GAR v Attorney General of New South Wales and Supreme Court of New South Wales

1. [1]

   McCOLL JA: The applicant, GAR, was convicted in 2002 of the offence of sexual intercourse without consent. [1] Since then, he has unsuccessfully appealed against his conviction and sentence to the Court of Criminal Appeal. [2] He has also filed three applications pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) for an inquiry into his conviction (review applications), one of which led to his case being referred to the Court of Criminal Appeal to be dealt with as an appeal pursuant to the Criminal Appeal Act 1912 (NSW) (CA Act). [3] The other two review applications were unsuccessful. [4]

2. [2]

   By summons filed on 10 November 2016 GAR sought judicial review of a decision of Adamson J dismissing his third s 78 application, invoking the Supreme Court’s supervisory jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW). [5] On 22 November 2016, he filed a notice of motion in the judicial review proceedings seeking, relevantly, an order that all judges of the New South Wales Supreme Court and the Court of Criminal Appeal be disqualified from hearing the summons for judicial review (disqualification application). In the course of oral argument, GAR confirmed that his application extended to all judges of the Court of Appeal as such judges would necessarily be hearing his application for judicial review.

3. [3]

   GAR submitted the judicial review summons should be heard, “outside the New South Wales jurisdiction” on the basis that, in essence, there is a reasonable apprehension that all judges of the Supreme Court are biased against him. As will become apparent, the allegations GAR makes about the Court are extremely serious. In some respects, they go beyond what might be understood to be an allegation of apprehended bias. However his submissions were expressly framed in terms of “apprehended bias” and that is the basis on which I have considered his application.

4. [4]

   For the reasons which follow, I have rejected GAR’s submissions.

5. [5]

   In order to address the disqualification application, it is necessary to look at the circumstances of GAR’s original conviction and subsequent litigation seeking to challenge that conviction as those matters are the foundation of his allegation of apprehended bias.

Background

1. [6]

   In November 2002 GAR was found guilty by a jury in a trial conducted by Naughton DCJ of a charge “that he on or about 14 January 2002 at Doonside did have sexual intercourse with ER [GAR’s ex-wife] without her consent and knowing that she was not consenting.”

2. [7]

   He was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years and 6 months in respect of the second count. The term of imprisonment commenced on 5 April 2002 and expired on 4 April 2008. GAR is presently serving a lengthy term (or terms) of imprisonment for two armed robbery offences. ER gave what was clearly important evidence for the Crown at the two trials which led to his convictions for each of those offences. [6]

3. [8]

   What follows sets out the substance of the Crown case at the sexual assault trial.

4. [9]

   On the morning of 13 January 2002, some few days after GAR and ER divorced, GAR went to the house in which ER and E, ER and GAR’s daughter, then 12 years of age, resided.

5. [10]

   GAR remained in the house, contrary to requests from ER that he leave. The circumstances in which GAR remained in the house were the subject of another count at the trial on which he was acquitted (wrongful detention count).

6. [11]

   At about midnight ER went to bed in her room, remaining fully dressed. About 15 minutes later, GAR came into the room and approached her. ER said “Don’t do this to me G. Please don’t do this to me.” GAR then had sexual intercourse with ER without her consent. Sometime later, he left the house.

7. [12]

   ER showered, dressed and then telephoned a friend, RM. In the early morning, at about 6am, she had a conversation with E. A telephone call was made to the police. At about 11.20am two police officers attended the house and had a conversation with ER. Later that afternoon ER attended Westmead Hospital where a Dr Sterrett took a history, examined her and prepared a report.

8. [13]

   ER was the main Crown witness. She gave evidence at trial that her injuries included “scratches where [GAR had] dug his fingernails into the, on my face when he had his hand over my face.” [7]

9. [14]

   The two other Crown witnesses were, relevantly, E and Detective Senior Constable Peter Crampton. He gave complaint evidence with respect to taking ER’s statement on 14 January 2002.

10. [15]

    E’s evidence corroborated her mother’s evidence in a number of respects. She gave evidence that in the early hours of the morning of 14 January 2002, she overheard her mother in effect pleading with GAR not to rape her. She also gave evidence (relied on by the Crown as evidence of complaint) that in the morning conversation with ER, she had said to her mother “I know he raped you” and ER had replied “yes he did”, following which E called the police.

11. [16]

    The Crown also relied on Dr Sterrett’s report. When explaining the prosecution’s case at trial, Miles AJ summarised it in the Original Appeal as follows:

12. [17]

    The defence case at trial was that during the afternoon of 13 January 2002 GAR and ER became more conciliatory. GAR gave evidence that after E went to bed, consensual intercourse took place between ER and himself several times. [9] It was not part of GAR’s case that ER and E concocted the allegation of sexual assault. [10]

Original Appeal

1. [18]

   GAR appealed against his conviction and sought leave to appeal against his sentence. He was represented by counsel. The Court of Criminal Appeal (Miles AJ, Spigelman CJ and Bell J agreeing) dismissed the appeal against conviction and refused to give GAR leave to appeal against sentence.

2. [19]

   At the outset of his reasons Miles AJ summarised the Crown and GAR’s case at trial. In the course of setting out the Crown’s case, his Honour included the paragraph relating to Dr Sterrett’s report reproduced earlier in these reasons. [11]

3. [20]

   GAR relied on five grounds of appeal in respect of his conviction. The first was that the verdict of the jury was unreasonable and could not be supported on the evidence. This was argued on the basis that GAR’s acquittal on the wrongful detention count and his conviction on the sexual intercourse without consent count were inconsistent. [12] Miles AJ rejected that submission on the basis that inconsistency in the relevant sense had not been established as a matter of logic and reasonableness. [13]

4. [21]

   The four remaining grounds alleged various deficiencies in the trial judge’s directions to the jury in his summing up, including that his Honour erred in law in directing and/or failing to direct the jury adequately or properly as to complaint and/or the effect of complaint.

5. [22]

   The second ground was a complaint that the trial judge failed to give the jury a direction in terms of that identified by Spigelman CJ in R v Markuleski [14] as often appropriate where a reasonable doubt is entertained by a jury concerning a complainant’s evidence in relation to one or more count, taking that doubt into account in assessing the complainant’s evidence generally. [15]

6. [23]

   Miles AJ said that the whole circumstances had to be examined to determine whether a Markuleski direction should be given. [16] His Honour held that such a ruling was not necessary in circumstances where it was uncontroversial sexual intercourse had taken place, and, further, E’s evidence concerning what she heard ER say during the night, the “evidence of injury”, the evidence of complaint and the fact the two verdicts were not inconsistent. [17]

7. [24]

   In dealing with the complaint ground, Miles AJ summarised what the trial judge treated as complaint evidence relevantly as follows:

8. [25]

   Miles AJ held that the trial judge’s directions in relation to the evidence of ER said to amount to a complaint to RM were inaccurate. However, there had been no objection to it at trial, hence rule 4 (Exclusion of certain matters as grounds for appeal) of the Criminal Appeal Rules (NSW) applied and leave was refused in respect of that ground. [20] His Honour rejected the objection to E’s complaint evidence, holding it was correctly admitted as an exception to the hearsay rule pursuant to s 66 of the Evidence Act 1995 (NSW), being evidence of a representation by ER, even though ER had “denied or did not remember it”. [21] The evidence of the history given to Dr Sterrett was held to have been “correctly admitted” and the direction in relation to it to have been “adequate”. [22]

Review applications

1. [26]

   It is a broad, but sufficient for present purposes, description of the substance of the review applications to say that they have been directed to casting doubt on ER’s credibility at the sexual assault trial. This has been done principally by E (who was almost 13 at the time of the alleged sexual assault and 13 and 8 months at the time of the trial) [23] purporting to recant evidence she gave at the trial inculpating GAR and variously implicating (or not) ER as having, to some degree, been responsible for her giving the recanted evidence.

2. [27]

   On 29 November 2007 GAR made his first application pursuant to s 78 of the CAR Act for an inquiry into his conviction. In February 2009, Barr J, in exercise of the power conferred by s 79(1)(b) of the CAR Act, referred the application to the Court of Criminal Appeal to be dealt with as an appeal under the CA Act. GAR was represented by senior counsel. The Court of Criminal Appeal (Tobias JA, Johnson and Rothman JJ) dismissed the appeal.

3. [28]

   GAR’s sole ground of appeal was that E had given false evidence implicating him in the sexual assault of her mother “at the behest of” ER. [24] However, it was not alleged that ER had actively procured E to lie. [25] Rather it was submitted that ER had “somehow subtly manipulated her daughter to give false evidence or had otherwise, either consciously or unconsciously, placed some pressure upon her to do so.” [26] GAR argued that in the light of the fresh evidence about E having lied at his trial, the Court should be satisfied as to his innocence or, at least, entertain a reasonable doubt about his guilt so as to warrant quashing the verdict and ordering a retrial. [27]

4. [29]

   The substance of the material upon which the Review Appeal was based related to admissions said to have been made by E to various persons regarding the evidence that she gave at trial which were said to constitute fresh evidence.

5. [30]

   GAR submitted that the fresh evidence established that E had lied at his trial with respect to her evidence corroborating (in part) that of ER and that, had the jury been aware of that, it would have weighed heavily in its determination of ER’s credit, [28] particularly as the evidence established E lied at ER’s “behest” as distinct from “request”. [29]

6. [31]

   Both E and ER gave evidence at the Review Appeal hearing, extensive extracts of which were set out in the Review Appeal judgment.

7. [32]

   It is unnecessary to set out the fresh evidence in detail. Suffice it to say that E gave evidence that she had not heard any exchanges between her parents during the night. [30]

8. [33]

   ER gave evidence that she did not know what E had or had not heard. [31]

9. [34]

   In summarising the trial evidence, the Court referred to Dr Sterrett’s report as follows:

10. [35]

    The Review Appeal Court dismissed the appeal. In its view, the evidence given by ER was “not only credible but also cogent” whilst, on the contrary, that of E was “neither cogent, credible nor plausible”. [32] It accepted the Crown’s submission that E had given a number of conflicting versions relating to ER: she had told GAR, JC and sundry acquaintances of GAR that ER got her to lie in court and she had in fact done so, had told the police that her evidence at trial was true and told the Review Court that ER never asked her to lie about GAR to the police or at trial. [33] The Court considered the lack of credibility in E’s evidence to be founded upon:

11. [36]

    The Review Appeal Court considered there to be sufficient evidence, even without E’s evidence, to satisfy the jury of GAR’s guilt beyond reasonable doubt. It accepted the evidence that ER gave as “not only credible but also cogent” whereas E’s evidence was “neither cogent, credible nor plausible.” [35] It doubted E’s recantation of her trial evidence was believable. [36] In its opinion it was open to the jury to attribute “significant probative value” to ER’s trial evidence, and find it to be “entirely credible”. [37] In addition, E’s observation of ER’s distress in the morning, the complaint evidence as well as the medical evidence “would have been more than sufficient to justify the jury in accepting the reliability of the complainant’s, ER’s, evidence with the respect to the [sexual assault] count”. [38] It is plain that the medical evidence to which the Review Appeal Court referred was that which it had summarised at [36] – [37].

2014 Section 78 application

1. [37]

   On 2 March 2014 GAR made a second application pursuant to s 78 of the CAR Act seeking an inquiry into his conviction. He was again represented by senior counsel. Adamson J dealt with the matter on the papers and dismissed it. Her Honour determined that the matters upon which GAR relied did not give rise to any doubt or question about his guilt. [39]

2. [38]

   The Second Review Application was based on the following evidence:

   1. (1)

      An affidavit of RM sworn on 15 July 2012 in which he deposed that when he spoke to ER on the morning of 14 January 2002, she did not say anything to him about GAR sexually assaulting her. [40]

   2. (2)

      A page from a medical report of Dr Sterrett, who had examined ER on 14 January 2002. [41]

3. [39]

   GAR “contended that the effect of (1) was that there is no evidence of consistency of complaint … [and] that the effect of (2), which his representatives previously overlooked, was to indicate that the medical evidence did not corroborate the entirety of ER’s evidence, and in particular her evidence that GAR scratched her face.” [Emphasis added.] [42] He also submitted the “fresh evidence” established that ER lied at the trial first about telling RM “what happened” and secondly, about there being scratches to her face that were pointed out to her in hospital. [43]

4. [40]

   Adamson J summarised the evidence at trial of ER’s communication with RM on 14 January 2002 as follows:

5. [41]

   Adamson J held that the evidence from RM that ER did not tell him that she had been sexually assaulted did not give rise to any doubt or question as to GAR’s guilt. [44] Adamson J accepted that the affidavit demonstrated a lack of evidence of consistency of complaint. However, her Honour rejected its ability to affect ER’s credibility since the contents of her conversation with RM that morning were not explored at trial. Her Honour also rejected GAR’s submission that RM’s evidence bolstered E’s credibility on the Review Appeal, observing that the Court on the Review Appeal had excluded ER’s evidence about RM from its consideration. [45]

6. [42]

   Because of “the importance placed by [GAR] on a page of Dr Sterrett’s report,” [46] Adamson J summarised its significance in the context of the evidence given at trial by ER and other evidence in the Crown case as follows:

7. [43]

   GAR submitted that Dr Sterrett’s report indicated that the medical evidence did not corroborate the entirety of ER’s evidence, in particular, her evidence that GAR scratched her face, and that this was overlooked by his representatives previously. [47]

8. [44]

   Adamson J rejected this submission. Her Honour observed that the point had not been overlooked at trial as GAR’s counsel had used Dr Sterrett’s report to cross-examine ER about her injuries and had addressed the jury about its absence of reference to facial scratches. [48]

9. [45]

   Adamson J accepted that in the Original Appeal, Miles AJ, “in summarising the Crown case said, erroneously, that Dr Sterrett’s report had included a reference to scratches on the left side of ER’s face.” [49] Her Honour found it difficult to see what difference Miles AJ’s error could have made to the reasonableness of GAR’s conviction, since it was made on appeal. [50]

10. [46]

    Although Miles AJ’s summary had been accepted both by GAR and the Crown for the purposes of the Review Appeal, [51] Adamson J was of the opinion that the Review Appeal Court could not have been misled by the error. The Court had engaged in debate with the Crown about whether there was evidence, other than from ER, of injuries to her face. In response, the Crown had accepted that it was not possible to ascertain from a photograph whether ER’s face was scratched, but did not refer to Dr Sterrett’s report in this context. Accordingly, Adamson J held that the Court could not have been misled by the error in Miles AJ’s summary. [52]

11. [47]

    Her Honour also referred to the Review Appeal Court’s reasons at [37] [53] which indicated that the Review Appeal Court relied upon the consistency between Dr Sterrett’s report of injuries to ER’s elbows and the inner aspect of her legs and her evidence of those injuries. The absence of the reference to scratches on ER’s face indicated they did not form part of that Court’s conclusion about consistency. [54]

2016 Section 78 application

1. [48]

   On 2 March 2016 GAR made a third application under s 78, seeking an inquiry into his conviction. This application was also dealt with on the papers by Adamson J and dismissed. GAR appears to have represented himself as no appearance, save that of the Crown Solicitors Office for the Crown, is noted on the coversheet.

2. [49]

   The Third Review Application was based on what GAR submitted was “fresh evidence”. It consisted of typed statements given by ER and E and witnessed by a Justice of the Peace on 2 December 2015. Both were set out under a heading “Under the inducement that the evidence will not be used to prosecute any offence against me”. E’s statement was to the effect that ER had asked her “to falsely corroborate her evidence that she had called out ‘Please don’t, [GAR] please don’t,’ or similar.” ER’s “fresh evidence” was to say E’s statement was “true”. In a handwritten document dated 2 October 2015, also purportedly witnessed by the Justice of the Peace who witnessed the 2 December 2015 statements, ER asserted that “the crime did occur,” and she “stand[s] by [her] statement.” [55]

3. [50]

   There was no evidence as to how the statements came into existence, nor any explanation as to the statement concerning the inducement. [56] The Justice of the Peace identified his details and signature on the typed statements, but did not comment one way or the other about that appearing on the hand-written document. [57]

4. [51]

   GAR submitted that the effect of the typed statements was to undermine the credibility of both E and ER. He contended that the “handwritten statement, dated 2 October 2015, was, in effect, superseded by the later typed statements.” [58]

5. [52]

   The Attorney-General supported GAR’s application. [59]

6. [53]

   The question for Adamson J was whether the “fresh evidence” raised a sufficient doubt or question as to GAR’s guilt or the evidence of E and ER at the trial pursuant to s 79(2) of the CAR Act. In this respect, her Honour observed, in substance, that the question of E’s statement as to the veracity of her trial evidence, (which was substantially similar to those relied on in 2010), had been extensively investigated, and not believed, in the Review Appeal. [60]

7. [54]

   Adamson J accepted that ER’s typed statement was true and was inconsistent with her trial and Review Appeal evidence, and indirectly inconsistent with the handwritten statement. [61]

8. [55]

   Her Honour held:

GAR’s submissions

1. [56]

   At the heart of the disqualification application is GAR’s assertion that justices of the Supreme Court are “up to their necks in a criminal conspiracy to pervert the course of justice”. He complains that “documents have been removed from Courts Repository [sic, as in original]” referring to what he asserts is the “missing or removed page 5” of “Dr Sterrett’s report that deals specifically with regard to the alleged injuries to ER’s face and His Honour Mile’s [sic, as in original] AJ’s incorrect finding.”

2. [57]

   GAR submits that his “sexual assault conviction is toxic” and that it is “disturbing that some [judges] in the Supreme Court believe that the rule of law only applies when it suites [sic, as in original] their preconceived notion of events.”

3. [58]

   In the 53 page document containing his written submissions in support of the disqualification application, GAR summarised the basis for his application as follows:

4. [59]

   GAR elaborated on his allegations of bias as follows:

5. [60]

   GAR’s written submissions seek to attack ER’s credibility and certain previous factual findings made by the earlier judgments dealing with his case. They make frequent references to the “missing or removed Page 5”. GAR asserts that “the evidence proves it was missing or removed from at least ‘The Court’ and apparently the Crown papers at GAR (1) 2010 hearings, triggering a ruinous consequence to the integrity of the appeal.”

6. [61]

   GAR further asserts that the “missing page 5 [was] discovered after the 2010 [Review Appeal] in documents stored since 2002.” A photocopy of a document headed “Examination” was reproduced in his written submissions. It appeared to refer to a person with GAR’s surname, presumably ER. It appears to be a pro-forma document depicting a left and a right profile of a face, which seemed to show no markings such as might indicate scratches. It is not possible to identify a page number.

7. [62]

   GAR submitted that the “extraordinary removal of page 5” at the Review Appeal hearing and Miles AJ’s “false finding with regard page 5 [sic, as in original] of Dr Sterrett’s report further highlights why [his] conviction is critically flawed.” He further contended that Miles AJ’s summary of Dr Sterrett’s report was “fabricated” “to avoid confronting ER’s pack of lies”. The basis of his contention that Miles AJ’s finding was “fabricated” was to be found in the “missing page 5” of Dr Sterrett’s report. GAR submitted that if Miles AJ had not “wrongly found that Doctor Sterrett had corroborated the scratches to ER’s face”, ER’s “lack of credibility should have been exposed earlier.”

8. [63]

   GAR accepts, as Adamson J found in the Third Review Application judgment, “that the jury heard ER’s evidence of her alleged face scratches, Doctor Sterrett’s report and her associated explanation in that regard”, but contends that the Review Appeal Court did not. His submission in this respect is founded upon what he extracted as the transcript of the Review Appeal hearing in which a member of the bench observed “there was no evidence of injuries to [ER’s] face, was there?”, to which the Crown Prosecutor responded “she said there was a scratch. We have struggled to see [it] in the photographs of her face.” A member of the bench responded that, in substance, you could not tell from photographs of her face that it was scratched. The Crown Prosecutor agreed. The Crown observed that scratches would show immediately and better on the same day in photographs, in response to which a member of the bench observed that photographs “[were] not reproduced here because there were no injuries identified by the doctor” and the Crown said “I don’t know what the explanation would be for that.” [62]

9. [64]

   GAR submitted that the explanation for the Crown’s lack of knowledge was that page 5 “had been removed from the report of Dr Sterrett that was available to the Court” in 2010.

10. [65]

    GAR appeared to submit that, absent page 5, the Court in the Review Appeal judgment accepted ER’s evidence of her face being scratched “as a fact of truth.”

11. [66]

    GAR further contended that “Miles AJ’s false corroboration of ER’s alleged face scratches and the circumstances in which she alleges they occurred may have been picked up by the Court if ‘Page 5’, the page of Dr Sterrett’s report that dealt specifically with his Honour Miles AJ’s error had not been removed from The Supreme Court [GAR 1 2010] hearings and accordingly, was not included in the Justices papers that were deciding the issues.” He argues that on “the available evidence page 5 of Dr Sterrett’s report was missing from at least three Supreme Court GAR 1 2010 [Review Appeal] briefs of evidence.” He also appears to submit that, assuming the Crown had been honest in informing a member of the bench that he had no explanation as to why Dr Sterrett’s report disclosed nothing on ER’s face, then the Crown did not have page 5 either. Accordingly, he argued “page 5 of Dr Sterrett’s report must have been deliberately removed by someone who could gain access to conceivably five separate briefs of evidence.”

12. [67]

    Nowhere in GAR’s submissions does he identify how the so called “missing page 5” was” discovered” after the Review Appeal, save that he asserts that it had been “in documents stored since 2002”. Elsewhere, as I have said, GAR asserts that page 5 was either “missing or … intentionally removed” from the 2010 Review Appeal Court’s papers.

13. [68]

    Finally, in his written submissions, GAR contended that “to allow this scandal to remain as it stands is disgraceful and will bring the NSW Supreme Court into disrepute.”

14. [69]

    In his oral submissions, GAR essentially contended that all judges of the Court who had dealt with either the Original Appeal, the Review Appeal and his review applications had engaged in a conspiracy to pervert the course of justice, that “documents that should be safe in the Court Repository have had papers removed, [and] it’s not extravagant to submit … that justices [have removed] documents that expose their fabricated findings”. He added that he did not “know how I keep getting the rulings and the manipulation of the Court that I’m getting [and] it’s my submission that there is just too much risk in this Court hearing it [the judicial review summons].”

15. [70]

    GAR contended that “the Supreme Court is deliberately fabricating findings constructed them from many areas of the brief, it’s not an error, they have removed documents from the Court, they have continued their deceit as they’ve met it in other appeals when it’s come back before them, they have continued it, compounded it, knowingly carrying through the deceit.” He contended that he could “prove … that the Court has acted corruptly in relation to my matter from 2003 until 2016 by removing documents, deleting words from evidence, fabricating findings against the evidence.”

16. [71]

    When invited to explain how, even assuming any matter he advanced as to those members of the judiciary hitherto involved in his matter was valid, which I emphasise is not an assumption I make, could in some manner involve all other justices of the Court, GAR reiterated that he intended to prove the conspiracy he alleged by reference to the disposition of the Original Appeal, the Review Appeal and the Second and Third Review Applications.

17. [72]

    He contended that the matter had been “stage managed and in some areas fabricated by the New South Wales Supreme Court” to protect the guilty verdicts he had suffered in relation to the two armed robbery offences to which I have earlier referred in which ER had been the principal and critical witness for the Crown.

18. [73]

    GAR’s other response was to ask, rhetorically, how page 5 “could be removed from the New South Wales Supreme Court Repository.” He submitted that in addition to the particular judges, “the process … is under attack.” Further, he contended, that “the Court just have, just been looking after one another right through this matter”. He reiterated his submission that the matter should be “reviewed by a court outside of the New South Wales jurisdiction because of the impropriety that’s going to be alleged against the Court.”

Attorney General’s submissions

1. [74]

   Ms J Davidson, who appeared for the Attorney General, submitted that the disqualification application lacked any merit. She contended that GAR’s submissions did not rise above the bare assertions as to why any judge of the Court of Appeal might determine the judicial review summons other than on its merits. This, Ms Davidson argued, was an insufficient foundation for the disqualification application.

2. [75]

   Ms Davidson further submitted that none of the first six paragraphs of GAR’s summary of argument [63] identified any circumstance or fact that “might” lead the judges of the Court of Appeal to decide the case other than on its legal and factual merits. Rather, she argued that, when read in the context of GAR’s submissions as a whole, the matters he alleged were more accurately described as alleged errors in the various decisions of the Court and the Court of Criminal Appeal culminating in the decision of Adamson J in relation to the Third Review Application.

3. [76]

   Ms Davidson acknowledged that GAR’s submission headed “Removed documents that exposed the Courts false findings”, could be said to impugn the propriety of the Court’s processes, albeit not its judicial processes. However, she submitted that, when read in context, this submission appeared to have been made in support of the more global challenge to factual findings made in the lengthy history of these proceedings and did no more than, again, raise disputes regarding facts found by the Court and the merits of the Courts’ decisions.

4. [77]

   Ms Davidson submitted that there was nothing to suggest that the judicial review summons would require the Court of Appeal to make findings regarding the propriety of the conduct of a judge or any member of staff of the Supreme Court in the Third Review Application or otherwise. Rather, it invoked the Court’s jurisdiction to consider whether there was any jurisdictional error in the Third Review Application judgment. She submitted that the fact that this would involve an evaluation of Adamson J’s reasoning did not give rise to a matter that might lead a judge to decide a case otherwise than on its merits for the purposes of the first step in Ebner v Official Trustee in Bankruptcy. [64]

5. [78]

   Finally, Ms Davidson submitted that, in the light of the fact that GAR sought to disqualify all judges of the Supreme Court, including those judges who would hear the judicial review summons, necessity provided an exception to the bias rule of natural justice.

Consideration

1. [79]

   It is necessary, in determining the disqualification application to understand the issues the judicial review summons calls for determination. The judicial review application seeks orders in the nature of certiorari and mandamus and, in the alternative, a range of declaratory relief in relation to Adamson J’s decision to dismiss the Third Review Application, including a declaration that “His Honour Miles AJ’s false finding that Doctor Sterrett’s report corroborated ER’s false account relevant to her fabricated face scratches” is capable of raising a doubt within the meaning of s 79(2) of the CAR Act.

2. [80]

   GAR’s essential argument, as I understand the written submissions filed in support of the judicial review summons, is that Adamson J fell into jurisdictional error because her Honour failed to take into account matters which the law required her to take into account and thus failed to exercise the s 78 power. [65] Significantly, save as to the matters raised in the Third Review Application, the judicial review summons is not the occasion to revisit each case in which GAR sought to appeal against his conviction. [66] It is not an exercise in fact-finding, let alone directed to determining any issue as to the respective credibility of GAR, ER or E or any other person.

3. [81]

   The principle that litigation be conducted before an independent and impartial tribunal is fundamental to the Australian judicial system. [67] It “evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, [and] reflects a concern with the need to maintain public confidence in the administration of justice.” [68]

4. [82]

   It is, in principle, for the judge whose disqualification is sought to determine whether he or she should hear a particular proceeding, although, of course, that decision may be reviewed on appeal. [69] In an unusual case (and one might think an application that an entire court of some 11 judges (in the case of the Court of Appeal) or 50 or so in the case of the entire Supreme Court, should be disqualified from hearing an application for judicial review falls into that category), a court may deal with the matter, at least in the first instance, on an institutional basis albeit recognising that individual considerations might give rise to separate issues with respect to particular members of the Court. [70]

5. [83]

   A judicial officer may be disqualified from hearing a case because of either actual or apprehended bias. GAR’s application is based on the latter contention, however a brief reference to the notion of actual bias sets the context.

6. [84]

   Actual bias in the form of prejudgment is found where the decision-maker manifests a “state of mind … so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”, [71] or “a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.” [72] The test is objective. An inquiry about actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question, undertaken in the ordinary course on the basis of what the judge has said and done. [73]

7. [85]

   A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”. [74] Such a finding should not be made lightly; cogent evidence is needed. [75]

8. [86]

   Actual bias in the sense of prejudgment must be distinguished from apprehended or ostensible bias. [76] In the latter context, a judge should disqualify himself or herself from hearing, or continuing to hear, a matter if “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”. [77] The “result that is asserted or feared is a deviation from the true course of decision-making.” [78] A conclusion of apprehended bias should not be lightly drawn, or too readily acceded to. [79] Like actual bias, it must be “firmly established”. [80]

9. [87]

   Further, as the plurality explained in Ebner, “[d]eciding 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 ... No attempt need be made to inquire into the actual thought processes of the judge or juror.” [81] [Emphasis in original.]

10. [88]

    The hypothetical reasonable or fair-minded 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. Further, “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.’” [82] In applying the test for apprehended bias, it is necessary to attribute to the hypothetical observer knowledge of the nature of the decision and the context in which it was made, as well as of all the circumstances of the case. [83]

11. [89]

    The reasonableness of any suggested apprehension of bias is also to be considered in the context of ordinary judicial practice, taking into account the exigencies of modern litigation. [84] This includes the fact that, as explained by the plurality in Ebner:

12. [90]

    The emphasised proposition in this extract from Ebner reflects the High Court’s injunction “that a judge should [not] too readily accept recusal because a party has demanded it [and that] [i]n the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial.” [85]

13. [91]

    The apprehension of bias principle first, “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.” Secondly, and no less importantly, “[t]here 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.” Bare assertions of the alleged disqualifying facts “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” so that “the reasonableness of the asserted apprehension of bias [can] be assessed.” [86]

14. [92]

    As Mahoney JA observed in Bainton: [87]

15. [93]

    The “ground of disqualification is a reasonable apprehension that the judicial officer might not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party”. [88] It is a fallacious argument to contend that because one side lost the litigation the judge was biased, [89] or, by extension, as appears to be GAR’s argument, that all other judges on the court will decide the judicial review application adversely to him.

16. [94]

    I emphasise this because the disqualification application is clearly founded, in part at least, on GAR’s contention that his lack of success in his previous attempts to challenge his conviction, reflects judicial bias or, to use his more colourful expression, that “the fix is in”.

17. [95]

    Considering the disqualification application on an institutional basis, it is necessary to ask whether a fair-minded observer might consider that any three of the members of the Court of Appeal who might be listed to hear the judicial review summons might fail to bring an impartial mind to the resolution of the judicial review application. It is sufficient, in my view, to consider the disqualification application by reference to the Court of Appeal as that is the court with jurisdiction to hear the judicial review summons. A negative answer to the apprehended bias test at that level is sufficient to dispose of the application.

18. [96]

    The circumstances the fair-minded observer would take into account in my view are analogous to those to which the plurality referred in Waterhouse.

19. [97]

    First, no present member of the Court of Appeal has had any prior involvement with GAR’s case. Further, the inquiry engaged by the judicial review summons is limited in the sense to which I have earlier referred.

20. [98]

    Secondly, at the heart of GAR’s review applications is his contention that ER was a witness who should not have been believed on her oath in the evidence she gave at his trial and that he has brought forward material which is sufficient to cast doubt on her credibility and on his conviction. To the extent GAR appears to rely upon some “conspiracy” between the judges who have sat on his previous cases and those who may be listed to hear the judicial review summons, he has identified no reason why any member of the Court of Appeal or (I would add for more abundant caution) the Supreme Court, might have engaged in any such conspiracy or, put more bluntly, have any interest in shoring up ER’s credibility at his expense.

21. [99]

    Thirdly, the fair-minded observer with knowledge of all of the circumstances of the case, would appreciate that the matters GAR relies upon to cast doubt on his conviction said to be revealed by the “missing page 5” were, as Adamson J said in the Second Review Application judgment, the subject of cross-examination of ER at the trial and of GAR’s counsel’s address to the jury. Notwithstanding those matters, GAR was convicted. Further, contrary to GAR’s submission, no court has found that Dr Sterrett’s report supported “ER’s fabrication of her … facial scratches.”

22. [100]

    Although in the Original Appeal judgment Miles AJ apparently referred to Dr Sterrett’s report erroneously, his Honour did so when summarising the Crown case. As Adamson J said in the Second Review Application judgment, Miles AJ’s error on appeal describing a matter canvassed at trial, could not be said to raise a doubt or question about GAR’s conviction, had apparently been discerned in the Review Appeal Court and facial scratching had not been a matter that Court relied upon in holding there was evidence which corroborated ER’s complaint.

23. [101]

    In my view, the fair-minded observer would understand that, if it be the case that page 5 went “missing”, responsibility for its loss cannot rationally be laid at the feet of members of the Court. That observer would understand that the papers judges consider (and which are filed in court for that purpose) are prepared by the parties. GAR’s counsel (and presumably his solicitor) clearly had page 5 at his trial in 2002 as, presumably, did the Crown. It cannot, in my view, sensibly be suggested that it vanished from the papers of both parties following the trial, especially GAR’s legal representatives, on GAR’s submissions at the behest of the Supreme Court judiciary.

24. [102]

    Further, it is manifest from the Second Review Application that page 5 was always available to GAR and his legal representatives. For whatever reason the latter did not seek to rely upon it until the Second Review Application. The more probable explanation for the fact they did not do so earlier is that they did not attach the same weight to it in all the circumstances as GAR now does.

25. [103]

    The fair-minded observer would also understand that the idea that members of the judiciary might deliberately conceal potentially exculpatory evidence, or any evidence, is fanciful. Such a conclusion is reinforced when it is appreciated that GAR’s submission necessarily involves the proposition that either an individual in the Court’s records system or a judge(s) somehow ensured that page 5 was removed not only from the papers the judges considered in the Review Appeal, but also from those used by the Crown and GAR’s counsel on that occasion. That proposition is simply absurd!

26. [104]

    The fair-minded observer would also recognise that the “went missing” allegation was not made in the Second Review Application, where GAR’s counsel only suggested “page 5” had been “previously overlooked”. At the risk of repetition, as Adamson J pointed out, it had not been. [90] It is telling that the “went missing” theory has only been advanced by GAR, and not any legal practitioner.

27. [105]

    Fourthly, the fair-minded observer would appreciate that the judges of the Court are rigorous in their insistence on judicial independence which includes independence of judges from one another. [91] Such an observer would not infer that it was possible that one judge might be able to, or would, impose his or her views about his or her desired outcome of a case upon a fellow judge. [92] Rather, in my view, the reasonable observer would understand such a judge would engage in a “neutral evaluation of the merits.” [93] Such an observer would be aware of the judicial obligation to administer justice fairly and on the facts of the individual case, in accordance with the principles of law relevant to the issues. [94] That person would also understand that it is the role of the judiciary to analyse the issues and the evidence in each case. The fact that a case is decided adversely to one party does not demonstrate apprehended bias.

28. [106]

    Fifthly, the fair-minded observer would not see GAR’s allegations as stigmatising the Court as a whole, but, rather, as directed against particular individuals who had previously considered his applications; nor would they be seen to undermine the integrity of the work of the Court, as opposed to possibly casting doubt on the integrity of a particular course of decision-making in relation to a particular case. [95]

29. [107]

    In the context of the present case, in my view, GAR has not identified any matter rising above the level of bare assertion that would warrant a fair-minded observer concluding there was a real possibility that any judge of the Court of Appeal might not bring an impartial mind to bear in its determination. In my view, the fair-minded observer with knowledge of the matters to which I have referred would regard GAR’s allegations as fanciful, rather than supporting any reasonable apprehension of bias on the part of members of the Court of Appeal.

30. [108]

    Finally I would note, although in my view GAR’s motion should be dismissed, as Ms Davidson submitted, principles as to bias are also subject to the rule of necessity. This rule gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal (or, in this case, a court) and requires it to perform the statutory functions entrusted to it. The statutory requirement that the court perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. [96] However, were there any merit in GAR’s assertions of a conspiracy amongst the judges of the Court, one might doubt the application of this principle. [97]

Orders

1. [109]

   I dismiss GAR’s motion.