Hatch v Liversidge [2008] ACTSC 144 (4 December 2008)

Last Updated: 23 December 2008

MICHAEL EDWARD HATCH v ADAM LIVERSIDGE [2008]

ACTSC 144 (4 December 2008)

APPEAL ─ appeal from decision of the Magistrates Court of the ACT ─ Magistrate’s findings of facts cited by judge in sentence under same offence provision ─ Magistrate’s judgment relied on by judge for purpose of identifying an appropriate sentencing range.

COURTS AND JUDGES ─ bias ─ reasonable apprehension of bias ─ judge listed for appeal from decision relied on in judge’s previous sentencing decision ─ reasonable apprehension of bias ─ view of “fair-minded member of the public” without understanding of law and judicial process ─ whether judge could being seen as effectively hearing appeal from her own decision.

COURTS AND JUDGES ─ bias ─ reasonable apprehension of bias ─ application for judge to disqualify herself from hearing criminal appeal ─ judge listed for appeal from decision relied on in judge’s previous sentencing decision ─ whether “fair-minded member of the public” would consider judge’s sentencing remarks indicate prejudice against appellant ─ application granted.

COURTS AND JUDGES ─ bias ─ reasonable apprehension of bias ─ application for judge to disqualify herself from hearing criminal appeal ─ need for judges to guard against “judge shopping”.

Criminal Code Act 1995 (Cth)

R v Llewellyn (unreported, ACTSC, Penfold J, 3 December 2008)

Liversidge v Hatch (unreported, ACTMC, Magistrate K M Fryar, 15 July 2008)

The Commonwealth of Australia v Davis Samuel Pty Ltd [No 4] [2008] ACTSC 112 (26 September 2008)

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

R v Webb [1994] HCA 30; (1993) 181 CLR 41

Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342

No. SCA 64 of 2008

Judge: Penfold J

Supreme Court of the ACT

Date: 4 December 2008

IN THE SUPREME COURT OF THE )

) No. SCA 64 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL EDWARD HATCH

Appellant

AND: ADAM LIVERSIDGE

Respondent

ORDER

Judge: Penfold J

Date: 4 December 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is to be heard by another judge of this court.

1. Michael Edward Hatch has appealed against his sentence for an offence under the Commonwealth Criminal Code Act 1995 of using a carriage service, specifically the internet, to access child pornography.

2. Yesterday, I handed down a decision in the matter of R v Llewellyn (unreported, ACTSC, Penfold J, 3 December 2008), who was sentenced for the same offence for which Mr Hatch has been sentenced. I relied, for the purpose of identifying a sentencing range, on the decision in Liversidge v Hatch (unreported, ACTMC, Magistrate K M Fryar, 15 July 2008) as the only case cited before me on the Commonwealth child pornography offence, although I also relied for that purpose on a number of other ACT and interstate cases involving child pornography offences.

3. Mr Purnell, on behalf of Mr Hatch, has applied for me to disqualify myself from hearing this case on the basis of a reasonable apprehension of bias. He referred me to the case of The Commonwealth of Australia v Davis Samuel Pty Ltd [No 4] [2008] ACTSC 112 (26 September 2008), a decision of Refshauge J of this Court earlier this year. That case quoted from several authorities, first, the High Court case of Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, where Gleeson CJ and McHugh, Gummow and Hayne JJ said (at 345):

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it 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. The second step is no less important. There 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.

4. I quote also from the second case that Mr Purnell mentioned, which was referred to in Davis Samuel. That is the case of R v Webb [1994] HCA 30; (1993) 181 CLR 41 in which Mason CJ and McHugh J said (at 51-52):

References to the reasonable apprehension of the “lay observer”, the “fair-minded observer”...

5. and then they quote several other descriptions of such people ...

... abound in the decisions of this Court and other courts in this country. They indicate that it is the court’s view of the public’s view, not the court’s own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case.

6. In an attempt to satisfy the test from the Ebner case that I have already quoted, Mr Purnell articulated the following basis for a reasonable apprehension of bias. Roughly, it is as follows:

That in the Llewellyn sentence, I had compared and contrasted the Hatch case with the Llewellyn case, accepting the correctness of the Hatch decision by reference to findings of fact, but that the second ground specified in the amended notice of appeal in the current case claims errors of fact by the sentencing Magistrate. This in turn means that in the Hatch appeal the basis on which I reached my findings in Llewellyn will be challenged.

7. I think the appellant’s concerns could probably be articulated more explicitly, but I accept that it may be easier for me to do that than for Mr Purnell, and I would articulate them as follows:

If, after hearing Mr Hatch’s appeal, I decided in his favour, and re-sentenced him to a less severe penalty, that might be seen to undermine the correctness of my sentencing of Mr Llewellyn. So might a decision in favour of Mr Hatch on a particular aspect of the facts that was mentioned in my description of his case in the Llewellyn sentence, even if such a finding didn’t lead to the imposition of a different sentence. Equally, a decision in favour of Mr Hatch that was based on matters not referred to in the Llewellyn sentence but which led to the imposition of a lower penalty might undermine the correctness of the Llewellyn decision.

8. Thus, it might be considered that my natural inclination to regard my own judicial decisions as correct would prejudice me against any aspect of the appellant’s argument that potentially cast doubts on one of those decisions, which as explained might in this case be all aspects of the appellant’s argument.

9. This is of course a not uncommon element of the judicial experience. All judges, but especially those in a small jurisdiction such as the ACT, find themselves deciding cases that involve legal issues on which they have previously expressed views. It is common for judges to find themselves explaining why a view they took in an earlier case is not applicable in their current case. On occasion, judges explicitly find that they were wrong in an earlier decision. Admittedly, it is not often that judges are, in effect, challenged on their approach to earlier findings of fact.

10. I note at this point the comments of Mason J, also quoted in the Davis Samuel case, but made originally in Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342 (at 352):

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

11. And I would add to that comment the point that if judges made a practice of excusing themselves from matters that raise issues on which they have previously expressed views, the courts could barely keep functioning.

12. The following aspects of this case seem to me to be significant:

• The fact that the Llewellyn case, and Mr Hatch’s case earlier, have both received some media attention; the significance of this is that the approach of the court will come to the notice of many more members of the ACT community than those who will hear proceedings in the court or even read the resulting published decisions.
• The possibility that a fair-minded member of the public, without an understanding of the law and the judicial process, could, on the basis that I have previously described, consider that in today’s matter I would have a natural interest in, effectively, defending my own earlier decision in this matter, and that my consideration of today’s appeal would be not far removed from hearing an appeal against one of my own decisions.
• The subject matter of these particular cases, and the possibility that a fair-minded member of the public could also feel that my comments on the facts of Mr Hatch’s case might indicate some prejudice against him existing before his counsel has had the opportunity to address me on the appeal.
• The fact that Mr Hatch himself, even more than a fair-minded member of the public, might be concerned about the matters that I have just mentioned.

13. Finally, I accept Mr Purnell’s submissions that he makes no suggestion of any actual bias on my part, and indicate that I have heard nothing that suggests to me that his application in this case amounts to “judge-shopping”.

14. Having regard to all these factors, I have reluctantly concluded that it would be in the interests of the administration of justice in this Territory for me to disqualify myself from hearing this appeal.

15. The appeal will be heard by another judge of this court.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 2008

Counsel for the appellant: Mr J Purnell SC

Solicitor for the appellant: Nicholl & Co

Counsel for the respondent: Ms K Weston-Scheuber

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 4 December 2008

Date of judgment: 4 December 2008