Mohamed v Attorney-General

[2021] NZHC 1842

SUPPRESSION ORDERS EXIST IN RELATION TO THIS JUDGMENT: SEE [37].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1257

[2021] NZHC 1842

UNDER

The Judicial Review Procedure Act 2016

IN THE MATTER

of an application for declaration that the decision refusing its application for recusal was wrong at law

BETWEEN

RAIHAN MOHAMED

Applicant

AND

ATTORNEY-GENERAL

First Respondent

DISTRICT COURT AT AUCKLAND

Second Respondent

Hearing:

20 July 2021

Appearances:

M J Taylor-Cyphers for Applicant S T L Teppett for First Respondent

No appearance for Second Respondent (abides decision of the Court)

Judgment:

21 July 2021

JUDGMENT OF LANG J

[on application for judicial review]

This judgment was delivered by me on 21 July 2021 at 3.30 pm,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MOHAMED v ATTORNEY-GENERAL [2021] NZHC 1842 [21 July 2021]

[1]    Mr Mohamed is to stand trial by jury in the District Court at Auckland on charges of sexual offending. The trial is scheduled to commence on 26 July 2021. Judge K Lummis has been assigned to preside at the trial.

[2]    Up until her appointment as a Judge of the District Court earlier this year Judge Lummis was a partner in the Auckland law firm Meredith Connell. Mr Brian Dickey of that firm currently holds the warrant as Crown Solicitor at Auckland. The partners and staff solicitors of Meredith Connell act as counsel for the Crown in criminal proceedings in both the District and High Courts. Prior to her appointment the Judge regularly appeared as counsel for the Crown in criminal proceedings before both Courts. As a partner of the firm she was also responsible for supervising staff solicitors who appeared as counsel for the Crown in those proceedings.

[3]    Mr Mohamed requested Judge Lummis to recuse herself as trial Judge for three reasons. First, Mr Samuel Teppett has been assigned as prosecutor for Mr Mohamed’s trial. The Judge was formerly one of the partners responsible for Mr Teppett’s supervision, although not in relation to the prosecution of Mr Mohamed. Secondly, the Judge signed a Crown Prosecution Notice when the Crown Solicitor’s office first assumed responsibility for the prosecution of the charges against Mr Mohamed. Thirdly, Mr Mohamed alleges that the Judge made comments during two television interviews in 2019 suggesting that she holds strong views about trials involving charges of the type that he faces.

[4]    These factors led Mr Mohamed to ask the Judge to disqualify herself from presiding over his trial. The Judge declined to do so in an oral decision delivered on 18 June 2021.1 Mr Mohamed seeks judicial review of that decision.

Grounds of review

[5]    On Mr Mohamed’s behalf Ms Taylor-Cyphers advances two broad grounds of review. First, she contends the Judge “failed to take into account the relevant consideration of apprehended bias adequately”. Secondly, she contends the Judge took

1      R v Mohamed [2021] NZDC 13208.

into  account  an irrelevant consideration.    This was the likely impact on judicial resourcing that would follow if she recused herself from the trial.

Judicial review

[6]    It is well-established that judicial review relates to the process followed in exercising a statutory power of decision. The substantive merits of the decision are seldom in issue.

[7]    It follows that judicial review will most commonly be granted where the decision-maker has erred in law when reaching the decision. This may occur, for example, where the decision-maker applies the wrong test, fails to take into account a relevant consideration or takes into account an irrelevant consideration. Alternatively, judicial review may be granted where the decision-maker has followed a process that breaches the principles of natural justice. Mr Mohamed endeavours to bring his application for review within the rubric of judicial review under the first of these alternatives.

The test for apparent bias

[8]    In the present case the Judge applied the guidelines promulgated for the assistance of District Court Judges in accordance with s 217 of the District Court Act 2016. These provide that a Judge will be disqualified from sitting if, in the circumstances, there is a real possibility that, in the eyes of a fair-minded and fully informed observer, the Judge might not be impartial in reaching a decision on the case.2

[9]    The guidelines reflect the test for apparent bias articulated by the Court of Appeal in Muir v Commissioner of Inland Revenue3 and confirmed by the Supreme Court in Saxmere Ltd v Wool Board Disestablishment Co Ltd (No 1).4 This requires the Court to undertake a two-step analysis.5 First, an applicant seeking recusal must

2      “District     Court    Recusal    Guidelines”     The    District     Court    of    New    Zealand

< at [2].

3      Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [93]-[97].

4      Saxmere Ltd v Wool Board Disestablishment Co Ltd (No 1) [2009] NZSC 72, [2010] 1 NZLR 35 at [3], [37], [85] and [127].

5 At [4].

identify the circumstances that might lead the Judge to decide a case other than on its merits. Secondly, the applicant must establish a logical connection between those circumstances and the possibility that the Judge may decide the case otherwise than on its merits.

Failure to take into account a relevant consideration

The connection between the Judge and Mr Teppett

[10]   The Judge did not deal with Mr Mohamed’s argument that there was a real possibility that her former role as one of Mr Teppett’s supervisors might cause a fair- minded and fully informed observer to conclude she might not be impartial in the conduct of Mr Mohamed’s trial. To that extent her decision contains a reviewable error of law. However, I do not consider the argument has merit. Counsel who have worked at Crown Solicitor’s offices at some stage in their career are regularly appointed as Judges of both the District and High Courts. This reflects the fact that the conduct of criminal litigation on behalf of the Crown enables counsel to develop considerable expertise in the field of criminal law. Following their appointment to the judiciary it is not uncommon for such persons to be required to preside over criminal cases in which prosecuting counsel are from the law firm at which they formerly worked. This is particularly likely to occur in metropolitan areas.

[11]   I consider a fully informed and fair-minded observer would know this occurs on a regular basis in New Zealand. The observer would also know that all Judges are required to take the judicial oath before they commence presiding over trials of any description. This requires them to declare that they will discharge their judicial duties in an impartial manner. I see no connection between the Judge’s former role as one of Mr Teppett’s supervisors and any risk that she may not preside impartially over Mr Mohamed’s trial.

[12]   It is only fair to record that Ms Taylor-Cyphers did not seek to persuade me that, standing alone, the Judge’s connection with Mr Teppett through her former employment would disqualify her from presiding over any case in which he appeared as counsel. Such an argument would logically extend to all other employees supervised by the Judge whilst she was a partner at Meredith Connell. Rather,

Ms Taylor-Cyphers submitted that when this factor was added to other features of this case the test for apparent bias was satisfied.

The issue relating to the Crown Prosecution Notice

[13]   To recap, this challenge was based on the fact that the Judge had signed a Crown Prosecution Notice relating to the prosecution of Mr Mohamed whilst she was a partner at Meredith Connell. The Crown Solicitor’s office files this document as soon as it assumes responsibility for the prosecution following the entry of a not guilty plea. Ms Taylor-Cyphers contends the Judge failed to assess the significance of signing the Crown Prosecution Notice when identifying the circumstances relevant to this aspect of Mr Mohamed’s challenge to her impartiality.

Failure to assess the significance of the fact that the Judge had signed the Crown Prosecution Notice

[14]The Judge discussed this issue in the following passage of her decision:6

[4]        The first step is to consider what are the circumstances relevant to the possible need for recusal because of apparent bias. I need to examine my role in signing the Crown prosecution notice and the John Campbell interview.

[5]        A further description of a Crown prosecution notice may be helpful to allow consideration of what a lay observer may understand as to the relative significance or, in my view, insignificance of it. Section 189 of the Criminal Procedure Act 2011 requires that when the Solicitor-General or a Crown prosecutor assumes responsibility for a Crown prosecution in accordance with s 187, he or she must file a notice in the court. The form and content of that notice is governed by the Criminal Procedure Rules 2012 at 4.11. This sets out the requirements that the notice must include. These are:

(a)a statement to the effect that the Crown has assume responsibility for the prosecution of each charge specified in the notice; and

(b)details of each charge to which the notice relates, including each CRN; and

(c)details of the Crown prosecutor, including an address for service.

[6]        My understanding of the matter is this is largely so the Court and counsel can update their systems and are advised that the file has been passed from the police to the Crown.

[7]In a sexual violation matter such as this, the matter will be transferred

to the Crown as soon as a plea has been entered. In this particular case, the

6      R v Mohamed, above n 1.

charging document was filed on 28 May 2020. Mr Mohammed entered his not guilty plea the same day, which would have the triggering effect of matters being sent through to the Crown. I recite this simply to make the point that it is at a very early stage in the proceedings, where obligations of disclosure are likely to be outstanding and in my experience the Crown would have had very little information on file. It would be extremely unlikely, for example, that by

8 June the evidential interview had been transcribed, or if it had been transcribed, it is unlikely to have made its way to the Crown at that time.

[8]        Looking at the Crown prosecution notice filed in this matter, it is dated 8 June. It contains three charges in their short form and the CRN for each charge. It is important to note that the Crown prosecution notice does not detail the victim, the date of the offences or any other details relating to the offences. I accept the position would be entirely different if I had signed the Crown charge notice, which does require consideration of the evidence. It is important, in my view, that in this particular case the Crown charge notice, which was filed a month later on 6 July and signed by Mr Tantrum has five charges and contains a greater level of detail than is ever seen in a Crown prosecution notice.

[15]   Ms Taylor-Cyphers submits that, although these observations provide context and background, they do not contain any assessment of the significance of a Crown Prosecution Notice. She says this was essential if the second stage of the analysis was to have any meaning.

[16]   I take a different view. I consider the passage set out above amounts to an assessment of the significance of the Crown Prosecution Notice in the context of the criminal justice process. As the Judge observed, it is designed to ensure the Court and defendant are aware the Crown Solicitor has assumed responsibility for the conduct of the proceeding. It also provides contact details for the person at the Crown Solicitor’s office who is dealing with the file. Furthermore, the Crown Solicitor’s office prepares the document with very little information available to it. No analysis has been undertaken of the evidence or the charges at this stage.

[17]   These circumstances are to be contrasted with those that exist by the time the Crown Solicitor subsequently files and serves the Crown Charge Notice. By that stage the Crown Solicitor’s office has had an opportunity to analyse the evidence and to amend the charges so they reflect the Crown Solicitor’s view of the evidence.

[18]   Taken as a whole I consider this passage reflects the Judge’s conclusion that the Crown Prosecution Notice is a formal document prepared for a limited and largely

administrative purpose at a time when the Crown Solicitor knows very little about the proceeding. It is therefore of little overall significance in the context of the criminal justice process. I therefore do not accept the Judge failed to assess the significance of the Crown Prosecution Notice.

Failure to explain why the fact that the Judge had signed the Crown Prosecution Notice did not amount to apparent bias

[19]   Next, Ms Taylor-Cyphers contends the Judge failed to give reasons for her conclusions at the second stage of the reasoning process. She submits that the Judge failed to explain why she considered the fact that she had signed the Crown Prosecution Notice did not create a real possibility that a fair-minded and fully informed observer would consider she would not preside impartially at Mr Mohamed’s trial.

[20]The Judge dealt with this issue as follows:7

[10]      That is the context, which brings me to the second step, as to whether those circumstances lead to a reasonable apprehension that I may not be impartial. I have now taken the judicial oath to do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will. I am acutely aware of my new role and the differences from my previous role. I am aware that there is a right of appeal from all of my decisions and any and all of the decisions I make during trial can be appealed. If I was applying the law in a manner which was in some way biased, there would be an obvious right of appeal.

[11]      It is also significant, in my view, that I am not to be the fact finder in this matter. That will be for the jury. I have been referred to a number of cases, but none really assist me with the specific type of situation that has arisen here. That is one where I had exceptionally limited involvement in the case prior to coming to the bench and have made some statements in the public forum which defendants may not like.

[21]   The Judge clearly determined this issue largely from her own perspective rather than through the lens of the fair-minded and fully informed observer. I nevertheless consider most of the factors to which the Judge refers would also be known to the hypothetical observer. I also accept, however, that the Judge failed to consider the significance the observer would attach to the fact that she had signed the Crown Prosecution Notice.

7      R v Mohamed, above n 1.

[22]   To a large extent this issue depends upon what a fair-minded and fully informed observer would know about the significance or otherwise of the Crown Prosecution Notice. A person with knowledge of the criminal justice process would be likely to conclude, for the reasons already given, that it is of little overall significance given the circumstances in which it is prepared. Most lay persons, however, would have no knowledge of the existence or purpose of such a document.

[23]   In Saxmere (No 1) McGrath J considered that the hypothetical observer “must have a knowledge and understanding of the judicial process and the nature of judging”.8 The observer must be “sufficiently appraised of these matters to reach a decision on whether the circumstances of the particular case give rise to a reasonable apprehension of bias, that is, an apprehension that is not based on superficial impression”.9

[24]   To similar effect, Blanchard J observed that the observer “must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias”.10 Following this observation Blanchard J cited the following passage from the speech of Lord Hope in Helow v Secretary of State for the Home Department:11

“[3] . . . before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

[25]   Ms Taylor-Cyphers emphasised the difficulty of a lay person being able to accept the prospect that a Judge could preside over a jury trial if she had signed a Crown Prosecution Notice earlier in the life of the proceeding. I consider this submission does not pay adequate regard to the attributes ascribed to the hypothetical

8 At [97].

9      Ibid.

10 At [5].

11     Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at [2].

observer in the cases referred to above. In the present case I consider the observer could be expected to know the basic procedural steps taken at each stage of the criminal justice process. This would include knowledge that the Crown Solicitor is required to file the Crown Prosecution Notice once responsibility for a prosecution has been assumed, the circumstances in which that occurs and the reason why. In the present case the observer would also know that the Judge will not be the tribunal of fact. That responsibility will rest with the jury. Given that level of knowledge I do not consider there is a real possibility that the observer in the present case would consider the fact that the Judge had signed the Crown Prosecution Notice meant she could not bring an impartial mind to the trial over which she is now to preside.

The issue relating to statements made by the Judge prior to her appointment

[26]   As noted earlier, this issue arises because on two occasions during 2019 the Judge appeared on nationwide television as a guest on the current affairs programme Breakfast. During these programmes she expressed views from her perspective as a prosecutor about issues relating to jury trials involving allegations of sexual abuse.

[27]   The Judge dealt with the second step of the reasoning process in the passage set out above12 by considering both acts relied upon by Mr Mohamed together. As I have already observed, this was largely through the Judge’s view of the issue rather than through the lens of the hypothetical observer. The programmes in question are not in evidence and I therefore proceed on the basis that the Judge’s description of them in her decision is accurate. I note that Ms Taylor-Cyphers did not contend the Judge’s decision mischaracterised or wrongly described the nature of the observations she had made on the two programmes.

[28]   In her written submissions Ms Taylor-Cyphers acknowledged that prior expressions of opinion would need to be extreme or unbalanced before a reasonable observer would be likely to consider a Judge was not able to act impartially.13 That is not currently the case because the guideline that relates to this issue has been amended. The current guideline requires a judge to consider recusing him or herself “if the case

12 Set out above at [20].

13     "Guidelines     for    Judicial    Conduct"     (March    2013)    Courts    of    New    Zealand

< at [39].

concerns a matter upon which the judge has made public statements of firm opinion on the issue before the court.”14

[29]   I consider the fact that the Judge was speaking generally in her comments to the media in 2019 means she did not make public statements of firm opinion on the issue before the court in Mr Mohamed’s case. As she observed, the events giving rise to that case had not occurred at the time she made the statements. This means the guideline in question was not engaged.

[30]   Furthermore, the hypothetical observer in the present case would know that the news media regularly seek the views of senior counsel for both the Crown and defence on topical issues relating to the criminal justice system. Counsel are often prepared to accede to such requests in order to contribute to and inform public awareness and debate of those issues. I consider there is little likelihood the hypothetical observer would consider that counsel who do so will not act impartially in cases that raise the same issues if they are subsequently appointed as judges. Assuming the Judge’s description of what she said on the two programmes is correct I do not consider her comments create a real possibility that the hypothetical observer would consider she could not preside impartially over Mr Mohamed’s trial.

Other matters

[31]   Ms Taylor-Cyphers also contended that the acts Mr Mohamed relies on to establish apparent bias need to be viewed in light of the fact that his trial will be conducted under a pilot project currently being undertaken in the District Court for criminal jury trials involving allegations of sexual offending. She advised me that judges who conduct trials as part of the pilot play a much more active role than is usually the case in criminal jury trials. She said they set firm boundaries for cross- examination and therefore contribute significantly to the scope of the evidence that may be given.

[32]   Mr Mohamed has not provided any evidence about these issues but I am prepared to accept for present purposes that judges who conduct jury trials under the

14     “Recusal Guidelines” (June 2017) Courts of New Zealand, www,courtsofnz.govt.nz> at [5.1].

pilot are likely to play a pro-active role in setting the boundaries for cross-examination of vulnerable witnesses such as complainants. The hypothetical observer would know this because it is now a key feature of many trials in the District Court involving allegations of sexual offending. The observer would also know, however, that a trial judge has an overriding obligation to ensure the defendant receives a fair trial before an independent and impartial court as required by s 25 of the New Zealand Bill of Rights Act 1990. I therefore do not consider the fact that Mr Mohamed’s trial will be conducted using the procedures adopted under the pilot affects any of the conclusions I have reached on the issues he has raised.

Taking into account an irrelevant consideration

[33]    This issue relates to comments apparently made by the Judge at some stage during oral argument regarding the impact any decision to recuse herself may have on judicial resourcing. However, the Judge did not refer to the issue in her decision and Mr Mohamed has not filed any evidence about it in support of his application for judicial review. There is therefore no evidential basis on which I can deal with the issue.

[34]   It is worth noting, however, that the requirement of a threshold test for disqualification reflects the fact that disqualification has significant implications for the administration of justice. First, a Judge allocated to sit on a case has a duty to do so unless disqualified.15 As McGrath J observed in Saxmere (No 1), difficulties arise if a practice is allowed to develop of judges disqualifying themselves without good reason. This would encourage litigants to raise objections based solely on a desire to have their case determined by a different judge who they think is more likely to decide in their favour.16 For that reason parties to litigation should not be permitted to use applications for recusal or disqualification as a means of “Judge shopping”. The public needs to be reassured that parties to litigation are not able to change the composition of the court unless there is sound reason, based on principle, for that to occur.17 Secondly, a successful application for recusal can create significant

15     Saxmere (No 1), above n 3, at [88].

16 At [88].

17     At [94]-[95].

resourcing issues, particularly in smaller centres where fewer Judges are available to hear cases.

Result

[35]The application for judicial review is dismissed.

Costs

[36]   If the second respondent seeks costs counsel should file and serve a concise memorandum to that effect within 14 days. I will then give directions so that costs can be determined on the papers and without the need for an oral hearing.

Suppression

[37]   Counsel  for  the  applicant  has  brought  to  my   attention  the  fact  that   Mr Mohamed has been granted interim name suppression in the District Court to protect his fair trial rights. It is obviously necessary to ensure those orders are not eroded by publication of Mr Mohamed’s name in relation to the present proceeding. To protect Mr Mohamed’s fair trial rights I therefore direct that his name and identifying particulars are to be suppressed from publication until such time as the orders made in the District Court are rescinded. I make an order accordingly.

Lang J