R v Van Hoang [2002] NSWCCA 128 (8 April 2002)

Last Updated: 23 April 2002

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Van HOANG [2002] NSWCCA 128

FILE NUMBER(S):

60124/01

HEARING DATE(S): 8/4/02

JUDGMENT DATE: 08/04/2002

PARTIES:

Van HOANG (Appellant)

Regina

JUDGMENT OF: Ipp AJA Bell J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0723

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:

LMB Lamprati (Crown)

DJ Brezniak (Appellant)

SOLICITORS:

SE O'Connor

I & T Solicitors (Appellant)

CATCHWORDS:

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985

DECISION:

Application for leave granted

Appeal allowed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60124/01

IPP AJA

BELL J

SMART AJ

8 April 2002

REGINA v VAN SINH HOANG

Judgment

1 IPP AJA: I will ask Justice Bell to deliver the first judgment in this matter.

2 BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the Sydney District Court on 23 February 2001. The applicant was convicted of two offences brought pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"). The first offence charged him that on 2 February 2000 he knowingly took part in the supply of a prohibited drug (350 grams of heroin). The second offence charged the applicant that on 31 March 2000 he knowingly took part in the supply of a prohibited drug (700 grams of heroin). The maximum penalty in respect of offences contrary to s 25(2) of the DMT Act is one of 20 years imprisonment and/or a fine of $385,000.

3 The sentence hearing took place on 14 February 2001. An incomplete transcript of the proceedings on that day was included in the appeal papers.

4 Mr Brezniak, who appears on behalf of the applicant, relies on the affidavit of his legal assistant, Suzanne Lois Gow which annexes a transcript of the balance of the proceedings before the court on 14 February 2001. There was no challenge to the accuracy of that transcript.

5 After the Crown closed its case, Mr Bellanto QC tendered a report from Doctor Roberts, psychiatrist, dated 16 November 2000. Mr Bellanto closed the applicant's case noting that he did not propose to call oral evidence.

6 In the course of submissions there was an exchange between the judge and Mr Bellanto concerning a hearsay assertion contained in Doctor Roberts' report. Dr Roberts recited the applicant's account that he expected to receive only a small sum of money, in the order of $500 - $600, for his role in the offences. In this context the transcript records:

"Bellanto: Well they are isolated in the broad sense of the term. Isolated in the sense that for most of his adult life there is no activity like this. Then in the space of two months he is involved on two separate occasions, now in the context of his life, his adult life, they are isolated and we ask your Honour to view them as really one episode. So that for this man the reward of $500.00 is a lot of money bearing in mind his life style, his needs, his general way of life, for a big time drug dealer supplier who drives a fancy car and lives in a luxurious home, obviously it is peanuts, but it is all relevant your Honour and this is why it is significant for him, it was an opportunity to perhaps elevate himself out of the fairly depressing life style that he was living, so that was his motivation, and that is why it is relevant for him that it was only $500.00 or may be $600.00 so although your Honour perhaps understandably may be somewhat sceptical of that, nevertheless it is not.

Judge: Well I have learnt over the years not to believe anything that drug dealers say unless somebody corroborates it in some way are notoriously unreliable and dishonest group of people, it is my experience of them. Well they lie, they cheat, they murder. There is nothing you can say about them that there is any suggestion of any value at all.

Bellanto: It is unfortunate that your Honour holds that view because I don't think you Honour can bring an impartial mind to sentence, if your Honour holds that view.

Judge: Why?

Bellanto: Because your Honour has already stated categorically that my client is a potential murderer, he cheats.

Judge: I did not say he is a potential murderer at all.

Bellanto: Your Honour just said that I don't believe anything drug dealers do.

Judge: I have learnt over the years I said.

Bellanto: Well, your Honour.

Judge: I said I don't believe anything drug dealers have said, included amongst their ranks, are liars, cheats and murderers.

Bellanto: Well your Honour.

Judge: I did not say your client was a murderer or would be murderer and I decline any application that you may that I disqualify myself.

Bellanto: Well I think I made my point.

Judge: Well you made your point and if I am wrong you can go to the Court of Criminal Appeal and suggest to them that I should have disqualified myself, but I decline to do it. I make no claim at all that your client is a murderer, or would be murderer, nor do I say that he is a liar. What I am saying is, I will view with great scepticism what he says as to receiving only $500.00. However, I have not read all the facts, I will look at it very carefully. There may be something there that supports what he says.

Bellanto: Your Honour has already made ...

Judge: But I am sceptical. Now if you want to, and I am putting this to you, so that you can, if you wish, refer me to anything, in any of the facts, any of these documents that shows that scepticism is unfounded.

Bellanto: Well your Honour, quite frankly, I don't see why I should ...

Judge: There is some statement here that shows that what he says is obviously true, please refer me to it.

Bellanto: Your Honour I don't see why I should come into Court in pleading mitigation for a person.

Judge: Yes.

Bellanto: Confronted with the hurdle that I have to prove something contrary to your Honour's basic assumption. Now the whole proceedings is getting off the wrong footing here. Your Honour is imposing upon me an onus to prove matters.

Judge: You are putting up matters of mitigation. Well they are matters for you to establish, not the Crown.

Bellanto: But they should be done of a level playing field.

Judge: What's a none (sic) level playing field?

Bellanto: Your Honour is making it very difficult for me because ...

Judge: Because I am asking you to direct me to anything that will help substantiate your client's claim that he received and intended to receive nothing more than $500.00, well apart from his own claim of that is so.

Bellanto: Your Honour I can't, well unfortunately, in these cases evidence doesn't always learn large like beacons flashing that assist the defence, I mean we can only go, or I can only put to the Court what my instructions are and any evidence that bears that out.

Judge: I will take into account what you say. What I am saying is the very point that you just mentioned and any evidence that bears it out, I am inviting you to point out to me to any evidence that bears it out from time to time there is evidence that bears things out. Not having read the material I don't know."

7 In written submissions Mr Bresniak, contended as his first ground of appeal that the sentencing proceedings miscarried. It was submitted that a fair-minded lay observer might reasonably apprehend that the sentencing judge may not have brought an impartial mind to bear on the submissions and the report tendered on behalf of the applicant by reason of the expression of the views set out above.

8 The principles concerning the appearance of bias are conveniently stated in the joint judgment of Gleeson CJ, Gaudron, McHugh and Gummow JJ in Johnson & Johnson [2000] HCA 48; 201 CLR 488 at 492 [11] and [12]:

"It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41].

That test has been adopted, in preference to a differently expressed test that has been applied in England [cf Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451] for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done [cf R v Sussex justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ]. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision" [R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 263, per Barwick CJ, Gibbs, Stephen and Mason JJ]. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is `a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial [Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585, per Toohey J]'".

9 The Crown Prosecutor submitted that it was necessary to evaluate the applicant's challenge by reference to the stage in the proceedings in which the exchange between the judge and Mr Bellanto took place. The applicant's case had been closed. He did not give evidence on his own behalf. The only material tendered in his case was the report of Doctor Roberts. Save for the hearsay assertion set out in the penultimate paragraph of page 8 of that report, there was no evidence of the applicant's claim to have had an expectation of a modest financial reward for his involvement in the offences. In these circumstances, in the Crown Prosecutor's submission, the proper course for the sentencing judge was to accord little weight to this claim. I am not persuaded that the applicant's challenge can be disposed of in this way.

10 It was entirely proper for the sentencing judge during the course of submissions to air his view that the claim advanced was one that he would have difficulty in accepting, it being somewhat implausible. However, his Honour went beyond such an indication observing that he had learnt over the years not to believe anything that drug dealers say and that drug dealers are notoriously unreliable and dishonest. His remarks might be taken to have conveyed a state of mind that he would not accept the applicant's account by reason of views that he held concerning drug dealers as a class.

11 His Honour did go on to indicate that he had not read all of the facts. He said that he was prepared to look at the material carefully and that there may be something in the material which supported the account which the applicant had given to Doctor Roberts. However, it remains that his Honour's comments on their face conveyed that this applicant started off with the disadvantage that his account was not to be believed, he being a drug dealer.

12 In the ordinary course, when a sentencing judge indicates a disposition to treat with scepticism a hearsay assertion contained in a report one might expect counsel to give consideration to applying to reopen the offender's case in order to lead oral evidence in support of the claim. When one looks at the tenor of the exchange between the judge and Mr Bellanto, it might be thought understandable that no such application was made in this case. His Honour's comments suggested that he would not have been disposed to accept the evidence of the applicant, in the absence of corroboration, because of his view that all drug dealers were dishonest.

13 In the circumstances, I consider that the applicant has made good his challenge that the sentence proceedings miscarried and accordingly I would propose that the application for leave to appeal be granted and that the appeal be allowed.

14 IPP AJA: Had the sentencing judge expressed strong scepticism about the proposition that the applicant had been involved in the drug dealing with a view to earning only some $500, no-one could have criticised his Honour's remarks.

15 The judge, however, by stating that he had learnt over the years not to believe anything that drug dealers say, unless it was corroborated by someone else, made it quite clear that nothing the applicant had said or would say would be believed by him (unless it was corroborated). He expressed that conclusion, not on the basis of any matters pertaining to the particular circumstances of the applicant, but because of his generalised view of drug dealers.

16 The system of justice in this country works on the basis that each individual is entitled to individualised justice. Judges are required to be neutral and impartial. An expression of opinion that all drug dealers lie, is not an expression of judicial neutrality and impartiality.

17 It is not to the point, in my opinion, that there was little prospect in any event of an unprejudiced and impartial judge believing the applicant. The fact is that, from what the judge said, a fair-minded observer would probably believe that he held views that were biased against the class of people into which the applicant fell, and, in consequence, the applicant would not receive a fair hearing.

18 In this way the sentencing proceedings miscarried. His Honour offended the principle laid down in Johnson & Johnson (2000) 201 CLR 488-492.

19 For those reasons and the reasons expressed by Bell J, with which I am in entire agreement, I agree with the orders proposed by her.

20 SMART AJ: I agree with those judgments that have been delivered. It was open to the judge to express the view and place counsel on notice that the court may well place little or no weight on the hearsay material complained of in Doctor Roberts' report. Indeed, I would have expected that. In practice, the expression of such a view often leads to an accused being called, even after addresses have commenced.

21 In the light of the judge's stringent remarks, counsel for the accused could not contemplate calling the accused. Apart from this, the disposition exhibited by the judge leads to the view that the judge was proposing to deal with the applicant on general views held by him adverse to the applicant.

22 As to the complaint no application was made to the judge to discharge himself, the judge made it clear that such application had no prospect of success and that the applicant's recourse lay in this Court.

23 I agree with the order proposed.

24 IPP AJA: The orders of the Court will then be as proposed by Bell J.

25 The order of the Court will then be that the matter is remitted to the District Court for sentencing afresh by a different judge.

oOo

LAST UPDATED: 22/04/2002