Primary failure
WA beak Kevin Taverner was hauled over the coals for errors in determining an assault charge against an Aboriginal mother who had resisted having her children taken from her.
Taverner failed to take into account the provisions of the Evidence Act (ss39 ff) regarding a request for a direction in family violence cases.
As a result, on appeal he received a fearful bollicking from Justice Amanda Forrester.
Forrester did not spare the rod:
109. In referring to the arrangements in this manner, it is impossible to avoid the impression that his Honour considered the taking of the children to be little more than a day‑to‑day aspect of the matter.
However, at no point in his reasons did the learned magistrate consider the submission that, in circumstances in which the appellant had previously been denied access to her children by the complainant, the complainant’s ‘collection’ of the children, combined with the threat that she would never see her children again, was far from day‑to‑day, but actually constituted family violence.
110. In my view, in the absence of such consideration, the learned magistrate’s reasoning was inconsistent with the provisions of s 39F(1)(a)(i) and s 39F(2)(b) [of the Evidence Act].
[snip]
132. The learned magistrate’s reasoning was, in material respects, inconsistent with the provisions of s 39F. Primarily, his Honour failed to identify the aspects of the appellant’s account as to the relationship background which raised an issue as to whether she was a victim of family violence, namely psychological abuse.
Had his Honour done so, he would then have been prompted to examine more closely the impact of the particular conduct of the complainant not only on the night in question but also in the preceding months, when considering whether the conduct constituted sufficient provocation to the appellant for her assault upon the complainant.
133. The learned magistrate’s reasoning, which was inconsistent with the principle that there is no typical, proper or normal response to family violence, necessarily flowed from this primary failure.
Ouch.
Roaming far and wide
In 2019 Judge Sandy Street had a bad back and was in the habit of standing during migration hearings. He also paced around, moving in and out of range of the microphone while composing his thoughts.
His oral reasons for judgment were often “off mic” and not properly recorded. He didn’t always get around to settling his oral reasons quickly enough, which made things very troublesome for appellants who needed to understand his judgments.
It happened in BLG19 v Minister for Immigration where, on appeal to the Federal Court Justice Scott Goodman explained:
19. An audio recording of the oral reasons was made, but that recording did not capture all that the primary judge said. In this regard, I was informed by senior counsel for the minister that during the delivery of his reasons for judgment the primary judge was not sitting in his chair, and was pacing, standing and moving away from the microphone.
20. A transcript of the recording was produced and placed onto a judgment template of the Circuit Court. That transcript has a series of ellipses which represent gaps where the words that were spoken were not transcribed. Consistent with order 4, the transcript (in the form of the incomplete judgment) was made available to the parties but was not settled by the primary judge.
21. Subsequently, and at the request of the Minister, the transcript provider for the Circuit Court produced a further transcript of the audio recording in which some (but not all) of the gaps in the original transcript were filled. I have admitted this revised transcript into evidence over the objection of the appellant, as it provides evidence of the oral reasons stated by the primary judge …
Goodman, allowing the appeal, concluded:
“The circumstances of the present case cannot but leave an impression that justice has not been done.”
In Minister v AAM17, Justice Debra Mortimer (as she then was) tried to iron out the problem of Sandy Street’s settled reasons being delivered after the expiry of the appeal period.
“… there is no way for this court to know if the two sets of reasons were the same. If they were, it is difficult to understand why it took the Federal Circuit Court more than two months to publish its formal reasons. However, there may well be other explanations for that kind of delay. The point of procedural fairness lies in the fairness of the process …
The denial of procedural fairness by the Federal Circuit Court is clear, and serious.”
The High Court also looked at it and decided in reasons written by Justice Simon Steward that there had been no denial of procedural fairness.
BLG19 v Minister for Immigration
The Yes note
A WA court of appeal majority, Peter Quinlan CJ and Sam Vandongen JA, were unhappy with the District Court’s Linda Petrusa.
Linda had failed to disclose to counsel or the accused in a child sex case that she had answered a question from the jury just before it delivered its verdict.
The note asked whether sexual conduct included indecent dealing and sexual penetration. The judge simply wrote on the note, “Yes”, and sent it back “to avoid the need for reconvening”. This was a question about the legal content of an element of the offence charged.
“In our view, the learned trial judge’s failure to disclose to the appellant’s counsel the existence and precise contents of the jury note in a timely manner, before the jury had indicated that they had reached a verdict, and the resultant failure to afford the appellant’s counsel the opportunity to make submissions bearing upon the future conduct of the trial, amounted to a failure to accord procedural fairness.”
The next finding was that this was a substantial miscarriage of justice. Appeal upheld. No new trial. Judgment of acquittal entered.
Smith v The State of Western Australia
Dental work
It was the turn of Justice Stewart Anderson of the FCA to get a trouncing from upstairs in misleading conduct case involving teeth straightening products.
The trial judge was found to have made multiple errors, including a failure to to give proper reasons.
Invisalign made detailed submissions about the general unreliability of evidence presented by an American market research firm. However, HH did not give adequate reasons about the research report prepared by a Mr Cristofaro.
“… by not dealing with Invisalign’s serious and substantial submissions about why no weight should be given to Mr Christofara’s evidence, his Honour did not, with respect, discharge that obligation.”
Invisalign Australia Pty Ltd v SmileDirectClub LLC
Helpless
Back to Judge Sandy, and this time a whacking on appeal from Justice Elizabeth Raper in a migration case, AHD20.
Sandy had dismissed at a show cause hearing an application for review, by an self-represented appellant, of a decision of the Immigration Assessment Authority affirming a decision not to grant a protection visa.
New information had been put before the authority and the minister’s request for an adjournment had been refused by the judge.
It’s familiar stuff. The refusal was a denial of procedural fairness:
“It is apparent from the transcript that the primary judge did not discharge his duty in the manner required of him and, as correctly conceded by the Minister, ground 4 is made out to the extent that the court, when exercising the discretion, did not assist the appellant sufficiently to ensure that the arguments about the arguable legal error could be properly developed (the IAA’s approach to the appellant’s new information in light of the holding in AUS17) and the ability of procedural mechanisms (such as adjournment or the ability to put on submissions) to assist the appellant in being able to present his case.”