Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Murray v R [2015] NSWCCA 75 Hearing dates: 14 April 2015 Decision date: 27 April 2015 Before: Basten JA at [1]; Simpson J at [32]; Adamson J at [34] Decision: (1)Grant the applicant leave to appeal against the sentence imposed upon him in the District Court on 7 August 2013. (2)Allow the appeal and set aside the sentence imposed by the District Court on 7 August 2013 at Wollongong. (3)Remit the matter to the District Court for sentencing the offender, according to law. Catchwords: APPEAL – reasonable apprehension of bias – sentencing – appeal against sentence – shoot with intent to cause grievous bodily harm – guilty plea entered – applicant previously found not guilty by jury for another serious offence – sentencing judge expressed firm view as to applicant's guilt in previous proceedings – application for recusal rejected – whether the judge should have recused himself for apprehended bias APPEAL – sentencing – appeal against sentence – shoot with intent to cause grievous bodily harm – guilty plea on first day of trial – conviction entered – parties proceed on the assumption of utilitarian discount on sentence – no discount awarded – whether lack of notice that no discount will be given constituted denial of procedural fairness APPEAL – sentence appeal – where sentence affected by apprehended bias – whether such decision a nullity – whether invalid order of inferior court can be subject of appeal – whether remittal or re-sentencing appropriate Legislation Cited: Crimes Act 1900 (NSW), s 33A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Criminal Appeal Act 1912 (NSW), ss 5, 6, 12 Cases Cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 Calvin v Carr [1980] AC 574 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Lee v The Queen [2014] HCA 20; 308 ALR 252 Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 State of New South Wales v Kable [2013] HCA 26; 87 ALJR 737 Category: Principal judgment Parties: Adam Scott Murray (Applicant) Regina (Respondent) Representation: Counsel: Mr T Gartelmann (Applicant) Ms G O'Rourke (Respondent) Solicitors: Andrew Harris & Associates (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2012/50862 Decision under appeal Court or tribunal: District Court Date of Decision: 7 August 2013 Before: Conlon DCJ File Number(s): 2012/50862 Judgment 1. BASTEN JA: On 7 August 2013 the applicant, Adam Scott Murray, was sentenced to imprisonment for an extended period. On the first day of his trial he had entered a plea of guilty to a count of discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW). The victim, a young woman, was shot in the face, with a bullet lodging in her brain. Remarkably, she survived. 2. The offence carried a maximum penalty of 25 years imprisonment. The sentencing judge, Conlon DCJ, assessed the objective circumstances of the offending as perhaps not in the worst category of such cases, but nevertheless towards the upper end of the range. He imposed a sentence of 20 years imprisonment with a non-parole period of 15 years. 3. The application for leave to appeal was founded upon two grounds. These were, (a) the failure of the sentencing judge to disqualify himself for apprehended bias, and (b) a denial of procedural fairness in failing to give notice of his intention to refuse any discount for the utilitarian value of the plea of guilty. 4. It is not necessary to repeat the circumstances of the offending in order to deal with those grounds. Indeed, it is preferable that this Court not engage with the sentencing exercise as the appeal should be upheld and the matter returned to the District Court for sentencing. However, it should be added that, in circumstances where the applicant sought to have this Court resentence him, no criticism was made of the reasoning of the sentencing judge, nor of his evaluative assessment of the seriousness of the criminality. Apprehension of bias 1. The original indictment contained two charges, one being a charge of shooting with intent to murder, to which the applicant pleaded not guilty. He proffered a plea of guilty to the alternative charge noted above on the first day fixed for the trial, being 5 February 2013, at which time the prosecution accepted the plea in full satisfaction of the indictment. On that day, the prosecutor indicated that a brief statement of facts had been prepared so that "a conviction can be recorded at this point." [1] That happened. [2] Thereafter, the offender was on remand, bail refused, awaiting sentence. 2. The matter came back before the sentencing judge on the following day, at which time a number of documents were tendered. After further adjournments, the matter came before the Court again on 1 August 2013. In the meantime, the judge had had an opportunity to review the criminal record of the offender. At the adjourned hearing he noted that after serving a non-parole period of five years he had been released on parole on 1 May 2011. He was then charged with an offence committed on 30 May 2011 (of which he was later found not guilty), returned to custody on 30 August 2011 to serve a balance of parole, but was again released on 20 October 2011, [3] some three months before the offence on which he was to be sentenced. The judge, clearly puzzled by this history, but wanting to know his status as to conditional liberty at the time of committing the fresh offence, invited the prosecutor to seek further information from the Parole Board. 3. The sentencing hearing was not completed on 1 August 2013 but was adjourned again so that further documents could be obtained, in particular in relation to the state of the victim following further surgery. 4. The adjournment being agreed, the prosecutor nevertheless proceeded with submissions on sentence, in the course of which the following exchange took place between the Court and the prosecutor (Mr Fox). [4] "HIS HONOUR: … I've just had my associate retrieve from the registry file, which obviously I have to have possession of, the facts in relation to those two matters that he was dealt with in 2007. Now, it is obvious that both of those must have been serious offences when one looks at the sentences that were received and, indeed, they are. And, indeed, the malicious wounding in company – the malicious wounding in company just shows such an element of dangerousness on behalf of the offender. … And then, of course, we have the take and detain. And I'm thinking, having read this now, I've read it before, so I must have imposed those sentences. It, again, is a particularly nasty and vicious offence. This is what's concerning me, Mr Phelan, because you've got this situation where – I mean, he's released on parole, and I've already raised the fact that in the same month he's released on parole he's gone and allegedly committed an offence for which he was charged and went to trial and he was found not guilty of. Now, the jury were not satisfied beyond reasonable doubt of the evidence in that case and therefore he was found not guilty. The evidence in that case, as far as I was concerned, was overwhelming. I am satisfied beyond reasonable doubt that he was the person responsible for that offence. The submission may well be that I can't factor that in, but I mean, you've got a violent offence committed on parole, he goes back into goal and then when he's released on parole again we have this offence being committed. Now that would indicate a real element of dangerousness in relation to this person. And when you look at that over an extended period of time, there would seem to be a real need for the Court to consider the question of his future dangerousness and the risk that he presents to the community. [5] Mr Crown, in relation to that matter for which he was found not guilty, I'm presuming I just have to ignore that. FOX: Technically, yes your Honour. HIS HONOUR: It's a difficult matter. It's a difficult matter because, I mean, that was a case where it just wasn't the jury being dissatisfied in relation to some form of visual identification evidence, and I don't know what was in the jury's mind, but the perpetrator of that offence came in there were gloves on, one of those gloves was left behind and it had his DNA on it. So I take it that I just have to ignore that, but it's difficult when I've sat through and listened to that evidence, about which I had no doubt, and I've actually got to ignore that as one of the factors that might be very significant when the Court is assessing this question of future dangerousness. [6] FOX: Well I think there's sufficient material in the matters that Mr Murray was convicted of back in the mid 2000s that – HIS HONOUR: Well you're probably right. FOX: – give your Honour real concern that here is a man who has a history of extreme violence against a person, involving the use of weapons. In those circumstances, not a gun but a history of violence with a knife at a home and against the person. Your Honour is dealing at the moment with an attack upon a young woman at her home at night time, again in very violent circumstances. It's criminality at the top end, the Crown would be submitting, your Honour." 1. When the matter came back before the Court on 6 August 2013, the prosecutor tendered some further documents outlining the victim's medical circumstances. The following exchange then took place between Mr Phelan, appearing for the offender, and the Court. [7] "HIS HONOUR: All right then thank you, well now does there then need to be any further submissions? PHELAN: There does your Honour. I don't think they'll take terribly long. HIS HONOUR: That's all right. PHELAN: Firstly on instructions your Honour, you made some comment last Thursday about the trial matter where my client was acquitted, the one where I appeared and you presided. HIS HONOUR: Yes. PHELAN: And you asked Mr Crown or you made a comment that there was no doubt in your mind that my client was guilty of that offence and you asked Mr Crown, what am I meant to put that completely out of my mind. HIS HONOUR: Yes and I – and you – PHELAN: Mr Crown said, 'Technically yes' or words to that effect. HIS HONOUR: I agree, I thought the end of that, I thought that was solved, I thought the end of that, I agreed with counsel, that's a matter that just has to be disregarded. PHELAN: Well because of those comments, I'm instructed to ask you to disqualify yourself from hearing the matter any further because of that reason. It's a matter for your Honour obviously. HIS HONOUR: Yes well look I raised that just merely on a question of dangerousness which is something that I have to address in this Court and I have to address it in this Court because of the matters in 2006, the two of them for which he was given sentences. I raised it on the basis that at that time, I was under the impression that if it was the fact that he was out on parole and then committed an offence and was brought back into custody following the commission of that offence, even though he hadn't been tried for it. Now I was – obviously we've clarified that, that that was not the case and you actually brought to my attention the fact that he wasn't charged with that until some later time, possibly after he came back into custody. I can't recall. And it was simply a question as to whether or not that could possibly be said to have any impact on this question of future dangerousness albeit that a jury had found him not guilty on that and I just raised the – the question that although that was the jury's verdict, it seemed to be clearly against the weight of evidence particularly when his DNA was found on the glove of the perpetrator. Counsel have convinced me that that is a matter which then can play no part, I accepted that, it does play no part in my ultimate assessment of what is the appropriate sentence in this matter so I refused any request[] to stand myself aside for that." 1. The ground of appeal raises the question whether the judge was correct in declining to recuse himself on the application of the offender. The principles to be applied by the Court in addressing that question are not in doubt, though their application is not always a straightforward matter. The test is whether a fair-minded lay observer, knowing the circumstances of the case, might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issue to be determined. [8] 2. This test was affirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie. [9] French CJ in Laurie, after referring to the test as articulated in Ebner v Official Trustee in Bankruptcy, [10] continued: [11] "It requires two steps. The first is 'the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits'. The second is an 'articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits'." 1. These steps are readily satisfied in the present case. That which might have led the judge to sentence the offender, otherwise than on the merits, was his own firmly held belief that the offender was guilty of an offence for which he had been acquitted, together with the judge's own articulated difficulty in placing that matter to one side. Secondly, the connection with the sentencing exercise was not in doubt: the charge of which the offender had been acquitted was one involving a violent attack on a person whilst at home, being conduct which, if committed by the offender, would readily give rise to an inference as to his dangerousness. Given the heinous nature of the offending for which sentence was to be imposed, the need to have regard to the protection of the community as a purpose of sentencing, [12] and the important aggravating circumstance of having a record of previous convictions for serious personal violence offences, [13] all combined to make the commission of such an offence, not long before the offending for which he was to be sentenced, highly relevant and detrimental to his interests. 2. Two peripheral issues should be noted. First, although there was a suggestion in the first passage set out above that the judge had sentenced the offender for the 2007 offences, that was neither the basis of the apprehension of bias, nor, indeed, was the correctness of that suggestion known to the parties, nor sought to be checked by them. Secondly, the fact that the judge had sat on a trial of the accused which resulted in an acquittal was not itself relied upon as warranting a reasonable apprehension of bias. Rather, it was the firmly expressed view that, despite acquittal by the jury, the judge was himself satisfied beyond reasonable doubt as to his guilt and the difficulty in putting that view aside. 3. Each case must be addressed on its own facts and the test applied, objectively, by the court before which the question is raised. [14] The issue is certainly not determined by the view expressed by the trial judge. As explained in Laurie in the joint judgment of Heydon, Kiefel and Bell JJ: [15] "A later statement may explain an earlier statement which might otherwise suggest that the judge has made up his or her mind about a matter. However, recourse to the later statement is not for the purpose of ascertaining whether the judge has expressed a willingness or confidence in his or her ability to maintain an open mind. It is assumed that a judge who is conscious of having formed so clear a view that the judge is unlikely to be persuaded from it would not sit to hear the later case. Ex hypothesi, a court reviewing the decision of a judge to sit to hear a case in circumstances where apprehended pre-judgment is alleged, but not actual bias, will be reviewing the decision of a judge who is confident of his or her ability to decide the case impartially." 1. In Laurie, the fact in issue had already been the subject of a finding by the trial judge in earlier, related, proceedings. As the joint reasons said, such a view was to be contrasted with "the incautious remark or expression of a tentative opinion". [16] The present case does not fit precisely into either category. Judge Conlon had not himself been determining an issue when hearing the earlier trial: the question of guilt had been for the jury, not for the judge. On the other hand, he revealed, not inappropriately, that he formed and retained a clear view as to the offender's guilt, not a tentative opinion or an opinion inaccurately conveyed by an incautious remark. 2. Reading the whole of the relevant material, with particular reference to the passages set out above, a lay person sitting in the court might well have considered that the judge might not be able to put his recent experience of the applicant firmly out of his mind in considering the appropriate sentence, despite his affirmed intention to do so. These circumstances required the judge to step aside and allow the applicant to be sentenced by another judge. There was no question of urgency: the sentencing process had already proceeded in a somewhat desultory fashion, though the delays were for understandable reasons. No great inconvenience would have been caused by a further delay, to allow the matter to be listed before another judge of the Court. 3. Ground 1 should be upheld: the sentence imposed must be set aside. Procedural fairness 1. The second ground of appeal was concerned with the refusal of the sentencing judge to allow any discount for the utilitarian value of the guilty plea, which avoided the need for a trial. Although a court "must take into account" the fact that the offender has pleaded guilty, when passing sentence, [17] it was common ground that a trial judge might, in appropriate circumstances, decline to allow a discount. Nor was it suggested that this was a case in which the judge necessarily erred in declining to reduce the sentence on account of the guilty plea. Rather, the complaint was that such a course was quite unusual and that if minded to adopt that approach, the judge should have given forewarning to the parties so that each (and in particular the offender) had an opportunity to make submissions as to why that course should not be adopted. 2. Although reference was made to Parker v Director of Public Prosecutions, [18] this case did not fall squarely within the principle enunciated in that decision. That case involved a resentencing on appeal when the District Court judge had imposed on the appellant a more severe penalty than that imposed at trial, a course within his power, without alerting the appellant to the possibility that he might take that course. Nor is it necessary to decide in the present case whether the established practice of granting a reduction for a plea of guilty would, by itself, be sufficient to render denial of a reduction unfair where a warning was not given. This case has additional features. 3. The first additional feature was that the prosecutor provided written submissions prior to the final day of the sentencing hearing [19] in which he expressly stated that: "A discount for the guilty plea in the vicinity of 10-15% is appropriate in the circumstances of this case." That statement followed an account of the history of the proceedings from charge to trial. 1. Secondly, that view was reiterated by the prosecutor in the course of oral submissions on 1 August 2013. [20] Thirdly, counsel for the offender expressly noted the concession by the prosecutor, limiting his submission to the proposition that, the charge itself having been changed at a late stage, 15% was the appropriate reduction. [21] 2. The matter clearly proceeded before the sentencing judge on the basis, not merely that a reduction was appropriate, but with a measure of agreement as to the extent of the reduction. It goes without saying that the judge was not bound by the approach adopted by the parties; nevertheless, the parties were entitled to act on the basis that, upon what might have been considered an uncontroversial matter, a warning would have been given were the judge considering departing from the common and conventional approach. 3. Assuming that the Court were persuaded that some reduction was appropriate and assuming that the sentence was otherwise unaffected, the sentence might be reduced by between two and three years. Self-evidently, that is not an insignificant period; it would also affect the non-parole period proportionately. If this were the only error, it would warrant a grant of leave to appeal. 4. Again, if this were the only issue, it might well be appropriate for this Court to determine for itself what reduction, if any, should be allowed. However, it is not the only issue: the conclusion that, because of a reasonable apprehension of bias, the judge should not have determined the matter, there has been no proper and regular sentencing. Just as cases where the judgment affected is a conviction do not engage the proviso with respect to a substantial miscarriage of justice, so, with respect to sentence, no question arises as to whether the Court considers that no less severe sentence was warranted at law, for the purposes of the Criminal Appeal Act 1912 (NSW), s 6(3). 5. In Lee v The Queen [22] the High Court stated: "In Wilde v The Queen, [23] Brennan, Dawson and Toohey JJ held that the common form proviso has no application where an irregularity in the trial process has occurred 'which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.' Their Honours were referring to a criminal trial which was fundamentally flawed. Deane J [24] said that '[t]he fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law', and the proviso did not negate this principle. In a case where impropriety or unfairness permeated or affected a trial to an extent where it ceased to be a fair trial according to law, an appeal court could not dismiss an appeal on the basis that there had been no substantial miscarriage of justice. In Jago v District Court (NSW), [25] his Honour referred to the circumstance where irregularity in proceedings was such that the trial 'has been rendered unfair or has lost its character as a trial according to law.'" 1. The applicant is entitled to be sentenced according to law. The sentencing process having been flawed in a fundamental respect, that has not yet happened. The matter should be remitted to the District Court to allow that process to be validly undertaken, following which the applicant will have the usual right to seek leave to appeal, if grounds are available. Amended notice of appeal 1. A question was raised in the course of the hearing of the appeal as to whether the applicant needed to amend his notice of appeal. He sought leave to do so to add a ground that "the sentence imposed was unreasonable or plainly unjust." It is not necessary to address that ground, nor indeed to grant leave to amend. The underlying basis for the application appears to have been a concern that if the applicant were successful on ground 1, there would have been no valid sentencing process and therefore nothing to appeal from. How the proposed amendment would vary that situation was by no means clear. In any event, the presumption was based on a fallacy. As pithily explained by Gageler J in State of New South Wales v Kable: [26] "A judicial order of any court, whether superior or inferior, is valid and effective if it is made within jurisdiction. Any judicial order, whether of a superior court or an inferior court and whether made within or without jurisdiction, is a judgment, decree, order or sentence from which an appeal may lie to the High Court under s 73 of the Constitution and, where such an appeal lies, a judicial order made without jurisdiction may be set aside by the High Court in determining the appeal." 1. The District Court of New South Wales is not a superior court of record. As Gageler J further pointed out: [27] "There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court. Another is that the order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it." 1. There was no suggestion that an invalid order of an inferior court cannot be the subject of an appeal. As Lord Wilberforce noted in Calvin v Carr, [28] in discussing whether a decision made contrary to procedural fairness was void, "where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent." That passage was cited by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [29] stating: "The tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of the need to treat a decision as having at least sufficient effect to ground an 'appeal' or other legal proceedings." 1. The characterisation of the decision in the present case as a nullity or void would be equally distracting. There is no doubt that, having been convicted and sentenced, the applicant had a right to appeal "with leave of the Court against the sentence passed on the person's conviction", pursuant to s 5(1)(c) of the Criminal Appeal Act. Section 6(3) states what the Court may do on an appeal against sentence: it does not restrict in any way the grounds upon which an appeal may be brought, nor does it expose the full extent of the orders available to the court. Orders 1. The Court should make the following orders: (1) Grant the applicant leave to appeal against the sentence imposed upon him in the District Court on 7 August 2013. (2) Allow the appeal and set aside the sentence imposed by the District Court on 7 August 2013 at Wollongong. (3) Remit the matter to the District Court for sentencing the offender, according to law. 1. SIMPSON J: I have read in draft the judgments of Basten JA and Adamson J. I agree with Basten JA that there is substance in both grounds of appeal, and that the sentence imposed involved a denial of procedural fairness which calls for it to be set aside. 2. Although I have not (and no other member of the Court has) concluded, within the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW), that "some other sentence, whether more or less severe is warranted in law and should have been passed", s 12(2) of the same Act permits the Court to remit "a matter or issue" to a court of trial for determination. I agree that that is the appropriate course to take in this case. 3. ADAMSON J: I have had the benefit of reading the reasons of Basten JA in draft. I agree with the orders his Honour proposes and with his Honour's reasons in [1]-[3], the first two sentences of [4] and [5]-[17]. I would prefer not to express any view on the second ground of appeal as the matter will be remitted for sentence. 4. The amendment to the notice of appeal referred to in [27] was sought and granted during the course of oral argument. I understood that it was sought solely to remove any doubt that the sentence was being challenged. As I am satisfied that this Court has jurisdiction to make the orders sought, I do not consider it to be necessary to address this matter further. ********** Endnotes 1. Tcpt, 05/02/13, p 2(35). 2. Ibid, p 3(5). 3. Tcpt, 01/08/13, p 2(30)-(45). 4. Ibid, p 9(35) -10(41). 5. Emphasis added. 6. Emphasis added. 7. Tcpt 06/08/13, p3(10) – 4(10). 8. Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11], Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31]. 9. [2011] HCA 2; 242 CLR 283. 10. [2000] HCA 63; 205 CLR 337. 11. Laurie at [37]; see also Nicholls at [63]. 12. Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), s 3A(c). 13. Sentencing Procedure Act, s 21A(2)(d). 14. Nicholls at [33]. 15. At [137]. 16. Laurie at [140]. 17. Sentencing Procedure Act, s 22(1). 18. (1992) 28 NSWLR 282. 19. Submissions dated 12 June 2013. 20. Tcpt, p 12(1). 21. Tcpt, 06/08/13, p 4(15). 22. [2014] HCA 20; 308 ALR 252, at [47]. 23. [1988] HCA 6; 164 CLR 365 at 372-373. 24. At 375. 25. [1989] HCA 46; 168 CLR 23 at 56. 26. [2013] HCA 26; 252 CLR 118 at [55] (citations omitted). 27. Kable at [56]. 28. [1980] AC 574 at 590. 29. [2002] HCA 11; 209 CLR 597 at [45]. 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: 27 April 2015