R v Kay; Ex parte Attorney-General (Qld)

This matter addressed the question, referred to the Court of Appeal under s 668A Criminal Code by the Attorney-General, of whether a judge, when refusing to recuse him/her self, must give reasons for so doing which are sufficient to allow a fair-minded lay observer to appreciate why that observer could not reasonably apprehend that the judge may not bring an impartial mind to the performance of his or her duties.

The respondent was charged on indictment with one count of serious animal cruelty contrary to s 242 of the Criminal Code.

The background to the matter was somewhat convoluted. During pre-trial hearings, pursuant to s 590AA Criminal Code it was ruled that evidence of certain footage which was said to show the respondent’s conduct in the training of greyhounds for racing was admissible in his trial. [10]. Contemporaneously, in a separate s 590AA application in a similar trial, another judge ruled similar evidence was inadmissible, excluded other evidence, held that there was no case to answer and discharged the defendant over the prosecutor’s objection. [11].

As it transpired, the trial was ultimately allocated to the second judge. The prosecutor applied for the judge to recuse himself due to a reasonable apprehension of bias because of his rulings in the other application. [12].  The judge made a ruling and direction that he would try the matter the following day but provided no reasons for dismissing the prosecutor’s application, simply stating:

“I see no problem in my hearing this matter.  Trial will start tomorrow.” [3].

The respondent argued that the Attorney-General’s reference under s 668A was invalid since there was no point of law referred to the court, but “simply something akin to a discretionary decision made by the judge”. [23]. The Court of Appeal disagreed, stating:

“However the Attorney?General has not referred to the court the question of the correctness of the judge’s ruling and direction.  Advice is not sought from this court about whether the judge should have recused himself.  The subject of the reference is a question of whether the judge should have given reasons for refusing an application for recusal which are sufficient in the particular sense described in the reference.  That is a point of law, involving as it does a question of the content of the judge’s duty”. [23]. (see Commissioner of Police v Stehbens [2013] QCA 81 at [6].)

The issues raised by the matter were numerous and all of procedural importance: whether the judge’s ruling was a ruling or direction “as to the conduct of the trial”; whether the reference amounted to a question of law of “general application and importance” (see R v PV; Ex parte Attorney?General (Qld) [2005] 2 Qd R 325, 326 [5]); and the extent (if any) of reasons which needed to be provided by  a judge, when refusing to recuse himself or herself.

In relation to whether the reference raised a point of law of general application and importance, the respondent argued that that was not the case, and instead the question simply raised what the judge should have done in the particular facts and circumstances of the case.  The court did not accept that argument, preferring the view that the amended reference defined the point of law in terms which were not limited to the present case but rather would be of general application. [24].

With regards to the obligation to provide reasons in the specific context of the question raised by the reference, the court took the view that its answer needed to be that that depends upon the circumstances, and that the question was unable to be answered in the affirmative for a case where the decision to refuse the application was wrong. [33]. In addressing the reference, the court made the important point that no definitive test exists by which the adequacy of reasons is able to be assessed, except to say that they should be adequate to serve the purposes for which reasons for judgment are required, as one or more of those purposes apply to the particular case [34]: see Wainohu (2011) 243 CLR 181, 215 [56].

In the result, the court elected to answer the question raised by the reference as “not in every such case”. [38].