Sloan (a Pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0044

GARY SLOAN (A PSEUDONYM) [1]

THE QUEEN

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Applicant.

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JUDGES:	ASHLEY, OSBORN & PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2015
DATE OF JUDGMENT:	17 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 64
JUDGMENT APPEALED FROM:	[R v Sloan] (Unreported, County Court of Victoria, Judge Mullaly, 18 February 2015)

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PRACTICE AND PROCEDURE — Criminal proceeding — Interlocutory appeal — Application for leave to appeal — Judge’s conduct during pre-trial management of proceeding — Refusal of judge to recuse himself for apprehended bias — Whether conduct met requirements of apprehended bias test — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Crown	Mr Prosecutor with Madam Prosecutor	Solicitor for the Victorian Director of Public Prosecutions

THE COURT

Introduction

Gary Sloan, the applicant, faces an indictment filed in the County Court. It contains eight charges of arson[2] and one charge of reckless conduct endangering life.[3]
[2]See Crimes Act 1958, s 197.
[3]See Crimes Act 1958, s 22.

The applicant was arrested on 4 February 2011 and has since been in custody, for the most part serving a period of imprisonment by reason of cancellation of parole. That period ended in May 2014. Thereafter, he has been on remand in respect of the abovementioned charges.

The applicant was committed for trial on 25 July 2013 after a contested hearing.

After the applicant had been committed, the matter was listed before a number of County Court judges for pre-trial management. Eventually, in March 2014, it was allocated to Judge Mullaly for the completion of pre-trial management, and thereafter for trial with a jury.

Between March 2014 and February 2015, his Honour conducted a large number of mentions and other hearings. They included a bail application, the hearing of which extended for some five days; applications relating to subpoenas, which included issues to do with claimed public interest immunity; hearings devoted to complaints by the applicant that the prosecution had made incomplete disclosure; hearings to do with the applicant’s legal representation; hearings at which a variety of other matters were ventilated; and an application that the judge should recuse himself on the ground of apprehended bias.

The hearing of the last mentioned application did not commence until 27 January 2015, although on 3 September 2014 the applicant had made it clear to the judge that he intended to seek that his Honour recuse himself on the ground just mentioned. By then — that is, 3 September 2014 — there had been some 20 days of hearings.

The application, which it is convenient to call ‘the bias application’, was listed for hearing on seven days. Not all of those days turned out to be a full day of hearing.[4] The application concluded on 6 February 2015.
[4]30 January was a short day because the applicant stated that he was not feeling well, and wanted more time for research. On 4 February the hearing was adjourned because the applicant stated that he was unwell.

On 18 February, the judge refused the application. He published reasons for doing so (‘the bias ruling’).

Throughout the period since the judge became seised of the matter, the applicant has represented himself. Likewise, he represented himself in this Court on 31 March 2015, on his application for leave to appeal against the judge’s decision not to recuse himself. He intends to represent himself at the trial, which is listed to commence on 25 May 2015. The prosecution’s witness list names some 70 persons. The applicant has made it clear that he requires each witness to be called. It is estimated that the trial will occupy ten weeks.

The present application
An interlocutory decision

On 3 March 2015, the judge certified, pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘the Act’) that, although his decision not to disqualify himself did not concern the admissibility of evidence, ‘the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. The term ‘interlocutory decision’ is defined by s 3 of the Act in wide language. In GP v The Queen,[5] this Court held that the decision of a judge not to recuse himself was an interlocutory decision. Ashley JA, with whom Bongiorno JA and Hansen AJA agreed, held that such a decision met the definition of ‘interlocutory decision’, contrasting the definition of that term in the Act with the language of s 5F of the Criminal Appeal Act 1912 (NSW). His Honour’s reasoning is exposed at [47] to [50] in GP. In the slightly later decision of this Court in GEM v R,[6] where a contention of apprehended bias was raised on appeal after sentence, the Court referred to GP with apparent approval.[7]
[5](2010) 27 VR 632 (‘GP’).
[6][2010] VSCA 168.
[7][2010] VSCA 168, n 5.

There are points of difference — actual or potential — between, on the one hand, an interlocutory decision by a judge not to recuse himself[8] and, on the other hand, an appeal in which actual or apprehended bias is relied upon as a ground of appeal against a final judgment or order.
[8]Or ‘herself’, we will not keep repeating it.

First, in the former situation, the refusal to recuse is the decision against which leave to appeal is sought; and against which, if leave is granted, the appeal is pursued. At least ordinarily, the grounds of appeal will focus upon the reasons given for the refusal to recuse. By contrast, in the latter situation, it is the final judgment or order which is the subject of the appeal, and commonly there will be multiple grounds of appeal.

Second, the judge’s reasons in support of an interlocutory decision are likely to be a central point of debate on the hearing and resolution of the matter. But in an appeal against a final judgment or order, there may have been no recusal application at trial.[9] It may be alleged that bias is revealed as the result of a post-judgment analysis of the course of the proceedings, or in the reasons for judgment, or in some late-discovered circumstance. Thus, the judge may not have dealt with the allegations at all. In those circumstances, there will be no relevant reasons for the appellate tribunal to consider.
[9]Although successful reliance upon a ground of apprehended bias will be precluded if relevant circumstances were known to the appellant at trial but no recusal application was made: Smits v Roach (2006) 227 CLR 423, 439 [43] (Gleeson CJ, Heydon and Crennan JJ).

Third, in the case of an interlocutory decision, the decision and the judge’s reasons are to be distinguished. The result of a successful appeal against the decision will be the making of an order of a kind contemplated by s 300 of the Act. But an appeal will not necessarily succeed only because some fault may be detected in the judge’s reasons. The decision may plainly be correct despite such fault. In such a case leave to appeal may be refused. It would not be in the interests of justice to grant leave.

When considering whether an interlocutory decision has been successfully impugned, the situation of a judge refusing to recuse himself on the ground of bias deserves specific mention. If it was not for the definition of ‘interlocutory decision’, the appropriate proceeding would have been one for prerogative relief by way of prohibition,[10] or for a declaration. Rozenes v His Honour Judge Kelly[11] was an instance of the latter kind. There, this Court examined the factual content of the bias complaint both by analysis of impugned observations made by the judge in the course of the recusal application and by reference to his Honour’s reasons for refusing the application. Parts of his Honour’s reasons were in fact relied upon by the Court in concluding that the allegation of apprehended bias was made out. It appears to me that the approach in Rozenes, subject to the framework set by s 297 of the Act, to which we refer below, is applicable to a matter such as the present.

Leave to appeal

[10]As noted by Maxwell P and Weinberg JA in GEM v The Queen [2010] VSCA 168, n 3, such relief would go against a judge of the County Court, but not against a judge of the Trial Division.

[11][1996] 1 VR 320 (‘Rozenes’).

The judge having certified under s 295(3) of the Act, s 297(1) governs the question whether this Court should grant leave to appeal. The sub-section provides as follows:

When leave to appeal may be given
(1)Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a)the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)whether the determination of the appeal against the interlocutory decision may—
(i)render the trial unnecessary; or
(ii)substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c)any other matter that the court considers relevant.

It is unnecessary to consider sub-s (2), to which the opening words of sub-s (1) refer, because the trial has not yet commenced — the applicant not having been arraigned in the presence of the jury.[12]
[12]See s 210(1) of the Act.

The overriding requirement set by s 297(1) is that leave to appeal is to be granted only if the court is satisfied that such a grant is in the interests of justice. Determination of those interests is to have regard to the matter specified in sub-s (1)(a), the applicability of one or more of the matters mentioned disjunctively in

sub-s (1)(b), and the catch-all mentioned in sub-s (1)(c).

In the present case, the ‘trial process’ mentioned in s 297(1)(a) — the term appears to be broader than ‘trial’ — has already been very lengthy. In our opinion, grant of leave — and even success of the appeal — ought not cause much further disruption or delay. That tends in favour of grant of leave.

Of the matters mentioned in s 297(1)(b), in our opinion only paragraph (iv) could apply so as to favour grant of leave. The matters mentioned in the other paragraphs could have no application.

We cannot discern any other circumstance comprehended by s 297(1)(c) which would make it in the interests of justice to grant leave to appeal.

We have already expressed our opinion as to the nature of the factual enquiry which is to be made on an application for grant of leave to appeal against a refusal to recuse. It remains to add that an application would be at least very likely to succeed if a judge’s reasons showed that he had materially misdirected himself as to applicable principles.

Grounds of application

The draft grounds of application, dated 22 February 2015, assert that the judge:

1.Erred on the facts of the case and other factual errors;
2.Ignoring or mis-construing various submissions made by the Applicant so that the Ruling did not ultimately and fairly deal with the issues at hand;
3.Errors of law regarding denial of defence’s right to cross-examine witness;
4.Mis-construing what was said by His Honour in mis-quotations of the transcript;
5.Generally denying or twisting what was originally said in the transcript and then answering to that changed position (a straw-man type argument in the Ruling).[13]

[13]The spelling, syntax and punctuation of the original are reproduced in order that the precise gist of the applicant’s grounds should not be lost.

At the foot of the grounds thus stated there appears the following:

Please note: the defence intends to update this notice very shortly with details. The complexity and number of errors and complaints has led to some delays in compiling detailed grounds.

In fact, there has been no such update.

Applicant’s summary of contentions

The applicant filed a summary of contentions dated 11 March 2015. We will refer to those contentions later in these reasons.

Crown’s contentions

The Crown filed a summary of contentions dated 19 March 2015. In short, the Crown contends that, in accordance with relevant authority, the applicant’s argument that the judge should have recused himself is entirely without foundation. Later in these reasons, we will refer to a few specific aspects of the Crown’s response which develop that overall submission.

Principles

In Lancaster v The Queen,[14] this Court stated that —

104.The test for ostensible or apparent bias is firmly established. As the plurality said in Michael Wilson & Partners Ltd v Nicholls:[15]
‘It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide…
As the plurality in Johnson v Johnson explained, ‘[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.[16]’

[14][2014] VSCA 333 [104] (Nettle and Redlich JJA and Almond AJA), (‘Lancaster’).

[15](2011) 244 CLR 427.

[16]Ibid 437 [31]–[32] (Gummow ACJ, Hayne, Crennan and Bell JJ) (citations omitted).

Somewhat earlier, in AJH Lawyers c Careri,[17] this Court digested the relevant principles at somewhat greater length:[18]
[17](2011) 34 VR 236, 241-3, [17]–[25] (Warren CJ, Hansen JA and Almond AJA) (‘AJH Lawyers’).
[18]The footnotes are as in the text of the Court’s judgment.

17.The relevant principles governing the issue of apprehended bias are well-settled. Essentially, there are eight relevant principles.
18.First, when one of the grounds of appeal is based on actual or apprehended bias, the Court of Appeal needs to deal with that ground first. If the appellant establishes actual or apprehended bias, the court will set aside the decision below and remit the matter back.[19] This is so even if the court is satisfied that the decision below is correct on the merits.[20]
19.Secondly, as noted in Antoun,[21] judges should not “too readily accept recusal because a party has demanded it”.[22] Further, as held in Ebner,[23] “[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. … If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”[24] That being said, the principle that a judge should not disqualify him or herself too readily is not a “blanket that smothers the effect of disqualification where it has already arisen”.[25]
20.Thirdly, the test for a reasonable apprehension of bias was stated in Johnson[26] as being “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[27] The word “might” in the phrase “might not bring an impartial and unprejudiced mind” was clarified in Ebner as referring to “possibility (real and not remote), not probability”.[28] On the basis of Ebner, where, as in this case, “the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge”.[29]
21.Fourthly, the apprehension in question is apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she “will decide the case adversely to one party”.[30]
22.Fifthly, the application of the test involves two steps. The first step is “the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”.[31] The second step is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.[32] Contrary to AJH Lawyers’ submission,[33] the two-step approach is applicable to cases of apprehended bias on the ground of pre-judgment.[34] In such a case, the matter to be identified in the first step is the conduct of the judge said to give rise to apprehension of bias. And the logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide.[35]
23.Sixthly, “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer”.[36] The fictional lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”.[37] Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern judges “are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them”.[38] “[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias”.[39]
24.Seventhly, “[a] line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings”.[40] A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative.[41]
25.Finally, [“j]udges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice”.[42] That having been said, when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application.[43] This is so even if the judge’s preliminary view is that the application will be unmeritorious.[44] If the judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having announced his or her decision, agrees to listen to the party’s submissions under sufferance.[45]

[19]Subject to qualifications not presently relevant: see, eg, Vakauta v Kelly (1989) 167 CLR 568.

[20]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [2] (Gummow ACJ), [117] (Kirby and Crennan JJ) (“Concrete”); Antoun v R(2006) 224 ALR 51, [2]–[3] (Gleeson CJ) (“Antoun”).

[21]Antoun(2006) 224 ALR 51, [34] (Kirby J).

[22]Ibid [34] (Kirby J).

[23]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”).

[24]Ibid [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[25]Antoun(2006) 224 ALR 51, [35] (Kirby J).

[26]Johnson v Johnson (2000) 201 CLR 488 (“Johnson”).

[27]Ibid [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Ebner (2000) 205 CLR 337, [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[28]Ebner (2000) 205 CLR 337, [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ)

[29]Ibid (original emphasis).

[30]Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J).

[31]Ebner (2000) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[32]Ibid.

[33]Appellant’s (Plaintiff’s) Outline of Submissions (30 November 2009), [12].

[34]Concrete (2006) 229 CLR 577, [110]–[111] (Kirby and Crennan JJ).

[35]Ibid.

[36]Concrete (2006) 229 CLR 577, [177] (Callinan J).

[37]Johnson (2000) 201 CLR 488, [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[38]Ibid.

[39]Concrete (2006) 229 CLR 577, [112] (Kirby and Crennan JJ).

[40]Antoun(2006) 224 ALR 51, [29] (Kirby J).

[41]Antoun(2006) 224 ALR 51, [33] (Kirby J); Concrete (2006) 229 CLR 577, [177]–[178] (Callinan J).

[42]Antoun(2006) 224 ALR 51, [22] (Gleeson CJ).

[43]Ibid, [2], [21]–[23] (Gleeson CJ), [28], [30], [48] (Kirby J), [53], [56] (Hayne J), [83], [86]–[87] (Callinan J).

[44]Ibid.

[45]Ibid, [2] (Gleeson CJ), [36] (Kirby J), [87] (Callinan J).

As will be seen, some of the applicant’s submissions raised particular issues of principle. We will refer to those submissions later in these reasons. For the moment, it is enough to say that in considering this matter we have necessarily applied the general principles relating to apprehended bias set out in Lancaster and AJH Lawyers.

Some matters of terminology. In these reasons —

·    We will refer to ‘the fair-minded lay observer’ described in the authorities simply as ‘the observer’, giving that person the qualities referred to in the authorities.
·    We will use the word ‘bias’ as shorthand for apprehended bias.
·    By a conclusion that the observer ‘would not’ or ‘could not’ perceive bias in a particular context, we mean that the observer might not reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of a question for his decision. Likewise in the case of a conclusion that the observer ‘would conclude’ that the judge’s conduct did not bespeak bias.

Analysis
Material which we have read

In order to understand the applicant’s submissions, it has been necessary to read not only his summary of contentions in this Court, but his written outline of submissions dated 13 December 2014 upon which he relied below, the transcript of hearings conducted before the judge below on 6 June, 13 June, 17 June, 27 June, 8 July and 18 July 2014, the transcript of the hearing of the bias application, his Honour’s reasons for refusing bail, and his Honour’s detailed reasons[46] for refusing to recuse himself. Whilst the atmosphere of the many hearings cannot be recreated simply by reading the printed word, the transcript which we have read — it runs to many hundreds of pages — has enabled us to gain a very clear impression of the way in which the matter proceeded.
[46]41 pages, 142 paragraphs.

General observations

We make these general observations at the outset. The applicant submitted that he was not seeking to revisit the ruling which the judge made on the bail application;[47] and submitted that his references to the transcript of the bail application, the bail ruling, the bias hearing and the bias ruling were made with the view of demonstrating that the observer might discern bias. The applicant submitted also that he relied upon the cumulative impact of the various impugned behaviours, rather than upon any one piece of conduct. By ‘conduct’, we mean what transpired at the various hearings, and also the text of his Honour’s rulings on the bail application and the bias application.
[47]The judge observed at [75] in his bias ruling that the applicant had not appealed his bail ruling, or made another bail application to the Supreme Court. The applicant pointed out that his not having appealed was not a result of lack of enthusiasm on his part. Nothing turns on this matter.

But in our opinion, it was very clear, as the applicant’s submissions proceeded, that in fact he strayed into complaint about the resolution of his bail application; and that he did rely upon particular items of impugned conduct — a number of which he described in extravagant language — as discrete evidence of bias. Whether those slides in approach are explicable by the applicant being self-represented, or whether they have some other explanation, is beside the point. They are matters which coloured, in our opinion, his perception of what transpired at various hearings and in what the judge said in his rulings, and thus coloured the submissions which he made.

Below, we turn to consider, discretely, the contentions raised by the applicant in his summary of contentions. We do so whilst bearing in mind the applicant’s insistence that it is the cumulative effect of the many matters upon which he relied which established bias.

No doubt, each individual matter complained of must be considered in context. That context includes, but is not confined to, other matters complained of.

If the subject-matter of a complaint thus viewed could not, by any stretch of the imagination, evidence bias, it could not be a matter relevant to any cumulative exercise. If, for instance, there were two such matters, the necessary analysis is that zero plus zero equals zero.

On the other hand, if the subject-matter of more than one complaint was capable of evidencing bias, the cumulative impact of those instances upon the observer would fall for consideration.

The applicant’s contentions considered
1.Due to his own bias, and/or errors in the weight and assessment of all the facts and submissions in the Bias Application, Judge Mullaly’s Ruling not to recuse himself was in error.[48]

[48]As with the grounds of application, and for the same reason, the spelling, syntax and punctuation of each contention is reproduced.

Contention one is expressed in entirely general language. It is a complaint that, for one reason or another, the judge reached the wrong conclusion in not recusing himself. As a contention, it is only as good as the detail of the applicant’s complaints.

2.That Judge Mullaly has made so many errors and mis-construed the facts so grossly in his Ruling that it is not possible for the defence to catalogue and summarize them properly. It is also not possible to present them in the time being afforded by the Court of Appeal. A full review of the main points will be necessary.

Contention two does not assist the Court to understand what is complained of in the bias ruling. Other than that, the assertion that the applicant was not afforded sufficient time to ‘present’ a catalogue or summary of the alleged errors and misconstruction of the facts in the judge’s bias ruling is unfounded. The detail of the summary of contentions, quite apart from the time given to the applicant for oral submissions, demonstrates that fact.

3.During the case itself and indeed the Bias Application, Judge Mullaly will not stop interjecting into the defence’s submissions (again, where he does not interject into the Crown submissions). It was essentially the Judge arguing and debating with the defence during submissions, sometimes in such a manner as to try and weaken or undermine the accused’s arguments.

Contention three is groundless. Our reading of the lengthy transcripts to which we have referred shows that this is so. In our opinion, the observer would conclude that the judge at all times gave the applicant full licence — at times more than full licence — to pursue his arguments.

4.Judge Mullaly’s Ruling and some of the interjections and the Bias Application tried to defend and excuse his position by inventing ad-hoc excuses and facts not part of the transcript or original hearing where in essence the Judge was ‘giving evidence’ (often about his claimed intentions which he often then projected onto the hypothetical observer) beyond what they lay-observer would have available in court. It is contended by the Appellant that Judge Mullaly erred to consider such additional matters as expressed by himself.

Contention four complains, at a level of generality, that the judge sought to justify impugned conduct by ‘giving evidence’ or ‘by inventing ad hoc excuses’. This is said to have occurred in the course of the bias application and in the bias ruling. The applicant contends that the observer might discern bias in these events. The general complaint raised by contention four is particularised in other contentions, and we will deal with it there.

5.Judge Mullaly tried to re-hash defence submissions and then try to dodge the points by absurdly claiming I am “re-litigating” matters.

The matter raised by contention five lacks substance. The transcript reference accompanying the contention demonstrates the point. At one stage in the bias application, the applicant focused on what he had submitted on the bail application was an error in the judge admitting hearsay evidence. The judge observed that what the applicant appeared to be doing was to establish that the receipt of that evidence had been wrong, as opposed to such receipt indicating bias. The observer would well apprehend the point which the judge was making.

6.The Ruling was not satisfactory in that it failed to answer to many of the submissions and matters raised by the defence, including the matter of Judge Mullaly taking it upon himself to impose on the defence a policing-type regime of checking the mail between the accused and the Court.

Contention six raises a general complaint that the judge did not address every matter which the applicant had raised on the bias application in the bias ruling. For that reason, the bias ruling is said to be ‘not satisfactory’. This general complaint is

particularised elsewhere, and we will deal with it there.[49] We do note, however, the submission for the Crown that the written outline of submissions relied upon by the applicant below raised in excess of 50 points of complaint, that the applicant expanded on those points orally for a number of days, that the judge sensibly sought to group the complaints into categories or topics so as to make his reasons ‘relatively compact and intelligible’, and that his Honour addressed all matters raised in argument. Anticipating what we later conclude, in our opinion there was substantial merit to these submissions. We add that if the complaint was made out, it would provide a basis for impugning the bias ruling. But, as we observed at [14] above, that would not require a conclusion that the judge’s decision not to recuse himself was erroneous.

7.Whether or not any act by the Judge that gave an appearance of bias can be “subtracted” from by way of pointing to a time where the Judge may have assisted the unrepresented accused.

[49]With respect to the ‘mail registry’ issue, see contention 26, and the discussion below at [129]–[134].

Contention seven proposes, in substance, that the judge erred in law, when considering the bias application, by regarding it as permissible to ‘subtract’ from instances of apparent bias, instances where his Honour may have assisted the applicant. The transcript reference provided by the applicant contains his submission that such a course would be impermissible. The paragraphs in the bias ruling to which the applicant refers[50] reveal only that the judge stated, correctly in our opinion, that instances of conduct which might arguably give appearance of bias would be considered by the observer in the context of the proceeding considered as a whole.
[50]Bias ruling, [46]–[47].

This is another complaint, we add, which attacks the ruling. If made out, the ruling itself would be impugned. But, as we have said before, it would not follow that the observer might apprehend bias.

8.Whether or not Judge Mullaly erred in law in his Ruling {para 23-24} not to accept that the defence’s view of the Judge being bias adds weight towards any apprehended bias.

Contention eight proposes that the judge erred in law by accepting that the applicant’s view that his Honour exhibited bias ‘added weight towards’ a conclusion of bias. The applicant relies upon passages in the judgment of Kirby J in Johnson v Johnson.[51]
[51](2000) 201 CLR 488, 502 [41], 507–08 [52] and 510 [57].

The judge dealt with this issue as follows:

23There are two other matters raised by Mr [Sloan] that relate to the legal principles to be applied in the resolution of his application. The first is that Mr [Sloan] pointed to part of the judgment in Johnson v Johnson at [41] in which the (sic) Kirby J included in the his (sic) analysis of the importance of the appearance of justice, the phrase, “the appearance of impartiality both to the parties and to the community” (underlining added). Mr [Sloan] point was that the sense of impartiality that he has is not entirely irrelevant to the question of apprehended bias according to the test in Ebner.
24The prosecution contended that the subjective reaction or response of the accused to various matters arising in the hearings may be relevant to the assessment of what the fair minded lay observer might reasonable apprehend. The relevance being only in the sense that if the accused considered that I was acting in a way that established apprehended bias then this may well be the impression or apprehension of the fair minded lay observer. Importantly the subjective impression of the accused was not a separate consideration as to any apprehension and it was not determinative of what the fair minded lay observer may apprehend. As was made clear in the passages cited in Lancaster from Johnson v Johnson the test is an objective one.[52]

[52]See bias ruling, [23]–[24].

In our opinion, there was no fault in his Honour’s acceptance of the submission made for the prosecution. The inquiry is an objective one.

We add two matters. First, contrary to the language of the eighth contention, his Honour nowhere stated that the subjective view of the applicant did not ‘add weight towards’ his conclusion whether, objectively, the notional observer might apprehend bias. Second, the applicant’s argument that the judge must have dealt with his submission concerning the relevance of his subjective belief of bias before dealing with the recusal application more generally lacks cogency.

9.Whether or not the hypothetical observer would have knowledge of the facts of the history of the case attributed to him including letters on the court file, the transcript of committal from the depositions and other matters as part of the case file at the court. Whether the boundaries of the use of any such knowledge should have been precisely defined and explained. Whether Judge should have Ruled on this matter prior to hearing the particulars.

The applicant’s ninth contention is that the observer would have reference not only to the conduct of the particular judge who was asked to recuse himself, but also to the antecedent conduct of other judicial officers who had anything to do with the particular litigant in the course of the proceeding. The applicant relies upon Laws v Australian Broadcasting Tribunal.[53]
[53](1990) 170 CLR 70 (‘Laws’).

The judge dealt with this issue as follows:

25Secondly, if I correctly understood the point, the accused contended that as his case had necessarily proceeded before other judicial officers, such as the committing magistrate and listing judges in the County Court, that the apprehension of bias at this point in time when I am hearing the matter should include the history of unfair conduct and behavior through those earlier hearings. As authority for his proposition that I should be taken as having knowledge of the history of the whole proceedings Mr [Sloan] relied on the decision of the High Court in Laws v Australian Broadcasting Tribunal, (1990) 170 CLR 70, [1990] HCA 31.
26In my view the case relied on by Mr [Sloan] is not as helpful as he argues it is. That was a case where the Tribunal that was hearing matters relating to Mr Laws’ conduct was itself a party to other civil litigation brought by Mr Laws. Thus it was the case and necessarily so that the Tribunal and certain members were well aware of previous matters involving Mr Laws before the tribunal because the Tribunal and certain members were being sued by Mr Laws for comments made about the tribunal hearing and decision.
27The circumstances here are much different. No fair minded lay observer would attribute to me any of the conduct of any other judicial officer, nor could the fair minded lay observer be apprehensive as my approach to the case based on what some other judicial officer did or did not do at another time before I was not in any way involved.
28The real point here is what may be relevant to an application for apprehended bias is my response to matters raised by Mr [Sloan] as to the difficulties he has faced thus far in his case. Thus the history of the whole proceedings is not irrelevant but its relevance is not what occurred that caused or still causes Mr [Sloan] a grievance but what I do or do not do to deal or respond to the matters as Mr [Sloan] raises them before me.

In our opinion, his Honour’s approach was correct. Laws was not in point. The observer should not and would not have regard to the conduct of antecedent judicial officers.

10.Whether Judge Mullaly erred to disregard the proposed issues of ‘venue-bias’ and sub-issues relating to same. Whether or not Applicant should have been allowed to make his detailed submissions and arguments on “venue-bias”. Whether a particular venue may be barred from hearing a case and whether that depends on the Judge being recused for bias or not. Further, where an appeal court has found perceived bias in a lower court, a different court is to hear the remitted case.

The applicant’s tenth contention refers to so-called ‘venue bias’. The judge referred to the issue this way in his bias ruling:

132Mr [Sloan] has raised that because of another or other Judges in this Court having declared that they cannot preside in this case and because of other problems with listing Judges, that I may be myself affected by that as a colleague and thus an apprehension of bias arises for me and for all Judges of this Court. He has termed this as “venue bias”. I am not sure I have completely understood his point and it did lack some detail. I do not consider it has at this point any merit. In my view, the fair minded lay observer would consider that I would attend to tasks as the Trial Judge adhering to the principles and duties of my office with impartiality and not be affected by what may or may not have happened with other Judges in this Court.

The applicant argued that the judge misunderstood his submissions about this matter. We have read the transcript upon which the applicant relied to make good this submission. It is not readily intelligible. The applicant appears to have relied upon some alleged past conduct of the Chief Judge, and perhaps of one other judge, towards him. Such reliance does not add any substance to the tenth contention, which the judge rightly rejected. The observer would see nothing in the contention.

11.Whether or not any “bad” submissions (as perceived by the Judge) can “subtract” from the more weighty submissions.

The eleventh contention proposes that the judge, in effect, approached the question raised by the bias application by considering that a ‘bad’ submission could detract from more weighty submissions. Presumably, this is said to impugn the judge’s bias ruling.

In support of his contention, the applicant refers to transcript of a submission which he made on the bias application. There, he referred to what the judge had apparently said at a much earlier hearing — to the effect that a bad or poor submission could detract from better points.

This contention lacks any merit. What the judge said on that earlier occasion was entirely unexceptional. There is always a risk that, in a welter of bad points, a good point might not be picked up.

Quite apart from the judge’s earlier observation being unexceptional, there is nothing to suggest that it had any particular application in his Honour’s resolution of the bias application.

12.Judge Mullaly made many of the same errors as in Lancaster, a case where he was also accused of apprehended bias under some very similar grounds. In this case the charges were also likely to cause disdain. Appellant asserts that Lancaster is distinguished from the points in the present case and therefore not applicable to the Judges’ Ruling. Whether a danger is posed to the fair trial of the accused by virtue of a Judge who may be seen as crossing the line into the arena between the parties.

Contention twelve asserts that the judge made ‘many of the same errors’ in Lancaster.[54] The applicant submits that Lancaster is distinguishable, and so does not stand in the way of his argument that the observer might apprehend bias.
[54][2014] VSCA 333.

It is the fact that, in Lancaster, a prisoner appealed against his conviction for sexual offences, and that he contended, inter alia, that the judge had caused a substantial miscarriage of justice by refusing to recuse himself for apprehended bias. It is also the fact that the judge in the present matter was the judge in that case. It is true also that this Court was critical of aspects of the judge’s interference in the trial, and considered that his Honour had erred in more than one respect. Finally, it is nonetheless the case that this Court was not persuaded that the observer might have perceived bias in the judge’s conduct.

Lancaster was a decision which necessarily turned on the circumstances of that case considered in accordance with authority. There is no question of it being ‘distinguishable’. Apart from the statements of applicable principle, it is of no present consequence. It is beside the point that in Lancaster and in this matter, the same judge was involved.

13.Judge Mullaly admitted he made procedural errors and some matters might have some weight, but then did not consider these matters in combination. He seemed to make his Ruling by isolating and dismissing each point in turn without reference to the others. The Appellant submits this caused the facts to be given the wrong weight and not be fully explained in the Ruling.

By contention thirteen, the applicant complains that in the bias ruling, the judge admitted making procedural errors, and that some complaints might have weight; but that his Honour failed to consider these deficiencies in combination when subjecting them to the scrutiny of the notional observer. Orally, the applicant highlighted what he submitted was an error made by the judge with respect to DNA evidence.

The judge did accept, in his bias ruling, that some of the applicant’s complaints were not without merit. Not being exhaustive, we refer to what his Honour said with respect to (1) his refusal to permit the replaying of the audio tape of part of the informant’s evidence on the bail application; (2) his refusal to permit the applicant to cross-examine the informant on the bail application about his state of health; (3) his questioning of the prosecutor on the bail application as to the use to be made of a YouTube video clip found on a computer at the applicant’s home; and (4) a comment which he made about DNA probability evidence in the course of the applicant’s cross-examination of the informant on the bail application.

To our minds, his Honour’s reasons reveal that he was at pains to find merit in the applicant’s submissions about these various matters. We will expand upon that conclusion when considering them discretely a little later in these reasons.

We do not agree with the applicant’s submission that, having individually considered these matters, his Honour did not address their cumulative impact upon the perception of the observer. He expressly stated the contrary on at least one instance.[55] There is no warrant for rejecting that statement. In any event, assuming that the judge did err in one or more of the contexts to which we have just referred, it does not necessarily bespeak bias.[56]
[55]See bias ruling, [116].
[56]Lancaster [2014] VSCA 333, [126].

In form, this contention was an attack upon the judge’s reasoning as exposed by his Honour’s bias ruling. So viewed, in our opinion, the attack comprehensively failed.

14.The Judge’s refusal to allow cross-examination of the witness on basic health matters. The Ruling contained factual error, misconstrued the legislation and law on this matter, and was in the Appellant’s view a series of ad-hoc excuses rather than a fair summary of the matters raised.

By contention fourteen, the applicant complains about the judge’s refusal to permit him to cross-examine the informant, on the bail application, about his state of health.

The applicant cross-examined the informant over two days. The cross-examination runs to some 172 pages of transcript. At the very end of the cross-examination, there occurred the following:

ACCUSED: I just want to quickly ask you one last thing, Mr Wallace, it’s about the disclosure. There was disclosure delayed some problems in this case due with you supposedly sick in hospital. Now did you agree that, today, you appear in perfect health?
HIS HONOUR: Mr [Sloan], he’s not going to go down this line.
ACCUSED: It’s just - the relevancy, Your Honour, is just that he’s made – there’s a lot of comments made about the disclosure and the excuses that he’s sick and ill and he was going to die in hospital.
HIS HONOUR: None of that. Just move onto the next question.
ACCUSED: All right.
HIS HONOUR: Have you got many more? Have you got much more?
ACCUSED: I’ve got one more, maybe one more.
HIS HONOUR: Because I’m going to have a break but if Mr Wallace’s evidence is concluded, I’ll excuse him.
ACCUSED: Okay. Mr Wallace, in terms of this serious illness that you had - you say you had - can you 100 per cent guarantee to the court that your health won’t get worse again.
HIS HONOUR: Don’t answer that. Is there any other question?
ACCUSED: No, there’s not, Your Honour.
HIS HONOUR: Thank you, have you got any re-examination?
ACCUSED: Your Honour?
HIS HONOUR: Yes?
ACCUSED: Can I just say one thing first? Just the point of that final question was regarding any possible future delay, that’s all.
HIS HONOUR: I understand what it was, and you’re not to ask Mr Wallace about his health. I will allow – there’ll be information provided, if it’s appropriate, about any delays that might arise because any witness in the whole proceeding, and you, yourself, are not well. That is quite common. It is not to be put to Mr Wallace for him to be cross-examined by you about his health, full stop. Parts of the Evidence Act disallow questions of this kind, and I could refer you to them but there’s no need.

The proposed cross-examination was apparently designed, for the most part, to address past complaints by the applicant that he had not been given full disclosure of documents by the informant, rather than to suggest that there might be more delay as might push the trial further into the future. Nonetheless, as proposed the cross-examination had some relationship to future delay.

The subject of alleged past non-disclosure had been pursued at length by the applicant in his cross-examination of the informant. Immediately preceding the passage of transcript set out above, the applicant had concluded a tranche of cross-examination about disclosure by this question:

Mr Wallace, I put it to you that it is you who doesn’t disclose and you’re just a bare-faced liar about your disclosure.

The judge, understandably, did not require the witness to answer that question.

In his bias ruling, the judge dealt with the issue now raised by contention fourteen as follows:

90The other aspect of the cross-examination of the informant that Mr [Sloan] raises is my refusal to allow Mr [Sloan] to cross-examine the informant on the topic of the informant’s personal ill health. Mr [Sloan] added to this in saying I was in error in the reasons given for my decision to not allow him to cross-examine in the way that he wished to, in particular my reference to s41 of the Evidence Act. This matter is connected to or arises out of delays in disclosure. Mr [Sloan] has very significant concerns about the delay in disclosure and they are not matters referred to by him regularly. At one point in an earlier hearing, the prosecution advised that certain timetables may not be met or easily met because the informant was undergoing treatment for an illness. I did not inquire at the time any further and did not allow Mr [Sloan] to seek information as to what hospital or facility the informant was attending so as Mr [Sloan] could, as he said, subpoena records to verify what was being said. It is plain to anyone in these proceedings that Mr [Sloan] does not trust a word the informant says.
91Cross-examination at the bail application necessarily had to be relevant to the issues concerning bail. Mr [Sloan’s] ability to prepare his defence was an important relevant matter because self-evidently preparation in custody would be more onerous than if Mr [Sloan] was at liberty. However, cross-examination seeking answers from the informant about very personal matters such as his health and the treatment he underwent, was a significant stretch of relevance to the issue of disclosure, delay and the matters pertinent to a grant of bail. It seems Mr [Sloan] had the idea that if the informant in the witness box was compelled to answer under oath, then he, Mr [Sloan], would be able to ask questions about those topic and then see if those answers were legitimate.
92Cross-examination is not without important rules and constraints. The High Court in Wakeley [1990] HCA 23 and again forcefully in Libke, [2007]HCA 30 , emphasised that cross-examination was not completely unfettered and carried responsibilities for both the cross-examiner and the Court. In both Wakeley and Libke, the earlier words of Lord Harmsworth MR were cited from the English case of Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 at 359
“Cross-examination is a powerful and valuable weapon for the purposes of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion and with due regard to the assistance to be rendered by it to the Court not forgetting at the same time the burden that it imposes upon the witness.”

93 In Libke, Justice Heydon went on to say at [120]:
“Hence the powers given to cross-examiners are given on conditions and among the relevant conditions are those which underlie the rules of evidence contravened in this case.”

94In Wakeley at [20] the Court made clear that there is significant discretion necessarily given to a cross-examiner to pursue questions they consider are for the witness to answer. The Court then said:
“Of course there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and undue prolongation of the expensive procedure of hearing and determining a case.”

95Further, matters governing cross-examination as to credit are governed by the Evidence Act. Section 102 states the credibility rule as follows:
“Credibility evidence about a witness is not admissible.”

96Section 101A defines credibility evidence as being, in essence, evidence that affects the assessment of the credibility of a witness. By s102, the credibility rule does not apply to cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. Section 41 of the Evidence Act empowers a Court to disallow improper questions. Improper questions relevantly for these proceedings is defined as a question that is unduly annoying, harassing, intimidating, oppressive or repetitive.
97Mr [Sloan] argues that when denying him the right to cross-examine the informant as to the informant’s health, I erroneously invoked s41 of the Evidence Act. While Mr [Sloan’s] argument as to s41 may have some merit, that alone does not make his line of cross-examination permissible. The relevance of what seemed to be the direction of Mr [Sloan’s] line of questions was marginal at best. In my view, it was not a topic in hearing the bail application that I considered was of much moment or of much assistance to me so as to require a police officer to detail to an accused in public matters relating to his ill health and treatment. Put simply, the policeman is not just “fair game” because he was in the witness box and he is the informant to whom Mr [Sloan] seeks to discredit generally. My restrictions on Mr [Sloan’s] cross-examination about such matters in my view would not or might not give the apprehension I was overly protecting the witness and doing so because of partiality. Properly analysed this would not go to establish the test for apprehended bias. A fair minded lay observer would consider, in all the circumstances, the stopping of the cross-examination was proper and in accordance with the laws of evidence.

According to the applicant’s written contention, the ruling, relevantly, ‘contained a factual error, misconstrued the legislation and law on the matter, and was in the applicant’s view a series of ad hoc excuses rather than a fair summary of the matters raised’. Orally, the applicant submitted that the judge did not refer to s 41 of the Evidence Act2008 (‘Evidence Act’) when refusing him permission to cross-examine the informant about his health. Thus, his Honour’s reference to s 41 at paragraph 90 of his ruling was incorrect. The applicant submitted also that the judge’s reference to Wakeley[57] at paragraph 94 in his ruling was not in point, and that the intended questions would not have gone to the informant’s credit, so that s 102 of the Evidence Act was not relevant.
[57]Wakeley and Bartling v The Queen (1993) 93 ALR 79, 86, [1990] HCA 23, [20].

In this Court, it was accepted by the prosecution that the judge did not refer to s 41 of the Evidence Act in the course of discussion on 27 June 2014. Rather, his Honour said that: ‘Parts of the Evidence Act disallow questions of this kind, and I could refer you to them, but there’s no need’. It follows that, literally, the judge’s reference to s 41 at paragraph 90 of his ruling is incorrect. We do not agree, however, with the applicant’s submission that the passage cited by his Honour from Wakeley was not in point. Nor do we agree with his submission that the evidence he was seeking to elicit did not go, at least in part, to the informant’s credit.

The judge’s reasons expand at length upon various matters that were probably in his contemplation when he shut down the applicant’s cross-examination of the informant. No doubt, he did not mention all of them at the time. But the key point, it seems to us, is that the proposed cross-examination was of marginal relevance to the bail application. That sufficiently explains why his Honour, at the end of a long cross-examination of the informant, peremptorily shut it down. In our opinion, in context, the observer would perceive it that way. To our minds, there is no possibility that the observer might perceive bias in what his Honour did.

15.Judge Mullaly stating the Applicant at a Bail Application should not call his witness (mother) to give accommodation related evidence and then subsequently giving weight to an argument made by the prosecutor adverse to the accused for not having called that very evidence. Misadvising the accused and then failing to pull-up the prosecution. Then subsequently making a false excuse as to why he did so about overseas travel, changing and adding to his excuse at the Bias Application, and then failing to properly address the Applicant’s submissions in the final Ruling.

Contention fifteen begins with the proposition that the judge stated to the applicant on the bail application that he should not call his mother as a witness, and continues with the assertion that the judge gave weight to an argument by the prosecutor adverse to the applicant by reason of the applicant not having called that evidence.

The contention is quite wrong in more than one respect, as the observer would undoubtedly perceive.

On the bail application, when the prosecution had completed calling evidence, there was this interchange between the judge and the applicant:

HIS HONOUR: Apart from - is there any evidence that you’ll be calling on the bail application, Mr [Sloan]?
ACCUSED: Oh, probably not - probably not at this stage, but if there was I’d imagine it would just be ten, 15 questions or something, but I don’t think so, no.
HIS HONOUR: All right. Can I ask who - ten or 15 questions to which witness? Mr Wallace?
ACCUSED: My mother, but as things stand now I'm not intending to call her, but - - -
HIS HONOUR: All right.
ACCUSED: And if it’s of any assistance to the court I would imagine that would my submissions wouldn’t be able to go for more than an hour anyway, at any rate.
HIS HONOUR: Yes, all right, thank you. We’re going to keep this moving, come what may, and on 3 July we will either hear from your mother - Mr [Sloan], if you think the evidence that your mother might give is uncontroversial, then really I’d hear it from you, in the sense just, look - - -
ACCUSED: Very well, Your Honour.
HIS HONOUR: From the Bar table, just what your mother would say. I don’t think we need to put her in the witness box and have you examine her and then make her subject of cross-examination. I’d be pretty - - -
ACCUSED: I agree with Your Honour on that.
HIS HONOUR: I’d be very toey about that. So let’s just hear what you think she would say from you in some form or other, just in you telling me from where you sit there.
ACCUSED: Oh, I don’t intend to call her. I was just – it’s more of an indication - - -
HIS HONOUR: Good.
ACCUSED: - - - of time just in case I changed my mind.
HIS HONOUR: Thank you.
ACCUSED: It’d be just questions about the residential accommodations.
HIS HONOUR: Yes, all right. We’ll confirm the residential accommodation and so on. So it would be your case that if you were released you would live with your mother; is that right?
ACCUSED: Oh, that’s one submission and there might be an alternative - - -
HIS HONOUR: There might be an alternative.
ACCUSED: - - - submission put in the alternative.

A question then arose as to when the bail application would proceed. The applicant stated that he would like his mother to be present. A day was arranged which was apparently suitable to her.

The question of accommodation, should the applicant be granted bail, was revisited when the prosecutor made this submission:

I note that there has been no evidence put forward in the form of what arrangements, if any, have been made to accommodate Mr [Sloan] if he was granted bail, and therefore, Your Honour has no evidence as to satisfactory arrangements being in place.

That’s not a major point that I make. It’s the last point I make. But it would be of concern to Your Honour, no doubt, that there hasn’t been any such evidence put before Your Honour in this case, because if he was to be granted bail, then Your Honour would need to be satisfied that there are arrangements in place whereby the likelihood of him not reoffending was somewhat guaranteed. And that’s not – Your Honour hasn’t heard any evidence to that effect in this case.

The applicant’s response was as follows:

Just quickly, with the evidence – he says there’s no evidence of arrangements if bail was granted. I do remember I had a discussion with Your Honour about possibly calling my mother about that. Now, there is evidence in the depositions, there are photographs and so on, of the house and so on, and after speaking to Your Honour, I was just going to make submissions about that myself, and - - -
HIS HONOUR: I did – yes, can I just interrupt there briefly - - -
ACCUSED: Yes.
HIS HONOUR: To say that we were concerned at one point that your mother might not be available because she had a pressing need to travel overseas. To that end, I said that I would accept from you what evidence that she would give, and you were – when she returned, and didn’t – the fact she went away didn’t cause any problem, but it was – your concern was to get documents, which I’ve got. She gathered them, and so on and so forth. But I assumed you were going to tell me that her evidence about accommodation would be that you would live there, and she’s happy for that to occur.
ACCUSED: Yes, Your Honour, because I feel as if that’s – Mr Prosecutor’s point is a little unfair. Otherwise, I do take slight issue with what Your Honour said about my mother. It wasn’t just a matter of that. I was under the impression that I could make submissions about that, and if there’s any dispute about that, then my mother could be asked by Your Honour in a more informal way - - -
HIS HONOUR: Yes, sure.
ACCUSED: Rather than having a – Your Honour has made a specific comment about - - -
HIS HONOUR: I did. I said that. I absolutely said that, and that will persist. So what – if you want to meet that now, or whenever you want to in your submissions, about accommodation and how that’s all satisfactory and the like, I will hear what you say.

In the bail ruling, the judge referred to the prosecution’s submission this way:

Although the prosecution did not put much store on this argument, that there was little by way of details as to what arrangements there will be for accommodation stability that will lower the risks if Mr [Sloan] is on bail. I might say for myself at this point, the prosecution’s last point is not its strongest.

His Honour also said this:

I accept also that should he be released on bail he would reside with his mother in the family home where he was living at the time of his arrest. His mother attended all the bail hearings but it was not necessary that she give evidence on this discrete area of where Mr [Sloan] would live and generally as to the circumstances of living arrangements should he be granted bail.

The above analysis of what passed between the judge and the applicant at the bail hearing, and what his Honour said in his bail ruling, shows that there is no substance at all to the applicant’s fifteenth contention. The observer would undoubtedly see that to be the situation.

16.Judge Mullaly adding to the prosecution case by leading questions to the prosecutor regarding alternative ways to consider the alleged YouTube video evidence. The defence submits that, at the least, this incident may well be seen as the Judge entering into the arena as a contestant to alter or fashion the prosecution case in a way different to how it was and how the accused understood it to be. If the Judge was seeking to understand any alternative approach the prosecution might have to the evidence, despite the fact that there was no call to do so at that time, he could have asked the prosecutor in a non-leading way rather than making a suggestion as he did. Failing to resolve whether what was suggested was admissible ‘rank propensity’ evidence.

The applicant’s sixteenth contention is that the judge impermissibly entered the fray on the bail application by suggesting, in effect, an alternative way in which the prosecution might use particular evidence; and thereby exhibited bias.

The judge dealt with the factual issue in the bias ruling as follows:

105The final point arising out of the bail application is one that I acknowledged during Mr [Sloan’s] submissions was his strongest point. The prosecutor likewise acknowledged this in his oral submissions. It is described in the submissions made on this application as me adding to the prosecution case. The circumstances of this aspect of the case are set out in the transcript.
106In the bail application, the prosecutor played video tape. It is alleged it was a video on YouTube. All the details of what was said and what images could be seen on the video do not need to be explained here at this moment. Suffice to say the person on the video discusses arson and the ways to commit arson without being detected. The person’s face is covered and the voice is disguised electronically. I understand the prosecution case is that the video was found on a computer alleged to be connected to the accused. Indeed, the prosecution alleged that the computer is Mr [Sloan’s] computer. The prosecution say that via the route of a number of pieces of circumstantial evidence they will make good their allegation that the man on the video is the accused man. The prosecution then seek to use this evidence to establish the link between aspects of various fires and the instructions on the video. I do not need to elaborate further.
107A matter that occurred to me as I watched the video was what if anything would be made of the fact that the accused is alleged to have had the video on a computer at his house if the prosecution does not establish that the man on the video is the accused. That prompted my question to the prosecutor. It was introduced by me saying “Again, I don’t want to create a situation where I’m said to assist…(T 61, 18 July 2014) Although the sentence was not complete it plainly means ‘assist the prosecution”
108This went on where I ask if the prosecution is unable to prove that the man on the video is the accused and as it were “if [it] is not him educating others about arson, then its someone who is educating him” [T62]
109The prosecution said that was not the way the prosecution was be utilising the evidence, but after a moment the prosecutor added, “But there is that aspect to it, Your Honour that even if he’s not the author, if I can use that expression, it reflects an interest, yes” [T62]

Thereafter, in his ruling, his Honour considered what the perception of the observer might be in these circumstances. He concluded that, although it was the applicant’s strongest point, it was not alone, or in combination with other matters, sufficient to satisfy the bias test.

The applicant orally submitted that the judge’s comments had conveyed the appearance of a serious prejudgement of the evidence. What his Honour did, the applicant submitted, changed the prosecution case significantly.

The applicant cited the judgment of this Court in Velkoski v R.[58] It was his submission that the use of the evidence mooted by his Honour would be to deploy it as ‘rank propensity evidence’.
[58][2014] VSCA 121, [173(f)].

The impugned observation was made before the applicant was arraigned, in the course of the prosecution’s final submissions on the bail application. It was, we should think, a statement of the obvious. If the applicant was not the author of the video clip said to have been found on a computer belonging to him, then he was the possessor of a video clip which discussed arson and the ways in which arson may be committed without detection. Whether or not, at trial, there might be some issue about admissibility on the latter basis was not explored. The judge could not possibly have ruled upon its admissibility on that basis, and he did not do so.

In all the circumstances we are quite unpersuaded that the judge’s intervention might be perceived by the observer as indicative of bias.

We add this, not that it addresses the bias issue now before the Court. As a statement of the obvious, it was in fact best, in our opinion, that the alternative approach to the evidence was raised before trial. The applicant intended to represent himself. The trial was to be heard with a jury. It was desirable that the possible alternative approach was ventilated before trial so that the applicant appreciated its potential significance and would be in a position to deal with the situation if, for instance, the jury was to ask a question whether the evidence could stand in support of conviction on that approach. The judge addressed this kind of consideration at [110]–[114] in his bias ruling.

17.Matters relating to Hear-say evidence.
Submissions include the fair-minded observer would not think a fair and un-bias Judge would admit several times removed hear-say evidence where the names of the other persons cannot even be given. It was prejudicial, and amounted to speculation and rumour.
(a)The more extreme nature and number of hear-say the Judge allowed; and
(b)This error in combination with all the others; and
(c)Judge argued the objection in place of the prosecution; and
(d)Manner the Judge did not give any help or assistance to unrepresented accused.

18.Allowed questioning of the witness on the LEAP report at a time knowingly not provided to the accused/defence. This matter was dealt with in error by mis-construing the facts surrounding this matter and making excuses not open or reasonably available. Fact defence had to repeatedly object before any action taken.

The applicant’s seventeenth and eighteenth contentions are interrelated, and we will consider them together.

An issue which arose on the bail application was whether the applicant presented an unacceptable risk of committing an offence if he was granted bail. The informant gave evidence about that matter, partly by reference to a printout of the applicant’s criminal record — a so-called LEAP report — which briefly summarised the applicant’s past offending, partly by reference to conversation which he had had with a police informant who had been involved many years before in respect of prior offending, and partly by reference to conversations he had had with fire brigade officers — to the effect that there had been no arson attacks in more recent times whilst the applicant, then under surveillance, was at his home. The informant’s evidence in respect of these matters was hearsay, and much of it was hearsay on hearsay.

The applicant repeatedly objected to the admissibility of the evidence. He referred, inter alia, to the judge having a discretion to reject it altogether. He referred to s 137 of the Evidence Act.

Repeatedly, and correctly, the judge informed the applicant that hearsay evidence was admissible on a bail application; but that it was a different matter what weight should be attributed to evidence of that kind.

The applicant also objected to material in the LEAP report being given in evidence by the informant when he, the applicant, did not have a copy of that document.

Evidence was also given on the bail application by a bureaucrat as to the circumstances of the applicant’s incarceration pending trial, and as to arrangements that could be made for him to be able to prepare his defence. The judge had expressed concern that the applicant would be seriously disadvantaged in preparing for trial if, as the applicant alleged, conditions whilst he was confined inhibited him doing so. The evidence of the bureaucrat addressed this matter. There was a substantial hearsay component to the witness’s evidence. The witness had never met the applicant. The applicant complained about the receipt of that evidence.

In his bail ruling, the judge noted that:

The prosecution argues that Mr [Sloan] has not shown cause and that he presents as an unacceptable risk to commit further offences if released on bail and endanger members of the public. The prosecution relied on the evidence of the informant, the prior criminal history and the evidence of the informant, on the circumstances of some of those prior matters and the sentences that followed findings of guilt in two County Court matters. The prosecution emphasises that while on bail Mr [Sloan] simply ignored the curfew condition and went out committing the offences. The prosecution thereby argue that no conditions of bail would be able to prevent this reoccurring, and as such, Mr [Sloan’s] risk of reoffending is unacceptable.
In this trial the prosecution will argue that Mr [Sloan] has a particular propensity or motivation to commit arson. This was based on prior behaviour and his interest in a philosophy if it can be termed that, of arson and arsonists as being a way to deal with the injustices and corruption endemic in the criminal justice system and society in general. This, the prosecution will argue, makes it more likely that Mr [Sloan] committed all the crimes alleged. At this point it is argued that if (sic) it makes Mr [Sloan] more likely to commit further offences and the risk is to be at an unacceptable level if he is released on bail.

His Honour concluded that:

Mr [Sloan’s] prior history and the circumstances of him committing and being convicted of the earlier like offences as those that he will face here are matters of real concern to me in this bail application. The fact that Mr [Sloan] was on bail when it is said that he committed these offences is a matter that seriously operates against the granting of bail, although I do not double count that proposition, because it changes the onus as to the grant of bail. But the point needs to be understood that it is a matter of real concern.
Also of relevance in this regard is that one significant condition of bail on the last occasion, the curfew, the matter put forward by Mr [Sloan] as a condition that would restrict any risk of bail should he be granted bail was a condition that Mr [Sloan] did not adhere to and breached, it is said, routinely.
Thus, while the circumstances of Mr [Sloan’s] incarceration and his personal circumstances such as his mental and physical health are important, in the end, I am not persuaded that any of the matters raised by Mr [Sloan] alone or more importantly taken together are such that he has shown cause why his continued detention is not justified.

By contention seventeen, the applicant argues that the admission of the hearsay evidence on the bail application might be seen by the observer as indicative of bias. By contention eighteen, he argues that it might be seen as unfair that he was not provided with a copy of the LEAP report before the informant gave evidence, and he asserts that he had to repeatedly object before he was provided with that report.

Despite all that the applicant sought to make of them, in our opinion the observer would conclude that there is no substance to either of contentions seventeen and eighteen.

The hearsay evidence was admissible, and its weaknesses — which went to weight — were thoroughly explored. It is not in doubt that on the bail application, hearsay evidence was admissible.[59] The applicant conceded that point before the judge, but then valiantly sought to deny the admissibility of such evidence. Particularly, he did so with respect to imprecise evidence to the effect that, many years earlier, on an occasion he had been convicted of two offences rather than one. But we do not accept that the reception of that evidence, or of other hearsay evidence, to be given such weight as it merited, might lead the observer to apprehend bias.
[59]Bail Act 1977, s 8.

Then, as to contention eighteen, the applicant was provided with the report which he sought. The evidence of the informant was interrupted so that the document could be faxed to the applicant, and the witness’s evidence on the matter was put back so that the applicant could familiarise himself with the document’s contents. Far from the applicant having a valid basis for complaint, his complaint is a nonsense, and the observer would so conclude.

19.Not allowing a replay of the audio of part of the evidence of the informant which established a prior inconsistent statement”. The excuse raised by the Judge (to supposedly protect the accused from a risky path) was not a new ad-hoc excuse not given at the time of the hearing itself. The Judge erred to find he should refuse to replay the recording because of any “risk” rather than, if necessary, warn or advise the accused and then still allow to re-play the recording. Ruling ignores Judge volunteered to re-play recording for the prosecution.

By contention nineteen, the applicant complains that the judge did not permit him to have replayed certain evidence of the informant on the bail hearing which showed — as the applicant submitted at the time and the judge agreed — that the informant was now giving evidence which differed from that which he had given not long before.

Orally, the applicant added to this complaint by asserting that, later in the informant’s evidence, the judge gave the witness the opportunity to deal with the inconsistency.

The judge dealt with the subject matter of this contention as follows in his bias ruling:

87.… The circumstances were that Mr [Sloan] was at one point in his cross-examination able to squarely have the informant give an answer inconsistent with an answer that he had given only moments before. Mr [Sloan] sought to confront the witness with this inconsistency by playing the audio of his earlier evidence back to him. While at the time I acknowledged Mr [Sloan’s] right to cross-examine the witness via that process, I tried to make it clear to Mr [Sloan] that his point as to the informant’s inconsistent answers was well appreciated by me and it was unnecessary and potentially counterproductive to have the audio of the earlier evidence re-played to the witness.
88Mr [Sloan’s] point on this application is that he was entitled to confront the witness with the earlier answer and there may have been other more long term forensic advantages to him if he had been permitted to do what he asked. He contends that he ought be able to do what is legitimately open to him notwithstanding the Judge’s view that he had won or made his point and to go further risked undoing his advantage. In assisting an unrepresented accused, the Trial Judge may have to save the accused from himself but this must be balanced against an accused’s determination to travel along a particular albeit risky path. While in strict terms, Mr [Sloan] was correct as to his right to confront the witness with the audio tape and before a jury that would be in all likelihood the way to make his point and thereby call into question the credit of the informant. However, in the bail application where I was the tribunal to determine the matter, I did not need it to be done that way in order for me to appreciate that the informant was giving inconsistent answers.
89A fair minded lay observer may consider I was not denying Mr [Sloan] what he wanted to do because I was favouring the prosecution or saving or protecting the witness but doing what I did so as Mr [Sloan’s] well made point was not lost. It seems to me that the point made in Lancaster comes into play in this case because strictly Mr [Sloan] is correct that he was entitled to confront the witness with the audio tape but insofar as that may have been an error on my part, (although I am not sure in the whole of the circumstances that “error” is the proper description), it is not an “error” sufficient to establish apprehended bias in all the circumstances. Any waiver of the proper procedure for establishing a prior inconsistent statement was not a procedural unfairness of a kind that might bespeak of apprehended bias.

Whether or not the judge’s notion of saving the applicant from himself — a matter which his Honour did not raise in the course of the debate below — should be accepted, there is nothing to the applicant’s complaint, and the observer would so perceive it. Cross-examination of the informant was interminable, the applicant made his point, and the judge understood it. The time for dwelling on the matter had gone by. We add that the follow-up question which the judge put to the informant, his Honour having framed it in accordance with what the applicant agreed was his point, was evidently not designed to assist the witness to resolve any internal conflict in his evidence.

20.Judge making pre-judging comments about the DNA evidence. The Judge’s quotation at para 119 was not accurate and misconstrued what he had said to the effect of lessening the impact. Being a Bail Application and that the questions was within the ability of the witness to answer (as the Judge expressed at the time).

Contention twenty addresses comments made by the judge on the bail application about DNA evidence which the prosecution proposed to adduce at trial. It is asserted that they were of a kind which the observer might perceive prejudged the probability evidence that an expert might give at trial.

In the course of cross-examining the informant, the applicant embarked upon questions as to the ‘likelihood ratio’ that the DNA found at a crime scene matched DNA taken from him. The witness stated more than once that the subject was one for experts, but the applicant persisted. Eventually, the judge put a stop to the questioning. He mentioned that the applicant’s line of questioning was wrongly premised, but added that ‘We’ll have an argument about DNA’ and ‘We’ll have this at another point because we haven’t got an expert here. They’ll explain it’.

The judge dealt with this matter in the bias ruling as follows:

117A separate distinct matter raised by Mr [Sloan] is my response to the topic of the evidence of DNA found on some allegedly relevant items. Specifically, Mr [Sloan’s] concern was my response to the statistical or probability evidence that may flow from the finding of DNA evidence.
118It is important in considering this matter to keep in mind I may be required to resolve the question of the admissibility of the DNA evidence and, if admitted, resolve questions as to the directions to be given to the jury. Mr [Sloan] endeavoured to ask questions of the non-expert informant about the DNA probability evidence. My intervention and the exchange that followed during the bail application included Mr [Sloan] referring to the prosecutor’s “fallacy” and to the method of determining probability by referring to or extending the probability ratio to the number of Australian population.
119My response included, “We are not going to have any of the prosecution fallacy” and “We’re not going to do it that way”, meaning referrals to the Australian population.
120On reflection, this was perhaps pre-emptive and a short response to an issue requiring much more debate and consideration. I have no doubt that that debate and consideration will occur. That said, I am not of the view that what was said, might give rise to a reasonable apprehension that my mind might be closed and unpersuadable on the questions to be resolved.
121I think it can be said that the fair minded lay observer would understand that Trial judges have DNA evidence led and explained by both prosecution experts and defence experts from time to time in trials. Trial judges have to rule on admissibility and importantly have to ensure that juries understand DNA evidence and are not left confused or, perhaps worse, unduly influenced or beguiled by DNA evidence by reason of the so-called “CIS effect”. Trial judges have to give directions about the evidence and the probabilities ensuring in doing so that the directions comply with appellate authorities on the topic.
122The full resolution of the questions of admissibility and, if necessary, thereafter, directions to the jury and any assistance to be provided to the accused on the topic are not to be seen as matters already prejudged by reason were what are not the best chosen words in the exchange highlighted by Mr [Sloan].

In our opinion, if anything, his Honour’s ruling was too generous to the applicant. Be that as it may, we consider that the observer would conclude that there is nothing to contention twenty. The whole DNA issue arose out of the applicant’s attempt to cross-examine the police informant about a subject matter which called for a high level of expertise that the witness did not have, and stated that he did not have. Moreover, the aspect of the DNA evidence about which the applicant sought to cross-examine the informant awaited the expert evidence which was given at trial about that matter.

21.Pre-judgment about the first 3 charges being weak – Judge Ruled they were a strong case under circumstances where that is not really fair or tenable. Ruling ignored this issue.

By contention twenty-one, the applicant argues that the observer might apprehend bias in the judge’s ruling, on the bail application, that the first three charges on the presentment were strong, which was evidently not the case.

The contention is founded on a misstatement of what the judge said in his ruling.

His Honour noted the prosecution argument with respect to the eight charges as follows:

The prosecution case, so it says, in particular with respect to the last five fires is a strong one, based on tracking device evidence and surveillance evidence and finally his arrest close enough to the place and time of the final fire. In addition, the coincidence and tendency reasoning in this particular case, so the prosecution said, is compelling and makes the overall case and the case in respect of the first three fires a strong one.

His Honour noted the applicant’s submission relevantly as follows:

Mr [Sloan] put that the prosecution’s case was globally a weak one and in relation to some charges, very weak indeed. In this regard, Mr [Sloan] pointed out that at best the prosecution relied on the evidence establishing that he was involved in the last fires to establish that he was involved in the earlier fires. Here the key to the prosecution case was its reliance on the cross-admissibility of evidence from one count to another, and such cross-admissibility being authorised by the prosecution relying on the evidence as coincidence evidence and as evidence of a tendency.

His Honour observed that:

I should pause at this time to state that as is common in bail applications, my analysis of the strength of the prosecution case will naturally not be comprehensive. The strength or weakness of the prosecution case will be the focus of the trial or the trials. Also in this case I will be called upon to adjudicate on the question of the admissibility of coincidence and tendency evidence and whether the indictment should be severed, and as such, I do not propose to go to great lengths or depth on the question of the strength of the prosecution case on this bail application. However, it is clear that in respect of the earlier charges, the coincidence or similar fact or modus operandi evidence is fundamental to the prosecution case.
In the latter charges there is other evidence arising from the tracking devices and/or surveillance.

His Honour concluded that:

In the end I cannot conclude, at this stage, that the prosecution case is a weak one. It relies upon circumstantial evidence, including that species of circumstantial evidence that the Evidence Act terms coincidence evidence and tendency evidence. Although it is perhaps trite, it should nonetheless be restated here that circumstantial evidence can be powerful evidence and at times more powerful than direct evidence. My very general assessment of the prosecution case is just that, general, and is not to be forgotten that much of the evidence is yet to be tested as to its admissibility and all the evidence is yet to be tested by the defence attacks on it, which will occur before the jury.

His Honour’s approach was measured and understandable. Contrary to the applicant’s contention, his Honour did not rule that charges 1 to 3 ‘were a strong case’.

In the event, contention twenty-one is groundless.

22.Making the Bail decision under umbrella of custody conditions such as tele-court for the pre-trial and then stating that may not be available immediately after the Ruling was delivered and after the Corrections representative had finished evidence. Contacting Corrections re 1 Sept Shipping.

The gist of contention twenty-two appears to be that the judge intervened so as to require the attendance of Corrections Victoria at several stages in the bail hearing in order to address a concern that the applicant had expressed about being denied access to things whilst in custody.

In the bias ruling, the judge pointed out that his intervention had been designed to assist the applicant. We have no doubt that this is how the relevant transcript reads. Contention twenty-two lacks all merit.

23.Interruptions (including those relating to other particulars ‘objecting for the prosecution’ in matters such as the health ‘x-exam’ and ‘calling mother as a witness’). Judge persists interrupting in order to change the defence’s words and submissions despite admitting at Para 61 it is irritating. Ruling also fails to address that the interruptions are always to the defence and not the prosecutor, often to argue against objections or for the prosecution. The ground was misconstrued at para 64 in that it is not a multiple objection of one ground or objection but the fact all such interruptions and adverse finding are virtually always against the accused. Often interrupts where witness in difficulty or does not interject when assistance to unrepresented accused might be expected to be afforded.

Contention twenty-three is a broad assertion that the judge’s interruptions over the period of the many hearings were persistently adverse to the applicant and were to be compared with the judge’s persistent assistance to the prosecution. Having read, as we have said, many hundreds of pages of transcript, we are sure that the observer would conclude that there is no merit at all to this contention.

24.The leaving of the bench by the Judge in what were mild circumstances and where this Judge had never done so before in his career as a Judge. The Ruling at para 65 is not factually sound as the accused had not interrupted the Judge immediately prior to him leaving the bench, nor was the discussion about a disclosure table at that time.

Contention twenty-four relates to an occasion when the judge left the Bench. The relevant transcript showed that the judge was dealing, on the particular day, with a claim for public interest immunity by the Chief Commissioner of Police with respect to documents which had been subpoenaed by the applicant. The applicant having made submissions, counsel for the Chief Commissioner responded. The judge asked the applicant whether he had any reply. The applicant’s response was to complain about the short time that he had been given to address lengthy material relied upon by the Chief Commissioner, to allege that the hearing was being unfairly conducted, and to raise the question of bias. It is evident that the applicant was talking over the judge. In our opinion, the judge was wise, as the observer would surely conclude, to leave the Bench for a short time in circumstances where matters were getting out of hand, and where the applicant was not in court (but was appearing by video link) and so could not be dealt with in another way.

25.The rejection of all the accused’s points and objections (including at the Bail Application) would lead a fair minded observer to think the Judge was favouring the prosecution and was therefore bias. Ruling at 73-75 completely misconstrues these issues and some of the underlying facts therefore needs review.

Contention twenty-five is a variant on a theme. It is asserted that the observer might perceive bias because all the applicant’s points and objections were rejected.

Although this contention, in terms, could embrace the entire duration of the judge’s management of the matter, the applicant’s oral submissions focused upon the judge’s treatment of the bail application.

Review of the transcript of the bail application, and of his Honour’s bail ruling, reveal careful consideration by the judge of the matters relied upon by the applicant. We repeat an observation which we made earlier, that the judge gave the applicant full licence — perhaps over-generous licence — to the applicant’s protracted cross-examination and submissions on the bail application. We do not doubt that the observer would so conclude. There would be no warrant for that observer concluding that the judge’s rejection of points and objections raised by the applicant bespoke bias.

26. Mail registry issue. This was not dealt with in the Ruling at all.

The applicant complains, by contention twenty-six, about what he calls the ‘mail registry issue’. His complaint is, as we understand it, twofold. First, that the judge’s conduct might be perceived by the observer as bespeaking bias. Second, that the judge did not deal with the matter in his ruling.

It is the fact that the judge did not directly address the issue in his ruling. It had been addressed by the applicant in his submissions. But although the judge did not distinctly mention it in his reasons, it is improbable that he failed to consider it. In any event, in our opinion, there is absolutely nothing in the applicant’s assertion that bias might be perceived in the judge’s conduct respecting this issue.

The applicant persistently complained to the judge that he had not received documents which had allegedly been sent to him. The judge arranged for the institution of a regime by which Corrections Victoria would log receipt of incoming mail.

The gist of the applicant’s complaint by contention twenty-six is that the judge imposed upon him a mail receipt regime which amounted to the judge becoming a ‘kind of party’ to the proceeding and ‘investigating the accused’ and whether or not he had received things. It impugned the applicant’s trustworthiness and ‘seemed to be a show of favouritism or a bias’.

The transcript shows that the applicant demanded a great deal of documentation in the course of the many hearings before the judge. The informant gave evidence on the bail hearing that he had never come across anything like it. The judge expressed much the same sentiment. Be that as may, his Honour took many steps to ensure both full disclosure by the prosecution, and to ensure that disclosed documents were received by the applicant.

The observer would not, for a moment, accept the applicant’s contention that the institution of the mail register might bespeak bias.

27.The way disclosure was handled and un-necessary delays.

The judge dealt with the issue raised by Contention twenty-seven as follows:

123Much of what has occurred in the many hearings thus far relates to disclosure of materials by the prosecution to the accused. It is a matter of great frustration to Mr [Sloan].
124In a criminal trial, the prosecution has obligations to disclose to the accused materials obtained or created in the investigation. Many aspects of the obligations of disclosure are governed by the provisions of the Criminal Procedure Act. They arise at the beginning with the charging of an accused and a high point is reached at the delivery of the hand-up brief. However, the obligation is a continuing one. Particular items may be expressly sought by the accused during committal and thereafter. That has occurred in this case. Mr [Sloan] has from the first appearance before me highlighted the difficulties that he has had to endure in getting documents and things he has requested from the prosecution. He points out that many things are the things governed by legislation that ought not require a request or a Court order. Other things have been requested at the committal. Requests have been made repeatedly and in Mr [Sloan’s] submission this has been going on for years. He still awaits full disclosure.
125Disclosure is fundamental to proper preparation and thus to a fair trial. Mr [Sloan’s] argument here is that I have repeated failed to order prompt disclosure or insist the prosecution comply with its obligations or Court orders made by me. He argues that I too readily accept the prosecution’s excuses and have not in effect sanctioned the prosecution for failures or tardiness. He argues while I may say the resolution of disclosure issues is important, I do not do anything practical to bring about a satisfactory resolution.
126Mr [Sloan] refers to various particular disclosure problems with CCTV discs, missing pages and matters such as covering letters not having letterheads or signatures when items are delivered. In the end, for this application it is the approach that I have taken to this topic that is important. In my view, a balanced analysis of these matters would reveal from the outset I have made it a priority that Mr [Sloan] be provided with all he is entitled to and in a form that he can in a practical sense analyse while he is in custody. Timetables have been set and orders made over objection of the prosecution. The provision of mirror copies of computer hard drives are not easily achieved but the prosecution have been ordered to meet the requests that Mr [Sloan] has made. While I have listened to both sides of the argument regarding disclosure, I have not agreed with the prosecution on many matters. A long list of objections to providing Mr [Sloan] with certain materials by reason of public interest immunity were ultimately resolved down to two affidavits that Mr [Sloan] wanted to see which were sworn as part of the police application for warrants during the course of the investigation. I resolved this matter against Mr [Sloan] but only after thorough argument. Otherwise, Mr [Sloan’s] lists have been the subject of orders or concession from one party or another.
127Although in this ruling I have adopted a broad approach to this important and often detailed issue, in my view the fair minded lay observer could not have taken any other view than I have done much to ensure Mr [Sloan’s] concerns as to disclosure are dealt with and resolved. The fair minded lay observer would, in my view, conclude positively that I have placed a high priority on Mr [Sloan] not being disadvantaged in his preparations by reason of disclosure being incomplete or delayed. Thus, in my view, nothing done or no omission would be such that the fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to matters in this case. Also, connected with this, it is my view that there has been no failure in my duties to assist the unrepresented accused such that his trial would be unfair in respect of this area of disclosure and management of disclosure.
128As a consequence of my ruling, I will remain the Trial Judge unless I am removed as a consequence of a successful appeal. I will ensure an immediate refocussing on the disclosure issues in this case so that there is no further delay.

Having read the lengthy transcript of the many days on which this proceeding came before the judge — that is, up until the time of the recusal application — we are abundantly satisfied that the observer would conclude that no criticism could attach to his Honour’s disposition of disclosure issues.

28.Judge mis-construed the matters regarding the access by Police to legal Brief. Judge trying to suggest that the accused’s brief and compact discs containing exhibits are not the property and custody on the accused. Issues not dealt with in the Ruling.

Contention twenty-eight raises a matter not specifically addressed by the judge in his bias ruling, but which was dealt with by the applicant in his submissions.

The applicant’s point appears to be that various disclosure materials had been sent to him either on a disc,[60] or had been downloaded onto a disc. At times there had been a problem with a computer displaying the material. But, as the judge knew, officers of Corrections Victoria had themselves checked to see whether the material could be displayed on the computer. This was accessing the applicant’s confidential material, the judge knew about it, and bias on the judge’s part might thus be perceived.
[60]Or discs.

This contention is groundless. So far as the applicant’s submissions revealed the situation, what the Corrections Victoria officers could have seen displayed were proceedings at the committal hearing and exhibits – those materials having been provided to the applicant. Further, the judge knew very little about the matter. There had been very brief mention of it at a hearing on 2 April 2014. How the observer might possibly perceive bias on the judge’s part in those circumstances is beyond our comprehension.

29. Mis-advice on Re-examination. Judge had earlier advised the accused on this point and then changed that advice. The witness was allowed to step-down from the witness-box prior to the further questions being asked by the defence. Judge allowed leading questions during re-examination and then provided insufficient ad-hoc excuses in his Ruling

One aspect of contention twenty-nine is a complaint that the judge misled the applicant as to what was permitted by way of further cross-examination of the informant on the bail hearing. The judge dealt with the matter in his bias ruling as follows:

99Mr [Sloan] argued that I erroneously restricted what he terms his right to “re-examine the informant after the prosecutor had re-examined”. Putting aside misunderstandings about terminology, Mr [Sloan] was at the time granted leave to further cross-examine the informant on certain topics after the prosecutor’s re-examination. It seems to me that the fair minded lay observer would not consider Mr [Sloan] was wrongly or inadequately advised on this topic or unduly or unfairly restricted. In fact the contrary was the case. This part of Mr [Sloan’s] argument appears to be based on misunderstandings of the law of evidence and procedure. I have tried to explain the correct position and will keep doing so.

The transcript shows that in re-examination the informant gave evidence, inter alia, derived from the LEAP report. He had not given all this evidence when examined in chief, because the applicant had complained at that time that he did not have a copy of the LEAP report.

At the conclusion of re-examination, the applicant then sought to further cross-examine the informant. The judge told him that there was only further cross-examination by leave, but that he would permit it with respect to the LEAP report and what the informant had said in that connection.

The judge’s explanation of what was permissible further cross-examination was appropriate, as the observer would surely conclude.

The second aspect of contention twenty-nine is that the judge permitted the prosecutor to ask a witness at the bail hearing a leading question in re-examination.

The judge dealt with that matter in his bias ruling as follows:

100.… The prosecutor’s leading question in re-examination was picked up and corrected and it was made clear that had the witness simply taken up the initial leading question from the prosecutor and simply, to use the vernacular, “followed the prosecutor’s bouncing ball” that would have been detrimental to the witness’s credit and overall evidence. In the end, the witness did not do that and the prosecutor’s question came to nothing.

The observer would not conclude that what occurred on this occasion — on an extremely minor matter in the overall scheme of things — bespoke bias.

Conclusion

This is an application for leave to appeal in respect of which almost all of the many issues raised by the applicant have proved to be, on analysis, utterly groundless. Those few examples of errors on the judge’s part — as his Honour conceded them to be in his bias ruling — considered discretely and in combination could not, by any stretch of the imagination, cause the notional observer to perceive that the judge might not bring an unprejudiced mind to the forthcoming trial. Remember, too, that the trial will be conducted before a jury. The application for leave to appeal should be refused.

Postscript

This matter has proceeded, without getting to trial, for a very long time. The transcript shows the applicant to be, in our opinion, an intelligent and mentally agile man. Accepting that he has had some cause for complaint about disclosure issues, his ability to string the matter out would do credit to the lawyers in Jarndyce v Jarndyce.[61] The trial is fixed for hearing, as we earlier noted, in May this year. Barring some unexpected and compelling development, that is when it should be held.
[61]Charles Dickens, Bleak House.

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[2015] VSCA 64

17 April 2015