Singh v The Queen
[2022] VSCA 12
•11 February 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0192
| GURWINDER SINGH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST, SIFRIS and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 February 2022 |
| DATE OF JUDGMENT: | 11 February 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 12 |
| JUDGMENT APPEALED FROM: | DPP v Singh (Ruling No 1) (Unreported, County Court of Victoria, Judge O’Connell, 17 December 2021) |
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COURTS AND JUDGES – Application for review of judge’s refusal to certify – Application for leave to appeal against interlocutory decision – Bias – Actual bias – Apprehended bias – Unrepresented defendant – Whether judge favoured prosecution in conduct of pre-trial hearings – Whether judge engaged in ex parte communications with prosecution – No evidence of actual bias – Apprehended bias not established – Criminal Procedure Act 2009 ss 295(3), 296(1) – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Ms K Argiropoulos | Ms A Hogan, Solicitor for Public Prosecutions |
T FORREST JA
SIFRIS JA
WHELAN JA:
The applicant is charged with making a threat to kill KP, an officer of the Victorian Legal Services Board (‘VLSB’).
The short background to this alleged offending is that:
·In 2011 the applicant sustained personal injuries in a motor vehicle accident.
·He engaged a solicitor to act on his behalf to seek compensation in respect of his personal injuries.
·He made a complaint about the conduct of that solicitor to the VLSB. The Board decided not to uphold that complaint.
·On 19 July 2017 at the offices of the VLSB the applicant was present for a review of the Board’s decision.
·During the review the applicant is alleged to have threatened to kill KP. The alleged threat was reported to the police, who interviewed the applicant and subsequently charged him.
Although this matter could have been heard summarily,[1] the applicant elected to go to trial. He was committed to stand trial in July 2019 and since then has been required to attend various directions hearings aimed at dealing with pre-trial evidentiary issues. He has appeared in the County Court in relation to various pre-trial issues before Judge Gamble, Judge Lacava, Judge Gwynn, Judge Murphy and, most recently, Judge O’Connell. On each occasion he has been self-represented.
[1]Criminal Procedure Act 2009 s 28(1)(b) (‘CPA’).
The hearings relevant to this application were held before Judge O’Connell on 20 August, 29 October, 22 November and 13 December 2021. On the last occasion the applicant applied to the judge that he disqualify himself on the basis of bias, both apprehended and actual. The judge refused that application.
The transcript is, at times, quite obscure, however, it appears as if the applicant sought certification under s 295(3) and the judge impliedly refused such certification. The applicant has prepared the documentation for this hearing on the basis of that refusal and he seeks review of the judge’s decision not to certify and that the orders set out below be set aside on the basis of both apprehended and actual bias. Those orders are:
(a) 29 October 2021
(i) Order that the subpoena issued by the accused Gurwinder Singh on RD dated 11 May 2020 be set aside in whole.
(ii) Order that the subpoena issued on behalf of the Director of Public Prosecutions on the Proper Officer of the Victorian Legal Services Commissioner dated 29 January 2020 be set aside in whole.
(b) 22 November 2021
(i) Order that the subpoena issued by the accused Gurwinder Singh on Corrs Chambers Westgarth and ES dated 10 February 2020 be set aside in whole.
(ii) Order that the subpoena issued by the accused Gurwinder Singh on BN dated 24 February 2020 be set aside in whole.
(c) 13 December 2021
(i) Orders setting aside in whole seven subpoenas issued by the applicant on various police officers said by the applicant to have been involved in the case.
(d) 17 December 2021
(i) Order that the application for disqualification be refused.
For context it is necessary to set out a short summary of the applicant’s recent issues with the criminal justice system.
At a mention before Judge Lacava on 7 November 2019, the applicant made numerous complaints about the conduct of the Office of Public Prosecutions (‘OPP’), including that it:
·had improperly redacted and altered documents (including the judge’s name and the case number on a transcript);
·breached its duty of disclosure; and
·removed documents from the depositions filed in the County Court without explanation.
On 10 February 2020 at a directions hearing before Judge Gwynn, the applicant complained that counsel representing the Crown at that hearing was misleading the Court in stating that the OPP had provided certain documents to the Magistrates’ Court and made them available to the applicant; that Judge Gwynn, like the criminal justice system in general, was ‘very biased’; and that Judge Gamble, before whom the applicant had appeared on 19 July 2019 following his committal, was also ‘biased’.
On 11 March 2020 at a directions hearing before Judge Murphy, the applicant again complained: the prosecutor was misleading and lying to the Court in regard to the availability of certain documents; the judge should ‘dismiss from the case’ the Solicitor for Public Prosecutions because the judge had ‘worked with him before’, amounting to a conflict of interest; and the OPP had lied to the Court, acted dishonestly and failed to comply with court-ordered dates for filing. He renewed his previous complaint about the OPP changing the judge’s name and the case number on the committal transcript. The applicant complained that the police informant had ‘made up’ the police summary and had not investigated the case objectively, and further that Victoria Police in general had a culture of lying and cover-ups. Judge Murphy, the applicant submitted, was ‘very biased’ and should ‘dismiss himself’. This was said to be evidenced by the judge’s assumption that some missed paragraph numbers in the prosecution opening were a typographical error without demanding an explanation from prosecution counsel. It was further alleged that the judge was assisting the OPP ‘with their own lies’, had a conflict of interest and had failed to ‘leave the chair’ when given the opportunity as a ‘reasonable person’ would.
At a further directions hearing before Judge Murphy on 18 May 2020, the applicant requested that an order be made that a solicitor representing both the VLSB and Corrs Chambers Westgarth be arrested for contempt of court for, the applicant alleged, withholding documents. He complained that the OPP was deliberately confusing the Court and wasting time by referring to separate subpoenas issued by the applicant and the VLSB in the same document. The applicant again declared Judge Murphy’s bias, complaining that his Honour was ‘taking sides’ and ‘showing obvious bias’, variously due to his Honour’s refusal to order the arrest of the aforementioned solicitor and his Honour’s requiring the applicant to explain the relevance of potential evidence in support of his subpoena of a witness. At this stage, the applicant made an oral application for the judge to recuse himself on the basis of actual or apprehended bias. Judge Murphy refused this application and refused to certify under s 295 of the CPA.
The applicant subsequently unsuccessfully sought leave to review Judge Murphy’s refusal to certify under s 295, firstly in this Court,[2] and then in the High Court.
[2]Dural (a pseudonym) v The Queen [2021] VSCA 82 (Maxwell P and Beach JA).
Against this background, Judge O’Connell was allocated the task of conducting further pre-trial directions hearings, initially, as we have observed, on 20 August 2021 and then on three further court days.
In substance, the applicant contends that the audio-visual recordings of those proceedings, and the associated transcripts, establish his allegation of bias. We have each viewed the relevant audio-visual recordings in full at the applicant’s request over a period of several hours. We shall return to their context after summarising the legal principles relevant to this application.
Legal principles
Actual bias
In endeavouring to make good his claim of actual bias, the applicant bears a heavy onus of demonstrating that the judge was so committed to a particular outcome that he would not alter that outcome, regardless of what evidence or arguments were presented.[3]
[3]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531–2 [72] (Gleeson CJ and Gummow J); [2001] HCA 17.
Apprehended bias
The test for apprehended bias was stated in Ebner v Official Trustee in Bankruptcy.[4] The applicant must demonstrate that ‘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’.[5]
[4](2000) 205 CLR 337; [2007] HCA 63.
[5]Ibid 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The applicant’s submissions
In this application the applicant made a variety of submissions, all of which were said to be apparent from the transcripts and/or the audio-visual recordings. As we have observed, we have watched the totality of the audio-visual record of the four directions hearings before Judge O’Connell. During the four hearings the applicant made, inter alia, the following submissions, observations and remarks:
·Prosecution counsel had been ‘very rude and arrogant’ during previous court appearances, and ‘act[ed] like an idiot’. The applicant requested numerous times that the judge reprimand or discipline counsel.
·The solicitor representing VLSB and Corrs Chambers Westgarth was lying to the Court in stating that certain documents had been disclosed to the applicant. The applicant requested that she be ‘held in contempt of court’ for this offence.
·The complainant, KP, was ‘so corrupt’, should not be employed by the VLSB and had possibly forged the witness’s signature on his police statement.
·The OPP had breached its duty of disclosure and deliberately withheld documents.
·Judge Murphy had ‘acted very unfairly and biasedly’.
·The case should not be heard in Victoria because people involved in it had ‘political influence’.
·There was ‘something … fishy’ in the refusal by the Solicitor for Public Prosecutions of the applicant’s request that a particular witness be called at the committal and his confirming that no statement had been made by that proposed witness.
·Witnesses at the committal who, the applicant alleged, had perjured themselves, as well as prosecution counsel were ‘scumbags’ who needed to be ‘given some disciplinary action as soon as possible so we can get rid of [them] from our system’.
During the four hearings Judge O’Connell himself was accused numerous times of bias and favouritism:
·His Honour had variously ‘decided not to’ or ‘was not willing to listen’ to the applicant’s arguments.
·He was failing to follow or enforce procedural rules.
·He was ‘struggling to understand everything’ and therefore was not ‘going to be appropriately prepared to deal with this matter’.
·The judge was ‘biased’ and ‘acting with [the] OPP’.
·Finally, the applicant suggested the judge should ‘dismiss yourself if you really don’t want to hear my arguments’.
The judge’s reasons
The judge set out the background to the alleged offending and noted the applicant’s previous unsuccessful recusal applications before Judge Murphy, the Court of Appeal and the High Court. The judge noted, ‘In fairness to Mr Singh, although his appeal was dismissed, … the Court of Appeal identified a number of legitimate grievances with respect to procedural fairness that arose from the pre-trial proceedings conducted up until that point.’[6] The judge noted the significance that must be accorded to procedural fairness, particularly in cases involving unrepresented litigants. The judge said that ‘[t]he point that should be made at the outset of this application is that throughout the conduct of Mr Singh’s pre-trial process beyond the Court of Appeal judgment[7] those principles have been given primacy’.[8]
[6]DPP v Singh (Ruling No 1) (County Court of Victoria, Judge O’Connell, 17 December 2021), [9] (‘Reasons’).
[7]That is, throughout Judge O’Connell’s conduct of the pre-trial process.
[8]Ibid [10].
The judge then summarised the history of the directions hearings. It is convenient to set out that summary in full:
As the judge in charge of the Long Trials List I was allocated the task of managing Mr Singh’s trial in August of 2021. As was explained to Mr Singh my role in dealing with his case was to list the matter for trial, determine any pre-trial issues and otherwise make directions to ensure that the matter was ready to proceed. It was also made clear to Mr Singh that I was not to be the trial judge.[9]
[9]Mr Singh was also informed that his Honour Judge Murphy had since retired and would not preside at his trial. Although his Honour now sits as a Reserve Judge, he is otherwise committed.
The general power to ensure a case is ‘trial ready’ is derived from a combination of the following provisions:
·Section 179 of the Criminal Procedure Act 2009 … — the power to conduct directions hearings.
·Section[s] 181(1), (2) and (3) — the general power to make orders or directions that the court considers necessary for the fair and efficient conduct of the proceeding; and
·Section[s] 199(1), (2) and (3) — the power to determine issues with respect to the trial, before trial.
On 20 August 2021, a directions hearing was held to list the matter for trial taking into account each party’s availability and the agreed estimate of 12 days duration. As indicated the trial was listed to be heard on 22 February 2022. A further directions hearing was set down for 29 October 2021 to deal with the issues concerning disclosure.
Written submissions were served and filed by solicitors acting on behalf of the Victorian Legal Services Board and Commissioner seeking that four subpoenas compelling production of documents and witnesses be set aside. Objections to the subpoenas included relevance, legal professional privilege and public interest immunity. The resolution of those objections occupied well over a day of court time spanning the hearing of 29 October 2021 and a further directions hearing on 22 November 2021. The transcript of those proceedings provides important context to this application. Suffice to say that every effort was made to accord Mr Singh procedural fairness.
At the conclusion of the 22 November 2021 hearing the parties were advised that if any further issues needed to be resolved before trial then they could contact my associates and a further directions hearing could be arranged.
Thereafter the prosecution advised that they wished to make an application to set aside seven further subpoenas, which had previously been issued by the accused, seeking to compel seven police officers to produce various documents and give evidence at trial. Upon receipt of the application, administrative orders were made setting the matter down for [a further] directions hearing to be held on 8 December 2021. Orders were made requiring the prosecution to serve and file a notice setting out the nature of the applications to be made and submissions in support. Those orders were subsequently varied to suit Mr Singh’s convenience and the directions hearing was relisted for 13 December 2021.
Submissions dated 2 December 2021 were subsequently filed and served on behalf of the Director of Public Prosecutions. In broad terms the Director submitted that the seven subpoenaed police officers could not give any evidence or produce any documents that could rationally affect the assessment of the probability of the existence of a fact in issue. The submissions set out the factual basis for the application in some detail by reference to a statement made by the informant on 1 December 2021. It was plain that if the assertions made by the informant in his statement were accurate, none of the seven subpoenaed police officers could produce any relevant documents or give any relevant evidence.
In advance of the hearing of 13 December 2021 a number of lengthy documents authored by the accused were received by my associates. One document dated 6 December 2021 comprising 23 pages of closely typed material is addressed to his Honour Judge Murphy. As best I can determine the substance of the letter requests his Honour to release what the accused describes as ‘ex parte communications’ he alleges occurred between his Honour and representatives of the Office of Public Prosecutions.
At the bottom of page 21 of the document Mr Singh states:
Judge O’Connell’s conduct is similar to your conduct in many other respects — for example, not allowing me to speak, interjecting, changing the subject, informing me that I am not a party (in Judge O’Connell’s case to a summons of which I was the author), and allowing [name of counsel] to lie, to cheat, to cause adjournments, and to disappear at will. These tactics to adjourn, delay and prolong proceedings for years — to wear me down, to debilitate and to further wreck my life and mental health are well documented strategies. Ultimately, such tactics will work — they ruin the life of the person, their marriage, their family — and as you know much more. Then like you, Judge O’Connell has pursued making ‘unlawful rulings’. Thus with you, and Judge O’Connell actively working closely with the OPP, and having ex parte communication to support the VLSC and their lawyers, collectively you could help to ensure a wrongful conviction. And so effortlessly, with me locked out, excluded and prevented from having any chance of a ‘Fair Go’ or any chance to fight back, the intentional miscarriage of justice is so easily and smoothly arranged.
A further letter from the accused dated 12 December 2021 was forwarded to my associates but addressed to the Chief Judge. At page one of the document the accused requested that [the] Chief Judge:
… intervene to stop Judge O’Connell making any more rulings to support the OPP who want to exclude Prosecution Police witnesses from giving their evidence at the Trial. This is in breach of the DPP’s legal and ethical obligations, and to again further assist the DPP to arrange an unfair Trial so that it can obtain another wrongful conviction.
At page 16 of the document he states:
Summing up, Judge O’Connell’s ‘decision-making’ in his past three (3) hearing[s] has been in violation of the Law and Court Rules, and most disturbingly this has been in addition to much past procedural unfairness and ex parte communications by the OPP and the OPP/VLSBC acting ‘in toto’ with Judge Murphy — these legal and ethical breaches firmly established by the Victorian Supreme Court of Appeal in its Judgment and the Hearing (see Transcript) on 19 March 2021.
As well, all involved in this case know that I was falsely accused and wrongfully charged, but in breach of its legal obligations and the DPP Policy, the OPP decided to pursue a malicious prosecution to achieve a wrongful conviction at all costs. This when no ‘crime’ was ever committed and the OPP has no case or any properly/legally obtained ‘evidence’.
Judge O’Connell has confirmed that he is not prepared to act as an independent, impartial or fair Judge, and he has ignored the fundamental principle of ‘Open Court Rules’ which as you know is essential if a falsely accused person is to have any chance of having a ‘Fair Trial’. Instead, as demonstrated in the hearings, Judge O’Connell has shown his open favouritism to the OPP and the VLSBC.
Judge O’Connell constantly told me not to speak, or said he was not interested in hearing from me, and often ignored the fact that I was even present in the Court hearings, much less the other party in this proceeding. For example when lengthening the 29 October 2021 hearing from one (1) hour to almost a full Court day, Judge O’Connell asked if this was suitable to [name of counsel] (Counsel for OPP) and [name of counsel] (Counsel for VLSBC), but he ignored me totally and did not ask about my work commitments. This even though I had requested a long hearing for 29 October 2021, and when this was denied by Judge O’Connell, on that day I was due to start work at 1.00 PM. When I raised this with Judge O’Connell, his response for excluding me twice in fact, was to say that he had ‘wrongly assumed that you would want to be here at two but I should have checked’.
At Judge O’Connell’s first hearing, he stated that the Law was central to the contested issues, but in making his rulings Judge O’Connell then ignored the relevant Laws and Rules and further like Judge Murphy, he did not hide the fact that his prejudicial rulings were made to support the OPP and the VLSBC.
Those extracts provide some flavour of what are lengthy documents.
During the course of the hearing of 13 December 2021 I ascertained that the informant was present via video link and I suggested to Mr Singh that he may want to cross-examine him, lest he fail to demonstrate a legitimate forensic purpose in respect of each of the subpoenaed witnesses. Mr Singh indicated that he did not wish to do so and applied for me to disqualify myself from hearing the matter further on the basis of bias.
I took the application to allege both actual and apprehended bias and that the foundation for the application was set out in the documents to which I have referred above.[10]
[10]Reasons [11]–[24] (footnote in original).
The judge correctly set out the relevant legal principles, concerning applications of this type. He then considered the allegations of bias. Again, it is appropriate to reproduce his Honour’s reasons:
Dealing firstly with the allegation of actual bias, I completely reject that allegation. The transcripts of the hearings of 29 October and 22 November 2021 demonstrate that Mr Singh was treated with courtesy and given every opportunity to put his case. That some, but not all, of the rulings went against him is no basis to ground an application for bias. Such applications are not strategic tools resorted to when things are not going well.
In addition, I make it plain, contrary to what Mr Singh imagines, that there has been no communication between myself or my staff and any legal representative of the Office of Public Prosecutions other than communications to which the accused has been a party.
Turning to the allegation of apprehended bias, I am not at all persuaded that a reasonable fair-minded observer could form the view that Mr Singh’s matter would not be dealt with impartially. Mr Singh was given numerous opportunities to put his arguments and explain why he thought it was necessary to compel the subpoenaed witnesses to attend his trial. In evaluating those arguments extensive reference was made to the depositions, to the transcript of committal proceedings, to notices of additional evidence and to the particular issues of concern for Mr Singh concerning, for example, the taking of the complainant’s statement and his suspicions about CCTV footage not being provided to him.
The allegation that he was constantly told not to speak and that his point of view was ignored is rejected. As the transcript reveals, nothing about the process could give rise to the impression that justice was not being done.
As I have noted, the test must be applied according to ordinary judicial practice. Consistent with s 181 of the CPA, judicial practice in this context strives to ensure the fair and efficient conduct of the proceeding. The pre-trial process is not a platform for parties to say whatever they feel like. Nor should it be used to denigrate witnesses or counsel without the slightest factual foundation. That the accused should be directed to attend to the issues, is not to manifest the appearance of bias.[11]
[11]Ibid [29]–[33].
This application
In this application the applicant made written submissions of over 80 pages and at the oral hearing took the Court to numerous portions of the audio-visual recordings of three of the four hearings before Judge O’Connell, which, the applicant contended, demonstrated bias on the judge’s part.
These written and oral submissions provided an exhaustive history of the applicant’s experience of the Victorian legal system dating back to 2011, complained of what the applicant alleges to be legal ‘irregularities’ in the conduct of his criminal case generally and repeated the many wide-ranging allegations against various parties he made before Judge O’Connell. Amidst those aspects of the submissions, which we shall not reproduce here, the applicant identifies five grounds directed towards his application for leave to appeal the judge’s decision not to certify:
1.Judge O’Connell demonstrated apprehended bias in all hearings and through his communications with the other parties outside of Court hearings. Then at the hearing on 13 December 2021, Judge O’Connell demonstrated his actual bias. He arranged a hearing where he showed that he was absolutely committed to one particular outcome so that he would not alter that outcome regardless of what evidence or arguments were presented. Then when asked to dismiss himself Judge O’Connell refused, he then continued and made unfair rulings.
2.Judge O’Connell and his associates engaged in ex parte communications with the Office of Public Prosecutions and lawyers from Corrs Chambers Westgarth representing the Victorian Legal Services Board & Commissioner, and in the absence of the Applicant and without his knowledge.
3.Judge O’Connell made errors in law on numerous occasions where he did not apply the relevant laws in his rulings and decisions. He failed the test of reasonableness and fairness because he made pre-judgments to favour the other parties and he took no account of any argument, evidence or Laws and Court Rules cited by the Applicant.
4.The Applicant suffered much procedural fairness. He was not informed about what was to be on the agenda at each hearing, often he was not permitted to speak or to be ‘heard’, he was excluded for much of the time in the hearings and if permitted to speak the matters raised by the Applicant were not given any consideration.
5.The Applicant was denied a fair hearing before an independent, impartial Judge who would conduct proceedings according to the law. Judge O’Connell failed in his duty in the administration of Justice. He was unwilling to respect the ‘Open Justice’ principle and instead he made arrangements to favour the other parties in pursuit of a wrongful conviction, and this to cause further detriment to the Applicant.
These five grounds can be distilled to a single complaint that the judge was affected by both actual and apprehended bias, which, it is contended, is evidenced by various aspects of the judge’s conduct of the four pre-trial hearings.
In his written submissions and during the hearing with reference to the audio-visual recordings and transcripts, the applicant endeavoured to supply examples of the judge’s conduct which he said evidenced bias. As far as we can analyse them, these fall broadly under four categories: (1) a failure to enforce procedural rules against the prosecution and other parties, and an unwillingness to impose punishment when procedural rules were not complied with; (2) generally unequal treatment of the parties in the conduct of hearings, including allowing greater indulgence of prosecuting counsel to develop submissions and to interject; (3) prejudgment of contested issues; and (4) what the applicant viewed as evidence of engaging in ex parte communications with the prosecution.
The proffered examples were numerous and not always easy to follow. In considering whether the applicant has established that the judge demonstrated bias in any of the ways outlined above, it is unnecessary to reproduce exhaustively the applicant’s examples here. Consideration of certain of the more specific examples proffered under each of the categories will suffice to convey the tenor of the applicant’s perception of bias on the judge’s part.
Under the first category of conduct — the judge’s apparent unwillingness to enforce procedural rules — the applicant pointed to his Honour’s failure to order the arrest or some other disciplinary action of the solicitor for the VLSB for failing to comply with a subpoena, as requested by the applicant. In support of his submission that this evidenced the judge’s bias towards the prosecution, the applicant submitted that, in contrast, his Honour had previously threatened to revoke the applicant’s bail if he did not attend a court hearing. Examination of the transcript of that hearing, on 29 October 2021, provides the full context of his Honour’s reference to the applicant’s bail conditions, which was made in the context of the applicant’s resistance to attend any further pre-trial hearings not before the trial judge, notwithstanding that the applicant had issued numerous subpoenas that had been objected to:
HIS HONOUR: Well whether you wish to attend or not Mr Singh, is a matter for you. But let me say this to you. This matter needs to be ready for trial and it is my duty to ensure that it is. If I’m to hold another directions hearing, you will be required to attend. Do you understand that?
ACCUSED:No, Your Honour, because my bail has been extended and trial has been listed and this could be dealt [with] by [the] trial judge.
HIS HONOUR: Yes, well Mr Singh ---
ACCUSED:So I would say ---
HIS HONOUR: I think I should remind you, Mr Singh, that whilst you might be on bail I have the power to not only revoke bail but also to respite bail to ensure that you attend a court hearing as required. Is that clearly understood by you?
ACCUSED:Your Honour, you’re not a trial judge so this is a matter that should be dealt [with] by [a] trial judge. So I don’t know why you would enforce ---
HIS HONOUR: I’m forcing this, as you put it, Mr Singh, because you have issued a number of subpoenas that compel people to do things. Now those people that you wish to have compelled, have a right to be heard by this court and their complaints adjudicated. Now you are the person responsible for bringing about that situation and you will attend court to justify why it is these people should be compelled. Is that clearly understood by you?
It is clear from the foregoing excerpt that the judge did not state, as the applicant put it, that ‘if [the applicant doesn’t] come to hearing I will revoke your bail’. It was the applicant himself who raised the subject of his bail conditions. The judge was responding to that comment by the applicant and endeavoured to explain to the applicant the judicial duty to resolve any pre-trial issues before the trial commenced and the concomitant importance of the applicant’s attendance at any court hearing listed in the furtherance of that duty. Far from demonstrating any heavy-handed exertion of his powers to ensure the applicant’s compliance with procedural rules, the judge showed remarkable patience in pointing out to the applicant that it was his own actions in issuing the subpoenas that had created the need for the further hearing. This did not contrast at all with his Honour’s subsequent treatment of the VLSB solicitor’s failure to observe the due date imposed by a subpoena. The judge was equally accommodating and pragmatic in his approach to both parties.
Under the second category — the judge’s allegedly unequal treatment of the parties in the conduct of hearings — the applicant cited several instances, with reference to the audio-visual recordings, where the judge had allowed the prosecutor to interject whilst, the applicant said, never allowing the applicant to do so. This submission appears to be offered in support of the applicant’s broader submission that the judge during the four directions hearings evinced a greater interest in the prosecutions submissions and allowed the prosecutor greater latitude to develop them.
A particular issue said to demonstrate this differential treatment was the judge’s dealing with an issue the applicant raised in relation to the existence of a statement by a prosecution witness. At the 29 October hearing, the applicant submitted that the Form 30, included with the hand-up brief supplied for the committal, indicated that the witness had made an earlier statement in addition to the one provided in the hand-up brief. This, he alleged, indicated that the prosecution had withheld that earlier statement. In relation to this application, the applicant, by reference to the transcript of the 29 October hearing and as best as we could comprehend it, submitted that the judge had displayed an unwillingness to hear his submissions on this issue or properly examine the Form 30 as urged by the applicant. Instead, so the submission went, the judge listened to and accepted the prosecutor’s explanation for the discrepancy between what was indicated on the Form 30 and what was provided in the hand-up brief. The applicant directed the Court to the following portion of transcript:
ACCUSED:Yes, Your Honour, but I still believe there are [a] large number of documents, ah, still not given to me and, and it had been arranged previously before the Magistrates’ Court judges, which there is a denial by the informant and the public prosecutor, they don’t exist.
But I have – I’m going to clearly indicate one document which is already listed on form 30. It’s a police document entitled by … the informant. So on that document he clearly listed [the witness] who made a statement which is available to the informant which the OPP don’t intend to provide. So if there is a document listed on a document, but – by the police and now they’re denying it does not exist [sic], I’ll leave it to His Honour to make a decision on that document.
HIS HONOUR: I just want to understand what document you’re – you say you should be provided with further documents, is that so?
ACCUSED:I think it should have been in the hand-up brief and then I have made a number of attempts and requested informally or in the court, and the informant has responded it does not exist when it’s clearly stated from the form 30 ---
HIS HONOUR: Can I just ask you, Mr Singh, just so I understand please, what is the document you say you haven’t ---
ACCUSED:[The witness] is a ---
HIS HONOUR: Sorry, I know [the witness] had made a statement for the purposes of these proceedings. I’ve read that statement. What do you say you are not ---
ACCUSED:I’m not ---
HIS HONOUR: Sorry, Mr Singh. Listen carefully please, listen carefully. What is the document you say you have not been provided with?
ACCUSED:The statement His Honour has (indistinct) it was made on 7 November, but before that she made a statement including the time of the (indistinct). So it’s been clearly stated in emails and also the form 30 which was given to me as part of the brief in September or in December 2017.
HIS HONOUR: All right, let’s just pause there for a moment. You say that she’s made – sorry, Mr Singh ---
ACCUSED:The statement clearly ---
HIS HONOUR: Let’s not talk over each other. Let’s just try and understand the point you make and I’ll try and deal with it. All right. That’s my job.
So you say there was an earlier statement made by [the witness], is that what you were saying?
ACCUSED:Yes, Your Honour.
HIS HONOUR: Yes, all right. Are you aware of that at all, [Prosecutor]?
ACCUSED:And listed on form 30.
HIS HONOUR: Mr Singh, would you please just wait, I’ve asked a question of [the prosecutor], and you need, if you wouldn’t mind, just to listen and then we’ll try and deal with the concern you’ve raised. Yes, [Prosecutor]?
[PROSECUTOR]: Your Honour, there is only one statement that was made by [the witness] and that was the statement that was served December 2019 under a notice of additional evidence.
HIS HONOUR: I see. There wasn’t any draft statement or any earlier handwritten statement, something of that kind, that sometimes is generated in investigations?
[PROSECUTOR]: No.
HIS HONOUR: Yes, very well. Well it’s put, Mr Singh, that there is no other statement of [the witness] to produce. Do you follow that?
It is difficult to perceive in this portion of transcript anything other than a judge taking pains to understand a concern being raised, less than clearly, by a self-represented litigant. The judge went on to explain carefully to the applicant that this was not a matter of his accepting the prosecutor’s explanation and putting the issue to bed without further inquiry:
ACCUSED:… Your Honour, I just want to know when the subpoena was sent to [the witness], because I haven’t been provided a copy a subpoena was sent to [the witness]. Can you please look into that, Your Honour.
HIS HONOUR: Well we’ll come to that in a moment. Can I say this to you, Mr Singh, and this might not be something that you’re familiar with. But ultimately of course, the prosecution will call [the witness] … and if during the course of her evidence it becomes clear that there is some other document that she had made that you haven’t been provided with, then of course that documents can be provided to you. For example, if there were notes or some other statement that she’d made, something of that kind. Of course that can be provided if it becomes relevant during the course of her evidence. But at the moment you’re being told that there is no other document to produce.
ACCUSED:So what’s the ramification for OPP if it becomes obvious there was a document and it’s been withheld even though I have requested [it] on numerous occasion[s]? I just want to be clear on – as well, I want this to be duly noted to the court, so ---
HIS HONOUR: To answer your question, it’s something a trial judge would take action to ensure that any relevant document generated by that witness would be provided to you. At this stage however, it is the prosecution position from what we’ve heard, that there is no other document. Now you can certainly ask [the prosecutor] about that. I’ll just check with [the prosecutor]. [Prosecutor], was [the witness] a witness at the committal?
It is impossible to us to perceive in the above exchanges anything other than patience, courtesy and great care to ensure that the applicant understood how the issue would be ventilated. The transcript excerpt fails to disclose any evidence of bias.
The third category of biased conduct we could discern in the applicant’s submissions were alleged instances of the judge prejudging issues in favour of the prosecution. The applicant submitted one instance of such conduct — the judge’s determination at the 22 November hearing of the prosecution’s application to set aside seven subpoenas issued by the applicant to police witnesses. As evidence that this issue was predetermined by the judge before the hearing, the applicant submitted what he thought an unusually late commencement time of the hearing and the fact that neither he nor the prosecutor had been aware that the application would be dealt with at that hearing. This, it was suggested in written submissions, was the culmination of a joint plan by the judge and the OPP to delay the application to have the subpoenas set aside and then quickly determine the issue in favour of the prosecution. This submission is incoherent and far-fetched.
Finally, the applicant cited numerous circumstances and email communications that, he submitted, provided evidence of illicit ex parte communications between the judge and the prosecution. The evidence submitted in support of this allegation either requires specious conspiracy-thinking to assume any relevance, or discloses no more than communications of an innocuous, administrative nature. The flavour of this ‘body of evidence’ is apparent in the applicant’s submission of an email addressed by the judge’s associates to the solicitors representing the VLSB commencing, ‘As discussed’. This two-word phrase, it was submitted, must refer to previous communication between the judge’s chambers and the solicitors to which the applicant was not privy. The subject of this previous ‘discussion’: that ‘this email address is the best contact for his Honour’s chambers’. The applicant’s analysis of this two-line email continued. The email’s second line urged the solicitors, ‘Please advise if you’re still having difficulty emailing.’ This, the applicant submitted, proved that there must be some other channel of communication, concealed from the applicant, between the judge’s chambers and the solicitors.
Further evidence of ex parte communications between judge and prosecution were said to include the prosecutor’s unexpected in-person appearance at the 29 October hearing — which would require the leave of the judge, and when the applicant had not been copied into any correspondence requesting or granting such leave — and the judge’s associate’s knowledge, without the prosecutor saying so during the hearing, that the prosecutor needed to leave the 22 November hearing in order to appear in another matter. There is no evidence that the judge or his associates had any improper communications with the OPP or VLSB or their representatives and we need not consider these submissions further. They are entirely misconceived.
The respondent in concise submissions contended in effect that the audio-visual record spoke for itself. The respondent submitted that Judge O’Connell was courteous and respectful.
Consideration
This application will be refused. In the face of great disrespect, his Honour exhibited nothing but courtesy and patience — in our view well beyond what is expected of a judge in these circumstances. No legal error has been demonstrated in any of the orders made by his Honour and the applicant was given the fullest opportunity to place submissions before the judge on all issues he wished to ventilate. The proceedings were procedurally pristine.
Postscript
During the oral hearing of this application, the presiding judge invited the applicant to file a list of timestamps in relation to the audio-visual recordings which he particularly desired the bench to view whilst determining this application.
This invitation was extended in an effort to provide abundant opportunity to the applicant to make his case, acknowledging the time constraints imposed upon the hearing and his disadvantage as an unrepresented litigant. It was made very, very clear to the applicant that what was to be submitted was a list of timestamps only; this was not an invitation to make further substantive submissions in addition to the approximately 80 pages of submissions he had already filed.
On Tuesday 8 February the applicant filed a six-page document. This included four pages of transcript references and corresponding timestamps accompanied by increasingly expansive explanations of their asserted significance to the applicant’s allegations of bias. These amounted to a supplementary set of written submissions, no part of which adds anything not already canvassed in the applicant’s written or oral submissions. These additional submissions, filed without leave, contained an assertion of conflict of interest by a member of the bench which, like the applicant’s many similar such assertions, was entirely misconceived.
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