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10
Court of Criminal Appeal 23 February 2018

Tarrant v R

[2018] NSWCCA 21

Homicide
CRIME APPEAL AGAINST SENTENCE APPREHENDED BIAS APPLICATION FOR RECUSAL REJECTED MANSLAUGHTER APPEAL AGAINST SENTENCE

Citation: Tarrant v R [2018] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 23 February 2018
Judges: Basten JA, R A Hulme J, Hidden AJ

Background

The applicant was convicted of manslaughter following a trial on a charge of murder. The jury returned its verdict on the basis that the applicant suffered a substantial impairment of mental capacity under s 23A of the Crimes Act 1900 (NSW), reducing liability from murder to manslaughter. Both the prosecution and defence had accepted at trial that the impairment existed; the jury's task was to determine whether it was substantial enough to warrant that reduction.

The applicant's trial, and then the trial of a co-accused, were both conducted before the same judge. The applicant was not sentenced until after the co-accused's trial concluded. Before sentencing, the applicant's counsel applied for the judge to recuse himself (step aside) on the basis of apprehended bias, pointing to comments and questions the judge had made across both trials and at sentencing hearings. The judge declined, and in August 2016 imposed a sentence of 10 years and 8 months with a non-parole period of 8 years.

The applicant sought leave to appeal on two principal grounds: first, that the judge should have disqualified himself; and second, that the sentencing judgment failed to give proper weight to the jury's verdict on substantial impairment by re-evaluating the psychiatric evidence in a manner inconsistent with that finding.

  • Whether comments and questions made by the sentencing judge during the applicant's trial, the co-accused's trial, and the sentencing hearings gave rise to a reasonable apprehension of bias, requiring recusal.
  • Whether the sentencing judgment improperly undermined the jury's verdict on substantial impairment by reassessing and discounting the unchallenged psychiatric evidence.
  • Whether any disproportion existed between the applicant's sentence and the co-accused's sentence (which had already been reduced on appeal).
  • What the correct sequencing is for an appellate court when both a bias ground and substantive sentencing grounds are raised together.

Decision

Sequencing of the bias ground: The Court confirmed that an apprehended bias ground must be addressed before any substantive grounds of appeal. If bias is established, the remedy is to set aside the sentence and remit the matter for resentencing, which means there would be no valid sentence for the appellate court to substitute under s 6(3) of the Criminal Appeal Act 1912 (NSW). Both parties accepted this approach.

The legal test for apprehended bias: The Court applied the "double might" test from Johnson v Johnson, which asks whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the question to be decided. The test is objective and focuses on public confidence in the administration of justice, not the judge's own subjective state of mind. The Court noted that a lay observer is taken to understand that modern judges actively manage proceedings and may express tentative views, but cautioned that overstating the sophistication attributed to that observer risks undermining the very confidence the test seeks to protect.

Outcome on the bias ground: The Court upheld the apprehended bias ground. The cumulative effect of the judge's comments and interventions across the applicant's trial, the co-accused's trial, and the sentencing proceedings was sufficient to satisfy a fair-minded lay observer that the judge might not bring an impartial mind to sentencing the applicant. Because this ground succeeded, the Court did not need to determine the substantive grounds concerning the assessment of diminished responsibility or proportionality. The sentence was set aside and the matter remitted for resentencing.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; the sentence and orders made by Fagan J set aside.
  • Matter remitted to the Common Law Division of the Supreme Court for resentencing on the manslaughter offence.

Key Takeaways

  • An appellate court dealing with both a bias ground and substantive sentencing grounds must resolve the bias issue first, because a successful bias ground requires remittal for resentencing rather than substitution of sentence by the appellate court.
  • The applicable test for apprehended bias remains the "double might" formulation from Johnson v Johnson: a fair-minded lay observer might reasonably apprehend that the judge might not decide the matter impartially. The test is objective and does not assess the judge's actual state of mind.
  • Judicial interventions and comments made not just in the applicant's own trial but also in a co-accused's subsequent trial can contribute cumulatively to a finding of apprehended bias at sentencing.
  • Attributing knowledge to the hypothetical fair-minded lay observer requires care: overstating the level of legal sophistication expected of that observer risks undermining public confidence in the administration of justice, which the bias test is designed to protect.
  • Where a bias ground succeeds, the Court of Criminal Appeal's power under s 6(3) of the Criminal Appeal Act 1912 (NSW) to substitute its own sentence is not engaged, because no valid sentence has yet been imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
- British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
- Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
- Roff v R [2017] NSWCCA 208
- R v Tarrant [2016] NSWSC 892 (recusal judgment)
- CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65
- Rouvinetis v Knoll [2013] NSWCA 24
- Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
- Goodwin v Commissioner of Police [2012] NSWCA 379
- R v Antaky [2007] NSWSC 1047
- R v Low (1991) 57 A Crim R 8