R v GFE38 [2013] NSWDC 202

District Court New South Wales

Medium Neutral Citation: R v GFE38 [2013] NSWDC 202 Hearing dates: 10 September - 15 October 2013 Decision date: 11 September 2013 Before: Knox DCJ Decision: Judge's associate to be substituted for the duration of the trial Catchwords: CRIMINAL LAW - courts and judges - application to disqualify - complainant known to judge's associate - apprehension of bias - role of judge's associate - public perception - interests of justice Cases Cited: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 R v Fisher [2009] VSCA 100; (2009) 22 VR 343 John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Category: Procedural and other rulings Parties: Regina GFE38 (Accused) Representation: N Williams (Crown) G Walsh (Solicitor for the accused) NSW Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused) File Number(s): DC 2008/60883 and 2008/198689 Publication restriction: Non-publication order in relation to name of complainants

Judgment 1During the opening submissions on the first day of this matter, my associate had sent me a note saying that, having read the arraignment, she became aware that she knew one of the complainants. It appeared that she had had a prior, non-personal connection with one of the four complainants arising from her previous employment as a solicitor. 2I then spoke with counsel, both the Crown and Mr Walsh for the accused, in chambers, to ensure that was not an issue for them or one of them. I suggested a course of action that my associate not be present in court when the relevant complainant gave his evidence - although it was unclear when that would be. That was done in an attempt to ensure that there were no issues in relation to that complainant, the accused or anybody else feeling embarrassed about that prior connection. I should emphasise that my associate has had no subsequent contact with the particular complainant while she has been in this position. 3This morning Mr Walsh has obtained more detailed instructions. He informs me that he has contacted Mr Boulton SC, the President of the New South Wales Bar Association on this issue. Mr Boulten SC has given Mr Walsh some advice in this matter. I am not sure what the content of that advice was but, nevertheless, Mr Walsh having considered that and his position, and having taken instructions from his client, the accused, has made an application that I disqualify myself from this hearing. 4The Crown has opposed the effect of any application which would mean that the trial could not proceed. 5Following that application by Mr Walsh this morning, I have made arrangements to obtain the services of a different associate. The new associate is a permanent associate of one of the other judges in this Court and is with me now. My permanent associate will go and work for that other judge for the duration of this trial. 6While there is a degree of inconvenience about this, I indicated that my overall concern was the interests of justice and the interest of all the parties, including the accused. This accused needs to be confident that the matter can proceed appropriately without any ostensible or other bias and I think that the course of action that I proposed, to obtain a replacement associate, was appropriate. I took the step of calling counsel into chambers so that that course could be outlined, giving Mr Walsh the opportunity to take further instructions. He has informed me that there is no problem with that new arrangement. 7I put these remarks on record and would ask that they be taken out separately. It is not just the accused's concern - and, as I say, I understand his particular concerns in this regard from the appearance point of view - but also because it relates to the administration of the Court and possible public perceptions. 8As far as I can ascertain in the time available, the question of apprehended bias arising out of a judge's associate's prior involvement with a party or witness in a matter, has not been considered in any authority. There is a decision of the Federal Court in John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 where the issue of communications with a judge's chambers - and particularly with an associate - is considered at [22] ff. R v Fisher [2009] VSCA 100; (2009) 22 VR 343 was a case where an associate relayed an improper communication to the judge who revoked the defendant's bail before affording him a sufficient hearing. 9The relevant issues were dealt with in John Holland Rail Pty Ltd v Comcare on the basis of the normal principles of apprehended bias, the point of principle being whether there was any improper unilateral communication to the particular judge. It is a normal part of the duties of court staff - particularly those such as associates who have a personal position reporting to a judge - to assess and manage communications directed to a judge to avoid compromising the judge's impartiality and to ensure that the principles of a fair hearing are maintained. Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 established similar principles in relation to court staff. 10Associates in the District Court of NSW are now employed under term contracts which vest powers of work direction for all practical purposes in the relevant judge. In a criminal trial such as this, an associate has an essential role on behalf of the presiding judge to arraign the accused, maintain court records and undertake certain specified tasks in relation to the jury. The associate is also the link point for communications between the court and practitioners. 11An associate may have an implicit authority on behalf of a judge in at least some administrative respects. That would include, for example, being able to sign various orders and documents or certifying matters on behalf of the judge and other procedural matters. That depends on the practices and procedures of the particular court and the arrangements made with each judge. 12From the public perspective, an associate's position necessarily involves a close working relationship between the incumbent and the respective judge. Depending on the respective personalities, qualifications, prior work experience and arrangements with each particular judge, an associate can have various kinds of input into matters of research and preparation of drafts under the particular judge's supervision. There may be a perception of influence in such circumstances which needs to be acknowledged. 13For these purposes and in this instance, I have assumed that an application to disqualify a judge by virtue of the actions (or perceptions of actions) of his or her associate - and where that associate is involved in a trial or hearing - involves the same principles as apply on an application to disqualify a judge. Those principles are set out in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571. Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, as well as British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283. 14There is no actual bias at all in this instance - it is the perception that is important. Perceptions of fairness in process are all-important in this area. The interests of justice and the appearance of an uninvolved Court with no prior association with or direct knowledge of any relevant matter or person need to be emphasised. While the legal representatives may have originally agreed with my original proposal, the accused does not and, as the person primarily affected, his views need to be acknowledged. 15Accordingly - and to eliminate any issue of ostensible or apparent bias - I have taken the course I have outlined to substitute associates. As I understand it, that course is not opposed by any party. It will also mean that there will be no delays to the trial. Given that there are apparently about thirty witnesses to be called, that is an important consideration. 16The trial will continue on that basis.