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Supreme Court 18 December 2015

R v Towney

[2015] NSWSC 2004

Homicide
CRIMINAL LAW SAME JUDGE ALLOCATED RETRIAL APPREHENSION OF BIAS PREJUDGMENT WHETHER FAIR TRIAL BY JURY

Citation: R v Towney [2015] NSWSC 2004
Court: Supreme Court of New South Wales
Date: 18 December 2015
Judge: Fagan J

Background

The accused faced a charge of murder arising from a fatal stabbing in Gilgandra on 20 July 2013. His trial commenced before Fagan J in Orange in September 2015 but was aborted before verdict when misconduct by a juror was discovered. The retrial was scheduled to commence on 1 February 2016, with Fagan J again allocated to preside.

Shortly before the retrial, the accused's solicitor notified the Court that an application would be made for Fagan J to disqualify himself on the ground of apprehended bias. The application was brought on 18 December 2015, the last sitting day before the retrial, and was opposed by the Crown.

The alleged bias arose from passages in the summing-up Fagan J had delivered to the jury at the aborted first trial, particularly concerning the posture of the deceased at the time of the fatal wound and the accused's level of intoxication, both of which were relevant to the question of intent.

  • Whether a fair-minded lay observer might reasonably apprehend that Fagan J had prejudged factual questions bearing on the accused's guilt, such that he should be disqualified from presiding at the retrial
  • Whether the content of a summing-up delivered at an aborted first trial could found a reasonable apprehension of bias in a subsequent retrial before the same judge
  • Whether the delay in bringing the recusal application was justified

Decision

Fagan J dismissed the application. The governing test is whether a fair-minded lay observer, informed of all relevant circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided. The court applied that standard by reference to the High Court decisions in Johnson v Johnson and Ebner v The Official Trustee in Bankruptcy, as well as Court of Criminal Appeal authority on retrial situations.

On the substantive ground, Fagan J found that comments made in a summing-up, including robust or favourable observations about the evidence, did not establish that a fair-minded observer would apprehend prejudgment at a future retrial. A summing-up is directed to a jury and involves legitimate judicial comment on the facts; it does not reveal the judge's concluded view of guilt or innocence. The hypothetical observer would understand that judges are equipped by training and oath to approach a retrial on the evidence as it unfolds, without being controlled by impressions formed at a prior aborted trial.

Fagan J also noted that no general rule requires a retrial to be conducted before a different judge. The fact that a judge presided at an aborted trial is not, of itself, a basis for disqualification. The court cited R v El-Zeyat and the observation that conducting a retrial is simply conducting the trial that ought to have taken place at the outset.

On the delay, Fagan J was critical of the lateness of the application. The retrial allocation had been known since the callover on 2 October 2015, yet no application or reservation was communicated until mid-December. The court found that counsel and solicitors should have addressed the issue at or promptly after the callover, particularly given the common practice of the same judge presiding at a retrial. The delay caused avoidable inconvenience at a congested period of the law term, though the court did not rest its dismissal on delay alone.

Orders Made

  • The accused's notice of motion filed in Court by leave on 18 December 2015 is dismissed.
  • The retrial of Trent Towney is to proceed before Fagan J at Orange commencing 1 February 2016.

Key Takeaways

  • The applicable test for disqualification on the ground of apprehended bias is whether a fair-minded lay observer, with knowledge of all relevant circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the determination of the case.
  • A trial judge's summing-up, including comments on the evidence favourable to one party, does not ordinarily found a reasonable apprehension that the judge has prejudged issues of fact for the purposes of a subsequent retrial.
  • No general rule requires a retrial to proceed before a different judge; the mere fact of having presided at an aborted first trial is insufficient to establish apprehended bias.
  • Where a judge-alone trial is involved, the authorities recognise that a judge may influence a jury in subtle ways, making perceived impartiality important, but in a jury trial this consideration does not, without more, support disqualification of the presiding judge at a retrial.
  • In dismissing the application, Fagan J criticised the failure to raise the recusal question at the callover, noting that counsel with knowledge of potential objections to a trial allocation should raise them promptly rather than at the last practicable moment before trial.

Legislation and Cases Referenced

Legislation
- Motor Accidents Compensation Act 1999 (NSW) (referenced in passing in cited authority)

Cases
- Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
- Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
- B v The Queen [1992] HCA 68; (1992) 175 CLR 599
- Bainton v Rajski (1992) 29 NSWLR 539
- Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
- Balic (No 2) (1994) 75 A Crim R 515
- R v El-Zeyat [2012] NSWSC 340
- R v Kearns [2003] NSWCCA 367
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Meher [2004] NSWCCA 355
- R v Malone (Court of Criminal Appeal (NSW), 20 April 1994, unrep)