Judicial interference

Kirby ACJ

At 265

Two points were argued in this appeal from orders made by Powell J. The first involved a review of his Honour's fact-finding and consideration of the argument that his Honour had erred in resolving factual disputes between the parties in a way that this Court could and should correct on appeal. The second involved a criticism of aspects of the conduct of the trial by his Honour. Having regard to intervention made by the trial judge during the cross-examination of the appellant and comments both to the appellant and his counsel, it was claimed that the trial miscarried. This was put alternatively upon the basis either that his Honour should have disqualified himself on the ground that his interventions and comments gave rise to a reasonable apprehension of bias or that they otherwise went beyond proper judicial conduct and warranted an order for re-trial.

At 273 and 274

The second attack of the appellant on Powell J's orders requires consideration of the conduct of the trial and the criticisms made on the appellant's behalf concerning the number, terms and tone of questions and comments addressed by Powell J to the appellant and his counsel.

No complaint is made of the conduct of the trial to the point when the appellant gave evidence on the fifth day. As well, counsel for the appellant accepts, quite properly, that a very long series of questions asked by Powell J of the appellant, at the end of his examination by counsel, were absolutely proper, being designed to clear up doubts or uncertainties which existed in his Honour's mind. The complaint is directed rather to a series of questions asked and comments made during the cross-examination of the appellant. It is alleged that these caused a mis-trial of the action. It is alternatively put that a mis-trial occurred either because the judge's comments and questions were such that an impartial lay observer would reasonably apprehend that his Honour was biased against the appellant or that the interventions were so numerous and intemperate as to have deprived the appellant of his right to a fair trial, such that a re-trial would be ordered in the interests of justice.

It is unnecessary to set out at length all of the passages of which the appellant complains. They appear between p 329 and p 401 of the transcript. It is true that they evidence a high degree of impatience on the part of Powell J with the answers which the appellant was giving to the crossexaminer. Clearly, his Honour was forming a view that the appellant was not telling “the whole truth” as the oath required, was indulging in artificialities.

At 280

The appellant, nonetheless, relied upon a second basis for asserting that the trial had miscarried. This was the suggestion that his Honour, in the passages cited (and others) had turned his back on his duties as a judge, assumed instead those of the advocate and had descended from his neutral duties on the bench to the well of the courtroom, thereby depriving the appellant of a trial according to law.

At 280 to 282

There have been many cases in this and other jurisdictions where similar complaints have been made. The complaints are quite frequently made in the context of criminal trials before juries. The most recent case in this State of that class is to be found in the decision of the Court of Criminal Appeal in R v Andronicus (Court of Criminal Appeal, 13 November 1989, unreported). From the cases the following relevant guidelines emerge:

1. The test to be applied is whether the excessive judicial questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA).

2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane C Ltd v Ministry of Transport.

3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and “into the perils of self-persuasion”: see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial  Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited.

4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90WN(Pt 1) (NSW) 427; [1970] 1 NSWR 654.

5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).

6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.

The intervention did not cause mis-trial:

When the above guidelines are remembered and applied to the present case, I do not consider that the appellant has made out the complaint that the trial miscarried and was unfair. It is true that a number of the questions asked and comments made by the trial judge could have been better expressed. It is also true that some of them indicate a loss of even temper which otherwise characterised his Honour's conduct of this long trial. On the other hand, this occurred when the trial was well advanced and when the issues were reasonably clear. Had his Honour remained silent despite his developing opinions, the appellant might have had a legitimate cause to complain that he was not given an opportunity of correcting these opinions. He might then have been afforded no opportunity to meet the judge's developing view that the appellant was temporising, unduly technical and presenting a demeanour destructive of the acceptance of his credibility. Some of the appellant's answers that provoked his Honour were indeed unpersuasive, even silly. The appellant is an educated, trained person with better than average skills in the use of the English language. By inference, he has intellectual skills adequate to understanding the points being put to him by the judge. Some of the judge's comments and questions were blunt and even robust. Whilst politeness in court is a virtue, departure from that standard will not necessarily require appellate correction: cf Escobar v Spindaleri (1986) 7 NSWLR 51 and Rajski v Powell (1987) 11 NSWLR 522 at 537.

Priestly JA

At 283

Powell J showed some irritation with the appellant, and also, to some extent, with counsel; he also at times became sarcastic about the appellant's evidence. I am not at all persuaded by the appellant's counsel that the matters of which he complained came near a level where this Court might give consideration to holding this ground of appeal made out. In my opinion, having considered all the material in the light of counsel's submissions, the orders made against the appellant were made after an appropriately fair and regular hearing.

Meagher JA

At 283

In this matter I have had the advantage of reading in draft the reasons of Kirby A-CJ. I agree with them, and with the orders he proposes. I merely wish to add some brief observations on the second ground of appeal, viz, that Powell J by his conduct of the case exhibited a degree of hostility to the appellant such as to disqualify him on the ground of apprehended bias. I found it hard to take this submission seriously. In a series of cases the High Court of Australia has laid it down that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v E New South Wales Bar Association (1983) 151 CLR 288 and Vakauta v Kelly (1989) 63 ALJR 610; 87 ALR 633; (1989) Aust Torts Reports ¶80-277. This has led to appellants, in cases otherwise devoid of merits, seizing on any acerbic utterance made by the trial judge and urging that utterance as a ground for appeal on the basis of bias. This is a tendency which is not justified by these authorities and must be resisted. Where, as in the present case, a judge is confronted by a witness who is both deceitful and evasive, there is no principle that he is not at liberty to express his measured displeasure at being trifled with. There is no principle that he must endure the ordeal with ladylike serenity. Indeed in Vakauta (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ state that to maintain a total silence in such situations ‘“would not represent a model to be emulated”. More than that, a timely intervention serves the interest of the party leading such evidence, as it provides him with a chance to mend the damage already inflicted. In my view, if a reasonable disinterested bystander had heard the passage at arms complained of in the present case he would not have reasonably apprehended that the trial judge was prejudiced, he would only have noted that an exceptionally irritating witness had eventually succeeded in irritating the judge.

Wood CJ at CL

At 444

On 10 June 1997, the appellant was indicted before Hulme J in the Supreme Court, on a charge of murder. She entered a plea of not guilty. Following trial before his Honour and a jury, a verdict of guilty of murder was returned on 26 June 1997. The appellant was sentenced to a minimum term of penal servitude for twelve years and nine months, to date from 26 April 1995, and to an additional term of four years and three months to commence upon expiry of the minimum term. She now appeals against her conviction.

At 455

I observe, however, that the alternative reason for refusing the discharge application, was inappropriate. A desire, on the part of a trial judge, to reduce any perceived imbalance in the quality of representation or of address at a trial, would never provide a justification for an unbalanced summing-up.

Although said in a context more relevant to ground 3 and ground 5 in this appeal, Hunt CJ at CL pointed out (at 26) in R v Wilson (Court of Criminal Appeal, 31 March 1995, unreported) that:

“… the absence of experience or competence of, or attention by, counsel E for one party (does not) provide any special justification for an intervention by the trial judge in order to carry out the task which that counsel has been briefed to perform.”

It is, in my view, no more appropriate for a judge to use the opportunity of the summing-up, to redress any perceived deficiency in, the address of counsel for one party, than it is for that judge to take over the role of counsel in adducing evidence, because of some perceived incompetence or inexperience of the latter.

The reason offered was accordingly one that was not properly available, but it is not of any moment so far as this ground is concerned.

At 460

Grounds 3 and 5—Undue intervention by trial judge:

The appellant submitted that the trial miscarried as the result of the questioning of the appellant by the trial judge, in the course of her evidence before the jury.

Additionally, it was submitted that the trial miscarried as a consequence of his Honour “entering the arena” in the course of the summing-up, and in bringing a lack of balance to the summary of the evidence of Mr Ross. This last-mentioned matter was examined in relation to ground 1A above. Save so far as it may be said to have had a “compounding effect” I shall not repeat the observations which I made earlier in this regard.

On the seventh day of the trial, after the luncheon adjournment, counsel for the appellant expressed concern that the jury “may take a view” that his Honour “was entering the arena and demonstrating some scepticism in respect of the accused's evidence”. It was put that, before lunch, his Honour had “engaged in a long series of questions of (her) which amounted to in effect, cross-examination, and went beyond clarifying issues but raised new issues”. Counsel asked his Honour “not to enter the arena by way of conducting a cross-examination”, and added that he would like to “reserve his position” until he had some instructions. The relevant passages had occupied just over two pages of the transcript as follows…

At 462

The segment, of which particular complaint is made, however, occurred at the end of the cross-examination by the Crown Prosecutor of the appellant, when his Honour asked these further  questions…

At 466

On the following Monday, counsel for the appellant asked that his Honour disqualify himself from the trial, and discharge the jury. The application was put in the following way…

At 467 and 468

The present is not a case that was conducted in any atmosphere of acrimony or hostility from the Bench, nor is it one where his Honour intruded into its running to any obvious degree, save in so far as he participated in questioning the appellant at some length in the presence of the jury. It is not a case where it has been suggested that by his questioning, his Honour interrupted counsel or interfered with the development of any line of examination. It is, however, one where it is submitted that his Honour adopted the robe of an advocate and did so in a way that would have conveyed to the jury his disbelief of the appellant on critical issues.

The need for caution on the part of a trial judge in remaining above the fray, particularly in a criminal trial, is well-established…

At 472

The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.

…

While there is no question other than that his Honour was endeavouring to see justice to the community done in the case, it was not, in my view appropriate for him to have undertaken this line of examination. The matter should have been left to the Crown Prosecutor particularly after the concerns of defence counsel had been expressly ventilated.

It appears from the reasons given that his Honour took the course that he did, in examining the appellant, because of his concern as to the inconsistencies between the evidence she had given on the voir dire and in the trial, and because of his suspicion that she had tailored her evidence in the trial to meet some of the problems exposed on the voir dire. His purpose, as stated, was to encourage the Crown Prosecutor to pursue that matter so that “justice to the community” might be served. In making this observation (albeit in the absence of the jury) there was a tangible risk of his Honour having been seen to have sided with the prosecution, and to have lost the appearance of impartiality which was expected.

Such an impression would not have been helped by the later observation, noted in respect of ground 1A, when his Honour in dismissing an application to withdraw the summing-up, justified the course taken, as an attempt to “reduce the imbalance in the trial (between the prosecution and defence cases) arising from undue repetition in an otherwise very good and effective crossexamination, and an imbalance in the quality of address, that of Mr McClintock being of an extremely high standard”.

It was not appropriate for his Honour to have gone to the aid of the Crown, either in the presentation of the evidence, or in the summing-up. To have done so risked a fair trial, in appearance and fact.

The intervention was unfortunate. Although well motivated, my conclusion is that it was inappropriate and excessive, with the result that this ground is made out.

James J

At 477

I have had the advantage of reading in draft the judgment of Wood CJ at CL. I agree with his Honour's judgment and with the orders proposed by his Honour but wish to add some remarks of my own.

As regards the third to the fifth grounds of appeal, it could be argued for the Crown that the interventions by the trial judge were limited to asking questions of the accused or suggesting to the Crown Prosecutor that the Crown Prosecutor ask questions of the accused, and did not take a variety of forms, as happened, for example, in R v Wilson (Court of Criminal Appeal, 31 March 1995, unreported); that the questions which the trial judge could properly ask were not limited to questions by way of clarification of evidence which had already been given; that the questions asked by the trial judge did not interrupt the flow of questioning by counsel; that the questions asked by the trial judge were only a fairly small proportion of the total number of questions put to the accused; and that counsel for the accused was able to conduct an uninterrupted re-examination of the accused, after the trial judge had asked the last of his questions.

However, I have come to the conclusion that at times while the accused was giving evidence the trial judge adopted the role of prosecutor and that the trial judge's interventions would be likely to have conveyed to the jury that the trial judge was sceptical of the credibility of at least some parts of the accused's evidence and that the trial judge's interventions did amount to a miscarriage of justice. I note particularly the following matters…

Adams J

At 478

1. I have had the advantage of reading in draft the judgment of Wood CJ at CL.

2. As to the third, fourth and fifth grounds of appeal, I agree that, taken as a whole, the interventions of the trial judge caused the trial to miscarry. I wish, however, to add the following comment. Where the Crown Prosecutor has overlooked some point, even a vital one, or a line of examination or cross-examination, it will frequently, though not invariably, not be inappropriate for the trial judge to remind him or her of the matter. This should usually be done in the absence of the jury. However, to ask such a question or, even more, undertake the adducing of evidence, is fraught with danger, not only because the matter might have been omitted for sensible reasons unknown to the judge, but because the jury may suppose that the judge has adopted the prosecution case. When this occurs the conventional directions about the differing roles of judge and jury will rarely suffice to avoid a miscarriage. Intervention to clarify an uncertainty will also usually be well within the trial judge's proper role. To ask a clarifying question or two is very different from embarking on a hostile cross-examination. Regrettably, in this case the learned trial judge undertook the latter course.

Priestly J

1. I agree generally with the reasons of Sully J. In particular the materials he discusses when dealing with grounds of appeal 2, 5 and 6 seem to me to combine so that the grounds reinforce one another and make it necessary, in my opinion, that there should be a new trial.

Sully J

2. Between 6 and 20 November 2000 Mr. Brian James Lewis, the present appellant, stood trial in the District Court at Parkes before his Honour Judge Kinchington QC and a jury. He was tried upon a charge that on 21 September 1997 he had broken and entered the premises of the Condobolin RSL Club and that he had stolen thereupon amounts of cash totalling $27,633.65. The indictment upon which the appellant was presented for trial contained a second, and alternative charge of receiving an amount of $25,336.75 with knowledge, at the time of the receiving, that such money had been stolen previously from the Condobolin RSL Club.

…

4. Ten grounds of appeal were notified and argued. They are as follows:

[1] …

[2] There was a miscarriage of justice because the trial Judge unduly intervened by eliciting evidence from the witnesses and the appellant. As a result he distorted the trial process and brought about a miscarriage of justice.

…

6. The Crown case against the accused was circumstantial. It rested upon three basic propositions which can be summarised as follows:

[1] It was beyond dispute that somebody had in fact broken and entered the Club premises and stolen the amount charged in the first count in the indictment. The incidents of the breaking and entering pointed overwhelmingly to an offender who was familiar with, and equipped to neutralise, the Club's security system.

[2] The appellant had opportunity and motive.

[3] On the morning following the commission of the offence, the appellant was found driving a motor vehicle in which there were secreted bundles of money totalling in amount a sum suspiciously close to the amount stolen from the Club; and that suspicion was reinforced by a comparison of the denominations of notes making up, respectively, the amount stolen from the club, and the amount found subsequently in the possession of the appellant.

…

26. At the hearing of the present appeal the Court received without objection an affidavit of Mr. Geoffrey Casey, who has been throughout the solicitor for the appellant. Mr. Casey was in attendance throughout the entirety of the trial. His affidavit has annexed to it a meticulous schedule of the questions asked by the learned trial Judge. They amount in number to 1,337 questions. Some of those questions can be set aside at once as irrelevant to the point made by Ground 2. But very many of those questions, - and I would myself say, from my reading of the transcript, the greater part of them, - amount to much more than merely formal, or otherwise trifling, interventions on the part of his Honour.

27. It is, of course, the case that when a trial Judge intervenes during the course of the trial, it will be very often important to have a correct understanding, not only of what the Judge actually said, but of the way in which he said it; and of the general trial atmosphere in the context of which the interventions were made. In the present case it is not possible to have any understanding at all of his Honour's interventions, except for what can be gleaned from a bare reading of the trial transcript itself.

28. Doing the best I can upon that limited basis, the first thing that strikes me is, not the bare number of the questions asked by his Honour, but the fact that his Honour's interventions were constant throughout the trial. The interventions were not only persistent, but they seem to me to have had, persistently, what I would describe as a querulous or challenging tone to them. In the case of the evidence given by the appellant's brother, Mr. Barry Lewis, his Honour's interventions, both in examination and in cross-examination, seem to me to have taken effectively out of the hands of both counsel the proper taking of the evidence of that witness.

29. It would be possible, of course, to go, question by question, through the schedule of questions attached to Mr. Casey's affidavit. I think, however, that it is both preferable and sufficient to say simply that I have read the entirety of the trial transcript, and that my own impression at the end of that exercise is a clear and firm impression that, whatever else can be said about the learned trial Judge's interventions, it could not fairly be said that justice, whether or not it was done in fact, was seen manifestly to have been done.

30. That is, in my opinion, sufficient to warrant upholding Ground 2.

Smart AJ

86. The judge played an active part in eliciting the evidence of Mrs Whitehurst both in chief and during cross-examination, putting many questions, namely 106 questions in chief and 174 questions in cross-examination. He also intervened during the cross-examination of Mr Mitchell where it was not desirable. During cross-examination Mr Mitchell claimed that he could not remember how much he had borrowed through the bar voucher system during the first half of 1997.

…

90. The judge asked 89 questions during the appellant's examination in chief and thereby disrupted the flow of his evidence. It was a pity he devoted so much attention to the equipment and the tapes which recorded activities inside parts of the Club when it was common ground that they were not functioning at the time of the offence and had not been functioning since the previous day.

91. During the appellant's cross-examination the judge asked 172 questions. The judge questioned the appellant about Mr Keogh insisting upon $10,000 being paid in cash, the contracts which were signed and the purpose of the payment in cash and when it was paid. The judge intervened quite frequently as the cross-examination progressed and put propositions and questions to the appellant often having the effect of assisting the Crown. A reading of the transcript left me with the impression that on occasions the appellant was being cross-examined by the Crown prosecutor and the judge. The latter asked the appellant from time to time why he pursued certain courses of action or failed to take certain steps. The judge questioned the appellant about some of the answers which he had given the police in his recorded interview. During re-examination the judge queried the appellant's evidence that his mother never went to the bank.

…

93. The accused and his brother gave evidence on 16 November 2000. At the start of the hearing on 17 November 2000 counsel for the appellant at the trial said:

"What I'm about to say, I say with the greatest respect for your Honour and of your Honour, but I am concerned about your Honour's active intervention in the cross-examination of the witnesses for the defence and I raise it now because I foreshadow that I'd be concerned later on that perhaps in your Honour's summing up there may be an unfairness to the accused".

94. The judge took objection to what counsel had said, particularly the suggestion that he took from the remarks that he would be unfair in what he said to the jury. Counsel reminded the judge that counsel had not said that the judge would be unfair. The judge asked counsel to withdraw the suggestion he had made. Counsel did so.

95. The judge added:

"... I have asked questions throughout the course of this trial in order to clarify things that have been left, in my opinion, unclear, and which I hope would assist the jury in those points of clarification, and I'll leave it at that".

Unfortunately, a significant number of the judge's questions went much further than clarifying matters.

…

101. A study of the transcript reveals that the judge's interventions exceeded, by a significant margin, the permissible limits. They disrupted and distorted the trial process. Amongst other things, the terms of the interventions suggested that the appellant and witnesses called on his behalf were giving evidence that was not credible and engaged in actions which were not credible.

102. In R v L G Wilson CCA, unreported, 31 March 1995 Hunt CJ at CL and I in separate judgments emphasised the restraint and circumspection that a judge should exercise before he intervenes. Questions in the nature of cross-examination should be left to the Crown. That restraint and circumspection are very important when dealing with an accused and an elderly lady. It is hard enough for an accused or any witness to give evidence without undue interventions and questioning by the judge. In the present case, on this ground alone, the appellant has not had a fair trial according to law, the verdict must be set aside and a new trial ordered.

Ipp AJA

3. On 22 November 2000 the appellant was charged before Kinchington DCJ and a jury in respect of 40 counts of imposing upon the Commonwealth by an untrue representation. Each of these charges alleged an offence contrary to s 29B of the Crimes Act 1914 (Cth).

…

7. The appellant raised two grounds of appeal in respect of his appeal against conviction. The first ground was that the verdicts of guilty on the 36 counts were unreasonable and could not be supported, especially in the light of the evidence regarding the four counts on which he was acquitted. The second ground incorporated two arguments. The first argument was that the trial judge repeatedly intervened in the examination and cross-examination of witnesses to an extent that resulted in the trial being transformed from an adversarial contest presided over by an impartial judge into inquisitorial proceedings in which the judge played an extremely active role. The result, it was submitted, was that the trial was not a trial in accordance with our law. The second argument was that the judge's interventions resulted in the appellant being denied a fair trial according to law and this led to a miscarriage of justice.

…

The adversarial character of the trial

24. Mr Button put the argument grounded on what was submitted to be the inquisitorial character of the trial on the basis that, irrespective of whether there had been a miscarriage of justice or material unfairness in the proceedings, the appeal should succeed.

25. An incident occurred during the trial that Mr Button submitted revealed his Honour's state of mind and general attitude to his role. In the course of the testimony of a Crown witness, Ms McMahon, his Honour held a voir dire in the absence of the jury. Neither counsel had asked him to do this. Indeed, Mr Brazier, counsel for the appellant at the trial, objected.

26. In response to the objection, the judge said:

"I want to clarify this issue".

He then proceeded to ask Ms McMahon a series of questions concerning the practices in the Centrelink office relating to the use of computers. The judge eventually explained:

"I initiated this voir dire because of evidence that the witness seemed to be about to bring out and I wanted to ascertain the relevance of it and that it didn't raise prejudicial matters to [the appellant]."

27. I must say that the procedure so adopted by his Honour was quite extraordinary. He acted of his volition in holding the voir dire and did so over the objection of counsel for the appellant. The transcript of the voir dire extended over about three pages. Apart from one question from the prosecutor, to which there was an objection and to which the witness did not reply, during the voir dire the judge undertook all the questioning of the witness.

His Honour's explanation for holding the voir dire is difficult to understand. A decision as to the relevance or otherwise of evidence is usually determined during the course of the trial upon objection by a party to the evidence. Relevance is not usually determined by means of a voir dire called at the judge's own motion where only the judge questions the witness. Furthermore, in the circumstances of this case, it is not clear to me how the holding of the voir dire would have assisted the judge in preventing matters prejudicial to the appellant being brought out later in evidence.

28. Nevertheless, it cannot be said that the holding of the voir dire caused the appellant any prejudice. It took place in the absence of the jury and nothing that was said in the voir dire had any bearing on the case or any influence over it. It does, however, support the argument that, at times during the case, his Honour had an unusual attitude to his judicial duties.

29. His Honour intervened many times in the running of the trial by asking questions of the witnesses. He questioned Crown witnesses as well as the appellant and not only in cross-examination but in chief. Many of the interventions involved the asking of a small number of questions. Others, however, involved extended questioning where the interchange between his Honour and the witness concerned occupied two to three pages of the transcript.

..

32. When the questions Kinchington DCJ asked are examined without reference to the context of the trial as a whole, it could be said that he asked an unusually large number (relative to the amount of questions a judge might customarily ask). But when regard is had to the trial as a whole, and measuring the number of questions his Honour asked against those asked by counsel, that number is relatively very small.

The judge's interventions, did result in him, for differing periods, occasionally taking over the questioning of witnesses. Nevertheless they do not, by any stretch of the imagination, give rise to an impression that he assumed the overall conduct of the trial, as would be the case in an inquisitorial process.

…

38. Notwithstanding the many judicial comments that have been made in regard to the issue, the boundary between permissible judicial intervention in a criminal trial and intervention of a kind that results in an unfair trial is not capable of clear definition. While the line may be narrow and the ice may be thin, the line is not bright and it is not always easy to determine whether the ice will hold. There are, indeed, circumstances in which a trial judge may legitimately intervene in a criminal trial.

39. In a proper case, intervention may be warranted for the purpose of preventing undue delay or to ensure that the parties focus on the crucial issues in the case, and a judge who does not so intervene may be criticised by an appellate court: see R v Wilson and Grimwade [1995] VicRp 11; [1995] 1 VR 163. Whether the degree of intervention is appropriate is a matter of balance and judgment. In this case, however, the vast majority of the interventions by Kinchington DCJ were not designed to curtail the proceedings and they were not made for the purposes of managing the conduct of the trial.

40. It has long been accepted that a judge may intervene for the purpose of clarifying the evidence (see, for example, Yuill v Yuill [1945] 1 All ER 183). That is to say, clarifying it not only so that the judge understands it but so that the jury understands it as well.

41. In the course of clarifying the evidence, the judge may, involuntarily, but inevitably, assist either the prosecution or the defence. But I do not accept that that makes such an intervention improper. It is not the law that a judge must allow the evidence to be left in a state of incomprehensibility. We have long since departed from the "game" or "sporting" theory of justice; see the remarks of Hope JA in Bassett v Host [1982] 1 NSWLR 206 at 207 and Mahoney JA in GIO of NSW v Glasscock (1991) 13 MVR 521 at 530.

42. That having been said, it must be emphasised that intervention for the purpose of clarification does not necessarily require the judge to question the witness. The judge may readily achieve clarification by pointing out, at an appropriate time, usually in the absence of the jury, evidential ambiguities or obscurities to counsel. That is by far the most desirable course. It should be left to counsel, whenever possible, to deal with such matters. If the judge undertakes the task by questioning witnesses, there is the danger that he or she will assume, albeit temporarily, the role of counsel and become identified with the cause of one side or another. Unfairness can readily be the consequence.

…

Was the trial unfair in this case?

45 The argument of the appellant was that the judge entered into the trial arena, disturbed the appellant's counsel in the orderly presentation of his case, and assisted counsel for the prosecution by clearing up ambiguities in the Crown case and emphasising the points tending to establish the guilt of the appellant. Further, it was said, from time to time the judge made it clear to the jury that he did not believe the appellant and identified himself with the Crown case.

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56. Some of the difficulties that Kinchington DCJ sought to clarify were of a kind where obscurities could be (and were) resolved by a one or two brief questions. I do not think that those questions were improper. There were instances, however, where the obscurities were more substantial, and where several questions were needed to clarify them. I think those questions should not have been asked by the judge. The difficulties he had should have been resolved by his Honour directing the attention of counsel to them in the way I have earlier suggested.

57. In some instances, the judge disturbed the flow of the defence cross-examination and hampered Mr Brazier in his cross-examination. I do not think, however, that - at any stage - the prejudice was of any real significance.

58. In some instances the jury could have gained the impression from the manner of questioning and the content of the questions that Kinchington DCJ was sceptical about certain aspects of the defence case. Such an attitude on the part of the trial judge is not unknown in our system and the mere fact of its existence does not give rise to an unfair trial. As with all the pertinent factors in this case, issues of degree arise. It was undesirable and inappropriate for the judge to allow his views to become apparent. But I am not persuaded that the extent to which this occurred gave rise to an unfair trial.

59. His Honour at times became impatient with counsel (both for the prosecution and the defence), and in some instances where questions were not properly asked, but where the thrust of the questions was apparent, he simply took over the questioning, apparently in a desire to shorten the proceedings. There is little to commend this practice, and occasionally his Honour's questioning worked to the prejudice of the appellant. In the particular circumstances of the case, however, I do not think that that prejudice resulted in significant unfairness.

60. The practice of the judge in, at times, bringing out the salient points of the evidence of Crown witnesses, either during the course of examination in chief or after re-examination, was highly undesirable. I accept that to an extent the appellant was prejudiced thereby, but in the particular circumstances the extent of the prejudice was not so significant as to render the trial unfair.

61. Mr Brazier objected several times to questions asked by Kinchington DCJ. He asked the judge to stop "cross-examining" on more than one occasion. His Honour considered the term "cross-examining" to be offensive and asked that it be withdrawn. At one point Kinchington DCJ explained that he had asked certain questions to clarify the evidence as he did not understand it. Despite the several objections by counsel for the appellant, the judge persisted. Indeed, it appears, at times, that an objection by counsel would incite his Honour to further bouts of extended questioning. This was plainly inappropriate. Mr Brazier, however, did not apply for the termination of the trial and the discharge of the jury on the grounds of the judge's conduct.

62. In my view, several of Mr Brazier's objections to his Honour's questioning were without substance. There can be no doubt, however, that on some occasions, as I have noted, the judge's questioning went beyond clarification of the evidence and some of his Honour's interventions should not have been made. But I have concluded that these transgressions, on balance, did not result in significant prejudice sufficient to result in an unfair trial.

63. On reading the transcript I have had real misgivings about some of the judge's questions. Nevertheless, taking into account all the matters to which I have referred, individually and collectively, I am not persuaded that there has been a miscarriage of justice. I would dismiss the appeal against conviction.

Sully J

86. I agree with Ipp AJA

Bell J

87. I agree with Ipp AJA

Giles JA

1. I agree with Dunford J.

Dunford J

2. This is an appeal by Mathew Leslie Coe against his conviction for robbery with violence contrary to s 96 of the Crimes Act 1900 following his trial by a jury before his Honour Judge Kinchington QC in the District Court at Sydney for which he was subsequently sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 3 months. He also pleaded guilty to a charge of supply a prohibited drug, namely cannabis for which he was sentenced to a concurrent term of imprisonment for a fixed term of 15 months.

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88. Ground 5A - The repeated interventions of the learned trial judge in the trial denied the appellant a fair trial according to law and constituted a miscarriage of justice.

89. A number of references were given in the written submissions to passages where the trial judge asked questions, but most concern was expressed in relation to four particular passages described as follows:

(a) At T 1/3/01 (3) p 10 his Honour interrupted defence counsel and questioned the witness in the nature of cross-examination.

(b) On the following page, T 1/3/01 (3) p 11, immediately after Mr Cusack had agreed with defence counsel that he was not definite the appellant had committed the offence, his Honour interrupted cross-examination and questioned Mr Cusack in a challenging manner which highlighted the positive manner of his previous assertions to the police.

(c) At T 1/3/01 (3) p 12, immediately after Mr Cusack conceded to defence counsel that he "most possibly" had a doubt about the identification before going to the police on the first occasion, his Honour interrupted defence counsel and asked further questions in the manner of cross-examination during which he emphasised the positive nature of a prior assertion to the police and twice said he was concerned by it.

(d) At T 1/3/01 (3) pp 20, 21 his Honour interrupted the Crown and again in the nature of cross-examination questioned Mr Cusack about his first statement on 4 May 2000. In the questioning his Honour repeated a quotation from the witness's first statement where he claimed to have had a clear view of the offender and to have immediately recognised him. This was the second time his Honour had referred to the same quotation and it served to unnecessarily highlight the prior positive assertion. At p 21 his Honour's questions, ... , would have been interpreted by the jury as a challenge to the witness's claims to have held doubts about the appellant's identity.

90. The entirety of the Crown case rested on the evidence of identification by Mr Cusack. This involved a consideration of the doubts he expressed in evidence about his prior positive assertions as to the identity of the appellant and it was submitted that the jury would have at least formed a view that his Honour preferred Mr Cusack's out of Court assertions to his evidence on oath; and that the trial did not conform to the requirements of being conducted as an adversarial process with an impartial judge not involved in the proceeding.

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101. In considering a ground of appeal such as this, it is necessary to read the passage objected to as part of the flow of the evidence as a whole to determine whether the overall effect of the judge's questions was to clarify the evidence of the witness or directed to establishing a point which is favourable or adverse to one or other of the parties. In my view, not only did his Honour not indicate any view he may have held, but in his summing-up he directed the jury on a number of occasions that they were the ultimate triers of fact and they were bound to ignore any opinion they perceived that he held regarding the case (e.g. SU at 87).

102. Moreover, although Mr Cusack was a pivotal witness he was not the accused, and the questioning of a witness by the judge must be much more circumspect when it is the accused, as in Esposito, who is being questioned.

103. The questions were not objected to at the trial so apparently no one considered at that stage that they were creating the wrong impression in front of a jury. Rule 4 applies. There is no evidence that they led to any possible miscarriage of justice and I would refuse leave.

Whealy JA

1. There are two appeals before the court. The first is an appeal by FB ("the appellant") against his conviction on 23 July 2010, in relation to one count of aggravated sexual assault pursuant to section 61J(1) of the Crimes Act 1900 . The trial proceeded as a judge alone trial before his Honour Judge Lakatos DCJ. The second appeal is brought by the Crown in relation to the sentence imposed by his Honour on 11 November 2010, following upon the appellant's conviction. In this appeal, the Crown asserts that the sentence imposed by the trial judge was manifestly inadequate.

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84. Mr Newton properly conceded that more latitude should be granted to a judge sitting alone in terms of the extent and nature of the permissible questioning of a witness ( R v Thompson [2002] NSWCCA 149 at [34]; [2002] NSWCCA 149; 130 A Crim R 24). The rationale for such latitude was confirmed in R v Esposito (1998) 45 NSWLR 442 at 470 (quoting Galea v Galea (1990) 19 NSWLR 263 at 281 - 282 per Kirby ACJ) as follows:-

This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.

85. Mr Newton submitted that, notwithstanding such latitude, the trial judge's questioning of the appellant and his witnesses was excessive in the present trial. Further, he argued it was of a character that created "a real danger" that the trial was unfair. There was also an instance where the trial judge had asked questions of the informant, Anthony Farrell. A submission was made that these questions were inappropriate, because they were designed to elicit evidence "to bolster the prosecution case in a very significant respect".

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90. Most of the authorities which underline the caution to be properly exercised by the trial judge during a criminal trial relate to trials where there is a jury. On the other hand, as might be expected, there are cases that recognise the greater latitude to be afforded to the questions asked by a trial judge in the context of a civil trial. That was the situation in Galea v Galea itself. In view of the statutory framework now surrounding criminal trials in New South Wales, it may be appropriate to restate the accepted principles, but with particular emphasis on the fact that it may be expected that henceforth more criminal trials will be conducted without the benefit of a jury. This may underline the proposition that, in appropriate circumstances, a judge sitting on a criminal trial without a jury will be entitled, within reasonable limits, to explore issues of fact with both Crown and defence witnesses.

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93. As is clear from the general statement of principles in Galea, the respective functions of judge and advocate in a trial without a jury are well-known and are relatively constant. But this does not mean that there is an unchanging and rigid appreciation of the way in which those functions are carried out. In civil trials, in the last fifty years in New South Wales, it has become much more common for judges to take an active part in the conduct of cases than was at an earlier time the case. The growth of litigation, the increasing complexity of litigation, and the limited resources of courts and legal aid have made it inevitable that judges must, within reasonable limits, intervene wherever it is necessary to ensure that the issues are clarified and that justice is dispensed within reasonable limits of efficiency. As Kirby ACJ said in Galea (at 281 - 282):-

In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid.

94. These observations by his Honour were in the context of a civil trial, but they clearly have a resonance for the conduct of a criminal trial where the judge sits without a jury.

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102. I would reject the submission that his Honour's quite appropriate questioning was designed to elicit evidence that "bolstered the prosecution case in a significant respect". It was plainly designed to ascertain precisely when it was, according to the statement of the police officer, that the complainant became teary. In a case where her credibility, reliability, and possible contamination by other witnesses were in issue, it was entirely proper for his Honour to make the enquiry. It was the trial judge's duty to determine the facts. Moreover, he did it in a polite and courteous way. He did not interrupt counsel. He gave defence counsel every opportunity to cross-examine the witness. It was counsel's clear choice not to raise any issue about the matter his Honour had brought to the witness' attention. Indeed, it would have been remiss of his Honour not to raise the issue as he did. As I have said, there was no objection by counsel to his doing so. There was no suggestion that the police officer's description of the complainant's demeanour throughout the interview was anything other than accurate.

103. There is no need for me to go into the same level of detail for each instance of asserted "inappropriate" questioning of the appellant and his witnesses. The following points, however, may be safely suggested. First, in every case, the questioning was clearly relevant to an issue that required clarification. Secondly, the questioning was invariably carefully introduced and politely stated. The witness, once asked, was allowed to answer as he or she wished. Thirdly, there was no attempt to traduce or browbeat the witness. The overall impression I gained was that the trial judge was simply endeavouring to clarify issues or obtain information to resolve issues that were troubling him. Fourthly, the questions were generally asked at the end of cross-examination, or at the end of evidence-in-chief.

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107. In my opinion it was entirely appropriate to put these matters to the appellant. It was also appropriate to raise them with him at this point in his cross-examination, lest they be overlooked. The appellant was thus given an immediate opportunity to respond to a potentially damning piece of evidence. Indeed, had the particular questions not been asked (either by counsel or the trial judge), the appellant may have had a reason to complain about the course and conduct of the trial, if it had later been relied on.

108. Once again, there was no objection raised by trial counsel to the questions. No complaint of any kind was raised. Mr Webb was not prevented from asking any further questions himself, if he had wished to do so on the point. These comments apply generally to the questions by the trial judge of the other defence witnesses. On my reading of the transcript, there was no re-examination in the case of any of those witnesses, nor was there re-examination of the appellant himself.

109. One general complaint that was levelled against the trial judge was that all the questions he asked tended to assist the prosecution rather than the defence. As I have endeavoured to point out, that was not always the situation. But in any event, I see no indication in any of the questioning adopted by the trial judge that it was his intention to assist the prosecution. In each instance, the trial judge, whose task it was to determine the issues of fact in this somewhat difficult trial, intervened simply for the purpose of clarifying the evidence and understanding more precisely the issues at trial. It is obvious that, in the course of clarifying the evidence, and throwing a clearer light on the issues at trial, a judge may, without taking sides one way or the other, involuntarily or inevitably, assist either the prosecution or the defence. For my part, I cannot accept that this unintended consequence, if that is what happened, makes such an intervention inappropriate. I cannot accept that there is any principle that suggests a trial judge (whose task it is to determine the facts) should sit mute, especially in a situation where the lack of clarification and precision will hinder the ultimate fact finding process. In addition, counsel on either side need to know the nature of any matter that may be troubling the judge.

Buddin J

163. I agree with Whealy JA

Harrison J

164. I agree with Whealy JA

Bellew J

1. The accused in these proceedings has pleaded not guilty to a charge that, jointly with another person to whom I will refer as HG, he did an act or acts in preparation for a terrorist act or acts. On the 21st day of the trial, at which time the accused's evidence-in-chief had been proceeding for a period of four days (the Court and the jury having been told at its commencement that it would take five hours in total), senior counsel then appearing for the accused said the following:

... my client has instructed me that he wishes to appear in future for himself. He does not wish me and my instructing solicitor to be involved ... Your Honour, I have spoken to him a number of times. My instructing solicitor has spoken to him. He is fixed in his view that he wishes, from this point of time on, to represent himself. In those circumstances, I don't think I can express any opinion about how the Court should be run. I could only seek leave to withdraw and it would be up to my client to say what he thought about all of these things.

..

5. My reference in those comments to the jury to “procedural matters" stemmed from the fact that after senior counsel had informed me that his instructions had been withdrawn, but prior to his formal withdrawal from the matter before the jury, the accused made a series of applications.[4] Some of those applications were articulated in what can only be described as vague and imprecise terms. Moreover, the issues raised by some of them tended to overlap with issues raised by others. However, as I understood it, the applications were that:

(i) I recuse myself from the further hearing of the proceedings “due to concerns of lack of neutrality and bias directed at [the accused's] previous counsel and [the accused]” stemming (in part) from “interjections," the occurrence of which “raises another risk of the tainting of the jury to unfair prejudice";

(ii) the jury be discharged, either consequent upon the granting of the first application, or independently, because the accused had not been given a fair trial;

(iii) …

(iv) …

(v) …

(vi) …

16. As I have already noted, the accused's application that I recuse myself and that, either consequent upon the granting of that application or independently, I discharge the jury, was based upon what the accused asserted was a general lack of fairness in his trial and, in particular, a “lack of neutrality and bias directed at [his] previous counsel and [himself]” which was said to have stemmed from my “interjections and claims" made in the course of the accused giving evidence. In other words, the accused asserted apprehended bias.

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19. In my view, for the reasons that follow, that test has not been met in the present case.

20. The accused’s application was essentially based upon the proposition that my interventions in the course of his evidence-in-chief were excessive and unfair. Excessive interference or involvement by a trial judge in the conduct of a trial is capable of constituting such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice. However, the term “excessive” must be understood in the context in which it is used. Although difficulties will arise where the trial judge resorts to extensive questioning, particularly questioning of a kind that amounts to cross-examination, it is open to a trial judge to ask questions which are designed to clear up answers that may be equivocal, ambiguous or uncertain, or which may, within reason, be designed to identify matters that may be of a concern to the judge himself or herself. It will be evident from the transcript that this is precisely what I was doing on the occasions on which the accused relied.

21. Ultimately, the question will be whether, having regard to all the circumstances of the trial, and the length, terms and nature of the questioning, the judge’s intervention(s) crossed the boundary between impartial judge and partial advocate. In answering that question, the fact that defence counsel took no objection will be a relevant consideration.

22. It is also important to bear in mind that a trial judge has a power, and indeed a duty, to control and regulate the proceedings which are before him or her. If he or she does not intervene and prevent undue delay, or intervene to ensure that the parties focus upon the critical issues, appellate criticism might result.

23. It will be evident from the transcript that the interventions upon which the accused now relies were directed to reminding the accused to answer in terms which were responsive to the question asked. Those interventions would not, in my view, indicate to any fair-minded lay observer that I would not bring an impartial and unprejudiced mind to the resolution of any issue that I am required to determine. They were well within the bounds of what is appropriate.

24. Moreover, those interventions do not reflect any unfairness in the trial process in any general sense. In particular, none of them suggested in any way that I had reached any opinion about the evidence of the accused.

25. I am fortified in these conclusions by the fact that on the occasions upon which I intervened, upon which the accused now relies, no complaint was made by experienced senior counsel who then appeared on the accused’s behalf. Senior counsel did not suggest, at any time, that my interventions were unfair in any way, nor did he assert at any time that they ran any risk of unfair prejudice being visited on the accused. Further, and contrary to the submissions put by the accused, senior counsel did not assert that my interventions were in any way confrontational.

26. Moreover, the interventions by the Crown upon which the accused now relies were in the nature of objections which, more often than not, were properly taken. The fact that the Crown did not specifically say the words “I object" on those occasions does not alter the character of what was occurring.

27. For all of these reasons I determined that the accused’s application should be refused.