Citation: R v El-Zeyat and Aouad [2012] NSWSC 340
Court: Supreme Court of New South Wales
Date: 26 April 2012 (reasons published; decision announced 4 April 2012)
Judge(s): Johnson J
Background
Two accused persons faced retrial for the murder of a man at Punchbowl in October 2003. Their original convictions had been quashed by the Court of Criminal Appeal in April 2011, with new trials ordered. Johnson J was allocated as the trial judge for those retrials.
The complication arose from Johnson J's own prior involvement in that same Court of Criminal Appeal. On the same day the convictions were quashed and retrials ordered, the Court (with Johnson J writing the lead judgment) dismissed related appeals by the same accused and others arising from a separate but connected trial. In that dismissal judgment, Johnson J made detailed findings that certain proposed fresh evidence witnesses lacked credibility and plausibility.
The accused applied for Johnson J to recuse himself, arguing that those earlier credibility findings created a reasonable apprehension of bias by prejudgment. The Crown opposed the application. Johnson J heard the application on 30 March 2012, announced his decision to recuse himself on 4 April 2012, and published his reasons on 26 April 2012.
Legal Issues
- Whether Johnson J's earlier findings about the credibility and plausibility of two proposed witnesses, Fadi El-Jamal and Houssam El-Jamal, gave rise to a reasonable apprehension of bias by reason of prejudgment
- How the reasonable apprehension of bias test applies where a judge is allocated as trial judge in a jury trial, rather than as sole fact-finder
- Whether the principle that courts should not be "too ready" to recuse in a jury trial context nevertheless yielded to the particular circumstances of this case
- Whether, even absent a positive finding of reasonable apprehension, this was at minimum a "case of real doubt" warranting recusal to avoid potential appellate intervention
Decision
Johnson J accepted the accused's application and recused himself. The central concern was that he had made detailed, adverse findings about the credibility and plausibility of Fadi El-Jamal and Houssam El-Jamal in his earlier judgment dismissing the related appeals. Those same individuals were expected to be called as defence witnesses at the upcoming retrial.
Johnson J acknowledged the general principle that a judge sitting with a jury is not the sole fact-finder, and that courts should not be too quick to recuse in that context, since the jury determines questions of fact. However, he concluded that the particular circumstances here were exceptional. His prior published findings went beyond general expressions of scepticism: they constituted specific, reasoned conclusions that the evidence of these witnesses was not credible or plausible, findings that any fair-minded observer would perceive as potentially influencing his conduct of the trial.
His Honour also applied the "case of real doubt" principle drawn from the authorities. Even if the circumstances fell short of compelling a positive finding of reasonable apprehension, the substantial ground for contending recusal was appropriate made it preferable to step aside, thereby avoiding the inconvenience and risk of appellate intervention at a later stage.
Johnson J emphasised that his conclusion rested solely on the credibility findings about Fadi El-Jamal and Houssam El-Jamal. He expressly stated that no other aspect of the two Court of Criminal Appeal judgments delivered on 8 April 2011 would, on its own, have warranted recusal.
Orders Made
• The judge declined to sit as trial judge in the matter
• The judge stood aside from presiding at the trial of the Accused
Key Takeaways
- A judge's prior published findings that specific witnesses lacked credibility or plausibility can give rise to a reasonable apprehension of bias by prejudgment when those same witnesses are expected to give evidence in a trial over which that judge presides.
- The fact that a trial involves a jury, rather than a judge sitting alone, does not automatically defeat a recusal application, even though courts are generally more reluctant to recuse in jury trials given that the jury is the fact-finder.
- Where circumstances amount to at least a "case of real doubt," recusal is appropriate even without a positive finding of reasonable apprehension, in order to prevent potential disruption from appellate intervention after trial.
- Johnson J confined his finding carefully: only the credibility and plausibility findings about the two proposed fresh evidence witnesses triggered recusal; the remainder of the Court of Criminal Appeal's reasoning in the related appeals did not.
- The standard governing recusal remains that of the fair-minded lay observer, drawn from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488, assessed against all the surrounding circumstances rather than in the abstract.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288
- Johnson v Johnson [2000] HCA 48; 201 CLR 488
- Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2006] HCA 55; 229 CLR 577
- Antoun v The Queen [2006] HCA 2; 80 ALJR 497
- British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283
- Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70
- CUR24 v Director of Public Prosecutions [2012] NSWCA 65
- Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 86 ALJR 14
- Cesan v The Queen [2008] HCA 52; 236 CLR 358
- Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
- R v Kearns [2003] NSWCCA 367
- R v Lee [2005] QCA 122
- R v Sonnet (No. 3) [2007] VSC 287
- Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
- Cornwell v The Queen [2007] HCA 12; 231 CLR 260