R v Rich (Ruling No. 21)
[2009] VSC 32
•11 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2007
| THE QUEEN |
| v |
| HUGO ALISTAIR RICH |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 & 10 February 2009 | |
DATE OF JUDGMENT: | 11 February 2009 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 21) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 32 | |
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CRIMINAL LAW – Application for disqualification of trial judge for actual or apprehended bias – Findings of fact on a stay application – Whether findings on an issue arising – Whether a finding – Judge’s criticism of lawyers – Whether evidence of bias.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tinney SC with Mr S. Milesi | Office of Public Prosecutions |
| For the Accused | Mr J. Desmond with Mr R. Edney | Doogue & O’Brien |
HIS HONOUR:
On Tuesday, 10 February 2009, I completed hearing submissions on behalf of the accused and the Crown on the issue of whether I should disqualify myself from hearing the trial of the accused on the grounds of actual and/or apprehended bias. At the conclusion of the submissions I announced that I would not so disqualify myself and that I would publish reasons for that ruling before Friday, 13 February 2009. These are those reasons.
Hugo Alistair Rich is charged with murder, armed robbery and other offences alleged to have occurred on 8 March 2005.
On Monday, 9 February 2009, I commenced the empanelment process for the jury in the trial but on that day also, Mr Desmond of counsel on behalf of the accused made an application that I disqualify myself on the ground of actual bias as well as raising the question of perceived or apprehended bias. The application arises from a ruling I delivered on 6 February 2009, Ruling No. 20,[1] which I will shortly describe.
[1][2009] VSC 24R.
Test for Actual Bias
The test for an allegation of actual bias has been discussed in several cases. In Sun v Minister for Immigration and Ethnic Affairs,[2] a majority of the Full Court of the Federal Court (Burchett and North JJ; Wilcox J not deciding) held that a Tribunal’s decision had been affected by actual bias. North J held that:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.[3]
[2](1997) 81 FCR 71 (“Sun”).
[3]Ibid at 134, citing Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court, North J, 24 June 1996); Singh v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court, Lockhart J, 18 October 1996) (“Singh”). This test was adopted by Drummond J in Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 at 133 (“Li”).
In Yit v Minister for Immigration and Multicultural Affairs,[4] Sackville J held that the test for actual bias “looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially.”[5]
[4][2000] FCA 885 (“Yit”).
[5]Ibid at [25].
In Minister for Immigration v Jia Legeng,[6] the High Court of Australia considered issues of actual bias and pre-judgment. The Full Court of the Federal Court had held that the Minister’s decision to cancel a visa was affected by actual bias as a result of statements he had made about the particular case he had to decide. In the course of the judgment, the test for actual bias as set out in Sun was applied by French J (as he then was). French J further stated that the test was whether the applicant had shown that the decision‑maker “had a closed mind to the issues raised and was not open to persuasion by the applicant’s case”.[7]
[6][2005] CLR 507 (“Jia”).
[7]Ibid at [36].
A party asserting actual bias on the part of a decision‑maker carries a heavy onus; the allegation must be “distinctly made and clearly proved”.[8] It has been said, and I agree, that a finding of bias is a “grave matter”, and cannot be made lightly.[9] Apart from corruption, it is hard to think of a more serious allegation that can be made against a judge.
[8]Ibid at [69] (per Gleeson CJ and Gummow J); at [127] (per Kirby J).
[9]Sun (1997) 81 FCR 71 at 127 (per Burchett J); Yit [2000] FCA 885 at [25]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [37] (per Doussa J).
Apprehended Bias
The test for apprehended bias raises the question of whether the circumstances are such that a party or a fair-minded and informed member of the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the issues before him (or her).[10] Deane J pointed out in Webb & Hay v R that
the test is an objective one and the standard to be observed in its application is that of a hypothetical, fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law.[11]
[10]See Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4.
[11](1994) 181 CLR 41 at 68.
Only one enquiry is necessary. It is framed by reference to the hypothetical observer. An enquiry framed by reference to a party could yield no different result.
This Application
This application arises from a ruling which I delivered in this matter on 6 February 2009 refusing an application on behalf of the accused for a temporary stay of the trial.[12] The application in relation to that ruling had been heard by me on 27 January 2009.
[12]R v Rich (Ruling No. 20) [2009] VSC 24R.
Two Elements to the Claim of Bias
In essence, the application is based on two aspects of that ruling which, it was submitted on behalf of the accused, displayed actual bias. First, that in several paragraphs in that ruling (but in particular at paragraphs 19 and 20) I made observations about the conduct of the application including, though not limited to, the following passage:
Had I been informed in December 2008 that such an application was to be made I would have given directions about the filing of material so that all concerned were well informed of the basis of the application and the relevant evidence and authorities. Instead, the Court was treated with flagrant disregard in the manner which brings no credit at all to the lawyers for the accused. A lengthy document was filed and, yet again, to avoid the consequences of not having identified any of the previous evidentiary material which is relevant to this application, the accused was once more called into the witness box to give evidence when I alerted counsel to the fact that some significant aspects of the relevant factual background were not before me by way of evidence.
In relation to this aspect of the ruling, it was submitted on behalf of the accused by counsel that the observation I made was unfair; no notice had been given of my intention to make such observations; I failed to give counsel an opportunity to be heard; and, the observations were unnecessary for the purpose of the ruling I was delivering. The Crown prosecutor submitted to the contrary and argued that in the circumstances it was hardly surprising that I would make the observations I did make about both the manner of the application and its timing.
Apart from what occurred on 27 January 2009, other background to the observations I made in the ruling includes the following. On 11 September 2008 I indicated that I proposed to start the trial on 27 January 2009.[13] I added: “You can take it, you can also take it the date the 27th of January, the door’s shut, I’m not sure the lock’s turned, Mr Desmond, but …”. And then went on: “The first step that I propose to take on 27 January is to commence empanelment ...”.[14]
[13]Transcript at 509.
[14]Ibid at 510.
In the context of the accused having access to his brief and materials, on 21 October 2008, I said: “But there will be a trial on 27 January”.[15]
[15]Ibid at 3041.
On the following day, 22 October 2008, I said:
But there has to be some finality to these issues. Any postponement, I fear, means that the next thing that will occur is that on 27 January there will be some further postponement. There simply isn’t going to be.[16]
[16]Ibid at 3056.
On 23 December 2008, I did indicate that the jury panel would not be called until 29 January 2009 and that I would hear the “pre-trial” application then foreshadowed by counsel for the accused on 27 January 2008.[17] I was not informed as to the nature of it. I refer to those matters to highlight my strong desire to commence the jury trial on, or as near to, 27 January 2009 as possible.
[17]Ibid at 3709.
The issue is whether the criticism I made of the lawyers for the accused represents actual bias on my part. In my view it does not. I was, I consider, entitled to be critical of both the timing and the manner in which the application for a stay was presented. It is not unknown for courts from time to time to express concern at the way that an application is conducted and my view was that such an observation was appropriate in this case. Apart from the timing and lack of notice, as appears from the ruling, the application required me, without assistance from the submissions before me either oral or written, to review all the evidence which was relevant to the issue and I did so. That exercise was undertaken without any detailed notice of the basis of the application.
The second basis on which it is said that I have displayed actual bias arises from the conclusion that I expressed in relation to the application for a temporary stay. In particular, counsel referred to the following paragraph:
The convoluted steps which he [the accused] has described for concealing information that he now says he requires are almost beyond belief. But, coupled with the conduct of the accused over the entire period and the long delay in even raising this issue leave me in a position where I am by no means persuaded that such data [data which the accused says is relevant to his defence of alibi] does actually exist.
As to that paragraph, counsel submitted that it was unnecessary for me to make such a finding because the real issue in the application was not whether or not the data existed, but whether or not the accused had had a reasonable opportunity to obtain the data and use it in his trial. I would note that I concluded in an earlier paragraph that he had had such a reasonable opportunity.
It was also put that I had made a finding adverse to the accused on an issue which would be before the jury. By reference to a decision of the New South Wales Court of Criminal Appeal,[18] it was put that despite the fact that the jury would decide whether the accused had been proved beyond reasonable doubt to be guilty of the offences with which he is charged, “… questions of discretionary admissibility might arise, and in subtle, and sometimes imperceptible ways, a judge might influence the attitude of the jury.”[19] The Court in that case went on to highlight the importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge. Measured by the contempt with which the accused has, from time to time, treated this Court, I suspect that the reality is that the second of those elements could not be achieved. But in my opinion that is no reason for me not to continue to hear the trial.
[18]Branko Balic (No. 2) (1994) 75 A Crim R 515.
[19]Ibid at 520.
As appears from the submissions made on this application, the issue of whether the data the accused said he needed access to existed or not was clearly raised in the application for an interim stay.[20] That was not the first time the Crown had raised their doubts about whether such data did exist.[21]
[20]The detail of this appears at [22] below.
[21]For example, but not limited to, Transcript at 3691 (on 18 December 2008, during the application by the accused for bail): “The prosecution are comfortable in submitting that this material does not exist. Mr Rich has demonstrated his preparedness to manipulate or attempt to manipulate court proceedings.”
Actual Bias and Trial Judges Hearing Preliminary Applications
Both of the portions of my ruling to which Mr Desmond has referred are claimed to support the requirement for me to disqualify myself because I am actually biased toward the accused. The issue on this application raises the role of the trial judge hearing preliminary applications prior to the commencement of the trial before the jury and where the accused has given evidence and his or her credit has become an issue. The issue arose in Masters, Richards & Wunderlich, where the following passage from Mason J in Re L; Ex parte L was referred to:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson; Ex parte Armstrong and Livesey 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.[22]
The Court went on in Masters, Richards & Wunderlich to state:
The effect of those unanimous pronouncements was clear. The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party.[23]
[22]Masters, Richards & Wunderlich (1992) 59 A Crim R 445 at 464, quoting Re L; Ex parte L (1986) 161 CLR 342 at 352 (citations omitted).
[23](1992) 59 A Crim R 445 at 464.
As to the question of whether the issue of the existence of the data arose for determination on the application, there were a number of occasions on which the question arose for discussion during the course of submissions on 27 January 2009:
·I observed to Mr Desmond that the existence of the data was something which was “very much in issue”.[24]
·Later in the discussion, I raised the hypothetical possibility that if I was inclined to the view that some attempt should be made by internet to establish whether or not the data actually existed, what would be involved in such an exercise.[25]
·I observed in argument to Mr Desmond that there was “a fact in issue in this application as to whether there really is data which will exculpate your client”.[26]
·I noted that Mr Desmond was submitting that there was exculpatory material accessible only via the internet and that “nobody in this courtroom is in a position to take the first step to establish whether that is correct or not”.[27]
·I observed again that there was a fact in issue as to whether there is any exculpatory data.[28]
·I observed that the credit of the accused was very much in issue on this question.[29]
·It was submitted by the Crown prosecutor that there was an issue about whether or not such data existed.[30]
·Importantly, I observed that I was “not just confined to considering whether your client has had a reasonable opportunity to have access to this data since April of last year. ... I’m entitled, indeed I’m required, aren’t I, to look at the entire history and all the evidence that’s available to me on this point”.[31]
·Finally, I noted “[i]f within days of the offence your client was being asked by the Homicide Squad to account for his movements, I’m not for a moment saying he had any obligation to reveal the details, but from then on he obviously understood the importance of this material, if it exists, and exculpates him”.[32]
[24]Transcript at 3744.
[25]Ibid at 3754.
[26]Ibid at 3756.
[27]Ibid at 3758.
[28]Ibid at 3759.
[29]Ibid at 3760.
[30]Ibid at 3766, 3768.
[31]Ibid at 3773.
[32]Ibid at 3775-6.
From the references I have quoted above, it is clear enough that an issue raised in the application was whether the data which the accused said he needed to access via the internet actually existed. I reject the suggestion that I expressly confined the issue to whether the accused had a “reasonable opportunity” to inspect the data. Whether the data existed was relevant to the application. On application for an interim stay of the trial on the basis that the accused needed the internet to access exculpatory material, when the existence of the material is in issue and has been argued before me, it is open to me to come a conclusion about it. I did so, as I was both entitled and required to do.
Self-serving though it may appear, in view of the claim of actual bias, I should specifically say I do not believe I have prejudged any issue that I have decided or will be called upon to decide during the trial. I have, and will in the future, deal with each issue objectively and on the merits as I see them.
Apprehended Bias?
Counsel for the accused asserted that the bias which he claimed existed was actual as well as perceived or apprehended. I have dealt with the issue of actual bias and turn now to consider the question of apprehended bias.
It is, of course, not just this application that the hypothetical, fair-minded and informed lay observer would be aware of. Rather, that lay observer could be taken to be aware of the history of the case at least to the extent that the case was before me. Apart from the issues to which I have referred in Ruling No. 20, no other aspects of my conduct of the case are sought to be referred to as supporting the assertion of actual or perceived bias. In my opinion, knowing the history of this case such a person would not apprehend that I would not bring an impartial and unprejudiced mind to the issues that I would be required to decide. Indeed, simply reading the debate on 27 January 2009 and Ruling No. 20 would, on its own, not have that effect.
Conclusion
For the reasons already expressed, in my view this application is without foundation. My observations about the conduct of the application for an interim stay, both as to timing and content, neither display pre-judgment nor a closed mind to the issues raised. Rather, they represented concern about the manner in which the proceedings were being conducted. My conclusion in Ruling No. 20 that I was by no means persuaded that the data existed was a conclusion on an issue which was squarely raised in the application and open to be made as relevant to the issue that I had to determine.
The application that I disqualify myself from presiding over this trial is refused.
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