R v Bain HC Christchurch CRI-1994-012-217294

[2008] NZHC 2626

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-1994-012-217294

REGINA

v

DAVID CULLEN BAIN

Hearing:         13 October 2008

Counsel:         K Raftery, C Mander and R P Bates for Crown

M Reed QC and P A Morten for Defence

Judgment:      15 October 2008

JUDGMENT OF PANCKHURST J (RE RECUSAL)

Introduction

[1]      In my decision of 8 September 2008 I considered the question whether the accused’s evidence (or excerpts from it) from the first trial were admissible at the retrial.  At the conclusion of that section of the judgment I addressed an objection which was raised in the course of the general argument concerning the broad admissibility question.  That argument was to the effect that my position as the trial Judge was untenable, given that my associate typed the greater part of the record of

the first trial and that she will be a Crown witness in the event that evidence from

R V DAVID CULLEN BAIN HC CHCH CRI-1994-012-217294  15 October 2008

that trial is adduced at the retrial.  At paras [41] - [43] I considered this aspect and concluded that the objection was without substance.

[2]      A hearing is scheduled in the Court of Appeal on 20 October 2008, confined to the issue of recusal.   Mr Raftery voiced the concern that the argument for my recusal may be more broad-based than just the matter pertaining to my associate.  At the commencement of the further pretrial hearing in which I am presently involved Mr Reed QC made further submissions referable to this aspect, including reference to the leading New Zealand authority.  This decision is in response to those further submissions.

[3]      Given the pendancy of the appeal hearing, it is desirable that this decision be delivered as soon as possible.   I do not resile from the conclusion reached in my previous judgment and I adopt paragraphs [41] – [43] as part of this one.  However, there is a need to approach the question of recusal on a more formal basis and in response to the more considered submissions made at the most recent hearing.

The relevant principles

[4]      I need only refer to Muir v Commissioner of Inland Revenue [2007] NZCA

334.   The required approach is fully described in this recent judgment.   I shall mention only to the main points which are of relevance in this instance.

[5]      The starting-point is the necessity for impartiality.  In New Zealand, s25 of the New Zealand Bill of Rights Act 1990 affirms this requirement by providing that an accused has a right to a fair and public hearing by an independent and impartial court.

[6]      The counter-balance to the requirement of independence and impartiality is the duty of a Judge to sit, unless there are genuine grounds for his or her not doing so.  This duty is also one of fundamental importance, in that it emphasises the need for judicial officers to accept the responsibility to hear cases, difficult as they may be, save where there are good reasons for their disqualification.  The performance of

this duty is of significance in ensuring that the judicial process is random, in the sense that parties cannot influence the assignment of the Judge to hear their cause.

[7]     At least in this country two principles govern the issue of recusal, or disqualification.  The first is the presumptive disqualification rule where a Judge has a direct pecuniary interest in the outcome of the case.  It is not suggested that this principle is engaged in this instance.

[8]      The second principle concerns the test for apparent bias.  In Muir the Court described that test in these terms:

[62]   In  our  view,  the  correct  inquiry  is  a  two  stage  one.    First,  it  is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased.  This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air.  The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case.   This standard emphasises to the challenged judge that a belief in her own purity will not do;   she must consider how others would view her conduct.

[9]      After stating the test the Court emphasised that the touchstone remained the ability of a Judge to bring an impartial mind to resolution of the case at hand.  This does not mean that the Judge must come to the case devoid of mind, absent all preconceptions concerning the required approach to, and management of, the case in question.

Stage 1 – the factual inquiry

[10]     In broad terms there were two limbs to the argument.  The first concerned the transcript and particularly the circumstance that my associate, Mrs Morrison, was formerly Williamson J’s associate and typed the notes of evidence at the first trial. However, with reference to the accused’s evidence, she was relieved by Mrs Tulloch (another associate) who typed all of the accused’s evidence-in-chief and most of his cross-examination (pp 405-437).

[11]     Mrs  Morrison  has  been  my  associate  since  I  was  appointed  in  1996. Mrs Tulloch was an  associate for other  Judges  at  Christchurch  until  2006.    On occasions she undertook tasks for me and I enjoyed a personal relationship with her.

[12]     The further aspect advanced by Mr Reed concerned my association with Williamson J.  We were in partnership for about 13 years, worked together on many cases and I replaced him as Crown Solicitor in Christchurch upon his appointment as a  Judge  in  1985.    In  all  our  working  relationship  spanned  15 years,  and  our friendship extended until his death in early 1996.

Stage 2:  How would a fair-minded lay observer perceive matters?

[13]     The question is whether knowledge of the above circumstances might lead a fair-minded lay observer to reasonably think that I, as the trial Judge, might not bring an impartial mind to this case.   I must decide this issue on an objective basis, my subjective belief concerning my impartiality not being the test.  It is convenient to evaluate this aspect by reference to the two separate factual aspects relied upon in argument.

[14]     However, it is important to first note my function as the trial Judge.  Unless the Crown case fails at some point in the course of the process, the ultimate factual decisions (most importantly the verdicts) will be made by the jury.  My function as the trial Judge is to make pretrial rulings, trial rulings and to sum up to the jury at the conclusion of the evidence.  In my view, therefore, the perception of a fair-minded observer concerning my impartiality (or not) is to be assessed with these functions in mind.

[15]     Assuming the need for Mrs Morrison and/or Mrs Tulloch to give evidence either pre-trial or before the jury, I do not consider that the posited observer would reasonably apprehend that I might not bring an impartial mind to the role of trial Judge.   This  conclusion  is  founded  on  the  reasoning  contained  in  my previous decision.  Having already adopted that reasoning, I need not repeat it.

[16]     What  would  the  hypothetical  observer  make  of  the  closeness  of  my association with Williamson J?   Before turning to an evaluation of that question I shall mention two points which I consider are material.  First, I note that the Privy Council recorded at para [103], when discussing the concept of a substantial miscarriage of justice:

Such a miscarriage involves no reflection on the trial judge, and in the present case David’s counsel expressly disavowed any criticism of Williamson J.  ((2007) 23 CRNZ 71 (PC) at 89).

To the extent that it may be presently material, then, the actions of Williamson J as the trial Judge are not under attack.

[17]     But even if they were – and this is the second point – I do not comprehend the  argument  that  my  previously  long  association  with  him  could  lead  to  a reasonable apprehension of partiality.

[18]     In Muir the Court at para [96] accepted that an informed observer would not lightly accept that a judge had put aside his or her professional oath, or equally his or her professional training.  This was to avert to the fact of judicial life that judges in their  day  to  day  work  are  called  upon  to  assess,  and  ultimately  rule  upon, submissions in the context of what other judges have done, or not done, as the case may be.  Typically this occurs in an appellate setting, where the decision-maker must pass judgment upon the work of another judge ordinarily from an inferior court. Particularly in a country the size of New Zealand, this appellate function requires the appellate judge or judges to completely put out of mind past or present personal relationships.  This is done as a matter of course.

[19]     In my view a reasonable observer would comprehend this.  And, in the result the observer would not, I think, apprehend a risk that I might not bring an impartial mind to the role of trial Judge, on account of the previous association.

Conclusion

[20]     For these reasons I do not recuse myself.