Case: Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51
Outcome: applied
I have no hesitation in assuming that his Honour set out in his reasons for judgment fully, honestly and accurately all of what he took into account in coming to his decision to dismiss the appellant's complaint relating to Mr Xiao. Nor is it necessary or appropriate to inquire further into this question for the issue here is relevantly whether what occurred gave rise to the appearance of a possibility of an absence of an impartial mind on the part of his Honour as Callinan J explained in Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at 76-77 [81] - [83] , Haydon J agreeing at 78 [91]; see too per Gleeson CJ at 57 [22]. But what I, as a judge, or any lawyer for that matter, knows or assumes that a judicial officer referred to or took into account in deciding a matter when regard is had to the judicial officer's fulfillment of the duty to give reasons for judgment, is one thing. It is quite another thing for a fair-minded lay observer to be precluded from forming a reasonable apprehension that, in the present factual context, the judge might not have brought an impartial mind to the resolution of the dispute. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573: 'An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice.' 49 However, in a case like the present, I am of opinion that it was not appropriate for his Honour to have used Ms Frank's affidavit in any way, although the parts of the affidavit which his Honour used were simply confirmatory of what the appellant herself had accepted in her cross-examination and also of what the objective evidence revealed. As Kirby J remarked in Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at 63 [47] : '... it is every person's right to have a trial conducted in accordance with the law. The trial judge here was disqualified because he crossed the line. The trial did not conform to law.' 50 The fact is that his Honour's intervention and use of Ms Frank's affidavit raises more questions for a fair minded observer than it answers. One does not know what, if anything, his Honour discarded in order to assess what he said was relevant to use from the other material in the file. Why did his Honour need to review any of the other material that was not formally before the court placed there in the ordinary way by the parties seeking to have their dispute properly ventilated? 51 In one sense it may be possible to say that the material used from Ms Frank's affidavit would have made no difference. In my opinion that material was capable of falling into such a category. However, the evidence of Ms Frank in this case did not assist the appellant's case at all. At worst it bolstered the case of the University and Mr Xiao as to her lack of complaint and made her case look thinner. There was no need for the evidence of Ms Frank to be called in aid for that purpose, for the very reasons which the University has sought on this appeal to say that the evidence would have made no difference. The trouble is that his Honour saw fit himself to introduce that evidence, after the appellant had given evidence and without any attention to the rules of the court providing for making directions about examination and cross-examination of the witness whose evidence it was.