R v Pinkstone
[2001] WASC 252
•13 SEPTEMBER 2001
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| CITATION | : | R -v- PINKSTONE & ORS [2001] WASC 252 |
| CORAM | : ROBERTS-SMITH J | ||
| HEARD | : 24 AUGUST 2001 | ||
| DELIVERED | : 24 AUGUST 2001 | ||
| PUBLISHED | : 13 SEPTEMBER 2001 | ||
| FILE NO/S |
| ||
| BETWEEN | : THE QUEEN |
AND
ANTHONY JOHN PINKSTONE
WAYNE JOHN YANKO
MICHAEL BRAZIERPAUL PHILLIP BRAZIER
Catchwords:
Procedure - Criminal law - Judge - Disqualification on ground of perception of bias - Trial - Disqualification of trial Judge on ground of bias
Legislation:
Nil
Result:
Application dismissed
[2001] WASC 252
Category: B
Representation:
Counsel:
| Crown | : | Ms G A Archer |
| Second-Named accused : | Ms V Amidzic | |
| Third-Named accused | : | Mr L M Levy |
Fourth-Named accused : No appearance
Solicitors:
| Crown | : | State Director of Public Prosecutions |
| Second-Named accused : | Amidzic & Co | |
| Third-Named accused | : | Laurie Levy |
Fourth-Named accused : A Palumbo
Case(s) referred to in judgment(s):
Agostinelli & Lewis v R (1995) 82 A Crim R 326
Dietrich v The Queen (1992) 177 CLR 292
Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277
Goktas v The Government Insurance Office of New South Wales (1993) 31
NSWLR 684
Grassby v The Queen (1989) 168 CLR 1
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Pinkstone v The Queen [2000] WASC 321
R v Pinkstone & Ors [2001] WASC 137
R v Pinkstone & Ors [2001] WASC 172
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re JRL; Ex parte CJL (1986) 161 CLR 342
Simpson; Ex parte Morrison (1984) 154 CLR 101
Trustees of Christian Brothers v Cardone (1995) 130 ALR 345
Vakauta v Kelly (1989) 167 CLR 568
Webb & Hay v The Queen (1993-1994) 181 CLR 41
[2001] WASC 252
Case(s) also cited:
Barton v The Queen (1980) 147 CLR 75
Brooks v Upjohn Co (1998) 85 FCR 469
Chow v DPP (1992) 28 NSWLR 593
DPP v West (2000) 48 NSWLR 647
Dunstan v DPP (1999) 92 FCR 168
Jago v District Court of New South Wales (1989) 168 CLR 23
R v Alexandroaia (1995) 81 A Crim R 286
R v Van Phu Ho, unreported CCA SCt of NSW; No 60206/94; 18 July 1994
Rasayanakam v Thillainadesan (1996) 133 FLR 74
[2001] WASC 252
ROBERTS-SMITH J
ROBERTS-SMITH J: By application dated 16 July 2001 filed under the Criminal Procedure Rules 2000 ("the Rules") the applicant sought that I should disqualify myself from further hearing the case against him on the present indictment on the ground of a reasonable apprehension of bias.
The application was supported by an affidavit of Anthony John Pinkstone sworn on 16 July 2001.
The application and affidavit were filed on 2 August 2001.
The application came on for hearing before me on 24 August on which occasion the applicant made extensive and detailed oral submissions in support of it.
At the conclusion of that hearing I ruled that the circumstances were not such as could give rise to a reasonable apprehension of bias on my part and the situation was not one in which it would be appropriate for me to disqualify myself. I accordingly refused the application and indicated that I would publish my reasons later.
These are my reasons.
The applicant was arrested in Perth on 13 October 1999. He was charged on two separate prosecution briefs in relation to drug offences. On 14 and 15 December 2000 the applicant appeared before me on an application for bail. On that occasion he was represented by Mr R Richter QC and Mr W B Harris. I handed down my decision on the bail application on 18 December 2001 (Pinkstone v The Queen [2000] WASC 321). I refused the application.
By an indictment dated 17 January 2001 the applicant was charged with one count of supplying a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) and one count of attempting to supply a prohibited drug, namely cocaine, to another contrary to s 6(1)(c) and s 33 of the Misuse of Drugs Act. In his affidavit of 16 July 2001, the applicant first raises a concern about comments made by me in my decision refusing his application for bail. I shall return to this below, but in substance the proposition which he advances is that I there expressed clear views about his guilt or innocence and credit-worthiness giving rise to the possibility of pre-judgment or bias on my part.
| 9 | In his affidavit the applicant next turns to events in March and later this year. He states that in early March he wrote to the Registrar of this |
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Court requesting transcripts pertaining to a Mr Salisbury, a co-accused in a previous matter heard in the Supreme Court in 1992. He deposes that Salisbury gave evidence in court attempting to negate his criminality and declared that the applicant was his superior. He deposes that the Director of Public Prosecutions "rejected that assertion". The point about this is that in 1994 Salisbury appealed to the Court of Criminal Appeal against the sentence which had been imposed upon him and I represented Salisbury as counsel on that appeal. As the applicant puts it in his affidavit:
"My concern in March was that because of the hostilities between Mr Salisbury and myself, and the fact Mr Roberts-Smith QC argued mitigation of Mr Salisbury's appeal where submissions were placed before the CCA that I was not a person of good character, did give rise to a perceived view of preconception."
He deposes that on 26 March 2001 he advised me of his position "regarding a possible application" for me to excuse myself on grounds of bias.
In fact, what occurred was that at the previous hearing on 26 March 2001, I raised the matter with the applicant as a result of having been informed of his request for the Salisbury appeal transcript. On that occasion I said:
"The other matter which I wish to raise is one which was brought to my attention late last week. It was brought to my attention, Mr Pinkstone … that you had requested a transcript of a matter in relation to a person by the name of Lindsay Salisbury and that was said to have something to do with this trial.
That having been done, that is to say, brought to my attention, I called for that transcript and although it had not come to my mind before, the situation is - and I think it's clear that I should bring it to attention now, it having been brought to my attention - that Mr Salisbury, as I recall it now having looked at the transcript, was charged with you, Mr Pinkstone - and I can't recall whether there were others; I suspect there were - in relation to the marijuana importation of which there has been some previous discussion in these proceedings.
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That matter resulted obviously in the conviction of at least the two of you and sentence imposed on each of you. I acted for Mr Salisbury on his appeal against sentence and that, from looking at the transcript, appears to have been some time in 1994. I did not act for Mr Salisbury on the trial. I acted only on his appeal against sentence in the Court of Criminal Appeal. That I think went for something less than 1 day.
The material which I had was of course the transcript of the trial - on which, as I say, I had not appeared - and the argument before the Court of Criminal Appeal was based exclusively on that and went both to matters of law and fact arising out of what was on the transcript. The argument, as I again now see from the transcript but which simply I must say had not occurred to me until the matter was brought to my attention, was that you - I will put it the other way: Mr Salisbury was claiming that he had been given a more severe sentence than you and that had apparently been done on the basis that the sentence imposed on you had been imposed with the view that, as far as I can ascertain now or can recall, you had been threatened by him and he was, as it were, further up in the hierarchy than you were.
His argument on the appeal, as I recall it now, was that the sentencing judge who sentenced him, first of all, was wrong in taking that view and that there were no findings of fact beyond reasonable doubt as to his role being greater or lesser than yours and that accordingly he should not have been dealt with on the basis that he was higher in the hierarchy than you when he had been claiming that you were in fact higher than him and you it was who had threatened him rather than the reverse.
Quite frankly, I actually don't even recall the outcome of the appeal, but it doesn't matter. The position it seems to me then is whether that creates a difficulty in me continuing to hear this case which involves you. Is there anything you wish to say about that at this stage?"
The applicant said at that stage he had not had a chance to read the transcripts and said it had been suggested to him by other persons that it would be an idea to get the transcript to read it to see whether or not any bias on my part was demonstrated. I reiterated that was appropriate and that was indeed why I had directed that the transcript be provided to him.
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It was against that background that I again raised the matter with the applicant on 20 April, my Associate in the meantime having received a letter from the applicant dated 30 March 2001. The letter read:
"At a directions hearing on 26 March 2001 I agreed to advise His Honour Roberts-Smith J of my position regarding a possible application for His Honour to excuse himself on grounds of bias. With my limited knowledge and even more limited resources I have considered the matter and have decided not to make such an application.
His Honour's comment, 'In my view the applicant faces a very real prospect of conviction,' Pinkstone v R (2000) WASC 321 at 85 and his agreement that there is 'an overwhelming case,' against me at 83 gave me cause for concern and prompted this question to be raised. The fact that His Honour expressed a clear view about my guilt or innocence and creditworthiness, 83 to 86, gave rise to the possibility of prejudgment or bias as enunciated in Livesey v NSW Bar Association (1983) 151 CLR 288.
Notwithstanding that His Honour has taken this view, I am confident that when the facts are exposed and legal argument has taken place, His Honour may take a different view. I have no doubt that His Honour will act so as to ensure both the appearance and substance of impartiality. I would be grateful if you would rely (sic: relay) my comments to his Honour."
Having referred to the applicant's letter, I explained that the reason I had raised it with him again was to clarify the position because the question of my possible disqualification had been raised initially in the context of my having acted for Salisbury on his appeal, whereas the applicant had made no reference to that in his letter.
The applicant then explained that he had spoken to counsel sometime after the bail hearing and it was then he also became aware of the Salisbury matter and had thought it appropriate to look at both issues. He then said that (t 73, 20/4/01):
"After reading the Salisbury transcript I didn't believe there to be any bias, your Honour. That was my opinion. That's why I never even raised it …
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Because I just don't believe there's anything in there that was said that was biased towards me at all …
So that's the only reason I never mentioned it in the letter."
He explained further that unfortunately someone else who had read those transcripts had relayed to him inaccuracies about what was said and it had not in fact been me who had made the particular comments referred to.
I then explained that notwithstanding his view on the matter was obviously important, it was still a decision which fell to me to make in terms of whether the circumstances might give rise to some appearance or perception of possible bias on my part. I said that having regard to all the circumstances including the fact that he, as the person concerned, did not have a concern nor a perception as to my ability to be impartial, I considered there was no difficulty in my continuing to sit on the trial.
The next point raised in the applicant's affidavit is that on 4 May 2001 he appeared before me on a directions hearing when counsel for his three co-accused made applications for separate trials. He points out he was not a party to any of those applications. My ruling on those applications was given on 1 June 2001 (R v Pinkstone & Ors [2001] WASC 137). The applications were refused. The applicant deposes that having only recently had the opportunity to read those reasons for decision, he has formed the view that although he was not a party to those applications, there appeared "… irrelevant and prejudicial statements towards me in his Honour's written judgment, which prima facie, appear (sic) a case of reasonable apprehension of bias, which is of great concern." He concludes that:
"Without (sic: with) the benefit of hindsight, I sincerely believe his Honour … might not bring a fair and unprejudiced mind to the performance of the judicial task ahead of him. An examination of past facts does raise concern for a fair trial to be conducted with impartiality. I truly believe his Honour ought therefore disqualify himself."
At the hearing on 24 August the applicant made extensive reference to the transcript of the present proceedings to that date and to my published reasons for decision on his bail application in December 2000 and on the application for separate trials made by his co-accused. He made no reference at all on that occasion to the question of my appearance as counsel in the appeal against sentence by Salisbury; his submissions
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were directed entirely to what he argued were indications of bias on my part reflected in the transcript and reasons for decisions which I have mentioned.
The matters advanced by the applicant at the directions hearing on 24 August as affording the basis upon which he contends that he has, and a fair minded lay observer might have, a reasonable apprehension that I might not bring an impartial mind to the resolution of issues I might be required to decide in this case, fall into two broad categories. They are:
(1) Comments made by me in my ruling on his application for bail in December 2000 and in my reasons for decision on the applications for separate trials made by his co-accused in the present proceedings; and (2) What the applicant says have been failures on my part to act on certain complaints made by him or to grant requests or applications made by him in these proceedings.
I begin with some brief reference to the applicable principles as determined by authority.
The test is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue (Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293-294; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 261-262, 264, 267; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 349, 351, 359, 368, 371; Vakauta v Kelly (1989) 167 CLR 568, 575, 584; Grassby v The Queen (1989) 168 CLR 1, 20; Webb & Hay v The Queen (1993-1994) 181 CLR 41, 47, 50-51, 53, 67-68).
In Trustees of Christian Brothers v Cardone (1995) 130 ALR 345, Gallop J, although in dissent in the outcome of the appeal before the Full Court of the Federal Court, set out a useful summary of the principles to be derived from the authorities. A reading of the judgment in that case reveals that there was no difference between their Honours on the principles to be applied; it was their application to the circumstances of the particular case upon which they differed.
Gallop J summarised the position as follows (at 350-351):
"On the one hand there are the repeated assertions of the courts
that:
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(a) Judges by their training and experience are able to bring a detached mind to the task in hand: see R v Leckie; Ex parte Felman (1977) 18 ALR 93; 52 ALJR 155 at 160; (b) Judges should not too readily accede to applications for disqualification whereby parties may effectively influence the choice of a judge in their cause: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239; (c) Judges should resist being driven from their courts by the conduct or assertion of parties: Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689; (d) Judges should not be disqualified because of the vigour with which they conduct proceedings, some degree of judicial intervention being necessary for the fair disclosure of their provisional views: Galea v Galea (1988) 19 NSWLR 263 at 278f; Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 94 ALR 1; 64 ALJR 495; and (e) Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which will necessarily then fall to another judicial officer for whom the task may be no more congenial: Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 9) (unreported). On the other hand, a series of recent decisions of the High Court have stressed the very high standards of manifest neutrality and impartiality established by that court for observance by every judicial officer in the courts of Australia. The common thread which has run through the High Court's decisions has reflected the high importance attached by the High Court to the manifest observance of judicial impartiality in this country. This can be seen, for example, in R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; Livesey v New South Wales Bar Association (1983) 151 CLR 288; 47 ALR 45; Re JRL; Ex parte CJL (1986) 161 CLR 342; 66 ALR 239; Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633; Grassby v R (1989) 168 CLR 1; 87
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ALR 618; and Laws v Australian Broadcasting Tribunal (1990)
93 ALR 435; 64 ALJR 412 at 419.The test as formulated by the High Court in determining whether a judicial officer ('a judge') is disqualified by reason of the appearance of bias as distinct from proved actual bias is whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue. The quoted words in the statement of the test are taken from the judgment of the High Court in Livesey v New South Wales Bar Association, supra, at CLR 293-4."
His Honour then went on to consider Webb v The Queen (supra) and referred in particular to the dissenting judgment of Deane J who classified the categories covered by the doctrine of disqualification for bias into four distinct, although sometimes overlapping, main categories, they being disqualification by interest, conduct (including published statements), association and extraneous information. Deane J described disqualification by association as consisting of cases in which the apprehension of pre-judgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. He characterised disqualification by reason of extraneous information as consisting of cases in which knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. As observed, the categories of disqualification may of course overlap.
The issue goes to confidence in the integrity and impartiality of the judicial system itself and so is of fundamental importance. The decisions indicate the "very high standards of manifest neutrality in and impartiality to be adhered to by courts in Australia" (Agostinelli & Lewis v R (1995) 82 A Crim R 326 at 337).
In Re JRL; Ex parte CJL, supra, at 351, Mason J (as he then was)
said:
"The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Watson; Ex
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parte Armstrong at 258-263; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done."
But as Gibbs CJ pointed out in Simpson; Ex parte Morrison (1984) 154 CLR 101 at 104, the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.
As Nyland J expressed it in Agostinelli, supra, at 337:
"The test is thus an objective test of whether in all the circumstances a person might reasonably entertain an apprehension of bias. Expressed in terms of the possibility rather than the probability of bias (might entertain a reasonable apprehension that the judge might not…), this is not a particularly difficult test to satisfy. The question whether such a reasonable apprehension might exist is to be determined by the standard of the reasonable observer. The reasonable observer is presumed to have a degree of knowledge of the actual circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87, and is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality: Livesey at 299."
It must also be appreciated that the question is one of possibility (real and not remote), not probability. So too the question in each case is how the existence of the interest or association might be thought to divert the Judge from deciding the case on its merits; the bare identification of an association will not suffice to answer that question (Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277, at [7], [30] and [182].
In Ebner, the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) said ([19] - [22]):
"[19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails
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in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
[21] It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
[22] The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal."
| 32 | The point that Judges should not too readily accede to applications they disqualify themselves from sitting on cases to which they have been assigned, and which (absent a proper ground for disqualification) they |
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would have a duty to hear, had earlier been explained by Mason J in Re
JRL at 352:"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14, 32 ALR 47, at pp 50-51. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
Against that broad background of applicable authority, I turn to the concerns raised by the applicant on 24 August.
| 34 | The first was my reasons for decision on his application for bail on 18 December 2000 and my subsequent reasons for my rulings on the |
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separate trials application and the applicant's own motion to quash the
indictment.
I do not propose to set out specifically each of the comments or observations of which complaint is made. The applicant refers, for example, to [83] where I said:
"An examination of the Crown's brief shows what Parker J described as a clear case of substance is, indeed, an overwhelming case against the applicant.";
and to [84] where I said:
"In addition, I have read the transcripts of telephone intercepts, exhibit R3. They are clearly capable of giving rise to the inference that the applicant and his co-accused were engaged in organised drug dealing of a substantial kind and that the applicant's role in that was of a high level. They are certainly capable of affording cogent proof of the applicant's involvement of the delivery of the drugs in question."
The applicant's contention in relation to these and similar observations is that a lay observer would perceive a predisposed or closed mind in relation to untested evidence, indicating at least a high element of pre-judgment.
There are two observations to be made about this argument. The first is that the comments were made in the context of, and specifically and solely for the purpose of undertaking the assessment which the Bail Act 1982 (WA) requires, of the strength or weakness of the Crown case as a consideration relevant to the grant or refusal of bail. I expressly pointed out in my decision at that time (Pinkstone v The Queen [2000] WASC 321 at [82], that any assessment of the strength of the Crown case at that stage must necessarily suffer from the difficulties adverted to by Mr Richter QC, in particular that the prosecution evidence had not been tested and the defence case was not known. At [83] I expressed my agreement with the view of Heenan J that examination of the Crown brief did show an overwhelming case against the applicant. That is precisely the type of judgment (qualified in the way I qualified it at the time) which the Bail Act requires. To say, for example, that the telephone intercepts were capable of affording cogent proof of the applicant's involvement is not an assertion that they would necessarily be accepted as such proof - which in any event would be for the jury, not the Judge, to decide at trial.
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Secondly, to say the applicant faces a real prospect of conviction by a jury, in the context of a bail application, is not to express a personal view about what the outcome should be.
In the context in which these and the other remarks complained of were made, and having regard to the purpose for which they were made, namely to undertake that assessment of the prosecution evidence required by the Bail Act and to evaluate the other considerations relevant to an application for bail, it seems to me a reasonable person, being aware of the material circumstances, could not construe them as expressing (as the applicant puts it), a "clear view" about his guilt or innocence and credit worthiness, giving rise to a perception of pre-judgment or bias. To put it again in terms of the proper test, I do not consider that a fair-minded lay observer, knowing the material facts, might by reason of them have a reasonable apprehension that I might not bring an impartial mind to bear in deciding issues in this case.
The applicant's several references to particular paragraphs of my reasons for decision on the separate trials application and his motion to quash, fall into a similar category. For instance, the applicant refers specifically to [10], [27], [86], [97], [98] and [101] of the reasons for decision on the separate trials application and likewise to [119] of my reasons for decision dated 29 June 2001 on his motion to quash the indictment (R v Pinkstone & Ors [2001] WASC 172).
The applicant complains that in making observations such as ([2001] WASC 137 [10]):
"Pinkstone had consigned both parcels about 12.30 pm on 7 October 1999 in Sydney. They were airfreighted on an Ansett flight to arrive in Perth at 9.20 pm Perth time. Yanko collected the parcel containing the methylamphetamine about 10.05 pm on 7 October 1999"
I was indicating a pre-judgment of the issues in the case. The fact is, of course, that my remarks must be read in context. It is quite clear from what precedes that particular paragraph (and other paragraphs of which similar complaint is made) that I was there outlining what the prosecution case was. That is why I used such phrases as "In very broad terms the prosecution case will be…" [5] and "It is the Crown case that …" [8].
The applicant referred to what I said at [97]:
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"That evidence would clearly be admissible against Pinkstone and M Brazier as the fact that they were currently in the business of drug dealing. It is a fact relevant to the issues in the case and it is not mere evidence of a propensity to commit crime or of bad character."
and also [98]:
"Ms Archer foreshadows the Crown would be leading evidence of three consignments of prohibited drugs prior to 7 October 1999, one of which was collected by a person known to be an associate of Yanko … I am prepared to accept for present purposes that the evidence would be admissible on count 2 to show Pinkstone was a drug dealer."
and likewise at [101]:
"Once again this would be admissible against Pinkstone, Brazier and Yanko to show that Pinkstone was engaged in the business of drug dealing."
With respect to the making of these and similar statements in my reasons for decision, the applicant refers to cases such as Grassby, supra, which make it clear that a Judge ought not to proceed to hear a matter if in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him or her.
I accept Mr Pinkstone's submission that the law is as so articulated in cases such as Livesey, Grassby, and others to which I have already referred. However, the rulings made by me were an ordinary procedural aspect of this trial. They necessarily involved determination of questions of admissibility, of jurisdiction, or of other legal questions on the basis of assumptions as to what evidence will be led by the Crown and how the Crown case is to be put. That does not convey, nor imply, an acceptance by me of the Crown case. Beyond the particular rulings of law themselves, the reasons which I expressed for them do not involve pre-judgment of the issues in this case. The statements made in the rulings and to which the applicant has pointed as giving rise to a reasonable apprehension of bias, are not in my view, reasonably capable of having that effect in the context of the ordinary functioning of a criminal trial which involves the necessity for such rulings by the trial Judge both before and during the trial proper. Nor, in my view, were my reasons expressed in such a way as might give rise to a reasonable
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apprehension of bias. It seems to me a reasonable person, being aware of the material circumstances, would (ie could) not construe them as expressing (as Mr Pinkstone puts it) "a clear view" about his guilt or innocence and credit worthiness giving rise to a perception of pre-judgment or bias.
This brings me to the second category of matters on which Mr Pinkstone bases this application. Expressed again very broadly, this category encompasses procedural directions which he says I made which I should not have (or which I did not make when he says I should have), complaints by him of actions by other persons or authorities and the general conduct of these proceedings.
I take it the gravamen underlying the matter raised is that by reason of them, either of themselves or in combination with the other matters raised by him on this application, Mr Pinkstone has - and a fair-minded lay observer, knowing the material facts, might have - a reasonable apprehension that I might not bring an impartial mind to bear in deciding issues in this case.
Again, I do not consider it necessary to deal specifically and in detail with each particular transcript reference or circumstance relied upon by the applicant; I will refer to some of them as indicative of the whole.
The applicant complains that when he appeared before me on 22 February 2001 and requested a copy of my reasons for decision on his application for bail, I told him the decision had been published and it was in the public arena and available from the Court library or could be downloaded from the computer. I suggested he could probably obtain it from the computer at the remand centre. The applicant complains that he had pointed out to me on several occasions that he was in custody and unrepresented and that I was still of the view that he could somehow obtain these documents himself. He referred to what he described as my "reluctance" to provide him with an important document to which he was entitled, indicated a reasonable apprehension of bias. He asserts that he was denied access to a legal document to which he was fully entitled.
It must be remembered first that the applicant had been represented on that bail application by senior counsel and his instructing solicitor.
Further, in fact, at that hearing on 22 February, in the course of the exchange between the applicant and me about my reasons for decisions on his bail application, Mr Levy, who appeared for the accused M Brazier, immediately undertook to provide the applicant with a copy of those
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reasons. I thanked Mr Levy for that and so moved on to deal with other matters, being satisfied that the applicant would be given the document. I do not consider that it could be said on any reasonable view that there is any substance in this point.
The other matters raised by the applicant include the fact that I required the accused to be arraigned when I was aware the applicant was not legally represented and that when he remained mute, I directed pleas of not guilty be entered on his behalf. He referred to Goktas v The Government Insurance Office of New South Wales (1993) 31 NSWLR 684 in support of his argument that his arraignment in that way was a departure from proper standards of fairness in connection with the conduct of the trial to such an extent as to give rise to a reasonable apprehension of bias on my part.
The fact is that I arraigned each of the accused on 26 March 2001. The indictment had been presented in the District Court on 17 January 2001 and the accused had already appeared in February this year in this Court. The question of their arraignment arose because at the directions hearing on 26 March, the applicant contended a trial date could not be fixed because (inter alia) he and his co-accused had not been arraigned. I accordingly directed that each of them be formally arraigned. Each of the co-accused entered pleas of not guilty. The applicant stated that he wished to remain mute. I directed that pleas of not guilty be recorded. I did so pursuant to the provisions of s 619 of the Criminal Code (WA).
On 20 April 2001 the applicant sought that his plea be set aside because he wished to move to quash the indictment, an application which s 614 of the Criminal Code requires to be made before the accused pleads. In the circumstances and with the consent of the Crown, I ordered that the applicant's plea as recorded be set aside and proceeded to entertain his motion to quash the indictment.
I do not consider that a fair-minded lay observer, knowing the material facts of these circumstances, might have a reasonable apprehension that I might not bring an impartial mind to bear in these proceedings.
I am of the same view in relation to the applicant's point about my reaction to his complaints about the seizure by prison authorities and others of his computer. On 20 April when he appeared before me on a directions hearing, the applicant stated that the prison authorities had removed his computer from him some two months earlier. He alleged that
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West Australian police officers had gone through the data on that computer which included all of his legal files and other material relating to his defence in this trial. He asserted that I had an obligation to query with the authorities what he described as "that obvious breach of legal privilege" (t 345, 24/08/01) but that I "remained mute on a very controversial subject". He asserts that he had been prejudiced by the removal of his computer and the difficulties to which he had referred on a number of occasions about his inability to research the law whilst on remand and that there was unfairness in my response to his request at that time for a three week adjournment to enable him to file submissions. I allowed two weeks rather than the three weeks he had requested. He says this was unfair and a failure on my part to protect his rights as an indigent in-person litigant (Dietrich v The Queen (1992) 177 CLR 292 per Mason CJ and McHugh J at 300).
So far as the question of the adjournment is concerned, a trial Judge's response to an application of that kind will always require an exercise of discretionary judgment. I do not consider that the circumstances of my granting him two weeks rather than three could give rise to an reasonable apprehension of bias. So far as the question of the seizure of the applicant's computer is concerned, that was something which he raised on several occasions subsequently. I did express my concerns about what was being alleged and required the Crown to make enquiries into the allegations and advise me in open court of the circumstances.
Ms Archer did that at the directions hearing on 24 August 2001. She produced a number of statements from prison officers and police officers relating to the fact and circumstances of the removal of the applicant's computer. It is enough for the moment to note that there were allegations that the applicant had been using his computer equipment and an unauthorised mobile telephone for unlawful purposes and that no access had been made to any material relating to his defence on the present charges. Of course, none of what was put before me by the Crown nor explained to me from the bar table by Ms Archer about it is evidence any more than are the assertions which have been made about those matters by the applicant. The applicant has further foreshadowed the possibility of an application to stay the indictment based on these matters. In the circumstances I propose to say nothing further about them other than that I do not consider them as capable of giving rise to any reasonable apprehension of bias on my part against the applicant.
| 58 | The only other matter in this category raised by the applicant with which I propose to deal here is his complaint that I refused to list an |
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application made by him for a hearing under s 611A of the Criminal Code. This was an application dated 3 July 2001 entitled "Notice of motion of law pursuant to the Criminal Code s 611A(1)(a)." The circumstances briefly were that on 29 June 2001 I had handed down my reasons for denying his motion to quash the indictment and he had subsequently filed an application or applications to the Full Court seeking to challenge that decision. Having looked at his application for a s 611A hearing, it appeared to me that the content of that material was all directed to his Full Court application. On that understanding I advised the Criminal Registry officers that the material should all be put before the Full Court as part of that application and I did not propose to list a hearing under s 611A.
Having been advised of that by the Registrar, the applicant wrote to my Associate on 25 July advising that he had indeed intended to raise matters before me pursuant to s 611A of the Code. I accordingly directed that the matter be listed before me. It was listed for 3 August 2001. When it came before me on that date, the applicant sought an adjournment for six weeks on the ground that he had been given no notice of that listing. He asserted that he was brought before the Court that day, having been notified only at 7.30 that morning by the prison authorities that he was to appear. He had not brought any legal papers, nor any material for his argument why a s 611A application should be heard.
At that time I enquired of the applicant what issues he wished to ventilate on such a hearing. He made it clear that he wanted to advance further argument in relation to matters which had been the subject of his motion to quash the indictment. As I then explained, his application for an adjournment fell to be considered on the basis that he was requesting it to enable him to prepare argument in relation to issues upon which I had already ruled in my decision on 29 June; or alternatively were hypothetical and of no apparent relevance to this case. It was neither convenient to determine such questions so as to facilitate the preparation for, or the conduct of, the trial and nor was it otherwise desirable for me to answer the questions he sought to pose. In that circumstance there was nothing further to argue and therefore no proper basis for the adjournment. I accordingly declined to grant it.
This is not a matter which could give rise to a reasonable apprehension of bias.
| 62 | In reference to the applicant's complaint on 3 August 2001 to the effect that the hearing had been listed without notice to him and that he |
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had been brought up from the remand centre that morning without being told the purpose of his appearance, I should say that as I understand it, notice of any listings have been given by fax from the proper court officer to all parties, including the applicant - as soon as the particular date has been fixed. I am informed that in this instance notice was sent to all parties, including the applicant, by facsimile on 31 July 2001. Whether such notices have been passed immediately to the applicant by the prison authorities may be another question. I have previously expressed concern about that situation should it have occurred.
All of these complaints have been said by the applicant to amount to a denial of procedural fairness and do not meet the fundamental requirement of the appearance and substance of impartiality on my part. I reject that submission. Each request or application made by the applicant has been dealt with on its merits. The mere fact that an accused makes interlocutory applications or requests which are refused does not itself indicate bias on the part of the trial Judge. That is a normal incident of the trial process. The same point may be made about unsuccessful applications for bail. So far as my refusal to adjourn the directions hearing on 3 August 2001 is concerned, the applicant was not unfairly prejudiced by reason of having been brought to court without notice that morning (I assume for present purposes that what he said about that was correct, although again it is not the subject of evidence). It was his application for a s 611A hearing. He had been pressing for it. The points he wished to raise were points already argued and upon which a ruling had been made. There was no point to the adjournment because the argument would not have been permitted.
Notwithstanding that in his lengthy oral submissions to me on 24 August the applicant made no mention of the fact of my appearance as counsel for Salisbury in that person's appeal against sentence to the Court of Criminal Appeal in June 1994, and indeed that he had earlier expressly stated he had no concern arising out of it, it is a matter raised in his affidavit on 16 July, and in my view it is necessary that I consider it afresh.
That was first raised in the present proceedings when it came to my attention in March 2001 that the applicant had made a request of Court officers for the transcript of the hearing before the Court of Criminal Appeal of the appeal against sentence by Salisbury in June 1994. The fact that I had appeared as counsel in that appeal did not come to my mind until then. I called for the transcript. The situation was that Pinkstone and Salisbury had been convicted of importing a large quantity of
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cannabis. At the trial there was a dispute between them as to their respective roles - each contended that he had been involved in a subordinate position under threat and direction of the other. Salisbury received a more severe sentence than Pinkstone. The basis of Salisbury's appeal was that the sentencing Judge should have dealt with him on the basis that his role had been less significant than that played by Pinkstone. I was briefed to appear for Salisbury on the appeal. The appeal of course was argued on the appeal books which were comprised of the transcript of the proceedings before the sentencing Judge. The argument was simply that on the material before the sentencing Judge, his Honour had misapprehended Salisbury's role and that Pinkstone's had been more significant.
Having seen the transcript of the appeal, I directed the applicant be provided with a copy of it. I informed him in open court on 26 March that I wanted him to have an opportunity to read that, and if, having done so, he had some apprehension because of my having acted for Salisbury on that occasion, that I might not bring an impartial mind to bear upon this case insofar as it involved him, then he should have an opportunity to apply for me to disqualify myself.
I have already referred to what transpired thereafter and noted that in the applicant's letter to my Associate there was no mention made of the point of my having acted for Salisbury on that appeal; the concerns then raised by the applicant were all put on the basis of comments made by me in my reasons for decision on his bail application on 18 December 2000. I have also set out above what transpired in relation to this point when I asked the applicant about it when he came before me for a further directions hearing on 20 April 2001.
Notwithstanding that he had made no application at that stage that I should disqualify myself - and indeed had expressly stated that he was of the view that I would bring an impartial mind to bear in these proceedings - I thought it incumbent upon me to consider for myself whether in light of that circumstance, a member of the public might have a reasonable apprehension that because of my having acted for Salisbury on his appeal, I might not now bring an impartial and unbiased mind to bear on this case. As to that, I took the view that as the matter was completely unrelated to the present proceedings, that I acted as counsel for Salisbury only on his appeal against sentence, that I had not been involved at all on the trial, that the appeal was conducted solely on the material before the sentencing Judge and the transcript of the sentencing, all of which was then in the public domain and that I had no earlier nor other involvement with
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Salisbury, were all pertinent factors. At that stage I also took it to be a further pertinent factor that the applicant himself did not in fact have an apprehension that I might not be impartial. I considered that a reasonable member of the public with knowledge of the material circumstances, including that, would not entertain an apprehension nor reasonable perception of bias - that is, there was no reasonable possibility of that. To put it in terms of the relevant test, I concluded that the circumstances were not such that a fair-minded lay observer with knowledge of the relevant objective facts, might have a reasonable apprehension that I might not bring an impartial mind to the resolution of issues involving the applicant in this case.
Given Mr Pinkstone's application dated 16 July 2001, it became necessary for me to reconsider that matter, then of course in light of the fact that in his affidavit he did assert, that inter alia , my having acted for Salisbury on 1994 appeal did cause him to have a perception that I might be biased. I did reconsider that. My conclusion was, and is, that it does not give rise to the apprehension to which the authorities refer.
I am very conscious that although the judgment to be exercised here is objective, being based on the apprehension a reasonable and informed member of the public might entertain, it is an area in which views may differ. That this is so was well exemplified in Webb, supra, where three members of the High Court (Mason CJ, Toohey and McHugh JJ) considered the giving of flowers to the mother of the deceased victim by a juror would not in all the circumstances have given rise to an apprehension of lack of impartiality on the part of the juror, whereas the two other justices (Brennan and Deane JJ) considered that it did. For this reason, I think I should approach the matter in this case such that if I find it to be "on the line", as it were, I would exercise my discretion in favour of disqualifying myself rather than not.
The situation is not one of personal interest; it is said to be one of association. There is no suggestion that I was privy to any material or information adverse to the applicant other than that which was in the public domain in the form of the transcript of the proceedings at trial. The argument on the appeal was solely that on that material, the Salisbury sentence was excessive because the sentencing Judge should have found him to have played a less significant role than the applicant, who had received a lesser sentence. The matter was completely unrelated to that the subject of the present proceedings and the appeal was some seven years ago.
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It must be acknowledged that the application of the test by reference to a fair-minded and informed member of the public does not attribute to that person a knowledge of the law and the judicial process which ordinary experience suggests is not the case (Vakauta v Kelly, supra, per Toohey J at 585; Webb v The Queen, supra, per Mason CJ and McHugh at 52), but in my opinion such a person would at least have an appreciation that submissions counsel might advance on behalf of a client on an appeal, do not necessarily reflect any personal view of counsel and indeed say nothing about counsel's personal view.
In all the circumstances I do not consider that a member of the public with knowledge of the material objective facts might have a reasonable apprehension that because I had appeared as counsel for Salisbury on his appeal, I might not now bring an impartial and unprejudiced mind to bear on this case. Nor would I consider any such perception or apprehension said by the applicant to be held by him, to be reasonable.
It was for these reasons that I dismissed Mr Pinkstone's application on 24 August 2001.
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