R v Al-Assadi: Experience of crime and apprehended bias

In the week before Easter, the Court of Appeal handed down the decision of R v Al-Assadi [2011] VSCA 111. While there were multiple grounds of appeal, the only one that succeeded was an apprehended bias argument. This case is, to my knowledge, the first time an apprehended bias argument has succeeded on the basis that the judge knew someone who had experienced a crime similar to that alleged by the complainant. It will, I expect, present substantial problems for the judge in question (who cannot be named because it would reveal the identity of a victim of a sexual offence), given the bulk of work in the County Court.


The Facts
The facts of Al-Assadi are straightforward. The complainant, aged 15, and friends met at a shopping centre. They initially sought a lift home from their mother but then accepted a lift from the accused, who was an older brother of a friend. The accused drove the complainant to a reserve and at least two people sexually penetrated the complainant. According to the accused, this was consensual. According to the complainant, she was raped by two different people at the reserve.

Apprehended bias
The apprehended bias argument took two forms. First, the appellant argued that the trial judge was unduly sympathetic in her treatment of the complainant. The appellant nominated such things as:

the fact that her Honour invited the complainant to nominate the times she wished the Court to sit, apologised if the complainant was kept waiting, went to some lengths to set the complainant at ease, enquiring after her favourite subjects at school, whether she had a pet dog and what she did on her birthday and assuring her that the judge would try to make sure the questions of counsel were not too hard for her. By contrast, so it was said, her Honour made no enquiries as to the comfort and convenience of the accused. When the accused were a few minutes late returning to court after a short adjournment, the judge’s reaction was to forbid them to leave the dock during short adjournments.

The Court of Appeal rejected that argument, stating:

her Honour was not obliged to disqualify herself by the matters advanced by counsel at the trial. Her Honour quite properly sought to ensure that a young witness was not overawed or frightened by a strange, formal and potentially hostile environment. Critically, the complainant, unlike the applicant, was not represented by counsel.

The second limb of the argument, however, took the case into new legal territory. In 2007 (two years before the trial), the judge's 14 year old daughter had been drinking with friends and was waylaid by a man who gave her amphetamines and raped, or attempted to rape her multiple times. The judge and her partner searched for their daughter all night, before eventually locating her on the steps of St Paul's Cathedral. The daughter identified the offender, who ultimately pleaded guilty. The judge had given evidence at the committal proceeding and made a victim impact statement where the she described the effect of the offending on herself as "extremely traumatic". The offender was sentenced on 1 April 2009, and the judge sentenced Al-Assadi on 27 April 2009. The judgment, unfortunately, doesn't identify when the trial took place, but given standard practices in the County Court, it is likely that it took place in March or April 2009.

The Court of Appeal acknowledged that there were important differences between the offending against the judge's daughter and the complainant, but noted that:

... the ages of the victims were similar and advantage was taken by the offenders of the victims’ vulnerability. I think that the comparable circumstances of the victim in each case and the strength of the relationship of mother and child might well move a fair minded observer to think that her Honour might be partial to a girl in the position of the complainant and hostile to the applicant, who took advantage of the complainant’s position.
The mere fact that a judge is related to a victim of crime is not sufficient to disqualify the judge from presiding at a trial of a person accused of a like crime. In the present case, however, the relationship of the judge to the victim of the first crime, the similar age and circumstances of the victims and the emotional involvement of the judge might have led a fair minded observer to think the similarity in the crimes and victims might have induced in her Honour a sympathy for the alleged victim of the offences with which the applicant was charged which prevented her from bringing an impartial mind to the conduct of the trial. In this respect I think it is significant that the judge underwent the harrowing experiences of searching for her child overnight and then dealing as best she could with her daughter’s distress.

The court cites R v Goodall, but in my view, doesn't go into enough detail to distinguish the two cases. Goodall, it is important to remember, was a case where the Court of Appeal rejected an argument that being the victim of a similar kind of crime necessarily meant that a juror could not decide the case impartially, or that there was a reasonable apprehension of bias concerning such a juror. The court event accepted that a juror could legitimately use his or her own experiences as a victim of crime when assessing the evidence. Adopting the language of Neave JA in Goodall, the decision in Al-Assadi:

amounts to the generalisation that [parents of] victims of sexual assault are incapable of bringing an objective mind to the issues to be resolved in the trial of an accused for sexual offences, while other [judges] members of the jury who have not had such an experience are capable of doing so.

The reasoning in paragraph [39] of Al-Assadi seems to be that the experience of searching for a child and dealing with the aftermath of the offending were so intense that a fair minded lay observer might reasonably conclude that the judge might not bring an impartial mind to bear. Regrettably, the court did not address the factors commonly cited against judicial apprehended bias applications, such as the fact that judge's take the judicial oath very seriously and, by their training and experience, are generally capable of putting irrelevant matters aside. It also didn't explain why the experience might lead to partiality in relation to a complainant who shared some superficial similarities with her daughter in the context of a case where the defence was one of consent. The court also didn't address the potent consequences of their decision, given that this decision would seem to exclude the judge from hearing a vast number of sexual offence cases involving, say, 13-16 year old complainants and an accused who is, to some degree, unknown to the complainant.

The decision raises more questions than it answers. How long does the restriction on the judge hearing similar cases last? Is it limited to cases heard between the time of offending (April 2007) and shortly after sentencing (April 2009)? If so, on what basis is the cut-off line drawn for cases after April 2009? Also, what does this decision mean for jurors? If you are the victim of a similar kind of offending within the past 2 years, does that mean there is a reasonable apprehension of bias? Does the offending need to be reasonable perceived to be sufficiently traumatic to make you ineligible? These questions will, perhaps, need to await some further appeals from this judge's trials, or appeals in relation to juror bias (or apprehension of bias).

EDIT: Since I started writing this post, but before I finished it, Austlii took down the reasons for judgment in Al-Assadi. Austlii notes that the reasons are available only in hardcopy. This will, I expect, limit the precedential potential of the judgment, especially its capacity to influence decisions in other jurisdictions.