Zanker v Kupsch

[2014] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

ZANKER v KUPSCH

[2014] SASCFC 13

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Anderson)

6 March 2014

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - STRONG REASONS FOR INTERFERENCE - GENERALLY

WORKERS' COMPENSATION - OFFENCES

The respondent Mr Kupsch, was changed with 24 counts of obtaining by dishonest means a payment under the Workers Rehabilitation and Compensation Act 1986 (SA), contrary to s 120(1)(a). Mr Kupsch dishonestly concealed from his rehabilitation providers the bakery work he had performed whilst in receipt of the payment. Following a trial in the Magistrates Court, Mr Kupsch was convicted on all counts. Mr Kupsch appealed to a single Judge of this Court. The appeal was allowed, the convictions set aside and the matter remitted for retrial.

The appellant appeals against the orders made by a Judge of this Court.

Held (Kourakis CJ and Anderson J agreeing):

(1)   The Magistrate’s questioning was more extensive that it ought to have been but there were no grounds upon which bias could be apprehended, the questioning did not compromise the proper presentation of Mr Kupsch’s evidence and was not “so gross or so persistent” as to compromise the Magistrate’s capacity to independently evaluate the evidence (Kourakis CJ at [83]).  Accordingly, no miscarriage of justice was occasioned (Kourakis CJ at [4]).

(2)   The Magistrate did not misunderstand the evidence of Dr McCulloch. The Judge was wrong to attribute error to the Magistrate’s treatment of Dr McCulloch (Kourakis CJ at [97]).

(3)   The Magistrate did not proceed on a mistaken view of the covert surveillance evidence in that he correctly stated the full effect of the evidence in that part of his reasons in which he considered its probative weight in more detail (Kourakis CJ at [5] and [85]).

(4)   Appeal allowed and the convictions recorded in the Magistrates Court restored. The order of the Judge of this Court allowing the appeal against convictions entered in the Magistrates Court set aside. The respondent’s appeal to this Court against the convictions dismissed (Kourakis CJ at [101]).

Held (Sulan J):

(1)   A miscarriage will result where the intervention of a judicial officer has made the trial unfair. The ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice. Where it is complained on appeal that a trial has been unfair as a consequence of excessive or undue judicial intervention, a court is not limited to considering aspects of unfairness and impartiality in isolation (Sulan…