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Supreme Court 15 December 2014

R v Pratten (No 13)

[2014] NSWSC 1783

Fraud & dishonesty
TRIAL AFTER APPEAL (PRE

Citation: R v Pratten (No 13) [2014] NSWSC 1783
Court: Supreme Court of New South Wales
Date: 15 December 2014
Judge: Rothman J

Background

The accused had been convicted at first trial of seven counts of dishonestly obtaining a financial advantage from the Commonwealth by understating assessable income in tax returns over a seven-year period, with the total alleged understatement exceeding $5 million. Rothman J presided over that trial and subsequently sentenced the accused on 31 March 2014. The Court of Criminal Appeal later quashed the convictions on one ground (failure to give a unanimity direction) and ordered a new trial.

With a retrial listed to commence on 18 May 2015, the arraignments judge asked the parties whether there was any difficulty in returning the matter to the original trial judge. In response, the Crown filed a motion seeking that the retrial be allocated to a different judge. The Crown's concern centred on findings of fact made in Rothman J's sentencing remarks, arguing those findings might give rise to apprehended bias in the form of pre-judgment.

Because the accused opposed any judge other than Rothman J hearing the motion, and consistent with the principle in Wentworth v Graham [2003] NSWCA 104 that disqualification applications should be heard by the judge sought to be disqualified, Rothman J was allocated the application and determined it himself.

  • Whether the motion, framed as an application that the matter not be allocated to a particular judge rather than a formal disqualification application, engaged the same legal principles as a standard disqualification application
  • Whether findings of fact made in earlier sentencing remarks gave rise to a reasonable apprehension of bias by way of pre-judgment, sufficient to preclude the original trial judge from presiding over the retrial
  • Whether the possibility that future sentencing findings might be consistent or inconsistent with earlier sentencing findings independently supported a conclusion of apprehended bias

Decision

Rothman J held that, although the motion was technically framed as an application to prevent allocation rather than a formal disqualification, the governing principles were the same or substantially identical. One difference was noted: because the trial had not yet been allocated to him, the countervailing consideration that a judicial officer should complete what has been assigned carried less immediate weight. The concern about parties "judge shopping" remained relevant regardless.

The applicable test, drawn from Johnson v Johnson [2000] HCA 48, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question before the court. Rothman J emphasised that the test admits human frailty but requires more than a bare allegation of prior error. A predisposition arising from a prior judicial role is not, of itself, sufficient.

Rothman J examined his sentencing remarks and found nothing in them to suggest that any future findings at trial or on sentence would be made other than on the basis of the evidence adduced. The fact that prior findings might prove consistent or inconsistent with any future findings did not establish pre-judgment. The only relevant question was whether any future conclusion would reflect the facts actually in evidence, and the sentencing remarks disclosed no predisposition incompatible with that standard.

The court also rejected the submission that the judge would face a "lose-lose" situation. Any sentence remarks following a retrial conviction would stand or fall on whether they accurately reflected the evidence and applied correct sentencing principles, not on whether they aligned with earlier remarks. In all circumstances, the threshold for disqualification on grounds of apprehended bias had not been met, and the motion was dismissed.

Orders Made

  • The motion seeking allocation of the retrial to a judge other than Rothman J was dismissed.
  • The question of whether the matter would in fact be allocated to Rothman J remained a matter for court administration.

Key Takeaways

  • The test for apprehended bias by way of pre-judgment is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the issues, as confirmed in Johnson v Johnson (2000) 201 CLR 488.
  • A mere allegation that a trial judge made erroneous findings in prior sentencing remarks is insufficient, on its own, to establish apprehended bias warranting disqualification or non-allocation for a retrial.
  • Findings of fact made during sentencing proceedings do not automatically give rise to a reasonable apprehension of pre-judgment at a retrial; the critical question is whether those findings suggest the judge would decide future issues other than on the evidence before the court.
  • Where a motion is framed as seeking non-allocation to a judge rather than formal disqualification, the same legal principles governing apprehended bias apply, with a possible minor difference in the weight given to the principle that judicial officers should complete allocated work.
  • The risk that future sentencing findings might be criticised as either consistent or inconsistent with earlier remarks does not, in itself, constitute a ground of apprehended bias; the legitimacy of sentencing remarks turns on their reflection of the evidence and correct application of sentencing principles.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 134.2(1)

Cases
- Australian National Industries Ltd v Spedley Securities Ltd (in Liq) (1992) 26 NSWLR 411
- British American Tobacco Australia Services v Laurie [2011] HCA 2; (2011) 242 CLR 283
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
- Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
- Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
- Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674
- Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
- Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78
- Re Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
- Wentworth v Graham [2003] NSWCA 104