Wilson-Anderson v The Queen
[2022] NTSC 56
•23 June 2022
CITATION:Wilson-Anderson v The Queen [2022] NTSC 56
PARTIES:WILSON-ANDERSON, Michael
v
THE QUEEN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21922473
DELIVERED: 23 June 2022
HEARING DATE: 17 June 2022
JUDGMENT OF: Kelly J
CATCHWORDS:
Livesey v New South Wales Bar Association (1983) 151 CLR 288
R v Watson; ex parteArmstrong (1976) 136 ALR 248REPRESENTATION:
Counsel:
Applicant:G O’Brien-Hartcher with J Meaney
Respondent: D Jones
Solicitors:
Applicant:Territory Criminal Lawyers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Kel2217
Number of pages: 9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINWilson-Anderson v The Queen [2022] NTSC 56
No. 21922473
BETWEEN:
MICHAEL WILSON-ANDERSON
Applicant
AND:
THE QUEEN
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 23 June 2022)
This matter came before me for a plea on 17 June 2022. On that date the applicant made application for me to recuse myself from further hearing of the matter on the ground of apprehended bias. On 23 June 2022, I notified the parties that I would recuse myself and referred the matter to the Criminal Callover to allocate a fresh date for a plea hearing before another judge. I said I would provide written reasons if requested to do so. The applicant has requested that written reasons be provided. These are those reasons.
The applicant was initially charged with supplying a commercial quantity of cannabis. He pleaded not guilty and a trial before a jury began on 29 June 2020. On the first day of the trial, allegations were made that the applicant had made threats against a Crown witness (an alleged co-offender, Alvin Dundara) during the luncheon adjournment. As a result, I discharged the jury.
The matter came on for retrial on 7 December 2020, with an additional charge of attempting to pervert the course of justice, based on the alleged threats to the witness. I also presided over the second trial. At the second trial, the jury found the applicant guilty of the charge of supplying a commercial quantity of cannabis and not guilty of attempting to pervert the course of justice.
On 27 January 2021, I sentenced the applicant to a term of imprisonment for 10 years with a non-parole period of 7 years. In doing so, I found the facts of the offending to be essentially as outlined in the evidence of the co-offenders Alvin Dundara and Jason Taylor as follows.
Consistent with the jury verdict, I find the facts to be as follows. Between 1 January 2016 and 21 December 2017, at Darwin in the Northern Territory, in conjunction with Jason Taylor, you received substantial quantities of cannabis from Mr Steven Castle in Adelaide, receiving it in pound lots, several pounds at a time, and supplied that cannabis to various people in Darwin.
Jason Taylor gave evidence that over that 2 year period you and he sold roughly 100 pounds or more of cannabis. You bought the cannabis for $3,500 per pound and sold it for $4,500 and split the $1,000 profit equally. What happened is that you received the cannabis, sold it for $4,500 a pound, kept $1,000 of that and remitted the rest to Mr Castle in Adelaide.
Sometimes Steven Castle would come to Darwin, deliver the cannabis and pick up the money. Sometimes you or Jason Taylor (or both) would go down to Adelaide to pick up cannabis and deliver money. You would bring back five or six boxes on a run, each containing 8 to 10 pounds of cannabis - sometimes 12.
You packaged the money in bundles with “lacky bands” and vacuum sealed it.
Not long before you were arrested, Jason Taylor was stopped outside Katherine and found to be carrying $310,000 which was the proceeds of the sale of cannabis. $100,000 odd of that money was money that you and Jason Taylor were sending to Mr Castle, and the rest was from other people in Darwin who were distributing cannabis for him.
Steven Castle had asked Jason Taylor to take the money to Adelaide and he was to be paid $7,000 for doing so. He got the money from you.
Between about 17 December and 21 December 2016, as part of this ongoing drug supply business, you travelled to Adelaide and sourced approximately 9 kg of cannabis with the intention of bringing it back to Darwin for the purpose of supplying it to others. To that end:
(a) you engaged Alvin Dundara to drive you to Adelaide in your brother’s grey Toyota Prado and transport cannabis, which you would source, back to Darwin;
(b) in Adelaide you sourced approximately 9 kg of cannabis in two cardboard boxes, and, with the knowledge and consent of Mr Dundara, put the boxes of cannabis or had them put into the grey Prado;
(c) while you were in Adelaide, you bought a second-hand red Lancer;
(d) you and Mr Dundara drove in convoy back north along the Stuart Highway, leaving Adelaide on 19 December 2017;
(e) you drove the red Lancer ahead of the grey Prado on the return trip from Adelaide to Darwin, to detect and warn Mr Dundara of any police presence, and also to ensure that you were not in the car with the cannabis should the grey Prado be stopped and searched.
Both cars were stopped by police at Mataranka and searched pursuant to s 120C of the Police Administration Act. Approximately 9 kg of cannabis was found in the grey Prado and you and Mr Dundara were both arrested and charged.
Owing to a defect in the indictment, the applicant’s conviction was set aside on appeal. Following discussions between the Crown and defence counsel, the applicant indicated his intention to plead guilty to the charge of supplying a commercial quantity of cannabis based solely on the importation of 9 kg of cannabis from Adelaide into the Northern Territory in conjunction with Alvin Dundara about which Alvin Dundara had given evidence at the trial.
The applicant submits that a reasonable independent observer might apprehend the possibility of bias on my part because:
(a)I was the judge at trial in the previous prosecution against the applicant in late 2020.
(b)In that trial the indictment contained many more charges than the one the applicant is now pleading guilty to.[1] The indictment for the trial included the supply of cannabis material over a considerable period of time. Those charges, and the facts led in the trial in support of them, were much more serious and wide-ranging than the single charge the subject of the current indictment.
(c)The Crown is now not pursuing those allegations against the applicant on this plea, save for a single discrete episode of offending relating to a single instance of supplying cannabis in December 2017. (Evidence of this episode was led at the trial).
(d)Importantly, the main witness against the applicant for the December 2017 episode of supply at the trial was Alvin Dundara. The applicant was charged with interfering with this witness and interfering in the outcome of a judicial proceeding in relation to the evidence Mr Dundara gave. I heard evidence about this at the trial.
(e)I also discharged a jury in June 2020 when this allegation of interfering with the witness was raised early in the applicant’s trial at that time.
(f)It appears from my sentencing remarks when the applicant was sentenced in January 2021 that I formed the view that the applicant was involved in the long running and extensive supply of cannabis.
(g)I sentenced the applicant and in the sentencing remarks accepted the evidence of Jason Taylor to the effect that the applicant was involved in the cross border supply of cannabis for approximately two years before the charges the subject of the current indictment on the plea.
(h)I compared the applicant’s conduct to cases far more serious than the facts giving rise to the present indictment and facts currently before the court for the plea.
The applicant submitted that these factors give rise to the possibility that a fair-minded lay observer might have an apprehension that I, as the Judge presiding at the applicant’s plea, might not be impartial in the following respects.
(a)A reasonable fair minded independent observer might be concerned that these allegations which are now not pursued by the Crown may create an apprehension of bias on my part because I heard evidence about the more serious offences, and that I might have agreed with the jury’s verdict of guilty to much more serious offending which would not otherwise be before the judge sentencing the applicant for the plea to the current indictment.
(b)The reasonable objective lay observer might apprehend that I may have formed a view of the applicant adverse to his character and conduct in the course of hearing that evidence.
(c)Although I made no finding of credit about the applicant’s alleged attempt to interfere with the outcome of the first trial, the reasonable observer might be concerned that such evidence being heard by the Judge now presiding over the applicant’s plea would create an apprehension of bias in the mind of the Judge in circumstances where that allegation was not proved and will not form part of the material before the Court in the current plea, even in the form of antecedents. (The observer might consider that I might have the allegation of interfering with a witness charge firmly in mind given that it caused a mistrial.)
(d)The applicant concedes that in expressing a view that I accepted the evidence of the witnesses at the trial for the purpose of sentencing the applicant, I did nothing wrong or inappropriate. However, an objective lay person looking at that may apprehend bias on the part of the presiding Judge in circumstances where those allegations no longer form part of the case against the applicant, but were the subject of extensive evidence at the applicant’s trial.
(e)Similarly, though it was not inappropriate to compare the offending which the applicant was found guilty of at trial with other offending more serious than that to which the applicant now pleads guilty, the objective observer might consider that this comparison now creates an unfair and excessive starting point for the consideration of the applicant’s sentence when he is pleading to supplying much less cannabis in one single episode, rather than the facts which were found by me to be true, consistent with and following the jury’s verdict.
The test for apprehended bias is that set out by the High Court in Livesey v New South Wales Bar Association[2] namely whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case.[3]
I do not think that the matters raised by the applicant [with the possible exception of that set out at [7](b)] would cause a fair minded observer to apprehend that I might not bring an impartial and unprejudiced mind to the exercise of sentencing the applicant for the charge to which he now intends pleading guilty based on the agreed facts that would be placed before me for that purpose. As the learned prosecutor pointed out, judges are accustomed to putting from their minds evidence they may have heard but which is not relevant for sentencing purposes. For example, in the Local Court, a trial judge may have heard evidence for the purpose of a voir dire, rule that evidence inadmissible, and proceed to hear and determine the trial leaving the excluded evidence from consideration in reaching a verdict. In the Supreme Court, a judge may hear evidence relating to a number of offences, the jury may convict on some and acquit on others, and the trial judge will proceed to sentence the defendant based only on the evidence relevant to the charges on which the jury found the defendant guilty. Further, it is common for victim impact statements to recite matters which go beyond the agreed facts which form the basis of the plea and judges routinely leave those matters out of consideration when sentencing the offender. This process whereby judicial officers leave matters they have heard out of consideration and decide matters only on the basis of admissible evidence or agreed facts, is so common as to be well known to the general public.
In addition, the matters raised by the applicant are not restricted to me as the trial judge. Any other judge who read the sentencing remarks would have the same knowledge of the evidence which was led at the trial and accepted by the jury.
However, I determined that it was appropriate for me to recuse myself for another reason. The applicant gave sworn evidence at the trial that he did not obtain the boxes of cannabis in Adelaide as Alvin Dundara said in evidence that he did; that he did not have any part in loading the cannabis into the car to be driven by Alvin Dundara; and that he first found out about the cannabis in the car driven by Mr Dundara shortly after the two cars were stopped by police in Mataranka.[4] I have now been told that the applicant intends pleading guilty to the charge of supplying cannabis on agreed facts that he was responsible for arranging for the cannabis to be brought into the Northern Territory in the car driven by Mr Dundara in December 2017. If that is indeed the case, the inescapable conclusion is that the applicant lied on oath about these matters at the trial.
That being the case, I have formed an adverse view of the applicant’s credit. It is entirely possible that the judge hearing the plea and submissions on sentencing for the offence on the current indictment may be called upon to determine matters communicated to the Court by defence counsel on the instructions of the applicant. A fair minded observer with knowledge of these facts may well apprehend that I may not bring an impartial and unbiased mind to the exercise of determining whether to take the applicant’s word on matters put in mitigation.
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[1] In fact there was only one charge of supplying a commercial quantity of cannabis, but the Crown case was that the applicant had done so regularly over a two year period.
[2](1983) 151 CLR 288.
[3] Ibid at p 293 approving the test laid down in the majority judgment in R v Watson; ex parteArmstrong (1976) 136 ALR 248 at p 258-263.
[4] Transcript 10 December 2020 pp 206-207.
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