SHMANDIY v Police - [2024] SASCA 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SHMANDIY v POLICE
[2024] SASCA 89
Judgment of the Court of Appeal (ex tempore)
(The Honourable Acting Chief Justice Livesey and the Honourable Justice David)
26 July 2024
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
On Wednesday the applicant applied for an order that Livesey A/CJ be disqualified from sitting. The hearing concerns an application by the applicant seeking the audio recordings of hearings before an appeal judge on 29 April and 17 May 2024, and the applicant’s application for permission to appeal against the decision made by that judge dismissing her appeal for want of prosecution.
On 17 July 2024, the respondent provided the Court and the applicant with a copy of the Court Record concerning unrelated judicial review proceedings involving the applicant. The respondent says that this shows that the applicant appeared at a hearing in the Supreme Court the day before the hearing she failed to attend before the appeal judge.
The applicant asserts that, as a result, the “impartiality and integrity” of Livesey A/CJ is “now contaminated by familiarity with the details of the unrelated civil matter” and his “integrity and decision making [is at] risk…”.
HELD (the Court) dismissing the disqualification application, with costs:
1.Because the application was only received two days ago, it is necessary for the application to be considered by the Court as a whole, rather than allow it to first be considered by the judge the subject of the application.
2.The applicant has failed to establish that a fair-minded lay observer might reasonably apprehend that Livesey A/CJ might not bring “an impartial mind to the resolution of the issues that judge is required to decide”.

Charisteas v Charisteas (2021) 273 CLR 289; Clarke v Health Care Complaints Commission (NSW) [2024] NSWCA 16; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; McFarlane v The King [2023] SASCA 123; Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; Mohareb v State of New South Wales (No 2) [2024] NSWCA 69; Pastor v Aegis Aged Care Staff Pty Ltd (No 3) [2023] WASCA 128; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Sambastian v Police [2024] SASCA 79, considered.

SHMANDIY v POLICE
[2024] SASCA 89
Court of Appeal - Criminal: Livesey A/CJ and David JA
THE COURT (ex tempore):
Introduction

On Wednesday the applicant applied for an order that Livesey A/CJ be disqualified from sitting today. The hearing today concerns an application by the applicant seeking the audio recordings of hearings before an appeal judge on 29 April and 17 May 2024, and the applicant’s application for permission to appeal against the decision made by that judge dismissing her appeal for want of prosecution.
The hearing today has been set at a time that suited the applicant’s convenience. Correspondence from the Court advised the…

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 SHMANDIY v Police

Details

AGLC: SHMANDIY v Police [2024] SASCA 89
Case: [2024] SASCA 89
Decision Date: 26 July 2024

CaseChat Overview and Summary

In *SHMANDIY v Police*, the applicant sought to disqualify Acting Chief Justice Livesey from presiding over proceedings due to an alleged apprehension of bias. The dispute centred on whether the receipt of the Court Record by the Acting Chief Justice gave rise to a reasonable apprehension of bias, thereby necessitating his disqualification. The matter was heard by Acting Livesey CJ and David J.

The central legal issue before the court was whether a fair-minded lay observer, having regard to the facts presented, might reasonably apprehend that Acting Chief Justice Livesey would not bring an impartial mind to the resolution of the issues before him. This required the court to consider the threshold for establishing apprehended bias in judicial proceedings.

The court rejected the applicant's submission, finding that the mere receipt of the Court Record did not, in itself, give rise to the requisite apprehension of bias. The applicant had not demonstrated, nor did the court find, any specific event or decision that supported a claim of procedural unfairness or discrimination. Applying the established legal principles for apprehended bias, the court concluded that the applicant had failed to establish that a reasonable apprehension of bias existed. Consequently, the application to disqualify the judge was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We reject the proposition that receiving the Court Record gives rise to the requisite apprehension. The applicant does not assert, nor do we find, that anything has occurred or been decided that could support the claimed procedural unfairness or discrimination. The applicant has failed to establish that a fair-minded lay observer might reasonably apprehend that Livesey A/CJ might not bring “an impartial mind to the resolution of the issues that judge is required to decide”.[4][4] Sambastian v Police [2024] SASCA 79, [17]; see also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[7]; Charisteas v Charisteas (2021) 273 CLR 289, [11]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [119] (Edelman J), [193] (Steward J), [219] and [221] (Gleeson J), [274] (Jagot J).Conclusion The application to disqualify is dismissed, with costs. We will now hear the other matters listed for hearing today.

Ratio Decidendi

Legal Principle Established

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