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Court of Criminal Appeal 17 December 2020

McIver v R

[2020] NSWCCA 343

Sexual offencesAssault & violence
COURTS AND JUDGES BIAS APPREHENDED BIAS APPEAL JUDGE ALONE TRIAL

Citation: McIver v R [2020] NSWCCA 343
Court: Court of Criminal Appeal, New South Wales
Date: 17 December 2020
Judge(s): Johnson J, Davies J, Adamson J

Background

The applicant was a former Salvation Army officer who had worked at a boys' home in Bexley during two periods in the late 1960s and early 1970s. The boys resident at the home were either wards of the State or had been placed there by families unable to care for them. The applicant was charged with historical sexual and physical offences against three former residents.

The matter proceeded as a judge-alone trial in the District Court before Judge Williams. After the close of evidence, the trial judge convicted the applicant on four counts: one count of indecent assault (count 2), one further count of indecent assault (count 5), and two counts of buggery (counts 8 and 10). He was acquitted of the remaining counts. The judge imposed an aggregate sentence of nine years and six months imprisonment, with a non-parole period of five years, eight months and 28 days.

The applicant sought leave to appeal against both his convictions and his sentence. Two grounds of appeal against conviction were advanced: first, that the verdicts were unreasonable and unsupported by the evidence; and second, that the trial judge should have disqualified herself from the proceeding due to apprehended bias arising from her recognition of a key Crown witness.

  • Whether the verdicts of guilty on counts 2, 5, 8 and 10 were unreasonable or could not be supported having regard to the evidence, including whether there had been a mistaken substitution of the applicant for another perpetrator
  • Whether a miscarriage of justice occurred because the trial judge failed to disqualify herself after recognising a crucial Crown witness as a person with whom she had a prior personal association
  • Whether, if the conviction appeal succeeded on the bias ground but not the unreasonable verdict ground, a new trial should be ordered rather than acquittals entered

Decision

Ground 2: Apprehended Bias

During the trial, Judge Williams recognised one of the Crown's key witnesses, CN, as a shop assistant with whom she had dealt over a lengthy period. CN was a central witness whose credibility was directly in issue. Davies J, with whom Johnson J and Adamson J agreed, held that a fair-minded lay observer, informed of the nature of that prior association and the significance of CN's evidence, would reasonably apprehend that the judge might not bring an impartial mind to her assessment of CN's credibility. The judge should have disqualified herself from further involvement in the trial. Her failure to do so constituted a miscarriage of justice, and the appeal succeeded on ground 2.

Ground 1: Unreasonable Verdict

The applicable standard required the applicant to demonstrate that the trial judge must have, rather than merely might have, entertained a reasonable doubt as to his guilt. All three judges independently reviewed the evidence. The Court of Criminal Appeal was not persuaded that any misidentification or displacement of the applicant for another perpetrator had occurred, noting that a number of other staff members at the home had separately been convicted of sexual offences but that the evidence disclosed no basis to conclude the applicant was confused with any of them. The trial judge had not found the applicant to be a reliable witness, and had formed a favourable impression of the complainants despite some gaps in their memories. The appeal on ground 1 was dismissed.

Outcome and Sentence

Because ground 2 succeeded and the convictions were quashed, the Court ordered a new trial. The conclusion on ground 1 that the verdicts were not unreasonable meant acquittals could not be directed; the appropriate remedy was a retrial. Given that outcome, the sentence appeal did not require separate consideration.

Orders Made

  • Leave to appeal granted
  • Appeal allowed on ground 2 (apprehended bias)
  • Convictions entered in the District Court on 13 September 2019 quashed
  • Sentence imposed on 20 December 2019 quashed
  • New trial ordered in respect of counts 2, 5, 8, 9 and 10 of the indictment
  • Proceedings stood into the arraignment list in the District Court at the Downing Centre on 5 February 2021

Key Takeaways

  • A trial judge who recognises a crucial Crown witness as someone with whom she has had a lengthy prior personal association, in circumstances where that witness's credibility is centrally in issue, is required to disqualify herself from further involvement in the trial. Failure to do so constitutes a miscarriage of justice.

  • The apprehended bias test asks whether a fair-minded lay observer, informed of all the relevant circumstances, would reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. The actual state of the judge's mind is not the focus of the inquiry.

  • Dismissal of an unreasonable verdict ground does not preclude a new trial where a separate ground (such as apprehended bias) succeeds and quashes the conviction. The two grounds operate independently.

  • In applying the unreasonable verdict standard in a judge-alone trial, the Court of Criminal Appeal must be satisfied that the trial judge must have entertained a reasonable doubt, not merely that she might have. The higher threshold reflects the distinction between the appellate and trial functions.

  • Where multiple staff members at the same institution have been convicted of sexual offences, a claim that the convicted applicant was mistakenly substituted for another perpetrator requires an evidentiary foundation. No such foundation was established on the evidence in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61, 79, 81

Cases
- Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497
- British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
- Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577; [2006] HCA 55
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Ford v R [2020] NSWCCA 99
- Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98
- Helow v Secretary of State for the Home Department [2008] 1 WLR 2416
- Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
- M v The Queen (1994) 181 CLR 487
- McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
- Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
- Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162
- Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
- R v McIver [2019] NSWDC 672
- R v McIver [2019] NSWDC 834
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13