Citation: Gurung v R [2012] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 6 September 2012
Judges: McClellan CJ at CL, McCallum J, Garling J
Background
The applicant faced two charges in the District Court. She pleaded guilty to one charge before trial and, on the second day of trial for the remaining charge, offered a further guilty plea, which the Crown accepted. The jury was discharged.
At a subsequent hearing, the applicant sought to withdraw that second guilty plea. A central ground for withdrawal was that she had been improperly advised, or pressured, by her legal team into entering the plea. During the proceedings, the trial judge made observations about the likelihood of a then-proposed bail application failing, and also characterised part of the proposed withdrawal application as an anticipated attack on the integrity of the applicant's former barrister.
The applicant's advocate applied for the trial judge to recuse himself on the basis of a reasonable apprehension of bias arising from those observations. The trial judge declined to do so, and the applicant sought leave to appeal that refusal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the trial judge's refusal to recuse himself was an interlocutory judgment or order amenable to appeal under s 5F of the Criminal Appeal Act 1912.
- Whether a fair-minded observer would entertain a reasonable apprehension that the trial judge might not bring an impartial mind to the determination of the plea withdrawal application.
- Whether leave to appeal under s 5F(3) should be granted in the circumstances.
Decision
The Court of Criminal Appeal unanimously refused leave to appeal. All three judges found that the matters relied upon in support of recusal were not sufficient to establish a reasonable apprehension of bias.
On the first ground, the trial judge's observation that a bail application would obviously fail was not evidence of bias. The applicant's own counsel conceded in the appeal court that the bail application had no prospects at that point, which was precisely why he had not pursued it below. A judge stating the plain and accepted outcome of an application does not give rise to apprehended bias.
On the second ground, the trial judge's characterisation of the proposed withdrawal application as potentially involving an attack on the former barrister's integrity was also insufficient. McClellan CJ at CL observed that the submissions already made by counsel clearly signalled that the withdrawal application would involve criticism of the legal advice the applicant had received, and the trial judge's summary of that position was not an unreasonable characterisation of what had been put to him.
The Court also acknowledged some procedural confusion in the hearing below, where counsel appeared to conflate an application to refer the matter to a different judge (on the basis the judge had been the trial judge) with a separate and distinct recusal application based on apprehended bias. However, none of these circumstances, individually or together, disclosed a reasonable apprehension of bias sufficient to justify either recusal or appellate intervention.
Orders Made
• Leave to amend the application granted
• Leave to appeal under s 5F(3) granted
• Applicant allowed to renew and fully develop an application for recusal before the trial judge on the basis that the judge ought not hear and determine the application for the applicant to withdraw her plea
Key Takeaways
- A judge's observation that a proposed application will obviously fail, where that outcome is conceded by the applicant's own counsel, does not give rise to a reasonable apprehension of bias.
- Characterising a party's anticipated argument as involving criticism of a previous legal representative does not demonstrate bias where counsel's own submissions clearly foreshadowed such criticism.
- The test for apprehended bias is whether a fair-minded lay observer, properly informed of the circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided, as confirmed in R v Watson; ex parte Armstrong (1976) 136 CLR 248.
- An application to refer a matter to another judge on the basis of the judge's prior involvement in the proceedings is analytically distinct from a recusal application founded on apprehended bias. Conflating the two can obscure the proper basis for each.
- Notwithstanding the refusal of leave, the Court confirmed that the applicant remained free to renew a fully developed recusal application before the trial judge, including on the basis that the particular circumstances of the case warranted a different judge hearing the plea withdrawal application.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- R v Watson; ex parte Armstrong (1976) 136 CLR 248
- Barakat v Goritsas [2012] NSWCA 8
- R v Matovski (1989) 15 NSWLR 720
- R v Rogerson (1990) 45 A Crim R 253