REGINA v REID [2004] NSWCCA 301

Procedural Posture

Criminal Application for Leave to Appeal Under S5 F of the Criminal Appeal Act 1912 From Refusal of a Sentencing Judge to Disqualify Himself / Leave to Appeal

Legal Issues

1. 1 ['Whether the refusal of Hulme J to disqualify himself from sentencing Craig Anthony Reid was appealable under s5F of the Criminal Appeal Act 1912 as an interlocutory judgment or order.' 'Whether Barton v Walker and Rogerson v R could be distinguished because alleged bias could not be raised on a later sentence appeal under s6(3) of the Criminal Appeal Act 1912.' 'Whether a fair-minded observer might reasonably apprehend that Hulme J would not bring an impartial and unprejudiced mind to sentencing Reid because he had previously sentenced Sharon Louise Ward for being an accessory after the fact to the murder.' "Whether the prior sentencing remarks involved findings about Reid or Ward that required Hulme J to recuse himself from Reid's sentencing."]

Ratio Decidendi

Leave was refused. The Court considered that it was not necessary or appropriate in this case to review Barton v Walker as applied in Rogerson. Barton v Walker could not be distinguished on the basis that s6(3) prevented the issue being raised on a sentence appeal, because s6(3) does not comprehensively state the grounds for sentence appeals and an erroneous refusal to recuse can be a ground. On the recusal issue, Hulme J's prior remarks in Ward's sentencing were largely based on agreed, uncontested or uncontradicted material and expressly recognised that the matters were not evidence against Reid. A reasonable independent observer would understand that an experienced sentencing judge...

Court Disposition

Leave to appeal refused

Orders

• ['Leave to appeal is refused.']