Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182 Hearing dates: 1 August 2018 Date of orders: 01 August 2018 Decision date: 01 August 2018 Before: Gleeson JA at [1] R A Hulme J at [16] Button J at [17] Decision: Leave to appeal under s 5F, Criminal Appeal Act 1912 (NSW), is refused. Catchwords: CRIMINAL LAW – leave to appeal – where sentencing judge refused to recuse herself for apprehended bias on the ground of pre-judgment – Criminal Appeal Act 1912 (NSW), s 5F(3)(a) – whether the judge's refusal to recuse herself constituted an "interlocutory judgment or order" under s 5F Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Gurung v R [2012] NSWCCA 201 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lee v Cha [2008] NSWCA 13 Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427; [2001] HCA 48 R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425 R v Rogerson (1990) 45 A Crim R 253 Category: Procedural and other rulings Parties: Mr Sam Chamoun (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: R Macauley (solicitor) (Applicant) NJ Adams (Respondent)

Solicitors: Pryor Tzannes & Wallis Solicitors (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2012/76499 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 13 July 2018 Before: Hock DCJ File Number(s): 2012/76499

Judgment 1. GLEESON JA: On 1 August 2018, the Court refused an application by Mr Sam Chamoun for leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against the refusal of a judge of the District Court to recuse herself in sentencing proceedings relating to a drug supply offence to which the applicant had pleaded guilty. My reasons for joining in the refusal of leave to appeal follow.

Background 1. The s 5F application was heard together with a related application by Mr Chamoun before the Court of Appeal seeking an order by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) prohibiting the sentencing judge (Hock DCJ) from acting further in the sentencing proceedings. Both applications were heard by the same bench constituted as the Court of Criminal Appeal and the Court of Appeal. 2. The circumstances in which the applicant was charged, pleaded guilty, and came before the District Court for sentencing on a drug supply offence are set out in the separate reasons of the Court of Appeal for dismissing the application for judicial review: Chamoun v District Court of New South Wales [2018] NSWCA 187 (Chamoun (CA)). It is not necessary to repeat that background. 3. It is sufficient for present purposes to record that, by notice of motion filed 15 May 2018, the applicant requested Hock DCJ to disqualify herself from further hearing of the matter. The sole complaint relied upon by the applicant was the assertion of apprehended bias on the ground of pre-judgment, having regard to certain comments made by the Judge during the sentencing proceedings. The test for apprehension of bias and the application of those principles is set out in the judgment of the Court of Appeal in Chamoun (CA). 4. After a hearing on 10 July 2018, her Honour delivered reasons for judgment on 13 July 2018 for declining to accede to that request. Her Honour also refused an application to vacate the sentencing hearing on 3 August 2018 and confirmed that date for any further evidence, submissions and sentence before her Honour. 5. On 31 July 2018, the applicant filed an application for leave to appeal under s 5F of the Criminal Appeal Act against what was described as an interlocutory judgment or order made by her Honour on 13 July 2018. 6. Section 5F is relevantly in the following terms: Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). ... (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. ….. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. …... 1. In his written submissions, the applicant's solicitor acknowledged that there is a question whether her Honour's refusal to disqualify herself constitutes a "judgment or order" at all for the purposes of s 5F. The applicant's solicitor seemed to accept that the weight of authority suggested that it did not. 2. The applicant characterised the s 5F application as, in effect, an alternative and fall-back application to the application for judicial review, and that the outcome of the s 5F application would be determined by the outcome of the application for judicial review. As indicated, the Court of Appeal dismissed the application for judicial review on 1 August 2018. 3. The authorities which suggest that there is no jurisdiction under s 5F for the Court of Criminal Appeal to entertain an appeal against a judge's refusal to disqualify him or herself because such a refusal does not constitute an interlocutory order so as to come within the terms of s 5F, include: R v Rogerson (1990) 45 A Crim R 253 at 255 (Gleeson CJ, Wood and Brownie JJ agreeing); R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425 at [12]-[15] (Spigelman CJ, Wood CJ at CL and Howie J agreeing); Gurung v R [2012] NSWCCA 201 at [41] (McClellan CJ at CL, Garling J agreeing; contra McCallum J at [57]). 4. A similar view has been reached in the context of a right of appeal under s 127 of the District Court Act 1973 (NSW) in relation to "a judge's … judgment or order in an action": s 127(1). In Lee v Cha [2008] NSWCA 13 at [13] Basten JA (Hodgson and Bell JJA agreeing) expressed the view that the overwhelming weight of authority suggests that a refusal by a judge of the District Court to disqualify himself or herself does not constitute a "judgment or order". 5. Even assuming, contrary to the authorities referred to above, that her Honour's refusal to accede to the application that she should disqualify herself is an interlocutory judgment or order in respect of which an appeal would lie with leave under s 5F of the Criminal Appeal Act, this is a case in which leave to appeal should be refused, essentially for the same reasons as given by the Court of Appeal for dismissing the application for judicial review in Chamoun (CA). 6. In short, the applicant failed to clearly demonstrate that the point has been reached where a fair-minded observer might think that the sentencing judge might not approach the part-heard sentencing hearing with objectivity and detachment and without any element of pre-judgment: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427; [2001] HCA 48 at [31]. 7. One further matter should be mentioned. It might be argued that the difficulty with bringing the present application for leave to appeal within s 5F could be overcome by casting the application for leave to appeal with respect to one or more of the other orders made by her Honour on 13 July 2018 (refusing to vacate the sentencing hearing fixed for 3 August 2018 and confirming that date for any further evidence, submissions and sentence). However, it is not necessary to determine whether either of those other orders answers the description of an "interlocutory order" in respect of which an application for leave to appeal under s 5F could be made. Any application for leave to appeal from such an order would also be refused for the same reasons as indicated above. 8. For these reasons leave to appeal under s 5F was refused. 9. R A HULME J: My reasons for joining in the orders made by the Court on 1 August 2018 accord with those set out in the judgment of Gleeson JA. 10. BUTTON J: The reasons of Gleeson JA reflect my own reasons for joining in the orders of the Court of Criminal Appeal on 1 August 2018.

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