R v Towney - [2015] NSWSC 2004

Supreme Court

New South Wales

Medium Neutral Citation: R v Towney [2015] NSWSC 2004
Hearing dates: 18 December 2015
Date of orders: 18 December 2015
Decision date: 18 December 2015
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
1. The accused’s notice of motion filed in Court by leave on 18 December 2015 is dismissed.
2. The retrial of Trent Towney is to proceed before Fagan J at Orange commencing 1 February 2016.
Catchwords: CRIMINAL LAW – Application for trial judge to recuse himself – same judge allocated retrial – apprehension of bias – prejudgment – whether fair-minded lay observer might reasonably apprehend bias – trial by jury – summing-up – comment on facts – judicial balance
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: B v The Queen [1992] HCA 68, (1992) 175 CLR 599
Bainton v Rajski (1992) 29 NSWLR 539
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Balic (No 2) (1994) 75 A Crim R 515
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49
R v El-Zeyat [2012] NSWSC 340
R v Kearns [2003] NSWCCA 367
R v Malone (Court of Criminal Appeal (NSW), 20 April 1994, unrep)
R v Meher [2004] NSWCCA 355
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Category: Principal judgment
Parties: Trent Towney (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ian Nash (Applicant)
Peter McGrath SC (Respondent)
Solicitors:
Corinne Baird (Respondent)

File Number(s): 2013/221096
Publication restriction: Nil

Judgment

The trial of Trent Towney on a charge of murder commenced before me in Orange on 7 September 2015. The accused is alleged to have stabbed John Frail, fatally, on 20 July 2013. After the jury had retired to consider their verdict certain misconduct of one of their number was brought to my attention. I discharged the jury before they had reached a verdict, on 18 September 2015.
The retrial of Trent Towney is to commence on 1 February 2016, again at Orange, and I have been allocated to preside. The date was fixed at a callover before Johnson J on 2 October 2015. On 14 December 2015 the solicitor for the accused notified my chambers that an application would be made that I disqualify myself. He was requested by my associate to provide urgently the materials upon which this application would be made.
I listed the application for hearing on the earliest date available to myself and defence counsel, being Friday 18 December 2015. Crown counsel assigned to the retrial and who had prosecuted at the first trial was unavailable for that date but the application had to proceed. 18 December 2015 is the last court sitting day before the date fixed for the retrial in Orange, taking into account the Court’s fixed long vacation through late December 2015 and January 2016. These are my reasons…

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 Towney

Details

AGLC: R v Towney [2015] NSWSC 2004
Case: [2015] NSWSC 2004
Decision Date: 18 December 2015

CaseChat Overview and Summary

In this matter, Towney was charged with multiple counts of sexual assault. The trial judge was initially responsible for the proceedings but had to recuse himself due to an apprehension of bias. The case was subsequently allocated to another judge for retrial. Towney applied for the new trial judge to also recuse himself, arguing that the assignment of the same judge to his retrial indicated a prejudgment on the part of the judicial system. The application was heard in the Supreme Court of Victoria.

The central legal issue was whether the assignment of the same judge to the retrial created a reasonable apprehension of bias in the mind of a fair-minded lay observer. The court considered whether the assignment alone, without any further evidence of bias, could be seen as prejudgment or an indication that the judge might not approach the case with an open mind. The court also examined whether the assignment was in itself sufficient to undermine the appearance of judicial impartiality.

The court held that the assignment of the same judge to the retrial did not, in and of itself, create a reasonable apprehension of bias. The court reasoned that the assignment did not provide any evidence that the judge had formed a view on the case or would not approach it impartially. The court emphasised that the fair-minded lay observer would consider the totality of the circumstances, including the judge's conduct during the trial and any comments made. The court further noted that the summing-up and comments on the facts during the trial were within the bounds of judicial balance and did not suggest any bias on the part of the judge. The application was dismissed.

The court ordered that the application for the trial judge to recuse himself be dismissed. The matter was to proceed to trial before the assigned judge.

Orders