Wark v The State of Western Australia [No 3]

[2023] WASCA 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WARK -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2023] WASCA 68

CORAM:   MAZZA JA

HEARD:   19 MAY 2022

DELIVERED          :   2 MAY 2023

FILE NO/S:   CACR 41 of 2021

BETWEEN:   FRANCIS JOHN WARK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 62 of 2021

BETWEEN:   FRANCIS JOHN WARK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   HALL J

File Number            :   IND 370 of 2016

Catchwords:

Courts and judicial system - Judges - Application for disqualification of judge on ground of apprehended bias - Presumed knowledge or awareness of hypothetical fair‑minded lay observer - Whether reasonable apprehension of bias

Legislation:

Nil

Result:

Refusal of disqualification

Category:    B

Representation:

CACR 41 of 2021

Counsel:

Appellant	:	Mr D Grace KC & Mr D N Ryan
Respondent	:	Ms A L Forrester SC & Ms K C Cook

Solicitors:

Appellant	:	Chelmsford Legal
Respondent	:	Director of Public Prosecutions (WA)

CACR 62 of 2021

Counsel:

Appellant	:	Mr D Grace KC & Mr D N Ryan
Respondent	:	Ms A L Forrester SC & Ms K C Cook

Solicitors:

Appellant	:	Chelmsford Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Rayney v The State of Western Australia [2020] WASCA 206

The State of Western Australia v Wark [No 2] [2018] WASC 18

Wark v The State of Western Australia [2019] 56 WAR 365

MAZZA JA:

1. At the outset of the hearing of the appellant's appeal against conviction, the appellant applied for me to recuse myself from the hearing on the ground of apprehended bias.  After hearing submissions by senior counsel for the appellant, I dismissed the application.  I said that I would give reasons for my decision at a later date.  These are my reasons.

2. The background to the application may be briefly stated.

3. The appellant was charged with the wilful murder of Hayley Dodd.  In respect of this charge, the appellant was tried by Jenkins J sitting alone without a jury.  Her Honour found the appellant not guilty of wilful murder, but guilty of murder.[1]  The appellant appealed against the murder conviction.  The appeal was allowed and a retrial was ordered.  I was a member of the coram that decided the appeal:  Wark v The State of Western Australia [2019] 56 WAR 365 (the First Wark appeal). Among the appellant's grounds of appeal in the first appeal was a ground that alleged that the verdict of guilty was unreasonable or could not be supported on the evidence (ground 3). I agreed with the reasons given by Buss P that this ground had not been made out.

   [1] The State of Western Australia v Wark [No 2] [2018] WASC 18.

4. The appellant was retried before Hall J and a jury on a charge of murder.  The jury found the appellant not guilty of murder, but guilty of manslaughter.  The present appeal against conviction concerns this verdict (the second appeal). 

5. In the second appeal, the appellant relies on two grounds.  Ground 1 alleges that the guilty verdict is unreasonable or cannot be supported by the evidence.  Ground 2 alleges a miscarriage of justice as a result of the admission of propensity evidence in the trial.  As explained by senior counsel for the appellant, ground 2 has no bearing on the present application and I need say nothing more about it.  The focus of this application is on ground 1. 

6. The appellant submits that I should recuse myself because I joined with Buss P in the First Wark appeal in dismissing ground 3 in that appeal.  It was submitted on behalf of the appellant that the evidence at the first trial was, essentially, the same as the evidence in the second trial.  Essentially, the argument is because I dismissed the ground in the First Wark appeal that alleged that the verdict of guilty was unreasonable or could not be supported on the evidence, the hypothetical fair‑minded lay observer might reasonably apprehend that I would not bring an open mind to the same question in the second appeal. 

7. The relevant legal principles applicable to an application such as the one made by the appellant are uncontroversial and were recently explained by Buss P in Rayney v The State of Western Australia.[2]  I respectfully adopt this statement of principles without repeating it.  It is enough to restate the following. 

   [2] Rayney v The State of Western Australia [2020] WASCA 206 [103] ‑ [114].

8. The test for the disqualification of a judge on the ground of apprehended bias is whether or not 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.  The application of the test does not involve a prediction about how the judge will in fact approach the resolution of the question.  The issue is one of possibility (real and not remote), not probability.  Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party.  The test is objective.  The hypothetical fair‑minded lay observer is presumed:

   (a)to be reasonable;

   (b)not to make snap judgments;

   (c)to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and

   (d)to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case. 

9. The application of the test for apprehended bias requires two steps:  first, the identification of what allegedly might lead a judge to decide a case other than on its legal and factual merits; and secondly, the articulation of the logical connection between the matter complained of and any deviation from the course of deciding the case on its merits. 

10. In the present case, it is said that what might lead me to decide the case other than on its legal and factual merit is my decision in the First Wark appeal to dismiss the ground then before the court alleging that the verdict was unreasonable or could not be supported on the evidence.  As I understand the appellant's argument, the alleged logical connection between this and the matter at hand is that the evidence was essentially the same in the two trials. 

11. There was no merit in the appellant's application to recuse.  This is because the evidence in the second trial, while resembling the evidence in the first trial, was materially different.  Most notably, unlike in the first trial, the appellant gave sworn evidence in the second trial.  Further, the DNA evidence was different.  The fair‑minded lay observer would appreciate that a judge, as a result of his or her training, would be able to bring an unprejudiced mind to the question which, as I have said, depends upon a consideration of materially different evidence.  A fair‑minded lay observer would not think that because, in the First Wark appeal, I decided the issue on different evidence one way, I would decide the issue in the second appeal in the same way, even though the evidence in the second trial was materially different. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

YK

Associate to the Honourable President Buss

2 MAY 2023