R v Ryan (a pseudonym) (No.1)

[2021] NSWDC 727

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ryan (a pseudonym) (No.1) [2021] NSWDC 727
Hearing dates:	15 November 2021
Decision date:	15 November 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Application for Disqualification/Recusal is dismissed
Catchwords:	CRIMINAL - application for Judge to disqualify/recuse on basis of apprehended bias - relevant principles.
Cases Cited:	R v George (a pseudonym) [2021] NSWDC 18; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507; Johnson v Johnson [2000] 201 CLR 488; Helow v Home Secretary [2008] 1 WLR 2416; Isbester v Knox City Council (2015) ALJR 619.
Category:	Procedural rulings
Parties:	Regina (Crown/respondent) Ms Ryan (a pseudonym) (offender/applicant)
Representation:	Ms Keay (Crown Prosecutor/respondent) Mr Dalton SC (Counsel for the offender/applicant)
File Number(s):	2019/201825
Publication restriction:	Statutory non publication and suppression orders made of the names of the offender, child victim, co offender or of any other thing that might, directly or indirectly, identify any of them.

Judgment

1. Presently before the Court is a notice of motion filed by Ms Ryan (a pseudonym) that I should disqualify myself from presiding over the contested facts hearing which is listed for hearing today. The application is opposed by the Crown and, for reasons I shall now identify, the application is refused.

2. Before turning to the particular qualities of the application, some background is required and will take a little time to rehearse - not least because today (excluding bail applications) is the eighteenth occasion that these proceedings have been in this Court.

3. On 28 June 2019 Ms Ryan was arrested and subsequently charged with various alleged offences concerning injuries sustained to her then six week old son.

4. Between the time of her arrest on 28 June 2019 and the proceedings being committed for trial from the Local Court to this Court on 25 June 2020, the proceedings in the Local Court were substantially preoccupied with the question of the accused’s fitness for trial. That is revealed in an affidavit made by Ms Ryan’s previous solicitor (Mr Adam) on 18 June 2021 to which I shall make further reference later in these reasons.

5. The first occasion that the matter came before this Court was on 22 July 2020.

6. The proceedings came before this Court on a second occasion on 16 September 2020 when the Court was told fitness was not an issue.

7. The matter was before the Court for a third occasion on 30 September 2020 when procedural orders were made.

8. The matter next came before the country call over list judge on 14 October 2020 - the fourth occasion. Further procedural orders were made. The matter was ultimately allocated as a special fixture before her Honour Judge Baly SC in Goulburn.

9. The matter was listed before her Honour on 26 October 2020 and, although it was the first time before her Honour, it was the fifth occasion the matter was before the Court. Amongst other things, there was discussion about a judge alone trial.

10. The matter came again before Judge Baly on 5 November 2020 - the sixth occasion the matter was before the Court - and again, amongst other things, there was discussion about a special fixture on 1 March 2021 and whether the matter would proceed by judge alone trial.

11. The matter came before her Honour again on 9 November 2020. This was the seventh occasion the matter was before a judge of this Court. Her Honour was informed there were no prospects of the trial settling and the special fixture of 1 March 2021 in Goulburn was confirmed.

12. The matter came before the Chief Judge on 9 December 2020 - the eighth occasion the matter was before the Court. On this occasion his Honour was informed that fitness was being raised and that the defence might seek to vacate the special fixture.

13. The matter came before Judge Baly on 18 January 2021 - the ninth occasion the matter was before the Court. On this occasion the solicitor for the accused placed on the record that fitness was not an issue.

14. The matter came before Judge Baly again on 1 February 2021 - the tenth occasion the proceedings were before a judge of this Court. Her Honour was informed that the matter had “settled” but that the facts were not agreed and there was likely to be a disputed facts hearing. It was noted by her Honour that the co-offender Mr George (a pseudonym) was to be sentenced by me.

15. The matter again came before Judge Baly on 5 February 2021 - the eleventh occasion the matter was before the Court. On that occasion Ms Ryan was arraigned, she entered pleas of guilty to both counts one and two on the indictment, and then, with the consent of parties, the matter was transferred to me. I want to emphasise: with the consent of parties.

16. Later that day, 5 February 2021, Ms Ryan did in fact appear before me and she adhered to the pleas of guilty that she had made earlier that day before Judge Baly. The matter was then listed for mention before me on 16 February 2021. That was a significant date. It was the date upon which I imposed sentence on Mr George.

17. On 16 February 2021, and before the matter of Ryan was mentioned, that sentence was imposed. Ms Ryan was present in Court, her counsel and solicitors were present in Court, and they all heard every word of the sentence that was pronounced and which was put on Caselaw that afternoon (cf R v George (a pseudonym) [2021] NSWDC 18). I shall return to the terms of those remarks on sentence later in disposing of the current application.

18. But it is appropriate at this point to note that, in the course of those remarks, on more than one occasion, I pointed out that the evidence of Mr George was untruthful, unreliable and inconsistent. And, amongst other things, I said at paragraph 75 and following:

“You have given an undertaking to the authorities to assist in the prosecution of Ms Ryan whose trial was due to commence on 1 March 2021. However on 5 February 2021 Ms Ryan pleaded guilty before her Honour Judge Baly in Campbelltown to two counts on the relevant indictment. After Ms Ryan entered those pleas of guilty her Honour referred Ms Ryan sentence proceedings to me given that I was then to sentence Ms Ryan’s co-offender”, i.e. you. “At the time of that referral I was informed by the parties that although there was substantial agreement as to the relevant facts, they were still in the process of being negotiated. I was also informed that at that stage there was likely to be a contested facts hearing on two issues, (a) the mechanism of injury and (b) the nature of the relationship between you and Ms Ryan. Clearly if the second contested fact issue proceeds to hearing, the Crown will need to call you to give evidence as obviously the Crown does not accept in Ms Ryan’s sentencing proceedings her assertions on relevantly this second issue. You have provided an undertaking to give evidence at any such hearing. If the second contested facts issue proceeds to hearing, I shall obviously have to take into account in the resolution of that matter the manner in which your sentence hearing was conducted and especially your admissions as to giving untruthful evidence and otherwise providing unreliable versions of events. It does not necessarily follow however that your evidence on the second contested fact issue will ultimately be rejected. In the circumstances I shall allow a further 10% discount for the value of any future assistance.”   

19. After having delivered those remarks on sentence, I then turned to Ms Ryan’s matter - which was the thirteenth occasion that the matter had been in this Court. No recusal application was made by counsel then appearing for Ms Ryan - nor until very recent times.

20. The matter was again before me on 4 March 2021 - the fourteenth occasion the matter had been before a judge of this Court. A contested facts hearing was appointed for 26 July 2021 before me. No recusal application was made. Five days of this Court’s time was set aside for that contested facts hearing.

21. Following the appointment of the contested facts hearing (for which an evidentiary timetable was fixed), an application was filed by Ms Ryan for that hearing to be vacated because of some difficulties in obtaining an expert’s report to comply with the evidentiary timetable.

22. The application to vacate the contested facts hearing came before me on 15 July 2021, some 11 days before the hearing. This was the fifteenth occasion that this matter has been before a judge of this Court. An extension to the timetable was made. Surprisingly, fitness was yet again raised - the fourth time that it had been raised in these proceedings - on all the other occasions, raised and abandoned.

23. Following that mention on 15 July 2021, a notice of motion was filed by Ms Ryan for a fitness inquiry.

24. The matter again came before the Court on 21 July 2021 - the sixteenth occasion the matter had been before a judge of this Court. Amongst other things, the previous solicitors for Ms Ryan then sought leave to withdraw.   

25. On 26 July 2021 (that being the day fixed for a protracted contested facts hearing) the legal representation of Ms Ryan changed. The notice of motion for a fitness hearing was abandoned - again.

26. Over the objection of the Crown, the contested facts hearing fixture was vacated by me on the application of (now) senior counsel for Ms Ryan. The Court was told that, rather than a fitness hearing, there was to be an application by Ms Ryan to withdraw her pleas - and the notice of motion to achieve that result was fixed for hearing today, with an estimate of another four days.

27. A timetable was fixed for the filing and service of expert’s reports in connection with that notice of motion. No expert’s report, however, was filed. Rather, in an email on 3 November 2021, it was foreshadowed that an application would be made that this latest hearing to be adjourned on the basis that I should recuse myself. A motion to that effect was formally filed by senior counsel for Ms Ryan in Court this morning.

28. In an application for disqualification (or recusal) a three step approach is required.

29. In Isbester v Knox City Council (2015) ALJR 619, Gageler J at [59] set out those three steps. Step one is the identification of the factor which it is hypothesised might cause a question to be resolved otherwise then as a result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

30. It is helpful to recall in this context what was said in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507 at 564 where at [185] Hayne J said the following in relation to a three stepped approach:

“Saying that a decision maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has a several distinct elements at its roots. First, there is the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. More importantly, there is the assumption that the question which is said to have been prejudged is one which should be consideration a fresh in the relation to the particular case.”   

31. Crucial to this present application is the concept that the fair minded observer was an informed one. As has often been said in numerous cases (for example Johnson v Johnson [2000] 201 CLR 488 at 493): “Where the decision maker is a judicial officer, a fair minded observer will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial. As has often also been said: judges are expected to be equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence together with other material which is notorious or common knowledge.”

32. It is also helpful to remember what Lord Rodger of Earlsferry said in Helow v Home Secretary [2008] 1 WLR 2416 at 2422 [23]:

“Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience.”   

33. And in the same case, Lord Hope of Craighead said at 2418 [2] – [3]:

“The observer who is fair minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious… Her approach must not be confused with that of the person who has brough the complaint... The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively but she is not complacent either. She knows that fairness requires that a judge must be and must be seen to be unbiased. She knows that judges like anybody else have their weaknesses.

Then there is the attribute that the observer is “informed”. It makes the point that before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she read or seen into its overall social, political or geographical context. She is fair minded so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

34. In the present case, it is submitted on behalf of Ms Ryan, that a fair minded observer might conclude that, because I have made some findings in the proceedings involving Mr George, that I have apprehended biased against Ms Ryan.

35. A fair minded observer would know that in those previous proceedings Ms Ryan gave no evidence. She was not represented. She did not participate in any way at all.

36. A fair minded observer would recall the criticisms that were directed at Mr George about his inconsistent and admittedly dishonest evidence.

37. A fair minded observer would know that sentencing judges are called upon, day after day, to sentence co-offenders with substantially different agreed facts or to preside over sentences where there are disputed facts.

38. Nothing that was said by me in the judgment of Mr George could lead a fair minded observer to conclude that I have any views about Ms Ryan at all.

39. It is for these reasons - and for the delay in bringing the application - that the application is dismissed and the proceedings will continue forthwith today.

Amendments

11 February 2022 - Paragraph [4] line 3 - "2020" change to "2021".

Decision last updated: 11 February 2022