MARIYA SHMANDIY In Person via AVL v COMMISSIONER OF POLICE [2024] SASCA 89

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCINTYRE) SCCRM-24-000504 Applicant: MARIYA SHMANDIY In Person via AVL Respondent: COMMISSIONER OF POLICE Counsel: MR S RANIERI - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 26/07/2024 File No/s: SCCRM-24-026411 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SHMANDIY v POLICE [2024] SASCA 89 Judgment of the Court of Appeal (ex tempore) (The Honourable Acting Chief Justice Livesey and the Honourable Justice David) 26 July 2024 COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY On Wednesday the applicant applied for an order that Livesey A/CJ be disqualified from sitting. The hearing concerns an application by the applicant seeking the audio recordings of hearings before an appeal judge on 29 April and 17 May 2024, and the applicant’s application for permission to appeal against the decision made by that judge dismissing her appeal for want of prosecution. On 17 July 2024, the respondent provided the Court and the applicant with a copy of the Court Record concerning unrelated judicial review proceedings involving the applicant. The respondent says that this shows that the applicant appeared at a hearing in the Supreme Court the day before the hearing she failed to attend before the appeal judge. The applicant asserts that, as a result, the “impartiality and integrity” of Livesey A/CJ is “now contaminated by familiarity with the details of the unrelated civil matter” and his “integrity and decision making [is at] risk…”. HELD (the Court) dismissing the disqualification application, with costs: 1. Because the application was only received two days ago, it is necessary for the application to be considered by the Court as a whole, rather than allow it to first be considered by the judge the subject of the application. 2. The applicant has failed to establish that a fair-minded lay observer might reasonably apprehend that Livesey A/CJ might not bring “an impartial mind to the resolution of the issues that judge is required to decide”. Charisteas v Charisteas (2021) 273 CLR 289; Clarke v Health Care Complaints Commission (NSW) [2024] NSWCA 16; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; McFarlane v The -- 1 of 4 -- King [2023] SASCA 123; Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; Mohareb v State of New South Wales (No 2) [2024] NSWCA 69; Pastor v Aegis Aged Care Staff Pty Ltd (No 3) [2023] WASCA 128; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Sambastian v Police [2024] SASCA 79, considered. -- 2 of 4 -- SHMANDIY v POLICE [2024] SASCA 89 Court of Appeal - Criminal: Livesey A/CJ and David JA THE COURT (ex tempore): Introduction 1 On Wednesday the applicant applied for an order that Livesey A/CJ be disqualified from sitting today. The hearing today concerns an application by the applicant seeking the audio recordings of hearings before an appeal judge on 29 April and 17 May 2024, and the applicant’s application for permission to appeal against the decision made by that judge dismissing her appeal for want of prosecution. 2 The hearing today has been set at a time that suited the applicant’s convenience. Correspondence from the Court advised the parties that they should be prepared to address the following matters today: 1. The applicant’s application for audio recordings dated 1 July 2024. 2. Whether permission to appeal is required. 3. The merits of the appeal. 3 On a number of occasions since, the applicant has said that she will not make any submissions today unless she is first given the audio recordings that she has sought. The applicant has been advised that if she succeeds on her application for the audio recordings, the Court will consider arranging another hearing date for her appeal. 4 The respondent, in compliance with the Court’s directions, provided written submissions on 15 July 2024. On 17 July 2024, the respondent also provided the Court and the applicant with a copy of the Court Record concerning unrelated judicial review proceedings involving the applicant. The respondent says that this shows that the applicant appeared at a hearing in the Supreme Court the day before the hearing she failed to attend before the appeal judge.1 The disqualification application 5 The applicant asserts that, as a result, the “impartiality and integrity” of Livesey A/CJ is “now contaminated by familiarity with the details of the unrelated civil matter” and his “integrity and decision making [is at] risk of making a subjective decision”. 1 Information contained in the document is limited to the date, time and location of the hearing, the appearances of the applicant and the respondent, the relevant judge and the case number. -- 3 of 4 -- [2024] SASCA 89 The Court 2 6 For the purposes of this application, it may be assumed that all communications made by the chambers of Livesey A/CJ were made with the knowledge and authority of the Court. 7 Because the application was only received two days ago, it is necessary for the application to be considered by the Court as a whole, rather than allow it to first be considered by the judge the subject of the application.2 The applicant says the Court Record is prejudicial. She has not explained what she means by that. The applicant has not identified: 3 1. the logical connection between receiving the Court Record and the apprehended deviation from deciding these matters on their merits; and 2. any assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer. 8 We reject the proposition that receiving the Court Record gives rise to the requisite apprehension. The applicant does not assert, nor do we find, that anything has occurred or been decided that could support the claimed procedural unfairness or discrimination. The applicant has failed to establish that a fair-minded lay observer might reasonably apprehend that Livesey A/CJ might not bring “an impartial mind to the resolution of the issues that judge is required to decide”.4 Conclusion 9 The application to disqualify is dismissed, with costs. We will now hear the other matters listed for hearing today. 2 Sambastian v Police [2024] SASCA 79, [13]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15; Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; McFarlane v The King [2023] SASCA 123; Clarke v Health Care Complaints Commission (NSW) [2024] NSWCA 16; Mohareb v State of New South Wales (No 2) [2024] NSWCA 69; Pastor v Aegis Aged Care Staff Pty Ltd (No 3) [2023] WASCA 128. 3 Sambastian v Police [2024] SASCA 79, [14]; see also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8]; Charisteas v Charisteas (2021) 273 CLR 289, [11]. 4 Sambastian v Police [2024] SASCA 79, [17]; see also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[7]; Charisteas v Charisteas (2021) 273 CLR 289, [11]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [119] (Edelman J), [193] (Steward J), [219] and [221] (Gleeson J), [274] (Jagot J). -- 4 of 4 --