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State v A'aron [2003] PGNC 75; N2432 (28 July 2003)

N2432

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 318 OF 2003

THE STATE

V

PULI A’ARON
(‘Applicant/Accused’)

Waigani: Davani .J
2003: 24, 25, 28 July

PRACTICE AND PROCEDURE - Courts and Judges – criminal trial – allegations of actual bias by the trial judge – allegations consisting of words uttered – whether allegation proven – tests and principles applicable, discussed.

PNG cases cited:
Hitron Pty Ltd v Papua New Guinea Telecommunications Authority and Paul Ginis N1970;
State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1;
PNG Pipes Pty Ltd v Mujo Sefa [1998] SC592;
Gobe Hongu v National Executive Council; the Independent State of Papua New Guinea, Barclay Bros (PNG) Limited, Southern Highlands Gulf Highway Limited; Soso Tomu (Intervener) [1999] N1964;

Overseas cases cited:
R v Sussex Justices Ex parte McCarthy [1924] Vol 1 QB 256;
Metropolitan Properties Co. (F.G.C.) Ltd v Lannon and others; Regina v London Rent Assessment Panel Committee ex parte Metropolitan Properties Co. (F.C.C.) Ltd 1 QBD [1969] 577;
Livesey v New South Wales Bar Association [1983] HCA 17; [1983] 151 CLR 288;
Re JRL; Ex Parte CJL [1986] HCA 39; [1986] 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239
Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 4) [1986] 6 NSWLR 674 at 689;
Galea v Galea [1988] 19 NSWLR 263 at 278f
Trustees of Christian Brothers v Cardone [1995] FCA 1309; [1995] 130 ALR 345

Counsel:
P. Kupmain for the State
B. Takin for the Applicant/Accused

28 July 2003

RULING
(application to disqualify)

DAVANI .J: I delivered a brief ruling on 28.7.03 and said I would give detailed written reasons later. This I now do.

This application was made in the mid-trial before completion of the State’s case on a charge of wilful murder. Counsel for the Accused made application this morning that this court disqualify itself because of what counsel perceived to be an "outburst" by the Bench Friday last and the use of the word ‘insubordination’. Counsel submitted that to a reasonable onlooker, there would appear to be a real likelihood of bias.

The application was unsupported by affidavit evidence except Mr Takin’s submissions from the bar table, which are based on instructions from his clients. Therefore, prima facie, this application is unsupported by any evidence of the bias that Mr Takin refers to.

On hearing counsel’s submissions on grounds for the court’s disqualification, I note these to be the issues:

1. What is the ‘outburst’ Mr Takin refers to;
2. If the use of the word ‘insubordination’ by the court is seen as the outburst, is that sufficient grounds for the court to disqualify itself.
   

In relation to the first issue on the outburst Mr Takin refers to, there is no affidavit material before me to establish or state what this ‘outburst’ is. If Mr Takin is referring to the court’s intervention in the manner in which he put questions to the State’s witness then this, in my view, is acceptable practice by the court. If the court finds that questioning by counsel is not properly done, then the court must intervene. If the court finds that questions asked of the witness by the lawyer are not on point, then the court must intervene. That is normal court practice and applicant’s counsel has had several years practice to know that to be the case.

Counsel is aware also that the court must control the proceeding from day 1 to the date it should be completed, which in this case is three (3) days.

In relation to the second issue, as to the use of the word ‘insubordination’, Defence Counsel’s submissions are that the use of this word is sufficient to establish bias. The court used this word because Defence Counsel continually interjected after the court had ruled that counsel should not ask any more questions on the description of a motor vehicle that was allegedly used in the murder. This was after the court had allowed Defence Counsel to ask questions of a State witness, after re-examination by the State because the Prosecutor raised a matter that had not been raised in examination-in-chief. The questions the court allowed was only in relation to the vehicle that was identified in re-examination. I will set out below the excerpt of the evidence as it appears in my notebook.

Re-examination by the Prosecutor

16. "My friend asked you to elaborate on and to describe the Toyota Land Cruiser (‘TLC’). If I were to show you a photograph of the TLC, would you be able to identify it?"
    

(** Objection by Defence counsel that this question should not be raised in re-examination as it should have been asked in examination-in-chief.)

In response to the objection, prosecution submitted it was only seeking to clarify the type of vehicle the witness saw.

I allowed the question because I found that question to be relevant.

(After showing the photograph of the TLC to the witness, which photograph earlier been tendered into evidence, by consent, as an exhibit)

16. "That was the vehicle that you saw.
1. Yes"
   

Because of the answer given by the State witness in the latter question, I then gave Defence the opportunity to ask questions only in relation to the questions asked above.

(Re) Cross-Examination by Defence

Defence Counsel asked the witness to look at the photograph of the TLC then asked;

4. "Did you look at the TLC for a long time?
1. It stopped then took off.
4. Still can’t tell the no. plate?
1. No.
4. The side window where the driver sat, could you see it properly?
1. I could not see it."
   

At that point, I asked Mr Takin not to ask any more questions, as he was delving into areas that the Prosecutor had not covered in his re-examination, hence the opportunity to improve on evidence.

Mr Takin continued to object and then said that the next question would be his last. I allowed it.

4. "Is that the vehicle (‘TLC’) you saw that morning, (i.e. the morning of the murder) in the picture?

A. Yes."

It was then that I noted it was well past 4.06pm and that the court could adjourn for the day. I informed Defence Counsel that his actions amounted to disrespect and insubordination to the court.

On Monday morning at 9am, Defence counsel then made the application that I disqualify myself from hearing the case. He relied on two (2) grounds in making those submissions;

1. The alleged outburst in court;
2. The use of the word ‘insubordination’
   

Are counsel’s submissions sufficient to establish bias and for the court to disqualify itself? I have not heard submission from both counsel as to what ‘bias’ is, especially in a situation such as this where the judge is asked to disqualify because of a word used. Mr Takin cited to me three (3) common law cases on bias which I have read and which do not relate at all to the situation now before the court. I set these cases out in full as they assist in explaining what ‘actual’ or ‘perceived’ bias is.

The first case cited by Mr Takin of R v Sussex Justices Ex parte McCarthy [1924] Vol 1 QB 256 involved an acting clerk who was a member of a firm of solicitors who was acting for a plaintiff in a civil action for damages. The acting clerk also sat in the criminal trial involving the accused who was charged for dangerous driving. When the judges retired to consult on the hearing, the acting clerk also retired with them in case they wished to refer to his notes on the evidence or be advised on the law, but the judges did not consult him.

Although he was not consulted by the judges, the court still held that because of his involvement in the civil case and because he was in the room with the judges, that his being there would already have created a suspicion that there had been an improper interference with the course of justice.

The next cited case of Metropolitan Properties Co. (F.G.C.) Ltd v Lannon and Others; Regina v London Rent Assessment Panel Committee ex parte Metropolitan Properties Co. (F.C.C.) Ltd 1 QBD [1969] 577 involved an appeal to the Court of Appeal in London dismissing the Divisional Court’s decision. The appeal arose out of a case where the landlords of certain flats alleged bias by the chairman of a rent assessment committee, which committee was to set rents. The landlords alleged that the chairman resided in a group of flats with his father and the landlords had also applied to that committee for determination of a fair rent. The appellant landlords contended that the connection between these two flats was so close that the supposition of bias would inevitably arise.

The court of appeal allowed the appeal.

In the cited PNG case of the State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1, His Honour Kapi DCJ as he then was, presided over a criminal matter where after guilty pleas were provisionally entered, both accused made statements on allocatus, which raised doubts in the judges mind as to the correctness of the plea. The learned judge then had to make a decision as to whether to change the plea or not. This meant canvassing the evidence on the charges then of Break, Enter and Stealing and Rape. The judge decided not to sit at the trial because on the preliminary issue, he had already formed an opinion regarding the evidence to be called at the trial. It was for that reason that the judge referred and relied on a common law case which stated that a judge may not sit to hear a case if in all the circumstances the parties or public might reasonably suspect that he is not unprejudiced and impartial. This passage was read to me by Mr Takin and which I find now is not relevant to the issues before me.

Mr Takin’s submissions is based on an apprehension of bias. None of the cases he cited support his submissions. The leading case containing relevant principles and tests applicable in an application to a judge to disqualify himself are confirmed in the recent Supreme Court decision of PNG Pipes Pty Ltd v Mujo Sefa [1998] SC592. In that case, the Supreme Court referred to a number of similar cases and statements of principles in overseas jurisdictions and applied those principles and tests as the law in our jurisdiction. The case PNG Pipes (supra) was also relied on in another leading case of Gobe Hongu v National Executive Council; the Independent State of Papua New Guinea, Barclay Bros (PNG) Limited, Southern Highlands Gulf Highway Limited; Soso Tomu (Intervener) [1999] N1964 by Sevua .J.

The test applied in the PNG Pipes (supra) case is that of an objective observer. An objective observer must be reasonable and not fanciful. As was held in Trustees of Christian Brothers v Cardone [1995] FCA 1309; [1995] 130 ALR 345, the court must be satisfied, upon examination of the surrounding facts, that an objective observer would be left with an apprehension, not a conviction, that a judge was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion.

As in the Gobe Hongu (supra) case, the applicant has not provided any evidence before this court, as an objective observer, that the use of the word insubordination raises bias, at all, and that the decision I would reach will be unfavourable to him. Mr Takin should not be the objective observer, he is the lawyer. It is his client and the audience in court, who should provide that evidence. But it is not before me.

Mr Takin alleges actual bias, but has not established it with evidence. This was also the same position taken by the court in Hitron Pty Ltd v Papua New Guinea Telecommunications Authority and Paul Ginis N1970, judgment delivered by Sevua .J on 9.6.00. In that case, the defendant’s lawyer alleged actual bias by the judge because the judge had been the plaintiff’s customer. No evidence was presented by the Defendant to prove that he was an ‘objective observer’ or a ‘fair-minded lay-observer.’ On that basis, the court found there not to be any bias and dismissed the application.

Having said that, it is also the position at law that judges should not too readily accede to applications for disqualifications, whereby parties may effectively influence the choice of a judge in their cause. (see Re JRL; Ex Parte CJL [1986] HCA 39; [1986] 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239 and adopted in Gobe Hongu (supra)). Only where a fair-minded, lay observer, with knowledge of the material facts, might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue, can the judge then disqualify himself. This is the test that should be applied (see Livesey v New South Wales Bar Association [1983] HCA 17; [1983] 151 CLR 288 and relied on in Gobe Hongu (supra). This is not the case, at all.

Having reviewed the case law, I find that the applicant’s lawyer has not proven these established principles on apprehended bias;

1. That firstly, I have an interest in the case, whether direct, indirect, pecuniary or otherwise;
2. That my conduct gives rise to an apprehension of bias;
3. That I have some association with the parties.
   

I find Mr Takin’s submissions are only assertions. As a judge, I should not be driven from this court by these assertions. (see Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 4) [1986] 6 NSWLR 674 at 689 and relied on in Gobe Hongu (supra)). That these assertions are based I find, on the vigour with which I conducted the trial. It is the law that judges should not be disqualified because of the vigour with which they conduct proceedings because judicial intervention is necessary. (see Galea v Galea [1988] 19 NSWLR 263 at 278f and relied on in Gobe Hongu (supra)). And that judges often must perform the duties of their office which, of their nature, is often painful and unrewarding. (see Raybos Australia Pty Ltd (supra) and relied on in Gobe Hongu (supra)). Judges must do so with courage and decisiveness. Avoiding the relinquishment of such duties, would then fall to another judicial officer for whom the task may be more congenial. (see Raybos Australia Pty Ltd (supra) and relied on in Gobe Hongu (supra)).

In applying all these principles, I find there is no basis for my disqualification and I refuse to disqualify myself from presiding over this matter. I will dismiss this application.
________________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Public Solicitor