TURC – Will Commissioner Heydon disqualify himself based on apprehended bias?

Commissioner Heydon is due to announce his decision on whether to disqualify himself tomorrow at 10am. The media discussions on whether Commissioner Heydon should dismiss himself from the Royal Commission on Trade Union Corruption (TURC) have focused on the political battle between the Labor Party and the Liberal Party, with the Labor Party claiming TURC has been a partisan witch hunt from the start. Few commentators have actually looked at the test for bias in depth.

The conduct in question:

Commissioner Heydon accepted an invitation to speak at the Sir Garfield Barwick address hosted by the Liberal Party. Commissioner Heydon withdrew his acceptance on 13 August.

The rule against bias

The rule against bias is based on the principle that “decision-making must be and be seen to be impartial”. In the case of Commissioner Heydon we are concerned with the “be seen to be impartial” component of the rule, being apprehended bias. Justice must not only be done but be seen to be done (Ebner at [6]).

The test for apprehended bias comes from Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 63:

Apprehended bias will exist where a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” [6].

Whether apprehended bias is present in any given case is very fact dependent, as an observer will have different expectations of the impartiality required by a decision maker in different circumstances. Commissioner Heydon is presiding over a Royal Commission. Most of the cases involve executive decision making or judicial decision making. However, despite factual differences, the principles in these cases apply to Commissioner Heydon’s situation.

Applying the test for apprehended bias – principles from case law

1.       The test for  apprehended bias uses the word “might”. Anyone who has followed Justice Heydon’s career would realise he is a black letter lawyer and would not let the incident affect his decision making. However, this is irrelevant. The test requires no prediction as to how the decision maker will actually approach the matter.  The consideration is “one of possibility (real and not remote). Not of probability” (Ebner [7]).

2.       There are two steps to applying the test:

a.       Identify what it is that might lead a judge to decide a case other than on its legal and factual merits; and

b.      Identify the connection between the matter and the feared deviation from the course of deciding the case on its merits [Ebner [7]).

3.       There are four broad categories of bias (Webb and Hay v the Queen [1994] HCA 30 per Deane J at [12]):

a.       Disqualification by interest – “cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment”;

b.      Disqualification by conduct – “cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias”;

c.       Disqualification by association – “cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings”; and

d.      Disqualification by erroneous information – “cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias”.

These categories overlap somewhat, particularly category 1 and 3, and category 3 and 4. Commissioner Heydon’s conduct in accepting an invitation to present at a Liberal Party event could come into the “disqualification by conduct” category.

4.       There is a difference between decision making as a Minister and judicial decision making, with the standards of detachment applicable to a Judge not applying to Ministers (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507). Commissioner Heydon is acting in his capacity as a Commissioner in the Royal Commission, not a Judge. While there is no case law on the application of the rule of bias to Royal Commissions, it is likely that a Commissioner will be held to similar standards of impartiality as a Judge.

5.       The “fair-minded lay observer”:

a.       Does not know the personality or character of the Judge. The fact a Judge has been a Judge for over 20 years and has consistently stuck to the black letter of the law is irrelevant (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

b.      Has a broad knowledge of the facts and circumstances of both the proceedings and the events leading to the claim of apprehended bias (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

Is the test satisfied?

While the finding of apprehended bias should not be made lightly, I believe the test for apprehended bias has been satisfied and that Commissioner Heydon should dismiss himself. The bare assertion that a judge has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated (Ebner, [8]). Counsel for the ACTU, Robert Newlinds QC, in his submissions, has elevated the claim of apprehended bias beyond a mere assertion. He identified the conduct and linked the conduct with the feared deviation. While some of the ACTU’s submissions are not at all relevant, such as that the Commissioner should excuse himself otherwise findings of the Commission will lack credibility, the ACTU appears to have satisfied the evidentiary burden required.

The “fair-minded lay observer” on seeing Commissioner Heydon accept an invitation to present at a Liberal Party function might reasonably believe that the Commissioner would not bring an impartial mind to the Royal Commission proceedings. The Royal Commission into Trade Union Corruption is inherently political. The alignment of trade unions with the Labor Party and the support the Liberal Party has publically given the Royal Commission is no secret. Such public alignment with the Liberal Party could cause the “fair-minded lay observer” to form the view the Commissioner would not bring an impartial mind to the Royal Commission. Again, the test is concerned with whether the “fair-minded” lay observer “might” form this view. The fact that Commissioner Heydon is a well-respected Judge who managed to be impartial throughout his judicial career is irrelevant. In fact, it is Commissioner Heydon’s respect for the law that will probably see Commissioner Heydon dismiss himself on the basis of apprehended bias tomorrow.

DEEDS 101 – Demystifying the Deed

While the difference between a contract and a deed is taught at law school, it is difficult to appreciate the deed until you start practising and are faced with a situation where a contract would just not work. In practise, it is essential to know the difference between a contract and a deed and understand and the formal requirements of each.

Deeds 101 

A deed is seen as the most solemn form of legal instrument a person can make. A deed can be used for a number of purposes including most commonly:

·         transferring a legal interest, right or property; and

·         creating a binding obligation on a person or persons.

In most jurisdictions, a conveyance of land will not be valid unless it is done in the form of a deed. For most other agreements, parties can choose whether to draft a contract or deed. Usually the circumstances will dictate which form of agreement you choose.

Why use a deed?

1.       No requirement for consideration

For a contract to form there must be:

·         offer and acceptance

·         an intention to be legally bound; and

·         consideration.

Deeds are often used when it is difficult or impossible to meet the “consideration” requirement of contract formation, as consideration is not required for a valid deed to form.

For example, there is a type of deed called a “deed poll” which can bind the person who executes the deed, but does not require execution by the party who it is made in favour of. There would be a real issue of consideration if this kind of agreement was attempted in contract form.

2.       Overcome privity of contract problems

You may remember the doctrine of privity of contract from studying Contracts at law school. Under the doctrine of privity only the actual parties to the contract can acquire legally enforceable rights or incur legally enforceable obligations under it. For example, if a beneficiary of an obligation under the contract is a third party, the third party will be unable to enforce the obligation. There are some narrow exceptions to the doctrine including for contracts of carriage and for some insurance contracts. The doctrine of privity continues to apply to almost all contracts. A deed can be used to avoid privity of contract problems.

3.       Executing party is bound immediately

Deeds are immediately binding, and can bind a party who has signed, sealed and delivered the deed even before the other party has executed the deed (Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609). There are exceptions, such as if a conditional deed is executed, where the deed is stated not to come into existence until a particular condition has been satisfied. In contrast, a contract is only formed once there has been offer and acceptance and the other formalities have been satisfied.

4.       Extension of limitation periods

Court actions based on deeds generally have a longer limitation period than court actions based on contract. For example, in Queensland, a court action based on a deed is considered a “speciality” and the limitation period for a “speciality” is 12 years as opposed to the normal limitation period of 6 years (s10(3) Limitation of Actions Act 1974 (Qld)). Similarly, in NSW a plaintiff has 12 years to commence a cause of action based on a deed, as opposed to 6 years for a cause of action based on contract (s16 Limitation Act 1969).

 What are the formal requirements to create a deed?

At common law, a valid deed is required to be written on paper, parchment or vellum, sealed and delivered (Scook v Premier Building Solutions Pty Ltd [2003] WASCA 263 [22]). These requirements have been altered by statute in every jurisdiction. Due to statutory jurisdictional differences, the requirements of a valid deed vary from state to state. For the relevant legislation in your jurisdiction see:

·                                   ACT - Part 2.3, Division 2.3.1 (ss 219 – 222) Civil Law (Property) Act 2006 (ACT);

·                                   NSW - Part 3 (ss 38-51A) Conveyancing Act 1919 (NSW)

·                                   NT -  Part 6, Division 1 (ss 46-54) Law of Property Act (NT);

·                                   Queensland - Part 6; Division 1 (ss 44 – 53) Property Law Act 1974 (Qld);

·                                   SA - s 41 Law of Property Act 1936 (SA);

·                                   Tasmania - Part XI, Division 1 (ss 59-70) Conveyancing and Law of Property Act 1884 (Tas);

·                                   Victoria - Part II, Division 2 Property Law Act 1958 (Vic);

·                                   WA - Part II (ss 8-16) Property Law Act 1969 (WA).

You will note most of these requirements are contained in property statute. The requirements apply to all deeds within that jurisdiction, not just deeds concerning property. The common law concerning the deed developed closely with property law, and many land transactions must still be undertaken in the form of a deed.

The following are the requirements of a valid deed, attempting to cover all statutory regimes:

a.                   In writing

Unlike a contract, which does not necessarily have to be in writing, a deed must be written.

b.                  Sealed

At common law, a deed was required to be executed by seal. Sealing via the old method is no longer required under the statutory regimes, though is permitted in most jurisdictions. Under the statutory regimes, a deed is taken to be sealed if the deed is expressed to be a deed/sealed and has been executed correctly.

c.                   Signed

For an individual to execute a deed, they must sign the deed and have their signature witnessed by a person who is not a party to the deed and who will not gain a benefit under the deed. In Victoria, there is no requirement for the individual’s signature to be witnessed.

The requirements for a corporation to execute a deed are contained in s127(1)-(3) of the Corporations Act. An Australian company can be bound by the signature of one director (if a sole director company) or two or more directors or a director and a company secretary.

d.                  Delivered

Delivery refers to the intention to be bound, being ‘some conduct indicating that the person who has executed the deed intends to be bound by it’ (Monarch Petroleum v Citco Petroleum [1986] WAR 310, 355). Typically, this is evidenced by having the words ‘signed sealed and delivered’ in the execution block/s.  Some states have removed the common law requirement of delivery (SA, Tasmania, and WA), but a clause in the deed evidencing delivery is still required in most jurisdictions. If you forgot to include the words “signed, sealed and delivered” in your deed in a jurisdiction where delivery is required, this is not necessarily fatal. Some legislative regimes would accept correspondence or evidence of conduct confirming delivery has occurred.

How do I incorporate these requirements in my deed?

This is not a comprehensive checklist. A few things you should look for include:

1.       Use of language throughout the deed

Ensure you use the word “deed” in the heading, throughout the document and in the execution block state “executed as a deed” rather than using the word “agreement”.

2.       Clause evidencing delivery

Most jurisdictions still require delivery. Ensure you use the correct form of words in your jurisdiction, either as a section in the body of the deed or using the phrase “signed, sealed and delivered in the execution block.

3.       Consider jurisdiction

If you are creating a template deed that could be executed in multiple jurisdictions, you can either:

a. Have a provision in the deed stating which law will govern the deed. For example “this deed is to be construed according to the laws of [insert jurisdiction]”; or

b. Ensure the deed complies with the requirements of a deed in every Australian jurisdiction.

4.       Consider the unique nature of your deed

For example, if you are creating a deed poll, ensure you make it clear the deed is being executed as a deed poll. For example, before the execution block use the words “executed as a deed poll in favour of and legally enforceable by [insert party]”

Police v Dunstall [2015] HCA 26 – High Court makes it more difficult for drink drivers to challenge breath analysis reading

In Police v Dunstall, the High Court unanimously decided that the “general fairness discretion” did not apply to prevent the police admitting breath analysis evidence where the defendant’s blood sample was unable to be tested. Mr Dunstall’s blood sample was not able to be tested, as the doctor conducting the test did not draw enough blood for the sample. It was due to no fault of the police and no fault of Mr Dunstall that the blood sample was unable to be tested. The decision limits the ability for drink driver defendants to challenge breath analysis evidence.

The drink driving offence in South Australia

1.       The offence is contained in s47B(1)(a) of the Road Traffic Act 1961 (SA)
t is an offence to drive a motor vehicle with the prescribed concentration of alcohol present in your blood (0.05g or more alcohol in 100 millimetres of blood). The offence is punishable by a fine and a mandatory disqualification from holding a driver’s licence for a period of time which varies depending on whether it is the person’s 1^st, 2^nd or 3^rd drink driving offence and whether the offence is Category 1, 2 or 3:

                Category 1: 0.05 – 0.07g of alcohol in 100 millilitres of blood

                Category 2: 0.08 – 0.14g of alcohol in 100 millilitres of blood

                Category 3: 0.15g of alcohol or more in 100 millilitres of blood 

2.       Initial testing
A police officer can require a driver to undertake an alcotest (s47E(1)(a)). If an alcotest indicates the prescribed concentration of alcohol may be present in the person, a police officer can require the person to undertake a breath analysis test (s47E(2ab). The alcotest and breath analysis reading is designed to provide a relatively accurate correlation with alcohol concentration in the blood.

3.       Further testing at police station
If an alcotest reading comes up as “positive”, it is common for a driver to be taken to a police station to receive a breath analysis.

Section 47K(1) creates a presumption that the breath analysis reading corresponded to the blood alcohol level at the time of the reading. It is also presumed that the concentration of alcohol at the time of breath analysis performed within two hours of driving was the concentration of alcohol at the time of driving (s47K(1ab)).

 4.       Election to have a blood test 

The presumption that the breath analysis reading correlates with blood alcohol level can only be rebutted using evidence based on an analysis of the defendant’s blood that was taken in accordance with the prescribed procedures (s47K(1a)). In practice, this requires the defendant to adduce evidence based on the results of analysis of the blood sample.

After a “positive” breath analysis reading has been made, the police must give the person an oral warning to the effect that if the person wants to have a blood test, they will have to make their own arrangements, follow the correct procedures, and use the special blood test kit. A written warning to the similar effect must also be provided. There is not a “statutory right” to a blood test, however, the police must provide an approved blood test kit if requested by the defendant.

There are 19 procedures for taking the blood sample set out in Regulation 11 of the Road Traffic (Miscellaneous) Regulations 1999 (SA).

The facts

Mr Dunstall was subjected to an alcotest, which returned a positive result. A breath analysis test at the police station returned a result of 0.155 grams of alcohol per 100 millimetres of blood. This reading is high and is a Category 3 reading. Mr Dunstall was given the blood test warning and elected to have a blood test. Police drove Mr Dinstall to Noarlunga Hospital where blood samples were taken by a doctor.

Regulation 11(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) requires each container in the blood collection kit to contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood. There must be at least two containers in the sample. One of the samples is provided to the police who pass the sample on to Forensic Science SA, who provide a certificate of analysis to the police and the defendant. When Mr Dunstall’s sample was sent for analysis, the sample could not be used because the blood was denatured, as an insufficient quantity of blood had been collected.

The legal question
Mr Dunstall could not access the “blood test defence”, as the blood sample used was not able to be analysed or tested. He argued that the police should not be able to admit the breath analysis evidence, as this would lead to an unfair trial.

The legal question:

If the breath analysis evidence was able to be used in the trial, would this result in an unfair trial given the inability to analyse the blood sample results?

More specifically:
Is there a common law discretion to exclude lawfully obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudice misuse where admission would render trial of accused unfair?

The lower courts
In the Magistrates Court, Magistrate Dixon exercised the “general unfairness discretion” to prevent the police admitting the breath analysis evidence.  Justice Kelly of the Supreme Court of South Australia agreed with Magistrate Dixon, as if the breath analysis evidence was admitted Mr Dunstall would be “effectively placed in the same position as if no blood sample had ever been taken”. The Full Court of the Supreme Court unanimously acknowledged the existence of an unfairness discretion and by majority said it had been open to Magistrate Dixon to exclude breath analysis evidence using the “general unfairness discretion”. In the dissent, cited by the High Court, Chief Justice Kourakis analysed the legislative scheme, particularly the fact the legislative scheme does not confer a procedural right to adduce evidence of blood sample analysis, in deciding it was not open to use the “general unfairness discretion”.

French CJ, Kiefel , Bell, Gageler, and Keane JJ:

The High Court analysed the rules for exclusion of evidence in a criminal proceedings, including:

1.       R v Lee (1950) 82 CLR 133 at 159 (“Lee Discretion”) – fairness discretion to exclude evidence of confessional statements in a criminal proceeding;

2.       R v Christie [1914] AC 545 (“Christie Discretion”) – court’s ability to exclude evidence where the probative value of the evidence is outweighed by the risk of prejudice to the defendant;

3.       Bunning v Cross (1978) 141 CLR 54 (“Bunning v Cross Discretion”) – court’s ability to exclude evidence where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority.    

Mr Dunstall’s case did not come under any of these exclusionary rules. The High Court then looked at whether a “general unfairness discretion” would apply. In South Australia, the “general fairness discretion” has been discussed in a number of cases, including R v Lobban (2000) 77 SASR 24 where the Full Court of the Supreme Court stated the general unfairness discretion permits the court to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the accused in the sense that it would make the trial of the accused an unfair trial. The discretion was not applied in that case, so it was unnecessary for the ambit of the discretion to be discussed.

The majority undertook a strict analysis of the statutory scheme. The legislative scheme provides the prosecution with an aid for proof and closely confines the circumstances in which rebuttal evidence may be adduced. The defendant can only admit the evidence of the blood test results if these procedures are complied with. The regime limits the evidence the defendant can use to rebut the breath analysis evidence.

While it was not necessary to decide the ambit of the “general unfairness discretion”, the majority indicated it involves a test of fairness that requires the court to balance the interests of the defendant and those of the community.

Nettle J:

Justice Nettle’s judgment included further comments on the unfairness discretion, highlighting that each case will turn on its facts. The facts in Mr Dunstall’s case show that s47K(1a) does not confer any procedural or substantive right on the respondent but limits the evidence which the respondent can use to rebut the breath analysis evidence. It was unknown what the blood test results would have shown – they could have correlated with the police evidence. Mr Dunstall had to show that the loss of evidence would constitute an unacceptable risk of injustice or fairness. It was not sufficient to show it could have that effect.

Justice Nettle indicated the general unfairness discretion exists to ensure a fair trial according to the law as the law may be effected by statutory modification – it “does not exist to give effect to idiosyncratic notions of “fair play” or “whether the forensic contest is an even one””.

Outcome

The High Court unanimously decided the general unfairness discretion does not apply to Mr Dunstall. The case was remitted for further hearing before the Magistrates Court.

The decision significantly confines the ability of drink drivers to challenge the breath analysis reading. This confinement aligns with the intention of the statute in South Australia.

A discretion to exclude police evidence may be exercised where:

·         failure to obtain blood sample was due to police misconduct – ie the failure to make the proper warning to the defendant or the failure to provide the defendant with an approved blood test kit on request (Bunning v Cross discretion);

·         the statutory defence is made out under s47K(8) where the defendant proves the kit was delivered unopened to the medical practitioner and the medical practitioner gives evidence that because of a deficiency in the kit he or she was unable to comply with the prescribed procedures.

Practical considerations for defendants:

·         be aware of blood collection procedures and your ability to have a blood test to ensure correct steps are taken;

·         avoid Noarlunga Hospital when having blood samples taken – avoid emergency departments generally if you can, as a drink driving blood test will not be prioritized over true emergencies and you may find yourself outside the regulatory timeframe to have the blood test taken.