Saleh Alfarsi (a pseudonym)[1] v The Queen

Saleh Alfarsi, the applicant, sought leave to appeal against the refusal of the Supreme Court of Victoria to certify a question of law for appeal. The central issue was the refusal to certify the refusal of the trial judge to recuse themselves from sentencing proceedings due to an apprehended bias. Alfarsi was charged with murder and faced trial after his co-offender had pleaded guilty and been sentenced by the same judge. The legal questions included whether the trial judge's remarks or findings gave rise to a reasonable apprehension of bias, and whether the interests of justice required certification and leave to appeal. The court considered the principles from R v Goussis and North v The Queen, focusing on the hypothetical fair-minded lay observer test and the effect of the judge's findings on the co-offender’s plea.

The Court of Appeal examined whether the trial judge's remarks and findings in sentencing the co-offender could lead a hypothetical fair-minded lay observer to reasonably apprehend bias. It held that the remarks and findings did not give rise to such an apprehension. The court also considered the interests of justice, concluding that the refusal to certify did not result in a miscarriage of justice. The court found that the trial judge had adequately discharged their duty to ensure fairness, and that the concerns raised by Alfarsi did not meet the threshold for certification. Consequently, the interests of justice did not require the Court to certify the matter for appeal. The application to review the refusal to certify was dismissed, and leave to appeal was refused.

[1] Saleh Alfarsi (a pseudonym) v The Queen [2023] VSCA 214

[2] R v Goussis [2007] VSC 171

[3] North (a pseudonym) v The Queen [2020] VSCA 1

[4] Criminal Procedure Act 2009 ss 295(3), 296