John Bowie – The Supreme Court has dismissed an application for recall of the judgment in the Jordan Williams v. Colin Craig case finding “some force” in the view that the delay in raising the matter “is both tactical and disqualifying”. However the Court did not hold an oral hearing despite some conflict as to what was said between counsel for Jordan Williams (Peter McKnight) and counsel for Colin Craig (Stephen Mills QC).
The matter was decided in a decision released today and involving Chief Justice Winkelmann and Justices Glazebrook, O’Regan, Ellen France and Williams.
It may be somewhat surprising to some observers that the need for judicial impartiality, along with the overarching need to provide an appearance of impartiality, would n ot have involved an oral hearing. The Supreme Court evidently felt otherwise, saying “. . in terms of the essential points of the narrative, there is no substantive dispute and, in any event, as will be seen we consider that taking the evidence filed on behalf of Mr Williams at its highest, the basis for recall has not been established.”
The events that occurred involved a yachting trip involving then-counsel for Colin Craig, Stephen Mills QC, (left) who went on a yachting trip with one of the Justices who subsequently ruled in favour of Craig, Sir Terence Arnold in April 2019.
The application for recall and direction for rehearing involved a decision as to the basis upon which a fair-minded observer might reasonably consider that Arnold J might not have brought an impartial mind to the resolution of the appeal after the yachting excursion, which occurred after the appeal was heard but before the decision was delivered.
In rejecting the argument for a recall of the judgment, the Supreme Court said:
“Finally, there is force in the submission made on behalf of Mr Craig that the delay in raising this matter is both tactical and disqualifying. The point made in the authorities cited by Mr Miles QC is that a party who is legally represented, as here, cannot “stand by” until judgment and then, “if those contents prove unpalatable”, complain about the appearance of lack of partiality.”
Counsel for Jordan Williams, Michael Reed QC noted that the recall application should be dealt with in accordance with the provisions of the Guidelines for Judicial Conduct (the Guidelines).
The Supreme Court noted that the Guidelines “address the care to be taken to avoid direct social contact between a judge and counsel when both are engaged in a current case.
“It is submitted that what occurred here did not comply with the Guidelines particularly where the contact was such that counsel and the Judge were in close quarters over a week-long period. In addition, reference is made to the informality of the process followed. Counsel also notes that Mr Mills’ tactical decisions at trial were in issue on the appeal.”