Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ghasemi v District Court of New South Wales [2015] NSWCA 267 Hearing dates: 1 September 2015 Decision date: 01 September 2015 Before: R A Hulme J Decision: Applications refused Catchwords: PROCEDURE – application for temporary stay of sentence proceedings – where judicial review proceedings pending in Court of Appeal – where applicant's prospects of success are poor – where sentence already deferred for over a year - no proper basis established for grant of stay – application refused PROCEDURE – application for temporary stay of sentence proceedings – where applicant proposes to appeal against conviction but notice of appeal yet to be filed – unusual for conviction appeal to be heard prior to sentence – where sentence already deferred for over a year – no proper basis established for grant of stay – application refused PROCEDURE – application for expedition of judicial review proceedings – refusal by sentencing judge to recuse – reasonable apprehension of bias or prejudice – no arguable basis shown for reasonable apprehension of bias or prejudice – expedition application refused Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5 Supreme Court Act 1970 (NSW) ss 65, 69, 75 Cases Cited: Tonari v R [2013] NSWCCA 232 Category: Principal judgment Parties: Behrooz Ghasemi ( Applicant) District Court of New South Wales (First Respondent) Director of Public Prosecutions (Second Respondent) Representation: Counsel: Applicant in person Ms C A Webster SC (Second Respondent) Solicitors: Office of the Director of Public Prosecutions File Number(s): 2015/238088 [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.] Judgment 1. HIS HONOUR: This is an application for a temporary stay of sentence proceedings pending in the District Court and for an expedited hearing of judicial review proceedings in this Court in respect of the refusal by a District Court Judge to recuse herself in sentence proceedings. Background 1. Mr Ghasemi, ("the applicant"), who appears for himself, was found guilty by a jury in the District Court on 25 August 2014 for two offences of supplying a large commercial quantity of prohibited drugs. His former bail was revoked and he has been in custody since. The proceedings on sentence are listed before the trial judge, her Honour Judge Hock, on 4 September 2015. They have been listed for hearing on five previous occasions since the verdict was delivered but have not proceeded. 2. The applicant has filed a notice of intention to appeal against his conviction to the Court of Criminal Appeal. It was filed on 14 November 2014 and on 16 June 2015 its currency was extended to 15 December 2015. No notice of appeal against conviction has yet been filed and from what I understand from what the applicant has told me today, it is not envisaged that any such notice will be filed in the near future. 3. The applicant applied to the Supreme Court for bail pending the hearing of his appeal, such application being refused by McCallum J on 26 February 2015. The applicant then filed a bail release application in the Court of Criminal Appeal which is presently listed for hearing on 26 November 2015. Proceedings in the District Court on 24 April 2015 1. On 24 April 2015, one of the days the sentence hearing in the District Court was supposed to proceed, the applicant raised a number of matters with the judge. He made various complaints about the conduct of his lawyers during the trial, he said that he wanted a stay of the proceedings until his conviction appeal was heard and determined by the Court of Criminal Appeal. He also made an assertion of bias and prejudice on the part of the judge but it was not articulated in clear terms. 2. A notice of motion was filed in court by the applicant on that occasion. It was accompanied by a three page handwritten document which set out a number of matters including an assertion of bias and prejudice against the applicant by the judge and various other complaints about the trial and his legal representatives. He also included allegations of misconduct by prosecution lawyers. In respect of the judge, it is difficult to discern from the document any particular basis for there being an apprehension of bias or prejudice. 3. The judge responded in terms that it was not a realistic option for her to grant the applicant's request to stay the sentence proceedings until his conviction appeal was determined. The flavour of the exchange that went on for some time between the applicant and her Honour can be discerned from the following extract from the transcript. "OFFENDER GHASEMI: Well, your Honour, again there's going to be an objection with your Honour being involved in the sentencing. HER HONOUR: Well the only person who can be involved in the sentence is the presiding Trial Judge unless the presiding Trial Judge has unfortunately died or become incompetent. OFFENDER GHASEMI: Well I believe a relevance of bias and prejudice may be imposed against the accused and they need to be highlighted exhaustively in my application to stay the proceedings now. I'm of the understanding that if there is an apprehension of bias, or an apprehension of prejudice imposed against the accused, then the administrator being the decision maker must seriously consider their position in respect of any proceedings, namely being the sentencing proceedings. I brought up my— HER HONOUR: There is no one else who can proceed to sentence except the Trial Judge, so it's a complete and utter waste of time. There is nobody else – I cannot disqualify myself from sentencing both you and Mr Boulghourjian. So even if you were successful there is nothing that can be done, so it's a waste of time to have a stay proceedings." 1. The exchange between the applicant and the judge continued after that point for some time. It seems from the transcript that the applicant was permitted to put all that he wished to put. However, her Honour's position remained throughout was that she considered that she had no power to grant a stay of proceedings pending the hearing and determination of a conviction appeal. She repeatedly told the applicant that his remedy in relation to his complaints about the trial was ultimately with the Court of Criminal Appeal, which she did not perceive would entertain an appeal against conviction whilst sentence proceedings were outstanding. The proceedings in this Court 1. The applicant initiated proceedings in the Court of Appeal by the filing of a summons on 14 July 2015. In a further amended summons filed on 28 August 2015 he seeks the following orders: 1. Relief by way of a writ of certiorari under s 69 of the Supreme Court Act 1970 2. Declaratory relief under s 75 of the Supreme Court Act 1970 that the decision maker fell into jurisdictional error 3. An order under s 65 of the Supreme Court Act 1970 that the decision maker exercise her duty, namely to afford the Applicant procedural fairness and hear his submissions in support of the recusal of the decision maker on the grounds of bias, and to render a decision as to recusal. 1. The grounds are to the effect that the judge "misconstrued her power to recuse herself"; she "mistakenly denied the existence of jurisdiction"; and she "did not afford the applicant procedural fairness by refusing to hear his submissions in support of recusal". 2. From my reading of the transcript of the proceedings before the judge on 24 April 2015, it seems quite clear that at no stage did the applicant articulate any basis upon which there could reasonably be perceived to be bias or prejudice on the part of the judge. As a consequence and although her Honour allowed the applicant to make such submissions as he wished, it is little wonder that the judge saw no basis to entertain an application to disqualify herself. 3. The point of all this is to say that on the materials before me today on the notice of motion seeking an expedited hearing and a stay of the sentence proceedings, that there is a real question about the applicant's prospect of success in the primary proceedings in this Court. Submissions on the motion 1. During the course of the hearing today I endeavoured to have the applicant focus upon two issues. One was the basis upon which he would contend that the sentencing judge should recuse herself on the basis of there being a reasonable apprehension of bias or prejudice and the other was why he contended that there should be a deferral of sentence until such time as his appeal against conviction as presently proposed, has been heard and determined. 2. In relation to the first of those points, the applicant made lengthy oral submissions supported by a number of lengthy documents. It is not necessary nor appropriate to endeavour to encapsulate each and every one of the points that he sought to make but the flavour of them can be perhaps understood by a review of some of them. 3. It should be acknowledged that the applicant's contention that there is perceived bias on behalf of the judge arises not only because of things that occurred at the proceedings before her Honour on 24 April 2015, about which the summons in this Court seems to be concerned, but also concerns matters that arose during the course of the trial. It seems to be the applicant's case that there had been a continuing course of perceived bias and possibly pre-judgment by the judge during the trial and extending into the phase of the proceedings on sentence. 4. Amongst the points that the applicant sought to make to establish that there was a basis for there being a reasonable apprehension of bias, he referred to the judge having rejected a question and given a direction to the jury during the course of the trial concerning a practice of the courts of allowing discounts on sentence to those who provide assistance to authorities. The transcript of the trial concerned with that issue was tendered. What the judge said to the jury, on its face, does not seem to have been erroneous. 5. Another point was that her Honour indicated that if a recording of an apparently secretly recorded conversation between the applicant and police officers was tendered, she might rule that it was inadmissible. That was a matter for counsel for the applicant to pursue by way of argument as to its admissibility but it was apparently not pursued. How that is said to support a contention of apprehended bias is not immediately clear. The submissions made by the applicant in relation to the point were far from clear as well. 6. Another point he raised was that the jury asked a question in which they sought either the complete recording or the complete transcript of the so-called secretly recorded conversation but the judge refused to comply with that request. She did so, according to page 1210 of the trial transcript, apparently on the basis that the full conversation was not in evidence and so she could not comply with the jury's request. She did, however, tell the jury that parts of the conversation had been adduced in evidence and relevant passages of the transcript could be made available to the jury if they so desired. There is nothing erroneous about a judge responding to such a question in such a form. 7. Another point was directed to a passage in the summing up, apparently at page 7, where the judge directed the jury that the so-called secretly recorded conversation, or the parts of it that were before the jury, were only relevant in relation to the case concerning the applicant and not in respect of the case concerning the co-accused with whom the applicant stood trial. The applicant said that in the course of giving that direction the judge referred to police being trained investigators who charge people and put them before the courts. It is not clear why this might give rise to a perception of bias. 8. Another point was that on 17 December 2014, during the course of the post-conviction proceedings, an application was made to the judge to issue a certificate pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to the effect that the case was a fit one for appeal against conviction. The judge refused that request. There is nothing unusual about that. 9. Another point was that on 5 August 2014 the jury apparently arrived wearing items of clothing which were blue and the judge, according to the applicant, greeted the jury as follows: "Good morning, ladies and gentlemen, a sea of blue today". It was contended that the jury, by wearing the colour blue, was showing support for the police and that her Honour, by her greeting, condoned that. There seems to be an element of speculation in this. 10. Generally in relation to the proceedings on 24 April 2015 and 5 June 2015 it is contended that in the course of refusing applications for a stay of the sentence proceedings and bail (the latter it seems on 5 June 2015), her Honour denied the applicant procedural fairness, demonstrated pre- judgment and gave as a reason for refusing the stay something that the applicant asserted was erroneous in that she misapprehended that the application was only for a temporary stay and not a permanent stay. 11. The applicant tendered on the application today a series of documents in addition to certain extracts from the trial transcript. I indicated during the course of the hearing that I have not read all of the documents. They are lengthy, discursive, and do not appear at a glance to be of assistance in resolving the matters that I need to consider today. 12. He also tendered the document entitled "Transcript of Secretly Recorded Conversations". I did not read that as no basis appeared to me to have been established for why a reading of that document was relevant to today's applications. 13. In relation to the second issue, that is why the sentence proceedings should be deferred, there are two aspects. The first is the basis upon which it was put to the judge in the District Court that the sentencing should be deferred until he has pursued his proposed appeal against conviction in the Court of Criminal Appeal. The second is that sentencing should be deferred until the judicial review proceedings have been determined. 14. In relation to the judicial review proceedings, a relevant matter to consider in deciding whether there should be a temporary stay is the applicant's prospects of success. From what he has told me today about the various matters he would rely upon, I can only assess such prospects as being poor. 15. In relation to the first basis, Mr Ghasemi contends that he has extraordinarily strong prospects of success in having his convictions set aside. I did not consider it necessary to go into the detail of that and was prepared to assume that to be the case for present purposes. But the problem for the applicant is that it is most unlikely that the Court of Criminal Appeal would see any basis to hear and determine such an appeal, whenever it might be filed, whilst sentence proceedings are outstanding. In rare cases that is appropriate. For example, it occurred in Tonari v R [2013] NSWCCA 232, where it appeared that there was a fundamental defect in the indictment. It was only noticed during the course of sentence proceedings. Johnson J observed (at [2]) that the circumstances of the Court hearing a conviction appeal prior to sentence were "unusual". His Honour further observed: "[5] The fact that the Court has proceeded to hear and determine the present appeal should not serve as any encouragement to adopt this procedure in other cases. The ordinary and appropriate course where s 5 [of the Criminal Appeal Act) is relied upon is to avoid fragmentation of the criminal trial and appellate process and for the primary Court to proceed to sentence the convicted person with any appeal against conviction, or conviction and sentence, proceeding thereafter in the usual way." 1. The applicant is in custody, having been refused bail at the conclusion of his trial and again having been refused bail by the Supreme Court earlier this year. Without intending to pre-judge the further application for bail that he has pending in the Court of Criminal Appeal, there is at least a possibility that he will remain in custody for the foreseeable future, at least until any proposed appeal against conviction is heard and determined. Even if an appeal against conviction was filed today, having regard to current listing arrangements in the Court of Criminal Appeal, a hearing date could not be allocated until next year. And given that Mr Ghasemi is not even close to filing a notice of appeal, the prospect is that any such appeal might not be determined until the second anniversary of the jury's verdicts, at best. 2. The sentence proceedings in the District Court have now been deferred for over a year. That is a most unsatisfactory state of affairs. It seems to me that the applicant's best interests would be served by doing what he can to have the sentence proceedings heard and concluded in the District Court as soon as possible and then putting all of his efforts into his pursuit of an appeal against conviction and if necessary, sentence. 3. I indicated earlier that I was prepared to assume for the purpose of the applications before the Court today that Mr Ghasemi has good prospects of success on an appeal against his conviction. That should be understood as something I said for pragmatic reasons. It was not necessary for me to make a detailed assessment of those prospects but I am clearly of the view that no basis has been demonstrated for the unusual course to be taken by the Court of Criminal Appeal to hear an appeal against conviction prior to sentence. A final observation 1. As I earlier mentioned, the applicant's submissions and the documents he sought to provide, some of which I was prepared to receive and some not, were very lengthy and with respect to him, to a large extent unfocused and discursive. I appreciate that he is doing his best in representing himself in these proceedings, although I note that he has a person appearing apparently as amicus behind the scenes. But it is quite obvious that any prospect of him being successful in any proceedings would be enhanced if he were to be legally represented. Conclusion 1. There does not appear to me to be any principled basis upon which to stay the sentence proceedings either pending the judicial review application in this Court or pending the hearing of an appeal against conviction. Nor does there appear to me any proper basis to order expedition of the hearing of the judicial review proceedings. 2. For those reasons the applications are refused. ********** 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: 03 September 2015