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Court of Criminal Appeal 8 April 2002

Regina v Van HOANG

[2002] NSWCCA 128

Also reported as (2002) 128 A Crim R 422
DrugsPublic order & justice offences

Citation: Regina v Van Hoang [2002] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 8 April 2002
Judges: Ipp AJA, Bell J, Smart AJ

Background

The appellant was convicted in the Sydney District Court of two offences of knowingly taking part in the supply of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offences involved 350 grams and 700 grams of heroin respectively, and each carried a maximum penalty of 20 years' imprisonment.

At the sentencing hearing, counsel for the appellant tendered a psychiatric report. That report recorded the appellant's account that he had expected to receive only around $500 to $600 for his role in the offences.

During submissions, the sentencing judge made remarks to the effect that, over his years on the bench, he had learnt not to believe anything drug dealers said unless it was corroborated, describing them as "notoriously unreliable and dishonest" and including among their ranks liars, cheats and murderers. Counsel submitted this indicated the judge could not bring an impartial mind to sentencing. The judge declined to disqualify himself and sentenced the appellant. The appellant then sought leave to appeal against the severity of the sentences, arguing the proceedings had miscarried due to the appearance of bias.

  • Whether the sentencing judge's remarks gave rise to an apprehension of bias that caused the sentencing proceedings to miscarry.
  • Whether the test for apparent bias from Johnson v Johnson (2000) 201 CLR 488 was satisfied: specifically, whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the sentencing task.

Decision

Bell J, delivering the first judgment, applied the well-established test from the joint judgment in Johnson v Johnson: 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 before him. Her Honour concluded that the judge's remarks clearly satisfied this test.

The judge's statements were not directed at the particular circumstances or credibility of the appellant as an individual. Rather, they expressed a generalised view that all drug dealers are untrustworthy, and nothing they say has any value. This generalisation, applied without reference to the appellant's individual circumstances, was inconsistent with judicial neutrality.

Ipp AJA agreed, emphasising that the comments made it clear that nothing the appellant said would be believed unless independently corroborated. This conclusion was reached on the basis of class membership alone, not on any assessment of the individual. The Court observed that every person is entitled to individualised justice, and the expression that all drug dealers lie is not a mark of judicial impartiality.

Smart AJ agreed with both judgments, adding that while it was open to the judge to flag that little or no weight might be placed on the hearsay material in the psychiatric report, the strength of the remarks effectively foreclosed the possibility of counsel calling the appellant to give evidence. The judge's disposition indicated he intended to deal with the appellant on the basis of general adverse views rather than the specific facts before him.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Matter remitted to the District Court for sentencing afresh before a different judge.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Johnson v Johnson test for apparent bias applies in sentencing proceedings: the question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the task.
  • A judge's expression of a blanket generalisation, that all members of a particular class of accused are liars and cannot be believed, is incompatible with the judicial obligation of neutrality and impartiality.
  • Individualised justice requires that each accused be assessed on their specific circumstances, not on generalised views about the class of offence or offender they represent.
  • Where a judge makes clear that an application for disqualification would be refused and that the accused's remedy lies in the Court of Criminal Appeal, the absence of a formal disqualification application does not preclude the appeal ground.
  • Sentencing proceedings that miscarry through apparent bias will ordinarily be remitted for a fresh sentencing hearing before a different judge.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488