Lewis v Queensland[2023] QSC 242

SUPREME COURT OF QUEENSLAND

1. [1]
   The plaintiff has brought a claim for damages against the defendant on various bases including false imprisonment, misfeasance in public office, malicious prosecution, collateral abuse of process and negligence.  The trial is listed for hearing before me for five days commencing on 13 November 2023.  Upon being informed that I was to hear the trial of his claim, the plaintiff made an application for me to recuse myself for apprehended bias.
2. [2]
   The High Court recently restated the principles which apply on an application such as this in Charisteas v Charisteas:^[1]

“Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute.  The apprehension of bias principle is that ‘a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.  The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal.  Its application requires two steps: first, ‘it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits’; and, secondly, there must be articulated a ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits.  Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.”

3. [3]
   The principle must be applied in the context that judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.  Judges do not choose their cases and litigants do not choose their judges.^[2]
4. [4]
   The plaintiff’s claim includes an allegation of a criminal conspiracy to murder him.  The principal architect of that conspiracy is alleged to be the plaintiff’s former partner, Ms Rogers.  Relevantly for the purposes of this application, the conspiracy is alleged to have also involved the Minister for Police, Mark Ryan, and the Commissioner of the Queensland Police Service, Katarina Carroll, who are both alleged to know Ms Rogers. 
5. [5]
   The plaintiff’s written outline on the recusal application referred to meetings recorded in the ministerial diary of Minister Ryan between 1 August 2019 and 31 August 2019 with various persons which I understand to be relevant to his claims.  Those include meetings during that month with other members of cabinet: Ms D’Ath, Ms Farmer and Ms Fentiman.
6. [6]
   In that context, the plaintiff identified my appointment as a judge of this court on the advice given to the Governor in Council by the present government, which included Ministers Ryan, D’Ath, Farmer and Fentiman as members of cabinet, as the matter which might lead me to decide his claim other than on its legal and factual merits.
7. [7]
   The plaintiff submitted that a fair-minded lay observer would consider it to be ordinary human nature for a person in my position to subconsciously favour those persons who were involved in my appointment as a judge.  That is, a fair-minded lay observer might reasonably apprehend that my appointment on the advice of cabinet which included Ministers Ryan, D’Ath, Farmer and Fentiman might mean I could not bring an impartial mind to bear in considering the factual and legal merits of the plaintiff’s allegations of conspiracy on the part of those persons.  On this basis, the plaintiff submitted that any judge of this court appointed on the advice of the present government would be disqualified from hearing his claim due to apprehended bias.
8. [8]
   The plaintiff submitted that, in circumstances where his claim included the allegation of conspiracy, he would not want the court to be perceived as becoming “entangled” in that alleged conspiracy.  He submitted that, given the gravity of the allegations he has made against members of cabinet, the public would question the integrity of the justice system if the issues raised by his claim are decided by a judge appointed on the advice of the present government.  He referred to a public perception that the present government is “only looking after their mates”.^[3]  He cited the decision of SRV v Commissioner of the Queensland Police Service,^[4] in which Sheridan DCJ allowed an appeal against the refusal by a magistrate to grant a protection order in his favour against Ms Rogers and submitted that his allegation of conspiracy to murder advanced on that appeal was supported by evidence but the Police Commissioner and other police refused to do anything.  He referred to what he described complex issues surrounding the government and their wish to “control the outcome of things”.^[5]  He gave examples of these issues, including the issue with DNA analysis and the fact that between 2022 and 2023 the Crime and Corruption Commission only brought charges against one person for corruption offences.  The plaintiff did not explain how any of these matters were said to lead a fair-minded lay observer to reasonably apprehend that I might decide his claim other than on its merits.
9. [9]
   Save in one respect, the plaintiff did not argue that I had any prior association with any member of cabinet who advised the Governor in Council on my appointment.  The one submission the plaintiff made as to an association which bore upon the question of apprehended bias was based on the following statement made by the then Attorney-General, Ms Fentiman, during my swearing in as a judge:

“And in the short interactions that we’ve had together, I’ve quickly come to recognise the importance that you place on equality, your consideration for others and the importance of your family.”

10. [10]
    The plaintiff submitted that, based on Ms Fentiman’s reference to my family, that a fair-minded lay observer would understand that the association between Ms Fentiman and myself was “a little bit more of a relationship than just passers-by”.^[6]
11. [11]
    I do not accept that a fair-minded lay observer would understand Ms Fentiman’s statement to mean that I have an association with her which might lead me to decide the plaintiff’s claim other than on its merits.
12. [12]
    I also cannot see that any of Ministers Ryan, D’Ath, Farmer or Fentiman being members of cabinet which advised the Governor in Council upon my appointment has any logical connection with the disposition of the plaintiff’s claim on its merits.  I am not satisfied that a fair-minded lay observer might reasonably apprehend that, because I was appointed on the advice of cabinet including those Ministers, that I might not bring an impartial mind to bear on the issues to be determined in the proceeding.  For that reason, the application for me to recuse myself from hearing the plaintiff’s claim is dismissed.