As luck would have it I came across another (not) fair and impartial case in the past few weeks. This time it’s a prejudgment case. I didn’t set out to write related blog posts in pairs, but here we go anyway.
This time, it was in a judge alone criminal trial. Senior Counsel for the accused foreshadowed that he would make an application for a directed verdict of acquittal at the close of the Crown case on the basis that there was no case to answer.The following exchange with the trial judge took place:
Counsel:
Well your Honour there will be an application tomorrow for no case to answer.
Judge:
I see, well that application will be refused. So how long then will the defence case take?
Counsel:
How can your Honour possibly come to that view without having heard one word from either me or Mr Wilkinson?
Judge:
Because I’ve closed the Crown case, and I have just said it.
Counsel:
But you’ve heard not one word of any submission by either of us upon either the law or the fact
Judge:
No, I’m simply telling you the application will be refused. I perceive what’s in the Crown case, I perceive there’s a case to answer.
This case made its way to the High Court (Antoun v The Queen [2006] HCA 2). The sole ground of appeal was that the trial judge had prejudged the matter and conducted himself in such a way that a fair-minded observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the question of whether the appellants ought to be convicted.
We know from the judgment of Gleeson CJ that after the exchange set out above that on the following morning the Judge “listened to argument on sufferance, then repeated his decision. As it happens, his decision was right. The submission was without merit. That, however, does not remove the impression created by the course that was followed.”
However, as often happens, it’s Kirby J who nails it:
[27]…. it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates…..
[29]….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. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this Court that the trial judge crossed it.
Creative commons acknowledgment for the photograph.