Citation: Regina (C'Wealth) v Baladjam & Ors [No 6] [2008] NSWSC 755
Court: Supreme Court of New South Wales
Date: 3 April 2008
Judge(s): Whealy J
Background
Nine accused faced charges of conspiring to do acts in preparation for a terrorist act or acts. The trial was at the pre-trial stage when senior counsel for one accused, Moustafa Cheikho, applied for the trial judge to disqualify himself on the ground of apprehended bias.
The basis for the application was that Whealy J had presided over earlier pre-trial applications in the terrorism prosecution of Faheem Lodhi in 2006. In those proceedings, the judge had made rulings concerning evidence from a witness known as Mr Kwon, who had identified a person he trained with at a camp in Pakistan run by Lashkar-e-Taiba (LeT), a proscribed terrorist organisation. The same witness and closely related issues about that identification process were likely to arise in the present trial against Cheikho.
Counsel for Cheikho argued that the judge's earlier findings about the circumstances of Kwon's identification amounted to prejudgment of issues that remained live in the current proceedings, giving rise to a reasonable apprehension of bias.
Legal Issues
- Whether Whealy J's rulings in the earlier Lodhi trial created a reasonable apprehension that he had prejudged issues likely to arise in the current trial
- Whether the apprehended bias test, as applied to a professional judge, was satisfied on these facts
- Whether disqualification was appropriate where earlier judicial decisions (rather than extraneous conduct) were the sole basis for the application
Decision
Whealy J refused the application. His Honour reviewed the relevant passages from his April 2006 Lodhi decision, particularly his findings about the circumstances in which the FBI had shown photographs to Kwon before an ASIO officer conducted a separate identification interview. The judge accepted that similar factual and evidentiary questions would arise in the current matter, but found the two situations were not sufficiently analogous to constitute prejudgment.
The judge distinguished the present application from the High Court's decision in Livesy v New South Wales Bar Association, where two members of an appellate court had already formed and expressed concluded views on the precise factual questions central to the new matter before them. Here, the earlier Lodhi rulings addressed a different set of facts, and no equivalent prior determination of the specific issues in the Cheikho proceedings had been made.
His Honour also drew on the principle, emphasised in more recent authority, that the fair-minded observer must be taken to appreciate that a professional judge is trained to put aside earlier impressions and decide each matter on its own evidence. Whealy J further noted the High Court's caution in Re JRL ex parte CJL against judges too readily acceding to disqualification applications, which can encourage parties to seek a more favourable tribunal rather than genuinely address a risk of bias.
Orders Made
- The application to disqualify the trial judge was refused.
Key Takeaways
- Whealy J held that earlier judicial rulings in a related but distinct trial do not automatically give rise to a reasonable apprehension of bias, particularly where the factual matters previously decided differ from those arising in the new proceedings.
- The apprehended bias test requires consideration of whether a fair-minded observer, aware that the decision-maker is a professional judge bound by training and oath, would reasonably apprehend prejudgment. That observer is not taken to assume a judge cannot put aside earlier views.
- Livesy v New South Wales Bar Association was distinguished on the basis that bias through prejudgment is most acute where a judicial officer has previously expressed concluded findings on the same core factual questions, not merely related ones.
- A caution originating in Re JRL ex parte CJL (Mason J) remains relevant: courts should not encourage a practice where litigants seek disqualification simply in hopes of obtaining a more favourable decision-maker.
- Judicial officers retain a duty to sit and should not disqualify themselves too readily, particularly where the alleged bias flows from prior judicial decisions rather than extraneous conduct or association.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 137, 138
- Criminal Code Act 1995 (Cth)
- Crimes Act 1914 (Cth)
Cases
- Johnson v Johnson (2000) 201 CLR 488
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- Smits v Roach (2006) 227 CLR 423
- Livesy v New South Wales Bar Association (1983) 151 CLR 288
- Re JRL ex parte CJL (1986) 161 CLR 342
- John Fairfax Publications Pty Limited v Kriss [2007] NSWCA 79
- R v Lodhi (13 April 2006, Whealy J)
- R v Benbrika [2007] VSC 560