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Supreme Court 28 June 2016

R v Tarrant

[2016] NSWSC 892

Homicide
PRACTICE AND PROCEDURE APPREHENSION OF BIAS CONDUCT WHETHER JUDGE SHOULD RECUSE HIMSELF APPLICANT CONVICTED ADMISSIBLE EVIDENCE

Citation: R v Tarrant [2016] NSWSC 892
Court: Supreme Court of New South Wales
Date: 28 June 2016
Judge(s): Fagan J

Background

The accused had pleaded not guilty to murder but guilty to manslaughter in relation to the death of her domestic partner. The Crown did not accept that plea, and a jury ultimately acquitted her of murder but convicted her of manslaughter. The homicide involved a preconcerted plan between the accused and a co-offender, who separately faced and was convicted of murder in a trial presided over by the same judge immediately following the accused's verdict.

The accused had given extensive evidence in the co-offender's trial, and the sentencing proceedings for both offenders were listed jointly. Shortly before the joint sentencing mention on 24 June 2016, counsel for the accused filed a 24-page submission seeking the trial judge's recusal from the sentencing proceedings on the ground of apprehended bias. A further assertion of actual bias appeared in the submission's concluding paragraphs.

The recusal application was based principally on remarks Fagan J had made during the co-offender's proceedings on 13 May 2016. Those remarks touched on the jury's verdict in the accused's matter and raised questions about reconciling that verdict with certain evidence of her mental capacity.

  • Whether remarks made by the trial judge during a co-offender's post-verdict proceedings gave rise to a reasonable apprehension of bias in the accused's upcoming sentencing proceedings
  • Whether those same remarks demonstrated actual bias, specifically a predetermination that the accused did not have the partial defence of diminished responsibility established under s 23A of the Crimes Act 1900 (NSW)
  • Whether the trial judge should recuse himself from presiding over the accused's sentence hearing

Decision

Fagan J dismissed the recusal application without calling on the Crown, having considered the written submissions and giving counsel the opportunity to add oral argument. His Honour applied the governing test from Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided. That observer, as Johnson v Johnson (2000) 201 CLR 488 confirms, is taken to be reasonable and to understand that a professional judge is trained to discard the irrelevant and the prejudicial.

Fagan J characterised the remarks made on 13 May 2016 as the identification of issues still to be resolved at sentencing, not expressions of concluded views. The discussion was described as typical of bench-and-bar exchange in matters to be decided by a judge alone, once the evidence was substantially complete. By that point the judge had heard hundreds of pages of evidence from the accused across two trials, meaning any tentative observations arose from extensive exposure to her evidence rather than from any extraneous or partial source.

On the question of actual bias, the submission alleged that the judge had predetermined the accused's diminished responsibility issue adversely to her. Fagan J rejected this directly, pointing to his own statement on 13 May 2016 that the accused was to be sentenced on the basis of the jury's finding of diminished responsibility, and his explicit acknowledgement that psychiatric evidence remained necessary to reconcile the verdict with other indicia in the record. Those statements were inconsistent with any predetermination of the issue.

Orders Made

  • The application that Fagan J recuse himself from further hearing of sentence proceedings in respect of the accused, following her conviction of manslaughter, was dismissed.

Key Takeaways

  • The governing test for apprehended bias, confirmed in Ebner and Johnson v Johnson, asks whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to unresolved questions. The observer is taken to be reasonable and to appreciate the professional obligations of a judge.
  • Identifying issues yet to be resolved at sentencing is the diametric opposite of prejudgment. Remarks that articulate a "conundrum" requiring further evidence and argument do not satisfy the test for apprehended bias.
  • Where a judge has heard a witness at length and under cross-examination across multiple proceedings, tentative observations about that witness's evidence do not carry the same apprehension risk as comments based on incomplete or extraneous information.
  • A finding of actual bias requires more than an inference drawn from judicial observations. Direct statements on the record that a matter remains open and that expert evidence is still required can rebut an allegation of predetermination.
  • The decision reinforces that joint sentencing proceedings for co-offenders, consistent with principles restated in Dwayhi v R; Bechara v R [2011] NSWCCA 67, do not of themselves create a ground for recusal of the presiding judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (diminished responsibility)

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
- Dwayhi v R; Bechara v R [2011] NSWCCA 67
- Galea v Galea (1990) 19 NSWLR 263
- R v Esposito (1998) 45 NSWLR 442