R v Sullivan
[2014] NZHC 519
•20 March 2014
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2011-076-1948 [2014] NZHC 519
THE QUEEN
v
EDWARD ORAL SULLIVAN, ROBERT ALEXANDER WHITE and LACHIE JOHN McLEOD
Hearing: 12, 13 and 17 March 2014
Counsel: C Carruthers QC, N Flanagan and P Gardyne for Crown
P H B Hall QC, M Corlett and K H Cook for Mr Sullivan
R B Squire QC for Mr White
J H M Eaton QC for Mr McLeod
Judgment: 17 March 2014
Reasons: 20 March 2014
REASONS FOR JUDGMENT (NO. 5) OF HEATH J
Solicitors:
Serious Fraud Office, PO Box 7124, Wellesley Street, Auckland
Meredith Connell, PO Box 2213, Auckland
Gresson Dorman & Co, PO Box 244, Timaru
Rhodes & Co, PO Box 13444, Armagh, Christchurch
Duncan Cotterill, PO Box 5, Christchurch
Counsel:
C Carruthers QC, PO Box 305, Wellington 6140
P H B Hall QC, PO Box 3750, Christchurch
R B Squire QC, PO Box 10157, Wellington
J H M Eaton QC, PO Box 13868, Armagh, ChristchurchM Corlett, PO Box 4338, Shortland Street, Auckland
R v SULLIVAN and ORS [2014] NZHC 519 [17 March 2014]
The application
[1] Messrs Sullivan, White and McLeod have been charged with various crimes of dishonesty arising out of the collapse of South Canterbury Finance Ltd (South Canterbury). On 11 March 2014, the day before the trial was due to begin, the Registrar referred a memorandum to me that had been signed by senior counsel for each accused. It identified a comment made by Ms Julie Read, the Director and Chief Executive of the Serious Fraud Office, at a conference in Auckland on Friday
7 March 2014.1
[2] Counsel for the accused took the view that Ms Read’s comment was such as to require me to recuse myself on grounds of apparent bias. Reliance was placed on the decision of the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd.2 On receipt of counsel’s memorandum, I prepared and issued a Minute in which I set out my recollection of events.3
[3] Before the trial commenced, counsel indicated that they wished to advance a submission that I should recuse myself. They asked for an adjournment of the trial to consider whether additional evidence should be put before the Court. I heard from counsel briefly at that time. I was not convinced that there was an arguable case for apparent bias on the basis advanced by counsel. Accordingly, I directed that the trial would proceed by having the accused arraigned and the Crown’s opening presented. I reserved to the accused the right to make a formal recusal application (with evidence) at the conclusion of the Crown opening, if that were considered
appropriate.4
[4] Following completion of the Crown’s opening, a formal application was signalled. After timetabling directions were made, an application was filed, with affidavit evidence in support. Two affidavits were received from Ms Read, in
opposition. Following a hearing on 17 March 2014, I dismissed the application. I
1 See para [8] below.
2 Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR
35.
3 The content of which is replicated in material respects in paras [5]–[10] below.
4 R v Sullivan (No 4) [2014] NZHC 446, at para [17].
said that I would give full reasons for my decision as soon as practicable. These are my reasons.
The facts5
[5] The conference held in Auckland on Thursday and Friday (6 and 7 March) is an annual conference on insolvency law presented by INSOL New Zealand. It is generally attended by senior and intermediate practitioners in that field, from legal, accounting and banking backgrounds. I have chaired that conference since its inception in 2002, at a time just before my appointment to the Bench. I am asked to chair the conference because of my experience, both as a practising lawyer and a judicial officer, in dealing with corporate and insolvency law.
[6] One of the sessions was being presented by Ms Read. Her co-presenter was Ms Belinda Moffatt, of the Financial Markets Authority. The purpose of the session was to apprise delegates of work being undertaken by the Serious Fraud Office and the Financial Markets Authority, and the policies each was employing in carrying out their respective functions.
[7] I had not met Ms Read before the conference. In the break preceding her session, I introduced myself to her. My recollection is that I told her I did not want her to say anything about the South Canterbury prosecution as I was to be the trial Judge. I intended to convey clearly that nothing should be said about the merits of the case. Ms Read did not appear to know that I was to be the trial Judge, or may have forgotten.
[8] During the course of her presentation, Ms Read reached a slide that referred, without any commentary as I recall, to the South Canterbury prosecution. At that stage a comment was made (on the preponderance of evidence) that “we are very fortunate to have Justice Heath as our trial Judge”. My own recollection was that the word “lucky” was used, but there is no material difference in the use of those words
in the context in which they were spoken. They can be regarded as synonymous.
5 The following summary is taken primarily from my judgment of 12 March 2014 in which I declined an adjournment of the trial until after this issue had been resolved: R v Sullivan (No 4) above n 4 at paras [3]–[8]. The balance reflects evidence adduced for the hearing of the substantive application for recusal on 17 March 2014.
[9] While, at the time, I thought that the remark was unfortunate, I decided not to say anything in response. I did not consider that anything had been said to cast doubt on my impartiality to try the present case and, for that reason, did not alert counsel to what had happened. The clear impression I formed was that the comment indicated no more than that Ms Read was pleased that a person with some experience in the area was presiding over the trial. I did not consider that any person in the audience could have thought that I was someone biased in the Serious Fraud Office’s favour. Had I thought that that was remotely possible, I would have raised the point with counsel.
[10] It is true that there are some differences in detail as to what was said when one compares my recollections with the two affidavits that Ms Read has sworn. Importantly, both accounts are consistent with what was recorded in an email forwarded by Mr Barker, a partner in a Wellington firm of solicitors to Mr Squire QC, Mr White’s counsel, shortly after the discussion took place. The email stated that Ms Read had “just stated in a conference presentation I am attending” that “we are very fortunate to have Justice Heath as our trial Judge for the [SCF] trial”. In my view, Mr Barker acted properly in alerting counsel involved in this trial to the fact that the comment had been made.
[11] Having received Mr Barker’s email, senior counsel for the three accused conferred and decided to seek an opinion from an independent Silk, Mr J A Farmer QC. The opinion was sought under conditions of urgency, on the basis of the information that had been relayed to Mr Squire. It was also given on incomplete information; for example, Mr Farmer’s written advice was provided before I had set out my own recollection of events. That was made available to
counsel on 11 March 2014.6
[12] Mr Farmer provided a written opinion on 10 March 2014. He indicated that grounds existed on which a successful application for recusal might be made, though he added that the issue was not “clear-cut”. The accused placed reliance on
Mr Farmer’s opinion for the sole purpose of indicating the reason why the
6 R v Sullivan and Ors (Minute (No 29)) HC Timaru CRI-2011-076-1949, 11 March 2014, at paras
[4]–[8].
application had been made. Having read Mr Farmer’s advice, I can readily understand why the accused elected to make an application. No criticism can be made of them in raising the issue before commencement of trial.
[13] Ms Read filed two affidavits in which she sought to explain why the comment had been made, and its true intent. In addition, the accused put before me an article published by National Business Review, in which Ms Read is reported as having answered a question about her comment. Ms Read’s response to the journalist’s question appears to have been published in the on-line version of National Business Review on 14 March 2014, though the by-line suggests the interview took place on 12 March 2014, after submissions had been made to me on the point.
[14] I have put to one side Ms Read’s evidence on her intent when making the comment. The Saxmere test requires me to assess perceptions of bias through the eyes of an informed and reasonable member of the public. Such a person cannot know the inner workings of the mind of the person who makes a particular comment. Accordingly, it is a factor that cannot be taken into account. The same position pertains in respect of the reasons why I elected not to make any comment at the conclusion of Ms Read’s session.
The law
[15] There is a distinction in law between actual bias and “apparent” bias. The former arises when there is proof that a Judge cannot bring an impartial mind to bear on the issues before him or her. “Apparent” bias is different. It arises if a reasonable perception exists that a Judge may not be impartial. The recusal application was brought solely on the grounds of apparent bias.
[16] The governing authorities are the decisions of the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd7 and Siemer v Heron [Recusal].8 A Judge will be disqualified on grounds of apparent bias “only if a fair-
minded and informed lay observer might reasonably apprehend that there is a real
7 Saxmere Company Ltd v Wool Board Disestablishment Co Ltd above n 2.
8 Siemer v Heron [Recusal] [2011] NZSC 116, [2012] 1 NZLR 293 (SC).
and not remote possibility that [he or she] might not bring an impartial mind to the resolution of the question the Judge is required to decide”. Further, the “observer will not adopt the perspective of a party seeking recusal unless objectively it is a justified one”.9
[17] For convenience, I refer to the person from whose perspective it is necessary to view the likelihood of partiality by the shorthand expression “the independent observer”. When using that term, I refer to a person with all of the characteristics identified in Saxmere.10
[18] Expression of the Saxmere test is derived primarily from the judgment given by Blanchard J. He stated that the test of “reasonable apprehension” that a Judge might not be impartial “gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the [Judge] be independent and impartial”. It is self- evident, as Blanchard J observed, that unless “the judicial system is seen as independent and impartial the public will not have confidence in it and the judiciary
who serve in it”.11
[19] A two-stage inquiry must be undertaken to determine whether disqualification is appropriate:12
(a) The first step is to identify what it is said might lead a Judge to decide a case other than on its legal and factual merits; and
(b)The second is an articulation of the logical connection between the conduct in issue, and the fear that the Judge might not determine the case on its merits.
[20] The independent observer is:13
9 Siemer v Heron [Recusal], above n 8, at para [11].
10 See paras [20]–[22] below.
11 Saxmere Company Ltd v Wool Board Disestablishment Co Ltd above n 2, at para [3].
12 At para [4].
13 At para [5].
(a) Presumed to be intelligent and to view matters objectively.
(b) Neither unduly sensitive or suspicious nor complacent about what
may influence a Judge’s decision.
(c) Taken to be a non-lawyer, but reasonably informed about the workings of the judicial system, the nature of the issues in the case and the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias.
[21] Having said that, Courts must be careful not to subvert the third of those hypotheses by “ascribing too much legal knowledge to the [independent] observer”, because, to do so “might mean that justice is not both done and seen to be done by a notional representative of the public”.14
[22] The independent observer is also taken to understand that a Judge:15
(a) Is expected to be independent in decision-making and has taken an 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”.16
(b)Has an obligation to sit on any case allocated to the Judge unless grounds for disqualification exist. Judges are not entitled to pick and choose their cases.17
[23] While other members of the Supreme Court explained relevant principles in a manner consistent with those articulated by Blanchard J,18 the reasons given by
McGrath J provide some further insight into the approach. In particular:
14 At para [6].
15 At para [8].
16 Oaths and Declarations Act 1957, s 18.
17 In Saxmere Company Ltd v Wool Board Disestablishment Co Ltd above n 2 Blanchard J (at para [8]) referred to cases being “randomly” allocated. In this case, I was specifically assigned by the Chief High Court Judge.
18 See in particular, Saxmere Company Ltd v Wool Board Disestablishment Co Ltd above n 2, at paras [38]–[43] (Tipping J), [76] and [86]–[96] (McGrath J), [121] (Gault J) and [128] (Anderson J).
(a) “An important aspect of meeting the reasonable apprehension test …, is the requirement to be specific concerning the perceived connection between the circumstances giving rise to concern and whether they establish reasonable apprehension of impartiality.”19 It must be shown that the nature of the connection is such to cause (objectively) concern that it may influence the Judge’s decision-making. It is the
articulation of the link that reassures the public that parties to litigation are not able to change the composition of the Court, or to have cases reheard following an unfavourable decision, unless there is a good and principled reason for that course to be taken.20
(b)It is not enough that the circumstances create “a vague sense of unease or disquiet”. The onus is on the person asserting apparent bias to demonstrate “a situation giving rise to a reasonable apprehension of bias firmly to establish that is the case”.21
[24] In Saxmere, a challenge was made to a decision of the Court of Appeal on the grounds that one of the sitting Judges, Wilson J, had a close personal and business association with senior counsel for the successful party in the Court of Appeal. The Supreme Court initially considered that the connection did not give rise to apparent bias, and dismissed the appeal.22 Later, on a recall application, the Court reviewed its earlier decision in light of evidence about a disparity in current account indebtedness of the Judge and senior counsel in a company in which they were both involved. That financial aspect led the Supreme Court to reverse its original decision
and to hold that apparent bias had been made out, on the grounds that the Judge might be seen by an independent observer as “beholden” to the senior counsel.23
[25] In Siemer v Heron [Recusal]24 the Supreme Court, in advance of hearing an appeal by Mr Siemer, considered his application for orders that two Judges of the
19 At para [93].
20 At para [93]
21 At para [94].
22 Saxmere Company Ltd v Wool Board Disestablishment Co Ltd above n 2.
23 Saxmere Company Ltd v Wool Board Disestablishment Co Ltd (No. 2) [2010] 1 NZLR 76 (SC) at para [15]–[19].
24 Siemer v Heron [Recusal] above n 8.
Supreme Court recuse themselves from hearing the appeal, on grounds of apparent bias. The challenges were directed to Blanchard and William Young JJ.
[26] Mr Siemer’s concern about Blanchard J arose from a direction that Judge had given to the Registrar in relation to a review of a decision to fix security for costs. Blanchard J had directed the Registrar to provide the other party with a document containing information about Mr Siemer’s financial position which had been submitted to the Court in support of an application for a waiver of the need to give security. Mr Siemer complained that this was a departure from standard practice and a breach of his privacy. He contended that those facts gave rise to circumstances that indicated apparent bias on the part of Blanchard J.
[27] The criticism of William Young J stemmed from an earlier decisions of the Court of Appeal, at a time when the Judge was a member of that Court. He was alleged to have interrupted Mr Siemer (a lay litigant) in the cross-examination of a witness. In another case, the Judge was said to have declined to provide Mr Siemer with a copy of a transcript of a Court of Appeal hearing. Mr Siemer also relied on entries in a website that he maintained, in which criticisms of the integrity and competence of a number of Judges have been made.
[28] Elias CJ, McGrath and Tipping JJ had no difficulty in holding that the allegations of apparent bias were not made out. In giving the reasons of the Supreme Court, McGrath J (by reference to Saxmere) reiterated:
[11] It is well-established that apparent bias arises only if a fair-minded and informed lay observer might reasonably apprehend that there is a real and not remote possibility that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The observer will not adopt the perspective of a party seeking recusal unless objectively it is a justified one. It is necessary for those making decisions on whether there is apparent bias in a particular situation first to identify what is said that might lead a judge to decide the case other than on its merits and, secondly, to evaluate the connection between that matter and the feared deviation.
[12] The circumstances which the appellant says give rise to apparent bias of Young J on the third ground come down to his having made serious allegations about the Judge on his website and the appellant’s perception of the likely effect on the Judge of his displeasure at those allegations. The issue we must decide, however, is whether the circumstances may lead a fair-minded observer to the view that the Judge might not bring an impartial mind to the matter in issue.
[13] A material factor here is that it is the appellant’s own conduct that has created the situation said by him to give rise to apparent bias. He has chosen to attack the integrity of Young J. In this context, the requirement that the appellant show that objectively the nature of the situation is such as to cause concern that it may influence the Judge’s decision making is of particular importance. The fair-minded and informed observer will, amongst other considerations, recognise that the public is entitled to be reassured that parties to litigation are not able unilaterally to create situations of apparent bias that enable them to require change to the composition of courts hearing their cases, or to have cases reheard following an unfavourable decision. Indeed, otherwise situations could arise in which no member of a court would be able to sit. These are further reasons why a person asserting a situation giving rise to a reasonable apprehension of bias must establish clearly, as well as objectively, that a judge might appear to be biased.
[14] It is also relevant in cases such as the present that there are strong institutional safeguards within the system. Following appointment, judges take an oath committing them to independence and impartiality in their judicial service. They promise to do right to all manner of people without fear or favour, affection or ill-will. Judges are also accustomed, on a daily basis, to putting aside their views of litigants appearing before them that are not relevant to the issues. This applies whether the litigants are self- represented or have counsel. Their commitment to proper exercise of the judicial function and their experience in discharging that commitment equip judges to administer justice impartially, without being distracted by extraneous events such as the reactions of the parties to what they decide or do. This is so even where there has previously been an expression of strong concern by the litigant over what the judge has done such as by lodging a complaint or seeking the recusal of the judge.
(footnotes omitted)
[29] Mr Squire referred me to English authority to highlight the need for a different approach, depending on whether a recusal application is made at the commencement of the hearing (when a predictive assessment is required) or on appeal (when the appellate Court views the issue historically). Reference was made to the judgment of the Court of Appeal of England and Wales, in AWG Group Ltd v
Morrison.25 Mummery LJ, giving the principal judgment, said:
25 AWG Group Ltd v Morrison [2006] EWCA Civ 6, [2006] 1 WLR 1163.
9 Most of the leading authorities were appeals arising from hearings that had already taken place or were under way and an objection to the judge was based on facts discovered during the course of, or only after the end of, the hearing. Although this is a different case, as the hearing has not yet started, the same principle applies. Where the hearing has not yet begun, there is also scope for the sensible application of the precautionary principle. If, as here, the court has to predict what might happen if the hearing goes ahead before the judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry.
(Emphasis added)
The other two members of the Court, Latham and Carnwath LJJ, agreed with that statement of principle.
[30] My view is that the “precautionary principle” to which Mummery LJ refers should be seen as one applicable in a finely balanced case. I have formed that view from the context in which the passage appears, immediately following reference to another decision of the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd. In Locabail,26 the Court (Lord Bingham of Cornhill CJ, Lord Woolf MR and
Sir Richard Scott VC) had said:27
… By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case … or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him … In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.
(Emphasis added)
Competing contentions
[31] Argument on behalf of the accused was primarily advanced by Mr Squire. In summary, Mr Squire submitted:
26 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA).
27 At para [25].
(a) It was important not to elide the objective test set out in Saxmere with a consideration of whether a particular Judge will or will not act impartially. Mr Squire emphasised that there was no suggestion of actual bias on my part, or that I would act anything other than independently and impartially. The issue is whether, on the facts advanced, an independent observer could consider that there was a real possibility that I would not be impartial.
(b)As the point had been taken in advance of trial, a predictive approach was required. In making that assessment the “precautionary principle” articulated by Mummery LJ in AWG Group Ltd should be given significant weight.28
[32] Mr Squire identified three factors that, he submitted, the independent observer would take into account in determining whether there was a real possibility that I would act contrary to my judicial oath. They were:
(a) The words uttered by the Director of the Serious Fraud Office at the conference in Auckland.29 Mr Squire contended that the use of the possessive on two occasions (“we” and “our”)30 meant that an independent observer was more likely to conclude that the Director thought I would favour the prosecution.
(b)This was a trial over which I was to preside sitting alone. An independent observer would take account of my role as final arbiter of both fact and law; in other words, the person who will decide whether each accused is guilty or not guilty of particular charges brought against him.
(c) An independent observer would be left in a state of unease if a conviction were entered based on inferences that the Crown asked me
to draw to establish guilt, as opposed to those advanced by counsel for
28 See para [29] above.
29 See para [10] above.
30 See para [8] above.
each accused which were said to be consistent with innocence. The independent observer would have real concerns if convictions were ultimately entered.
[33] Mr Squire contended that a conservative approach should be taken. From the perspective of the public’s confidence in the judicial system, he submitted that I should recuse myself if an independent observer would consider that I might not be impartial, on the basis of the interpretation of the Director’s remarks put forward by Mr Squire.31
[34] Mr Squire submitted that the status of Ms Read, as head of a major prosecuting authority gave her statement an air of authority that would not necessarily attach to a similar comment made by a litigant in either criminal or civil proceedings. As I understood his submission, Mr Squire used that factor to identify a logical connection between the facts known to the independent observer and the real possibility that those facts might give rise to a concern that I might not be impartial.
[35] Mr Carruthers QC, for the Crown, submitted that the application should be dismissed. In particular, he contended:
(a) No fair minded independent observer could take from Ms Read’s remarks that she was indicating that I was biased towards, or tended to favour, the Serious Fraud Office.
(b)Context is important. The comment was made by “one expert presenter at a conference about another”, and was no more than “an exhibition of common courtesy”.
(c) There was nothing in the words used by Ms Read to suggest that I
would break my judicial oath, by favouring the prosecution.
31 See para [32](a) above.
(d)No evidence had been adduced that any such interpretation was understood.32
(e) In any event, there was no link between what was said and the suggestion that an independent observer might consider I would not act impartially.
Analysis
[36] The first inquiry is into the facts on which reliance is placed to suggest that an independent observer might lead a Judge to decide a case other than on its legal and factual merits.33
[37] As I have previously stated,34 Ms Read’s remark was unfortunate. The interpretation of her remarks favoured by Mr Squire was that Ms Read held the view that I would favour the prosecution. Mr Hall QC, for Mr Sullivan, put the same point a little differently, by referring to “apparent bias by association”. The fact that I elected not to make any comment after Ms Read’s remarks is part of the context in which her words fall to be interpreted.
[38] In my view, no independent observer could have regarded Ms Read’s comment as one designed to indicate a view that I would favour the prosecution. It is not credible that Ms Read could be taken to have expressed such a view publicly, a matter of days before the trial was due to begin.
[39] An independent observer is much more likely to have regarded the remark as something of a casual nature, perhaps intended to acknowledge my experience in dealing with cases of this type (both as a practising lawyer and as a Judge), or as a courtesy. In that regard, it is not uncommon for lawyers (and knowledgeable lay people) to refer to a person as “our” Judge, when identifying the person rostered to
hear a particular case in which they are involved. I do not consider that an
32 While I do not address this point specifically, such evidence would, in my view, be irrelevant, and therefore inadmissible. That type of evidence would not assist me to determine how the hypothetical independent observer would view the circumstances.
33 See para [19](a) above.
34 See para [9] above.
independent observer could reasonably regard the use of the possessive (“we” and
“our”) as elevating Ms Read’s comment to the level suggested by Mr Squire.
[40] Nor, given that the independent observer is taken to know that I had not met Ms Read before the conference, could he or she reasonably regard me as likely to be biased through “association” with her. The only “association” was the fact that Ms Read was speaking from the podium at a conference when the remark was made, and I was sitting to the side as chair of the session.
[41] The second factor advanced by Mr Squire is that the independent observer would know that I am trying this case without a jury and that I am the final arbiter of both fact and law. In most cases this will not be a relevant factor as it does no more than identify the role of a Judge in any trial over which he or she presides without a jury. However, I accept that questions of degree might arise, depending on the nature of the issues to be determined. In this case one of the charges is that each of the three accused deliberately gave false information to the Crown on the basis of which South Canterbury illegitimately entered into a guarantee scheme, established in 2008, by the Government as a means of restoring confidence in financial markets. The loss caused to taxpayers by the need to call on the Crown guarantee was in the vicinity of $1.6 billion.
[42] For the purpose of this decision, I assume (without deciding the point) that knowledge on the part of the independent observer that I am the final arbiter of both fact and law in a case alleging such serious fraud is a relevant consideration that he or she would take into account.
[43] The third factor concerns the possibility of my drawing inferences at trial in favour of the Crown, rather than the accused. The drawing of inferences is something that an independent observer would know was done in almost every trial. It adds nothing of substance to the factual matrix.
[44] The second inquiry is into whether there is any logical connection between the facts known to the independent observer and the possibility that I may deviate from my judicial oath in determining the charges brought against each accused.
[45] In my view, there is no logical connection between the three identified factors and a reasonable apprehension that I might not act impartially. The inquiry may be framed on a “complete the sentence” basis; namely,
An independent observer, hearing Ms Read say “we are fortunate to have Justice Heath as our trial Judge”, knowing that he would be the final arbiter of fact and law and that the Judge might accept inferences put forward by the Crown in preference to those on which the accused relied could reasonably believe that the Judge would favour the Serious Fraud Office because ….
[46] I cannot conceive of anything that could be added to that sentence to justify a claim of apparent bias. First, Ms Read’s remarks were not likely to lead an independent observer to believe that I may not act impartially.35 Second, while the independent observer would know I was to be the final arbiter of fact and law, that could not lead to a view that I might be biased. It is simply a statement of what happens in any case (whether criminal or civil) where a Judge conducts a trial
without a jury. Third, the fact that I might draw inferences in favour of the Crown, rather than the defence, adds nothing to the equation. The independent observer is taken to know that a Judge trying a criminal case is obliged to determine whether the elements of each charge have been proved beyond reasonable doubt, and that the process of drawing inferences is simply part of the fact-finding exercise.
[47] If, contrary to my view, any independent observer harboured any residual concerns about my trying this prosecution, they could only be seen (at best) as the type of vague unease or disquiet to which McGrath J referred in Saxmere.36 That would not be sufficient to justify recusal.
Result
[48] For those reasons, I dismissed the recusal application.
[49] I record that the Crown has reserved its position in respect of r 13.2 of the
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and
35 See paras [38]–[40] above.
36 See para [23](b) above.
s 4(1) of the Costs in Criminal Cases Act 1967. Deliberately, I make no comment in
respect of either.
P R Heath J
3
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