Attorney-General v Wood[2023] QSC 78

SUPREME COURT OF QUEENSLAND

1. [1]
   Ian Andrew Wood was the respondent to an application brought by the Attorney-General seeking to have him dealt with for contempt of court (the contempt application).  The contempt application came before me for hearing on 12 April 2023.
2. [2]
   Mr Wood made an application that I disqualify myself from hearing the contempt application on the basis of apprehended bias (the apprehended bias application).  I dismissed the apprehended bias application and proceeded to hear the contempt application.^[1]  These are my reasons for dismissing the apprehended bias application.

Background

3. [3]
   Mr Wood was charged on indictment in the District Court with a count of choking in a domestic relationship^[2] and it was averred that the offence is a domestic violence offence.^[3]
4. [4]
   It was alleged in the contempt application that Mr Wood sent a number of emails to staff of the District Court and the Office of the Director of Public Prosecutions (the offensive emails).  These were alleged to have the tendency to undermine public confidence in the administration of justice and to lower the authority of the court.^[4]
5. [5]
   On 11 May 2022, Mr Wood’s criminal matter came before Judge Smith of the District Court for mention.  Mr Wood did not appear.  The offensive emails were tendered.  Judge Smith issued a warrant for Mr Wood’s arrest and referred the emails to the Attorney-General who later commenced the contempt application.
6. [6]
   Mr Wood was arrested pursuant to the warrant.  On 18 May 2022, he appeared before Judge Dick who revoked his bail. 
7. [7]
   On 15 June 2022, Mr Wood’s criminal charge was mentioned before Judge Rafter.  Mr Wood made oral application for a declaration under s 29(7) of the Human Rights Act 2019 that his detention was unlawful.  Judge Rafter adjourned the matter to the next day.
8. [8]
   On 16 June 2022, Mr Wood came before Judge Burnett.  Mr Wood sought referral to this court pursuant to s 49 of the Human Rights Act 2019 of questions which, when properly understood, were:

1. whether or not an application purportedly made pursuant to s 29(7) of the Human Rights Act has been appropriately brought; (question one)
2. whether or not it was lawful for his Honour Judge Rafter yesterday [15 June 2022] to fail to make the decision without delay; (question two)
3. whether or not is was appropriate for his Honour to ask the prosecutor to make an argument with regard to the matter when it should have simply been a case of the facts put to his Honour as to why the bail was revoked and he should have been making a decision on that day - yesterday - as to whether or not it was lawful (question three).

9. [9]
   Judge Burnett made the referral (the Human Rights referral).
10. [10]
    The Human Rights referral came before me on 12 July 2022.  On 13 October 2022, I ordered:

“1. As to the question, ‘Whether or not an application purportedly made pursuant to s 29(7) of the Human Rights Act 2019 was appropriately brought in the District Court’, the answer is, ‘It was not appropriately brought’.

2. The court refuses to answer the questions:

1. (1)
   ‘Whether the District Court was obliged to hear the application purportedly brought under s 29(7) of the Human Rights Act 2019 on the day it first came before the court’; and

2. (2)
   ‘Whether the District Court ought to have given the Director of Public Prosecutions an opportunity to be heard on an application purportedly brought under s 29(7) of the Human Rights Act 2019’.”^[5]

11. [11]
    On 13 October 2022, I granted Mr Wood bail.
12. [12]
    Mr Wood bases the apprehended bias application on the following:

1. I am corrupt, dishonest and a perjurer as a result of my rulings on the Human Rights referral.
2. I dishonestly gave Mr Wood bail in order to avoid an appeal from my decision on the Human Rights referral.
3. In order to determine the apprehended bias application, I would have to assess whether I am corrupt or acted corruptly, and therefore there is a conflict of interest in me hearing the apprehended bias application.
4. Given that I am (on Mr Wood’s submissions) in a position of conflict, I was obliged to report that conflict pursuant to s 89 of the Public Sector Act 2022 and I failed to do so.

Legal principles

13. [13]
    It is well-established that the test for determination of applications for disqualification for apprehended bias is an objective one:

“[whether] 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.”^[6]

14. [14]
    The application of the test is a two-part process.  Firstly, “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”.^[7]  Secondly, there must be a logical connection between that matter and the feared departure from the judge deciding the case on its merits.^[8]

The matters raised by Mr Wood

The allegation that I am corrupt, dishonest and a perjurer in my rulings on the Human Rights referral

15. [15]
    There is no connection between the contempt application and the Human Rights referral.  Mr Wood’s submission was that my determination of the Human Rights referral shows me to be so corrupt, dishonest, etc as to lead the fair-minded lay observer to reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the contempt application.
16. [16]
    Mr Wood made detailed submissions in support of this ground.  In the end though, it amounted to nothing more than any decision which did not determine the referral in his favour therefore rendered me dishonest.
17. [17]
    The Human Rights referral was determined upon the construction of the Human Rights Act 2019.  There was no appeal mounted from that decision by Mr Wood and there is no basis upon which any fair-minded lay observer might apprehend bias by me against Mr Wood.

The allegation that I dishonestly gave Mr Wood bail to avoid an appeal from my decision on the referral application

18. [18]
    The notion that bias is apprehended as a result of granting bail to the party alleging bias is an odd one.
19. [19]
    Bail was Mr Wood’s obvious remedy.  The Human Rights referral was misconceived.  Once the Human Rights referral was determined, I invited Mr Wood to make an application for bail instanta as it had become obvious that he should have bail.
20. [20]
    There is no evidence to suggest that I granted bail in order to avoid appeal upon the determination of the Human Rights referral.  No fair-minded lay observer would apprehend bias against Mr Wood as a result of granting him bail.

In order to determine the disqualification application, I would have to assess whether I am corrupt or acted corruptly, and therefore I am allegedly in a position of a conflict of interest

21. [21]
    What is necessary for me to determine is whether the fair-minded lay observer might reasonably apprehend bias.  It is well-established that question ought to be determined by the judge whose disqualification is sought.^[9]  I was required to determine the issue and I did so.

The allegation that I should have referred the alleged conflict to the “Chief Executive” pursuant to s 89 of the Public Sector Act 2022

22. [22]
    Section 89 provides:

“89 Conflicts of interest—public sector employee

3. (1)
   If a public sector employee has an interest that conflicts or may conflict with the discharge of the employee’s duties, the employee—

1. (a)
   must disclose the nature of the interest and conflict to the employee’s chief executive as soon as practicable after the relevant facts come to the employee’s knowledge; and

2. (b)
   must not take action or further action concerning a matter that is, or may be, affected by the conflict unless authorised by the employee’s chief executive.

3. (2)
   A public sector employee’s chief executive may direct the employee to resolve a conflict or possible conflict between an interest of the employee and the employee’s duties.

3. (3)
   A reference to a public sector employee in this section does not include a reference to a chief executive of a public sector entity.” (emphasis added)

23. [23]
    A judge is not a “public sector employee”.^[10]
24. [24]
    As none of the grounds had merit, the application was dismissed.