The Queen v Chatha

[2008] NZCA 427

IN THE COURT OF APPEAL OF NEW ZEALAND

CA685/2007
[2008] NZCA 427

THE QUEEN

v

ARSHAD MAHMOOD CHATHA

Hearing:23 September 2008

Court:Glazebrook, Rodney Hansen and Miller JJ

Counsel:A Shaw and A J Ellis for Appellant

N P Chisnall for Crown

Judgment:23 September 2008 

Reasons for judgment:        10 December 2008 at 4.00 pm

JUDGMENT (RECUSAL)

The application for recusal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1]       On 23 September 2008 Mr Ellis, on behalf of Mr Chatha, made an application for Miller J to recuse himself from the hearing of Mr Chatha’s appeal.  This was on the basis of perceived bias arising out of Miller J’s membership of the High Court common room in Wellington.  The trial Judge in Mr Chatha’s case, MacKenzie J, is also based in Wellington.

[2]       Even in a multi-member Court, recusal decisions are for the individual Judge:  see Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 16 PRNZ 1014 at [22] (CA) and McDonald v New Zealand Law Society [2007] NZCA 171 at [8].

[3]       Miller J thus considered the recusal application and decided that he would not recuse himself.  The other two Judges sitting on the appeal agreed with Miller J’s decision.  This was communicated to counsel in open court and the recusal application was dismissed with reasons to be provided later.  These are the reasons for that decision.

The legal test

[4]       This Court has recently examined the question of recusal for bias in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495. In that case the Court held that there must be a two stage inquiry where bias or perceived bias is alleged. First, it is necessary, by rigorous inquiry, to establish the exact circumstances that have a direct bearing on the suggestion that a judge was, or might be seen to be, biased. The second inquiry is as to whether those circumstances as established might lead a fair-minded lay observer reasonably to apprehend that the judge might not bring an impartial mind to the resolution of the case: see Muir at [62] ‑ [63].

[5]       The test is not what an uninformed observer might conclude but what an informed observer might think: Porter v Magill [2002] 2 AC 357 at [57] per Lord Bingham of Cornhill, at [59] per Lord Steyn, at [103] per Lord Hope of Craighead, at [131] per Lord Hobhouse of Woodborough, at [161] per Lord Scott of Foscote (HL); AWG Group Ltd v Morrison [2006] 1 WLR 1163 at [7] per Mummery LJ for the Court (CA); Muir at [60] and Erris Promotions at [32]. In Australia the fair-minded observer has been attributed with some general knowledge of the legal system and how it operates. For example, the observer will be assumed to know that those appointed to judicial office will often be acquaintances of the counsel who appear before them: Campbell and Lee The Australian Judiciary (2001) at 136.

[6]       The apprehension of bias principle requires identification of whatever it is that might lead a judge to decide a case other than on its legal and factual merits and an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.  An informed observer would not lightly accept that a judge had put aside his or her professional oath, or indeed professional training:  see Muir at [94] ‑ [96].

[7]       The general approach is that judicial disqualification is not warranted on the basis of adverse rulings or decisions. Thus, comments on the merits of the case as such would ordinarily not suffice to warrant recusal.  It has to be shown that the judge had formed a fixed opinion as to the ultimate merits of the matter pending and did not have an open mind:  see Muir at [99], [100] and [103].

[8]       The Court in Muir also noted that a judge has a duty to sit where grounds for disqualification do not exist in fact or law.  This duty helps to protect judicial independence against manoeuvring by parties hoping to improve their chances of having a given matter determined by a particular judge or to gain advantage through delay or interruption to the proceeding:  see Muir at [35] and [66].

Background

[9]       Mr Ellis did not ask Miller J to recuse himself when the case was called, which was the proper time to do so.  Rather, he took the point when Miller J asked a question of Mr Ellis early in his argument.  (Miller J put it to him that an accused has no right to decide not to appear at trial.)  Mr Ellis then asked Miller J to consider recusing himself on the grounds of perceived bias.  Although mounted on that ground, the context suggests the concern was more fundamental, although Mr Ellis did say that, if Miller J remained, he should take part in the hearing in the normal way.

[10]     Mr Ellis declined to make a formal recusal application at that stage.  He merely invited Miller J to consider recusing himself.  Mr Ellis expressed concern that Miller J was sitting in the High Court with the trial judge, MacKenzie J, and having interchanges with him as a Judge of the High Court at the same time as sitting on this appeal, thus sitting in two courts at once.  Mr Ellis submitted that this would create an appearance of bias to an independent observer.

[11]     Miller J declined to recuse himself, and did not give reasons.  A formal application for recusal was made immediately after lunch, on the same basis but on the added ground that, contrary to what was said to be Miller J’s usual practice, he had asked no further questions after declining Mr Ellis’ invitation to recuse himself.  This could also be seen as raising an allegation of actual bias, although not expressed as such.

Evaluation

[12]     We deal first with the (unexpressed) allegation of actual bias.  This is unsustainable to the extent it was based on Miller J’s “failure” to ask questions.  The dynamics of a three-member court are different from the situation when a judge is sitting alone.  Miller J was not presiding at the hearing of the appeal and other members of the Court were engaging in dialogue with counsel.  Miller J did not need to ask questions in order fully to understand the points Mr Ellis was making.  Had he found it necessary, Miller J would have sought additional clarification, as he had done at the time Mr Ellis invited him to consider recusing himself.

[13]     As to any more general allegations of actual bias, Miller J records that his knowledge of Mr Chatha’s case arises only from reading the papers filed on the appeal.  At the stage the application for recusal was made Miller J, like the other two members of the Court, had not formed any final views on the appeal.  He had not discussed the case with the trial Judge, MacKenzie J, and, as is customary in all appeals, would not do so at any time prior to judgment being released.  Any allegation of actual bias is therefore unfounded.

[14]     Turning now to the allegations of perceived bias, the application is grounded solely in the fact that Miller J sits as a High Court Judge in Wellington alongside the trial Judge, MacKenzie J.  The issue is whether these circumstances might lead an informed, fair-minded and independent observer reasonably to apprehend that Miller J might not be impartial in his consideration of the appeal.  This test is not met.

[15]     Informed observers would know that, under the Judicature Act 1908, High Court judges can sit on appeals with permanent Court members on divisions of this Court and that this occurs regularly, both in criminal and civil matters.  Informed observers would know that divisions of this Court must sit on appeals against decisions of other High Court judges and against conviction and/or sentence in relation to criminal trials where other High Court judges presided.

[16]     The existence of appeals is part of the system of justice in New Zealand.  It is as much the role of High Court judges to act in an appellate capacity as to sit at first instance.  All High Court judges must be (and are) prepared to perform this task where required and to do so in accordance with their judicial oath, no matter who the trial judge may have been.

[17]     There is nothing in the Judicature Act to suggest that High Court judges should not sit on appeals from judges based in the same centre.  Indeed, divisions of this Court must hear appeals against decisions of members of the Permanent Court delivered when they were sitting at first instance and appeals in relation to criminal trials that were presided over by members of this Court. 

[18]     An informed observer would know that the judge appealed from would have no input into the decision of this Court, whether they were in the same common room as any member of the division hearing the appeal or in a different one.  All appeals are treated in the same manner, no matter which judge or which court or common room is involved.  Further, judges appealed from have no personal stake in their decisions.  The judge’s individual interests, such as liberty or property, are not engaged.

[19]     Informed observers would also know that systems where judges sit on appeals of cases where judges of the same court have earlier presided are by no means uncommon.  We refer for example to the Federal Court of Australia and to those jurisdictions in Australia without permanent Courts of Appeal.  The system of having current trial judges performing appellate work has some major advantages.  Importantly, it ensures that appellate courts do not lose touch with trial practice.  Any system where judges did not sit on cases involving judges from the same common room would be administratively unworkable as well as unnecessary.

[20]     In terms of the test set out in Muir, the circumstances as properly understood would not lead an informed observer reasonably to conclude that Miller J might not decide the appeal impartially. 

[21]     Further, appeals involve a multi-member court.  It is relevant to perceived, as against actual, bias that, with a multi-member Court, the impugned judge must not only be perceived as possibly being led to decide the case otherwise than on its merits, but it must also be perceived that the judge might possibly be able to persuade (in this case) at least one of the other judges to decide the case in the same way.  There would be no reason for an informed observer to consider that Miller J might improperly influence either of the other Judges to ignore their judicial oath and decide the appeal otherwise than on its merits.

Result

[22]     For the above reasons, the recusal application was dismissed by Miller J, with the concurrence of Glazebrook and Rodney Hansen JJ.

Solicitors:
Crown Law Office, Wellington