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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rich (Ruling No. 21)

Details

AGLC: R v Rich (Ruling No 21) [2009] VSC 32
Case: [2009] VSC 32
Decision Date: 11 February 2009

CaseChat Overview and Summary

The respondent, Rich, applied for the trial judge to be disqualified for actual or apprehended bias. The application arose during a criminal trial in the Supreme Court of New South Wales. The application was made on the basis of comments made by the judge during a stay application that had previously been heard by the court. The primary judge, Rares J, found that the comments made by the trial judge did not amount to actual or apprehended bias and dismissed the application.
The legal issues the court had to decide were whether the findings of fact made by the primary judge on the stay application were findings on an issue arising in the criminal trial, and whether those findings, coupled with other comments made by the trial judge, amounted to evidence of actual or apprehended bias. The respondent submitted that the findings on the stay application were findings on an issue arising in the criminal trial and that the judge's criticism of lawyers and other comments amounted to evidence of bias.

The court held that the findings made by the trial judge on the stay application were not findings on an issue arising in the criminal trial. The court also held that the judge's criticism of lawyers and other comments did not amount to evidence of actual or apprehended bias. The court found that the comments were made in the context of the stay application and were not related to any issue arising in the criminal trial. The court also held that the comments did not demonstrate any partiality or prejudice on the part of the judge towards the respondent. The application for disqualification was dismissed.

Orders