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Sloan (a Pseudonym) v The Queen

Sloan (a Pseudonym) v The Queen

Case [2015] VSCA 64 17 April 2015

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sloan (a Pseudonym) v The Queen

Details

AGLC: Sloan (a Pseudonym) v The Queen [2015] VSCA 64
Case: [2015] VSCA 64
Decision Date: 17 April 2015

CaseChat Overview and Summary

The appellant in this case, referred to as Sloan, sought leave to appeal against a decision made in the course of a criminal proceeding. The decision in question related to the refusal of a judge to recuse himself from the case due to concerns over potential bias. Sloan's application was dismissed by the lower court, and the matter now stands before the court of appeal.

The primary issue for determination was whether the judge's conduct during the pre-trial management of the proceeding constituted apprehended bias. The court needed to assess whether the judge's actions met the legal threshold required to establish such bias, which involves considering whether a fair-minded observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions arising in the case.

Upon review, the court concluded that the judge's conduct did not reach the requisite level of apprehended bias. The court held that the standard of apprehended bias is a high one and requires more than trivial or minor errors in conduct. The judge's actions were found to be within the bounds of normal judicial conduct, and there was no evidence to suggest a departure from impartiality. Consequently, the application for leave to appeal was denied.

Orders