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Court of Criminal Appeal 10 May 2006

MJD V. REGINA

[2006] NSWCCA 151

Sexual offences
CRIMINAL LAW APPEAL APPREHENSION OF BIAS JURY TRIAL COMMENT BY JUDGE IN ABSENCE OF JURY NO APPLICATION TO DISQUALIFY

Citation: MJD v Regina [2006] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 10 May 2006
Judge(s): Hodgson JA; James J; Hoeben J

Background

The appellant was tried before Coorey DCJ in the Parramatta District Court on eleven counts relating to alleged sexual offences against his sister, a 47-year-old woman with mild intellectual disability. The Crown alleged that on four occasions in 2003, the appellant indecently assaulted and then had non-consensual sexual intercourse with his sister at her home in South Granville.

The jury returned guilty verdicts on six counts, including four counts of aggravated indecent assault and three counts of sexual intercourse without consent. The jury could not reach a unanimous verdict on three further counts. The appellant was sentenced to concurrent terms of seven years imprisonment with a four-year non-parole period for each sexual intercourse count, and concurrent fixed terms of twelve months for the indecent assault counts.

The appellant appealed against his conviction and sought leave to appeal against sentence. The conviction appeal raised, among other grounds, an apprehension of bias arising from comments made by the trial judge in the absence of the jury. The sentence appeal relied on the terminal illness of the appellant's adult son as exceptional circumstances warranting a reduction in the non-parole period.

  • Whether comments made by the trial judge in the absence of the jury gave rise to a reasonable apprehension of bias
  • Whether the failure to apply at trial to disqualify the judge constituted a waiver of any such objection
  • Whether any apprehension of bias resulted in a miscarriage of justice under s 6 of the Criminal Appeal Act 1912
  • Whether the terminal illness of the appellant's son constituted exceptional circumstances warranting amelioration of the sentence

Decision

Apprehension of bias: The Court considered the trial judge's comments, made in the jury's absence, which the appellant argued demonstrated apparent bias against the defence. The Court examined whether a fair-minded observer, knowing the circumstances, would reasonably apprehend that the judge might not decide the case impartially. No application to disqualify the judge was made at trial.

Waiver: The Court found that the failure to apply to disqualify the judge at the time was relevant to whether the objection had been waived. Applying principles drawn from cases including Vakauta v Kelly and Ebner v Official Trustee in Bankruptcy, the Court held that a party who, with knowledge of circumstances giving rise to an apprehension of bias, does not raise the matter and instead allows the trial to continue, may be taken to have waived the objection. The Court found this principle applied here.

Miscarriage of justice: Even if the apprehension of bias ground were not waived, the Court was not satisfied that the matters complained of produced a miscarriage of justice. The bias-related ground of appeal was accordingly rejected.

Sentence appeal: The Court accepted that the terminal illness of the appellant's 25-year-old son could, in principle, amount to truly exceptional circumstances capable of bearing on sentence in accordance with the principles discussed in R v Edwards. However, to give that circumstance meaningful effect would have required the imposition of a non-parole period of approximately fourteen months, which the Court found would be so disproportionate to the seriousness of the offending as to be inappropriate. The sentence appeal was therefore dismissed, although the Court expressed hope that arrangements for visits could be facilitated through correctional authorities.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A party who becomes aware of circumstances capable of founding an apprehension of bias but does not apply to disqualify the judge may be taken to have waived the right to raise that objection on appeal.
  • No miscarriage of justice under s 6 of the Criminal Appeal Act 1912 was established on the bias grounds, even leaving aside the question of waiver.
  • The terminal illness of a close family member can, in principle, constitute exceptional circumstances relevant to sentencing, but the weight to be given to such hardship is not unlimited.
  • In dismissing the sentence appeal, the Court of Criminal Appeal held that a non-parole period so short as to be grossly disproportionate to the criminality of the offences could not be justified even by genuinely exceptional personal circumstances.
  • Existing correctional mechanisms, such as transfers between facilities and leave to visit seriously ill family members, are relevant considerations when a court weighs compassionate hardship claims but declines to reduce a sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 20
- Crimes Act 1900 (NSW), ss 61I, 61L, 78A

Cases:
- Antoun v The Queen [2006] HCA 2
- Dickson v Edwards (1910) 10 CLR 243
- Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- R v Balic (No 2) (1994) 75 A Crim R 515
- R v Boyle (1987) 34 A Crim R 202
- R v Edwards (1996) 90 A Crim R 510
- R v Flesch and McKenzie (1986) 7 NSWLR 554
- R v Kearns [2003] NSWCCA 367
- R v T (1990) 47 A Crim R 29
- Smits v Roach [2004] NSWCA 233; 60 NSWLR 711
- Vakauta v Kelly (1989) 167 CLR 568