Roadside Products Pty Ltd v Cocker - [2020] TASSC 17

[2020] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: Roadside Products Pty Ltd v Cocker [2020] TASSC 17

PARTIES:  ROADSIDE PRODUCTS PTY LTD
  v
  COCKER, Mark

FILE NO: LCA 2942/2019

DELIVERED ON:  19 May 2020
DELIVERED AT:  Hobart
HEARING DATE:  18 February 2020
JUDGMENT OF:  Geason J

CATCHWORDS:

Magistrates – Appeal and review – Application for recusal – Apprehended bias – Magistrate’s conduct gave appearance of pre-judgment – matter remitted to different Magistrate

Liversay v New South Wales Bar Association (1983) HCA 17, 152 CLR 288 at 293-294; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, applied.
Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 at 2418; Baker v Barratt [2019] TASSC 28, referred.

Aust Dig Magistrates [1071]

REPRESENTATION:

Counsel:
             Applicant:  R Taylor
             Respondent:  S Nicholson
Solicitors:
             Applicant:  HWL Ebsworth
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 17
Number of paragraphs: 23

Serial No 17/2020
File No LCA 2942/2019

ROADSIDE PRODUCTS PTY LTD v MARK COCKER

REASONS FOR JUDGMENT GEASON J

19 May 2020

Roadside Products Pty Ltd (Roadside) was charged by complaint alleging breaches of ss 32 and 33 of the Work Health and Safety Act 2012 (the Act). The charges were put in the alternative.
The prosecution later abandoned the charge under s 32 of the Act. It notified its intention to amend the charge under s 33 of the Act.
The applicant submitted to the court that this charge, as particularised, was invalid and incapable of amendment. The content of that submission is not relevant for present purposes.
Magistrate Marron held that the charge was capable of amendment.
On 6 July 2018, the application by the prosecution to amend the charge was made. Magistrate Marron determined that the proposed amendment did not cure the deficiency in the further particulars of the charge. In written reasons published on 9 July 2019 (Cocker v Roadside Products Pty Ltd [2019] TASMC), he said:
"The complainant does disclose an offence and is capable of amendment so as to provide particulars that meet the requirements of s 30(1)(b) of the Justices Act. For the reasons I have outlined above, the proposed amended particulars in their current form would not in my view, meet those requirements.
Taking into account carefully considered of (sic) the matters raised by counsel and referred to above, I find that the complaint with the proposed amendments does not meet the requirements of s 30(1)(b) of the Justices Act that requires particulars as will give reasonable information of the nature of the matter complained of."
Then at [38]:
"For reasons expressed, I am of the view that in all the circumstances it is just that I should exercise my discretion to amend the complaint so as to disclose the way in which it is alleged the defendant has committed the offence."
Annexed to the reasons was a document the magistrate had prepared, not at the request of a party, but of his own volition. It was headed "Amendments" and proceeded to set out suggested amendments to the complaint. The material to which the court referred to complete this very detailed document was not disclosed. The contents of the magistrate's draft amendments were as follows:
"Amendments:
·Add to paragraph (d) a Mitsubishi model number FG25ZNT.
·Amend paragraph (e) as follows: The worker used the forklift truck to unload steel sheets from a truck at the worksite.
·A new paragraph after paragraph (e) inserting the assertion currently contained in particular (i) i 3 but specific to this incident: The area where the forklift unloaded from the truck was a sloping (or inclined) surface.
·Add a new paragraph after as follows: The operational and maintenance manual for this forklift that was in the possession of the Defendant, contained clear warning that included that the forklift should not turn or angle on ramps and grades with or without a load, should not attempt to pick up or deposit a load unless the forklift truck was level and that turning on a ramp or grade could cause the forklift truck loaded or unloaded to tip over.
·Add in a new paragraph after paragraph (f), At that location the truck driver, Mr Jones was present and there was a contained and rubbish skip that potentially limited manoeuvring by the forklift.
·Paragraph (h) requires a context correction by substituting forklift for truck.
·Particular (i) i 3 is consequently deleted (as it is now expressed elsewhere).
·Particular (i)(i) 4 is amended as follows: There was no designated and marked loading and/or unloading zone that was flat and required to free of obstructions or equipment and persons not otherwise involved in the task.
·Particular (ii) is amended as follows by adding: that addressed the specific warnings contained in the forklift operation and maintenance manual and how they applied and were to be put into effect at the workplace to avoid the possibility of the forklift overturning."
When these were first published to the parties the prosecutor sought time to consider the amendments and determine if they should be incorporated into the foreshadowed application. The defence sought an adjournment to obtain instructions about the way it would respond to the court's involvement in addressing the prosecutor's need to make amendments to cure deficiencies in the complaint.
On 30 August 2019, a directions hearing was held. The prosecution indicated that they would adopt the court's suggested amendments. The application to amend the charge was not formally made at that stage. Before that could occur, the court was informed that an application would be made for an order that the magistrate recuse himself from the further hearing of the matter on the grounds of apprehended bias.
The application for recusal was dealt with by way of written submissions, and ruled upon shortly afterwards by the magistrate. The application was dismissed. Written reasons were published. The following reasons were given:
"[14] At this stage the only determination has been a ruling that the amendments proposed by the prosecution did not meet the requirements of S 30(1)(b) of the Justices Act such as to give reasonable information of the nature of the matter complained of. And, that I would exercise my discretion to amend the complaint so as to disclose the way in which it was alleged the defendant had committed the offence.
[15]     In handing down my ruling, I indicated to Counsel that it was abundantly clear to me as to what it was that the Prosecution were attempting to allege in oral and written submissions, and the document attached did no more than invite clarification.
[16]     It is appropriate to pause note that the matter is still at prehearing stage, no evidence called or opportunity lost to cross examine (compare R v ACR Roofing Pty Ltd (2004) 11 VR 187 where the issue arose at the close of the Crown case). Consequently, I do not accept that an attempt, undertaken before the hearing starts, to focus on what Prosecution case is about might be perceived as leading to a reasonable apprehension of bias.
[17]     The charge is not invalid it is simply inarticulately particularised.
[18]     Although foreshadowed, there is no current application by the Prosecution to amend the particulars of the charge. If an application is made and opposed, the defendant will have an opportunity to present any submissions at that time.
[19]     Consequently there has been no denial of natural justice."
It is difficult to tell whether the court is making an interim decision on the basis that the application for a recusal should be made at the time the application to amend is actually brought. At par 18 of his ruling on the application to recuse, the learned magistrate says this:
"Although foreshadowed, there is no current application by the prosecution to amend the particulars of the charge. If an application is made and opposed, the defendant will have an opportunity to present any submissions at that time."
Confusingly, his Honour concluded that there had been no denial of natural justice.
If it was considered relevant that the application to amend was not before the court, the magistrate ought to have indicated that the application was premature and should be prosecuted when the foreshadowed application to amend proceeded. To hear argument, adjourn the matter and publish a written ruling on the point, and resolve it on the basis that the argument could be put again when the application was made, serves only to delay the resolution of the matter, add to costs to the parties, and unnecessarily complicate the procedure. The purpose of making the application for recusal was to enable the matter to proceed to hearing with a degree of expedition.
Ultimately it makes no difference to my conclusion, because in my view the milk was already sour, and the magistrate ought to have acceded to the request. As Mr Taylor submitted, the application for recusal, based as it was on apprehended bias, was put on the basis that the magistrate "would be called upon to adjudicate on the efficacy of his own particulars." There was no doubt about this prospect because amendment was required before the matter could proceed, and was the course the prosecution had committed to. Whether the application to amend was before the magistrate or not, the relevant circumstance for the purpose of judging the question fell to be determined at any time before the amendment application was made.
The considerations relevant to a recusal for apprehended bias are well known. The question is whether a fair-minded lay observer might, in the circumstances, reasonably apprehend that the learned magistrate would not bring an impartial mind to the resolution of the matters required to be determined: Gascor v Ellicott [1997] I VR 332. There is a presumption that the fair-minded lay observer has attributed to her knowledge of all the circumstances of the case: Liversay v New South Wales Bar Association (1983) 152 CLR 288 at 293-294; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-88, 95.
In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 at 2418 [2], the court characterised the fair-minded observer this way:
"[2] The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially."
And in Baker v Barratt [2019] TASSC 28 at [20], the law was summarised:
"[20] It must be demonstrated by an applicant that not only is there the appearance of that pre-judgment, but circumstances which suggest that it is incapable of being swayed by evidence or argument. The test is concerned with pre-judgment, not pre-disposition. The matter is expressed succinctly in Minister for Immigration and Multi-cultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at [71]- [72] by Gleeson CJ and Gummow J:
'Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.
... The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion ...'."
The applicant has demonstrated that according to the established test, there exists an appearance of pre-judgment of the foreshadowed application to amend the particulars. The question then becomes whether the mind of the magistrate is capable of being swayed by argument.
I have concluded that it is not. That is because the issue on the amendment application will be "what is required to cure the identified deficiencies in the complaint?" In the mind of the magistrate, that question has been answered: "It is cured by adopting my draft particulars".
At the very least, it seems to me, that having invested over a year in his consideration of the matter, and taken the time to consider undisclosed materials for the purposes of framing particulars, the prospect of the magistrate's view being swayed by argument is sufficiently doubtful to sustain the conclusion that it is not. The role of independent judicial officer has been abandoned. The court has undertaken the prosecution case, actively engaging in the task of rescuing a deficient complaint. That is not the court's function.
The magistrate concluded his reasons by saying there had been no denial of natural justice, there having been no evidence taken, and thus no lost opportunity for cross-examination. With respect that is not the issue on the application for recusal and it misstates the applicable law. The considerations pertinent to the question of natural justice, and a denial thereof, are not applicable on the application for recusal for apprehended bias.
It might be reasonably inferred that in expressing that conclusion, the magistrate identified the legal principles he applied. Error is demonstrated.
The learned magistrate reached a wrong conclusion on the law with respect to the application for recusal; he applied the wrong test, and he reached a conclusion, which in the circumstances was not open. The learned magistrate should not continue to hear the case. I remit the matter to the Magistrates Court to be dealt with by a different magistrate.