of apprehended bias because of knowledge and information of which he or she is aware. Ultimately, it is a question of taking a practical approach and balancing all relevant factors.
Conclusion
The trial Judge was aware of the appellant’s association with the Hells Angels Motorcycle Club. He was aware that the appellant held an important office in that club. More so, he was aware that persons with whom the appellant associated were members of a club who were involved in every form of criminal activity related to organised crime. The appellant, in the eyes of the Judge, was tarred with his associations. The Judge was aware of information about the appellant, which went far beyond the information of which a judge may become aware in the course of his or her judicial function in the criminal jurisdiction.
In my view, a fair-minded lay observer would reasonably apprehend that the Judge may not bring an impartial mind to the conduct of the criminal trial over which he was to preside. The failure of the Judge to inform the appellant’s legal advisors of his knowledge and involvement in the Licensing Court proceedings is, of itself, a basis upon which I consider there has been a miscarriage of justice. I would, therefore, allow the appeal set aside the conviction and remit the matter for a re-trial.
In view of my conclusion in respect of the appeal against conviction, it follows that the sentence must be set aside.
DAVID J: I would dismiss the appeals against both conviction and sentence. I agree with the reasons of Duggan J.