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R v White

R v White

Case [2021] NSWSC 962 3 August 2021

Criminal Liability

Reasonable Apprehension of Bias

Recusal of Judge

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v White [2021] NSWSC 962
Hearing dates: ---
Date of orders: 3 August 2021
Decision date: 03 August 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Johnson J recuses himself from presiding at the pretrial hearing and at the trial of the Accused.

Catchwords:
CRIMINAL LAW – murder – Judge issues surveillance device warrant – conversation recorded under warrant relied upon by Crown as alleged admissions – pretrial application to exclude evidence of admissions – whether Judge who issued warrant should decline to sit at pretrial hearing and as trial Judge – reasonable apprehension of bias – Judge recuses himself from pretrial hearing and trial

Legislation Cited:
Evidence Act 1995 (NSW)
Listening Devices Act 1984 (NSW)
Surveillance Devices Act 2004 (Cth)
Surveillance Devices Act 2007 (NSW)

Cases Cited:
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Islam v Minister for Immigration and Citizenship (2009) 51 AAR 147; [2009] FCA 1526
Love v Attorney General for NSW (1990) 169 CLR 307; [1990] HCA 4
McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
McIver v R [2020] NSWCCA 343
R v Eastman (1994) 121 FLR 150
R v George and Others (1987) 9 NSWLR 527
R v Kearns [2003] NSWCCA 367
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Sepulveda v R (2006) 167 A Crim R 108; [2006] NSWCCA 379

Texts Cited:
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Category: Procedural rulings
Parties: Regina (Crown)
Scott White (Accused)
Representation:
Counsel:
Mr B Hatfield (Crown)
Ms B Rigg SC; Mr B Neild (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2020/141305
Publication restriction: ---

Judgment

JOHNSON J: The Accused, Scott White, is charged by indictment that, between 7 December 1988 and 11 December 1988 at Manly in the State of New South Wales, he did murder Scott Johnson.
The trial of the Accused is listed to commence at the Supreme Court in Sydney commencing on 2 May 2022. Also listed for hearing commencing on 5 October 2021 (with an estimate of five-to-seven days) is a pretrial application by the Accused seeking the exclusion of certain admissions alleged to have been made by him in 2020.
The pretrial hearing and the trial have been allocated to me to serve as the presiding Judge. An issue has arisen as to whether I should recuse myself from the hearing of the pretrial application and the trial. No such application has yet been made by a party to the proceedings. However, the course to be taken is sufficiently clear that I have determined that recusal is appropriate in this case. I should explain why I have reached that conclusion.

Factual Background

On 10 December 1988, the body of Scott Johnson was…

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 White

Details

AGLC: R v White [2021] NSWSC 962
Case: [2021] NSWSC 962
Decision Date: 03 August 2021

CaseChat Overview and Summary

The matter of R v White was heard in the Supreme Court of Victoria. The defendant, White, was charged with the murder of an individual. The central issue in the case revolved around the admissibility of certain recorded conversations obtained through the use of a surveillance device. The Crown sought to use these recordings as evidence of admissions made by the defendant. Prior to the trial, White filed an application to exclude the recorded conversations, arguing that the Judge who issued the surveillance warrant should recuse himself from both the pretrial hearing and the trial itself, due to a perceived risk of bias.

The court was required to determine whether the Judge who had issued the warrant should recuse himself from presiding over the pretrial hearing and the trial. The central legal issue was whether the Judge's involvement would create a reasonable apprehension of bias, thereby impacting the fairness of the proceedings. The court examined the circumstances surrounding the issuance of the warrant and the relationship between the Judge and the case, to ascertain whether a reasonable observer might harbour doubts about the Judge's impartiality.

The court found that the Judge's involvement in both issuing the warrant and presiding over the case did indeed create a reasonable apprehension of bias. Consequently, the Judge decided to recuse himself from both the pretrial hearing and the trial. The court emphasised the importance of maintaining public confidence in the judicial system and recognised that a perceived bias could undermine the fairness of the proceedings. The Judge's decision to recuse himself was therefore upheld, ensuring the integrity of the trial process.

In conclusion, the court ruled that the Judge should recuse himself from both the pretrial hearing and the trial to avoid any reasonable apprehension of bias. This decision was made to uphold the principles of fairness and impartiality within the judicial system. The case highlights the importance of judicial independence and the measures taken to ensure that the administration of justice remains untainted by perceived or actual bias.

Orders