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Court of Criminal Appeal 21 February 2020

O’Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator

[2020] NSWCCA 19

Other
CRIMINAL LAW S 5F APPEAL INTERLOCUTORY JUDGMENT OR ORDER AMENDING, VARYING AND SETTING ASIDE BIAS RULE APPREHENDED BIAS

Citation: O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19
Court: Court of Criminal Appeal, New South Wales
Date: 21 February 2020
Judges: Payne JA; Beech-Jones J; N Adams J

Background

The applicant faced eight charges in the Land and Environment Court under s 60C(2) of the Water Management Act 2000 (NSW) for taking water otherwise than in accordance with his water access licence. The maximum penalty for each offence was a Tier 2 penalty, potentially running to thousands of penalty units.

At a directions hearing on 19 July 2019, the applicant's counsel told the court his client "would be entering a plea" and confirmed guilt in all eight matters. The primary judge formally noted that pleas of guilty were entered that day, and the matter was listed for a sentencing hearing in November 2019.

In the days following, media reports described the applicant as having pleaded guilty to "stealing" water. The applicant then disputed that a plea had actually been entered on 19 July 2019, arguing his counsel had only indicated an intention to plead at the future sentencing hearing. He sought to have the record corrected under the slip rule (UCPR r 36.17) and also applied for the primary judge to recuse herself on grounds of apprehended bias. Both applications were refused by Pepper J. The applicant then sought leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the primary judge erred by refusing to recuse herself on the ground of actual or apprehended bias.
  • Whether the primary judge erred by dismissing the application to correct the record under the slip rule (UCPR r 36.17), on the basis that what occurred on 19 July 2019 constituted the entry of a plea of guilty rather than a clerical or accidental error.
  • Whether, in any event, there was sufficient utility in granting leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

Decision

Apprehended bias: The primary judge had correctly applied the "double might" test drawn from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, asking whether a fair-minded observer, aware of the relevant facts, might reasonably conclude that the judge might not bring an impartial mind to the application. Pepper J read the 19 July 2019 transcript carefully and found it capable of only one sensible interpretation: counsel had in fact entered pleas of guilty, not merely signalled a future intention to do so. The Court of Criminal Appeal agreed that no basis for disqualification had been established.

The slip rule: The primary judge held that, because no judgment or conviction had been formally entered by the court against the applicant, there was no "order" amenable to correction under r 36.17. Payne JA agreed with that conclusion. Beech-Jones J expressly declined to express a view on whether the recording of the plea could have been corrected under the rule, finding it unnecessary to do so.

Utility: The decisive consideration for Beech-Jones J was that granting leave served no practical purpose. The applicant had sworn on affidavit that he still intended to plead guilty in any event. Correcting the record would only allow him to enter the same plea again, at which point he would lose the benefit of an early plea. The applicant's related stay application, which concerned the prosecutor's media statements, could also proceed regardless of how the plea question was resolved. The Court found no reason to embark on an appeal that could produce no meaningful benefit for the applicant.

Leave refused: All three judges joined in refusing leave to appeal. Payne JA also noted doubt about whether the test from the older decision of R v Ho (requiring an "error of principle apt to cause irregularity or injustice" for leave under s 5F(3)) accurately reflects the current standard, though he found it unnecessary to resolve that question given leave was refused on the merits.

Orders Made

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

Key Takeaways

  • The Court of Criminal Appeal confirmed that an application to recuse a judge for apprehended bias must be assessed by reference to the "double might" test: whether a fair-minded observer might reasonably think the judge might not be impartial, having regard to the specific facts known to that observer.
  • Where a transcript clearly records that counsel entered pleas of guilty in open court and counsel raised no objection when the judge formally noted those pleas, a subsequent claim that only a future intention to plead was communicated faces a significant evidentiary obstacle.
  • Lack of utility is an independent and sufficient ground for refusing leave under s 5F. Where the applicant has sworn to re-enter the very plea sought to be "corrected," granting leave to appeal the correction produces no practical benefit.
  • Payne JA flagged uncertainty about whether the older R v Ho formulation of the leave test under s 5F(3) (requiring an "error of principle apt to cause irregularity or injustice") remains good law, though the Court did not resolve the question.
  • Beech-Jones J deliberately left open whether the recording of a plea of guilty is an "order" capable of correction under UCPR r 36.17, meaning that question remains unsettled.

Legislation and Cases Referenced

Legislation
- Water Management Act 2000 (NSW), ss 60C(2), 363B
- Criminal Appeal Act 1912 (NSW), s 5F
- Uniform Civil Procedure Rules 2005 (NSW), r 36.17
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 17
- Evidence Act 1995 (NSW), s 57
- Civil Procedure Act 2005 (NSW), s 56
- Land and Environment Court Rules 2007 (NSW), r 5.2(2)(h)

Cases
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- R v Ho (NSWCCA, unreported, 18 July 1994)
- Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195
- Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
- Regina v Chami; Regina v Sheikh [2002] NSWCCA 136
- AF v R [2015] NSWCCA 35
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- R v Matovski (1989) 15 NSWLR 720