esesecccese UUDGMENT No. seid. Et IN THE FEDEPAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERPTTORY No. ACT 6337 of 1984 DISTRICT REGISTRY ew ee wwe GENERAL DIVISION BETWEEN : CHRISTOPHER JAMES COSGROVE Applicant AND: THE QUEEN Respondent JURGE MAKING ORDER: Neaves J. DATE OF ORDER: 12 November 1984 WHERE MADE: Canberra THE COURT ORDERS THAT the applicat:on be dismissed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G337 of DISTRICT REGISTRY eww eee GENERAL DIVISION BETWEEN: CHRISTOPHER TAMES COSGPOVE Applicant ANT - THE QUEEN CORAM: Neaves J. DATE: 12 November 1984 REASONS FOR JUDGMENT Neaves J.: This is an application unter section 24 of the Federal Court of Australia Act 1976 for leave to appeal from what 1s described in the application as "the judgment of his Honour Mr Justice Gallop given on Tuesday, 30 October 1984 at Canberra in the Supreme Court of the Australian Capital Territory". Christopher James Cosgrove ("the applicant") is to appear befor? the Supreme Court of the Australian Capital Territory on 13 November 1984 on two charges of armed tJ robbery and one charge of possession of property stolen outside the Australian Capital Territory. The offences are alleged to have been committed on or about 11 October 1982. The applicant was committed for tcial on those charges on 5 January 1983. The Court was informed, as was Gallop J. on 30 Yctober 1984, that the applicant proroses to plead cuiity when arraiqned on those charges on 13 November 1984. Upcn the applicant becoming aware that the Supreme Court of the Australian Capital Territory when hearing the charges against him would be constituted by Gallop J., an approach was made through the Clerk to the Juddes of that Court inviting the learned Judge to disqualify himself from hearing the ercceedings. His Honour sat in open court on 30 October 1984 to enable the matter 'to be canvassed. Counsel for the applicant referred to the basis of the application and submitted that the circumstances were such that his Honour should disqualify himself. Counsel for the Crown informed his Honour that the Crown raised no objection to his Honour hearing the proceedings, placing some reliance on the circumstance that the proceedings were to be for sentence only. After hearing the submissions Gallop J. declined to disqualify himself. It is from that pronouncement of Gallop was J. that the applicant seeks leave to appeal. To suprort 'the application made to Gallop J. that he should disqualify himself from hearing the proceedings, the applicant relied on certain statements which his Honour had made when sentencing the applicant on 28 March 1982 to terms of imprisonment (ordered to be served concurrently) for certain offences committed in 1981. Three offences were anvolved, one of forgery, one of uttering and one of recelving. In passing sentence in relation to those offences his Honour = stated the facts concerning the offences, referred to the appiicant's criminal record and discussed whether he should give any credit in the sentences he was about to impose for the periods during which the arplicant had been in custody since the commission of the offences. His Honour referred te the applicant's escape from custody on two occasions and his re-arrest after short pericds at liberty. He also referred to the matters which in his view could properly be taken into account in favour of leniency. In the course of referring to the applicant's criminal record the learned Judge said: "This is vet another case of a young man, 20 years of age, who has hada long association with the criminal law and has a really disgraceful record for a man of 20 years of age." Later his Honour said: "He was arrested again on 16 October 1982 and he has been in custody at the Belconnen Remand Centre since then. The accused has been in twnstitutions in New South Wales and has been a tremendous social nuisance. I accept the observations of the welfare officer that the accused 1s manipulative, lacking emotional warmth, calculating and has a lack of concern cor anx1lety for anybody cr peopie's property, or for any form of authority. He seems to lack self-control in a most serious way. Whether this 1s due to him being emotionally disturbed or mentally disturbed has yet to be investigated. TI am afraid I see him as beyond redemption. I think that vrobably what the future holds for this young man 1s a life of crime, a life of being detected and sentenced to terms of imprisonment. accordingly. hence he will live all his life in and out of gaol. come out, live on his wits for a littie while, commit some more crimes, get caught and qo back in. A classic recidivist." It was upon these quoted passages that the applicant relied. No criticism was offered of the remarks made by the learned Judge on the previous occasion. Indeed, 1t was expressly acknowledged on behalf of the applicant that his Honour was perfectly entitled, on the material then before him, to make those remarks. It was not suagested that the learned Judge was actually biased or prejudiced against the applicant. What was said was that, by reason of the remarks which his Honour had made cn the previous occasion, the parties or the public might entertain a reasonable apprehension that, by reason of pre-judament, he might not bring an impartial and unprerudiced mind to the resolution of the questions involved in the proceedings which were to come before the Court on 13 November 1984. Reference was made to Livesey v. New south Wales Bar Association (1983) 47 A.L.R. 45. There 1s a threshhnold question which, in my Qpinion, 1s fatal to the application. The 1ssue which the applicant wishes to raise before a Full Court of this Court by way of appeal is whether, in all the circumstances, the due administration of justice requires that Gallop J. not sit to hear the proceedings against the applicant, the applicant having taken objection to him so sitting. An appeal, nowever, does not lie to this Court from the Surreme Court of the Australian Capital Territory except from a jyudament, decree or order of that Court, whether final or interlocutory, or from a sentence imposed by that Court. That aprears from the provisions of section 24 and the definition of "judgment" in section 4 of the Federal Court of Australia Act 1976. What was done by Gallop J. on 30 October 1984 clearly did not amount 9 a sentence. Equally clearly what was done did not amount to a judgment or decree. Did if, however, amount to an order? In my opinion this question admits of no other than a negative answer. All that his Honour did was to make a statement, un relation to oroceedings which were to come before the Supreme Court in due course, that he did not regard himself as disqualified. Such a statement is not, in my opinion, aptly described as an operative judicial act determining or settling the rights or liabilities of the applicant, cr of any other person, and it 1s, tnerefor2, not an order from which an apnpeai may be brought to this Court (see The Commonwealth v. Mullane '1361) 196 C.L.R. 166). I snould. however, add that, had I been of the contrary view, I would not, in the exercise of my discretion, have granted leave to appeal in the circumstances cf this case. The orinciple to be applied where it 15 sucgested that a swtudge should not hear a proceeding on a ground such as that relied upon in this case 1s ciearly established: see R. v. Watson; Ex parte Armstronq (1976) 126 C.L.R. 248 at pp. 259-263 and Livesey v. New South Wales Bar Association, supra at p.48. In the latter case the High Court said (at pp.48-49): "In a case such as the present where there 15 no allegation of actual bias, the question whether a judge who 1s confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views ~ which he has exressed in his judqment in some previous case may result im an apoearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways' -.. If a judge at first instance considers that there is any real possibility that his -- participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, 1t would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one varty so to do on the grounds of a possibie appearance of pre-judament or bias, regardless of whether the other party desired that the matter be dealt with by him as the judage to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. Once it is accepted that a judge should not automatically stand aside whenever he 15 requested so to do, i1t 1s inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsiaqht and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that ne should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It 18 simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought." It 1s, of course, no part of my function in hearing the present application to express a view upon the question which would arise for decision by a Full Court if leave to appeal were granted and I refrain from doing so. But I am far from satisfied that the applicant has established a case for the intervention of thzs Court at the present stage of the proceedings in the Supreme Court. If there 15 substance 1n the point which the applicant seeks to make 1t will remain available to him after sentence has been passed in that Court. From that sentence the applicant may appeal as of right to this Court and the Court will, as the High Court undicated in the passage cited above, then be ina position to consider the matter with the advantages of hindszaht including information as to the course of the proceedings before the Supreme Court. Other considerations miaght prevail if the proceedings in that Court were likely to be orotracted. However, that is not the posrticn in the present case. If the point is to be persisted in, the more appropriate course, in my opinion, 13 for the matter to be raised as a ground of appeal against sentence. The application 1s dismissed. I certify that this and the vreceding 7 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Asseciate Dated: 12 November 1984