R v Visser and Falanga No 2
[2013] VSC 627
•21 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0021 of 2013
No: 0004 of 2011
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| JAN VISSER AND CARMELO FALANGA | Defendants |
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RULING NO 2
JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2013 | |
DATE OF RULING: | 21 November 2013 | |
CASE MAY BE CITED AS: | R v Visser & Falanga No 2 | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 627 | |
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Application by accused Visser for King J to disqualify herself from presiding in this trial
on the basis of apprehended bias.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Young | Commonwealth Director of Public Prosecutions |
| For the Defendant Visser | Jan Visser - Self represented | |
| For the Defendant Falanga | Mr S Bayles | Robert Stary Lawyers |
HER HONOUR:
Application has been made on behalf of the accused, Jan Visser, for me to disqualify myself from presiding in the trial of the Crown v Visser and Falanga, on the basis of apprehended bias. I have received a 36 page written submission signed by the accused Visser, dated 4 November 2013. Upon examination of that document, the grounds upon which Visser relies for the establishment of apprehended bias are, firstly, that I have failed to give all due assistance to a self‑represented litigant and in such a manner that would lead a fair‑minded person to conclude that I have pre‑judged or may pre‑judge the case and have acted with bias. Visser has then relied upon a number of examples of that alleged failure to assist.
The second basis are the comments made in relation to the defendant exercising his right to appear in person and defend himself in these proceedings. Once again numerous examples of comments relating to failure to engage qualified lawyers are given.
Thirdly, a reference made to the fact that the written submissions prepared in respect of pre‑trial issues were not prepared by the accused.
Finally, my determination to have a joint trial with the accused Carmelo Falanga.
In relation to the first of the grounds, that of failure to provide appropriate assistance to the accused man, as I stated at the time of this application being made, and I have made clear in Ruling No 1 in this case, the court has duties and obligations to the accused man as he is unrepresented, but those duties and obligations ought not be mistaken as a duty or obligation to advise the accused man in a manner equivalent to a lawyer. The court is obliged, has done in the past, and will continue to advise him in the future, of his options, choices and ways in which he can produce evidence in a court, cross‑examine, make submissions and matters in a similar vein. What the court cannot do, which needs to be clearly understood, is advise him which of those options or courses he should choose. A great deal of the submission deals with an analysis of the obligations of a judge to an unrepresented accused. Those obligations are well‑known[1]. They apply even though this be a Commonwealth matter in the same way as they would to any other unrepresented litigant in a Victorian prosecution. I will shortly deal with the examples that have been relied upon.
[1]Dietrich v R (1992) 177 CLR 292; Macpherson v R (1981) 147 CLR 512.
The Judges in the High Court decision of Dietrich v R pointed to the difficulties faced by any trial judge who tried to extend a “helping hand” to a self-represented accused, for, as they noted, the role of the trial judge is fundamentally different to that of defence counsel.[2]
[2]Dietrich v R (1992) 177 CLR 292, 302 per Mason CJ and McHugh J, 334-335 per Deane J, 345 per Dawson J, 354 per Toomey J, 369 per Gurdon J.
Visser relied upon numerous passages contained in the decision of Tomasevic v Travaglini[3], a decision of Bell J, particularly in relation to the obligations and duties of a trial Judge when dealing with an unrepresented accused, and more particularly his right to be unrepresented. His Honour it should be noted also said the following;
[3][2007] VSC 337.
The Australian Institute of Judicial Administration has prepared a report to assist courts and tribunals in planning for the management of litigants in person.[4] It describes the disadvantages suffered by litigants who appear without representation in civil and criminal proceedings.
This is how the Institute describes the disadvantage that comes from a lack of professional skill and ability:
By definition litigants in person lack the skills and abilities usually associated with legal professionals. Most significantly, lack of knowledge of the relevant law almost inevitably leads to ignorance of the issues that are for curial resolution for the court or tribunal… This ranges from lack of knowledge of courtroom formalities, to a lack of knowledge of how the whole court process works from the initiation of a proceeding to hearing. Litigants in person also lack familiarity with the language and specialist vocabulary of legal proceedings.[5]
This is the disadvantage that comes from a lack of objectivity:
The problem of self-representation is not just a lack of legal skill – it is also a problem of a lack of objectivity and emotional distance from their case. Litigants in person are not in a good position to assess the merits of their claim …[6]
I would adopt this description of the disadvantages suffered by self-represented litigants, for it is consistent with decisions of courts in Australia, in respect of both the lack of skill and ability[7] and the lack of objectivity,[8] and of courts overseas,[9] as well as my own experience.
None of this denies that some people appear self-represented by choice - one that the law respects. The rule is that, in the ordinary course of civil or criminal litigation, all natural persons have a right to appear unrepresented.[10] The right to defend yourself without legal representation in criminal proceedings is “fundamental” and should not be interfered with.[11] People who choose to defend themselves against criminal charges forfeit none of their legal rights, although they obtain no special advantages,[12] and their election to appear self-represented means the trial cannot be unfair on that ground.[13] A person who refuses or neglects to comply with the reasonable requirements of a legal aid authority cannot be said to be unable to obtain legal representation, and their trial without legal representation will also not be unfair on that ground.[14] The duty of a trial judge to ensure that the trial of a self-represented person is fair applies whether he or she has been unable to obtain legal representation or appears self-represented by their own choosing.[15]
[4]Australian Institute of Judicial Administration Incorporated, Litigants in Person Management Plans: Issues for Courts and Tribunals (2001).
[5]Ibid 3 (footnote omitted).
[6]Ibid 4 (footnote omitted).
[7]Nagy v Ryan [2003] SASC 37, [40]-[41]; Commissioner of Taxation v Met skills Pty Ltd (2003) 130 FCR 248, 273; R v White (2003) 7 VR 442, 454-459; Tobin v Dodd [2004] WASCA 288, [13]; Panayiotopoulos v Rajendram [2005] NSWCA 58, [33]; Stock v Anning [2006] WASC 275, [54]; R v Rostom [2007] SASC 210, [59] (accused could not read English); In the Marriage of Sajdak (1992) 16 Fam LR 280, 283-284 (no legal representation or reliable interpreter, so “almost laughable to speak of notions such as equality of access to the courts”).
[8]Dietrich v R (1992) 177 CLR 292; Awan v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 120 FCR 1, [46]; Nagy v Ryan [2003] SASC 37, [40].
[9]See eg Canada: R v Phillips 2003 ABCA 4, [16]-[19] (Court of Appeal of Alberta); Wagg v Canada [2004] 1 FC 206, [26] (Federal Court of Appeal of Canada); Barrett v Layton (2004) 69 OR (3d) 384, 390-391 (Ontario Superior Court of Justice).
[10]Collins (alias Hass) v R (1975) 133 CLR 120, 122; Burwood Municipal Council v Harvey (1995) 86 LGERA 389.
[11]R v Zorad (1990) 19 NSWLR 91, 95; Cachia v Hanes (1994) 120 ALR 385, 391.
[12]MacPherson v R (1981) 147 CLR 512, 546; R v Zorad (1990) 19 NSWLR 91, 95; In Re an Inquiry into Mirror Group Newspapers PLC [2000] Ch 194, 212 (a civil case).
[13]Dietrich v R (1992) 177 CLR 292, 336; see also Craig v South Australia (1994-1995) 184 CLR 163, 185-186.
[14]Karounos v R (1995) 77 A Crim R 479, 485-6.
[15]MacPherson v R (1981) 147 CLR 512, 546-547.
The first example upon which the accused Visser relies, relates to an application by the accused man to enable him to talk to a person who may be a potential witness, that person is also in custody and subject to the Department of Corrections. It was indicated that Corrections had refused to permit the accused man to have a conference or meet with this person by the name of Scarponi. It was indicated by Visser that he was subject to the supervision of Corrections as was Mr Scarponi; it was not something within the ordinary power or role of a court to direct Corrections to permit a meeting or conference to occur between two prisoners. The submission seeks to equate the accused Visser to a lawyer and refers to s 40 of the Corrections Act 1986, which is headed, Visits by Lawyers and their Assistants, and argues if he was represented by a lawyer, that lawyer would be able to see Scarponi, pursuant to s 40 of the Corrections Act, and thus make the inquiries to ascertain whether or not Scarponi has relevant evidence.
The submission, appears to argue that the court should, in some manner, elevate the position of Mr Visser to that of a lawyer acting on his behalf and direct Corrections to treat him in this manner. It was argued that if he does not have the same access as a lawyer does, then he is being disadvantaged by his status as an unrepresented litigant, but it is also argued that he is not seeking to obtain any special advantage as a result of being unrepresented. There are no circumstances in which Visser would be eligible to utilise s 40 of the Corrections Act as one of the requirements of s 40 is that the person be a lawyer or assistant acting in the course of a lawyer’s practice. Reliance was also placed upon Part 8 of the Corrections Act 1986, which relates to the temporary absence from prison of a prisoner; Division 2, s 56, Transfer of Prisoners, which states that the Secretary may, by instrument, direct the transfer of a prisoner or a class of prisoner from one prison to another or from one part of a prison to another part of a prison, and, Division 3 Custodial Community Permits, s 57 and 57A, which relate to a Corrections Administration Permit in relation to a person being under police protection on account of evidence given or to be given. I fail to see the relevance of ss 57 or 57A, and whilst the relevance of s 56 can be ascertained as it is a section which permits the Secretary to transfer the accused man from his part of the prison to the part of the prison of Scarponi or vice versa, they have no application to the role of the court. These are all administrative matters directed to the department of corrections and Governors within the prisons. Further, all of those matters are subject of course to the prisoner, Scarponi, being willing to receive a visit from the accused, a fact of which I have no knowledge.
The submission contains a ‘model answer’ to the question posed by the accused, Visser, being ‘You’ve got no power to assist in any way’, which pre-supposes numerous matters of which no evidence of a formal or informal nature was placed before me and concluded in that very lengthy ‘model answer’ that the court should have informed Mr Visser that he could seek to have his trial stayed on the basis of the ruling in Benbrika and Ors[16] or that he could commence proceedings in the Civil Jurisdiction of this court to enforce the provision of his human rights as it is noted.
[16]R v Benbrika, Ruling No 20, [2008] VSC 80.
What was sought from the accused man was some information as to what this person may be capable of giving evidence about, to ascertain whether any further steps should, or could, be taken by this court to assist the accused in relation to obtaining the evidence of Scarponi for the purposes of a trial. He was advised to write to Mr Scarponi and ask him about the matters he could detail and, as indicated, provide that to the court in confidence, it would be examined and returned to him and the court could then advise him of what possible processes or procedures may be available. It was not at the stage, on the information provided to the court, that all avenues had been exhausted and, accordingly, a stay of proceedings was the only appropriate procedure that was available to the accused. The court provided the accused, Visser, with what was considered to be the appropriate practical procedure to assist him in relation to obtaining the evidence of Scarponi. He was informed that currently the evidence of Scarponi did not appear to be relevant, as he was a person who was a receiver of information, that information being recorded and available to be played to the jury itself, but that if he had further material and obtained something or gave the court an indication about his potential evidence in confidence then the court could consider the next step.
The next matter in relation to the court’s duty to give all due assistance to a self‑represented litigant, relates to a discussion in which the court was attempting to ascertain what the defence of the accused was. Although listed as being a matter in which there was a failure to provide due assistance, it appears that in fact this really is an argument going to the fact that there is actual bias or at least apprehended bias against the particular accused. At page 22 of the submissions the following is said:
Accordingly, not only are the assertions of King J misconceived in this regard a fair‑minded person would be entitled to conclude King J has pre‑judged or will pre‑judge this case and so the defendant will not receive a fair trial for same.
The comments referred to are a discussion between the judge and the accused Visser as to his defence – with Visser stating his defence will be that the Crown cannot establish knowledge of content of the containers. The court informed him that that defence had been run previously, and enquired if he was aware of that? That it had been run in the previous trial and a jury were satisfied beyond a reasonable doubt. The discussion continued:
King J:All of those issues were run on the last occasion and jury was satisfied beyond a reasonable doubt, so I’m just telling you that when you say they can’t establish, I’m saying that in fact they possibly can as they did on the previous occasion, all right.
Visser:That’s a decision for the jury in that case is it not your Honour?
King J:Indeed of course it is, but you’re saying it can’t be established, I’m just indicating to you, are you aware that on the previous occasion that was run and it was established to the satisfaction of the jury beyond reasonable doubt?
On another occasion there was a discussion about his defence when he indicated that the Crown being unable to prove was only part of his defence and he stated that another part of his defence was that he had withdrawn from the actual agreement and he had done that at 11 o’clock on 4 July 2007. The court explained to him that there was a possibility that if that is part of his defence, the evidence relating to his contact with Barbaro and others involved in the conspiracy after that time may become more relevant.
The following is the discussion that occurred at that time:
King J:Then that’s going to make it – if you say that you’ve withdrawn it is going to make all of your contact with Mr Barbaro and anyone else after that time much more relevant, isn’t it.
Visser: Yes it will, won’t it?
King J:Yes. Including the international movement and things of that nature that you say aren’t admissible because they’re not relevant.
Visser: They’re not relevant to the conspiracy, no.
King J:The problem is they become relevant if that is part of your defence. There’s every likelihood that they become relevant because you say you you’ve withdrawn from this conspiracy and therefore you would expect to have ceased contact in all likelihood.
Visser: Well that’s not quite true.
King J:Well I’m just saying that that’s where the relevance may come in. Alright, so withdrawal and no knowledge of content.
Visser: That’s correct.
All of these discussions are occurring at an early stage when the issues are trying to be sorted out, including what is the defence of the accused man, so that the issues of relevance and admissibility of any material in the trial can start to be determined. Nothing has been stated there except for factual matters, including what a jury has found previously and ensuring that he is aware of that, together with an indication of what may be a potential consequence of the accused arguing a withdrawal from the conspiracy as part of his defence.
None of this material demonstrates any pre‑judging of the issue by the court, rather it highlights the difficulties of dealing with unrepresented accused. The concern that is expressed in relation to the comment by me that ‘the prospect of hearing these recordings again is frightening’, does not reflect adversely upon the accused or the courts view of his guilt, or the Crown, it just bespeaks the truth. Any right‑minded person who had sat through and listened to the whole of the proceedings, being played on the last occasion, would understand the comment as indicating the difficulty of rehearing the same lengthy material.
The next basis upon which the application is made relates to a discussion in the pre‑trial mentions when the accused man was explaining to the court that the prosecutor was being unfair, and that the accused was unable to run a proper defence because the Crown knew he was seeing Barbaro for an unrelated matter, being, that he was trying to obtain identification papers as he was an escapee from Sydney. The court explained that that was a matter that he could put before a jury, as a proper defence. The accuser’s argument was that the Crown should not be permitted to use any of the conversations recorded in July in the hotel in Little Bourke Street, being the conversations upon which the Crown base their argument that the accused man was involved in this conspiracy because the reason he was in Melbourne, on his version, was for unrelated matters and not for an involvement in the conspiracy. The unrelated matters are as I have just indicated.
What he was informed by the court was:
King J:But you see, that’s precisely the issue the jury have to determine. The Crown have conversations which they say establish that you have stepped into the conspiracy, that is a matter for the jury. That’s precisely the issue they determine. Where you in the conspiracy or were you a commentator on it.
Once again, a hypothetical reply has been drafted in the submissions. That hypothetical response is inaccurate and not appropriate for a discussion relating to those matters on the basis that it includes the following:
However, it is my duty to inform you that if you choose to do so it will open a door enabling the prosecution to put before the jury the reason for your incarceration in New South Wales and perhaps your entire criminal history, which could prejudicially affect the way in which the jury may look at you in this trial.
It also continues on in relation to this hypothetical response, with the following:
You are also able to make an application to me for a ruling in relation to this issue, that would permit you to put before the jury the fact that you were seeing Barbaro, at this time for alternative reasons, and orders that would prevent the Crown from being permitted to explore those reasons in front of the jury or highlight that these reasons are missing from the recordings made from the listening device, as the Crown has conceded the prejudicial effect of this material far outweighs any probative value attached to these discussions. In other words, upon you making the requisite application to the court, it may be we are able to proceed either by consent or by orders being made to permit the fact that there was an unrelated alternative reason for your association with Barbaro to be put before the jury in a way that is not prejudicial and of course would not prevent the Crown from being able to assert that you were also there or primarily there as a participant in the conspiracy.
There seems, unfortunately, to be an assumption contained within these submissions that what was being discussed at that time was what courses the accused man should follow, the manner in which it should be done, the considerations and the alternatives. That was not what was occurring. This was rather a general complaint that the Crown was being unfair in that they knew he had a secret reason for being in Melbourne and it was unfair to let the Crown lead any of the evidence relating to his discussions at the hotel in July. There has been a subsequent discussion of this issue of his defence relating to obtaining of identity documents, a great deal more has been explained to Visser as well as options about re-including material that had been originally excluded by the Crown, that re-inclusion being designed to assist him in demonstrating his alternative scenario. Further, there has now been a direction by the court and a subsequent agreement by the Crown that no evidence relating to his time in jail in Sydney, his reason for incarceration in Sydney or the fact that he was an escapee would be led by the Crown, merely that false documents relating to identity were being sought from Barbara.
The taking of these discussions out of the context in which they have been held in this manner is not of assistance when trying to determine this application. The hypothetical responses suggested are not in language that would be used by the court on any occasion when dealing with an unrepresented accused. The whole idea of assisting an accused person is to ensure that they understand what it is they can and cannot do. The hypothetical answers are clearly drafted by someone who has read a great number of authorities and is written in what I would describe as an appellate court form. It is certainly not the way the accused man, Visser, has spoken to me in court or when seeking assistance. I find the hypothetical responses contained in the submissions to be entirely off the actual point that the court is dealing with at that time, couched in unrealistic language, with issues being raised that are not relevant at that stage, and inappropriate in the overall proceedings to date.
In respect of the comments made by the court in relating to the accused choosing to remain unrepresented, there is no doubt that there has been considerable encouragement by the court for the accused man Visser to obtain legal representation for the trial. This offence carries a penalty of life imprisonment as the maximum sentence. All persons charged with offences of this seriousness should be represented, if at all possible, to ensure that they have the best advice and representation. There are so many disadvantages to a person appearing unrepresented, that the Court are incapable of curing[17]. There is no jury present and the court will continue to encourage Visser to obtain representation whenever it is appropriate to do so.
[17]Paragraph 7 of ruling.
The circumstances of his refusal of legal representation are that the accused was originally represented by Mr J Kelly, instructed by Leanne Warren & Associates. Mr Visser terminated the instructions of Mr Kelly as well as those of his instructing solicitor and has chosen to represent himself. He states that he has lost faith in those representing him and feels he will be better served by appearing for himself. This is clearly set out by the accused Visser in his submissions of 4 November 2013 wherein he outlines the course of his representation and/or lack thereof. On 5 March 2013, the accused was strongly advised to engage the services of a lawyer[18] and he continues in the submission[19]
[18]Transcript 5 March 2013 page 17; ‘I just say to you very strongly, get your lawyers involved in this now’.
[19]Submission 4 November headed “Outline of submissions (Application for the Honourable Justice King to withdraw from presiding over this matter for apprehension of bias) page 26ff.
After the directions hearing on 5 March 2013, the defendant managed to obtain legal representation in this matter and so was represented by counsel in the following appearances. On 5 August 2013, being the date the trial had been listed to commence it was adjourned upon an application by the Crown the co-accused Falanga had not yet been transferred to Victoria.
However, due to those legal practitioners continually failing to follow reasonable instructions, being unavailable to the defendant, as they were involved in other trials in rural Victoria and as a consequence of taking on that work when they should have been preparing for this matter, inter alia, these lawyers were not fully prepared and did not know the material for this matter and on at least one occasion, 11 September 2013, the defendant’s former counsel misled the Court as is contained at line 22 on page 1 of the transcript of the directions hearing on that date:
Mr. Kelly:And I was wanting to explain why I wasn’t in court on Friday, although I’m sure my instructor would convey to you why it was that I wasn’t able to attend.
King J:No, I don’t think she actually did. It’s all right, a family matter, yes, sorry
Mr Kelly:As your Honour pleases
The real reason Mr. Kelly of counsel was not in court on Friday is that he was in another trial in rural Victoria, although no attempt was made to amend the record to reflect same.
This situation, understandably resulted in the defendant loosing (sic) all confidence in those legal practitioners who, as was glaring obvious, were not acting in the defendant’s best interest. After discussion between the defendant and those practitioners they expressed the mutual belief that too much water had passed beneath the bridge and therefore they could no longer ethically represent the defendant so withdrew from this matter.
The applicant in an attempt to obviate the need for the trial to be further adjourned because of the delay that would be caused by, inter alia, the bureaucratic red-tape preventing a person at the Metropolitan Remand Centre (“MRC”) the ability to exercise their right, pursuant to s 25 (2) (b) of the Charter, to choose new legal representation by denying access to the Yellow pages or similar directories. And even if the list of lawyers on the legal aid indictable panel was provided there was approximately 32 other people including the co-accused charged as a result of the same AFP operation most of whom used legal practitioners on the Legal Aid panel so even after choosing another legal practitioner it is possible that practitioner may be conflicted. Then the brief and funds would need to be transferred including the additional funds necessary for preparation. And then there is the time needed to prepare, have conferences, etc. Therefore, the defendant decided to represent himself.
The defendant hoped by exercising the right to defend himself it would avoid the delay that would inevitably be caused by the above and expedite the trial being conducted, so the defendant exercised his right, pursuant to section 25(2)(d) of the Charter to be tried in person. A right that is “fundamental”, “the law respects” and “should not be interfered with” as pointed out by this Court in Tomasevic, which is cited above.
The court has advised Visser on numerous occasions to seek other representation if he was dissatisfied with Mr Bayles or his instructing solicitor, but ultimately as demonstrated in the above passage, he has declined any legal assistance and has indicated to the court that he is determined to represent himself in these proceedings.
That of course is his right, but in light of the seriousness of the charges that he faces and his lack of legal knowledge, legal representation is a matter that the court pursues with him constantly. However, as indicated, despite a grant of aid being available to him, he strongly refuses to utilise the services of a qualified lawyer. The continued encouragement of the court to obtain and utilise the services of a legally qualified admitted lawyer with appropriate skills and ability is not a basis for concluding that there is any apprehended bias on the part of the court and no fully informed, right thinking person would form such a view.
The complaint that the court’s bias against the accused man has been demonstrated by a direction that he must provide copies of documents that he provides to the Judge also to the prosecution, is totally without merit. As it the complaint that the court was attempting to embarrass the accused by stating that the submissions had not been written by him, but some other person, and making enquiries of him as to what he meant by a particular statement within his submissions.
The next argument in respect of the application for the disqualification for apprehended bias is the acceptance by the court that this was going to be a joint trial with Falanga, even when Falanga had not yet been extradited. This was a conspiracy charge in which two persons charged with the offence remained to be dealt with for the offence, being Falanga and the accused Visser. It was always intended, if both parties were available, for the trial to be a joint trial as the presumption is that all persons charged jointly should be heard together.[20] An acknowledgment that the court intends to comply with the law cannot be a proper basis for an application to disqualify a Judge on the basis of apprehended bias. There is no substance to this point, as there has been a subsequent application for separate trials that has been heard and dealt with at an appropriate stage of the proceedings.
[20]Webb & Hay v R (1994) 1 81 CLR 41.
The final argument demonstrates a clear misunderstanding of the discussion taking place between the prosecutor and the trial Judge. The matter under discussion related to what issues the Judge would be obliged to charge the jury upon in this case, and there was reference to the recently passed Jury Directions Act 2013, in particular s 12 which relates to the directions a trial Judge is obliged to deliver when the accused is unrepresented, and the reference to not having to direct upon insanity and the like was an entirely appropriate comment, as the obligation is that the Judge must act as though every matter contained in s 10[21] was in issue. Insanity was not a defence that was being raised, and accordingly, as can be seen from the response, this was not a ‘sarcastic dig’ at the accused Visser , but a serious discussion about the length and duration of the trial, and what may become issues before the jury.
[21]Section 10 Jury Directions Act 2013.
Accordingly, for the reasons outlined above, there is no substance to the application for apprehended bias, and the application is dismissed.
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