Supreme Court New South Wales Medium Neutral Citation: Gillies v The State of New South Wales [2014] NSWSC 1350 Hearing dates: 29 September 2014 Decision date: 29 September 2014 Jurisdiction: Common Law Before: Hamill J Decision: (1) I am disqualified from hearing the case: (2) The matter is adjourned until Friday 3 October 2014 before a registrar: (3) The case should receive expedition. Catchwords: COMMON LAW - apprehended bias - relationship with barrister alleged to have behaved dishonestly and with malice Legislation Cited: Limitation Act 1969 (NSW) Cases Cited: Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 Duncan v Ipp [2013] NSWCA 189 Ebner v The Official Trustee (2001) 205 CLR 337 Gaudie v The Local Court [2013] NSWSC 1425 Gillies v DPP [2008] NSWCCA 339 Sun Zhan Qui v The Minister for Immigration (1997) 81 FCR 71 Category: Procedural and other rulings Parties: Darrin Michael Gillies (Plaintiff) The State of New South Wales (Defendant) Representation: Counsel: No appearance (Plaintiff) D F Villa (Defendant) Solicitors: Not represented (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2013/370091 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1On 9 December 2013 Darrin Michael Gillies, the plaintiff, commenced proceedings against the State of New South Wales arising out of certain criminal prosecutions which commenced when a complainant in sexual assault contacted the police on 11 July 2004. 2On 31 July 2006, the plaintiff was charged with five offences. It is unnecessary to go into the detail of the particular charges for the purposes of this judgment. 3On 24 August 2006, the appellant was found guilty by the jury on or in relation to the fifth count on the indictment and not guilty in relation to counts two and three. The jury was unable to agree upon their verdict in relation to counts one and four. 4The plaintiff was sentenced to a term of imprisonment. He brought an appeal against the conviction and sentence, and that appeal was dismissed by the Court of Criminal Appeal. See Gillies v DPP [2008] NSWCCA 339. 5A decision was made by the Director of Public Prosecutions to proceed to retry the plaintiff in respect of what I take to be the original count one on the indictment. 6The retrial in relation to count one was due to commence on 30 September 2009. Before the trial commenced, an application was made by the plaintiff for the presiding Judge to disqualify himself. That application was successful, and the case was adjourned, whereupon it was dealt with by a different judge. Ultimately on 16 October 2009, a jury returned a verdict of not guilty in relation to the retried count. 7The statement of claim brought by the plaintiff sets out in narrative form a number of assertions which might be thought to amount to an allegation that the prosecuting authority, the police, and certain prosecutors were motivated by malice in bringing and continuing the proceedings against him. 8The statement of claim does not distinguish in any meaningful way between the prosecution for the offence in relation to which the plaintiff was convicted and in relation to which both the original finding of guilt and the sentence thereafter imposed still stand, and the count in relation to which he was ultimately found not guilty. 9It goes without saying that, in relation to the matter where the conviction still stands, there could be no successful case of malicious prosecution. However, it is at least technically possible that a successful action could be brought in relation to the offence of which he was acquitted. 10After service of the statement of claim, there was correspondence between the parties, and in particular, a letter of 25 February 2014 in which the lawyers for the defendant (the NSW Crown Solicitors Office) set out in some detail and with commendable fairness the deficiencies it said existed in relation to the statement of claim. The matter came before a registrar, and an order was made that the plaintiff should serve any amended statement of claim by a 14 March 2014. The plaintiff did serve an amended statement of claim. 11The defendant contends that the amended statement of claim is also riddled with deficiencies. Without going into great detail, it is the defendant's contention that any part of the claim based around the earlier conviction is destined to fail for two reasons. 12First, it is statute barred; see s 14 of the Limitation Act 1969 (NSW). Secondly, as I have mentioned earlier, the action cannot succeed in circumstances where the criminal litigation was not terminated with a favourable outcome for the plaintiff; see, for example, Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432. 13Accordingly, the defendant seeks summary dismissal of the proceedings. It also contends that the plaintiff ought not to be permitted to rely on or get leave to rely on the amended statement of claim because it too is destined to fail. 14Finally, the defendant seeks that certain parts of or the whole of the original statement of claim be struck out. That final order is sought in the alternative and against the possibility that the application for summary dismissal is unsuccessful. 15The matter was listed before me today. In advance of the hearing, I had perused some of the affidavit material and noticed that the prosecutor who is alleged to have been motivated by malice and who had continued and conducted the prosecution is a person well known to me. 16I had intended to raise that matter with the plaintiff to see whether or not he would be inclined to make an application to the effect that I am disqualified from hearing the case on the grounds of either actual or apprehended bias. However, when I came on to the bench shortly after 10am, it was brought to my attention that the plaintiff was not in attendance. He had at 8:49 am written to the NSW Crown Solicitors Office in the following terms: "Please be advised that I will not be in court this morning due to a work related accident where my left foot was crushed when 450 kilograms steel plate fell upon my foot." 17The email from the plaintiff was not supported by any doctor's certificate; nor does it make clear whether it was to be the foundation of an application to adjourn today's proceedings, or alternatively that he simply sought to have the matter dealt with in his absence. 18His absence here today has given rise to a particularly difficult situation wherein I have not had the opportunity to advise him of my connection to the Crown Prosecutor or to hear any application that he might have made to the effect that I am disqualified from hearing the proceedings. 19Counsel for the defendant, who has conducted himself with commendable fairness, has indicated that it would be inappropriate for me to summarily dismiss the proceedings in view of the relationship which I disclosed in open court to him and in view of the absence of the plaintiff and his consequent inability to make an application. Counsel faintly contended that it may be appropriate for me to deal with the strike out application and make other procedural directions in relation to the case. 20I am unable to see any relevant distinction between the application for summary dismissal and the application to strike out the pleadings if the circumstance is that I am disqualified from hearing the case on the basis of apprehended bias. 21Both counsel for the defendant and I, on a review of the history of this matter, consider that an application for me to declare myself disqualified is almost inevitable. In these unusual circumstances I decided that I should consider the question before proceeding further. 22Counsel for the defendant has drawn to my attention, again with exemplary disinterestedness, various arguments that would be raised on behalf of the plaintiff if such an application were pursued. On the other hand, he has helpfully reminded me that I am now seized of jurisdiction and that a judge ought not lightly determine not to hear a case. 23Whilst that latter proposition is unquestionably true and has been emphasised in many, if not all, of the relevant cases on apprehended bias, the extent to which I am seized of jurisdiction is somewhat questionable given what transpired this morning. The matter was listed before me, and I raised the issue concerning my relationship with the prosecutor before any material was formally tendered. 24It is certainly true that, in order to consider what I should do, I allowed the defendant to read a number of affidavits and to place before me the exhibits to those affidavits. He also fairly and at my invitation tendered a hard copy of the email which was received by his instructing solicitor at 8:49 this morning. 25On the other hand, and again fairly pointed out by counsel for the defendant, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide: see, for example, Ebner v The Official Trustee (2001) 205 CLR 337. That test, which is sometimes described as the "might might test", is "framed at all stages at the level of possibility": Duncan v Ipp [2013] NSWCA 189. 26The authorities were collected relatively recently by his Honour Johnson J in Gaudie v The Local Court [2013] NSWSC 1425. 27Of course it is not unusual for a judge to have had a professional relationship with the barristers appearing in front of them. Such a situation would almost never result in a judge being forced to recuse themselves. The situation here is rather less usual although probably not unique. 28Both the statement of claim and the proposed amended statement of claim make serious allegations against the prosecutor in question. In particular, it is asserted in the amended statement of claim that the prosecution "was maintained (not once but twice) when known by the Crown Prosecutor and [their] instructing solicitor to be false, and that there was never any evidence to establish the charge brought against the plaintiff". 29That part of the pleading goes on to assert that the particular prosecutor was motivated by malice. 30It is unnecessary for me to record in this judgment the name of the Crown Prosecutor in question; nor is it necessary for me to set out in any great detail the nature of my relationship with that prosecutor. Largely the relationship was a professional one in which I had dealings with her in the course of various criminal trials. 31However, I have also had some social interaction with her, and she was an invitee to various functions that I hosted when I was a barrister. 32As I said in open court this morning to counsel for the defendant, I would consider her to be a friend, at least in the sense that lawyers use that term as between themselves. Having said that, I have never socialised with her in a non-professional capacity. 33I have however certain views as to her professionalism and integrity, and those views are contrary to the allegations made in the statement of claim and in the amended statement of claim. 34Even allowing for the capacity of a judicial officer to put aside such matters, there is always a risk that such feelings will play a subconscious part in the decision making process. See, for example, Sun Zhan Qui v The Minister for Immigration (1997) 81 FCR 71. In that case, North J at [135] emphasised the fact that the holder of prejudice and bias may not even be aware that their decision making is being influenced by that prejudice and bias: "A decision-maker may not be open to persuasion and at the same time not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder.....Decisions made upon assumptions or prejudgments concerning race or gender have been made by many well-meaning judges unaware of the assumptions or preconceptions which in fact governed their decision making. Thus actual bias may exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision-maker believes and says that they have not prejudged a case." 35I have considered the matter at some length over the course of the morning, and I have decided that as a result of my relationship with the Crown Prosecutor against whom allegations have been made in the pleadings and amended pleadings, I am disqualified from hearing the case. 36Accordingly, in my view it is inappropriate for me to make any orders in the present case other than to direct that the matter be referred or adjourned to a registrar to set a date for hearing of this application. 37I make the following formal orders: (1)I am disqualified from hearing the case: (2)The matter is adjourned until Friday 3 October 2014 before a registrar: (3)The case should receive expedition. ********** 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 October 2014