Review Pursuant to Constitution Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC981

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ, Cannings J, David J
• Judgment Date: 01 December 2006
• Citation: (2006) SC981
• Docket Number: SCR No 34 of 2005
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC981

Full Title: SCR No 34 of 2005; Review Pursuant to Constitution Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC981

Supreme Court: Kapi CJ, Cannings J, David J

Judgment Delivered: 1 December 2006

SC981

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR No 34 of 2005

REVIEW PURSUANT TO
CONSTITUTION SECTION 155(2)(b)

APPLICATION BY HERMAN JOSEPH LEAHY

Waigani: Kapi CJ, Cannings J, David J

2006: 25 September, 1 December

NATURAL JUSTICE – bias – reasonable apprehension of bias – circumstances in which a Judge’s alleged previous involvement in a matter before a court can give rise to reasonable apprehension of bias.

COURTS AND JUDGES – application to have Judges of Supreme Court disqualified and a new bench appointed on the ground of reasonable apprehension of bias regarding one of the Judges.

Facts

The police charged the applicant with various criminal charges arising out of matters inquired into by a Commission of Inquiry. The District Court decided that there was insufficient evidence to put him on trial and discharged him. The Public Prosecutor sought to present an indictment against him in the National Court under Section 526 of the Criminal Code. The applicant objected but the National Court refused the objection and accepted the indictment. The applicant applied for review of the National Court's decision under Section 155(2)(b) of the Constitution. That application was heard by the Supreme Court, constituted by three Judges, which reserved its decision. Eight months after the hearing, while the judgment was pending, the applicant filed a notice of motion to have the three Judges disqualified and a new bench appointed on the ground of reasonable apprehension of bias on the part of one of the Judges. It was argued that the Judge in question was the Counsel to the Ombudsman Commission at the time that the Commission of Inquiry referred a number of matters relating to the applicant to the Ombudsman Commission for further investigation; and that the Judge would have had prior knowledge of the allegations against the applicant and that a reasonable person would consider that that Judge may not bring an impartial and unprejudiced mind to the resolution of the questions in issue in the Supreme Court. This is a ruling on the applicant's motion to have the three Judges of the Supreme Court disqualified.

Held:

(1) For a Judge to be disqualified from hearing a case on the ground of apprehended bias the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible? (Boateng v The State [1990 PNGLR] 342, PNG Pipes Pty Ltd and Sankaran Venugapal v Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC592 applied.)

(2) The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.

(3) General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with that subject matter in a judicial capacity.

(4) If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge's knowledge and the issues for adjudication in those proceedings, eg if the Judge has expressed a prior opinion on the issues for adjudication.

(5) In the present case, the Judge in question had only a general knowledge of the subject matter of the criminal proceedings against the applicant and had not expressed any prior opinion on those proceedings or on any issues set down for determination in the Supreme Court.

(6) There was insufficient connection between the Judge's knowledge and the subject matter of the Supreme Court proceedings. Furthermore the matters on which the Judge was required to adjudicate were issues of law and did not involve determination of any questions of fact.

(7) A party and his counsel have a duty to expeditiously bring an application to disqualify a Judge from dealing with a case, immediately after the facts said to support an alleged suspicion or apprehension of bias are known.

(8) A Judge has a duty to bring any matter that may give an impression of apprehended bias to the attention of the parties.

(9) In the present case, a reasonable and fair-minded person knowing all the relevant facts would not have a reasonable suspicion or apprehension that a fair hearing was not possible by the Judge in question. The applicant did not act expeditiously and the Judge did not breach the duty to bring matters concerning an impression of apprehended bias to the attention of the parties. No good reason existed for the Judge to be disqualified. It was unnecessary to consider the question whether the other Judges should be disqualified.

(10) Accordingly the motion was dismissed.

Cases cited

Boateng v The State [1990] PNGLR 342

Gobe Hongu Limited v National Executive Council & Others (1999) N1964

PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (1998) SC592

Webb v R (1994) 181 CLR 41

Counsel

J Griffin QC & L Damena, for the applicant

C Manek & P Kelly, for the State

1 December, 2006

1. BY THE COURT: By a notice of motion filed on 25 August 2006, Herman Joseph Leahy (the applicant) applied for orders (1) that the further hearing and determination of SCR 34 of 2005 by this Court be vacated and (2) that SCR 34 of 2005 be listed for hearing and determination before a differently constituted Court on the basis of apprehended bias on the part of Mr Justice Cannings (Cannings).

2. The background to this application may be briefly described as follows. On 25 July 2003, the police charged the applicant with conspiracy to defraud the NPF of K2.6 million contrary to Section 407 of the Criminal Code and misappropriation of K70,000.00 contrary to Section 383A of the Criminal Code. After about 14 months of committal proceedings, the District Court on 21 September 2004 decided under Section 100 of the District Courts Act that there was insufficient evidence to put the applicant on trial.

3. On 16 May 2005, the Public Prosecutor presented an indictment under Section 526 of the Criminal Code (commonly called an ex-officio indictment) in the National Court at Waigani before Mogish J. The applicant objected to the indictment on various grounds. On 8 June 2005, Mogish J, in a written decision, refused the objection and accepted the indictment.

4. The applicant sought judicial review of Mogish J's decision under Section 155(2)(b) of the Constitution (SCR 34 of 2005). This Court heard the judicial review on 1 December 2005 and reserved its decision.

5. Before the Court handed down its decision, lawyers for the applicant wrote to the Chief Justice in a letter dated 31 July 2006 and expressed concerns of apprehended bias on the part of Cannings and sought to disqualify the whole Court and have the judicial review heard before a differently constituted Court. The Chief Justice directed that this type of application should be made in open court.

6. As a consequence of that direction the applicant filed the notice of motion on 25 August 2006.

7. The following issues were directed to be argued in the motion:

1 What test is to be applied in determining whether apprehension of bias is satisfied in relation to a Supreme Court Review?

2 Whether the test to be applied should be if the circumstances were such as to give rise, in the mind of a party or in the mind of a fair-minded and informed member of the public, to reasonable apprehension of a prejudiced mind or lack of impartiality on a Judge's part?

3 Whether applying the relevant test for apprehended bias, the Honourable Justice Cannings should be disqualified from any further involvement in the Supreme Court Review?

4 Whether, if the Honourable Justice Cannings should be disqualified from any further involvement in the Supreme Court Review, the other members of the Court should also be disqualified from proceeding any further with the Supreme Court Review?

5 Whether, in all the circumstances, it is appropriate that:

(a) the further hearing and determination of SCR No 34 of 2005 by the Honourable Justice Sir Mari Kapi, the Honourable Justice Cannings and the Honourable Justice David be vacated?

(b) SCR No 34 of 2005 be listed for hearing and determination by different Justices of the Supreme Court?

8. The parties do not dispute the principles that are applicable. The Supreme Court considered the relevant principles in PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (1998) SC592:

It is useful and instructive to refer to similar cases and statements of principles in overseas jurisdictions, which may be of assistance. The first such case referred to and relied upon by the appellant as persuasive authority is an Australian Federal Court case of Trustees of Christian Brothers v Cardone (1995) 130 ALR 345.

The respondent was a student at a school owned and operated by the appellants and was injured whilst at the school. The respondent sued the appellants for damages for negligence. The trial judge was a former pupil of the school and was chairman of the school...