New South Wales Supreme Court CITATION : R v SIN [2008] NSWSC 351 HEARING DATE(S) : 11/2/08, 13/3/08, 11/4/08 JUDGMENT DATE : 18 April 2008 JUDGMENT OF : Latham J DECISION : Application to Disqualify on Grounds of Apprehended Bias granted. Parties to approach the Registrar today for allocation of a fresh hearing date. CATCHWORDS : Manslaughter plea - unlawful and dangerous act - Crown case on sentence consistent with intention to inflict grievous bodily harm - obligation upon sentencing judge to accord procedural fairness to offender - application to disqualify for apprehended bias. Johnson v Johnson [2000] HCA 48 CASES CITED : John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79 Pantorno v The Queen (1989) 166 CLR 466 PARTIES : Regina - Crown Offender - Sophorn SIN FILE NUMBER(S) : SC 2007/00002167 COUNSEL : Crown - W Robinson QC Offender - M Ierace SC SOLICITORS : Crown - S Kavanagher Offender - Kings Lawyers IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION LATHAM J 18 APRIL 2008 07/2167001 R v Sophorn SIN JUDGMENT – On Application to Disqualify on Grounds of Apprehended Bias. 1 HER HONOUR : The offender was charged on 25 August 2005 with the murder of an 18 year old man at Liverpool on 4 August 2005. A trial was listed for Monday, 11 February 2008. On Friday, 8 February 2008 the Court was informed by the Deputy Senior Crown Prosecutor, having carriage of the trial, that the matter would proceed as a plea of guilty. On the date set for trial, the offender entered a plea of not guilty to Murder but guilty to Manslaughter, following arraignment upon an indictment containing the single count of Murder. The Crown accepted that plea in full discharge of the indictment. When asked to explain the basis of the plea, the Court was informed that it was on the basis that the offender had committed an unlawful and dangerous act. There was no other evidence on the plea tendered on that occasion. 2 The matter was stood over for evidence on sentence to 13 March 2008 and a Pre Sentence report was ordered to be available before that time. On 13 March, the Deputy Senior Crown Prosecutor tendered, without objection, a folder of documents, including a Statement of Agreed Facts, a number of photographs of the general and specific location of the offence, two photographs of the body (post mortem) of the victim and a Pre Sentence report, which was marked as Exhibit A on sentence. A map of the area where the offence was committed was admitted as Exhibit B on sentence and a series of photographs depicting the knife in situ shortly after the offence was admitted as Exhibit C on sentence. 3 In order to explain the basis upon which the present application was mounted, it is necessary to visit the Statement of Agreed Facts and other material in Exhibit A in some detail. 4 The deceased was one of a number of young men who visited the Westfield shopping mall at Liverpool on the night of Thursday 4 August 2005. In the course of the evening, the deceased's group engaged in a fight with a group of young Asian males. They were observed exchanging punches by Westfield security officers. The security staff ejected the deceased's group from the premises. After this initial fight, members of the group of Asian males made a number of telephone calls to various persons, including the offender, asking them to come and join the group, for the purpose of seeking revenge against "the Lebanese". The offender was observed by another member of his group to be carrying a knife with him, when the offender was being conveyed to Liverpool by car. 5 On arrival in Liverpool, 7 Asian males, including the offender, assaulted the deceased and his friend, by punching and kicking them, near the corner of the Macquarie Mall. Other members of the deceased's group came to his assistance. They were also set upon by a number of Asian males. The following relevant excerpts appear in the Statement of Agreed Facts :- During the fight [the deceased] was being repeatedly struck by several different members of the Asian group. As he was being punched, some of the assailants were trying to hold him from running. At one point, [a co-offender] was punching him from the back and [another co-offender] from the side. Other assailants punched [the deceased] at around this time, including [the offender]. [The deceased] decamped and ran along the mall towards the Subway shop. [The offender] admits as part of his plea, running alongside [the deceased's] right hand side, jabbing him with his knife to attempt to cause him to stop running . However, he lost control of the knife and [the deceased] thereafter sought refuge in a shop on the mall, known as "Artbox", with the knife still either in his body or his clothing. He was not pursued, or further engaged by [the offender]. ………… Subsequently, [two co-offenders] called for [the deceased] to come out of the "Artbox" shop and fight. Both ran into the shop and [the deceased] struck out at [one of them] with a knife, apparently the one left behind by [the offender], .. [Both of these co-offenders] deny further stabbing [the deceased] whilst in the shop. [The assailants left the deceased] standing in the shop near the counter. They returned to cars that they had arrived in. [The offender and others] returned to [their car]. In the car, [the offender] told the others that he had stabbed one of those they had fought. He said he had left the knife behind, and wanted to return to retrieve it. ………………………………. [Later at a nearby park], they began talking about the fight. [The offender] did not say anything until [a co-offender] said to him "They were pretty mad combo's". [The offender] said, "They weren't combos. I stabbed him." A post mortem was conducted by Dr Langlois and it is his opinion that the deceased died from multiple wounds to the chest and abdomen which occasioned blood loss from organs including the right lung and liver. In his opinion, death could not be attributed to any specific wound but to the cumulative effect of the wounds. Altogether there were 4 wounds on the trunk of the body, 3 on the right-hand side and 1 on the left. The uppermost wound on the right chest was incised and of approximately 15 cms in length located 3 cm above the nipple. This wound penetrated the skin, subcutaneous fat and muscle of the chest wall (about 3 cm in thickness). The second chest wound was located 5.5 cm below the same nipple and was 7 cm in length. It also extended through the skin, subcutaneous fat and muscle of the chest wall and entered the pleural cavity and penetrated the right lower lobe of the lung and extended into the liver . The wound to the liver measured 4 centimetres wide and 4 cm in depth. A cast was made of the wound in the liver, which mirrored the shape of the knife's blade. The third wound was to the right abdomen and was located 12 cm above the pubis. Also an incised wound, it was 5.5 cm in length and extended through the skin, subcutaneous fat and muscle for a depth of 3.5 cm . The fourth wound was the only one on the left side of the trunk and was an incised wound 11 cm in length, which extended through the skin, the subcutaneous fat and muscle for a depth of 3.5 cm and entered the peritoneal cavity. ……………………………………………………………………. In entering a plea to manslaughter [the offender] admits responsibility for the two knife wounds to the right side of [the deceased's] chest, and further admits he was probably responsible for the knife wound to [the deceased's] right abdomen. …. He denies responsibility for the knife wound to the deceased's left abdomen. The knife used by [the offender] had an unusual squat profile, and was designed as a parmesan cheese cutting knife. The overall length is some 7 and a half inches [19cms] with a blade measuring approximately 3 inches [9 cms]. [One of the co-offenders] had stolen two such knives some months beforehand, and given one of the knives to [the offender]. None of the other participants in the fight on the same side as [the offender] has ever admitted having a knife, or using a knife, during the fight. 6 The passages highlighted in bold immediately above indicate the nature of the wounds for which the offender claims responsibility (or probable responsibility) and the significance of those wounds to the cause of death. The description of the knife within the Statement of Agreed Facts is supplemented by the photographic evidence of the weapon. The knife appears to consist of a high-grade stainless steel, with an ovoid blade at its widest point measuring approximately 4 cm, tapering to a sharp end. 7 Having read and viewed that material, which represented the Crown case on sentence, I made the following remarks :- Before we go any further, Madam Crown, I am having some difficulty - and I should for Mr Ierace's benefit spell this out - I am having some difficulty understanding how on the statement of agreed facts there could be a basis upon which this prisoner could be properly sentenced for the offence of manslaughter based on an unlawful and dangerous act. My reading of the agreed statement of facts indicate that the prisoner accepts responsibility at the very least for 2 knife wounds to the right side of the victim's chest and probably responsibility for the knife wound to the right abdomen. Now, the post-mortem report established that the two wounds to the right side of the chest were substantial in length and the second of them penetrated through the right lower lobe of the lung and into the liver. Now, I appreciate that the cause of death was blood loss from a multiplicity of wounds but how on earth could the infliction of those stab wounds with the knife that is depicted in the Crown brief not be consistent with an intention to inflict grievous bodily harm? I am just having extreme problems with this and can I say for Mr Ierace's benefit, if I'm going to sentence this prisoner on these facts it is going to be a long way outside the range which is commonly attributed to manslaughter pleas. So I am going to put that right up front. It is an impossible sentencing exercise, if I were to proceed on the basis that the agreed statement of facts put beyond doubt that this prisoner stabbed the victim a significant number of times in vulnerable parts of the body with a lethal weapon. I don't know of any other circumstances where manslaughter has been accepted for this type of assault. If you have one, I would be grateful to hear it. I am not suggesting this should be done on the run but I am telling you what my view is. I simply state that now, and was entitled to say nothing until I understood the basis of the plea and now that I have the agreed statement of facts I cannot understand the basis of the plea. 8 At that point, a short adjournment was proposed to allow the parties further time to take instructions, as required. I indicated that, in the absence of some understanding how the statement of agreed facts was not consistent with an intention to cause grievous bodily harm, the inevitable result would be a sentencing exercise that exposed the prisoner to a penalty for an offence to which he had not pleaded guilty. 9 Immediately thereafter, Mr Ierace SC, Senior Public Defender, acknowledged that my preliminary view was "properly expressed" and sought a more lengthy adjournment in order to consider his client's position. A further date was agreed upon. No submissions were made at this time by the Deputy Senior Crown Prosecutor in respect of the matters that I had raised. 10 On 28 March 2008, Mr Ierace SC made an application that I disqualify myself from further hearing the matter on the grounds of apprehended bias. Reliance was placed in particular upon my remarks regarding the prospect that the offender would be sentenced, in effect, for the offence of Murder, assuming that my views in relation to the Crown case on sentence did not change. This was said to constitute a form of prejudgment, which squarely fell within the principles applicable to apprehension of bias : Johnson v Johnson [2000] HCA 48. The Deputy Senior Crown Prosecutor neither joined in, nor opposed the application. 11 I accept that neither the use of infelicitous expression, nor the fact that my views might be regarded as correct, have any bearing upon the question whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the appropriate sentence to be imposed upon the offender. The test to be applied in order to determine whether a judicial officer should be disqualified on the grounds of apprehended bias is uncontroversial. It has been the subject of recent comment by the Court of Appeal in John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79 :- 11 The test requires the court to consider possibilities ("might") at two stages. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]: "The question is one of possibility (real and not remote), not probability". Thus the test, for good reason, establishes a relatively low threshold. However as the High Court said in Johnson (above) at 493: "The observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require him [or her] to discard the irrelevant, the immaterial and the prejudicial'." 12 The appearance of bias to a lay observer may be conveyed by the use of loose language without the judge being actually biased at all. In most of the cases where a judge has been disqualified for ostensible bias there was, in all probability, no actual bias. The principle exists not only to protect litigants from actual bias and injustice, but to maintain public confidence in the courts by ensuring that justice appears to be done. ………………………………………………………………….. 21 The view …. expressed by the Judge may [be] entirely correct, but this is not relevant at that early stage. [Referring to Callinan J in Antoun v The Queen (2006) 80 ALJR 497, 517 paras [83] and [85] ] 12 However, it appears to me that some tension exists in this case between the obligation to remain impartial and free from prejudice in the course of the sentencing hearing, and the obligation to accord procedural fairness to the prisoner. 13 In Pantorno v The Queen (1989) 166 CLR 466 at 473 Mason CJ and Brennan J said : - When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd v Environment Secretary [1976] 1 WLR 1255 at 1265-1266. 14 The obligation upon a judge to inform the parties of a view of the law, which appears at odds with the approach taken by both counsel, assumes particular importance in criminal proceedings. It did not appear to me to be in the interests of justice to delay the communication of my views until some later time in the proceedings, given that the Crown case on sentence had closed and I could see no basis upon which the offender's case on sentence could substantially affect my preliminary assessment of his criminality, as it emerged from the Statement of Agreed Facts. Indeed, on enquiring of Mr Ierace SC what would be relied upon in the offender's case on sentence, on the question of his culpability for the death of the victim, I was informed that the offender had expressed remorse for his part in the offence, including statements to a psychologist that the offender had not meant to cause the victim's death. As Mr Ierace SC frankly acknowledged, such statements may be rejected by a sentencing judge in the face of contradictory evidence, when determining an offender's intention at the time of the offence. 15 It would have been essential at some stage prior to the imposition of sentence to express my concerns in relation to the basis upon which I was being asked to proceed to sentence. That may have been some months hence and, no doubt, the same application for disqualification would have been triggered, at the cost of considerable delay in the ultimate disposition of the offender's fate. 16 Notwithstanding this dilemma, and in the light of the "low threshold" applicable to satisfaction of the relevant test for apprehended bias, I accede to the application made on the offender's behalf. It remains to observe that these remarks are not intended, and should not be taken as an attempt to influence another judge of this Court, when the matter is relisted. They are an expression of my own considered opinion, consistent with my judicial oath to do justice to the offender and to the community. 17 I direct that the parties approach the Registrar today for the allocation of a fresh hearing date. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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