Citation: Regina v CUR24 [2011] NSWDC 177
Court: District Court of New South Wales
Date: 16 September 2011
Judge: Judge Michael Finnane QC
Background
The accused (referred to by the code name CUR24 to protect his identity) had been convicted by a jury of multiple child sex offences following a trial presided over by Judge Finnane. Further trials on related but separate charges were pending, as were sentencing proceedings on the existing convictions. The presiding judge had indicated at the outset that he would manage all related trials to ensure consistency in legal rulings and, if convictions resulted, in sentencing.
On 15 March 2011, Judge Finnane attended the swearing-in ceremony of a new District Court judge and the informal morning tea that followed. The accused's solicitor, Mr Greg Walsh, also attended. Mr Walsh subsequently swore an affidavit alleging that, at the morning tea, Judge Finnane made remarks to the effect that all paedophiles should be placed on an island and starved to death.
The accused's legal team applied for Judge Finnane to disqualify himself from both the pending sentencing and the upcoming trial on the basis of apprehended bias. Judge Finnane decided to deal with the application on its merits, while acknowledging a Court of Appeal authority suggesting such a motion was not formally cognisable, and gave written reasons for his decision.
Legal Issues
- Whether the application to disqualify was procedurally cognisable as a formal motion
- Whether the alleged remarks at the morning tea gave rise to a reasonable apprehension of bias on the part of a fair-minded lay observer
- Whether, even accepting the solicitor's account of the remarks, those remarks amounted to a prejudgment of any matter concerning CUR24
- Whether the application was made within a reasonable time
Decision
Judge Finnane addressed the threshold procedural question first. Relying on Barton v Walker [1979] 2 NSWLR 740, he acknowledged the Court of Appeal's view that such a motion is not formally cognisable, noting the practical difficulty of a judge ordering himself to do or not do something. He nonetheless chose to deal with the substance and provide reasons, treating it as a matter to be resolved on its merits rather than dismissed on procedural grounds alone.
On the factual dispute, Judge Finnane accepted that he knew Mr Walsh personally and had greeted him at the morning tea. He denied, however, that he had made the alleged remarks about exiling and starving paedophiles. He recalled a psychologist making a comparable suggestion during the Police Royal Commission, which he had found unremarkable and had not endorsed. He was emphatic that he had not made any comment expressing a view about CUR24 personally or about the outcome of any proceedings.
Applying the test from Johnson v Johnson (2000) 201 CLR 488, the judge assessed whether a fair-minded lay observer would reasonably apprehend that he might not bring an impartial mind to the proceedings. He distinguished the present facts from cases such as Branko Balic (No 2) and a Fijian authority cited in submissions, both of which involved a judge making specific predictions about what he would do to an identified person in pending proceedings. Here, even accepting Mr Walsh's account, no litigation involving CUR24 was before the court at the time, and no statement was attributed to the judge about CUR24 specifically or about the outcome of his case.
The application was refused on two independent grounds. First, the alleged remarks, even on the version most favourable to the accused, did not constitute a prejudgment of CUR24's litigation. Second, the application had been brought far too long after the morning tea on 15 March 2011, with no adequate explanation for the delay. The judge observed that acceding to the application simply because it was the easier course would not be a proper basis for disqualification.
Orders Made
- The identity of the applicant (CUR24) is not to be published.
- The media may access Mr Walsh's affidavit.
- No publication is permitted of the names of any judges mentioned in the affidavit, other than Judge Finnane's own name.
Key Takeaways
- The District Court confirmed that a judge facing a disqualification application should not step aside merely because doing so is the path of least resistance; the proper basis for disqualification is a genuine, objectively reasonable apprehension of bias.
- A fair-minded lay observer test, drawn from Johnson v Johnson, requires more than intemperate general remarks about a class of offenders; the remarks must be capable of suggesting a prejudgment of the particular proceedings or person before the court.
- Informal judicial remarks at a social function can, in principle, ground an apprehended bias application, as established in cases such as Branko Balic (No 2), but only where the remarks relate to an identifiable person or case then pending before the judge.
- Delay in bringing a disqualification application operates as an independent ground for refusal, separate from the merits of the bias claim itself.
- Where a motion to disqualify is not formally cognisable as a procedural matter (following Barton v Walker), a judge may nonetheless address the substance and give reasons to resolve the controversy, rather than simply removing the application from the file.
Legislation and Cases Referenced
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