Citation: R v Merrick (No 4) [2016] NSWSC 309
Court: Supreme Court of New South Wales
Date: 16 March 2016
Judge: Wilson J
Background
On the thirteenth day of a murder trial, counsel for the accused applied for the presiding judge to disqualify herself on the grounds of actual and apprehended bias. The application arose from counsel's complaint that she had been treated more critically by the court than the Crown Prosecutor, particularly in relation to several applications for more time to address relationship evidence and text message material served by the Crown.
The Crown had sought to lead evidence of the volatile and abusive nature of the relationship between the accused and the deceased, including text messages exchanged in the months before the deceased was killed. Counsel for the accused argued that the court's refusal to grant sufficient time, and its expressions of disapproval toward her, demonstrated bias against the accused.
The application was made without clear identification of which form of bias was alleged. The judge proceeded on the basis that both actual bias and apprehended bias were in issue.
Legal Issues
- Whether the evidence advanced by the accused was sufficient to establish actual bias on the part of the trial judge.
- Whether the conduct of the trial gave rise to apprehended bias, applying the fair-minded lay observer test.
- Whether judicial criticism directed at defence counsel, without equal criticism of the Crown, could ground a disqualification application.
Decision
Issue 1: Actual Bias
The court noted that actual bias is an extremely serious allegation because it amounts to an assertion that a judicial officer has breached the oath of judicial office. It can only be established by evidence proving that the decision maker is genuinely biased, not merely by the impression of an observer, however reasonable (at [6]). Beyond counsel's subjective complaints about differential treatment, no such evidence was advanced. The court found that the test for actual bias had not been satisfied and that what was advanced did not remotely approach satisfying it (at [55]).
Issue 2: Apprehended Bias
Apprehended bias requires a two-step analysis: first, identifying what may lead the judge to decide other than on legal and factual merits; and second, articulating the connection between those matters and a deviation from the proper administration of justice (at [12]-[13]). Applying the standard of a fair-minded lay observer, who is assumed to be reasonable, not wholly ignorant of legal matters, and informed of the basic trial issues (at [8]-[9]), the court found the test was not satisfied (at [56]). The court emphasised that applications for disqualification must be assessed with rigour, given that they are sometimes made simply to secure a different judicial officer (at [11]).
Issue 3: Judicial Criticism of Counsel
The court traced the procedural history in detail, noting that counsel had been on notice of the relationship evidence since accepting the brief in November 2015 (at [21]), that the Crown had provided statements, a list of particularised paragraphs, and supporting authorities well before trial (at [37]), and that the text message evidence was brief and readily comprehensible in nature (at [35]). Adequate time had been provided to prepare objections (at [40]). The court held that it has no obligation to express equal disapproval of opposing counsel, and that criticism is appropriately directed where it is deserved (at [46]). Robust judicial comment about delay reflected dissatisfaction with counsel's readiness to proceed, not bias against the accused (at [54]).
Orders Made
- Application for disqualification refused.
Key Takeaways
- Actual bias cannot be established by the impression of a reasonable bystander alone; it requires evidence proving the decision maker is in fact biased (at [6]).
- Apprehended bias demands a two-step inquiry: identification of what may cause the judge to depart from deciding on the merits, and articulation of the connection between those matters and a deviation from proper administration of justice (at [12]-[13]).
- The fair-minded lay observer, against whose perspective apprehended bias is assessed, is assumed to be reasonable, not wholly ignorant of legal matters, and informed of the basic circumstances of the trial (at [8]-[9]).
- Judicial expressions of disapproval directed at one party's counsel, without equivalent criticism of opposing counsel, do not of themselves establish bias; differential treatment reflects the different conduct of the respective cases (at [46]-[47]).
- Refusing the application, the Supreme Court found that robust criticism of counsel's unreadiness demonstrated the court's dissatisfaction with delays, not actual or apprehended partiality toward either party (at [54]-[58]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Ebner v Official Trustee in Bankruptcy [2003] HCA 33; [2000] 205 CLR 337
- Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
- Kwan v Kang & Ors [2003] NSWCA 336
- Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
- Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41