Singh v The Queen - [2022] VSCA 12

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…

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 Singh v The Queen

Details

AGLC: Singh v The Queen [2022] VSCA 12
Case: [2022] VSCA 12
Decision Date: 11 February 2022

CaseChat Overview and Summary

The case of Singh v The Queen involved an application for review of the refusal by a judge to certify an interlocutory appeal, and a subsequent application for leave to appeal against the interlocutory decision. The defendant, Singh, who was unrepresented, claimed that the trial judge had shown bias in favour of the prosecution during pre-trial hearings and had engaged in ex parte communications with the prosecution. Singh sought relief under the Criminal Procedure Act 2009, specifically sections 295(3) and 296(1), which pertain to the certification of interlocutory appeals and the leave to appeal against interlocutory decisions. The central legal issues revolved around whether the judge had demonstrated actual bias or whether there was apprehended bias in the conduct of the pre-trial hearings.

The court meticulously examined the conduct of the trial judge and the allegations of bias. It found no evidence to support the claim of actual bias. Furthermore, the court held that the apprehension of bias was not substantiated, as there was no concrete evidence to suggest that the judge's actions were influenced by any partiality towards the prosecution. The court underscored the importance of maintaining impartiality in judicial proceedings and highlighted that the mere perception of bias, without solid evidence, was insufficient to warrant a review of the judge's decisions. Consequently, the application for review was dismissed, and the application for leave to appeal against the interlocutory decision was also refused.

In conclusion, the court upheld the trial judge's conduct as impartial and devoid of any actual or apprehended bias. The application for review and the application for leave to appeal were both rejected. The court’s decision underscored the necessity for substantial evidence to establish bias and reinforced the principles of judicial impartiality in criminal proceedings.

Orders