Judicial Bias

Gleeson CJ, McHugh, Gummow and Hayne JJ (would dismiss the appeals)

1. These two appeals were heard together. In each case it was contended that the judge who heard and determined the proceedings at first instance was disqualified by reason of a shareholding in a listed public company, Australia and New Zealand Banking Group Ltd ("the Bank"). In the first case, the judge did not hold shares in the Bank personally, but was a beneficiary of a trust which held the shares. The Bank was not a party to the proceedings, but had a financial interest in the outcome. In the second case, the judge held the shares personally, and the Bank was a party to the proceedings. In that case, the circumstances in which the judge came to hold the shares also gave rise to a question whether, even if the judge would otherwise have been disqualified, considerations of necessity required that he should determine the matter.

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6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

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54. Having regard to the current state of the common law in Australia on the subject of disqualification for apprehended bias, we do not accept the submission that there is a separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding. The principle of general application earlier considered would have been sufficient (had it then existed) to cover the case of Dimes. For the reasons already explained, a rule of automatic disqualification would be anomalous. It is in some respects too wide, and in other respects too narrow. There is no reason in principle why it should be limited to interests that are pecuniary, or why, if it were so limited, it should be limited to pecuniary interests that are direct. This is illustrated by the problem that concerned the House of Lords in Pinochet (No 2). The concept of interest is itself vague and uncertain. It is not logical to have one rule applying to disqualification for interest and a different rule applying to disqualification for association. A problem that has attended attempts to apply the rule has been whether, notwithstanding the language in which it has been expressed, it is subject to a de minimis qualification.

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The facts in Ebner

13. The appellant's husband was a bankrupt. Proceedings were brought in the Federal Court of Australia by the Official Trustee in Bankruptcy, pursuant to ss 120 and 121 of the Bankruptcy Act 1966 (Cth), seeking a declaration that a transfer of property to the appellant by the bankrupt was void.

14. The Bank was not a party to the proceedings. However, it was a creditor of the bankrupt and contributed to the funding of the proceedings instituted by the Official Trustee. In that respect, the Bank had a financial interest in the outcome of the proceedings. The property in question, which was said to be worth between $300,000 and $450,000, had been transferred for $150,000. There was no possibility that the outcome of the proceedings would affect the market value of shares in the Bank.

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The facts in Clenae

17. The Bank sued the borrowers of a foreign currency loan.

The borrowers counterclaimed, alleging negligence and unconscionability. The case was heard by Mandie J. The trial lasted 18 days. The judge reserved his decision for a lengthy period. During that period a principal witness for the Bank died. During the same period, the judge's mother also died. The judge inherited from her 2,400 shares in the Bank. The value of the shares fluctuated, the highest level being $11.45 per share. There were, at the relevant time, more than 1,508 million ordinary issued shares of the Bank, and there were more than 130,000 shareholders. The net assets of the Bank were of the order of $8,000 million. It was conceded that it could not be argued that the outcome of the case would have affected the judge's value of the shares in the Bank. That concession was examined and was held to have been correct.

18. Mandie J did not disclose his inheritance. He gave judgment in favour of the Bank. Later, the fact of his shareholding was discovered by the borrowers. They appealed to the Court of Appeal of Victoria, arguing that the trial judge was disqualified by reason of his shareholding in the Bank. Winneke P and Charles JA held that Mandie J was not disqualified by reason of any rule relating to bias or interest. Callaway JA decided the case on a different ground, holding that, in the circumstances, which included the length of the trial, and the death of an important witness, it was necessary for Mandie J to deliver judgment notwithstanding the shares he had acquired by inheritance after reserving his decision. On that point the other two members of the Court agreed.

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67. It was argued that Mandie J's failure to disclose his acquisition of shares in the Bank was itself a ground of, or constituted evidence in support of a ground of, disqualification. This argument requires consideration of the matter of disclosure of potentially disqualifying interests or associations, although in the relatively straightforward context of ownership of shares in listed public companies. In other contexts, the problem may be more difficult.

68. It is necessary to distinguish between considerations of prudence and requirements of law.

69. As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge.

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74. We note that Callinan J, in relation to the third matter referred to in his reasons for judgment, has expressed the view that it would be preferable in future for challenges of apprehended bias to be determined, where possible, by a judge other than the one who has been asked to disqualify himself or herself. With respect, we are unable to agree. On that approach, for example, some other judge of the Federal Court would have considered the challenge made to Goldberg J in Ebner. Adopting such a procedure would require examination of the power of that other judge to determine the question and the way in which that other judge's conclusion would find its expression. In particular, is the question of possible disqualification to be treated as an issue in controversy between the parties to the proceeding and is it to be resolved by some form of order? The issue is not one which was argued in the present appeals, and it is sufficient to say that, in our view, Goldberg J adopted what was both the ordinary, and the correct, practice in deciding the matter himself.

Gaudron J (would dismiss the appeals)

78. The other difference is that, in the first appeal, the judge who heard the matter disclosed his interest in the shares in question; in the second, the judge did not. Doubtless the judge's failure to disclose his interest was the result of his acquisition of the shares on the death of his mother some time after he had reserved his decision. Nonetheless, his failure in that regard is a matter which necessitates specific consideration.

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95. The first qualification to what has been said is this: it cannot be assumed that proceedings to which a company is party will not affect the value of an individual's shares in that company or otherwise affect the individual's interest in those shares. That is a question that requires investigation in every case. Logically, the question whether proceedings might affect the value of shares or a judge's interest in them can be determined at any time, including on appeal. However, the efficient administration of justice requires that it be determined at the earliest possible stage. And that necessitates that the judge disclose his or her interest in the company at the first opportunity.

96. Although it is not necessary to determine the issue in these appeals, it is my view that the fair-minded lay observer would not conclude that a judge might not bring an impartial mind to bear on proceedings simply because his or her partner or spouse owns shares or has some other financial interest in a public company which is party to proceedings or has an interest in their outcome. At least that is so if the shareholding or other interest is not substantial. And if it is not substantial, there is no reason why his or her shareholding should be disclosed. Indeed, it cannot be disclosed if - as may often be the case - the shareholding is not known to the judge.

97. It is necessary to turn to the second qualification to which I referred earlier. That qualification concerns shareholdings which a fair-minded lay observer might consider to be substantial. In my view, a fair-minded lay person might reasonably apprehend, if a judge or a member of his or her household has a substantial parcel of shares or a substantial financial interest in a public company that is party to a litigation, that the judge is so closely associated with that company that he or she might not bring an impartial mind to bear on the proceedings.

98. Of course, minds may differ as to what constitutes a substantial holding or financial interest in a company. However, the ultimate question is what a fair-minded lay observer might think, not whether the shareholding is or is not substantial. For this reason, any holding or financial interest by a judge in a public company which cannot fairly be described as modest should be regarded as substantial. And in my view, waiver and necessity aside, a substantial shareholding or financial interest automatically results in a judge's disqualification if the company concerned is a party to litigation or has an interest in its outcome.

The present appeals

99. In each case, the judge's shareholding in the public company involved in the proceedings before him is fairly described as modest. And, as the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ make clear, in neither case could the outcome of the proceedings in question affect the value of the judge's shares or his interest in them. Thus, in neither case was the judge automatically disqualified. And as the parties point to nothing else which could in any way be affected by the outcome of the proceedings in question, there is no basis on which it could be said, in either case, that a fair-minded lay person might reasonably apprehend that the judge would not bring an impartial mind to the resolution of the issues in the proceedings before him.

100. It is unfortunate, that, in the proceedings involved in the second appeal, the judge did not draw his shareholding to the attention of the parties. The parties were thereby deprived of an opportunity, at that stage, to put submissions as to whether his shareholding was substantial and, also, whether his interests could be affected by the outcome of the proceedings. However, those questions have since been investigated and answered adversely to the appellants in that matter. Earlier investigation would necessarily have produced the same answer. The fact that the parties were not afforded an opportunity to put submissions at an earlier stage cannot alter the outcome of the appeal.

Kirby J (would dismiss the appeal in Ebner as being de minimis, but would allow the appeal in Clenae)

111. It was contended for each of the appellants that the test for disqualification to be applied was not the test for apprehended bias. Instead, each argued that the judge in question was automatically disqualified. This was so by reason of an established rule of the common law. According to that rule, "any direct pecuniary interest, however small, in the subject of inquiry ... disqualif[ies] a person from acting as a judge in the matter". This is so because the judge is regarded as being impermissibly involved with a party, and thus not wholly disinterested. He or she is not independent and impartial as between the party and its opponent. In this sense, the judge has become a judge in his or her own cause, in breach of a principle long held sacred. This Court was invited to reaffirm this common law rule.

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146. Although it is impossible to be dogmatic, I take the common law principle which forbids a judge from having a pecuniary interest, at least one involving a direct interest in a particular party, as a principle mainly concerned with upholding the fundamental guarantee of judicial "independence". I take the guarantee of "impartiality" as one basically supported by the common law principle of disqualification for apprehended bias as perceived by a reasonable bystander. The fact that there are two basic notions expressed in human rights norms makes it unsurprising that, over 150 years, the common law should have evolved two principles of its own that to some extent overlap. This fact imposes a brake on any overly enthusiastic reduction of the separate legal rules into a single overarching one.

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162. In the result, I would adhere to the settled authority of this Court as most recently explained by Deane J in Webb v The Queen. There is a "special class" of case where a judge is disqualified when he or she has "a direct pecuniary interest in the outcome of the proceedings". That "special class" includes all direct pecuniary interests. All other cases of disqualification fall to be decided by reference to the principle of apprehended bias based on the reasonable impression of the hypothetical bystander. This has long been the way the law in Australia has approached such questions. The approach should not be changed.

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168. Indirect, remote and speculative interests excluded: Similarly, it is appropriate to confine the principle, in the terms in which Deane J stated it, to cases where the pecuniary interest in question is a "direct" one. A judge is not expected to stand aside where his or her interest in the subject matter of, or in a party to, the litigation (or that of a close family member) is "indirect and attenuated" or "speculative".

169. The fact that a judge does not personally have shares in a litigant corporation will not necessarily render an interest "indirect" if it is held by a close family member and its existence is known to the judge. In such a case, it is the usual practice of judges in Australia to disclose such interests as are known, to place them on the record, and to seek waiver of the judge's participation in the proceedings, which is ordinarily given. Even where the interests of close family members are disclosed and no objection is taken, a judge may still regard it as necessary or desirable to decline participation. This may be done notwithstanding that the decision occasions delay and unrecoverable costs. To hold that a judge is disqualified only in the case of a substantial pecuniary interest, or one liable to be affected by the adjudication, misstates the longstanding and strict common law rule. It also undermines the achievement of the purposes of that rule. I would adhere to the established law.

170. Relevance of disclosure: Disclosure of a relevant pecuniary interest is a precondition for effective waiver on the part of the parties. Indeed, such disclosure, if complete, enlivens a duty in the parties affected to object without delay to the continued participation of the judge. I have previously questioned the entitlement of a party to waive the right to an independent and impartial tribunal, given that such right belongs as much to the public as to the parties. However, that issue must now be taken to have been settled by this Court. I do not dissent from the principle so established. Obviously, it has great practical advantages.

171. Many authorities emphasise the prudence and desirability of disclosing to the parties any facts or circumstances which could lead to a disqualification for bias. Moreover, in some circumstances, failure to disclose such an interest will not only remove the possibility of an informed waiver but will lead to a sense of disquiet, and perhaps the suggestion that the want of disclosure has an improper or sinister explanation. In Australia, for lack of a public register, a litigant cannot ordinarily be expected to ascertain, in advance, any relevant undeclared pecuniary interest of the judge. Often the litigant will be unaware of the identity of the judge until immediately before the hearing.

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Conclusions

173. Having decided that the special rule for automatic disqualification for pecuniary interest in the subject matter of, or in a party to, litigation, remains, in the circumstances in which it applies, I must apply that rule to each of the appeals before this Court. In the case of Clenae, it also remains to consider the suggested exception on the ground of necessity.

Callinan J (would dismiss the appeals)

182. I agree with the reasons for judgment and orders proposed by Gleeson CJ, McHugh, Gummow and Hayne JJ. I would however, draw attention to these further matters.

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (would dismiss the appeal)

1. The question in this appeal from the Full Court of the Family Court of Australia is whether the trial judge, Anderson J, was disqualified from continuing to hear the case on the ground of apprehended bias. The Full Court of the Family Court decided that question in the negative.

2. The parties to the appeal were married in November 1979. The marriage was dissolved in 1996. The proceedings before Anderson J arose out of a dispute as to the financial arrangements to be made following such dissolution. There was a substantial amount at stake. It was held that there was what the Full Court described as an "asset pool" valued at nearly $30 million. Anderson J decided that the respondent (the wife) should receive 40 per cent of that pool. One of the principal areas of dispute at the trial, which lasted for 66 days, concerned the extent of the appellant's assets and, in particular, whether he was beneficially interested in substantial offshore assets owned by other persons and entities. It is unnecessary to go into the detail of that dispute. What is important is that, at the trial, the respondent was asserting, and the appellant was denying, that the appellant was beneficially interested in various assets, and the investigation of that issue of fact involved a great deal of hearing time.

3. On the twentieth day of the hearing, Anderson J made a comment which resulted in an application by counsel for the appellant that he should disqualify himself.

The application for disqualification

4. The comment of Anderson J referred back to statements made earlier in the trial, and to an application by the appellant's counsel, to which the statement was a response. It is necessary, therefore, to examine the context.

5. The record of the trial shows that there was recurring argument about the discovery of documents, and frequent objection by counsel for the appellant to what he contended to be an undue widening of the scope of discovery. Before the commencement of the trial, both the appellant and the respondent filed written statements of the evidence they were to give. The respondent gave evidence first. At an early stage of the hearing, whilst the respondent was being cross-examined, she was asked about a claim she made that a certain asset belonged to the appellant. In the course of an exchange between counsel and the trial judge, the judge remarked that, having regard to the nature of the issues between the parties, he would "be looking, insofar as it is possible, to independent evidence." Some days later, in the course of a similar exchange, the judge said:

"As I indicated a couple of times earlier in these proceedings, I will be certainly looking to the independent people and independent documents in the search for the truth in this matter."

6. These were perfectly understandable observations, and no possible exception could be taken to them. There was no complaint about them, either at the time, or later. The hearing progressed.

7. On 19 March 1997, after a further discussion with counsel as to the discovery of documents, Anderson J ruled that the appellant was required to list, as discoverable documents, certain transcripts of proceedings in an investigation by a corporate regulatory authority. At that stage, the appellant had still not given oral evidence. At the close of proceedings on 19 March 1997, counsel for the appellant applied for the ruling to be vacated. In support of the application, counsel complained again about the width of discovery and the time and expense that was being taken up in what he said was turning into a Royal Commission. Responding to that submission, Anderson J said:

"Well, [let] me go back to what I said at the very beginning ... is that I will rely, principally, on witnesses other than the parties in this matter - and documents - to determine where the truth lies; and any other documents that are available to assist me in that regard, I'll be grateful to receive. I'm not vacating my earlier order; and I am adjourning."

8. On the following day, counsel for the appellant applied to the judge to disqualify himself, arguing that the case was indistinguishable from R v Watson; Ex parte Armstrong. In response to that application, Anderson J said:

"Before this matter began, I spent 2 days reading the affidavits filed by both parties and some of the witnesses. ... It was apparent that there was a wide divergence between the evidence of both parties relating to the matters in issue in this case. That has become more apparent as the case has proceeded. I drew attention to this difficulty. When yesterday I repeated what I earlier said, I was simply pointing out to the parties the wide divergence. It was going to be a difficult task. My statement was not to be taken as a predetermination of the credibility of both parties, or of either of them. My statement merely affirms my need to look to the other evidence to assist in determining who is telling the truth. I was not saying I would not accept the evidence of either party; I did not reject the credit of both parties; I was merely saying that the other evidence was important in determining the credit of one or other of the parties".

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12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

14. There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.

The present case

15. The comment made by Anderson J at the conclusion of proceedings on 19 March 1997 has to be considered in the context in which it was made. The judge was ruling on an application to vacate an order requiring discovery of certain documents. Counsel was urging that the obligations of discovery which had been imposed on his client were unduly onerous. In response, the judge reminded counsel that, early in the case, having read the written statements of the parties and other witnesses, he had said that he expected that, in determining where the truth lay, he would be looking to independent evidence, including documentary material. Hence the importance he attached to discovery. He repeated that view. He was making a point about the significance of documentary evidence, which was the subject of the application on which he was ruling.

16. If one were to remove some of the words used by Anderson J from the context of the ruling on discovery, and the reference back to earlier statements, then, upon parsing and analysis, they could possibly have created an impression that the judge was discounting the credit of the respondent (whose evidence he had heard) and of the appellant (whose evidence he had not heard). To isolate the words in that way would not have been reasonable. When, on the following day, the judge gave an explanation of what he had intended to convey by his earlier remarks, there was no reasonable ground for not accepting that explanation. A reasonable observer would not have imputed to Anderson J, who had not yet heard the appellant give evidence, a view that the appellant was a person whose credit was of no worth.

Kirby J (would dismiss the appeal)

52. There is no simple answer to the foregoing questions. As is usually the case when a fiction is adopted, the law endeavours to avoid precision. The nature of the fiction involved in this instance is illustrated by the many ways in which the hypothesised bystander is described. Phrases that have been used include the "lay observer", "fair-minded observer", "fair-minded, informed lay observer", "fair-minded people", "reasonable or fair-minded observer", "reasonable and intelligent man", the "parties or the public", a "reasonable person", or (as has sometimes been favoured in England and Canada) the somewhat quaint and circular phrase, a "right-minded" person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits.

53. The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

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Conclusion: prejudgment is not demonstrated

55. When the foregoing considerations are taken into account, I do not consider that prejudgment on the part of the primary judge is shown in this case. The case, in significant ways, is different from Watson. The judge's statement here was more qualified, less emphatic and less personal to the parties. It was apparently open to dissuasion or modification. When the context and the entire circumstances are taken into account, a fictitious bystander, observing what was said and done, would not, in my view, entertain a reasonable apprehension that the primary judge might not bring an impartial and unprejudiced mind to the resolution of the issues before him. All the judge did was to repeat the statement that he had made earlier in the proceedings. It was an obvious statement which showed good sense. It could be understood by lawyer and layperson alike.

56. The timing of the judge's statement was not, in the end, an indication of prejudice against, or predisposition to disbelieve the oral testimony of, the appellant. On the contrary, following the testimony of the respondent, and referring to her as well as to the appellant, it indicated an adherence to the sensible view stated at the outset of the hearing.

57. We should not attribute to the fictitious bystander, any more than to the modern adjudicator and lawyer, a conviction that judges, or adjudicators as a class have a special capacity to distinguish truth from falsehood by the appearance of witnesses or the presentation of their oral evidence. As I read the primary judge's intervention in this case, it was rather a timely reminder to the appellant and his lawyers of the judge's general approach. Such a reminder afforded the appellant and his representatives the opportunity to present the oral testimony of the appellant in a way that sensibly laid emphasis on all of the means available to establish, objectively, the entirety of the property belonging to the appellant or under his control. It was well timed because the ascertainment of that property was crucial to the resolution of the dispute between the parties. In their comparative positions of access to evidence, including documentary evidence, the appellant had obvious advantages over the respondent. All the judge did was to remind the appellant of the approach that he was inclined to take.

Callinan J (would dismiss the appeal)

The Appeal to this Court

70. The grounds of appeal to, and the argument in this Court, came down to three basic propositions: that the Full Court should have held that his Honour's statement on the 20th day of the trial did give rise to a reasonable apprehension of bias; that nothing that had happened or had been said earlier ameliorated the impact of his Honour's statement; and what his Honour said later in declining to disqualify himself did not cure the perception which the statement in question would have engendered in the mind of the fair-minded observer.

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80. As was made clear in Watson's case for an apprehension of bias to be created the remarks that a judge makes need not be confined to remarks about one party only. Nor to create such an apprehension do the remarks necessarily need to be disparaging of a party or the parties. Something might be said or done by a judge which simply has the effect of producing in the mind of a fair-minded observer a reasonable perception that a fair trial, is not occurring, or has not taken place. As to the latter however it is important to keep in mind that the notional, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct. Furthermore it is as well to keep in mind what Mason J said in Re JRL; Ex parte CJL:

"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way."

81. In my opinion, what was said by the trial judge in this case was reasonable in its language, and was said in circumstances in which it was reasonable for his Honour to say it.

82. As counsel for the respondent submitted, the statement by the trial judge had to be placed in context. His Honour had earlier suggested to counsel for the appellant that he ought put to the respondent the actual documents evidencing an alleged loan whose existence she mistrusted. This had apparently remained undone. It was an entirely reasonable suggestion. By the time that his Honour made his comments the issues in the case should have been fairly clearly defined. His Honour's position might well therefore be contrasted with the position of a judge, who may have, for example, engaged in intensive case management before a trial, and has come to believe himself or herself so well educated about the proceedings, and the respective positions of the parties, as to be able to make predictions about the outcome on the impressions so far formed, a real danger which may lie in intensive case management undertaken by a judge who is to conduct the trial.

Spigleman CJ

1. On 2 December 2002, the Appellant was found guilty by a jury on each of nine counts in an indictment alleging breaches of ss232(6) and 1317FA(1) of the Corporations Law 1991 or ss178BA and 178BB of the Crimes Act 1900.

2. On 18 December 2002, the Appellant was sentenced to terms of imprisonment in respect of each count, ordered to be served partly consecutively and partly concurrently, resulting in an overall head sentence of six years, with an effective non-parole period of four and a half years.

3. The Nambucca Group of Companies carried on a business in Macksville in northern New South Wales raising funds by the issue of debentures and investing those funds by the provision of mortgage finance and the purchase and development of property in the community. Business was transacted through a series of interrelated companies of which Nambucca Investments Pty Limited ("Nambucca") and Lawnkin Pty Limited ("Lawnkin") were two.

4. By the nature of its activities Nambucca obtained funds from investors who entrusted their savings to the corporate group. The ability of such investors to obtain a return on their capital and, indeed, to obtain the return of their capital, in accordance with the terms upon which they entrusted their funds to the financial intermediary, depended on the honesty of those in control of the companies. The faith that investors have in the honesty of corporate controllers enables such transactions to occur.

5. The maintenance of that faith is of vital significance to the economic affairs of this nation. For that reason, and also by application of general principles of the criminal law against fraudulent conduct, default on the part of corporate controllers is regulated by the criminal law.

6. In the context of the Nambucca group, the Appellant and an associate, Mr Damien Parkes, were prosecuted and convicted of a range of offences of this character. Parkes was convicted in a separate trial, but the circumstance that the trial judge was the same as in the case of the Appellant has given rise to the ground of appeal against conviction.

…

21. In the course of the trial the Appellant put in issue a number of matters. He disputed his appointment as trustee for debenture holders and denied he had assumed control of Nambucca. He also denied that he was the author of certain communications.

22. Furthermore, he also asserted that certain other people, including Damien Parkes, had conspired against him to fabricate allegations of deception to ASIC to camouflage their own involvement in the collapse of the Nambucca Group. He asserted that these others had been actively involved in the management of the Nambucca Group. He further asserted that they had prepared for ASIC what he described as a "cut and paste" forgery, setting out the alleged terms and conditions of a takeover purportedly signed by the Appellant as director of the Equitable Life Insurance Group of New Zealand.

23. These were matters which were resolved against the Appellant by the jury verdict.

The Conviction Appeal

24. In the event, there is one ground of appeal concerning the conviction and that turns on the coincidence to which I have already referred, that the trial judge had also been the trial judge in the prosecution of Parkes.

25. Damien Parkes was the principal of a company known as Austwide Capital Limited ("Austwide") through which Parkes offered his services as a finance broker. It was Parkes who had introduced the Appellant to those from whom he had acquired the control of the Nambucca Group.

…

31. As I have indicated, there is only one ground for the conviction appeal. It was originally put to the trial judge, that his Honour should disqualify himself from hearing the case on the basis of a reasonable apprehension of bias. That bias was said to arise, as I have indicated, from the fact that his Honour had previously presided at the criminal trial of Damien Parkes.

32. The Appellant contended, and still contends, that a number of witnesses had given evidence before Judge Dodd and the jury in the Parkes trial. The role and activities of the Appellant had arisen frequently in the course of that evidence. Indeed, in Judge Dodd's summing up in the Parkes trial, the Appellant's involvement with the Nambucca Group was frequently referred to - according to the Appellant's submissions - on 61 occasions.

33. The Appellant contends that his Honour's involvement, even as a presiding judge in a jury trial, gave rise to a reasonable apprehension of bias. It was submitted that as his Honour had heard the alleged fabrications of Parkes and of those whom the Appellant contends are his co-conspirators, i.e. fabricated allegations against the Appellant, in a trial where those allegations against the Appellant were uncontested, that fact may have prejudiced the trial judge.

34. The fact that the trial judge's role in a jury trial is limited is not determinative of the matters, however, it is of significance. That it is not determinative is shown by the Court of Appeal in the case of Balic (No 2) (1994) 75 A Crim R 515 at 520, where their Honours said:

"Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge."

…

37. Nevertheless, decisions to admit or reject the evidence and the other subtle and indirect influences which were referred to in Balic (No 2), may affect the course of a criminal trial. In a complex trial involving financial questions that will need to be carefully explained to a jury, it is an advantage for a trial judge to have a familiarity with the corporate group of the character that Judge Dodd had on these occasions, even though the particular offending was quite distinct in the case of the Parkes prosecution from the prosecution of the Appellant.

38. I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge's mind, in terms of his or her conduct in the second trial.

39. These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.

40. This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair-minded, independent lay observer.

41. In my opinion, the appeal against conviction should be rejected.

Dunford J

78. I agree.

Hidden J

79. I agree.

Hodgson J

1. On 6 August 2007, the appellants were arraigned before Conlon DCJ on a joint indictment that charged that they:

On the 21st day of October 2005, at Farmborough Heights, in the State of New South Wales, did break and enter the dwelling house of Nicole and Stephen Muir situated at 146 Waples Rd, Farnborough Hts, and did commit a serious indictable offence therein namely did steal a black Caribee bag, a Nintendo game cube, 18 assorted games, a Compaq laptop computer and computer bag, a red Nike sports bag, a mini Sony Play Station 2 console and controller, a JVC digital video recorder, a Polaroid digital camera and Takstar headphones and a quantity of jewellery, the property of Nicole and Stephen Muir in circumstances of aggravation namely they were in company of one another.

2. They pleaded not guilty, and they were tried before Conlon DCJ and a jury. On 13 August 2007, the jury returned a verdict of guilty.

…

9. On 8 August 2007, counsel for Mr Muldoon applied to have the trial judge disqualify himself, on the ground that in 1999, as a Crown prosecutor, the trial judge had prosecuted Mr Muldoon in respect of another offence. The trial judge gave judgment on that day refusing that application.

…

23. On 1 March 1999 in Wollongong District Court, Mr Muldoon had been prosecuted by the trial judge, then a Crown prosecutor, for an offence of robbery in company at Puckey’s Estate Reserve, in 1997. The appellant’s two co-accused in that matter pleaded guilty to more serious charges involving a vicious attack on a man. The case had some publicity at the time. The appellant was convicted. As noted earlier, an application was made that the trial judge disqualify himself, this application having been made on the third day of the present trial after the trial judge’s involvement in the previous trial had been brought to the attention of the appellant’s counsel.

24. Mr Haesler SC for Mr Muldoon submitted that a judge should be disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. The principle applies in relation to judges sitting with a jury: R v Kearns [2003] NSWCCA 367.

25. Mr Haesler submitted that a fair-minded observer might reasonably apprehend that the trial judge’s prior prosecution of Mr Muldoon for a very serious offence would interfere with the apparent fairness of the trial.

26. In my opinion, the following matters are important in relation to this question:

(1)         The ultimate question is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Ebner at [6], Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11].

(2)         This principle applies to judges sitting with a jury: Kearns. (In the present case, the trial judge’s rulings on admissibility of evidence were particularly important.)

(3)         As regards the characteristics of the relevant lay observer, this observer, being reasonable and fair-minded, would “ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant issues”: Johnson at [53] per Kirby J.

(4)         Amongst such considerations would be that the person being observed is a professional judge whose training, tradition and judicial oath and/or affirmation require [the judge] to disregard the irrelevant, the immaterial and the prejudicial: Johnson at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, quoting from Vakauta v Kelly (1988) 13 NSWLR 502 at 507 per McHugh JA.

(5)         In the case of the suggestion of appearance of bias because of previous role as a prosecutor, one relevant consideration would be that, although a Crown prosecutor adopts an adversarial role in a criminal prosecution, it is the prosecutor’s responsibility to act fairly and honestly and not to struggle for a conviction: McCreed v The Queen [2003] WASCA 275 at [33] (per Steytler J with whom Malcolm CJ agreed). There was no suggestion in the present case that the trial judge acted otherwise than in accordance with that responsibility.

(6)         Judges should not accede too readily to suggestions of an appearance of bias lest parties be encouraged to seek such disqualification without justification: Johnson at [45] per Kirby J, Re JRL [1986] HCA 39; (1986) 161 CLR 342 at 352. (In the present case, the circumstance that disqualification would cause a third trial to be aborted was not itself relevant to the issue to be determined, but is illustrative of the necessity to apply the test for apprehended bias realistically.)

(7)         There was in this case a lapse of time of over eight years; and it did not occur to Mr Muldoon that it was the trial judge who had prosecuted him unless well into the third trial. Also, it did not occur to the judge, and the judge had no recollection of the circumstances of the earlier prosecution.

…

28. In my opinion, having regard to all the considerations I have set out, and having regard particularly to the lapse of time, this too was not a case in which the trial judge was required to disqualify himself.

James J

49. I agree with Hodgson JA.

Price J

50. I agree with Hodgson JA.

Hoeben CJ at CL

Charges and sentence

1. The applicant entered a plea of guilty before the Chief Judge of the District Court on 2 May 2013 to a charge that he did, on 18 April 2012 at Glebe in the State of New South Wales, being armed with an offensive weapon namely an axe, rob Gurmit Singh of certain property, namely a sum of cash, a number of packets of cigarettes and a quantity of telephone credits and at the time of that robbery, did wound the said Gurmit Singh.

2. The plea of guilty was accompanied by a three and a half page Statement of Agreed Facts signed by the applicant. His co-accused, James Simon (Simon), also entered a plea on the same charge. The offence was contrary to s98 of the Crimes Act 1900 for which the maximum sentence was imprisonment for 25 years and which had a standard non-parole period of imprisonment for 7 years.

3. The sentence proceedings were heard before Maiden DCJ on 28 June, 19 July and 9 September with judgment delivered on 13 September 2013. The applicant was sentenced to a term of imprisonment with a non-parole period of 2 years and 6 months commencing 25 July 2013 and expiring 24 January 2016, with a balance of term of 3 ½ years expiring 24 July 2019. Simon was sentenced to imprisonment with a non-parole period of 3 years and with a balance of term of 3 years.

4. The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 - The sentencing proceedings miscarried because:

(i) His Honour cross-examined the applicant about the circumstances of his acquisition of the tomahawk on 28 June 2013.

(ii) His Honour asked the Prosecutor to obtain and tender the applicant's Custody Management Records.

(iii) His Honour refused bail at the conclusion of proceedings on 28 June 2013 without any application being made by the Prosecutor and without hearing from the applicant.

(iv) His Honour dismissed an application that he disqualify himself for apprehended bias without delivering any reasons.

(v) His Honour initiated a conversation in the court ante room with counsel which was not recorded in which he indicated that he could not send the applicant to gaol and in which he urged the Prosecutor to tell the DPP not to appeal his decision.

(vi) On 19 July 2013 his Honour granted bail without the applicant making any application for bail.

(vii) His Honour extensively cross-examined the applicant about his drug related offending on 9 September 2013.

(viii) His Honour failed to indicate to the applicant that he was actually contemplating a sentence of about 6 years' duration.

…

…

The sentence proceedings in the District Court

28. The sentence hearing commenced before his Honour at 2pm on 28 June 2013. Counsel for the applicant called his partner of 6 years, Ms Crouch. She provided background information as to their relationship, his artistic endeavours and his abuse of drugs leading up to the offence. Ms Crouch gave evidence about the applicant's psychiatric difficulties and how he had tried to deal with them over the years. At the time of the sentence hearing, the applicant had moved from Glebe to stay with his family in Newcastle.

29. It was while Ms Crouch was giving evidence that an exchange took place between his Honour and counsel for the applicant to the effect that his Honour would not be able to make a finding of fact that at the time the applicant purchased the axe he was not intending to commit the robbery unless the applicant gave evidence (28.6.2013 - T12 - T13).

30. Character evidence was called on behalf of the applicant from Mr King, after which the applicant gave evidence. The clear inference from the transcript is that counsel appearing for the applicant had not intended to call him but did so as a result of the comment from his Honour to which reference has been made.

31. The applicant gave evidence that he had little recollection of the offence. In relation to the purchase of the tomahawk or small axe, he referred to other items bought at the same time which were consistent with him performing some painting work and handyman work at home. He said that he had purchased the tomahawk in order to split some small pieces of wood, which were to be used in the project. The applicant then gave evidence as to taking substantial quantities of drugs leading up to the offence. He said:

"Well I smoked some ice in the morning, smoked some heroin sort of in the afternoon. Smoked some more ice, took some Xanax, Rivotril, smoked some more heroin, finished off the ice that I had." (28.6.13 - T.40.2)

This evidence was consistent with what he had said in his ERISP at the time of his arrest.

32. Just before cross-examination of the applicant commenced, his Honour requested that the police custody records be produced with a view to finding out what disclosure had been made by the applicant concerning his pre-offence drug taking (28.6.13 - T.44). There was also an issue of whether he was capable of making an ERISP at that time. When those documents were not readily available, his Honour adjourned the matter. After the applicant had withdrawn, the following exchange took place…

33. On 18 July before the sentence proceedings resumed, there was an application by the applicant that his Honour disqualify himself for apprehended bias. The basis for the application was that his Honour had raised his voice on a number of occasions when asking questions of the applicant, his Honour's request for the custody records, his Honour's cross-examination of the applicant concerning the purchase of the tomahawk, his Honour's apparent scepticism as to the amount of drugs which the applicant had taken before he committed the offence and his Honour's peremptory revocation of bail. His Honour refused the application and advised that he would give reasons at a later date. Those reasons have not yet been given.

…

42. At the end of proceedings on 19 July his Honour asked to see counsel for the applicant and the Crown in a side room off the Court. He then spoke to both of them concerning the sentence proceedings. Both counsel for the applicant and the solicitor appearing for the Crown have sworn affidavits as to what was said during that discussion. While their versions are not identical, the thrust of what was said emerges clearly.

43. The recollection of counsel for the applicant was as follows:

"The Judge asked to see myself and the Crown in the alcove. In the alcove the Judge said to me words to the effect of:

Trial Judge: We cannot send this man [the applicant] to prison. Did you see him out there?

I've read your books, especially Repeating the Leaving. I've given them to counsel, other barristers and people who are suffering depression.

The Trial Judge then addressed Mr Shaw "I want you to speak to Lloyd Babb to tell him that the DPP should not appeal this matter".

The Trial Judge then appeared to be addressing both Mr Shaw and myself and said words to the effect:

"I am worried about the Newcastle community because I am such an advocate against crystal meth in particular and I'm worried about an appeal."

The Trial Judge continued to say:

"I've done my best to rack up some extra days in prison by refusing bail."

44. The recollection of Mr Shaw, the solicitor appearing for the Crown, was:

"I recall the conversation referred to by Mr Waterstreet in his affidavit of 21.2.14. At the close of the day I was called into the Judge's side room of the Court by his associate to see his Honour. When I arrived his Honour and Mr Waterstreet were standing facing each other, in conversation. His Honour turned to me. I recall the conversation as this:

HH to CCS "Colin I don't want to send this man to prison."

CW to both: "The Director won't appeal if he doesn't go to gaol. Colin can have a word with the Director?"

HH to CCS: "Every time up in Newcastle that it's ice the DPP go mad if I don't put them in, they are always appealing [and more of the same]."

CW to both: "No, no-one's going to appeal it."

CCS to HH: "I might put it up to the Director."

There may have been a little more conversation than related. Any other conversation was only repetition of the same point. I do recall the first line from HH vividly as it came out of the blue, there was no preamble, no introduction."

…

Grounds 1(i) and (ii)

92. I am not persuaded that these Grounds of Appeal gave rise to any practical disadvantage for the applicant insofar as they relate to whether procedural fairness was observed in these sentence proceedings. While it is undoubtedly correct, as the applicant submitted, that sentence proceedings are adversarial and a judge should not trespass upon the role of the advocates, to the extent that it occurred here, it did not adversely affect the applicant.

93. His Honour's comments that he could not make a finding favourable to the applicant in relation to the purchase of the tomahawk unless he heard from the applicant were appropriate in the circumstances. His Honour was merely indicating to the applicant's legal advisors the way in which he was thinking so as to enable them to meet the problem if they so wished. It is true that his Honour's cross-examination of the applicant was vigorous but it did not result in a finding unfavourable to the applicant.

94. His Honour's request for the applicant's Custody Management Records is more controversial. A judge in sentencing proceedings should not require production of a particular piece of evidence. He or she can, of course, advise the parties that unless evidence of a certain kind is adduced he or she will or will not be able to make a particular finding. It is then a matter for the parties as to whether they wish to take steps to deal with the issue raised by the court.

95. Another way in which courts traditionally deal with such an issue is to inquire of the parties whether evidence of a particular kind is going to be tendered or relied upon thereby indicating at the very least that the judge regards such evidence as being of importance, but leaving it to the parties as to whether or not they adduce the evidence.

96. To require the production of evidence, as his Honour did in this case, is unusual and in my opinion, does cross the boundary identified by Simpson J in Madden v R in that the judge in such circumstances is clearly trespassing upon the role of the advocates. Such an approach should be disapproved by this Court.

97. In this case, however, there was no practical detriment suffered by the applicant in that the evidence when produced did him no harm.

Grounds 1 (iii) and (iv)

98. These grounds give rise to more serious issues. The revocation of the applicant's bail at the conclusion of proceedings on 28 June clearly involved a denial of procedural fairness insofar as the applicant was concerned. That denial of procedural fairness involved matters of bias and procedure. Insofar as apprehended bias is concerned, an independent observer would undoubtedly form the opinion that at that point in time his Honour had prejudged the proceedings at least to the extent of concluding that a custodial sentence should be imposed. The basis for the forming of such an opinion was that the applicant had been on bail for 14 months, the evidence was substantially incomplete, no application to revoke bail had been made by the Crown - on the contrary, the Crown did not oppose bail being granted - and no opportunity was given to counsel for the application to make submissions.

99. There was procedural unfairness in that it was clear that his Honour had not read the extensive written submissions which had been placed before him on behalf of the applicant and because he did not give an opportunity to counsel for the applicant to make oral submissions. The transcript makes it clear that the attempt by counsel to do so was peremptorily cut off.

100. Although, as the Crown correctly points out, the revocation of bail on this occasion did not produce any practical disadvantage for the sentencing outcome, the way in which it was dealt with was unsatisfactory and it is appropriate that this Court indicates its disapproval.

101. Similar comments can be made in relation to the application for disqualification on 18 July. While his Honour addressed in the course of argument the complaints concerning his cross-examination of the applicant and his requirement that the Crown obtain and tender the applicant's Custody Management Records, he did not address the complaint related to the revocation of bail. That unsatisfactory state of affairs was exacerbated by his Honour's failure to provide reasons at that point in time, or at least before the sentence proceedings resumed, as to why he refused to disqualify himself. That is not to say that his Honour should have disqualified himself but the failure to give reasons would have increased the perception of the applicant and his legal advisors that the requirements of procedural fairness were not being observed.

102. As with Grounds (i) and (ii), however, despite the unsatisfactory nature of what had occurred up until that point in time there was no practical disadvantage which adversely affected the outcome of the sentence proceedings. If these were the only problems in the sentence proceedings, although they clearly involved irregularities, it would be difficult for the applicant to successfully argue that a miscarriage of justice had occurred in relation to the sentence imposed on him.

Grounds 1(v), (vi) and (viii)

103. The out of court meeting between his Honour and the legal representatives of the parties was not only irregular, it should not have occurred. Lest there be any misunderstanding, this Court strongly disapproves of any such discussions, be they in the course of a trial or in sentence proceedings. This is particularly so if they are initiated by the judge. The observations in R v Foster remain as valid today as when they were made.

104. Although the recollections of the legal advisors, as set out in their affidavits, are not identical, three significant aspects of the meeting are clear:

(i) It was initiated by his Honour.

(ii) There was a clear statement by his Honour that he did not think the applicant should receive a custodial sentence.

(iii) His Honour was concerned about a Crown appeal if he did not impose a custodial sentence and was trying to elicit some assurance from the Crown representative that no appeal would be brought.

105. The attempt to bring pressure on the Crown representative in this way was quite inappropriate, should not have happened and is strongly disapproved by this Court. Leaving that aspect aside, when taken with his Honour's express desire not to impose a custodial sentence on the applicant, it provides a firm basis for the applicant's primary complaint that the sentencing proceedings involved procedural unfairness insofar as he was concerned, resulting in the sentence ultimately imposed giving rise to a miscarriage of justice.

…

122. Those considerations are enough to make out that part of the ground of appeal based on a lack of procedural fairness. There is, however, another basis for the success of this ground which arises from the irregular communication between his Honour and the legal representatives on the afternoon of 19 July. The meeting was instigated by his Honour. An impartial observer being aware of that fact and being aware of his Honour's indication that he did not want to gaol the applicant but was concerned that there might be an appeal which he wished to discourage, would have a reasonable apprehension that at that point in time, the sentence proceedings would not be dealt with impartially and not decided according to law.

123. The analysis of this part of the appeal is set out in the judgment of Beech-Jones J. I respectfully agree with and adopt both his Honour's analysis and conclusions on the issue of apprehended bias.

Ground 1(vii)

124. I have concluded that this part of Ground of Appeal 1 has also been made out and that procedural unfairness occurred.

125. It needs to be appreciated that the cross-examination of the applicant by his Honour, to which reference is made in the Ground of Appeal, occurred after the applicant had given his evidence in chief and had been cross-examined by the Crown. The cross-examination by his Honour was extensive and occupied over six pages of transcript. It was in relation to a subject which had not been raised on by the Crown, i.e. where the applicant had sourced his illegal drugs and what he had done with them (apart from ingesting them himself) in the period leading up to the offence. These two issues were irrelevant to the offence for which the applicant was being sentenced.

126. The unfairness arose because his Honour was not seeking clarification of evidence which had been given but was trespassing on the function of the advocates. This is particularly so when the subject matter of the questioning was irrelevant to the sentence proceedings. However, the most important element of unfairness arose because his Honour used the responses which he received to his questions as a basis for a finding that the applicant had been supplying drugs to Simon in the weeks leading up to the offence.

127. That finding did not emanate from any submission by the Crown nor was it revealed by any exposure of his Honour's provisional thought processes during the sentence hearing. In those circumstances his Honour should, at the very least, have indicated to the applicant's legal advisors the way he was thinking so as to enable them to make submissions to the contrary.

Conclusion as to Ground 1

128. Ground of Appeal 1 has been made out in the respects which Beech-Jones J and I have identified. The departure from procedural fairness and the apprehension of bias in the sentence proceedings were such that the sentence will have to be quashed and the applicant re-sentenced. This does not mean that the Court will simply substitute a sentence within the range which was indicated during the sentence proceedings. Were this Court to re-sentence it would be necessary to re-exercise the sentencing discretion taking into account all relevant statutory requirements, sentencing principles and most particularly the evidence, in order to formulate its opinion for the purpose of s6(3) of the Criminal Appeal Act 1912 as to whether some lesser sentence was warranted (Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 287 [19]).

Rothman J

134. I have had the advantage of reading, in draft, the judgments of Hoeben CJ at CL and of Beech-Jones J. I agree with the orders proposed and, except as to that which follows, the reasons therefor.

135. Ordinarily, an exchange in argument between judicial officer and legal representative will not form the basis of error in sentencing. One of the exceptions to that general proposition is where the exchange is evidence of a denial of procedural fairness or an incorrect approach to the task being undertaken.

136. Each of the grounds with which Hoeben CJ at CL has dealt is in one of those categories.

…

142. As to the apprehension of bias, I make the following further comments. Apprehension of bias has been described by each of my colleagues. It is unnecessary to repeat the principles so eloquently outlined by them.

143. Apprehension of bias does not require "practical disadvantage" in order to succeed as an appeal ground.

144. Sentencing is an intuitive process. This Court, on appeal, intervenes only when identifiable or manifest error is disclosed. The fact, if it were the fact, that a sentencing judge, who has engaged in conduct from which apprehended bias has been disclosed, ultimately reaches a conclusion that was open to him or her is not the point. Otherwise, apprehended bias would not exist as a separate ground from actual bias. An applicant would, otherwise, be required to show error in the judgment on account of bias and in so doing would be required to show actual bias or forego the argument.

145. Once, according to the principles, there is an apprehension of pre-judgment, there is a denial of procedural fairness and all that follows is both irregular and must be redone. Further, pre-judgment having been disclosed, the sentencing judge could not undertake again the task upon which his Honour previously embarked.

Beech-Jones J

Ground 1 - Apprehended bias

150. I will deal with apprehended bias first. The relevant test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ ("Ebner")). If such an apprehension is established then there is no need to demonstrate that any further "practical unfairness" was occasioned. Thus if the question of apprehended bias is raised after the matter is decided, "[n]o attempt need be made to inquire into the actual thought processes of the judge" (Ebner at [7]). The unfairness is established by the fact that it was apprehended that a partial judge might have decided the matter.

…

154. No doubt in many sentencing hearings the presiding judge makes known their views in open court on the sentencing outcomes they might impose. Consistent with the above statements, without more such a course does not demonstrate apprehended bias. However this case had much more.

155. The somewhat erratic course of the sentencing proceedings is set out in the judgment of Hoeben CJ at CL at [28] to [60]. Consistent with the approach noted in [149], the conduct of his Honour on 28 June 2013 in cross-examining the applicant, requesting his custody records, and peremptorily refusing bail is to be considered as the background to the meeting in the Court's alcove at the conclusion of proceedings on 19 July 2013. There is an understandable concern about the sentencing judge's failure on 18 July 2013 or thereafter to provide reasons for refusing to disqualify himself but I do not see how that adds much to any apprehension of bias that might have been held by the fair minded lay observer.

156. The respective versions of the meeting in the alcove of the Court after the proceedings concluded on 19 July 2013 are set out in the judgment of Hoeben CJ at CL at [43] to [44]. A consideration of whether there was apprehended bias did not require any difference between the two versions to be resolved by this Court (CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 at [41] per Meagher JA). In any event, as noted by Hoeben CJ at CL at [104], while there were differences in those versions, three common features of those versions were that the meeting was initiated by his Honour, his Honour clearly indicated that he did not want to send the applicant to gaol, and his Honour was seeking some assurance that there would be no Crown appeal if he did so.

157. There are a number of cases in which a complaint of apprehended bias has been made in the context of a private communication by a litigant, a legal practitioner, a witness or a third party to a judicial officer (eg Re JRL, and see Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action(Thomson Reuters, 4th ed, 2009) at [9.175ff]). This case involves the representatives of both parties communicating with the judicial officer in private. Clearly not all private exchanges with a judge in the presence of the legal representatives of both parties that relate to a case are inappropriate, much less give rise to an apprehension of bias. However, this exchange canvassed the details and the outcome of the case. In such circumstances, the hypothetical fair minded lay observer can be taken to be aware that the initiation by the trial judge on 19 July 2013 of a conversation with counsel in the Court alcove which canvassed the imposition of a non-custodial sentence was improper. Further, such an observer would appreciate that it was also improper for his Honour to participate in the placing of some form of pressure on the prosecutor not to appeal any non-custodial sentence that may be imposed. The observer might reasonably conclude that this meeting was the real process by which the sentence was being determined by the sentencing judge, rather than by the proceedings that were taking place in open court. Properly analysed, it follows that the fair minded observer might reasonably apprehend that the trial judge might be prejudiced or not acting impartially in the sense discussed by Mason J in Re JRL. The fair minded observer might reasonably apprehend that his Honour might not decide the case "on its legal and factual merits". They could reasonably believe that was the reason why, in the secrecy of the alcove, the Director of Public Prosecution's agreement not to appeal any sentence was being sought.

158. Two further points should be noted about apprehended bias. First, as the judgment of Hoeben CJ at CL at [46] to [50] makes clear, the subsequent course of the sentencing proceedings could have suggested to a fair minded observer that his Honour was, or at least may have been, proposing to retreat from the indicated course of imposing a non-custodial sentence (but was instead considering a sentence that was perhaps just in excess of two years imprisonment). In Re JRL it was accepted that subsequent disclosure to the parties by the judge that he had received an ex parte disclosure could have the effect of dispelling any apprehension of bias, but that will not always be the case (Re JRL at 351). However, when the nature of the apprehended bias is analysed in the above terms, it is evident that the subsequent course of the sentence proceedings in this case did not dispel the apprehension of bias that arose. While the reasonable observer might have concluded from the statements made during the sentencing proceedings on 9 September 2013 that the sentencing judge was no longer wedded to imposing a non-custodial sentence, nothing that was stated would have dispelled any apprehension they might have held that his Honour might not decide it according to its legal and factual merits. Worse still, they might have simply treated the sentence hearing on 9 September 2013 as a façade bearing in mind the conversation in the alcove. On either view a reasonable apprehension of bias on the part of the sentencing judge is made out.

The Court (Basten JA, R A Hulme J, Hidden AJ)

1. For some nine years prior to 29 July 2013 Alois Rez had lived in a de facto relationship of some turbulence with Sarah Tarrant. On the night of 29 July 2013 he was killed. The Crown alleged that he was murdered by Ms Tarrant and a man with whom she was then in a sexual relationship, Raymond Roff. Ms Tarrant did not deny her involvement in the killing of Rez and proffered a plea of guilty to a charge of manslaughter, which was rejected by the prosecution. Accordingly, she went to trial in March 2016 on a charge of murder, before Fagan J and a jury. On 14 April 2016 the jury brought in a verdict of manslaughter on the basis that she suffered from a substantial impairment of her mental capacities for the purposes of s 23A of the Crimes Act 1900 (NSW).

2. Immediately following her conviction, Mr Roff’s trial commenced, also before Fagan J and a jury. Ms Tarrant was the principal witness against Mr Roff, who denied any involvement in the killing. Her evidence, consistently with her evidence at her own trial, was that he had carried out the killing after she had administered sleeping tablets to Mr Rez in his evening meal. On 13 May 2016 the jury found Mr Roff guilty of the murder of Mr Rez.

3. The present applicant was not sentenced until 19 August 2016. On that date, the trial judge imposed a sentence of imprisonment of 10 years and 8 months, with a non-parole period of 8 years. On the same day, Mr Roff was sentenced to imprisonment for 32 years with a non-parole period of 24 years. The applicant now seeks leave to appeal against her sentence. An appeal by Mr Roff with respect to his sentence was upheld by this Court, which reduced his sentence from 32 years to 25 years, with a non-parole period of 18 years 9 months.

Issues on appeal

4. Unsurprisingly, the variation in Mr Roff’s sentence was relied upon by the present applicant as a basis for alleging a lack of proportionality between the respective sentences. Otherwise, the matters sought to be raised by way of appeal focused on two broad issues. First, the applicant sought to challenge the refusal of the sentencing judge to disqualify himself in response to an application by counsel for the applicant dated 24 June 2016. The court had convened on the afternoon of 24 June 2016 to deal with the sentencing of Mr Roff. However, at the outset of the hearing, the judge noted that he had received a written submission from senior counsel for Ms Tarrant seeking his recusal with respect to her sentencing. He stated that he would not accede to the application, indicating that he would give his reasons later. The reasons were published four days later on 28 June 2016.

…

(b) recusal judgment

14. That approach raises a question as to the judge’s response to the recusal application. The cases treat material which is not itself the cause of the apprehension in discrete ways. First, the impugned statement must be read in context and must take account of subsequent statements which may be sufficient to eradicate any reasonable apprehension of bias. In Johnson v Johnson, the joint reasons stated: …

…

15. Secondly, may the reasons given for refusing a recusal application also be relied upon? At least in principle, reasons given for rejecting a recusal application may constitute a later clarification. They may reveal information which the hypothetical bystander would accept as demonstrating that an earlier opinion was based on a misunderstanding. Alternatively, the reasons may provide support for the earlier opinion. However, in the latter case, there is a risk that a recusal judgment may tend to demonstrate actual bias, with its focus on the subjective state of mind of the judicial officer. That is one reason why the High Court has warned against reliance on the final reasons for judgment in the matter.

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(d) comments made on 14 April 2016

31. Two matters arose immediately following the return of the verdict on 14 April 2016. The first concerned the question of bail pending sentence, the applicant having been granted bail prior to the trial and remained at large during the course of the trial. The judge expressed the view that he found it “very difficult to see how anything less than fulltime custody could be imposed”[ and, in substance, invited the prosecutor to make a detention application.

32. It was true that the applicant was in no different position following the verdict of the jury than she had been for some time, having first indicated her intention to plead guilty to manslaughter and having entered the plea at the commencement of her trial. She could have remained at large until sentenced. At that point, it was envisaged that the sentencing hearing would take place in eight days’ time.

33. Although the submissions focused in part on what was said to be a misreading of the Bail Act 2013 (NSW) in dealing with the detention application, there is no basis for contending that that gave rise to an apprehension of bias. That apprehension could only have arisen from the fact that the judge took the initiative in suggesting that it might be appropriate to revoke bail following the verdict of the jury and that he indicated, prior to hearing submissions from either party on sentence, that he was not inclined to impose a non-custodial sentence.

…

36. When considering the likely course of the sentencing hearing, the judge remarked that:

“... while counsel for the two parties have taken the position they had with the psychiatrists’ reports, ... I have to say I find them utterly unsatisfactory. How they could state those conclusions without providing any reasoning by reference to the contemporaneous indicia completely defeats me. I don’t see how I could make a sensible decision about the degree of impairment which would bear upon culpability without hearing those psychiatrists examined. If neither counsel wishes to cross-examine them I would wish to ask them some questions.

... I won’t be able to put the slightest bit of weight on those psychiatrists’ reports unless I hear some questioning of them.”

37. Counsel for the applicant noted that the judge was “bound by the jury’s verdict” and suggested that the jury had obviously placed considerable weight on the reports. The judge continued:

“Maybe. I don't know. But it doesn't matter what they place their weight on, what they have decided is that the degree of impairment of these faculties was sufficient to reduce. But how much is that? That's the problem. Those opinions went in but it is very difficult to reconcile and I have to wrestle with it now. It's now my decision. I'm just telling you that I'm going to find it very difficult to deal with unless I hear those psychiatrists explain themselves because their writings are completely devoid. ... It leaves me with a difficulty which I'm telling both of you I need some assistance with in terms of having them available to answer questions.”

38. It was not in doubt that the judge was bound by the verdict with respect to the essential elements of the charge. Nor was it in doubt that the judge was required, in sentencing the applicant, to consider the level of her culpability, as a case of manslaughter resulting from impaired mental capacity. Nevertheless, the applicant submitted that the language used by the judge might have indicated to the lay observer that he might conduct the sentencing without in truth accepting the jury’s verdict; it was not possible to accept the verdict without accepting the critical evidence upon which the jury must have relied. The effect of the submission was that the lay observer might think that the judge might not give effect to the verdict, and thus sentence the applicant as if convicted of murder.

39. Taken in isolation, the comments set out above do not satisfy the test of apprehended bias. First, the judge was not making a finding, but commenting, albeit in strong terms, on how he should approach the sentencing task which, on any view, was not without difficulty. Secondly, he identified a specific difficulty with reconciling parts of the evidence. Although expressed in terms of exasperation or frustration, it is the kind of interchange between judge and counsel which is helpful in giving counsel an opportunity to know what topics to address, either by evidence or in submissions. Thirdly, when the very same reports were left to the jury, the judge had summarised their contents in entirely appropriate terms and, indeed, favourably to the applicant, whose counsel, at a different point in the submissions on the appeal, sought to rely expressly on the way in which the material had been left to the jury. Knowing all that, it is not plausible that the lay observer might think the judge might not respect the jury verdict or deal with the sentencing exercise otherwise than on the evidence then before the court.

(e) comments made on 18 April 2016

40. Following the hearing on 14 April 2016, it appears that the judge sent an email to counsel and relisted the matter on the following Monday, 18 April 2016. The email is not before this Court, but two issues raised in it were addressed on 18 April, namely (a) a concern about the sentencing taking place whilst Mr Roff’s trial was underway, and (b) the appropriateness of a joint sentence hearing, if he were to be convicted. In the course of the discussions which followed (counsel for the applicant robustly disputing both suggestions raised by the judge) the judge stated:

“First of all I don't even know [whether] Mr Roff will give evidence in his trial ..., but if he should give evidence and if there should be some discrepancy between that and Ms Tarrant's evidence it would lead to a fairly absurd situation wouldn't it if I was sentencing Ms Tarrant on what was given in her trial and Mr Roff on what was given in his trial.”

41. In substance, Ms Manuell SC (for the applicant) submitted that there had been separate trials, the evidence might well prove to be different in each and, whatever was said at Mr Roff’s trial, the applicant would not be in a position to challenge it. As a result, the sentencing of each might need to occur on “different factual bases”. The judge responded:

“That would just be ridiculous. It would be an absurdity if ... hearing in isolation the sentence case regarding Ms Tarrant ... finds that it's all up to Mr Roff and then hears Mr Roff's explanation on sentence and says that he was driven to it by Ms Tarrant and finds it was all up to Ms Tarrant, that would be an absolute absurdity.”

After further discussion with Ms Manuell and the prosecutor, the judge said:

“It may also be conceivable by the time I come to pass sentence on Ms Tarrant, even if I should hear her submissions this Friday, that I would have heard evidence from her in this other trial. How ridiculous would the Court look if that was to a different effect from the evidence that she's given in her own trial. I'm sentencing on the basis of having my eyes shut to what she said on another occasion. I think that's a significant concern.”

41. Later in the discussion, and somewhat curiously, he suggested to Ms Manuell that she had a “duty to call [Ms Tarrant] on sentence proceedings.”

42. The only result of the brief hearing on that morning was to vacate the hearing date for the sentencing which had been fixed for that Friday.

43. In the course of the appeal, the judge’s observations were deployed as demonstrating some form of prejudgment (the precise nature of which was not clearly articulated) adverse to the applicant. As the submissions correctly noted, there was nothing ridiculous or absurd in sentencing two co-offenders on the basis of different facts where there had been separate trials. The submissions, forcefully made before the sentencing judge, to the effect that evidence given in the Roff trial should not be relied upon in sentencing the applicant, had considerable force and would need to be addressed in considering whether the sentencing exercise miscarried. Inevitably, given that no one then knew whether Mr Roff would be convicted, the issue as to the course of the sentencing proceedings was not then resolved.

44. The only relevance of the observations made on this occasion in relation to the allegation of a reasonable apprehension of bias was that the trial judge could have been said to be following an erroneous approach which would, if executed, result in unfairness to the applicant. There was no basis to find a reasonable apprehension of bias on this material.

(f) questioning the applicant at Mr Roff’s trial

45. The judge asked questions of the applicant during the trial of Mr Roff, at which she gave evidence central to the prosecution case. Again, the context limits the effect on any possibility of prejudgment. It is convenient to say why that is so before turning to the specific passages in the questioning now relied on by the applicant. Four contextual considerations are important. First, the questioning took place in the course of a trial of Mr Roff before a jury. The judge was not required to make any findings of fact, nor did he do so. Secondly, although the questioning was said to be unfair to the applicant because she was unrepresented at the trial of Mr Roff, that complaint is beside the point; the issue is whether the questioning revealed an element of prejudgment on the part of the trial judge. Thirdly, at the time questioning took place, the lay observer would not know (nor would the lawyers) whether evidence given by Ms Tarrant at Mr Roff’s trial would in fact be admitted on her sentencing hearing. Fourthly, it was said that the questioning was “inappropriate” in the context of Mr Roff’s trial. For example, to the extent that there might be issues as to the credibility of Ms Tarrant’s evidence, such issues should not have been canvassed by the judge in the course of her examination-in-chief, but should have been left to senior counsel for Mr Roff to deal with in cross-examination. That submission may have had some force, but it did not go to the heart of the issue. The real issue had two strands. One was the inference that the judge held such a level of scepticism as to Ms Tarrant’s truthfulness that the lay observer might fear that he might not be able to assess her evidence at the sentencing hearing with impartiality. The other strand lies in the possibility that some of the questions raised issues which were irrelevant in Mr Roff’s trial, but could have been relevant to the sentencing of Ms Tarrant. If the lay observer were to draw that inference, it would have been directly relevant to a fear of prejudgment.

…

51. For a trial judge to cross-examine a prosecution witness, in an argumentative fashion, in the course of her evidence-in-chief is unusual and is fraught with difficulties. What the jury would do with a question in leading form including five propositions to which the witness answered “yes” is by no means clear. However, the issue for present purposes is whether, as the applicant submits, the questions demonstrated prejudgment based on a lack of understanding of the dangers faced by a physically much smaller women in the home threatened by a larger and potentially intimidating male partner, where there had been a history of abuse and contemptuous behaviour, prior violence and when the woman was pregnant. Taken in isolation, this questioning may not have demonstrated a significant level of disbelief of the applicant’s evidence, but it cannot be taken in isolation. There were further questions asked in similar vein and in part the answers were picked up and relied upon at a later pre-sentence hearing.

…

56. A lay observer hearing this questioning might well have formed the view that the judge did not accept her evidence on this particular topic. Again, taken in isolation it is difficult to demonstrate a connection between that questioning and the likelihood that the judge would not deal impartially with evidence she gave at a sentencing hearing, or in assessing the evidence she gave at her own earlier trial.

…

59. On 13 May 2016 the jury in the Roff trial returned a verdict of guilty of murder. There followed a discussion with counsel as to a convenient date to conduct sentencing proceedings and as to whether there could be a joint hearing of the sentencing for both Ms Tarrant and Mr Roff. No representative of Ms Tarrant was there on that occasion. At the end of the day, the matter was merely adjourned to Monday, 23 May 2016.

60. In the course of discussion, the judge reiterated views he had expressed earlier about the desirability of a joint hearing:

…

HIS HONOUR: Apparently not, but I don't see there a diminishment of capacity to appreciate moral issues and form a view on them. I don't see it at all. I'm digressing a little bit but I'm just pointing out there's one conundrum that I have in trying to sentence Sarah Tarrant. The jury has said she is of diminished responsibility and I see a raft of contemporaneous indicia of full mental capacity in every respect referred to in the section, that's why I want to hear from psychiatrists.”

61. The last sentence carried two troubling inferences, namely that (a) the jury’s verdict had been based on a false evidential premise and (b) the prosecutor had connived in this outcome by not challenging at least the basis of the psychiatric opinions.

62. In our view, the lay observer who had followed the proceedings thus far would have been troubled as to the approach the judge was taking with respect to Ms Tarrant. First, such a person would appreciate that the judge himself had made no findings of fact relevant to the sentencing at any stage. Further, the judge had described his remarks, on more than one occasion, as tentative and put forward argumentatively. On the other hand, and despite the disclaimers, some opinions entirely adverse to Ms Tarrant were expressed in strong language; they were not expressed in tentative terms.

63. Secondly, the observer would know that the opinions were not expressed in a vacuum, but were responses to the evidence which the judge had already heard, including from Ms Tarrant who had been in the witness box for some seven days. The observer would appreciate that there might well be further evidence at a sentencing hearing, but it appeared that the judge was expecting to take account of all the evidence he had heard at the trials. In this sense, some tentative judgments might properly be formed by reference to that evidence.

64. Thirdly, the observer would appreciate that the thrust of many of the comments concerned the need for further evidence, in terms which strongly suggested that it would be in the interests of all parties to consider calling further evidence or even giving further evidence themselves, in the case of the offenders. In relation to Ms Tarrant, there was a clear inference that, absent further explanation, the judge might draw damning inferences against her.

65. Fourthly, the lay observer might be deeply troubled by the fact that the last round of observations had been made in the absence of Ms Tarrant and her counsel. It is one thing to engage in discussion with counsel as to one’s tentative views, the observer might reason, but it is quite another to express adverse views about one party in their absence and in strident terms.

66. Fifthly, the whole purpose of the principle relating to reasonable apprehension of bias (and indeed actual bias) is that the public must have confidence that the judge will make findings solely on the basis of the evidence before the court and will assess that evidence impartially. There is a logical corollary which the lay observer might be assumed to infer, namely that Ms Tarrant would be sentenced on the basis of evidence which was given in her trial, without reference to extraneous material which may have arisen in other proceedings to which she was not a party. There was an ambiguity about the repeated statements of the trial judge that he proposed to conduct a joint sentencing hearing. It was apparent that the judge envisaged that further evidence called at a joint hearing might be evidence in both proceedings, although that was not resolved. It was also not clear whether the judge would permit evidence given in one trial to be evidence in the other person’s sentence proceedings. Finally, it was unclear whether the judge felt himself entitled to have regard to views formed during Ms Tarrant’s evidence in the course of Mr Roff’s trial when sentencing Ms Tarrant.

(i) sentencing hearing

67. Finally, there was the sentencing hearing. Although the judge intended it to be a “joint sentencing hearing”, he accepted that the evidence of her trial would be evidence in her sentencing proceeding, but made no similar order with respect to her evidence given in Mr Roff’s trial. The psychiatrists were then recalled. …

At that stage Ms Manuell objected on the basis that the diagnosis of depression had gone to the jury. The following exchange took place:

“MANUELL: The jury accepted that evidence in the context of the sexual relationship and to whatever extent it was that the jury found Ms Tarrant enjoyed the sexual relationship with Roff. The diagnosis of this doctor cannot be controverted by a questioning of her at this stage of the proceedings.

HIS HONOUR: I do not agree with that. I do not agree with the jury's general verdict not guilty of murder, guilty of manslaughter involves any finding as either of the two diagnoses or as to any particular aspect of this witness' evidence.”

68. The judge overruled Ms Manuell’s objection and proceeded to question Dr Skinner about “love letters” sent by Ms Tarrant to Mr Roff. The implication of the questioning was that if the diagnosis of depression were to be accepted, it was unlikely that Ms Tarrant was truly in love with Mr Roff and looking forward to a new life with him; rather, she was dissembling and manipulating him.

(j) conclusions

69. What precisely the lay observer might be thought to understand at this point depends upon the degree of sophistication and legal experience with which he or she is endowed. The observer should be taken to understand that (a) the criminal trial is an adversary process in which prosecutor presents the case for the State, to which the accused responds; (b) matters of fact and evaluation are for the jury; (c) the judge’s role at a trial is to remain impartial and above the fray; (d) no step should be taken with respect to an accused person or an offender which prejudices their interests in circumstances where (having a lawyer) they are unrepresented and not on trial; (e) the accused or offender is not expected to meet a case not presented by the prosecutor and (f) in sentencing, the judge must find facts, but not so as to undermine the jury’s verdict unfavourably to the offender.

70. In our view the observer would have been troubled by (a) the judge’s attempt to establish levels of culpability depending upon the degree of impairment, (b) the questioning on a sentencing hearing of the underlying basis of the expert opinions which went to the jury unchallenged, and (c) a reaffirmation through the questioning of the opinions that the judge had earlier been expressing, albeit tentatively and argumentatively, which had not been put forward by the prosecution.

71. The stage had been reached where the lay observer would give significant weight to the fact that the judge had taken over the leading of evidence from a prosecution witness. In the course of his questioning counsel for Ms Tarrant had objected to what appeared to be a challenge to the basis of the opinion that went to the jury. The judge overruled the objection, stating, “even if I should accept it was likely ... that she was suffering from depression I would be entitled to have that evidence from this witness to ascertain how that marries with the other evidence in the case.”[58] The observer would know that the other evidence in the case was primarily the applicant’s evidence, which was consistent with that already supplied to the doctors when they prepared their reports.

72. By that stage of the proceedings, the hypothetical lay observer might well have thought that the judge would not make findings of fact on the basis of the evidence given at trial, or the evidence presented by the prosecution, but rather on the basis of his own assessment of the psychiatric material. Where unchallenged evidence has been put before the jury by the parties, based largely on common ground and from experts whose qualifications were unchallenged, the lay observer might well think that the judge might have stepped beyond the role of the impartial arbiter of the facts as presented by the parties. That in our view would be sufficient to constitute a reasonable apprehension of bias. For that reason, the sentencing process has miscarried and must be repeated. The sentence imposed on Ms Tarrant must be quashed.

The Court (Meagher JA, Hoeben CJ at CL and Fagan J)

1. On 30 August 2016 the applicant pleaded guilty in the District Court to two counts of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW). The offences occurred on 21 June 2014 when the applicant lost control of a car he was driving on Canoona Avenue, Windsor Downs. The vehicle came off the road to its right, failing to take a sharp left-hand bend, and ploughed into the residence at No 62. Mrs Vanessa Farrugia and Mrs Sylvia Vella were standing near the front entrance of the house. Both were seriously injured by the impact. Mrs Farrugia was 20 weeks pregnant and her baby died in utero as a result of the accident.

2. The appellant seeks leave to appeal against the aggregate sentence for these offences which was passed on 20 June 2017 by his Honour Judge McLennan SC. His Honour took into consideration on the first count two further offences on a Form 1, namely, causing bodily harm to each of two additional victims by misconduct in charge of a motor vehicle. These victims were Ms Kate Vella and Ms Terese Vella who were also standing at the front of the house at the time. The Form 1 offences were charged under s 53 of the Crimes Act.

…

5. The grounds of appeal are:

1. The learned sentencing judge erred in refusing to recuse himself on the ground of apprehended bias.

2. The learned sentencing judge erred in the approach to the matters on the s 166 certificate.

3. The sentence is manifestly excessive.

…

20, On 3 September 2016 the sentence proceedings were adjourned part heard to 30 January 2017 for a further five hearing days. That date was selected specifically to suit the availability of defence counsel (who did not appear in this Court on the application for leave to appeal) and Mr McDonald. At 10:00 am on 30 January 2017 defence counsel told the court that a supplementary report had been requested from Mr McDonald in October but had only been received late on the preceding evening. He also advised that Professor Cross, of the Physics Department at Sydney University, had been engaged “before Christmas” to provide an additional opinion but had not been able to attend the scene until the preceding evening. Counsel said, “That report has only come through at 9.40 this morning”. His Honour was understandably concerned as to whether the Crown would be able to deal with these additional reports, as to the contents of which there had been no notice.

21. His Honour said:

There is a small matter of course of not only the addendum report from Mr McDonald which the Crown may have been able to meet by the expedient of having a conference with Mr Parker going through the material but there is an issue of a whole separate report from a whole separate person whose expertise seems to arguably lie in a different area and who, if I remember the judgment correctly, whose credibility is something that the Crown may wish to explore at some length because Mr Cross did not emerge unscathed from the last time the Court of Criminal Appeal reviewed his evidence in a murder trial, if I recall correctly.

22. His Honour shortly afterwards clarified that he was referring to this Court’s decision in Wood v R [2012] NSWCCA 21, a conviction appeal following a murder trial in which Professor Cross had given expert opinion evidence. After concluding that the fixture would have to be vacated and the sentence proceedings adjourned to later in the year his Honour said to the applicant’s counsel:

[Y]ou are at the mercy ... of your instructing solicitors and it causes you no [sic] inconvenience and embarrassment to be caught on the hop in the same way that the Crown has been. If anyone has thought that I would consider it acceptable that the Crown should be served complicated reports on the run in this hearing then they were sadly mistaken, and if they thought that I was going to allow the Crown to be sandbagged then they were sadly mistaken.

23. The five hearing days from 30 January 2017 were vacated. Thereafter a report of Professor Cross dated 8 February 2017 was served by the applicant on the Crown on 22 February 2017. The proceedings resumed on 5 June 2017 and Senior Constable Parker was recalled. In further examination in chief he was asked to respond to Professor Cross’ report. During this evidence the Crown prosecutor indicated he would object to any expressions of opinion by Professor Cross on the subject of biomechanics. His Honour said:

Professor Cross, at one stage, held himself out to be an expert in biomechanics, but I doubt very much that he would continue to do so.

24. I infer from the cross-examination of Senior Constable Parker that Professor Cross’ report was in part concerned with the extent to which the wheels of the vehicle would drop towards the ground when the vehicle became airborne and when the suspension was therefore decompressed. Senior Constable Parker was questioned about this phenomenon. Defence counsel played to him a DVD which, so far as can be discerned from the transcript, showed measurements being taken of the distance by which the wheels of a similar vehicle dropped when the chassis and body were raised. The Crown objected to the DVD and to questions being asked on it, because it had not been served. There had been no opportunity for the Crown to pursue enquiries with respect to the subject matter.

25. This led to a heated exchange between his Honour and defence counsel. The latter advised that the DVD had been made on 22 May 2017. He submitted that the DVD of itself did not constitute expert evidence and that his client had been under no obligation to serve it. His Honour emphatically rejected that submission and said he thought he had “made it pretty clear a long time ago that the material the parties were going to be relying upon should have been served”. His Honour pointed out that the DVD was “a fundamental, factual piece of information relevant to Professor Cross’ ... opinion. ... It is an aspect of his opinion, why was not it served?”

26. Counsel maintained his defensive stance with respect to non-service. He complained that the learned judge was “screaming at me”. His Honour said:

I am not screaming at you, I am raising my voice, ... because you have had ample opportunity to prepare these proceedings properly, and to give people proper notice of the material you that you are going to be calling. This matter was adjourned at the beginning of the year, when I had five days set aside, because you got a report at midnight and served it on the Crown. I did not expect to be coming here today to find you behaving in the same way in relation to different material. I do not regard it as acceptable.

27. Further his Honour said, “The days of sandbagging the Crown, ..., are long over” and proceeded to direct that a copy of the DVD be made and provided to the Crown for consideration by Senior Constable Parker before his cross-examination continued. His Honour concluded the subject, before adjourning for lunch, with these words:

Now is there any other material lurking around in your brief, that you intend to use, in the next few days, concerning these matters of fact that have not been served, because if there is, serve it. That is my order.

28 .At the end of the day’s hearing on 5 June 2017 his Honour, noting that the report of Professor Cross served on the Crown was dated 8 February 2017, enquired of defence counsel what report he had referred to on 30 January 2017 as having “only come through at 9.40 this morning”. His Honour continued:

If there is another report in existence, ..., and it is dated 29 or 30 January and it is the one that you were referring to when you spoke to me and which was part of the basis on which the adjournment was granted, I am directing you to serve that upon the [Crown].

29. On the morning of 6 June 2017 defence counsel initially said he suspected the report of Professor Cross to which he had referred on 30 January 2017 was a draft. Shortly afterwards he confirmed that this was so. His Honour required that any draft report be produced. Counsel responded that he was not aware of any power in the court to give such a direction and sought “a proper discourse about the extent to which that is a power available to the court”. His Honour invited argument, saying that if Professor Cross had made “previous representations” about the matters in issue, they would be treated no differently “from any other witness’ previous representations”.

30. If the draft was not privileged the Crown would have been able to call for it during cross examination of Professor Cross. Defence counsel said it was likely the professor would be called but a final decision would not be made until the defence case commenced. His Honour said that he wanted “proper disclosure” and that if Professor Cross was called he would question him as to the existence of any draft. Further, his Honour said that if the professor confirmed the existence of a draft, “I will be ordering him to produce it”.

31. There was a long exchange, of approximately half an hour, between the bench and defence counsel on this subject. It ended with his Honour deferring resolution until Professor Cross was called. His Honour did not require immediate compliance with his direction for production. He continued to take evidence from the Crown’s witnesses. During the long exchange defence counsel complained that his Honour had not enquired whether there existed any draft of Senior Constable Parker’s reports nor sought production of any such draft. Counsel repeatedly asserted that his Honour’s focus on a draft of Professor Cross’ report gave rise to an apprehension of bias. His Honour rejected this and explained that his concern regarding disclosure in relation to Professor Cross arose from the Court having been told on 30 January 2017 that there then existed a report, which self-evidently was separate from the one dated 8 February 2017 (served on the Crown on 22 February). There was no similar circumstance in relation to Senior Constable Parker.

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40. In this Court the applicant relied upon three aspects of his Honour’s conduct of the proceedings, in combination, which were said to give rise to the possibility that a fair-minded lay observer might reasonably apprehend that the learned sentencing judge might not bring an impartial mind to the resolution of the issues on sentence. The three matters were as follows:

(1) The learned judge’s comments with respect to failure of the applicant’s representatives to serve in advance the DVD upon which Senior Constable Parker was cross-examined.

(2) His Honour’s remarks concerning Professor Cross’ standing as an expert witness and the direction that the professor’s draft report be disclosed.

(3) His Honour’s interventions in the cross-examination of Senior Constable Parker.

The learned judge’s reaction to tender of the un-served DVD

41. As to (1), his Honour’s strong reaction to the tender of the DVD during cross-examination of the Crown’s expert showed no trace of favouritism to the Crown, nor hostility to the defence, nor pre-judgment of any factual issue, in particular that on which the Senior Constable was being questioned. His Honour’s statement and conduct were neutral in all of these respects. His strongly expressed criticism of the failure to serve the DVD was directed in clear terms solely to what his Honour perceived as a professional and procedural failure of the applicant’s representatives. His Honour’s reaction to the emergence of the DVD did not touch the merits of the applicant’s case, either overall or in the weighing of evidence on any particular issue.

42. The fair-minded lay observer must in our view be taken to know of the procedural history of the matter and to appreciate the high risk that the tender of the DVD without notice would necessitate an adjournment. That would be a serious detriment to both parties, especially after the loss of a previous five-day fixture through similar cause, only four months earlier.

43. An adjournment would also have caused significant disruption to the Court’s business. Judges of the District Court work under enormous pressure in their criminal lists, as is apparent from the significant delays in finalisation of charges in that Court. The forced vacation of the five-day listing in January 2017 was brought about by egregious default of the applicant’s solicitors. They had had five months to obtain a supplementary report from Mr McDonald and a fresh report from a second expert. They produced the supplementary report on the evening before the hearing and a draft of the fresh report on the morning of it. There could be no excuse for this. If the experts whom they had engaged could not make time to prepare reports, other experts should have been qualified. Counsel did not suggest to his Honour that this failure was the fault of the applicant himself and the learned judge clearly did not make that assumption.

44. It was against this background that his Honour came to deal with the un-served DVD on 5 June 2017. It should have been apparent to the applicant’s barrister and his instructing solicitor that if the Crown was not able to meet this evidence upon it being tendered without notice while the Crown’s expert was under cross-examination, an adjournment would likely be granted. This would be necessary to enable the Crown to make enquiries into such matters as the specifications of the vehicle depicted, comparison with the specifications of the car involved in the accident and the significance of the wheel drop shown on the DVD when factored in to calculations of the distance over which the applicant’s car was likely to have been airborne.

45. It was idle for defence counsel to argue that he had been entitled to hold back the DVD because “it’s not expert evidence”. It was going to be a foundation for an aspect of his own expert’s opinion and it was being put to the opposing witness in circumstances which would dictate that the Crown have an opportunity to assess the validity of the technical information thereby presented. It is understandable (and would be to a reasonably informed fair-minded bystander) that his Honour reacted strongly to the risk, so unnecessarily created, that the surprise tender of the DVD would derail the sentence proceedings yet again.

46. Under the responsibility of trying to complete listed cases in the time allocated, few judges would be able to conceal considerable irritation at such a development in a case with this history. To an adequately informed and fair-minded bystander it would be obvious that his Honour’s disapproval was directed solely at the appellant’s lawyers for repeated shortcomings in their performance of professional duties to the Court and to their client. The attempt to characterise that criticism as a possible manifestation of bias against the applicant fails.

47. In this Court the applicant has deprecated his Honour’s use of the term “sandbagging”. In context it was a reference to taking the Crown by surprise with un-served material that could not reasonably be responded to within the time constraints of the hearing. Complaint is also made about his Honour’s enquiry (quoted at [27]) as to whether any more such material was “lurking” in counsel’s brief. But these were again solely professional criticisms of the approach by counsel and his instructing solicitor to procedural fairness and efficiency. A bystander with an understanding of the situation could not reasonably apprehend from these remarks that his Honour might favour the Crown’s case, or be hostile to the applicant’s case, such that he might not assess the evidence and arguments solely on their merits.

His Honour’s remarks concerning Professor Cross

48. His Honour’s reference to Professor Cross as a witness whose evidence was scrutinised in Wood v R and who “did not emerge unscathed” (see [21] above) merely identified that he was aware the witness had been found wanting in independence and integrity on a previous occasion by the Court of Criminal Appeal and that he expected there might therefore be cross-examination as to his credit in the present case. To a fair-minded observer that could not reasonably have raised the possibility that the sentencing judge might not bring an impartial mind to the evaluation of the evidence that would be given by the professor in the proceedings before him.

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54. In these sentence proceedings the Crown said on 30 January 2017 “there are probably going to be some credibility issues in relation to Professor Cross”. The applicant now submits that his Honour’s response, “I would have thought so”, might be taken by the reasonable bystander to indicate that his Honour might not evaluate the professor’s evidence impartially. We do not accept that. With a reasonable appreciation of the context, the whole of his Honour’s remarks about the standing of the professor as an expert witness disclose no more than a proper and necessary alertness to previous adverse findings about the witness and vigilance with respect to the reliability of evidence Professor Cross might give, rather than a pre-formed determination to discount it.

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58. Instead of investigating whether it really served the applicant’s forensic purposes to withhold the draft and, if so, citing law which would protect confidentiality, the applicant’s counsel chose to characterise the judge’s requirement as differentiation in treatment of the respective parties’ experts and as a possible manifestation of bias. This ignored the fact that belated production of material by the applicant had by this stage caused or threatened major disruption of the proceedings, whereas there had been no such conduct on the part of the Crown. It ignored a more obvious explanation for his Honour’s position regarding the draft, namely, that he had justifiably lost confidence in the judgment and diligence of the applicant’s representatives with respect to production of material and that he was attempting to pre-empt a further default. In his reasons for declining to recuse himself (at 8) the learned judge expressly referred to the risk of delay in “the smooth running of the hearing” if there should be “service of draft reports on the run”.

59. The judge’s requirement that the draft be produced was neutral with respect to the substance of the professor’s evidence and with respect to the outcome of the factual issues. Whether or not the applicant was bound as a matter of law to produce the document, it is clear the judge’s order was driven by procedural considerations. A fair-minded bystander would not leap to the inference of possible bias. The fact that defence counsel at first instance made that leap is not a sound guide. Counsel appeared to lack insight into his own and his solicitor’s responsibility for the disruption already caused.

60. In giving reasons for refusing to recuse himself his Honour also said he considered disclosure of experts’ draft reports necessary as a matter of course in order to demonstrate independence of their opinions. His adoption of that view could not rationally be taken as an indication that he might pre-judge the acceptance or otherwise of a particular expert’s evidence. With respect, his Honour’s view fails to recognise the possibility that draft expert reports may be privileged. But that qualification does not transform his position into a manifestation of bias.

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Interventions in the cross-examination of Senior Constable Parker

63. In written submissions the applicant’s counsel identified passages in the cross-examination of Senior Constable Parker where the learned judge asked questions. It was submitted that by doing so his Honour “effectively foreclosed attempts by defence counsel to pursue legitimate lines of examination”. Having read the passages identified and surrounding questions and answers we reject this proposition. His Honour asked very few questions during the cross-examination of this witness, which extended over 81 pages of transcript on two separate days. Such questions as were asked by his Honour were not in leading form and appear to have been for the purpose of seeking clarification and understanding.

64. Having considered the “lines of examination” constituted by defence counsel’s questions before and after those of his Honour, it is not apparent to us how any such “lines” were “foreclosed”. From the learned judge’s extremely limited contributions to the questioning we do not consider that a fair-minded bystander could infer a possibility of bias.

65. Taking all of the suggested indicia of possible bias in combination we do not consider that they might cause a reasonable and fair-minded bystander, properly informed, to apprehend that the learned judge might be biased against the applicant. Ground 1 is rejected.

Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ

1. The appellant ("the husband") and the first respondent ("the wife") married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under s 79 of the Family Law Act 1975 (Cth) ("the Act") for orders settling the property of the parties to the marriage. The ensuing and still unfinished litigation was aptly described by the trial judge as "long‑running" and "staggeringly expensive". There has been a litany of applications, hearings, orders and appeals. For present purposes, it is necessary to refer to only some of this unfortunately long and tortured history.

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7. On 8 May 2018, the husband's solicitor wrote to the barrister who had appeared for the wife before the trial judge raising with her "gossip" that while the trial judge was seised of the Charisteas matter, the barrister and the judge had engaged outside of court in a manner inconsistent with her obligations and those of the judge. The letter asked the barrister to provide written assurance that "during the time the former Judge was seised of the [Charisteas] matter, [she] had no contact with him outside of court"; and if she could not provide that assurance, she was asked to "outline the circumstances of [her] dealings with him".

8. Two weeks later, the barrister responded stating that she had met with the judge for a drink or coffee on approximately four occasions between 22 March 2016 and 12 February 2018; had spoken with the judge by telephone on five occasions between January 2017 and August 2017; had exchanged "numerous" text messages with the judge between 20 June 2016 and 15 September 2017 (except for a brief hiatus during the evidence stage of the trial); and had exchanged "occasional" text messages with the judge from 15 September 2017 until 12 February 2018. The barrister concluded by stating that the "communications" with the trial judge did not concern "the substance of the ... case". The husband filed an amended notice of appeal adding grounds alleging apprehension of bias.

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14. In this matter, what is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife's barrister "otherwise than in the presence of or with the previous knowledge and consent of" the other parties to the litigation. Indeed, given the timing and frequency of the communications between the trial judge and the wife's barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.

15. A fair‑minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge's impartiality might have been compromised by something said in the course of the communications with the wife's barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.

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17. Focusing on this latter period, the majority in the Full Court reasoned that the trial judge and the wife's barrister were aware of some of their obligations, by not communicating during the course of the trial, and the trial judge may be taken to have failed to appreciate that the same strictness applied at other times. According to the majority, the hypothetical observer would understand that the trial judge mistakenly held such a view but would not consider his lack of disclosure to be sinister.

18. This reasoning is erroneous. The apprehension of bias principle is so important to perceptions of independence and impartiality "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" (emphasis added). No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises.

19. The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications, particularly when he was dealing with the application to recuse himself on other grounds. It may give the hypothetical observer reason to doubt the correctness of the claim by the wife's barrister that their communications did not concern "the substance" of the case, if the ambiguity inherent in that statement is not itself of sufficient concern.

20. The majority also reasoned that the second limb in Ebner was not made out by reference to what the fair-minded lay observer, properly informed as to the judiciary and the Bar, would think. The information included that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them. Informed by such matters, the majority reasoned, the hypothetical observer would be "able to tolerate" some degree of private communication between a judge and the legal representative of only one party, even if undisclosed. The majority considered that the hypothetical observer would accept in this case that the judge and the wife's barrister would adhere to professional restraint in what was discussed and would accept that a professional judge who has taken an oath of office would not discuss the case at hand.

21. Once again, this reasoning is erroneous. The alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self‑appreciation of this kind.

22. It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. The means by which their contact may be resumed is by a judge making orders and publishing reasons, thereby bringing the litigation to an end. It is obviously in everyone's interests, the litigants in particular, that this is done in a timely way.

Gleeson JA

1. The appellant, Mr Timothy Charles Pratten, seeks leave to appeal against his convictions of seven offences of dishonestly obtaining a financial advantage by deception, of which he was found guilty on 9 September 2016, after a trial by jury before a Supreme Court judge (Rothman J). Those offences were contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) (the Code) which provides…

Johnson J

323. I have had the considerable advantage of reading the judgment of Gleeson JA concerning this appeal. I agree with his Honour’s reasons and proposed orders.

Beech-Jones J

326. At the commencement of the hearing of this appeal, Mr Pratten applied for my disqualification on the basis of apprehended bias. When it is said that one member of an appellant court should be disqualified on the grounds of actual or apprehended bias, then the application is determined by the individual judge and not the Court as a whole (see Barton v Walker (1979) 2 NSWLR 740 at 756; Bainton v Rajski (1992) 29 NSWLR 539; see for example DJ Singh v DH Singh and Others (No 2) [2018] NSWCA 31 and Waterhouse v Independent Commission Against Corruption (No 3) [2016] NSWCA 134). After hearing Mr Pratten, I declined to disqualify myself. I stated that I would provide reasons at the time the Court published its substantive judgment. I now do so.

327. The basis for the application that I disqualify myself is my appearance as Counsel for the defendant in proceedings in August 2011 which were resolved by a judgment of Hall J delivered in April 2012 some six weeks after my appointment to this Court: Rural and General Insurance v Goldsmiths Lawyers [2012] NSWSC 358. In those proceedings, I acted for the former solicitor to Rural and General Insurance Broking Pty Ltd (“RGIB”). The solicitor had acted for RGIB in defamation proceedings against the Australian Prudential Regulatory Authority (“APRA”) in the Supreme Court of the Australian Capital Territory (at [4]). In the proceedings before Hall J, RGIB was successful in reviewing the decision of a costs assessor who had declined to review the costs charged by the solicitor defendant to RGIB (at [75]). RGIB was also successful in obtaining an order under s 728 of the former Legal Profession Act 2004 (NSW) for the provision of an itemised bill costs ([81]). Thus, the subject matter of the proceedings was the decision of a costs assessor and the exercise of the discretion conferred by s 728 of the LPA 2004. I did not appear in the defamation proceedings and have no recollection of what they related to.

328. In his disqualification application, Mr Pratten stated that, during the hearing of the proceedings before Hall J, I cross examined him and put matters to him “adverse to [his] character”. I do not recall doing so. There is no specific reference to any evidence given by Mr Pratten in cross examination in Hall J’s judgment. However, it is clear that Mr Pratten swore affidavits that were read before Hall J (at [7]) and he gave oral evidence (at [82]). I will address the application on the basis that I did cross examine Mr Pratten and put to him matters that were adverse to his credit. It was not suggested that they related to any matter relevant to the facts of this appeal.

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330. The application of this test to the circumstance in which a judge has previously acted as the legal representative for one of the parties before him or her has arisen in a number of cases. They were recently reviewed by Bell P in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [25] to [40] (“Kostov”). Although this case concerns a judicial officer who previously acted against one of the parties to an appeal, those cases are still of relevance especially as I acted for Mr Pratten’s former solicitor.

331. Two matters should be noted about the test for apprehended bias as it applies to a judicial officer’s previous experience as a legal practitioner. First, in Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87 to 88; [1991] HCA 25, Brennan, Gaudron and McHugh JJ noted that a prior relationship of legal adviser and client does not generally disqualify the legal adviser from later sitting in proceedings in which that client is a party, although the position may be different if the correctness or appropriateness of their advice is an issue in those proceedings.

332. Second, the knowledge attributed to the hypothetical fair minded lay observer includes a working understanding of the basic or ordinary practices, training and obligations of judges, barristers and solicitors (S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; (1998) 91 FLR 175 at 380 to 381; British American Tobacco Australia Ltd v Peter Gordon [2007] NSWSC 109 (BATA) at [63]; Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited [1996] FCA 1308; (1996) 65 FCR 215 at 222; [1996] FCA 813; Charisteas v Charisteas [2021] HCA 29 (Charisteas) at [12], including what such practices might preclude (Charisteas at [14])). This imputed knowledge includes an understanding that barristers do not usually become associated or identified with their clients and that a “judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material” (BATA at [63]; Kostov at [38] to [39]).

334. One aspect of the practice of barristers and solicitors conducting court proceedings is that they may put adverse propositions to witnesses in cross examination provided there is a proper evidentiary basis for doing so. Consistent with the above authorities, the hypothetical reasonable lay observer is taken to understand that this is undertaken to advance their client’s case and does not necessarily attribute to the barrister or the solicitor that they hold an opinion as to what was suggested to the witness. As noted, in this case the only matter specifically identified as potentially engaging the first limb of Ebner was Mr Pratten’s recollection that something adverse to him, unrelated to this case, was suggested by me to him in the cross examination before Hall J over a decade ago. It follows that the reasonable hypothetical lay observer is not necessarily taken to attribute whatever suggestion that was put to be a personal view held by me then (much less now). Further, as for the second limb of the Ebner test, this application is taking place in a context where the subject matter of the appeal is the fairness of Mr Pratten’s trial on matters unrelated to the issues in the proceedings before Hall J. This Court is not determining Mr Pratten’s credibility as a witness itself. In all these circumstances, there is no “logical connection between the matter [identified by Mr Pratten] and the feared deviation from the course of deciding the case on its merits” (Ebner at [8]).