AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 1 August 2018

Chamoun v Director of Public Prosecutions (NSW)

[2018] NSWCCA 182

Other
CRIMINAL LAW LEAVE TO APPEAL JUDGMENT

Citation: Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182
Court: Court of Criminal Appeal, New South Wales
Date: 1 August 2018
Judge(s): Gleeson JA; R A Hulme J; Button J

Background

The applicant had pleaded guilty to a drug supply offence and was awaiting sentencing in the District Court. During the sentencing proceedings, the applicant took issue with certain comments made by the sentencing judge (Hock DCJ) and filed a notice of motion in May 2018 seeking her disqualification on the ground of apprehended bias by way of pre-judgment.

Her Honour declined to disqualify herself, delivering reasons on 13 July 2018. She also refused to vacate the sentencing hearing fixed for 3 August 2018. The applicant then pursued two parallel avenues of challenge: an application for judicial review in the Court of Appeal under s 69 of the Supreme Court Act 1970 (NSW), and an application for leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) in the Court of Criminal Appeal.

Both applications were heard by the same bench, sitting in its respective capacities. The Court of Appeal dismissed the judicial review application on 1 August 2018. The s 5F leave application was determined in the same sitting.

  • Whether a judge's refusal to disqualify herself constitutes an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW), so as to give the Court of Criminal Appeal jurisdiction to entertain a leave application.
  • If jurisdiction did exist, whether leave to appeal should nonetheless be granted on the merits of the apprehended bias complaint.

Decision

The Court refused leave to appeal. All three judges agreed with the reasons delivered by Gleeson JA.

On the jurisdictional question, Gleeson JA noted that the weight of authority strongly suggests a refusal to disqualify does not constitute an "interlocutory judgment or order" for the purposes of s 5F. A line of Court of Criminal Appeal authority, including R v Rogerson (1990), R v Reid (2004), and Gurung v R (2012), supported that conclusion. A similar position had been reached in the civil context under s 127 of the District Court Act 1973 (NSW) in Lee v Cha [2008] NSWCA 13. The Court did not find it necessary to decide the jurisdictional point definitively, because leave would be refused on the merits regardless.

On the merits, the applicant had not clearly demonstrated that a fair-minded observer might reasonably apprehend that the sentencing judge might not approach the remaining proceedings with objectivity and without pre-judgment, applying the test from Johnson v Johnson (2000) 201 CLR 488 and Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427. This mirrored the Court of Appeal's reasoning in dismissing the judicial review application.

Gleeson JA also addressed a potential alternative framing: the applicant might have cast the leave application as directed at the judge's orders refusing to vacate the sentencing date and confirming the hearing, rather than at the refusal to recuse. His Honour declined to decide whether those orders qualified as interlocutory orders under s 5F, because any leave application framed in those terms would have been refused on the same substantive grounds.

Orders Made

  • Leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) refused.

Key Takeaways

  • A well-established line of NSW authority indicates that a judge's refusal to disqualify herself from proceedings does not constitute an "interlocutory judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), though the Court of Criminal Appeal here left the question formally open.
  • In dismissing the application, the Court confirmed that even if jurisdiction under s 5F existed, it would have refused leave on the merits because the applicant had not met the Johnson v Johnson standard for establishing apprehended bias by pre-judgment.
  • The apprehended bias test asks whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the proceedings; the applicant's material fell short of that threshold.
  • Parallel avenues of challenge (judicial review and s 5F leave to appeal) can be pursued simultaneously before the same bench constituted as different courts, but the same underlying merits assessment applied to both.
  • Attempting to reframe a recusal challenge as an appeal against associated procedural orders (such as refusal to vacate a hearing date) does not necessarily cure a jurisdictional difficulty, and will be assessed on the same substantive merits.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Supreme Court Act 1970 (NSW), s 69
- District Court Act 1973 (NSW), s 127
- Criminal Procedure Act 1986 (NSW)

Cases
- R v Rogerson (1990) 45 A Crim R 253 (NSW CCA)
- R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425
- Gurung v R [2012] NSWCCA 201
- Lee v Cha [2008] NSWCA 13
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427; [2001] HCA 48
- Chamoun v District Court of New South Wales [2018] NSWCA 187 (related Court of Appeal decision)