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Supreme Court 26 June 2015

In the Matter of Steven Smith

[2015] NSWSC 832

Public order & justice offences
CRIMINAL LAW PROCEEDINGS AGAINST A CONTEMNOR CHARGES BROUGHT BY THE COURT TESTS TO BE APPLIED

Citation: In the Matter of Steven Smith [2015] NSWSC 832
Court: Supreme Court of New South Wales
Date: 26 June 2015
Judge: Wilson J

Background

The applicant was a sentenced prisoner serving 20 years for murder. He had been called as a Crown witness in separate sentencing proceedings against a co-offender. When brought to the witness box, he refused to take an oath or affirmation, refused to answer any questions, and physically threatened Corrections officers by raising his fists and confronting them. He was removed from the courtroom. When given an opportunity to reconsider, he again refused to return and give evidence.

The presiding judge, Wilson J, observed this conduct directly and charged the applicant with three counts of contempt in the face of the court under Part 55 of the Supreme Court Rules 1970. The charges covered refusing to take an oath or affirmation, refusing to answer questions, and threatening unlawful violence against an officer of the court.

Before the contempt charges were heard, the applicant applied (without filing a motion) for Wilson J to recuse herself. He alleged both actual bias and apprehended bias, relying in part on observations made in the written judgment of the co-offender's sentencing proceedings.

  • Whether the presiding judge had demonstrated actual bias against the applicant.
  • Whether a fair-minded lay observer would reasonably apprehend that the judge might not bring an impartial mind to the contempt proceedings.
  • Whether the passage in the co-offender's sentencing judgment relied upon by the applicant was capable of establishing either form of bias.

Decision

Wilson J applied the established tests for actual and apprehended bias. For actual bias, the question is whether the judge's mind is so prejudiced that they cannot give a fair hearing. For apprehended bias, the test (drawn from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488) is whether a fair-minded lay observer, informed of the circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question.

The applicant pointed to a paragraph in the co-offender's sentencing judgment as evidence of bias. Wilson J examined the impugned passage in the full context of that judgment and found it could not sustain a reading that suggested any improper finding or prejudgment about the applicant. The passage, properly understood, reflected no more than what could reasonably be inferred from known facts in the co-offender proceedings. It did not establish actual bias, and it would not cause a fair-minded lay observer to reasonably apprehend bias.

The court also addressed the particular character of contempt-in-the-face-of-court proceedings. In such cases, the judge who witnessed the contumacious conduct is ordinarily the appropriate officer to finalise the matter. Wilson J noted the risk that recusal applications in this context could be used cynically by a contemnor to avoid being dealt with by the judge who had direct knowledge of the conduct, in the hope of obtaining a more favourable tribunal. That consideration reinforced the conclusion that the application should be refused.

Orders Made

  • The recusal application is refused.
  • The matter is adjourned to 17 July 2015.

Key Takeaways

  • A recusal application in contempt proceedings requires the applicant to establish either that the judge's mind is actually prejudiced, or that a fair-minded lay observer would reasonably apprehend a lack of impartiality. Neither threshold was met on these facts.
  • Apprehended bias must be assessed by reference to the whole of the relevant material, not a passage extracted from a judgment in isolation. Context is determinative.
  • In contempt-in-the-face-of-the-court proceedings, there is a particular reason for the judge who witnessed the conduct to finalise the matter. The Supreme Court identified a risk that recusal applications in this setting could serve as a tactical device to select a more favourable decision-maker.
  • Refusing to take an oath, refusing to answer questions as a witness, and threatening violence against court officers each constituted separate grounds for contempt charges under Part 55 of the Supreme Court Rules 1970.
  • The power to punish contempt in the face of the court forms part of the Supreme Court's inherent jurisdiction, recognised as a critical means of maintaining the court's authority.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 65
- Supreme Court Rules 1970 (NSW), Part 55

Cases
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- Johnson v Johnson (2000) 201 CLR 488
- Balogh v St Albans Crown Court [1975] 1 QB 73
- R v Metal Trades Employers Association; Ex Parte Amalgamated Engineering Union (1951) 82 CLR 208
- R v Kennedy [2015] NSWSC 327
- R v Steven John Smith [2013] NSWSC 1723
- Vakauta v Kelly (1988) 13 NSWLR 502
- R v Masters (1992) 26 NSWLR 450
- Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
- Re JRL; Ex Parte CJL (1986) 161 CLR 342
- McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504
- Barakat v Goritsas (No 2) [2012] NSWCA 36
- Fraser v The Queen [1984] 3 NSWLR 212
- Gaudrie v Local Court (NSW) and Another [2013] NSWSC 1425
- Kwan v Kang & Ors [2003] NSWCA 336
- Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540
- Clampert v Attorney General of the Commonwealth of Australia [2009] FCAFC 151
- R v Bilal Razzak [2006] NSWSC 1366
- R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546