District Court New South Wales

• Medium Neutral Citation: Regina v CUR24 [2011] NSWDC 177
• Decision date: 16 September 2011
• Before: Judge Michael Finnane QC

Decision

Application Refused

• Catchwords: CRIMINAL LAW - Courts and Judges - Application to Disqualify - Apprehended Bias.
• Cases Cited: Barton v Walker [1979] 2 NSWLR 740; John Fairfax Publications Pty Ltd v District Court of NSW & Ors (2004) 61 NSWLR 344; SKA v the Queen [2009] NSWCCA 186; [2011] HCA 11; Johnson v Johnson (2000) 201 CLR 488; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Zanatta v McCleary [1976] NSWLR 230; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Newcastle City Council v Lindsay [2004] NSWCA 198; Timmins v Gormley [2000] 1 All ER 65; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; Vakautu v Kelly (1989) 167 ALR 568; Branko Balic (no 2) (1994) 75 ACrim R 515; Fitzgerald v DPP (1991) 24 NSWLR 45; re JL ex p CJL (1986) 161 CLR 342
• Category: Interlocutory applications
• Parties: R v CUR24
• Representation: Mr. B. Hughes for the Crown; Mr. P. Boulten for the Accused
• File Number(s): 2008/55729; 2009/192967

APPLICATION

Preliminary matters :

1 Application has been made on behalf of CUR24 that I should disqualify myself from embarking upon his sentencing for child sex offences of which he was convicted by a jury and of embarking upon a trial of CUR 24 for child sex offences unrelated to those of his first trial. The claim is one of apprehended bias.

2 The application was made as a motion supported by an affidavit sworn by Mr Greg Walsh, Solicitor. After embarking on the hearing and deciding that I should deal with the matter and I should give reasons for doing so, I became aware of a decision of the Court of Appeal (Barton v Walker ([1979] 2 NSWLR 740) that casts doubt on the appropriateness of doing so. Indeed, the Court was of the view that the motion was not cognizable. After all, how does a Judge order himself not to do something and how would such an order be enforceable?

3 I also considered whether I should, as O'Brien J did, order that the application be removed from the file because it was not cognizable. However, what I have decided to do is to deal with the matter on its merits and dispose of the controversy. I gratefully accept the reasoning of the Court of Appeal, however, and because of this, this decision is not entitled, as a decision on a motion regularly brought would be, in the name of the Queen and the accused. I refer to the applicant throughout by a code name I gave him some time ago to protect his identity.

Facts:

4 Before going further with the application, it is important that I should first set out a chronology of the proceedings so far.

5 On 27th September 2010 I commenced the trial of CUR 24, with a voir dire hearing to determine legal issues before the jury was empanelled on 2nd November 2010. Ultimately, on 29th November 2010, the jury convicted him on three charges of indecent assault and on 30th November, 2010 the jury convicted him of a further five charges of indecent assault. He was found not guilty of two charges of indecent assault.

6 After the jury was discharged, a hearing was held on 30th November on the question of bail and following this hearing, I refused bail and CUR24, who had been on bail, was taken into custody, where he still remains.

7 Before this trial commenced, the parties told me that a number of trials, perhaps 4 or 5 would need to be held to deal with the large number of charges that had been laid against CUR24 and I said that I would do all trials, so that there could be consistency in legal rulings and if there were convictions, consistency in sentencing. It was not possible to commence the next trial in 2010 and I directed that it commence on 7th February 2011.

8 On 17th December 2010, the question of sentencing was ventilated, but I decided not to proceed to sentence because it might generate unwelcome and prejudicial publicity. It was not possible, as I saw it to sentence CUR24 and to direct that details of the sentence be suppressed (see John Fairfax Publications Pty Ltd v District Court of NSW & Ors (2004) 61 NSWLR 344)

9 On 7th February 2011, I commenced the second trial with a voir dire hearing. On 21 February 2011 I indicated what evidence I was likely to allow and I gave written reasons for that on 22 February. Mr Philip Boulten SC, counsel for CUR24 told me that he had instructions to apply to the Court of Criminal Appeal for leave to appeal against my decision. That application was made and I understand a hearing was held. So far, no decision has been given by the Court of Criminal Appeal.

10 The question of undertaking a sentence hearing was mentioned before me again on 27th January 2011, the 3rd February 2011, the 11th February 2011 and 25th February 2011, but I did not set down any hearing for sentence as I wanted to see what the Court of Criminal Appeal determined in the application for leave to appeal against my pre- trial rulings

11 The first trial concerned child sex offences against girls but the other trials, I was told, would all concern allegations that CUR24 committed child sex offences against boys when he was a teacher an d a priest at Saint Stanislaus College, Bathurst some years ago.

12 It was apparent at the time of the first trial that the arrest of CUR24 had generated a considerable degree of publicity and during the voir dire proceedings at the second trial it was clear that there were a number of websites that made allegations of a serious nature against CUR24 and against others.

13 Indeed, a great deal of the time occupied in the voir dire for the second trial was devoted to dealing with the question whether any of the likely witnesses and/or complainants and/or tendency witnesses were affected by the pre-trial publicity so that the giving of evidence by them would not be fair.

14 On 15 March 2011, Mr Clive Jeffreys Solicitor was sworn in as a judge of this Court and I attended the swearing in as one of the judges sitting on the bench. At this time, there was no likely hearing before me of any matter concerning CUR24. No sentence date had been fixed, nor was it possible to continue with the second trial.

15 As was customary following a swearing in of a new judge, morning tea was provided to anyone who wished to attend. Normally those attending included the judge and his family, his friends, other judges, other lawyers and administrative and legal staff of the District Court. It was common for Associates to attend and as far as I am aware, anybody who wished to attend, could attend. No formal invitations are ever issued.

16 These morning teas are always informal. There are never any speeches. They are occasions where people present mingle around. Usually, I am present at them for no more than about 15 minutes.

17 The morning tea is always held in a large room on the 21st Floor which is used as a Judges' Common Room. From time to time other receptions are held in this room and sometimes the Judicial Commission of New South Wales organises seminars in this room.

18 Mr Greg Walsh solicitor, attended the swearing in ceremony and the morning tea. He frequently attends these ceremonies and the morning tea after the ceremony.

19 I have known Mr Walsh personally for more than 30 years. When I was a barrister, he would brief me to appear for his clients from time to time. For the most part I appeared in civil cases.

20 Mr Walsh has always a done a considerable amount of criminal law work in his practice and in the few years before 2000, when I became a judge, he developed a considerable practice appearing for Catholic priests and brothers who were charged with child sex offences. At one stage, he frequently briefed Mr Chester Porter QC to appear for his clients. He also briefed other barristers to appear for them and he appeared for some of them directly. To my knowledge he has appeared in such cases in New South Wales, Victoria, Queensland, Tasmania and Western Australia. From time to time, over the years, I have met him on a social basis and have discussed in a broad sense this part of his practice.

21 Within the past few years, he has borrowed from me a set of robes I had kept from my days as a junior counsel, my barristers wig and some jabots so that he could appear as counsel in the Supreme Court of Tasmania in a child sex case involving a priest or a brother. He discussed this briefly with me.

22 After the CUR24 case commenced, I cannot recollect discussing child sex cases with him in any way except perhaps in passing. If I bumped into him in the street, he might mention that he had another case. I have never discussed CUR24 with him at all.

23 I can remember Mr Walsh being present at the swearing-in and at the morning tea ceremony and I recollect him telling me at the morning tea ceremony that he was particularly there because the new judge, like him, was a solicitor.

24 I have considered Mr Walsh's claims about what I said to him at the morning tea but I am unable to agree that I used the words attributed to me, apart perhaps from greeting him on the basis that he was appearing for another paedophile, something that he then confirmed. That greeting was a friendly one. I am absolutely certain I did not tell him that I had a view that all paedophiles should be put on an island and starved to death.

25 It is my memory that some years ago, during the hearing of the paedophile reference at the Royal Commission into the New South Wales Police service, a psychologist was asked by the Commissioner, Wood J, what he thought could be done to rehabilitate paedophiles. My recollection is that he expressed the view that they should all be placed on an island. I have no memory that he considered the island should be a desert island or that they should be starved to death. My memory may be an imperfect one and I have not had access to any Royal Commission transcript to refresh my memory.

26 This view, understandably enough, was rejected by the Commissioner. I did not take this man to be making a serious suggestion that paedophiles should be exiled. Rather, it seemed to me that he was expressing a view that rehabilitation was very difficult. He was engaging in a form of hyperbole. I feel confident that Wood J did not have a view that the witness had a literal view that paedophiles should be marooned.

27 It may be that I recounted to Mr Walsh something of what this man had said but I cannot ever recollect this man talking about starving them to death. That is what makes me confident that I did not at any point express such a view, which I would regard as abhorrent.

28 I think I may have said, "Greg, I heard someone say that what should be done with paedophiles is to put them all on an island", but I doubt that I said this as the second thing I said to him when I met him. It seems probable to me that we said more to one another than what he has deposed to, because my experience of social occasions is that there is a great deal of small talk in even the briefest of conversations.

29 I also have never expressed an opinion to Mr Walsh that all persons charged with paedophile offences are guilty. It is perfectly obvious that many of those who are charged are found not guilty and in the case of SKA v the Queen (reported in [2009] NSWCCA 186; [2011]HCA11), I expressed the view that the accused should not have been convicted at all. This view was rejected by the Court of Criminal Appeal and the sentence I imposed on SKA was doubled.

30 I do not know how Mr Walsh came to the conclusion that I made the comments he attributes to me. I also do not understand how he could possibly believe that I had a personal view that pedophiles should be put on a desert island and starved to death. Whatever was said by me to him was said in passing at a noisy social function. It was not a considered statement of opinion, such as might be expressed by someone at a seminar or in a newspaper article.

31 It seems probable to me that he has misunderstood what I did say. It seems clear that he did not at any time during this brief conversation ask me what I meant or whether I was serious in what I said. At no point did he raise with me my views on sentencing. If he was really concerned by what I said, I would have expected him to have raised it with me.

32 He would have access to the AUSTLII database and I would think he would be aware of all relevant decisions of the Court of Criminal Appeal and the High Court. He would have been aware of the Court of Criminal Appeal decision on SKA v the Queen (supra) since it was delivered on 14th July 2009. Well before he made the current application he would have been aware of the High Court decision in the same matter, since it was delivered on 4th May 2011.

33 Because the application was made to me 6 months after the swearing-in, I find myself in the position where I cannot recollect with any accuracy at all what words passed between us. That is to be expected. Indeed, it would be remarkable if I were to have a memory of words spoken at a chance encounter at a social event 6 months ago. If the application had been made within a few days of the swearing in, it is possible my memory would be better.

34 I hold no view about what sentence I should impose on CUR24. As far as I am aware, no evidence of any substance has been presented to me. No submissions have been made to me and I have not considered the matter at all. I also want to make it plain that I have no opinion on whether CUR24 is or is not guilty of any other offences. The Jury that is empanelled decides that question.

35 When I decided to hear all the trials, I did so on the basis that I expected they would run fairly soon after one another, but that now is not at all possible and I would have to consider whether I preside over any further trials of CUR24. I must retire in 3 years and 5 months. I may well decide to retire earlier and I have doubts that I would want to embark on further trials if there was a real possibility that the trials would not finish before my retirement.

The Law.

36 The argument is advanced that I should discharge myself from sentencing CUR24 and from conducting any further trials of CUR24, because " a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind" to deciding sentence or conducting further proceedings( See Johnson v Johnson(2000) 201 CLR 488)

37 As is said in the headnote to Kwan v Kang [2003] NSWCA 336,

" The element of reasonableness needs to be stressed. (Laws v Australian Broadcasting Tribunal (1990 170 CLR 70). There must be a reasonable apprehension on the part of the fictitious observer that the decision maker's mind is so prejudiced in favour of a conclusion already formed that he or she might not alter that conclusion, irrespective of the evidence or the arguments."

38 It is first of all important to determine what the independent lay observer might reasonably apprehend in the circumstances that obtained. What Mr Walsh observed is not to the point.

39 In my opinion, what an independent lay observer might reason ably have apprehended was that:

The words spoken were uttered between two men who knew one another well enough to greet one another by their first names. The exchanges between them were brief and uttered in a noisy atmosphere where many people were talking at once and people were moving from group to group .

40 Neither Mr Walsh or I at any time mentioned the name of CUR24 or talked in any way about his sentencing or his upcoming trial or the appeal to the Court of Criminal Appeal.

41 Neither of us were talking about any case or any theory of sentencing. What I said in reporting what a man had said some years ago, clearly was not meant to be taken seriously .

42 The words " might reasonably have apprehended" mean what they say - the independent lay observer must be applying reason.

43 In Zanatta v McCleary ([1976]NSWLR 230) the Court of Appeal considered an appeal where the appellants sought to put affidavit evidence before the Court to show that after he had delivered judgment in a civil case, a judge had spoken to a number of lawyers at a function and had told them that he had, with the assistance of the Deputy Sheriff, checked his impressions of the evidence of a medical practitioner by contacting the doctor informally and out of court.

44 The Court of Appeal refused to receive the affidavits.

45 Street C.J said this(232 D-E), inter alia:

" Before coming to the legal significance of the matters advanced on this appeal, some preliminary comment is called for. Passing over the question of the prudence of a judge taking part in a conversation in such terms as are alleged in the affidavits, it is a departure from the dictates of good taste, and a regrettable repudiation of the privilege of professional intimacy for counsel and solicitor, made privy to a confidential, albeit indiscreet, disclosure by a judge to publish to the world at large the sentiments and information thus confided in them......"

46 Samuels J.A (239G -240B) said this:

"The affidavits assert that, in the conversation which they purport to recount, the learned judge not only offered a private exposition of the grounds upon which he determined the factual issues before him, but dilated upon his own experience in support of his opinion. It is, however, unnecessary to decide whether this encounter took place in the terms alleged; and I do not do so. But it would be destructive of the mutual confidence which must exist between the bench and the profession , if social occasions were to be used as a means of recording a judge's private conversation, however imprudent, for the purpose of showing that he has expressed personal views of a particular kind."

47 There is weighty authority for the proposition that the decision of a judge as to whether to disqualify himself is not to be decided upon motions and as a contested question of fact (See Australian National Industries v Spedley (26NSWLR411 at 436 per Mahoney JA) .

48 The reasoning behind what Mahoney JA has said applies with considerable force in the present situation, since the facts are not clear, there is no reference in any of them to any litigant nor to any litigation and all depends on how the facts are construed. This is far from any known case where disqualification for ostensible bias has been raised. In all reported cases,(except two) litigation was actually in progress, the parties were known and the facts were clear.

49 In the two exceptional cases of Newcastle City Council v Lindsay ([2004] NSWCA 198) and Timmins v Gormley ([2000] 1 All ER 65) the judge had written articles indicating a decided view on litigation frequently before her and him) That was not the situation here because I was not at a seminar and was not delivering my considered views on anything

50 I am not suggesting that because there is a social occasion, a Judge cannot indicate bias on his part against a particular litigant, (indeed, see the Fiji case referred to by Mr Boulten) but where no litigant is named or is the subject of any discussion at all, I find it extremely difficult to see the basis on which it is in any way appropriate for lawyers to report parts of a conversation that allegedly occurred 6 months previously during a social occasion and say that by some form of necessary implication, the judge can be understood to have been referring to a particular case.

51 In the present instance, I have already presided over a trial that has led to some convictions of CUR24. That trial finished almost 4 months before the morning tea.

52 The fact is that I have not at any time expressed any opinion about the CUR24. Nor could any remarks of mine at the morning tea be seriously accepted as indicating a bias against child sex offenders of such a nature that any persons charged with such offences could reasonably apprehend I judged them in advance of trial and conviction.

53 I have presided over many trials involving such offenders. I have always left the decision to the jury and have made it plain that I do not attempt to influence their decisions. In the case of SKA(supra), I twice published judgments, once on bail and once on sentence in which I made clear my view that SKA should not have been convicted. I also expressed my distaste about applying to this case a sentence of the severity of the prescribed standard non-parole period

54 Mr Walsh would have been aware of SKA and would have been aware of my careful approach to summing up cases before a jury.

55 If there were any substance in the claims, they should have been made very close to the time of the morning tea. I would then have had some chance of remembering more clearly what was said and the context in which it was said. Waiting 6 months to put on an application of this type and to make it in fact, not on any of the previous mention days, but on the day I had decided I would fix a sentence date, is quite unfair.

56 In Vakautu v Kelly((1989) 167 ALR 568) the High Court had to consider a number of claims that a quite distinguished NSW judge had shown ostensible bias. Part of the claim concerned remarks made during the hearing that some doctors to be called by the appellant were an "unholy trinity. "No objection was taken at the time about these remarks. In his reasons for judgment delivered some time later, the Judge made further critical remarks about one of the doctors, in effect describing his evidence as being negative " as it always is and based as usual upon his non-acceptance of the genuineness of the plaintiff's complaints of pain"

57 The High Court (see Brennan, Deane and Gaudron JJ) held ( p 637) that

" if the above comments made by the learned trial judge in the course of the trial had stood alone, we would have been of the view that the appellant having taken no clearly stated objection to them at the time and having stood by until the contents of his Honour's judgment were known, could not now found upon them in order to have that judgment set aside on the grounds of a reasonable apprehension of bias"

58 If the Judge had not, in his reasons for judgment, made a further series of allegations against the doctors, a finding of ostensible bias would not have been made.

59 The same reasoning applies here and with even more force because the claims are based on unrecorded discussions at a morning tea function 6 months ago. For that reason alone, it would be appropriate to refuse the application.

60 Mr Phillip Boulten S.C has referred me to many cases, including a Fiji case of a Judge indicating at a social function that he would "put away" a particular person appearing before him for sentence. That case has some similarities to Branko Balic (no 2)(1994) 75 ACrim R 515 where a judge was overheard speaking to another judge and forecasting that he would refuse bail to a named person (Balic) then appearing before him, notwithstanding there was no application to do so by the Crown, nor had the Judge given the accused any indication of any intention to do so.

61 The Fiji case and the Balic case are the only cases to which I have been referred of ostensible bias being found as a result of something said informally out of court. Both were cases where the judge made predictions about what he would do to an identifiable person then appearing before him. They are factually different to the present case.

62 In the present application, I am being asked to disqualify myself, not because I expressed any opinion about CUR 24, and in circumstances where I had nothing before me in Court any decision to make about him, but because I expressed intemperate but unquestioned views (if Mr Walsh is correct) in which it is said I advocated illegal exile, torture and murder of paedophiles, something that I deny doing.

63 There are numerous authorities for the proposition that a Judge should not disqualify himself merely because someone asks him to do this ( see for example Fitzgerald v DPP (1991) 24 NSWLR 45; re JL ex p CJL(1986) 161 CLR 342 at 352) As I said when this application was made on 9th September 2011, it would be an easy way out for me to accede to this application, but that is not a proper basis for doing this.

64 I refuse the application because I said and did nothing to indicate any form of prejudgment on my part of any litigation involving CUR24. There was no litigation before me at the time of the morning tea and in my opinion, no lay observer could reasonably apprehend that my mind was affected by bias against CUR24 .

65 I also refuse it, because the application was made too long after the 15th March 2011 morning tea .

66 I order that no mention be made of the identity of the applicant. I permit the media to have access to the affidavit of Mr Walsh, but I order that there is to be no publication of the names of any judges mentioned in the affidavit, other than my name.

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Decision last updated: 21 November 2011