MTH v State of New South Wales (No 2)

MITCHELMORE AND ADAMSON JJA: On the morning of the second day of the hearing of the appeal in this matter, counsel for the third respondent made an application that Price AJA recuse himself. The basis of the recusal application was apprehended bias. The judgment of Price AJA below sets out the background to the recusal application, the basis on which it was made and the arguments that counsel for the third respondent advanced in respect of it.

The test for apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (“Ebner”) at [6] is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The test requires, first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and, second, an articulation of the “logical connection between the matter and the feared deviation from the course of deciding the case on its merits”: Ebner at [8]. Only then can the reasonableness of the asserted apprehension of bias be assessed: Ebner at [8], see also eg Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59]; Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11].

The apprehension of bias on which the third respondent relied was said to arise from the circumstance that Price AJA was a member of the Court of Criminal Appeal in Croft v R [2021] NSWCCA 146 (the conviction appeal). The applicant in that matter, Mr Geoffrey Croft, was the second defendant in the proceedings the subject of the present appeal until his death in 2022. The convictions the subject of his appeal to the Court of Criminal Appeal, which was dismissed, included convictions for offences against the appellant in the present appeal, MTH, and another individual, RS. MTH relied on the offending conduct of Mr Croft in her claims against the respondents (with Mr Croft’s estate taking the place of Mr Croft as a party following his death).

Price AJA’s judgment below demonstrates that the test for apprehended bias was not made out. In particular, no logical connection was articulated between his Honour sitting on the Court of Criminal Appeal in the conviction appeal and the feared deviation from the course of deciding the present appeal on its merits.

The premise of the connection on which the third respondent relied was flawed. Counsel for the third respondent submitted that it rested on his Honour having been satisfied, in the conviction appeal, that there was no miscarriage of justice and “with that goes, in a sense, satisfaction that the processes that be established a conviction and therefore established the guilt of the late Mr Croft”. As Price AJA explains below, Mr Croft’s two grounds of appeal were narrowly drawn and their determination did not involve a detailed review of the evidence in the trial (as an unreasonable verdict ground of appeal may have done) or any consideration of miscarriage of justice.

The feared deviation was said to relate to his Honour’s consideration of the evidentiary significance of Mr Croft’s convictions, which has been raised as an issue in the present appeal. There was no logical connection between his Honour dismissing an appeal from those convictions and the feared deviation on which the third respondent relied, particularly when the nature of the conviction appeal is properly understood. The fact that the conviction appeal was determined adversely to Mr Croft was not of itself sufficient to ground the logical connection required, which counsel for the third respondent implicitly recognised by not relying on that matter alone.

The test for apprehended bias not having been established, we agreed that the recusal application be dismissed.

PRICE AJA: On 7 and 8 May 2025, the Court constituted by Mitchelmore JA, Adamson JA and myself heard an appeal by MTH (“the appellant”) from the whole of the decision of Cavanagh J (“the primary judge”) who found that the appellant’s case against the State of New South Wales (“the first respondent”), the estate of the late Geoffrey Croft (“the second respondent”) and Mrs Sandra Croft (“the third respondent”) had failed.

Central to the primary judge’s decision was his Honour’s finding that he was not comfortably satisfied that Mr Croft had physically and sexually assaulted the appellant in 1979.

Mr Croft died in June 2022, which was prior to the commencement of the proceedings by the appellant in the Supreme Court of New South Wales. The appellant’s amended statement of claim was filed in April 2023.

The appellant who was self-represented before the primary judge and in this Court raised 33 grounds of appeal but it became apparent to the members of the Court after reading the parties’ submissions and the trial transcript that there may be an issue as to how the convictions of Mr Croft for five offences against MTH and four offences against another young person, RS, had been considered by the primary judge.

Mr Croft had been found guilty by a jury on 30 September 2019 of five sexual offences against the appellant and four sexual offences against RS after a trial in the District Court at Armidale. McLennan SC DCJ (“the trial judge”) on 22 November 2019 sentenced Mr Croft to an aggregate term of imprisonment of 22 years with a non-parole period of 10 years.

The trial judge’s remarks on sentence were placed before the primary judge in an “outline of submissions: abuse of process” by counsel for the first respondent who had agreed to assist the Court in an issue which had arisen as to whether it was open to the second and third respondents to deny that the abuse occurred. The submissions noted that Mr Croft appealed to the NSW Court of Criminal Appeal which was dismissed on 5 July 2021: Croft v R [2021] NSWCCA 146 (“Croft”). Mr Croft sought special leave to appeal to the High Court, but his appeal was dismissed as he died before the application for special leave could be determined: Croft v The Queen [2022] HCASL 120. All of this material is in the appeal books prepared for this Court. [1]

The trial judge’s sentencing remarks included his Honour’s findings that Mr Croft’s offending against RS and the appellant had involved sexual and physical violence.

The appeal books also contained the appellant’s notice pursuant to s 97 of the Evidence Act 1995 (NSW). Table “A” to the tendency notice included circumstances of what were submitted to be Mr Croft’s offending against two male children, RS and PS. [2] The appellant’s grounds of appeal include complaints that the primary judge erred by not admitting the tendency notice and not permitting the appellant time to subpoena RS.

Much of the argument on the first day of the hearing of the appeal concerned submissions from the parties as to the primary judge’s ruling that the convictions of Mr Croft for five offences against MTH and for offences against RS were not admissible to prove the elements of those offences. During the submissions of the third respondent’s counsel, Mr Tierney, the following exchanges took place:

Shortly prior to the italicised exchange above, Mr Tierney handed to the Court photocopies of [EA.97.120] from S Odgers, Uniform Evidence Law (19th ed, 2024, Thomson Reuters), which included the following:

On the morning of the second day of the hearing, counsel for the third respondent made an application that I recuse myself from continuing to hear the appeal. The basis of the application was that I was a member of the Court of Criminal Appeal which dismissed Mr Croft’s appeal against his convictions.

Before advancing further, it is apposite to recount that Mr Croft’s appeal was confined to the following grounds:

Basten JA (with whom I and Garling J agreed) concluded that each ground should be rejected and therefore the appeal dismissed: Croft at [34], [40]-[41] (Basten JA), [42] (Price J), [43] (Garling J).

Ground 1 raised a question of mixed fact and law. Mr Croft in his case had adduced evidence of prior good character and the issues for the Court were whether the trial judge had failed to apply the principles governing the prosecution splitting its case, and whether the Crown should have been permitted to adduce evidence in rebuttal of good character. The Court’s consideration of the facts of the case was confined to this issue. Ground 2 of the appeal raised a question of law alone.

A ground of appeal was not raised by Mr Croft that the verdicts were unreasonable and could not be supported by the evidence. The Court was not required to consider the question whether the Court “thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that [Mr Croft] was guilty”: M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] (French CJ, Gummow and Kiefel JJ).

In oral submissions, Mr Tierney raised an apprehension of bias. He referred to the issue of prejudgment because of my prior involvement in the Court of Criminal Appeal citing Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17. Mr Tierney referred to the similarity in my exchange italicised in the quote above at [16] with a statement in Basten JA’s judgment. He submitted that he did not know what material had been before the Court of Criminal Appeal. He argued that “it’s probably not going to be possible to know whether Price AJA’s analysis of the evidentiary value of a certificate of conviction may not be compared or infected by knowledge which perhaps may even be subconscious knowledge … [t]he example yesterday is a case in point”. [5]

Mr Tierney submitted that the nature of my “interest” was that “the Court of Criminal Appeal bench in the appeal, has an interest, according to the authorities, in relation to the outcome of a review of that decision” [6] , citing Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (“Isbester”) as authority “where the High Court develops the concept of ‘personal interest’ beyond simply a pecuniary interest”. [7] He further submitted:

Mr Tierney referred to “[undertaking] an assessment of the certificate of conviction” [9] and “the fact of satisfaction … of the outcome of the appeal in the criminal case was correct”. [10]

Mr Tierney submitted that this Court was “potentially going to embark upon a review of the product of that judgment, the certificate of conviction”. [11] He further submitted that “a fictional person would be capable of saying, ‘[i]s it appropriate that the product of a judgment of the Court of Criminal Appeal is reviewed by a member of the bench of that appeal?’”. [12] Mr Tierney further referred to Polsen v Harrison [2021] NSWCA 23 at [46] (Bell P, Basten JA and Simpson AJA).

As Mr Tierney’s argument referred to a review of the certificate of conviction, it is necessary to briefly refer to what may be established by such a certificate. A certificate of conviction is evidence of the elements of the offence for which Mr Croft was convicted but not of the detailed facts found by the sentencing judge: The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [9] (Hodgson JA, Tobias and Basten JJA agreeing). The certificate is admissible to prove the existence of a fact that was in issue in the criminal proceeding: Osborne v Butler (a pseudonym) (2024) 73 VR 386; [2024] VSCA 6.

The State did not seek to join the third respondent’s recusal application. However, counsel for the second respondent, Mr Andrews, stated he did not oppose the recusal application although mentioning he had not had an opportunity to fully consider the Croft decision. [13]

At the conclusion of oral submissions on the recusal application, a short adjournment was taken by the Court to allow me to consider the application.

On recommencement of the hearing, I stated that I declined to recuse myself and would provide reasons in due course.

After I dismissed the recusal application, Mr Tierney indicated that he wished to renew his application to the Court as a whole. Mitchelmore and Adamson JJA independently delivered judgment their Honours each refusing the recusal application. [14]

What follows are my reasons for declining to recuse myself.

The test for apprehended bias is well established and was stated by the plurality of the High Court in Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ), and more recently restated by the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [162] (Edelman J), [194] (Steward J), [225] (Gleeson J), [274] (Jagot J) (“QYFM”).

In Ebner, the plurality said at [6]:

The application of the test for apprehended bias requires two steps (Ebner at [8]):

The plurality in Ebner also emphasised at [8]:

It is apparent from the recent High Court authorities that what is sometimes referred to as the “third step”, follows Ebner’s two step process and requires the assessment of the “reasonableness of that apprehension from the perspective of a fair-minded lay observer”: Isbester at [59] (Gageler J); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J); Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); QYFM at [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [225] (Gleeson J), [293] (Jagot J); Director of Public Prosecutions v Smith [2024] HCA 32; (2024) 98 ALJR 1163 at [92] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

Mr Tierney’s articulation of the second step in Ebner – the logical connection – appears to be that having been a member of the Court of Criminal Appeal that dismissed Mr Croft’s appeal, I would have a “sense of satisfaction” [15] in the process that established his conviction. In dealing with the certificate of conviction, my sense of satisfaction that the outcome of the appeal was correct could be perceived to infect the “delicate weighing issues” [16] that may arise.

A fair-minded lay observer would be taken to appreciate the following:

Accordingly, I declined the application. I formally dismiss the third respondent’s application to recuse myself.