Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gurung v R [2012] NSWCCA 201 Hearing dates: 6 September 2012 Decision date: 06 September 2012 Before: McClellan CJ at CL at [1] McCallum J at [50] Garling J at [65] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW - appeal - 5F - decision of trial judge not to recuse himself - whether reasonable apprehension of bias - where lack of understanding between trial counsel and trial judge - no reasonable apprehension of bias. Legislation Cited: Criminal Appeal Act 1912 Cases Cited: Barakat v Goritsas, [2012] NSWCA 8 R v Matovski (1989) 15 NSWLR 720 R v Rogerson (1990) 45 A Crim R 253 R v Watson; ex parte Armstrong (1976) 136 CLR 248 Category: Interlocutory applications Parties: Renuka Gurung (Applicant) Crown Representation: Counsel: R Killalea (Applicant) MM Cinque (Crown) Solicitors: KTG Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/397284 Decision under appeal Date of Decision: 2012-07-27 00:00:00 Before: King DCJ File Number(s): 2010/397284 Judgment 1McCLELLAN CJ at CL: The applicant, Renuka Gurung was charged with two offences in the District Court. In relation to one of the offences she entered a plea of guilty. The second matter proceeded to trial before a judge of the District Court and a jury. 2On the second day of the trial she offered, and the Crown accepted, a plea to that count. She pleaded guilty in the presence of the jury and the jury was discharged. 3On 8 June 2012 the applicant came before the court for sentence; submissions were heard and bail was revoked. The matter was fixed for sentence on 27 July 2012. However, in the meantime the applicant filed a notice of motion in which she sought to withdraw her plea to the second count. That motion was made returnable on 27 July 2012. 4When the matter came before the Judge on 27 July, there was a discussion with counsel about its future progress. By this time, because the applicant was in custody, her advocate raised the possibility that, pending the disposition of her application to withdraw her plea, she may be granted bail. 5However, it was apparent that there was not the necessary material in the hands of the advocate, or before the Court, to enable that application to have any prospects of success if it was pursued on that day. 6At an early stage of the proceedings, the Judge indicated that he was prepared to hear the bail application on that day, but for the reason that it would obviously fail, the applicant's advocate requested that a different course be taken and that the matter be stood over. 7As it happens the matter was stood over to 17 August, but did not proceed on that day and, instead, 31 August was provided as the adjourned date. However, as I understand the position, the matter did not proceed on that day and was further stood over for hearing to 14 September. 8During the course of the discussion about the possibility of an adjournment, the question of what would occur on the adjourned date was raised. The Judge indicated that, on that day, provided counsel had adequate time to respond, he proposed that the application to withdraw the plea would be heard. 9During the course of the discussion with the applicant's advocate, the basis for the application to withdraw the plea was briefly referred to. In the course of that discussion, Mr Killalea, who appeared for the applicant, said that the applicant complains: "At the very least, there is a perception that she was browbeaten by her legal team into pleading guilty, that's the substance of her complaint". 10His Honour later remarked that he had understood from that statement by Mr Killalea that "there appears to be some attack on Mr Overall's, [the barrister who previously appeared for the applicant], integrity in relation to the manner in which he conducted the pleas". 11After the matter had been adjourned, it transpired that there was some difficulty with the dates. Accordingly, the matter was mentioned in the Court later that day. 12At this later occasion Mr Killalea raised with his Honour the fact that the trial had been part-heard before his Honour, but now the plea had changed. There was an exchange between Mr Killalea and his Honour when, ultimately, what came forward from Mr Killalea was that he was instructed to ask his Honour to refer the application for leave to withdraw the plea to a different court. His Honour responded by saying, "Certainly not". (The Crown indicated they did not oppose that course). His Honour then said: "So you mean in relation to any application to withdraw the plea that that should be heard by another judge?" 13Mr Killalea responded, "Yes". 14His Honour said, "That would be entirely inappropriate". 15Mr Killalea then said, "I make this formal application, your Honour". His Honour said, "Yes, it's refused". 16Mr Killalea then responded by saying, "I haven't made it yet". His Honour says, "You have indicated what it is and it's the question of withdrawal of the plea of guilty, be heard by another judge. Isn't that your application?" Mr Killalea does not directly respond to that statement, but said to his Honour, "I'm going to give reasons". His Honour says, "Yes, well, I don't need to hear them". 17That observation was clearly made in response to the application which had then been made by Mr Killalea that his Honour should refer the hearing of the application to withdraw the plea to another judge. His Honour, understanding that application to be founded upon the proposition that the trial Judge who had heard part of a trial should not thereafter adjudicate in relation to the withdrawal of the plea, his Honour said he did not need to hear reasons. 18I understand his Honour to have anticipated that Mr Killalea would spell out the foundation for his application which, in any event, to my mind, was plain in what had already transpired between them. 19Mr Killalea was not deterred by what his Honour had said. Although Mr Killalea indicated that he was going to provide reasons for his application that there be a different judge to hear the application to withdraw the plea, he turned to an entirely different subject. He ultimately advanced an application that his Honour should recuse himself because of an apprehension that his Honour may be biased. That apprehension was not founded upon the fact that he had been the previous trial judge but, rather, on what had transpired in the Court on that day. 20I note that, by this time, the applicant had left the Court to return to custody and the application which was made by Mr Killalea was consequently made without her being present. 21Mr Killalea said this to his Honour: "We're instructed in these terms before she left. We ask your Honour to recuse yourself for these reasons. That in relation to the bail application your Honour said words to this effect, 'I can tell you what the result will be now'. That's before I gave any reasons". 22His Honour then said "I don't intend to recuse myself." 23Mr Killalea then said: "And for the second reason we ask this. Your Honour referred to an attack or apprehended attack on the integrity of the barrister. That was, with respect, not a necessary consequence. It is often enough the case in matters like this that when the relevant evidence comes forward, that a barrister with the integrity that a barrister has and if it be the case the barrister might well say what Ms Gurung has described as pretty close to what actually happened". 24His Honour said: "Yes, well, that's why I'm entertaining your application when it comes to withdraw the plea Mr Killalea or at least your client's application". 25His Honour then said: "Nothing before me yet which would cause me to grant your client bail pending your application". 26Pausing there, it is plain that, by this stage of the proceedings, some confusion has entered into the process. Although initially advancing a reason why a different judge should hear the application based upon the fact that his Honour was the trial Judge, it is now suggested that his Honour should recuse himself. It is not suggested to this point that his Honour should do so for other than the fact that he had said in response to the question of a bail application on that day being pursued by the applicant that the result would be plain. So much was obvious and, indeed, is conceded by Mr Killalea in this Court and it was for that reason that he did not pursue the bail application in the Court below. There was simply not the material upon which the application could have any prospects of success. The second reason advanced for recusal was his Honour's reference to the possibility of an attack upon the barrister, which I have previously referred to. 27What Mr Killalea put to his Honour, to my mind, clearly raised the possibility that a significant part of the application to withdraw the plea would be founded upon the fact that the applicant was not appropriately advised by her legal team, including her barrister. Whether or not that should be properly described as an attack upon the integrity of the barrister, to my mind, it was an indication that there would be a criticism, of the conduct of the legal team, sufficient to justify withdrawal of the plea including criticism of the applicant's barrister during the course of giving the applicant advice in relation to the course she should take in the matter. 28It is however curious that immediately after these matters were advanced, his Honour returns to the issue of bail and as I have already recorded said: "Nothing before me yet which would cause me to grant your client bail pending your application". 29The discussion continues with Mr Killalea recorded as saying: "With respect, that's not how it was put your Honour. How it was put was before I gave you reasons I can tell you now'". 30His Honour said: "Yes, well I don't intend to debate it, if you want to put matters on the record you can do so Mr Killalea". 31As I understand the situation, his Honour is still thinking that he is engaged in a discussion in relation to the bail application. Mr Killalea continued: "If I can encapsulate. I request your Honour to recuse yourself for reasons of the two grounds I've put to your Honour and I submit to your Honour that a reasonable person in the well of this Court would reasonably apprehend that your Honour's mind was made up in relation to that matter and by no stretch of that situation for a reasonable person to anticipate that Miss Gurung would get - not beyond the stretch for a reasonable person to apprehend that Miss Gurung would not get a full and fair trial and a fair hearing on the question of - on the application for withdrawal of her plea of guilty". 32His Honour then seeks to summarise the position as he understood it, saying: "Right Mr Killalea that has been noted. Might I just say that your original complaint to this Court in relation to the application to withdraw the plea was that you wished to make in the meantime a bail application. I made the comment in relation to being able to tell you the result of the application in circumstances where you had not yet put on any material before the Court in relation to the application itself but was simply indicating that you were going to seek bail before such material was in fact available or heard by the Court. In those circumstances, that was the basis for saying that I can tell you what the result would be. I would not entertain any bail application prior to there being appropriate material before the Court in relation to your client's application to withdraw the plea". 33His Honour then said: "So let's return to the purpose that we are here for now". 34His Honour does not respond to the submission that his Honour's comment upon the integrity of the barrister would, in part, justify the application for recusal. As I have indicated, I do not believe it was necessary for his Honour to do so. 35In the event, although not in an entirely orderly manner, and not without ambiguity the transcript, to my mind, suggests that the application to recuse was advanced before his Honour. Mr Killalea was able to put his reasons before his Honour and notwithstanding his Honour's earlier comment that he did not intend to recuse himself, made, as I presently understand it, in the context of the initial indication that a different judge should be found hear the application, his Honour thereafter attended to the grounds for recusal and responded to them by the summary reasons, which I have indicated appear later in the transcript. 36Apart from my difficulty in understanding what occurred on that day, there is a significant issue as to whether or not, in the circumstances of this case, there is an interlocutory judgment, or order which could found an appeal to this Court. 37Section 5F of the Criminal Appeal Act has been carefully drawn to confine an appeal by a party to proceedings to the circumstance where there is an interlocutory judgment, or order given, or made in the proceedings about which a party has concern. 38Before an appeal may be entertained by this Court, s 5F(3) provides that the Court of Criminal Appeal must be persuaded to give leave to appeal and thereafter may, if leave is granted, consider the appeal. 39The Notice of Appeal filed in these proceedings seeks to attack the order made by his Honour on 27 July to vacate the previous order and provide for the further hearing of the matter on 31 August 2012. That day has passed. 40As we understand the position, the matter has been listed for further consideration on 14 September. The Crown accepts that the applicant would, if necessary, succeed in an application for leave to amend the Notice of Appeal to express it by reference to that adjourned date. 41Although there is some controversy in the authorities, it would seem that the prevailing view is that the decision of a trial judge not to recuse him or herself from a matter is not amenable to an appeal pursuant to section 5F of the Criminal Appeal Act. 42The issue is discussed in fairly short terms in the decision of Basten J in Barakat v Goritsas, [2012] NSWCA 8 in the context of an appeal to the Court of Appeal from a trial judge in the Common Law Division of the Supreme Court. It is not necessary for me to develop the issues which his Honour discussed in that judgment for present purposes. 43This issue was considered by this Court in the matter of R v Rogerson (1990) 45 A Crim R 253 where Gleeson CJ said at p 255: "There are two aspects of the intended appeal against an interlocutory judgment or order which ought to be considered. The first concerns his Honour's refusal to accede to the application tht he should disqualify himself. It seems to me that there is no interlocutory judgment or order in that respect concerning which an appeal would lie under s 5F of the Criminal Appeal Act. The Court of Appeal held in the case of Barton v Walker [1979] 2 NSWLR 740 that the refusal of a judge of the Supreme Court to disqualify himself after an application in that behalf had been made to him did not constitute a judgment or order against which it was possible to appeal to the Court of Appeal. Of course such a refusal might constitute a ground of appeal against the ultimate decision in the case in the course of which such an application was made, but, so it was held, a refusal by a judge to accede to a submission that he disqualify himself is not itself a judgment or an order of the court. I am respectfully of the view that the reasons that are given for that conclusion in Barton v Walker are cogent, and in my view the case should be followed in the Court of Criminal Appeal. I might add that within the last few weeks that decision has been followed in the Court of Appeal in the case of Rajski v Wood (1989) 18 NSWLR 512. Accordingly, even leaving to one side the problem about extension of time, I would have declined leave to appeal against that aspect of Judge Shillington's decision on 5 December, simply on the ground that there is no jurisdictional basis for the appeal. His Honour's decision in relation to a refusal to vacate the hearing date stands in somewhat different position. There may well be room for considerable doubt as to whether a refusal to vacate a hearing date or grant an adjournment constitutes an interlocutory judgment or order, and this Court has been informed that in that regard the Crown would seek to reply upon the decision of the Court of Criminal Appeal in Edelsten (1989) 18 NSWLR 213, 45 A Crim R 289. However, it seems to me that it is unnecessary to resolve that particular issue on this occasion." 44As it happened, Gleeson CJ did not find it necessary to resolve the issue of whether or not an order in relation to the hearing date for the matter would found an appeal pursuant to s 5F to this Court. 45The question of the limits of the jurisdiction of this Court in relation to applications for recusal have not been fully explored in the argument today. That is a consequence of the fact that this matter has been brought on for hearing urgently in order not to disrupt its orderly progress in the District Court. It must be remembered that the applicant remains in custody and any further delay in the resolution of proceedings has a capacity to impact upon her liberty. 46I am not presently persuaded the sequence of events in the District Court would permit of a conclusion that his Honour conducted himself in a manner which would give rise in the mind of the reasonable person to an apprehension that his Honour was biased and would not fairly deal with the matter. My view of the sequence of events is there was a serious lack of understanding between Mr Killalea and his Honour as to the nature of the application that was being made and the foundation for it. No doubt this was at least partly caused by the fact that his Honour was dealing with the matter in amongst a busy list and that the application for recusal was made after the matter had been returned to the list later in the day for the purpose of changing the adjourned date. 47Although I am not persuaded that the transcript would justify a conclusion that his Honour erred in the manner in which the proceedings were conducted, it is plain that if a judge refuses to listen to argument in support of an application to recuse, or indeed in relation to any application of substance in a matter, then there is likely to be an error which may justify the intervention of this Court because of reasonable apprehension that the judge may not bring an impartial mind to the matter. 48As I have indicated, I am not persuaded having regard to the transcript that his Honour's remarks could justify a conclusion that a reasonable bystander would apprehend that his Honour was biased. Of course, that decision would not preclude the applicant from making a further application to his Honour. His Honour would have to consider that application in light of his understanding of the events which occurred on 27 July. 49Beyond that matter as I have indicated, there is a real question as to whether or not this Court has jurisdiction to entertain the appeal. This is not the appropriate case in which to resolve that issue. 50For those reasons leave to appeal should be refused. 51I should also indicate that the Crown conceded in the course of argument that if the applicant wished later to pursue a further application that his Honour recuse himself, the Crown would not seek to submit that the applicant was precluded from raising that issue either in the court below or in this Court. 52McCALLUM J: With great respect to the Chief Judge at Common Law, I am unable to agree with his Honour. Before stating my reasons for reaching a different conclusion, I note a preliminary issue as to the form of the relief sought. 53As the Chief Judge has stated, the order sought to be appealed against is an order vacating the earlier date fixed for the hearing of the application to withdraw the plea and listing the proceedings for hearing on 31 August 2012, a date which has now passed. 54The Court was informed during argument that, on 31 August 2012, the proceedings were again stood over for hearing on 14 September 2012. It was indicated on behalf of the applicant that, if necessary, leave would be sought to amend the application accordingly. Further, the Crown very fairly indicated that such amendment would not be opposed. The remarks which follow are directed to the foreshadowed amended application. 55I accept that this Court properly guards jealously its jurisdiction under s 5F(3) of the Criminal Appeal Act. Nevertheless, as was acknowledged by Gleeson CJ in R v Matovski (1989) 15 NSWLR 720 at 723, no single principle should circumscribe the discretion of this Court in deciding whether to grant or to withhold leave to appeal. It is necessary to consider the interests of justice in any individual case. 56I accept also that there may be an issue as to whether the order sought to be appealed from (as identified in the proposed amendment to the application) is one in respect of which leave under s 5F(3) may be granted. In my view, however, that is not in itself a reason for refusing leave but rather an issue which could properly be fully ventilated upon the granting of leave. Whilst different views have been expressed on the issue, I take comfort from the approach that was taken by Basten JA in Barakat v Goritsas [2012] NSWCA 8. I acknowledge that was not a case directly concerned with the language of s 5F of the Criminal Appeal Act, since it was a proceeding in the Court of Appeal. Conversely, it may be noted that the present case does not involve a judge of the Supreme Court, as Barakat did. In any event, Basten JA evidently had no difficulty accepting the proposition that, in circumstances where a refusal by a judge to recuse him or herself does not in itself form a proper basis for an appeal, it is usually not difficult to identify "a later interlocutory order" which might properly be the vehicle for an appeal. 57In those circumstances Basten JA recorded the agreement of the parties in that case that the notice of appeal could properly be amended to include a challenge to the order of the primary judge (who had refused to recuse himself) fixing a date for the hearing of the contempt proceedings. Whilst, as I have already noted, that was a case in the Court of Appeal, I think it is at least arguable that such an order could properly be characterised as an "interlocutory order" for the purposes of s 5F(3) of the Criminal Appeal Act. 58Mr Killalea explained that the relief sought in the present case was framed by reference to the remarks of Basten JA in that case. The correctness of that approach is a matter which, in my respectful opinion, could properly be argued and does not of itself warrant the refusal of leave. 59To my mind the critical consideration in the present case is the effect of the order as a matter of substance. Although the order sought to be appealed from is in effect an adjournment and the fixing of a date for hearing which was made by consent (certainly as to the date), in substance it reflected his Honour's determination to proceed to hear the application after refusing to recuse himself. 60Although I accept that exceptional or unusual circumstances would ordinarily have to be established in order to warrant the consideration of an appeal against an order fixing a hearing date, I think such circumstances are established in the present case. 61I would respectfully disagree with the Chief Judge's analysis of what transpired as recorded in the transcript. In particular, in my view, there was a respectable basis for the contention sought to be made by the application for leave that the judge had expressed a view, before seeing the foreshadowed further evidence, as to the likelihood of the applicant's being successful in obtaining bail. 62Further, his Honour had made statements as to which I think there was a respectable basis for the contention now sought to be argued concerning whether the application entailed criticism of the barrister who had previously appeared for the applicant. Further, the judge had noted before the recusal application was made that the agreed facts in respect of the offences been signed by the applicant, implicitly expressing some scepticism as to the likely outcome of the application in due course. 63Against that background, with great respect to the judge below, in my view his Honour's blanket refusal to entertain or engage in any way with the reasons sought to be stated by Mr Killalea on behalf of the applicant was unfortunate. I should emphasise that the applicant does not suggest actual bias on the judge's part. In my assessment, however, the exchange recorded in the transcript provides a proper basis for the applicant's contention of apprehended bias. Further, it must be recalled that the applicant has now been in custody for 3 months since she was remanded by the judge during the sentencing proceedings. 64If it were established at the hearing of the substantive appeal that a basis did exist for a reasonable apprehension that the judge would not bring an impartial mind to the application to withdraw the plea, the result would be that his Honour should not hear that application. So much was established in the decision of the High Court in R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 263.6. I do not accept that the applicant should have no remedy in that event until after the application has been heard by his Honour. An entitlement to a fair hearing by a judge as to whom there is neither actual bias nor any reasonable apprehension of bias is a fundamental incident of the administration of justice. 65In my view, s 5F(3) affords a remedy for the protection of that entitlement that this Court should not refuse leave to pursue in the particular circumstances of the present case. It is often stated that a warrant for reluctance to grant leave under s 5F(3) is the risk that many such applications will be brought where a claim of apprehended bias is seen to be "colourable, or merely a stalking horse to achieve the result refused by the trial judge such as delay of a scheduled trial" (see Barakat at p 10.) 66There can be no suggestion in the present case that what is sought is to delay the prosecution of the application to withdraw the plea. On the contrary, the applicant having been remanded in custody, it has been made clear by her legal representatives she would seek to have that application determined as quickly as possible. For those reasons, I would grant leave to amend the application and leave to appeal under s 5F(3). 67GARLING J: Like the Chief Judge at Common Law, I express no view as it is unnecessary so to do on the question of whether there was or was not an interlocutory judgment or order in this case sufficient for the purpose of s 5F of the Criminal Appeal Act 1912. 68The substantive matters relied upon in this Court for his Honour to recuse himself are not matters which are sufficient, in my opinion, to support a grant of leave to appeal under s 5F. No question of general principle arises. 69However, it is open to the applicant to renew and be allowed to fully develop an application for recusal to his Honour on the basis that, not as a general rule but rather in the particular circumstances of this case his Honour ought not hear and determine the application for the applicant to withdraw her plea. Any other basis for recusal also remains open. 70Accordingly, I agree with the Chief Judge at Common Law that leave to appeal ought be refused. 71McCLELLAN CJ at CL: That will be the order of the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2013