Winningham v The Queen

[1995] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S93 of 1995

B e t w e e n -

JOSEPH EMIT WINNINGHAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 1995, AT 12.27 PM

Copyright in the High Court of Australia

MR T.A. GAME:   If the Court pleases, I appear for the applicant together with my learned friend MR S.J. ODGERS.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC:   If it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J:   Mr Cowdery, if we could, first of all, ascertain from you whether paragraph 4 of your summary of argument is maintained.

MR COWDERY:   It is, your Honour.

DAWSON J:   That is, that:

it is conceded that a fair‑minded and informed observer might have reasonably apprehended or suspected that the Judge had or might prejudge the case.

MR COWDERY:   That is so, your Honour.

DAWSON J:   That is really the end of the matter, is it not?

MR COWDERY:   It is, your Honour.  I would submit, with respect, your Honour, that if your Honours were so minded to do it would be appropriate for your Honours to grant special leave to hear the appeal and to order a retrial.

DAWSON J:   Yes, thank you, Mr Cowdery.  Mr Game, you do not really have to add anything, do you?

MR GAME:   No, I do not have any further argument to put on the substance of the appeal.

DAWSON J:   You would be saying that the test which was applied was the wrong one in the court below and you would be agreeing with that, would you not, Mr Cowdery?

MR COWDERY:   That is so.

DAWSON J:   Yes, very well.  You would be clearly correct in contending that when a question arises of bias on the part of a trial judge the proper test is whether fair‑minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.  That appears from your contentions and you cite the case of Webb v The Queen (1994) 181 CLR 41 at page 47. That test has been expressed in different ways but it requires the question to be asked whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter.

The law on that subject is well settled in this country and the authorities are set out in that case of Webb v The Queen at the page to which I have referred.  The Court of Criminal Appeal was in error in this case in asking itself the question whether a reasonable bystander would think that the judge would have been intractably biased against the applicant.  The Crown in this case concedes that a fair‑minded observer might reasonably have apprehended or suspected that the trial judge had prejudged or might prejudge the case.  In view of that concession special leave to appeal is granted and the appeal allowed instanter.  The Court orders that the convictions be quashed and that there be a new trial. 

The Court will now adjourn until 10.15 AM tomorrow in Canberra.

AT 12.31 PM THE MATTER WAS CONCLUDED