SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0064

ALI AYDIN	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	PRIEST, NIALL and T FORREST JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	10 April 2019	
DATE OF JUDGMENT:	10 April 2019	
MEDIUM NEUTRAL CITATION:	[2019] VSCA 83	
JUDGMENT APPEALED FROM:	Aydin v DPP (Ruling No 2) [2019] VCC 282 (Judge Trapnell, 15 March 2019)	

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CRIMINAL LAW – Interlocutory Appeal – Apprehended bias – Judge presiding over application to change plea in drug case – Judge, when Crown Prosecutor, called applicant as a witness in committal proceedings 14 years ago – Applicant was an uncooperative witness – Judge refused to disqualify himself – Whether fair minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind – Leave to appeal refused – AJH Lawyers v Careri (2011) 34 VR 236 considered.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr P Smallwood	Sarah Tricarico Lawyers Pty Ltd	
			
For the Respondent	Ms S Flynn QC	Mr John Cain, Solicitor for Public Prosecutions	

priest ja
NIALL JA
T Forrest JA:
1	Pursuant to certification of a County Court judge given under s 295(3)(b) of the Criminal Procedure Act 2009, in circumstances which we will later describe in more detail, the applicant seeks leave to appeal the judge’s decision refusing to disqualify himself for apprehended bias (‘the interlocutory decision’ or ‘the ruling’).  
2	In our opinion, the application is wholly without merit.  For the reasons that follow, leave to appeal should be refused.
3	The matter for resolution arose in this way.
4	An indictment filed in the County Court charged the applicant, and alleged co-offenders Mohammad Osman, Kazem Hamad and Rami Margus, with a number of charges relating to the trafficking of heroin.
5	The proceedings came before the judge on 22 October 2018.  Over several days, his Honour heard a number of pre-trial legal arguments, including claims for public interest immunity by the Commissioner of the Australian Federal Police and the Chief Commissioner of Victoria Police with respect to subpoenaed documents and an application for a permanent stay. 
6	On 9 November 2018, the judge was told that the matter had ‘settled’.  Hence, the applicant was arraigned and pleaded guilty to two charges of trafficking in a large commercial quantity of heroin and two charges of trafficking in heroin simpliciter.  Subsequently, however, the applicant made an application to the judge to change his plea to those charges.
7	Pleas in mitigation were heard by the judge in relation to the applicant’s co-offenders.  Had it not been for the applicant’s application to change his plea, his plea in mitigation would have been heard at the time of the others.
8	Application was made by the applicant’s counsel that the judge disqualify himself from hearing the application for change of plea on the basis of apprehended bias.  Remarkably, the prosecution supported the application.  On 15 March 2019, however, the judge refused to disqualify himself.  That same day he certified that his interlocutory decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
9	The basis of the disqualification application was that the judge, when a Crown Prosecutor, had the following involvement with the applicant.
10	An individual named Nicholas Ibrahim was charged with murdering Housam Zayat on 12 September 2003.  The applicant had provided a statement to police and was to be a prosecution witness in Ibrahim’s committal proceedings which the judge — then a Crown Prosecutor in and for the state of Victoria — prosecuted on 7 and 8 March 2005.  The applicant attended court in person to give evidence on 8 March 2005.  (He was in custody at the time, having been sentenced to five years’ imprisonment with a non-parole period of three years on 16 August 2004 for conspiracy to commit an indictable offence.)  At the outset, the applicant said that he wished to withdraw his statement and did not wish to participate in the proceedings.  The applicant told the judge — as the prosecutor — in open court that he would not answer any questions.  Eventually, however, the applicant provided his name and address and acknowledged that his statement was true and correct, so much completing the judge’s involvement in the applicant’s evidence-in-chief.  The applicant then refused to answer any questions in cross-examination.
11	Having refused to answer questions in cross-examination, and having received independent legal advice from counsel, the applicant told the court through counsel that he would not answer any further questions.  An application was then made by Ibrahim’s counsel to withdraw the applicant’s statement from the brief, but that was refused.  In his reasons refusing to disqualify himself, the judge said that he now recalled that he ‘successfully argued before the magistrate that, since the applicant had acknowledged the truthfulness of his police statement, there was no proper legal basis to order the removal of his statement from the police brief and any prejudice suffered by the defendant, by not being able to conduct an effective cross-examination of the applicant at the committal hearing, was properly a matter for the trial judge’.  The committal proceeding was then adjourned to 16 March 2005 to ascertain whether the applicant’s position with respect to cross-examination had changed.
12	The judge, as prosecuting counsel, appeared at the hearing on 16 March 2005, during which the applicant told the court that his position with respect to answering questions in cross-examination remained unchanged.  As a result, the magistrate told the applicant that he would be charged with contempt pursuant to s 133 of the Magistrates’ Court Act 1989.  The judge had no further involvement with the applicant after the hearing on 16 March 2005, which concluded his involvement in Ibrahim’s case.
13	A search of the records held by the Office of Public Prosecution indicate that the judge had no other involvement with the applicant.
14	The submissions made in support of the application that the judge disqualify himself, and his Honour’s reasons for refusing to do so, are set out in the ruling as follows:
The applicant relies on the following circumstances:
(1)	I would have been aware at the time of prosecuting the committal hearing that the applicant was serving a lengthy jail term for another unrelated matter.  I interpolate, this is evident from the applicant’s Criminal Record filed in these proceedings.
(2)	I would have presumably been aware of the applicant’s prior criminal history.  I again interpolate, this is evident from the applicant’s Criminal Record filed in these proceedings.
(3)	I would have been aware that the applicant’s evidence was pivotal in the prosecution of an extremely serious offence; namely the murder of Mr Zayat.  I interpolate: the applicant ultimately gave evidence on behalf of the prosecution at the committal hearing and acknowledged the truthfulness of his police statement.  The Crown was not prejudiced or disadvantaged by his refusal to answer questions in cross-examination.  His statement remained part of the evidence on which Ibrahim was committed to stand trial for murder.
(4)	The applicant announced at the outset of the committal hearing that he wanted to withdraw his statement and not give evidence in the proceedings.  He maintained this position after receiving independent legal advice and being warned that he faced contempt charges.  I interpolate that he, nonetheless, ultimately did give evidence for the prosecution in the committal hearing as indicated above.
(5)	I would have been aware that the applicant would be charged with contempt after the Magistrate indicated this in open Court.  I interpolate the applicant’s Criminal Record discloses no conviction or finding of guilt in this regard.  I can only proceed on the basis that this is entirely irrelevant in any future proceedings involving the applicant.
In all the circumstances, I decline to recuse myself in this proceeding.  I am of the opinion that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of any question I am required to decide in these proceedings or any subsequent proceedings involving the applicant.
My involvement with the applicant ceased some 14 years ago.  His conduct did not adversely affect the prosecution so far as my involvement in the Ibrahim matter was concerned.  I was unaware of any matters that occurred after my involvement with the applicant.  I gained no esoteric knowledge in relation to the applicant by reason of my involvement in the Ibrahim matter.  Everything unfolded in open court and is a matter of public record.
15	The principles governing resolution of a claim of apprehended bias were conveniently distilled in AJH Lawyers: 
The relevant principles governing the issue of apprehended bias are well-settled.  Essentially, there are eight relevant principles.
First, when one of the grounds of appeal is based on actual or apprehended bias, the Court of Appeal needs to deal with that ground first.  If the appellant establishes actual or apprehended bias, the Court will set aside the decision below and remit the matter back.  This is so even if the Court is satisfied that the decision below is correct on the merits. 
Secondly, as noted in Antoun, judges should not ‘too readily accept recusal because a party has demanded it’.  Further, as held in Ebner, ‘[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.’  That being said, the principle that a judge should not disqualify him or herself too readily is not a ‘blanket that smothers the effect of disqualification where it has already arisen’.
Thirdly, the test for a reasonable apprehension of bias was stated in Johnson as being ‘whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide’.  The word ‘might’ in the phrase ‘might not bring an impartial and unprejudiced mind’ was clarified in Ebner as referring to ‘possibility (real and not remote), not probability’.  On the basis of Ebner, where, as in this case, ‘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’.
Fourthly, the apprehension in question is apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she ‘will decide the case adversely to one party’.
Fifthly, the application of the test involves two steps.  The first step is ‘the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits’.  The second step is the ‘articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits’.  Contrary to AJH Lawyers’ submission, the two-step approach is applicable to cases of apprehended bias on the ground of pre-judgment.  In such a case, the matter to be identified in the first step is the conduct of the judge said to give rise to apprehension of bias.  And the logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide.
Sixthly, ‘the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer’.  The fictional lay observer ‘is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge’.  Yet the fictional observer is taken to understand the dynamics of modern judicial practice.  Modern 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’.  ‘[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias’.
Seventhly, ‘[a] line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings’.  A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative. 
Finally, [‘j]udges do not have to devote unlimited time to listening to unmeritorious arguments.  Sometimes, a brief hearing will suffice’.  That having been said, when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application.  This is so even if the judge’s preliminary view is that the application will be unmeritorious.  If the judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having announced his or her decision, agrees to listen to the party’s submissions under sufferance.
16	In this Court, counsel for the applicant contended that the fictional, fair-minded, informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the application for a change of plea since the judge might in 2005 have formed an adverse view of the applicant’s credit because he had frustrated the course of justice or was otherwise of bad character.
17	Applying the governing principles set out above, however, in our view there is no reasonable possibility that the fictional, fair-minded and fully-informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the applicant’s application to change his plea.  The judge’s sole contact with the applicant was as a prosecutor calling a reluctant witness in a prosecution some 14 years ago, in circumstances where the applicant’s reluctance did not frustrate the prosecution’s case.  But even had the applicant’s conduct had an adverse effect on the case, the  fictional, fair-minded and fully-informed lay observer would well appreciate that a professional prosecuting advocate would be unlikely to take the applicant’s conduct personally (or regard it as a personal affront), or might — given that it is well-known that there may be a myriad of reasons for someone in the applicant’s position to adopt the stance that he did — otherwise form an adverse view of the applicant’s credit.  
18	As to the other matters upon which the applicant relied, it does not appear that the judge played a part in initiating or maintaining a charge of contempt against the applicant.  And although the judge does know that the applicant has a criminal history, it is difficult to conceive of circumstances where that could ever lead a judge in a criminal case such as the applicant’s to disqualify himself or herself for apprehended bias.  
19	Finally, there is no reason to doubt the judge’s statement that he ‘gained no esoteric knowledge in relation to the applicant’ through his involvement in Ibrahim’s case.
20	Leave to appeal will be refused.
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