Citation: Regina v Roxanne Carmella Brincat [2016] NSWDC 100
Court: District Court of New South Wales
Date: 9 June 2016
Judge: Judge AC Scotting
Background
The offender appeared for sentencing on one count of aggravated break and enter with intent to commit a serious indictable offence, and one count of stealing property from a dwelling. Both offences were committed in September 2014. The matter came before Judge Scotting because his Honour was already part-heard in the sentencing proceedings of a co-offender arising from the same events.
Before sentencing could proceed, the offender applied for the Judge to disqualify himself on the ground of apprehended bias. The application arose from comments the Judge had made in the course of the proceedings and from email correspondence between the offender's solicitor and the Judge's Associate.
The solicitor had contacted the Associate without the consent of the Director of Public Prosecutions to inquire whether the Judge intended to recuse himself. The Judge confirmed on the record that his Associate had sent the reply emails with his express authority.
Legal Issues
- Whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the sentencing of the offender
- How the three-step test for apprehended bias applies on the facts
- Whether correspondence between a solicitor and a judge's associate, without the opposing party's consent, was appropriate conduct under the professional conduct rules
Decision
Judge Scotting set out the governing test from Ebner v Official Trustee in Bankruptcy: a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question before them. His Honour also drew the established distinction between prejudgement, which is incapable of being altered by evidence or argument, and a predisposition or tendency of mind, which remains open to persuasion and does not give rise to bias.
Applying the three-step framework identified in Ebner and elaborated in Isbester v Knox City Council, the Judge found that no step was satisfied on the facts. Any comments made during proceedings were capable of being read, objectively, as consistent with the Judge exercising his judicial obligations on the merits of the case. A fair-minded lay observer, attributed with knowledge of all the circumstances and aware that judicial officers are trained to put aside the irrelevant and the prejudicial, would not apprehend a departure from impartial decision-making.
On the correspondence issue, the Judge identified two separate problems. First, the solicitor had communicated with the Associate without the DPP's consent, which was arguably in breach of rule 22.5 of the Uniform Solicitors Conduct Rules 2015 and its equivalent in the Uniform Barristers Conduct Rules 2015. Those rules exist to preserve judicial impartiality, and the submission that emailing a judge's associate with other parties copied in was "uncontroversial" was, in the Judge's view, ignorant of those ethical obligations. Second, the unavailability of counsel was not a sufficient reason to adjourn the proceedings: other counsel could have been briefed, and in the event counsel did become available to appear on the application.
The application for recusal was refused.
Orders Made
- The application for the Judge to recuse himself was refused.
Key Takeaways
- The District Court confirmed that the test for apprehended bias requires a fair-minded lay observer, who is reasonable, informed, and neither complacent nor unduly suspicious, to consider all the circumstances before reaching any conclusion about impartiality.
- A distinction exists between prejudgement, which is incapable of alteration by evidence or argument, and a predisposition or tendency of mind that remains open to persuasion: only the former will enliven a duty to refrain from hearing a matter.
- Applying the three-step framework from Ebner and Isbester, the court must identify the potentially biasing factor, articulate the logical connection to a feared deviation from impartial decision-making, and then assess whether that apprehension is reasonable.
- Communicating with a judge's associate about whether a judge intends to recuse themselves, without the consent of the opposing party, is arguably a breach of rule 22.5 of the Uniform Solicitors Conduct Rules 2015 and the equivalent provision in the Uniform Barristers Conduct Rules 2015, rules that exist to preserve judicial impartiality.
- Counsel unavailability will not ordinarily justify an adjournment of sentencing proceedings where there has been ample opportunity to brief alternative counsel.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 113(2), 148
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 11
- Uniform Solicitors Conduct Rules 2015, r 22.5
- Uniform Barristers Conduct Rules 2015, r 54
Cases
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- Johnson v Johnson (2000) 201 CLR 488
- Helow v Home Secretary [2008] 1 WLR 2416
- Livesey v New South Wales Bar Association (1983) 151 CLR 288
- Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
- Vakauta v Kelly (1989) 167 CLR 568
- British American Tobacco Australia Services Ltd v Laurie (2000) 205 CLR 337
- Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
- Isbester v Knox City Council (2015) 89 ALJR 609
- Bechara v R [2011] NSWCCA 67
- R v Cartwright (1987) 17 NSWLR 243
- Tugrul v Tarrants Financial Consultants Pty Ltd [2013] NSWSC 1971