Court of Appeal Supreme Court New South Wales Medium Neutral Citation: B v Director of Public Prosecutions [2014] NSWCA 232 Hearing dates: 8 July 2014 Decision date: 21 July 2014 Before: Beazley P at [1]; Barrett JA at [67]; Tobias AJA at [78] Decision: 1. Order that publication of the name, and disclosure of other information tending to reveal the identity, of the applicant (who may be referred to by the letter B), the applicant's former wife, or the complainant be prohibited; 2. Order that the decision of Hosking ADCJ given on 21 November 2013 be quashed and the matter be remitted to the District Court for redetermination in accordance with law. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - appeal from the Local Court to the District Court in respect of a conviction for an offence under the Public Health Act 1991, s 13 dismissed - whether jurisdictional error established ADMINISTRATIVE LAW - procedural fairness - bias - apprehended bias - whether a bias or apprehended bias - observation not supported by evidence - whether observation matter of judge's personal opinion - whether observation available as a matter of common experience - whether relief should be granted - matter remitted to the District Court Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 District Court Act 1973 Evidence Act 1995 Public Health Act 1991 Supreme Court Act 1970 Cases Cited: ACN 070 037 599 Pty Ltd v Larvik Pty Ltd [2008] QCA 416 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 Antoun v The Queen [2006] HCA 2; 80 ALJR 497 Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 Cole v Lawrence [2001] NSWSC 92; 33 MVR 159 Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Elias v Director of Public Prosecutions [2012] NSWCA 302 Fordyce v Fordham [2006] NSWCA 274; 67 NSWLR 497 Fox v Percy [2003] HCA 22; 214 CLR 118 Garde v Dowd [2011] NSWCA 115 Gray v The State of Western Australia [2010] WASCA 114 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 Perpetual Trustee Co Ltd v CTC Group Pty Ltd [2012] NSWCA 252 Rees v Regina [2010] NSWCCA 84; 200 A Crim R 83 Richardson v Shipp [1970] Tas SR 105 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 688 Spanos v Lazaris [2008] NSWCA 74 Yousaf v DPP [2012] NSWCA 397 Category: Principal judgment Parties: B (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: In person (Applicant) H Langley (Sol) (First Respondent) Solicitors: In person (Applicant) Director of Public Prosecutions (NSW) (First Respondent) File Number(s): CA 2013/366747 Decision under appeal Jurisdiction: 9101 Before: Haesler DCJ; Hosking ADCJ File Number(s): 2012/386507 Judgment 1BEAZLEY P: The applicant seeks judicial review of the decision of Hosking ADCJ given on 21 November 2013 dismissing an appeal against his conviction in the Local Court of an offence under the Public Health Act 1991, s 13(1). A person is guilty of an offence under that section if the person knows that they suffer from a sexually transmissible medical condition and has sexual intercourse with another person and fails to inform the other person of the risk of contracting a sexually transmissible medical condition. The applicant also seeks judicial review of the decision of Haesler DCJ of 4 October 2013 refusing leave to adduce fresh evidence and further refusing leave to cross-examine witnesses in the appeal. 2The applicant was convicted of the offence under the Public Health Act, s 13(1) in the Local Court at Campbelltown after a contested hearing in which he was represented by a solicitor. The complainant, being a person with whom the applicant had been in a relationship for over two years, and the applicant's former wife gave evidence and were cross-examined. The applicant also gave evidence and was cross-examined. 3Having regard to the nature of the offence with which the applicant was convicted in the Local Court and the stipulation in the Public Health Act, s 37 that such proceedings are to be heard and determined in the absence of the public, the Court should make an order prohibiting publication of the name, and disclosure of other information tending to reveal the identity, of the applicant (who may be referred to by the letter B), the applicant's former wife, or the complainant. The order is made pursuant to the Court Suppression and Non-publication Orders Act 2010, s 7(a) on the ground that it is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)) and that it is necessary to avoid causing undue distress or embarrassment to a party and witnesses in criminal proceedings involving an offence of a sexual nature (s 8(1)(d)). 4A number of documents were tendered in evidence, including the applicant's electronically recorded interview (ERISP), given on 28 November 2012 to Detective Senior Constable Perry. Objections were successfully taken by the applicant's solicitor to portions of the record of interview. 5Statements given to the police by the complainant, a print-out of a number of Facebook messages sent by the applicant to the complainant after she had made a complaint to the police and a statement by the applicant's former wife were also tendered. Objections were taken to portions of these documents by the applicant's solicitor. 6The applicant was found guilty of the offence and fined. 7The applicant appealed against his conviction to the District Court pursuant to the Crimes (Appeal and Review) Act 2001. An appeal under that Act is by way of rehearing: see s 18(1). Fresh evidence may be given but only by leave if the Court is satisfied that it is in the interests of justice to do so: s 18(2). 8Section 18(1) is subject to s 19. Section 19 provides that the District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied that there are substantial reasons why, in the interests of justice, a person or persons should attend and give evidence. If a court refuses an application under s 19(1), the court must give reasons for the refusal: s 19(3). In this case, Haesler DCJ gave reasons as required by the subsection. 9A decision on an appeal to the District Court may not be removed by an order into the Supreme Court: see the District Court Act 1973, s 176. The effect of this provision is that an order in the nature of certiorari for error on the face of the record is not available in respect of such a decision. A decision may nonetheless be challenged for jurisdictional error: Yousaf v DPP [2012] NSWCA 397 at [10]-[12]. See also Spanos v Lazaris [2008] NSWCA 74 at [15]; Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18]; Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [133]-[134]; Garde v Dowd [2011] NSWCA 115 at [10]; and [45]; and Elias v Director of Public Prosecutions [2012] NSWCA 302 at [5]. 10In his amended summons seeking judicial review, the applicant raised 15 grounds upon which he claimed an entitlement to relief. Those grounds may be characterised as raising the following issues: (1) An absence of evidence that the applicant did or did not say he had HIV (ground 1); (2) Inconsistencies and inadequacies in the evidence of the complainant raising an issue of her credit (grounds 2, 4, 5 and 6); (3) The admission of hearsay evidence (ground 7); (4) The reliance in the Local Court on evidence (the Facebook messages) in circumstances where the applicant did not know the evidence was relied on and thus could not reply to it (grounds 8 and 9); (5) The acceptance of the evidence of the complainant as credible being based on an out-of-date understanding of societal values (grounds 10 and 11); (6) A failure to understand the nature of the matter upon which the judges were adjudicating, believing the matter was a criminal matter whereas it was a prosecution under the Public Health Act (grounds 12-14); (7) Bias in that the judges had preconceived perceptions about people living with HIV so that they would have found him guilty regardless of the evidence that was adduced (grounds 15 and 16). 11I will deal with each issue as I have grouped them above in turn. It should be noted that there was a slight misnumbering of the grounds and there was in fact no ground 3. It should also be noted that was some overlap of the complaints made under the issues I have numbered 5, 6 and 7. Issue 1: an absence of evidence that the applicant did or did not say he had HIV (ground 1) 12There are several obstacles in the applicant's path in seeking to make out this ground. First, a failure of a prosecution to adduce evidence to satisfy a charge does not give rise to jurisdictional error. Such a failure, if made out, would require that the prosecution be dismissed. However, whether or not there was evidence to establish that the person was guilty of the offence charged is a matter within jurisdiction. In this case, the evidence of the complainant and the applicant was in direct conflict. It was a matter for the court on the hearing of the appeal to the District Court, being the decision subject of review by this Court, to determine whether the evidence was sufficient to satisfy the charge. 13Secondly, for the Court to uphold the allegation in ground 1, it would be necessary for the Court to have regard to the whole of the evidence. It may only do so if what is alleged constitutes jurisdictional error: see Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. Otherwise, the Court is confined to the "face of the record", including the extended meaning of that term for which the Supreme Court Act 1970, s 69(4) provides: see Craig v The State of South Australia [1995] HCA 58; 184 CLR 163. In the usual case, the question whether there is evidence to establish that a person had been guilty of an offence is a matter within jurisdiction. That is the case here. Accordingly, the Court is not entitled, for the purposes of the issue raised in ground 1, to have regard to the evidence in the case. 14In his oral submissions, the applicant indicated that, as framed, this ground was wrongly expressed. His complaint was that the lower court had failed to take into account that the complainant was not HIV positive. The applicant agreed that this complaint was interlinked with the grounds in what I have characterised as issues 6 and 7. To the extent relevant, this submission will be considered in conjunction with those grounds. 15Accordingly, ground 1 should be rejected in the terms in which it pleaded. Issue 2: inconsistencies and inadequacies in the evidence of the complainant raising an issue of credit (grounds 2, 4, 5 and 6) 16The acceptance or rejection of evidence, including where issues of credit are raised, is a matter quintessentially within the jurisdiction of the court. No jurisdictional error has been established in respect of this issue. Grounds 2, 4, 5 and 6 should be rejected. Issue 3: the admission of hearsay evidence (ground 7) 17This ground related to a telephone call the applicant's wife made to the complainant, which, according to the complainant was the source of her information that the applicant was HIV positive. The telephone call occurred after the complainant had ended the relationship. 18According to the statements of the complainant and the applicant's former wife, there was a person in the background to whom the complainant called out when his former wife raised the question of his HIV status with the complainant. The applicant complained that this evidence ought not to have been admitted for a number of reasons. He complained that that person was not called to give evidence to corroborate the accounts of those two witnesses. 19The evidence of the phone call was admissible: Evidence Act 1995, s 63. The complainant and the applicant's former wife each gave evidence of the conversation. It is not necessary that witnesses to a conversation be called for the evidence to be admissible. But in any event, the question of the admissibility of evidence in this case was a matter within jurisdiction. 20The applicant made a second and more serious complaint, namely, that the investigating police officer had coerced and intimidated his former wife into giving her statement. He also contended that the police officer had attempted to obtain statements from other people making adverse comments about the applicant. There was no evidence of this and this aspect of the applicant's complaint must be dismissed. 21It follows that the grounds comprising issue 3 must be rejected. Issue 4: the use of evidence in the Local Court (the Facebook messages) in circumstances where the applicant did not know the evidence was used and thus could not reply to it (grounds 8 and 9) 22As framed, these grounds of review raised a question of procedural fairness, for which material additional to the record of the lower court may be relied upon. 23However, the applicant stated in his oral submissions that he knew about the Facebook records. In fact, the transcript of the Local Court reveals that the applicant had been cross-examined on them. The applicant's complaint was that something new arose about those messages in the judgment of Haesler DCJ. When questioned whether he meant Hosking ADCJ, the applicant stated that he meant the first judge, and confirmed that it was Haesler DCJ to whom he intended to refer. There is no reference to the Facebook entries in either of the transcripts of his Honour's reasons. 24The meaning of a particular Facebook message of 16 December 2012 that the applicant sent to the complainant, "I did try to tell you that I was HIV positive, maybe you didn't hear me", was the subject of submissions before Hosking ADCJ. His Honour dealt with the applicant's submission, albeit rejecting the meaning that the applicant contended the message bore. Contrary to the assertion in these two grounds, there was no reliance on evidence to which the applicant had no opportunity to respond. Grounds 8 and 9 should be rejected. Issue 5: the acceptance of the evidence of the complainant as credible was based on an out-of-date understanding of societal values (grounds 10 and 11) 25The applicant complained that it was apparent from statements made by the judge that he had a discriminatory attitude towards persons who were HIV positive. According to the applicant, this was exemplified by the statement of Hosking ADCJ, discussed below, that no woman "in her right mind" would have unprotected sex with a person who was HIV positive. 26Subject to the extent to which this challenge is dealt with in relation to the allegation of bias raised in issue 7, the contention that this is an out-of-date attitude is an assertion by the applicant of an opinion only. It does not, therefore, establish jurisdictional error. Further, the complaint is raised in relation to the acceptance of the evidence of the prosecution witnesses. As already explained, that is a matter within jurisdiction. Issue 6: a failure to understand the nature of the matter upon which the judges were adjudicating, believing the matter was a criminal matter, whereas it was a prosecution under the Public Health Act (grounds 12-14) 27For this ground to give rise to jurisdictional error, it would be necessary to establish that Hosking ADCJ proceeded with the appeal on the basis it was a criminal matter when he had no jurisdiction to do so. 28A prosecution for an offence created by statute is properly characterised as a criminal matter, notwithstanding that it does not arise under the Crimes Act 1900 or is not a crime under the common law. 29The Public Health Act, s 13(1) provides that a person who knows that they are suffering from a sexually transmissible medical condition is guilty of an offence if, relevantly to this case, they have sexual intercourse with another person unless, before the intercourse takes place, the other person has been informed of the risk of contracting a sexually transmissible medical condition from the person with whom intercourse is proposed and has voluntarily agreed to accept the risk. The section provides for a maximum penalty of 50 penalty units. The conversion of penalty units is provided for in the Crimes (Sentencing Procedure) Act 1999, s 17. The effect of the Public Health Act, s 13(1) is thus to create an offence punishable by law by way of the imposition of a penalty. 30The applicant informed the Court that he had been told by various organisations that a matter was only a criminal matter if a person was not told by a sexual partner of that partner's HIV status and the person had in fact contracted HIV. In this case, the complainant had not contracted HIV. As explained above, that is not relevant to the inquiry required by the Public Health Act, s 13. Section 13(1) creates an offence and provides for a penalty. Whatever the basis was for the information given to the applicant, it was wrong. Being wrong information not provided by the court, it does not give rise to jurisdictional error in the court. 31The grounds raised under issue 6 are rejected. Issue 7: bias in that the judges had preconceived perceptions about people living with HIV so that they would have found the applicant guilty regardless of the evidence that was adduced (grounds 15 and 16) 32The applicant's complaint that the judges had preconceived notions about people living with HIV was based upon the comments of Hosking ADCJ, that he agreed with the remarks of the magistrate about the likelihood (or lack of it) of a "normal person" having unprotected sex when that person knew his or her sexual partner was HIV positive. It will be necessary to analyse his Honour's remarks in the context in which he made them. However, because of his Honour's reference to the magistrate's decision, it is appropriate to refer to those remarks first. 33The magistrate's remarks were made in the context of dealing with the evidence of the applicant and the complainant. The learned magistrate considered that there was an inconsistency between his evidence and what he had said in the Facebook message of 16 December. His Honour then dealt with the evidence of the complainant. He said: "In terms of demeanour of witnesses I was very impressed with [the complainant]. She seemed to me a very large lady, nothing sophisticated in style. A plain looking lady, I say that with due respect to her, trying to describe her record, [sic] what I saw, a plain lady who was perhaps trusting and as I say unsophisticated. But when questioned she was very positive about what she says happened. She denied outright that there was any mention of the virus to her before a sexual relationship. She is not in my view the sort of lady, just looking at her, that would take the risks of having a sexual relationship with a person affected, particularly unprotected sexual relationship [sic]." (emphasis added) 34The learned magistrate then referred to the applicant's evidence that the complainant was a person who was "easily hurt". His Honour continued: "I made note of that, easily hurt, meaning if she were to be told about the true position well she would certainly be hurt that she has had a relationship with a person who is affected." 35The learned magistrate found the evidence given by the complainant to be a true account. 36Although there are aspects of the remarks made by the learned magistrate which are dubious, in that the complainant's appearance seemed to be relevant to his assessment of her demeanour, those remarks were made in the context of determining whether to accept her evidence. It was not inappropriate, in my opinion, to remark that the complainant was an unsophisticated person. Such an opinion can be formed having regard to a variety of factors, including by the way a person speaks, and perhaps to a lesser extent by the manner in which a person presents. 37The magistrate's remark that just by looking at the complainant he could form the view that she was not the sort of person to take the risks of having unprotected sex with a person with HIV would not be a proper use of the advantage a trial judge has in assessing demeanour. However, relevantly for the discussion of the remarks of Hosking ADCJ, those remarks were made in the context of assessing the evidence of the particular witness having regard to her demeanour. In that context, the magistrate made an assessment of the complainant's evidence, noting that she was "positive about what she says happened". 38Hosking ADCJ, in hearing the appeal, read the transcript, the documents tendered in evidence and the reasons of the magistrate, in accordance with the Crimes (Appeal and Review) Act, s 18(1) as explained in Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39. As the applicant's application to have witnesses attend to give evidence on the rehearing in the District Court was rejected, the hearing proceeded on the transcript and the documents tendered. 39In Charara, Mason P pointed out that an appeal under the Crimes (Appeal and Review) Act is not by way of a hearing de novo (the provision considered by the Court in that case has been amended, but not in a way that impacts upon the reasoning of Mason P). His Honour considered that the principles stated by the High Court in Fox v Percy [2003] HCA 22; 214 CLR 118 and Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 applied to an appeal under the Crimes (Appeal and Review) Act. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ stated, at [23]: "On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." (citations omitted) 40In Da Costa v Cockburn Salvage & Trading Pty Ltd, Windeyer J described the task of an appellate court in determining an appeal by way of rehearing. His Honour stated, at 208-209: "... the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred ... [A power to draw inferences of fact and to give any judgment that ought to have been given] does not ... curtail the recognition or respect that an appeal court should accord to the decision of a trial judge." 41Hosking ADCJ, in the course of his judgment, set out the substance of the complainant's statement to the police, her evidence before the magistrate, the answers given by the applicant in his ERISP and the applicant's evidence. His Honour observed, at 6 of his judgment, that the case involved the complainant asserting that the applicant had never informed her of his HIV status and the applicant asserting that he had done so from the beginning of the relationship on more than one occasion. 42His Honour then dealt with the Facebook message. Its full terms were as follows: "Hi sweetie I want to tell you something, I did tell you that I was hiv positive, maybe you didn't hear me i do not know but i did tell you. I love you with all my heart you were and still are my soul mate." 43His Honour referred to the magistrate's assessment of the complainant, referring to the remarks that are bolded in the quoted passage set out above at [33]. His Honour then considered whether the applicant's assertion that he had made it absolutely plain to the complainant that he was HIV positive could be true. This was not the correct test. Rather, being a criminal prosecution, it was necessary for the Crown to prove that the applicant was guilty of the offence charged. Nonetheless, whilst that would appear to constitute an error on the face of the record, as already explained, relief in the nature of certiorari is not available for such error. The question is whether what appeared thereafter involved jurisdictional error and, in this case, an issue of bias because of any preconception or perceived preconception, not based on any evidence, as to how a person might react in a particular situation. 44Hosking ADCJ first stated that his view, like that of the magistrate, was that the complainant was "an entirely credible witness". He next observed that the complainant's evidence was corroborated by the evidence of the complainant's former wife. This was a reference to the evidence of the telephone call. His Honour next considered that the applicant's evidence and the account that he gave to the police "simply does not stand against the message that the [applicant] sent to the complainant". This was a reference to the Facebook message sent on 16 December referred to above at [42]. His Honour rejected the applicant's explanation as to what the words in the Facebook message meant. In his Honour's view, the message was an assertion by the applicant to the complainant that he did tell her about his HIV status, offering, as his Honour considered, a false explanation for her evidence that he did not tell her, that "perhaps she did not hear him". 45His Honour continued: "In my view given the evidence he gave before the magistrate and what he said to the police it simply beggars belief that she could not have heard him because his account was that he made it clear beyond any possible doubt to her and in addition to that I agree with the learned magistrate that no normal woman in her right mind would have unprotected sexual intercourse with a man she knew to be HIV positive." (emphasis added). 46His Honour concluded that "[f]or all those reasons shortly put in my view there is no reasonable possibility that [the applicant] told [the complainant] of his HIV condition". His Honour concluded therefore that in his view, the prosecution had proven its case against the applicant beyond reasonable doubt. 47There are two immediate observations to be made in respect of his Honour's reasoning. First, the magistrate did not make a remark or observation to the effect his Honour stated. As I have explained above, the magistrate's remark, albeit inappropriate, was directed to the complainant and her evidence. The remark made by Hosking ADCJ was made in general terms. It was not based on any evidence in the case. Secondly, and this flows from the point just made, the observation of his Honour was based upon what could only have been his personal opinion. 48His Honour was, of course, exercising, to the extent available on an appeal by way of rehearing, a fact-finding function. In doing so, as with any judicial fact-finder, he was entitled to use the common sense and experience of an ordinary person, but may only do so in accordance with the evidence. It could not be said that his Honour's remark fell within the Evidence Act, s 144 relating to common knowledge. 49The applicant's submission on this issue involved, as I understand it, an allegation of actual bias. Nonetheless, the Court should consider the matter on the basis of both actual and perceived bias. 50Bias is a serious allegation. As Kirby and Crennan JJ in Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 stated, at [117], "[a]ctual or apprehended bias strike at the validity and acceptability of the trial and its outcome". Their Honours were of the opinion, therefore, that if the question of bias were made out, a retrial would be ordered irrespective of possible findings on other issues. As their Honours further remarked, "[e]ven if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias". As applied to a case of judicial review, this would require, as I understand it, that the Court's discretion be exercised by granting the relief available by way of judicial review. 51However, as was pointed out by the Court of Criminal Appeal in Rees v Regina [2010] NSWCCA 84; 200 A Crim R 83, at [20], this directive did not find expression in the judgments of the other members of the Court. In particular, Callinan J, with whose judgment, on the question of bias, was substantially agreed with by the other members of the Court, observed that as the Full Court of the Federal Court had disposed of the matter in that case on other grounds, it had not been necessary for the Full Court to determine the question of bias. 52In Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 Gummow ACJ, Hayne, Crennan and Bell JJ made the following observations in relation to apprehended or the appearance of bias: "31. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied. 32 As the plurality in Johnson v Johnson explained, '[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.' 33 Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias." (citations omitted) 53As these remarks make clear, the test for actual bias is different from the test for apprehended bias. As Gleeson CJ and Gummow J observed in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507, at [72]: "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alterations, whatever evidence or arguments may be presented." 54As was recognised in that case, and as I have adverted to above, judges do not enter upon their decision-making task as if they had no experience of life. Nor are they devoid of opinions. As Gleeson CJ and Gummow J also observed in Jia at [71]: "Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion." 55The authorities make plain that a clear case for actual bias must be made out. As the plurality observed in Michael Wilson & Partners Limited v Nicholls, that would have to be achieved for the most part by reference to the judges reasons and conduct. 56In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 688 at [38] von Doussa J observed that the circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional. That observation ought not to be taken as a binding principle of law. Rather, I would understand his Honour's statement as indicating the difficulty in determining the state of mind of a judge for the purposes of finding actual bias. It reflects, in different words, the observation of Gleeson CJ and Gummow J in Jia at [72], quoted above. 57Given the difficulty in establishing actual bias, I consider that it is appropriate in the first instance to determine whether the applicant has made out a case of apprehended bias. That requires an assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see Michael Wilson & Partners Limited v Nicholls at [31]. 58As I have explained, his Honour's remark was not premised upon the evidence in the case. It was a generalised remark as to how a person would react in a particular situation. It was his opinion that no woman "in her right mind" would do what the applicant said the complainant had done, that is, have unprotected sex with a man who was HIV positive. As a matter of common experience, people react in a variety of ways to different situations, including when personal, emotional and sexual matters are involved. In my opinion, his Honour's remark involved the appearance of a preconception of how a person would react in the circumstances underlying the case. It was not an assessment based on evidence and I do not consider that it could be said his opinion was otherwise susceptible of proof, of which, in any event, there was none. His Honour's remark was not an aside or mere surplusage to his reasons. Notwithstanding that it was the last of the reasons to which his Honour referred, it is apparent from the express words used by him that it was an integral part of his reasoning in accepting the evidence of the complainant. 59In my opinion, a fair minded lay observer, hearing his Honour deliver his judgment in court, or reading his reasons, might reasonably apprehend that his remark revealed a preconception as to how a reasonable woman, not only this complainant, would act if having sexual intercourse with a man she knew to be HIV positive, such that his Honour might not have brought an impartial and unprejudiced mind to the resolution of the appeal. I consider, therefore, that the applicant has established, at the least, a case of apprehended bias and so has made out the grounds involved in issue 7. 60As I have already indicated, the applicant's argument raised a question of actual bias. The test is a high one. There was no conduct in this case of Hosking ADCJ indicative of actual bias. The applicant did complain that the tone of voice of one of the judges was indicative of a view that there was something different about this case from the others that were being heard that day. However, the Court did not have a recording available to ascertain whether that was so and, in any event, as I would understand it, the applicant's complaint in that regard was directed to the hearing before Haesler DCJ. In either case, as I have said, I do not consider there was any evidence of actual bias in the conduct of Hosking ADCJ in hearing the appeal. The bias, if present, was contained in the passage of the judgment under consideration. 61Hosking ADCJ's remark was a statement of an opinion, not supported by evidence and, in particular, not related to the evidence in the case. As I have said, it was not made by way of an aside. It was an integral part of his reasoning leading to his acceptance of the complainant as a witness of credit. On the other hand, the Court must be satisfied that the judge making the decision was so committed to a conclusion already formed, as to be incapable of alteration, whatever the evidence or arguments in the case. 62Although I consider that his Honour's remark was an integral part of his decision, I am not satisfied that it could be said that, because of his stated view, he was not open to persuasion. I have come to that conclusion because the other bases upon which his Honour relied in accepting the complainant as a credible witness were sound. 63The relief a court may grant by way of judicial review is discretionary. If actual bias was established, it would be difficult to refuse discretionary relief, as, at the heart of an allegation of bias, is that the person has not had a trial according to law. A trial according to law is one that is based only upon the facts proved in the case. The same principle applies to an appeal. As has been explained above, on an appeal by way of rehearing, albeit determined on the evidence before the court below and the reasons of the primary judge, the appellate judge is still required to consider, for himself or herself, the effect of the evidence in the proceedings. 64Notwithstanding that I have found that actual bias has not been established, I am of the opinion that a finding of apprehended bias is of such seriousness that the Court should grant relief. As the plurality, Gleeson CJ, McHugh, Gummow and Hayne JJ, said in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, at [7]: "So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined." 65An important factor in my reasoning to the conclusion that relief should be granted is the notion that apprehended bias raises a question of a possibility (real and not remote), not a probability, that the judicial officer "might not bring an impartial mind to the resolution of a question": see Ebner v Official Trustee in Bankruptcy, at [7]. It does not matter that, as a matter of hindsight, it can be seen that the case as determined by the judicial officer was a strong one: Antoun v The Queen [2006] HCA 2; 80 ALJR 497. 66I would therefore propose the following orders: 1. Order that publication of the name, and disclosure of other information tending to reveal the identity, of the applicant (who may be referred to by the letter B), the applicant's former wife, or the complainant be prohibited; 2. Order that the decision of Hosking ADCJ given on 21 November 2013 be quashed and the matter be remitted to the District Court for redetermination in accordance with law. 67BARRETT JA: I have had the advantage of reading in draft the judgment to be delivered by Beazley P. I agree with her Honour's conclusions and reasons concerning Issues 1 to 6 but have come to a different conclusion in relation to Issue 7. 68I am not persuaded that any finding of apprehended bias on the part of the primary judge is warranted. The emphasised words in the extract from his Honour's reasons set out by Beazley P at [45], viewed in their context, indicate no more than a permissible testing, against common experience, of a conclusion independently reached. 69Common experience is habitually taken into account by courts when considering human behaviour. Common experience has been said to suggest: (a) that identification of a person is likely to be more reliable if the witness had in front of him or her a photograph of the person: Perpetual Trustee Co Ltd v CTC Group Pty Ltd [2012] NSWCA 252 at [28]; (b) that identification of a person not known to the witness that is based on a single sighting is potentially unreliable: Gray v The State of Western Australia [2010] WASCA 114 at [8], [13]; (c) that the less importance one attaches to a conversation at the time it occurs, the less is the likelihood that it will be recalled accurately, particularly after several years: ACN 070 037 599 Pty Ltd v Larvik Pty Ltd [2008] QCA 416 at [60]; (d) that drunk persons are likely to become agitated if denied further alcohol: Cole v Lawrence [2001] NSWSC 92; 33 MVR 159 at [65]; (e) that only a very exceptional individual would not show marked clinical signs of intoxication after drinking fifteen brandies: Richardson v Shipp [1970] Tas SR 105 at 118; (f) that indifference, irritation and even outright hostility, as well as love and affection, are natural characteristics of family relationships: Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [39]; and (g) that disputes between neighbours over trees are capable of escalating out of control: Fordyce v Fordham [2006] NSWCA 274; 67 NSWLR 497 at [90]. 70Observations of this kind are, of course, not statements of presumption or of what will or should normally be found. They are no more than touchstones that may be of incidental value in the appraisal of factual circumstances. 71In the present case, the judge gave three reasons for his conclusion that there was no reasonable possibility that the applicant had, as he asserted, made it plain to the complainant, at a point much earlier than that identified in the complainant's evidence, that he was HIV positive. First, the magistrate (who had heard and seen both the applicant and the complainant in the witness box) had formed an opinion that the complainant was a witness of truth and that her evidence was reliable. Second, the complainant's evidence was corroborated by evidence of the applicant's former wife. Third, the applicant's assertion was inconsistent with the particular Facebook message sent by the applicant to the complainant. On that footing, the judge did not uphold the applicant's challenge to the magistrate's finding as to the time at which the applicant told the complainant that he was HIV positive. It was only at the conclusion of the process of reasoning thus exposed that the judge said (incorrectly attributing an identical statement to the magistrate): "... no normal woman in her right mind would have unprotected sexual intercourse with a man she knew to be HIV positive." 72The essential import of that statement was to the effect that a woman of ordinary intelligence living in a community in which there has been widespread public health education on relevant subjects over several decades could not have failed to be aware of the hazardous nature of unprotected sexual relations with an HIV positive man; and that, according to human behaviour indicated by common experience, such a woman could, in the ordinary course of events, be expected to avoid such danger to her own health. 73In Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 419, Mason J said, in relation to a workman using a ladder: "In general it would be easy to draw the inference that the plaintiff would use a safety belt if it were available, that being the course which a reasonable person mindful of their own safety would take." 74Mason J had earlier said that "it was for the plaintiff to prove that he would have used a safety belt, had it been supplied with the ladder". Then, after referring, in the terms just quoted, to the inference that might easily be drawn on the basis of a reasonable person's attentiveness to their own safety, he found that, for reasons emerging from the primary judge's findings, the inference should not be drawn. The outcome suggested by common experience of human behaviour was not the outcome established by evidence of actual events. 75In the present case, a conclusion consistent with the complainant's having acted with attentiveness to her own safety was reached in an unobjectionable way independently of any view about human inclination. Conduct that, as a matter of common experience, the judge saw as consistent with attentiveness to one's own safety was resorted to as no more than a test or check of that independently reached conclusion. 76The judge's statement about what a "normal woman in her right mind" would (or, more accurately, would not) do, although expressed in unfortunately blunt terms, would, in my opinion, not engender in a fair-minded lay observer an apprehension that his Honour had approached the matter at hand according to some impermissible preconception as distinct from a balanced and objective assessment of the material properly before him. 77In my opinion, jurisdictional error is not established and the proceedings in this Court should be dismissed with costs. The non-publication order proposed by Beazley P should, however, be made for the reason her Honour states. 78TOBIAS AJA: I agree with the orders proposed by the President for the reasons she has expressed. ********** 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: 21 July 2014