Citation: Gurung v R [2012] NSWCCA 201
Court: Court of Criminal Appeal
Date: 6 September 2012
Judge(s): McClellan CJ at CL; McCallum J; Garling J
Background
The applicant had been charged with two offences in the District Court. She pleaded guilty to one charge partway through trial on the second day, in the presence of the jury, which was then discharged. After bail was revoked at a subsequent sentencing mention, she filed a notice of motion seeking to withdraw her guilty plea.
When the matter returned before the same District Court judge on 27 July 2012, a series of exchanges occurred between the judge and the applicant's counsel, Mr Killalea. These exchanges touched on the prospects of a bail application, the nature of any anticipated criticism of the applicant's former barrister, and a request that a different judge hear the withdrawal application. The proceedings were somewhat disorderly, and the transcript reflected ongoing confusion between judge and counsel about precisely what application was being made and on what grounds.
Counsel ultimately applied for the judge to recuse himself on the basis of apprehended bias, citing two matters: the judge's comment that he could predict the outcome of a bail application before reasons were advanced, and the judge's characterisation of the withdrawal application as involving an attack on the former barrister's integrity. The judge declined to recuse himself, and the matter was adjourned. The applicant then brought an interlocutory appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the District Court judge's refusal to recuse himself gave rise to a reasonable apprehension of bias.
- Whether a judge's refusal to recuse gives rise to an interlocutory judgment or order capable of founding an appeal under s 5F of the Criminal Appeal Act 1912.
- Whether, in the circumstances, this Court should grant leave to appeal under s 5F(3).
Decision
Issue 1: Jurisdiction under s 5F
McClellan CJ at CL and Garling J declined to resolve definitively whether a refusal to recuse constitutes an interlocutory judgment or order for the purposes of s 5F. Both noted the prevailing view, consistent with R v Rogerson, that such a refusal is not itself a judgment or order amenable to appeal, though it may later ground an appeal against a final decision. McCallum J took a different view: she regarded the jurisdictional question as arguable rather than a threshold bar, drawing on the approach in Barakat v Goritsas, where the Court of Appeal treated an order fixing a subsequent hearing date as a proper vehicle for challenging a refusal to recuse.
Issue 2: Apprehended bias
McClellan CJ at CL, with Garling J agreeing, was not persuaded that the transcript supported a conclusion that a reasonable bystander would apprehend the judge was biased. His Honour attributed much of the confusion to a genuine lack of understanding between counsel and judge, compounded by a busy list and the late return of the matter that day. He accepted that a judge who refuses to hear argument on a recusal application at all may well give rise to a jurisdictional error, but on the facts here he did not find that threshold was reached.
McCallum J respectfully disagreed. In her view, there was a respectable basis for contending that the judge had pre-expressed a view on the bail application before reasons were given, had characterised the withdrawal motion as an attack on the barrister's integrity before evidence was led, and had implicitly signalled scepticism about the withdrawal application by noting the applicant had signed the agreed facts. She considered the judge's blanket refusal to engage with counsel's reasons for recusal was unfortunate and that the transcript disclosed a proper basis for an apprehended bias contention.
Issue 3: Grant of leave
By majority (McClellan CJ at CL and Garling J), leave to appeal was refused. Both judges noted the applicant remained free to renew the recusal application before the District Court judge, and that the Crown had confirmed it would not submit that such a renewed application was precluded. McCallum J would have granted leave, emphasising that entitlement to a hearing before an impartial tribunal is a fundamental incident of justice and that s 5F(3) existed as a remedy for its protection, particularly where the applicant had been in custody for three months and was not seeking delay.
Orders Made
- Leave to appeal refused.
Key Takeaways
- A judge's refusal to recuse is generally not treated as an interlocutory judgment or order founding an appeal under s 5F of the Criminal Appeal Act 1912, though the question remains unsettled in NSW and a later procedural order (such as fixing a hearing date) may provide an arguable vehicle for challenge.
- The Court of Criminal Appeal confirmed, consistently with R v Rogerson, that refusal to recuse may form a ground of appeal against the ultimate decision in the proceedings, even where it cannot independently support an interlocutory appeal.
- Where confusion between counsel and the trial judge generates the appearance of a refusal to hear recusal submissions, that context is relevant to whether a reasonable apprehension of bias arises: the majority here found no such apprehension on the particular transcript.
- A judge who entirely refuses to entertain argument on a recusal application risks creating a jurisdictional error sufficient to justify intervention by the Court of Criminal Appeal, as McClellan CJ at CL acknowledged in principle even while declining to find that error on the facts.
- Competing judicial analyses within the one decision illustrate that questions of apprehended bias are fact-specific: reasonable minds on the same transcript reached different conclusions about whether the judge's pre-hearing comments gave rise to a proper basis for the contention.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912
Cases
- Barakat v Goritsas, [2012] NSWCA 8
- R v Matovski (1989) 15 NSWLR 720
- R v Rogerson (1990) 45 A Crim R 253
- R v Watson; ex parte Armstrong (1976) 136 CLR 248