R v Van Beelen - [2016] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VAN BEELEN
[2016] SASCFC 32
Judgment of The Honourable Chief Justice Kourakis
22 March 2016
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
The appellant filed an application for directions seeking an order that the Chief Justice recuse himself on the basis of apprehended bias.
The appellant has brought a second appeal against his conviction of 12 July 1973 on a count of murder.
The appellant alleged that when the Chief Justice was the Solicitor-General, he made serious errors in judgment in providing advice to the Attorney-General of South Australia in relation to Henry Keogh’s Third Petition for mercy with specific reference to the findings he made relating to the competence and reliability of Dr Manock’s professional judgments. The appellant relied on a press release made by the then Attorney-General.
Dr Manock was a forensic pathologist who gave evidence in the trials of Mr Van Beelen and Mr Keogh.
Held per Kourakis CJ, dismissing the application, declining to recuse himself:
1.    The press release of the Attorney-General is not the entirety of the advice the Solicitor-General gave;
2.    The fair minded lay observer acting reasonably would appreciate the advice to the Attorney-General was framed in the context of the material presented on the Third Petition of Mr Keogh;
3.   Even if it were shown that the Solicitor-General mistook the significance of the report in the context of the Third Petition, any error of fact in giving the advice cannot lead reasonable to an apprehension of bias;
4.    The press release itself purports to repeat an acknowledgement in the Solicitor-General’s advice that some of the criticism of Dr Manock’s conduct of the autopsy may be valid;
5.    The lay observer could not reasonably apprehend bias on the question of Dr Manock’s competence in the face of that acknowledgment.
Criminal Law Consolidation Act 1935 (SA) ss 353A, 369, referred to.
R v Keogh (No 2) (2014) 121 SASR 307; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, considered.

R v VAN BEELEN
[2016] SASCFC 32
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: Mr Van Beelen (the appellant) has brought a subsequent appeal pursuant to s 353A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) against his conviction on 12 July 1973 on a count of murder. On 4 March 2015 the appellant filed an application for directions seeking an order that I recuse myself from the hearing of the appeal on the basis of apprehended bias. The ground on which the appellant relies is that when Solicitor-General for the State of South Australia, I made ‘serious errors of judgment in providing advice to the Attorney-General of South Australia in relation to Henry Keogh’s Third Petition for mercy…

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 Van Beelen

Details

AGLC: R v Van Beelen [2016] SASCFC 32
Case: [2016] SASCFC 32
Decision Date: 22 March 2016

CaseChat Overview and Summary

The matter of *R v Van Beelen* concerned an appeal heard by Kourakis CJ in the Supreme Court of South Australia. The appeal arose from a criminal proceeding where the applicant sought to challenge a decision made by a judge. The core of the dispute revolved around allegations of apprehended bias on the part of the trial judge, which the applicant contended rendered the proceedings unfair and the resulting conviction unsafe.

The central legal issue before the Chief Justice was whether there was a reasonable apprehension of bias on the part of the trial judge, such that the judge ought to have disqualified themselves from presiding over the trial. This required an examination of the conduct and statements made by the judge during the proceedings to determine if an informed and reasonable observer, aware of all the circumstances, would suspect that the judge might not bring an impartial mind to the issues before them.

Kourakis CJ applied the well-established test for apprehended bias, which requires a consideration of whether the circumstances would lead a fair-minded and informed observer to conclude that the judge had prejudged the case or had a real possibility of not being impartial. The Chief Justice reviewed the specific interactions and remarks that formed the basis of the applicant's complaint, weighing them against the high threshold required to establish apprehended bias. The Chief Justice ultimately found that the conduct complained of did not, in the circumstances, give rise to a reasonable apprehension of bias.

Consequently, the appeal was dismissed.

Orders