R v Papadopoulos

Case [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

  1. 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…

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R v Papadopoulos [2010] SASCFC 30
Case
[2010] SASCFC 30
Decision Date

CaseChat Overview and Summary

The matter of *R v Papadopoulos* concerned an appeal against both conviction and sentence. The appellant had been convicted of a trafficking offence following a jury trial in the District Court, and subsequently sentenced by the trial Judge. The central dispute revolved around whether the trial Judge ought to have disqualified himself from presiding over the trial due to apprehended bias, given his prior involvement in a Liquor Licensing Court matter concerning the appellant. The appellant also argued that the sentence imposed was manifestly excessive.

The legal issues before the appellate court were twofold: first, whether the trial Judge’s prior involvement in the Liquor Licensing Court proceedings created a reasonable apprehension of bias, thereby necessitating his disqualification; and second, whether the sentence and non-parole period were manifestly excessive. The court was required to consider whether the Judge should have disclosed his previous involvement in the Liquor Licensing matter to the appellant's legal advisors.

Duggan and David JJ, in dismissing the appeals, reasoned that the trial Judge’s knowledge gained from the Liquor Licensing Court matter, which primarily related to the appellant's membership in a motorcycle club and its associated criminal activities, did not provide a basis for a reasonable apprehension of bias in the subsequent criminal trial. They concluded that the Judge did not acquire information in the course of the licensing hearing that was capable of giving rise to apprehended bias relevant to his role in the criminal trial, and therefore, no miscarriage of justice had occurred. Sulan J, dissenting, held that the Judge's awareness of the appellant's associations and his position within a motorcycle club, which the Judge perceived as being involved in organised crime, was sufficient to create a reasonable apprehension of bias in a fair-minded lay observer. Sulan J also found that the Judge's failure to disclose this prior involvement constituted a miscarriage of justice, warranting a retrial and setting aside of the sentence.

Ultimately, the majority decision of Duggan and David JJ led to the dismissal of the appeals against both conviction and sentence. The court found that the sentence and non-parole period were within the appropriate range.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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