R v Softley No. DCCRM-96-1156
[2000] SADC 49
•14 April 2000
R v Steven Angus Softley
[2000] SADC D49
Judge Sulan
Criminal
Carmine Bruno (“Bruno”) and Steven Angus Softley (“Softley”) are charged with taking part in the manufacture of amphetamine. They were jointly charged with Robert Neil Wilson, who pleaded guilty prior to the commencement of the trial and is awaiting sentence. Bruno and Softley were tried before myself and a jury in March and April of 1999. The trial lasted approximately six weeks. On the 15th April 1999, the jury returned a verdict of guilty in respect of Softley. They were unable to agree upon a verdict in respect of Bruno. Bruno was remanded for a retrial.
Softley appealed against his conviction. There were numerous grounds of appeal. Leave was granted on four grounds. The first ground was that I had wrongly admitted certain evidence. That ground of appeal was rejected. The second ground related to a direction to the jury about Softley exercising his right to remain silent when police sought to interview him. That ground was also rejected. The third ground related to the fairness of the summing up. The basis of that ground was that I had commented on a number of submissions of Softley’s counsel in a manner that resulted in an unfair trial. That ground of appeal was rejected. The fourth ground of appeal was that a document which had not been tendered and which I had refused to admit into evidence containing material prejudicial to Softley, had inadvertently been sent into the jury room with other exhibits. That ground of appeal was upheld by a majority of the Court. On the 17th December 1999, the conviction of Softley was set aside and a retrial ordered.
The matter came back to the District Court for directions. Whilst Softley’s appeal was pending, Bruno’s matter had been listed for directions before this Court. On the 30th November 1999, Judge Lee directed that Bruno’s trial be listed on the 8th May 2000.
After the judgment of the Court of Criminal Appeal in Softley’s matter, there was a further directions hearing before me on the 20th January 2000. At that hearing Bruno’s counsel sought a vacation of the trial date. I indicated at that hearing that I would be the trial Judge. I vacated the May trial date and listed the matter for a joint trial to commence on the 7th August 2000.
Mr Crocker, counsel for Softley, indicated that he had instructions to submit that I should disqualify myself from hearing the trial. Mr White, for Bruno, indicated that he required to obtain instructions as to whether his client wished to support the application or make an application of his own. I adjourned the matter for argument.
I was informed that Bruno did not wish to participate in the application and argument proceeded only on behalf of Softley. Mr Crocker submitted that the application was based upon an apprehension of bias. He made it clear that it was not suggested that there was actual bias.
He relied principally upon an exchange between counsel and myself at the conclusion of my summing up in the earlier trial. The following exchange took place :
“HIS HONOUR: Mr White?
MR WHITE: With respect, in my submission, the defence case as put by your Honour seemed to have been overwhelmed by the prosecution's answers to it or your Honour's answers to it.
HIS HONOUR: Perhaps that is because there are answers to it.
MR WHITE: It doesn't, in my submission, derogate from what, with respect, should be done in terms of placing my client's case in a reasonable light. Your Honour may have views about my client's case but, in my submission, in contrast to what was put by your Honour to Mr Lister about discussing Mr Lister's address, your Honour didn't seem to take each point and provide a response to it.
In my submission, your Honour, by the way that your Honour has dealt with my client's case compared to Mr Lister's case has shown indirectly that your Honour may have different views about my client's case to Mr Lister's case. I make that well knowing what your Honour has said about the facts are for them, and your Honour has dealt with the other matters as your Honour sees it.
Having raised that, I'm not sure what the answer is. If your Honour accepts me on the point.
HIS HONOUR: Mr White, I don’t accept the point as you put it. I might have expressed myself in a way in which the jury may take a particular view one way or the other about what I think but I've made it quite clear to the jury it's their decision. I've done that on a number of occasions. I don't intend to bring them back and redirect them. Not on that matter.
MR WHITE: If your Honour pleases.
MR LISTER: I simply say, in relation to my client, that your Honour did express some rather robust views and rhetorical questions to the jury concerning some aspects of the case my client presented.
HIS HONOUR: They might have presented them as robust views and rhetorical questions.
MR LISTER: I don't mean any disrespect.
HIS HONOUR: I'm sure you don't.
MR LISTER: Your Honour is fully entitled to comment upon the evidence and I accept that but, in my submission, the robust views and rhetorical views may have unbalanced the summing up in favour of the Crown.
HIS HONOUR: Sometimes the evidence in the case does balance the matter in favour of one side or the other or one - the prosecution or the defence. I mean every case you look at according to the evidence that is presented. If it's a very, very strong case of course - well if one takes the view that it is a very, very strong case, I don't shirk from that, I take the view that this is a very strong prosecution case and the evidence points that way. If one goes through the evidence, that is the result one comes to. In my view. The jury may take a different view. That is a matter for them. I think when one starts to weigh up the matters and put the case, one can hardly avoid it being put to the jury in the way in which I put it.
MR LISTER: I accept that, as you put that. My application is that the summing up, as your Honour has expressed it, will have left the jury with the view that your Honour views my client Softley as a guilty accused and that that has unbalanced the trial against him.
HIS HONOUR: Well, I understand your submission. There is nothing I can do about that. That is a view that you are expressing to me. I don't accept that that is correct, by the way. But there is little I can do about it, even if I were to accept that it is correct.
MR LISTER: Then I suppose I should say that, in putting that submission, I'm asking for a mistrial, which I assume that your Honour would not grant, but I am making that application on that basis.
Assuming you are against me on that, could I just raise two minor matters?”
Mr Crocker submitted that a reasonable observer who heard the exchange between counsel and myself would conclude that I considered that the accused should be found guilty. If that is correct, he submitted, it follows that a fair minded observer would conclude that I did not believe Softley’s evidence at the trial. He submitted that if those conclusions were open, then at the retrial, if I was asked to exercise my discretion to exclude evidence, and if, in particular, Softley were to give evidence on the voir dire, then an independent observer might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the exercise of my discretion, because I had concluded in the earlier trial that Softley was not a credible witness.
Mr Crocker relied on further material. After Softley’s conviction I remanded him on bail for submissions and sentence. On the 28th April 1999, before submissions were concluded, at the request of counsel Mr Alexandrides, for the Director of Public Prosecutions and Mr Lister for Softley, I saw them in chambers. I was informed by Mr Alexandrides that a juror had contacted the investigating detective indicating a concern over the presence in the jury room of an exhibit which had not been tendered at trial. I therefore determined not to proceed with the submissions and sentencing until after the Court of Criminal Appeal had heard an appeal in the matter. As it turned out, the Court of Criminal Appeal allowed the appeal on the ground that the document which I had excluded had been before the jury.
Mr Lister has sworn an affidavit that in the course of those discussions in chambers on the 28th April 1999, I had informally expressed to counsel my surprise at the jury’s verdict. He deposed that he was unable to recall the exact words but that I had expressed the view that because of the lengthy deliberations of the jury, I had thought they had been unable to agree on a verdict for Softley, but had decided to convict Bruno, and that I thought the Crown had presented an overwhelmingly strong case against each accused and that a verdict of guilty in respect of each accused would have been appropriate.
In the course of this application, Mr Alexandrides expressed a view that he did not agree with Mr Lister’s recollection of the conversation in chambers. My recollection of the conversation in chambers does not accord with Mr Lister’s recollection. I consider it undesirable that I should determine what was said in chambers. In any event, as will become evident in my reasons, it is unnecessary for me to deal further with what was said in chambers.
The test to be applied in an application of this nature was formulated in Livesey v The N.S.W. Bar Association (1983) 151 CLR 288 and reaffirmed in R v Webb (1993-1994) 181 CLR 41. In a joint judgment of Mason CJ and McHugh J, their Honours said at page 47 :
“When it is alleged that a Judge has been or might have been actuated by bias, this Court has held that the proper test is whether fair minded people might reasonably apprehend or suspect that the Judge has prejudged or might prejudge the case.”
The Court affirmed that the principle behind the reasonable apprehension test is that it is of fundamental importance that justice should not only be done but should be manifestly and undoubtedly be seen to be done.
Brennan J agreed with Mason CJ and McHugh J. Deane J expressed the position as follows :
“That test, as so formulated, is whether, in all the circumstances, a fair minded lay observer with a 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 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. The Court specifically rejected the English test that there must be a real danger in the sense of a real possibility of bias before a Judge is required to disqualify him or herself.
Toohey J also confirmed the test as stated in the other judgments.
The principle was discussed by the South Australian Court of Criminal Appeal in R v Hutchison (1993) 171 LSJS 364.
In that case in a trial by judge alone, during the trial, the trial Judge expressed views about the credibility of certain witnesses when ruling on the admissibility of evidence on the voir dire. A ground of appeal was that because the trial Judge had expressed views about the credibility of witnesses, a fair minded observer might entertain a reasonable apprehension of bias and therefore the Judge should have disqualified himself.
Duggan J with whom Cox and Debelle JJ agreed, recognised the difficulty that arises when judges hear criminal matters as judge alone. His Honour referred to the judgment of the Court of Appeal in R v Masters and Others (1992) 26 NSWLR 450 and in particular a passage from that judgment in which the Court did not accept a submission that a judge would be obliged to disqualify himself from continuing with a criminal trial because in deciding the admissibility of evidence after a voir dire examination in which the accused gave evidence, the judge had expressed views critical of the accused’s credit. The Court in Master’s case saw no distinction between the situation where the decision in question is made on a voir dire examination during the trial and the situation where a judge has in a pre-trial motion, for example a bail application, decided an issue against an accused which may well arise again for decision in the trial itself. Duggan J agreed with the views expressed in the New South Wales decision. His Honour referred to the situation where magistrates have, from time to time, been faced with making decisions on the voir dire which may involve the credibility of a defendant and then going on to decide the case. His Honour observed that it is desirable that rulings as to credibility on the voir dire be left to the conclusion of the trial, but that is not always possible.
There are practical reasons why, when a judge or magistrate is both the arbiter of law and fact, that that judge or magistrate will, from time to time, be required to make findings of credibility when deciding the admissibility of evidence. It would make the conduct of trials by judge alone or magistrates, unworkable, if any decision during the case upon the credibility of the defendant would lead to the result that the judicial officer would be required to disqualify himself from further hearing the matter. One could imagine that it would be possible for a defendant to frustrate the trial process by applying for the exclusion of evidence on the voir dire, giving evidence, asking the judicial officer to make a finding on the voir dire and if that finding was negative to the defendant, then asking the judicial officer to disqualify him or herself, because the finding must mean that the defendant’s evidence was not accepted on the voir dire and therefore that judicial officer was perceived to be biased and must disqualify himself.
The situation with which I am faced is distinguishable from that referred to by Duggan J in Hutchison. I am considering a new trial, having been the judge in the earlier trial. I accept the submission of Mr Crocker that the views I expressed at the conclusion of the summing up that the prosecution case was very strong may lead an independent observer to conclude that I considered that Softley was guilty. If that be the case, then an independent observer might conclude that I did not accept Softley’s evidence at the trial.
It follows from that conclusion that at the retrial, if Softley were to give evidence on the voir dire, it is open to conclude that an independent observer might consider that I having not accepted Softley’s evidence at the trial, could not bring an impartial or unprejudiced mind to determining matters on the voir dire where both Softley’s credibility and the exercise of my discretion was required. In those circumstances I accept that it would be open to conclude that an independent observer in all the circumstances, might entertain a reasonable apprehension that I might not bring an impartial or unprejudiced mind to the resolution of the question in issue. Once that test is satisfied, whatever my subjective views about the position may be, that is irrelevant.
I make it clear that I do not accept that the conclusion of what an independent observer might conclude is in fact the position. I consider that I would bring a fair unprejudiced mind to the proceedings, however, I accept that that is not the test. I accept that an objective observer may arrive at a different conclusion. I therefore uphold the application and determine that I will not act as trial Judge at the retrial.
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