Citation: R v Ryan (a pseudonym) (No.1) [2021] NSWDC 727
Court: District Court of New South Wales
Date: 15 November 2021
Judge(s): Colefax SC DCJ
Background
The accused, referred to by the pseudonym Ms Ryan, had been charged with offences arising from injuries sustained by her then six-week-old son. After a lengthy procedural history spanning more than 18 court appearances, she entered pleas of guilty in February 2021 and the matter was transferred, with the consent of all parties, to the presiding judge for a contested facts hearing.
Before the contested facts hearing came on, the same judge had sentenced Ms Ryan's co-offender, Mr George (also a pseudonym), in open court on 16 February 2021. Ms Ryan, her counsel, and her solicitors were all present and heard those remarks in full. In the course of that sentencing, the judge found Mr George's evidence to be untruthful, unreliable, and inconsistent.
No application for recusal was made at that time, nor when the contested facts hearing was formally appointed on 4 March 2021. The recusal application was filed on the morning of the contested facts hearing itself, following a change in legal representation and after no expert evidence had been served in accordance to the timetable.
Legal Issues
- Whether the judge should disqualify himself from presiding over the contested facts hearing on the ground of apprehended bias arising from his earlier remarks when sentencing the co-offender Mr George.
Decision
The apprehended bias application:
The judge applied the three-step framework for disqualification applications set out by Gageler J in Isbester v Knox City Council (2015) ALJR 619. That framework requires identification of the factor said to cause bias, articulation of how that factor might produce a deviation from neutral evaluation, and assessment of whether a fair-minded observer would reasonably apprehend such a deviation (at [28]-[29]).
The judge emphasised that the fair-minded observer is an informed one, equipped with knowledge that judicial officers are trained, experienced, and bound by oath to decide factual contests solely on admissible evidence, discarding the irrelevant and prejudicial (at [31]). That observer would also know the content and context of what was actually said in the George sentencing.
The judge found that a fair-minded observer would recognise that Ms Ryan gave no evidence in the George proceedings, was not represented, and did not participate in any way (at [35]). Such an observer would equally appreciate that sentencing judges routinely sentence co-offenders with substantially different agreed facts or preside over hearings involving disputed facts (at [37]). Nothing in the George judgment could lead a fair-minded observer to conclude the judge held any views about Ms Ryan at all (at [38]).
The application was also refused having regard to the significant delay in bringing it, given that Ms Ryan and her legal representatives were present when the George sentence was delivered and no application was made on that day or at the next court event (at [39]).
Orders Made
- The application for disqualification/recusal is dismissed.
Key Takeaways
-
Refusing the recusal application, the District Court confirmed that the three-step Isbester framework governs disqualification applications: identifying the potentially biasing factor, articulating how it could cause deviation from neutral evaluation, and assessing the reasonableness of any apprehension by a fair-minded informed observer (at [28]-[29]).
-
A fair-minded observer is an informed one who understands that judicial officers are equipped by training, experience, and oath to decide matters solely on the evidence before them, and who would not lightly conclude that prior findings in separate proceedings created prejudgment (at [31]).
-
Where a judge makes adverse credibility findings against a co-offender in separate sentencing proceedings, and the accused in the subsequent matter gave no evidence, was unrepresented, and did not participate in those proceedings, no apprehension of bias against that accused arises (at [35], [38]).
-
Sentencing courts regularly deal with co-offenders on different factual bases, and a fair-minded observer would be taken to know this (at [37]).
-
Significant unexplained delay in bringing a recusal application, particularly where the applicant was present at the proceedings said to give rise to the apprehension, is a relevant consideration counting against the application (at [39]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- R v George (a pseudonym) [2021] NSWDC 18; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507; Johnson v Johnson [2000] 201 CLR 488; Helow v Home Secretary [2008] 1 WLR 2416; Isbester v Knox City Council (2015) ALJR 619.