FEDERAL COURT OF AUSTRALIA

Robinson v Commissioner of Police, New South Wales Police Force [2013] FCA 1294

THE COURT ORDERS THAT:

1.    The proceeding be removed from the docket of Yates J.

2.    The costs of the applicants’ interlocutory application referred to in the reasons published today be the respondent’s costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicants have made an application that I remove myself from hearing this proceeding. On 23 October 2013, I made an order that an email sent to the Court by the first applicant, Mr Robinson, on 20 October 2013 (seeking my removal) stand as the applicants’ interlocutory application seeking that relief. That order should be seen in the following context.

Background

2    On 15 August 2012, following a judgment in an earlier proceeding in which I dismissed the applicants’ claims with costs (Robinson and Another v Commissioner of Police, NSW Police Force (2012) 292 ALR 702) (the earlier proceeding), the second applicant, Ms El Masri, wrote to the Court seeking my removal from hearing the present proceeding. At a subsequent directions hearing on 3 December 2012, I made it clear that, if either Mr Robinson or Ms El Masri wished to seek my removal from hearing the proceeding, it would be necessary for them to proceed formally by filing an interlocutory application seeking that relief. No such application was filed.

3    At a directions hearing on 28 August 2013, Ms El Masri complained that I had acted unfairly and was biased, after I had made a direction with which she disagreed. On that occasion, I informed her repeatedly that, if she wished to seek my removal, she should proceed formally by filing an interlocutory application seeking that relief. No such application was filed.

4    Given the applicants’ apparent unwillingness to file any interlocutory application seeking my removal from hearing the proceeding, I formed the view, on receipt of Mr Robinson’s email of 20 October 2013, which I have marked MFI 1, that the question of my removal should be formalised by that document and determined.

5    The respondent has appeared on the application and assisted the Court by providing written submissions on the relevant legal principles and on how those principles should be applied in the present case. I have marked those submissions MFI 3.

6    On the day before the hearing of the application, Mr Robinson forwarded a document to the Court setting out his reasons for seeking my removal. I have marked that document MFI 2. Mr Robinson and Ms El Masri also advanced oral arguments at the hearing of the application.

The submissions

7    Notwithstanding the terms of MFI 1, Mr Robinson confirmed in the course of his oral address that the submissions he wished to advance in support of the application were those contained in MFI 2, the substantive parts of which are as follows:

1.    You intentionally prevented me from providing solid evidence which could benefit the outcome for my case that was already before you.

2.    The police defence prepared the paperwork on my behalf before federal court. That according to the law is biased.

3.    You were being biased from your own words as stated in the transcript: “I cannot allow this evidence to proceed because the evidence is not related to the case that is current before me”. This was back in 2010.

4.    Now the current proceedings have to proceed with the new evidence that was thrown out and was determined by you that it was unrelated. You have intentionally broken the pattern of evidence of the behaviour of the state police of NSW, with the help of Ms Isthmer.

5.    In all fairness of all that, I have all the transcripts to present before you if you want to set it down for a hearing. I can show you the evidence of the case that was thrown out which you already known that. Therefore I have lost all faith in you as a federal judge to deal with my legal matters.

6.    Allowing another party to run my proceedings while you know the other party has something to gain from it. According to the law this is illegal.

7.    This matter before you has evidence of my attempted murder investigation which was corruptly closed by NSW police because it shows a direct link to the attempted murder.

8    Mr Robinson’s elucidation of these submissions in oral address revealed that they are largely directed to rulings I made in the earlier proceeding on 23 September 2011 when I rejected, in advance of the hearing for final relief, certain evidence which the applicants had intended to adduce in support of their then claims: Robinson v NSW Police Service [2011] FCA 1081.

9    The earlier proceeding was confined by s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) to the ambit of a complaint that had been terminated by the Australian Human Rights Commission (the Commission) by notice under s 46PH(2) of the AHRC Act (the first terminated complaint). The affidavit evidence on which the applicants proposed to rely in the earlier proceeding included evidence relating to alleged unlawful discrimination that was not the same as (or the same in substance as) the alleged unlawful discrimination that was the subject of the first terminated complaint and did not otherwise arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the first terminated complaint. For this reason, I rejected that proposed evidence as irrelevant.

10    In the course of so doing, it became clear that the applicants’ points of claim purporting to define the issues for resolution in the proceeding raised facts, matters or circumstances of alleged unlawful discrimination that were not the subject of the first terminated complaint. I therefore granted leave to the applicants to file amended points of claim to limit their claims to the subject of the first terminated complaint. The amended points of claim were filed on 14 December 2011. Although there was some dispute at the commencement of the hearing of the earlier proceeding on 19 December 2011 about the ambit of the amended points of claim, the hearing nevertheless proceeded on the basis of them.

11     On about 8 September 2011, the applicants made a second complaint to the Commissioner. This complaint was terminated on 24 November 2011 (the second terminated complaint). The second terminated complaint is the subject matter of the present proceeding, which was commenced on 14 December 2011, within three business days before the commencement of the hearing of the earlier proceeding. It relates to the facts, matters or circumstances alleged by the applicants which I rejected as irrelevant to the first terminated complaint.

12    At a directions hearing on 30 November 2011, the applicants informed me that the second complaint had been terminated by the Commission. Although the present proceeding had not even been commenced, Ms El Masri sought to have the applicants’ claims in respect of the second terminated complaint heard at the same time as the earlier proceeding dealing with the first terminated complaint. Specifically, she inquired whether there was any way of “rejoining these allegations raised within these proceedings”. I refused that application, substantially on the basis that the hearing of the earlier proceeding dealing with the first terminated complaint had been set down for some time and was imminent. It is important to bear in mind that, by 23 September 2011, the evidential ambit of the applicants’ case for the trial commencing on 19 December 2011 had been fixed. As a practical matter, acceding to Ms El Masri’s request, in respect of a proceeding yet to be commenced, would have required me to vacate the appointed hearing of the earlier proceeding. This must have been appreciated by the applicants at the time that Ms El Masri made her request: see, in that connection, [21] and [22] below. I was also mindful, and told Ms El Masri, that hearing the earlier proceeding dealing with the first terminated complaint might well determine various legal issues of significance for any new proceeding which the applicants might commence dealing specifically with the second terminated complaint. In all the circumstances, I was not prepared to vacate the hearing of the earlier proceeding.

13    The hearing of the earlier proceeding duly commenced on 19 December 2011 and occupied substantially the estimated duration of three hearing days. On 20 July 2012, I gave judgment in that proceeding, after giving the applicants, at their request, a substantial period within which to file written submissions in reply. As I have noted, I dismissed the proceeding, with costs.

14    On 20 June 2013, the applicants’ appeal from that judgment was dismissed by a Full Court, with costs: Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64. The applicants applied to the High Court for special leave to appeal from the Full Court’s judgment. That application, however, was deemed to have been abandoned on 19 August 2013.

15    In the course of the appeal before the Full Court, the applicants argued that I had wrongly denied them the use of evidence and documents which they contended formed part of the first terminated complaint. The Full Court dealt with that contention at [189]:

189     There is a general complaint as to misconstruction of the scope of the complaint which was reinforced repeatedly through the appellants’ submissions. It is quite clear that the scope of the complaint that was before the Court was properly confined to the issue which had been terminated before the Commission or matters similar to those issues. No appellable error is shown.

16    Earlier, the Full Court held (at [167]):

167     The appellants have argued that the primary judge should have considered a broader ranging form of discrimination than that on which they expressed or relied. That was not a course open to his Honour in the way the complaint before him was conducted. As is made clear on the appeal by senior counsel for the Police Commissioner, the [Disability Discrimination Act 1992 (Cth)] is not a law which looks at discrimination at large. The DDA is specific to the circumstances which fall for consideration. Moreover, s 42PO(3) of the AHRC Act provides that a Federal Court action arising out of a terminated complaint to the Commission must be the same unlawful discrimination (or the same in substance) as that which was the subject of the terminated complaint. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness.

17    In the course of oral argument in the present application, Mr Robinson said that the earlier proceeding “was a bit unfair”. He also said that “there was a bit of bias involved in the matter all out through the proceedings”. Mr Robinson did not elaborate on these matters beyond referring to my rejection of evidence that was irrelevant to the first terminated complaint and, perhaps, his disappointment with the result of the earlier proceeding. When I asked Mr Robinson why my rejection of the irrelevant evidence in the earlier proceeding raised a reasonable apprehension of bias, he said:

Your Honour, I’m going to be quite frank with you. I just feel I was treated unfairly in the prior proceedings, in a number of times. That’s what I – after going through the transcript and seeing what evidence was allowed or what I could have won the case on and how it went down, I think, your Honour, I don’t know – look, I just think I have been treated very unfairly. That’s – I’m sorry, your Honour.

18    In the course of her oral address, Ms El Masri advanced the same argument:

… your Honour, I did outline in the initial letter when I made the application – when these proceedings – with all fairness, I mean, you heard evidence in an interlocutory application made by the police to remove – to make our evidence inadmissible. So basically that evidence was presented before you, your Honour; you considered it; you had that evidence before you and you chose to eliminate that evidence in the initial application that was made in the first proceeding. Now, when you took upon that decision, your Honour, Ms Eastman said to you that, “Well, basically, that didn’t form part of the initial Human Rights application,” and you agreed with her and you said, “Okay. Well, that should be separated from the initial application,” which we opposed because we did outline a lot of those issues in the initial application to the Human Rights Commission.

So, therefore, we were forced to take the avenue to make a fresh application to the Australian Human Rights Commission to have that evidence heard in court. …

19    In this connection, she also argued:

Now, I had all this evidence together and it shows a direct link to the police behaviour from one officer to another, from different police stations under different local area commands with the same pattern of behaviour. When you eliminated all that evidence in the initial application it was a slap in the face because that automatically broke that chain showing the pattern of behaviour of the officers mistreating him step by step. Now, they are saying, “Okay” – and you are saying in this proceeding, “Well, it’s all related now and we should all,” you know – so, therefore, in their belief it should be dismissed like their original application. We are saying that it should have been together initially anyway. And you choose to deal with this application in a separate proceeding which was – it’s totally separate to the first one.

20    In my view, my rejection of evidence as irrelevant to the first terminated complaint – a course with which the Full Court found no error – could not conceivably provide a proper basis for my removal from hearing the present proceeding.

21    Ms El Masri also advanced what appears to be a separate argument. She said:

… Now, before the initial hearing did proceed, the first hearing in December 2011 before you, it was brought to your attention that a determination was made by the Australian Human Rights Commission and we had the opportunity to adjourn the hearing prior to that hearing date, and – or proceed with the initial evidence, which they had been served with. That would have saved taxpayers’ money, that would have saved the court’s time. So basically, we didn’t have to go through the whole process. …

22     This argument appears to suggest that an apprehension of bias was manifested by my not vacating the appointed hearing of the earlier proceeding to enable the applicants to commence the present proceeding so that, at some future date, the two proceedings could be heard together. If that argument was intended to be put, I reject it. Proceeding with the hearing of the earlier proceeding was purely a case management decision taking into account the prescriptions of s 37M of the Federal Court of Australia Act 1976 (Cth). The earlier proceeding had been set down for hearing for some time. It related to discrete facts and events as confined by the ambit of the first terminated complaint. There had been a hearing to determine the scope of the applicants’ evidence and rulings had been made. There was no sound reason for the hearing not to proceed as set down. At the time that I made my decision to proceed with the hearing of the earlier proceeding, the applicants had not even commenced a new proceeding based on the second terminated complaint, although I accept that it was their intention to do so.

23    The matters advanced by the applicants do not provide a proper basis for my removal from hearing the present proceeding.

24    However, in written submissions, the respondent drew to my attention some observations I made in my reasons for judgment in the earlier proceeding (my earlier reasons).

25    As I noted at [19] in my earlier reasons, the evidence given at that hearing concerned the circumstances of Mr Robinson’s arrest on 21 March 2009, his conveyance to Liverpool Hospital, and his subsequent conveyance to Liverpool Police Station where he was charged and bailed. The evidence also concerned events involving Ms El Masri and a witness in the earlier proceeding, Detective Senior Constable Mangan (DSC Mangan), in particular, whether DSC Mangan had prevented Ms El Masri from accompanying Mr Robinson, after his arrest, to Liverpool Hospital.

26    In my earlier reasons, I said (at [103]-[109]):

[103]     The conflicting versions of the facts concern the period immediately after Mr Robinson was arrested; the events that occurred at the scene of the arrest after Ms El Masri arrived and Mr Robinson had been taken to Liverpool Hospital; and the events that subsequently occurred at Ms El Masri’s house while DSC Mangan was present. A number of these matters are of a trifling nature. The main area of conflict is whether, at the scene of the arrest, or later at Ms El Masri’s house, DSC Mangan prevented Ms El Masri from following Mr Robinson to Liverpool Hospital (according to Ms El Masri), or whether DSC Mangan told Ms El Masri that she could collect a few essential items and go to the hospital to be with Mr Robinson or remain while a search was conducted at her house (according to DSC Mangan).

[104]     In my view it is not strictly necessary for me to resolve that conflict in order to determine the applicants’ claims. If, however, a different view be taken of that matter, I should record that I am not satisfied that the applicants have established, on the balance of probabilities, that DSC Mangan did prevent Ms El Masri from following the first applicant to the hospital. My reasons are as follows.

[105]     First, Mr Robinson, plainly, could not give evidence about that matter. He was not a party to it. The only witness on behalf of the applicants who could give evidence about that matter was Ms El Masri. However, I have doubts about the reliability of Ms El Masri’s evidence. Generally, her account of events, as given in her affidavit, which stood as her evidence-in-chief, was far from complete. Indeed, her account was minimal, to say the least. It dealt only with the matters I have identified in [65]–[67] above. The balance of her evidence arose from answers she gave in cross-examination. Her evidence in this regard was not always consistent. For example, she said that she walked to the scene of the arrest. Later, she said that she drove to the scene. In general, her answers in cross-examination were difficult to follow because they were not necessarily related, chronologically, to the specific event referred to in the question she was asked. On occasion her answers were given in a somewhat combative way. I have no doubt that she feels that Mr Robinson has been treated unfairly by the police, not just on this occasion but on other occasions. As Mr Robinson’s carer she has taken particular umbrage at the antecedents statement made by DSC Mangan in the facts sheet he prepared, which stated his belief that Mr Robinson had feigned a mental illness. I have no doubt that her concerns for Mr Robinson are real and genuine. However, I am also cautious of the possibility, which I believe to be a real possibility, that she has a heightened sense of what she regards as the unfairness of Mr Robinson being involved with the police in the criminal justice system, which has affected her own perception of events as they concern Mr Robinson and her ability to recount them reliably. For example, in her cross-examination of DSC Mangan, Ms El Masri showed a propensity to link propositions of fact when a linkage did not exist except on the basis of assumption.

[106]     Second, nothing has been advanced by the applicants as to why, objectively, DSC Mangan would want to prevent Ms El Masri from following Mr Robinson to Liverpool Hospital. Certainly nothing was put to DSC Mangan in that regard. Whatever personal views DSC Mangan had at the time about the genuineness of Mr Robinson’s seizure following his arrest on that day, or more generally about the state of his mental health, DSC Mangan was obviously of the view that an ambulance should be called so that Mr Robinson could be taken to hospital to receive whatever treatment was deemed necessary by trained medical staff. There does not seem to be any reason why, in relation to the offences for which Mr Robinson was being investigated, Ms El Masri should not have been present with him at the hospital. Indeed, in light of Mr Robinson’s subsequent aggressive behaviour at the hospital, which resulted in him smashing a window, one could well understand that, on being informed of this, DSC Mangan would suggest to Ms El Masri that she go to the hospital to be with Mr Robinson. One would have thought that, from the perspective of the police, Ms El Masri’s presence at the hospital would have been desirable because, as Mr Robinson’s carer, she might have been able to exert a calming influence on him in what must have been difficult circumstances for the police and the hospital’s staff.

[107]     Third, I was able to closely observe DSC Mangan in the course of his cross-examination by Ms El Masri. He was attentive to her questions and gave his answers in a calm and considered way. He rejected the suggestions that he forbade Ms El Masri from travelling to the hospital or impeded her from doing so. He remained firm in his evidence. Indeed he made clear that, at one point, he even encouraged Ms El Masri to go to the hospital. I have no reason to doubt the general effect of his evidence, but for the contrary evidence given by Ms El Masri. However, for the reasons I have expressed, I have doubts about the reliability of her evidence.

[108]     I do not leave out of account the contradictory evidence given by DSC Mangan about Ms El Masri’s stated intentions either to follow Mr Robinson to Liverpool Hospital or to remain at the house. This casts some doubt on the reliability of that part of his evidence. I accept, however, the general tenor of his evidence that he did not prevent Ms El Masri from following Mr Robinson to Liverpool Hospital. The effect of DSC Mangan’s evidence was that he was concerned to ensure that Ms El Masri did not remove items from the house that might interfere with his investigation of Mr Robinson. He agreed that he had warned Ms El Masri not to interfere with the investigation. I am satisfied that DSC Mangan must have exerted some control over the manner in which Ms El Masri sought to have access to the house and its contents prior to the search warrant being executed. It is entirely possible that, in her own way, Ms El Masri understood this as a constraint on her following Mr Robinson to the hospital. I am not satisfied, however, that DSC Mangan positively prevented her from doing so. If there was any misunderstanding about that matter, it was Ms El Masri’s mistake.

[109]     At this point I should also say something about Mr Robinson’s evidence. It became apparent, very early in his cross-examination, that he had no recollection whatsoever of anything that had happened on 21 March 2009 other than, possibly, what he had subsequently read or had been told, principally by Ms El Masri. His complete absence of recollection stands in stark contrast to the account given in his affidavit, which was sworn less than 7 months before the hearing, but more than 26 months after the events in question. It is true that Mr Robinson said that he had told Ms El Masri things, and I have no doubt that Mr Robinson and Ms El Masri would have discussed the events of 21 March 2009 both on that day and at later times. I doubt, however, that, based on the evidence of his presentation on 21 March 2009, and his evidence in cross-examination, Mr Robinson was capable of giving a coherent and reliable account, at any time, of the events of that day. I am satisfied that his affidavit evidence is essentially a reconstruction, most likely based on what he believes to have happened rather than what, in fact, happened. For this reason I place very little weight on his affidavit evidence. In this state of the evidence I am not prepared to find, for example, that DC Johnson goaded Mr Robinson at Liverpool Hospital, as Mr Robinson recounted in his affidavit. Moreover, for the reasons I have given earlier, I am not satisfied that DC Johnson commented on or discussed Mr Robinson’s medical history with medical staff at Liverpool Hospital.

[Emphasis added]

27    In written submissions, the respondent submitted that the only possibly valid basis for the present application for my removal would be the making of those findings and my accompanying observations. The respondent submitted, however, that those findings and observations were not of a kind that would lead a fair-minded observer to form the view that I might not bring an impartial or unprejudiced mind to the present proceeding. In this connection, the respondent submitted:

The Respondent accepts that careful consideration must be given to paragraphs [104] – [109] of the reasons and whether his Honour’s findings would convey to a fair minded observer an apprehension of bias with respect to the way the Applicants’ evidence might be considered in the present proceeding. Having regard to the approach taken by Kirby P in [Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Others (1992) 26 NSWLR 411] … the Respondent submits that the findings are not expressed ‘emphatically’ and do not touch on issues ‘arguably crucial’ to the present proceeding. His Honour’s observation about the Applicants’ evidence could not cause a fair minded observer to conclude that his Honour might be prejudiced against the Applicants in the present matter or would have a mind closed to how any future evidence, given by them, would be treated.

28    The reference to the approach taken by Kirby P in Spedley Securities is to the following observations at 423, where his Honour said:

… Where, for example, the apprehension of pre-judgment in the words used is equivocal or the importance of the opinion expressed is qualified, it will be less likely that a court will find disqualification. Where the findings made are emphatically expressed upon issues arguably crucial to subsequent litigation and where that litigation involves matters concerned with the vital interests of the parties, the high measure of stringency required by the law must be scrupulously observed. The present is a case closer to the second than to the first class. The variables of the formula emphasise the importance of the findings made to the parties who complain. …

Conclusion

29    After reflecting on the matter, I have come to the view that the proceeding should not remain in my docket.

30    In Livesey v The New South Wales Bar Association (1983) 151 CLR 288, the High Court said (at 300):

… a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. …

31    I can anticipate that, at a final hearing of this proceeding, both Mr Robinson and Ms El Masri will give evidence in support of their respective claims which concern alleged discriminatory treatment of Mr Robinson by members of the New South Wales Police Force. I can proceed on the comfortable assumption that the facts, matters or circumstances that the applicants would wish to bring forward in support of the second terminated complaint will be, at least in part, contentious and will require findings of fact to be made.

32    I do not think that the observations I made in the earlier proceeding, concerning, in particular, my reasons for not accepting Ms El Masri’s evidence relating to whether DSC Mangan had prevented her from accompanying Mr Robinson to Liverpool Hospital, were emphatically made. Nevertheless, I did make some generally-expressed observations concerning her credibility (namely, those italicised in the passage quoted at [26] above) which might lead a fair-minded observer to entertain a reasonable apprehension that those views might be abiding and might be brought to bear when considering the evidence adduced in respect of the second terminated complaint, regardless of my own conviction that I would exercise an impartial and unprejudiced mind.

33    The respondent has filed an interlocutory application seeking the summary dismissal of the applicants’ claims arising from the second terminated complaint. That application is yet to be heard. The respondent has submitted that the hearing of that interlocutory application would proceed on the basis of the applicants’ evidence “taken at its highest” and no issue of credit would be involved. That may be so. But, having come to the view that I should remove myself from hearing the proceeding, I do not think that it would be appropriate for me to now embark upon the hearing of that interlocutory application.

Disposition

34    The proceeding will be removed from my docket. The hearing of the respondent’s interlocutory application filed on 6 September 2013 will be listed on a date and at a time to be advised.

35    The respondent has sought an order for costs. The present application has only succeeded because of matters that the respondent has brought to my attention, although the respondent contended that those matters would not warrant my removal. The present application could not possibly have succeeded on the basis or bases advanced by the applicants. In my view, the appropriate order is that the costs of the application be the respondent’s costs in the cause.

Associate:

Dated:    4 December 2013