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Court of Criminal Appeal 3 November 2023

Maules Creek Coal Pty Ltd v Environment Protection Authority

[2023] NSWCCA 275

Also reported as (2023) 112 NSWLR 507
Other

Citation: Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275
Court: Court of Criminal Appeal
Date: 3 November 2023
Judge(s): Leeming, Payne and Kirk JJA, Wilson and Fagan JJ

Background

A coal mining company faced four charges under the Protection of the Environment Operations Act 1997 (NSW) relating to its operations near Maules Creek. The trial was part-heard, having run across two tranches in early 2023 and September 2023, with a further hearing listed for November 2023.

During the first tranche, the trial judge encountered a woman in a lift at the courthouse. The judge had been told that university students would be observing proceedings, and she mistook this woman for one of those students, inviting her into chambers for a brief conversation. When it became apparent the woman was not a student, the judge quickly terminated the meeting. No substantive discussion of the case took place. The judge did not disclose the encounter to the parties at the time.

Over six months later, an email to the judge's associate from the same woman revealed she was an active public opponent of the mining company's activities. Her name had also been mentioned in passing in the trial evidence. Once the encounter came to light, the mining company applied for the trial judge to disqualify herself on the ground of apprehended bias. The judge refused and made a formal order to that effect. The mining company sought leave to appeal that order to the Court of Criminal Appeal.

  • Whether the trial judge's refusal to disqualify herself constituted an "interlocutory order or judgment" under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), giving the Court jurisdiction to entertain the application
  • Whether leave to appeal should be granted
  • Whether the trial judge erred in declining to disqualify herself on the ground of apprehended bias

Decision

On jurisdiction: A five-judge bench was convened because an existing line of Court of Criminal Appeal authority held that refusals of disqualification applications fell outside the meaning of "interlocutory order or judgment" in s 5F(3)(a). The Court held that line of authority was overtaken by subsequent High Court and Court of Appeal decisions, including Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 and QYFM v Minister for Immigration [2023] HCA 15. Those decisions undermined the reasoning in Barton v Walker [1979] 2 NSWLR 740, on which the earlier authorities rested. The Court found there was jurisdiction to grant leave to appeal.

On leave: The Court granted leave on the particular facts, but signalled this should not be read as an invitation for routine interlocutory challenges to disqualification rulings. Concerns about fragmentation and delay in criminal trials will weigh heavily against granting leave under s 5F in most disqualification cases.

On apprehended bias: The Court considered three overlapping strands of argument. First, the judge's failure to articulate precisely what was said before she terminated the meeting. Second, the possibility that brief exposure to a critic's views could unconsciously compromise impartiality. Third, the significance of the non-disclosure over six months. On each strand, the Court found against the mining company. Proceeding on the most favourable factual assumption (that the visitor may have communicated a negative view of the mining activities), the Court held that the brief, innocent, and mistaken encounter did not meet the apprehended bias test. A fair-minded lay observer would understand that judges are exposed to a range of community opinions, that the judge herself appreciated the significance of the encounter by terminating it immediately, and that no member of the Land and Environment Court could be unaware that mining is a subject of strongly held views.

On non-disclosure, the Court accepted the trial judge's decision not to disclose the meeting was erroneous. However, it was also understandable given the innocent circumstances and the judge's apparent lack of recollection of the visitor's name. The non-disclosure did not, taken with all other facts, strengthen a reasonable apprehension of bias. The fair-minded lay observer would conclude the encounter was an innocent and unfortunate event of no practical significance to the proceedings.

Orders Made

  • Leave to appeal granted pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW)
  • Appeal dismissed

Key Takeaways

  • A refusal of a disqualification application in a criminal trial is an "interlocutory order or judgment" under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), overturning an earlier line of Court of Criminal Appeal authority that rested on reasoning since undermined by the High Court and the Court of Appeal.
  • Granting leave to appeal a disqualification ruling under s 5F will remain rare: concerns about trial fragmentation and delay will weigh heavily against leave in most cases, and the grant here was not intended to lower that threshold.
  • Apprehended bias requires a reasonable apprehension, not a fanciful or speculative one. The hypothetical fair-minded lay observer is taken to understand that judges are required to discard the irrelevant and the prejudicial, and that judges are community members already exposed to a range of opinions on contentious subjects.
  • Where a judge's non-disclosure of an unusual event is erroneous but explicable by the innocent circumstances, that non-disclosure does not, of itself, transform what is otherwise insufficient to meet the disqualification test into something that does.
  • The law maintains a strong repugnance to judges receiving communications about a case outside court processes; however, an inadvertent and brief encounter, immediately terminated once its improper character was apparent, may fall well short of the authorities establishing disqualifying conduct.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5AE, 5F, 5F(2), 5F(3)(a)
- Protection of the Environment Operations Act 1997 (NSW), ss 64(1), 140(1)
- Supreme Court Act 1970 (NSW), s 101(1)
- District Court Act 1973 (NSW), s 127(2)(a)
- Judiciary Act 1903 (Cth), s 34

Key Cases
- Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48
- Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- QYFM v Minister for Immigration [2023] HCA 15
- Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26
- Polsen v Harrison [2021] NSWCA 23
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Barton v Walker [1979] 2 NSWLR 740
- Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182
- Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
- CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22