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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Chatha

Details

AGLC: The Queen v Chatha [2008] NZCA 427
Case: [2008] NZCA 427
Decision Date: 10 December 2008

CaseChat Overview and Summary

The case of The Queen v Arshad Mahmood Chatha was heard in the Court of Appeal of New Zealand, with the hearing taking place on 23 September 2008. The matter was brought before the court by the appellant, Arshad Mahmood Chatha, represented by counsel A Shaw and A J Ellis. The respondent, The Queen, was represented by N P Chisnall. The appeal was heard by Glazebrook, Rodney Hansen, and Miller JJ. The issue before the court was whether Miller J should recuse himself from the case due to perceived bias arising from his membership of the High Court common room in Wellington, where the trial judge, MacKenzie J, was also based. The application for recusal was dismissed with reasons provided later.

The legal issues before the court involved the principles of judicial recusal and the application of the two-stage inquiry test for perceived bias, as outlined in Muir v Commissioner of Inland Revenue. The first stage required the court to rigorously inquire into the exact circumstances that might suggest bias. The second stage involved determining whether these circumstances might lead a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case. The court had to consider whether the circumstances of Miller J's membership of the High Court common room in Wellington might lead an informed observer to reasonably apprehend that he might not decide the appeal impartially.

In evaluating the application, the court first addressed the allegation of actual bias, which was based on Miller J's failure to ask further questions after declining the initial invitation to recuse himself. The court found that the dynamics of a three-member court meant that Miller J did not need to ask questions to fully understand the points made by counsel. Furthermore, Miller J had not formed any final views on the appeal at the stage the recusal application was made, and he had not discussed the case with MacKenzie J, the trial judge. The court found the allegations of actual bias to be unfounded.

The court then turned to the issue of perceived bias, which was based solely on Miller J's membership of the High Court common room in Wellington. The court considered whether this circumstance might lead an informed, fair-minded and independent observer to reasonably apprehend that Miller J might not be impartial in his consideration of the appeal. The court found that informed observers would know that High Court judges regularly sit on appeals with permanent Court members and that this is part of the justice system in New Zealand. There was nothing in the Judicature Act to suggest that High Court judges should not sit on appeals from judges based in the same centre. Additionally, the court found that there was no reason for an informed observer to consider that Miller J might improperly influence the other judges to decide the appeal otherwise than on its merits. Therefore, the court concluded that the circumstances did not lead an informed observer to reasonably conclude that Miller J might not decide the appeal impartially.

As a result, the recusal application was dismissed by Miller J, with the concurrence of Glazebrook and Rodney Hansen JJ.

Orders