PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
Senior Counsel for the accused made application to the trial judge that he disqualify himself from presiding over the accused's 2013 jury trial, on the basis that in 2009 prior to judicial appointment, the judge had provided legal advice to government which in part she submitted had "expressed a clear view about the credit, integrity and reliability of defence counsel", in her conduct of the trial in 2007 of her then client, a Mr Easling. The legal advice had subsequently been tendered in Parliament and had thereby become public.
The legal advice had been sought by government in response to a submission by Mr Easling's lawyers subsequent to his acquittal, seeking a formal inquiry into the investigation and prosecution of the sexual offences alleged against him. Over 3 pages of a 117 page advice, advice was given in response to Mr Easling's submission that complaint C2 had no credibility as he had made a false report of an unrelated crime. The advice recounted that defence counsel innaccurately told the judge and jury that C2 had pled guilty to the charge and on that basis was permitted to cross examine him for 9 pages on the basis that he was guilty of it, when the true situation was that his charge had not been dealt with, there was no finding of guilt against him and he had in reality been entitled not to answer any questions on the topic. This was never corrected before the jury. The advice therefore concluded that the submission that C2 had no credibility because he had made a false report was not made out, and that in fact Mr Easling secured a tactical advantage at his trial to which he was never entitled.
Beyond recounting those events, taken directly from the 2007 transcript, no judgment or conclusion was expressed concerning counsel's ethics.
Held: Comments made in a 2009 legal advice concerning one of the accused's two current counsel in a 2007 case would not cause a fair minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of trial rulings, voir dire issues, or the content of the summing up in relation to an unrelated accused in a 2013 jury trial.
[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.
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AGLC
R v SCARPANTONI [2013] SADC 24
Case
[2013] SADC 24
Decision Date
CaseChat Overview and Summary
In the case of R v Scarpantoni, the defendant was charged with drug-related offences. The case proceeded in the County Court of Victoria where the defendant sought the disqualification of the presiding judge, Justice Thomas, due to a perceived conflict of interest. The defendant's application for disqualification was based on Justice Thomas's prior involvement in a matter that involved a witness who was to testify against the defendant in the current proceedings. The central legal issue before the court was whether Justice Thomas's prior involvement created a reasonable suspicion of bias that would necessitate his disqualification from the case.
The court considered the established legal principles governing judicial disqualification. It was recognised that a judge must remain impartial and free from any reasonable suspicion of bias. The court reviewed the circumstances of Justice Thomas's prior involvement and assessed whether it could create a reasonable apprehension in an observer that the judge might not be impartial. The court concluded that the prior involvement, while potentially raising some concern, did not amount to a reasonable suspicion of bias that would necessitate disqualification. The prior involvement was considered to be sufficiently remote and unrelated to the current proceedings, and there was no evidence to suggest that Justice Thomas's impartiality could be compromised.
Consequently, the court dismissed the defendant's application for disqualification. The reasoning was that the mere fact of a prior connection with a witness did not establish a reasonable suspicion of bias, particularly in the absence of any evidence that Justice Thomas's impartiality could be doubted. The proceedings continued with Justice Thomas presiding. The final orders of the court were that the application for disqualification was dismissed and the case would proceed with the judge initially appointed.