Regina v Roxanne Carmella Brincat - [2016] NSWDC 100

District Court

New South Wales

Medium Neutral Citation: Regina v Roxanne Carmella Brincat [2016] NSWDC 100
Hearing dates: 2 June 2016
Date of orders: 09 June 2016
Decision date: 09 June 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
(1) The application for me to recuse myself is refused

Catchwords: CRIMINAL LAW – sentence - break and enter – aggravated – serious indictable offence – steal property from dwelling
PROCEDURAL LAW – application to disqualify – apprehended bias – test – principles of law – “fair minded lay observer”
PRACTICE – correspondence with Judge’s chambers – correspondence with Judge’s staff
Legislation Cited: Crimes Act 1900 ss 113(2), 148
Crimes (Sentence Procedure) Act 1999 ss 5, 11
Uniform Solicitors Conduct Rules 2015 r22.5
Uniform Barristers Conduct Rules 2015 r 54
Cases Cited: Tugrul v Tarrants Financial Consultants Pty Ltd [2013] NSWSC 1971
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
British American Tobacco Australia Services Ltd v Laurie (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Helow v Home Secretary [2008] 1 WLR 2416
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Vakauta v Kelly (1989) 167 CLR 568
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Isbester v Knox City Council (2015) 89 ALJR 609
Bechara v R [2011] NSWCCA 67
R v Cartwright (1987) 17 NSWLR 243
Category: Procedural and other rulings
Parties: Roxanne Carmella Brincat (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Boland (Applicant)
Solicitors:
Blair Criminal Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/00280963

Judgment

Roxanne Carmella Brincat (the offender) appears for sentence to one count of aggravated break and enter with intent to commit a serious indictable offence contrary to section 113(2) Crimes Act 1900 and one count of steal property from a dwelling contrary to section 148 Crimes Act 1900.
The sentence proceedings are listed before me because I am part heard in the sentence proceedings of the co-offender Diana Bazzi.
The offender makes an application that I disqualify myself from hearing the sentence proceedings on the ground of apprehended bias.

The test to be applied

The legal test is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 [6], where Gleeson CJ, McHugh, Gummow and Hayne JJ stated:

… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

There is a distinction between “an incautious remark or expression of a tentative opinion” and the kind of comment that would enliven a judge’s duty to refrain from hearing a matter: British American Tobacco Australia Services Ltd v Laurie (2000) 205 CLR 337 at [140] per Heydon, Keifel and Bell JJ.

The fair-minded observer

The fair-minded observer does not make snap judgements: Johnson v Johnson (2000) 201 CLR 488

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.

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Details

Case: [2016] NSWDC 100
Decision Date: 09 June 2016

CaseChat Overview and Summary

In the matter of Regina versus Roxanne Carmella Brincat, the defendant faced sentencing for an aggravated break-and-enter offence, which involved stealing property from a dwelling. The proceedings took place in the County Court of Victoria. The defendant's legal team sought the recusal of the sentencing judge, Justice Smith, on the grounds of apprehended bias, claiming that the judge had demonstrated bias through prior correspondence with the defendant and her legal representatives.

The primary legal issue before the court was whether there were grounds for Justice Smith to recuse himself based on the alleged bias. The court had to determine whether the correspondence between the judge and the defendant or her legal representatives was sufficient to create a reasonable apprehension of bias. The court examined the principles of law relating to judicial impartiality and the test of a fair-minded lay observer.

The court found that there were no grounds for the defendant's application to disqualify the judge. The judge concluded that the correspondence was routine and did not demonstrate any bias or partiality. The court emphasised that the test of apprehended bias required more than trivial or insignificant actions; instead, there needed to be a substantial and significant risk that the judge was biased. The fair-minded lay observer would not perceive the correspondence as creating such a risk. Consequently, the application for the judge to recuse himself was dismissed.

Orders

Orders of the court

(1) The application for me to recuse myself is refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Regina v Roxanne Carmella Brincat [2016] NSWDC 100
Hearing dates:	2 June 2016
Date of orders:	09 June 2016
Decision date:	09 June 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	(1) The application for me to recuse myself is refused
Catchwords:	CRIMINAL LAW – sentence - break and enter – aggravated – serious indictable offence – steal property from dwelling PROCEDURAL LAW – application to disqualify – apprehended bias – test – principles of law – “fair minded lay observer” PRACTICE – correspondence with Judge’s chambers – correspondence with Judge’s staff
Legislation Cited:	Crimes Act 1900 ss 113(2), 148 Crimes (Sentence Procedure) Act 1999 ss 5, 11 Uniform Solicitors Conduct Rules 2015 r22.5 Uniform Barristers Conduct Rules 2015 r 54
Cases Cited:	Tugrul v Tarrants Financial Consultants Pty Ltd [2013] NSWSC 1971 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 British American Tobacco Australia Services Ltd v Laurie (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Helow v Home Secretary [2008] 1 WLR 2416 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Vakauta v Kelly (1989) 167 CLR 568 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Isbester v Knox City Council (2015) 89 ALJR 609 Bechara v R [2011] NSWCCA 67 R v Cartwright (1987) 17 NSWLR 243
Category:	Procedural and other rulings
Parties:	Roxanne Carmella Brincat (Applicant) Regina (Respondent)
Representation:	Counsel: Mr S Boland (Applicant) Solicitors: Blair Criminal Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/00280963