DPP v McNamara & Ors [2012] NTSC 81

 

PARTIES:                                         OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

                                                         v

 

                                                         McNAMARA, Sarah

 

                                                         And:

 

                                                         WAYE, Sharleen Jane

 

                                                         Ex parte WESTPHAL, Lindsay

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          11 of 2012 (21236565)

 

DELIVERED:                                   12 October 2012

 

HEARING DATE:                             8 October 2012

 

JUDGMENT OF:                              BARR J

 

CATCHWORDS:

 

ADMINISTRATIVE LAW – JUDICIAL REVIEW – BIAS

Application for order in nature of prohibition – apprehension of bias on grounds of association – whether fair-minded lay observer might reasonably apprehend magistrate might not bring impartial and unprejudiced mind to resolution of case

 

 

 

 

ADMINISTRATIVE LAW – JUDICIAL REVIEW – BIAS

Courts and judicial system – relieving magistrate – magistrate and principal legal officer at legal aid service married – whether a disqualifying association

 

Ebner v Official Trustee (2000) 205 CLR 337; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530; Johnson v Johnson (2000) 201 CLR 488; Livesey v NSW Bar Association (1983) 151 CLR 288; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; R v Cavit & Anor; Ex parte Rosenfield (1985) 23 NTR 29; Smits v Roach (2006) 80 ALJR 1309; Webb v The Queen (1994) 181 CLR 41, followed.

 

“Guide to Judicial Conduct” (2002) published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration, referred to.

 

Supreme Court Rules (NT) O 56

Magistrates Act (NT) s 9A

Crown Proceedings Act (NT) s 17(1)(b)(ii)

 

REPRESENTATION:

 

Counsel:

    Plaintiff:                                      S Robson

    Defendant:                                    R Bruxner

 

Solicitors:

    Plaintiff:                                      Office of the Director of Public Prosecutions

    Defendant:                                    Solicitor for the Northern Territory

 

Judgment category classification:    B

Judgment ID Number:                       Bar1216

Number of pages:                             22


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

DPP v McNamara & Ors [2012] NTSC 81

No. 11 of 2012 (21236565)

 

 

                                                     BETWEEN:

 

                                                     OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

                                                         Plaintiff

 

                                                     AND:

 

                                                     SARAH McNAMARA

                                                         First Defendant

 

                                                     AND:

 

                                                     SHARLEEN JANE WAYE

                                                         Second Defendant

 

                                                     Ex parte LINDSAY WESTPHAL

 

CORAM:     BARR J

 

REASONS FOR JUDGMENT

 

(Delivered 12 October 2012)

 

[1]       The plaintiff seeks relief in the nature of prohibition against the first defendant, who is currently serving as a Relieving Magistrate in Alice Springs. 

[2]       Alice Springs is a town with a population of about 28,000 people, situated in Central Australia, and relatively isolated from other centres of population.  It is an important regional administration and service centre for surrounding communities (whose populations are largely indigenous), for mining and pastoral enterprises, and the tourist industry.

[3]       There are four magistrates permanently based in Alice Springs.  They exercise criminal jurisdiction sitting as the Court of Summary Jurisdiction and the Youth Justice Court, but also civil jurisdiction sitting as the Local Court (which has “family matters jurisdiction”) and the Work Health Court.  The Alice Springs based magistrates travel on bush circuits to other towns and communities: Tennant Creek, Hermannsburg, Papunya, Yuendumu and Mutitjulu (Uluru), to name a few.

[4]       The majority of defendants in criminal proceedings in the Courts of Summary Jurisdiction in Alice Springs and elsewhere in Central Australia are aboriginals, who are generally represented by the Central Australian Aboriginal Legal Aid Service (“CAALAS”).

[5]       Sarah McNamara, the first defendant, holds a substantive position as Registrar of the Supreme Court in Alice Springs.  However, she has recently been appointed by the Attorney-General to be a Relieving Magistrate for a period of approximately two months.[1]  In that capacity Ms McNamara “has all the powers, functions and duties conferred or imposed upon a Stipendiary Magistrate by a law of the Territory.”[2] 

[6]       Ms McNamara is married to Mark O’Reilly.  They have been married since 1997.  The fact that they are married, or that they are domestic partners, is a matter of common knowledge in the legal profession in Alice Springs. 

[7]       Mr O'Reilly is currently the Principal Legal Officer of CAALAS, a position he has held for some years.  In that capacity, Mr O'Reilly “is charged with the responsibility of the overall operation of the legal practice.  [He] supervises the legal officers, advocacy section and ALSOs, as well as having conduct of serious criminal casework.”[3]  Mr O’Reilly thus has overall responsibility for the legal representation of clients of CAALAS who appear as defendants in the Court of Summary Jurisdiction and the Youth Justice Court.  Some of those clients may be represented by Mr O'Reilly himself, but because of the CAALAS caseload most clients are represented by other lawyers employed by CAALAS who practise under the supervision of Mr O'Reilly. 

[8]       The organisational structure of CAALAS is such that, immediately beneath Mr O’Reilly in the chain of responsibility in the criminal section is the Senior Criminal Legal Officer, Ms Collins.  She is “responsible for the coordination of the criminal legal section”.  She has other duties as well, not presently relevant.  Beneath Ms Collins in the chain of responsibility is a group of ten or so lawyers described as ‘Criminal Legal Officers’, whose task is to ensure “that Central Australian Aboriginal people’s rights are upheld and strongly advocated for in the criminal justice system.”[4]

[9]       It is inevitable that, as Ms McNamara carries out the duties of a magistrate sitting in Alice Springs or anywhere in Central Australia, she will have to sit on criminal cases in the Court of Summary Jurisdiction in which the defendants’ legal representatives are lawyers employed by CAALAS and for whom Mr O’Reilly has supervisory responsibility.

[10]     On 3 October 2012, the Director of Public Prosecutions in Alice Springs received instructions from the Officer in Charge, Police Prosecutions Alice Springs, to represent a police complainant, Lindsay Westphal, in the summary prosecution of the second defendant, Sharleen Jane Waye, in the Alice Springs Court of Summary Jurisdiction on a charge of assault.  The case was listed before Ms McNamara.  The defendant was represented by Mr Sullivan, a lawyer employed by CAALAS.

[11]     Mr Sullivan is employed at the ‘Criminal Legal Officer’ level, as referred to in par [8] above.

[12]     When the case was called on, Mr Robson, a senior Crown Prosecutor, made application that Ms McNamara recuse herself on the grounds of apprehended bias:

“I want to say at the outset, your Honour, there’s no suggestion whatsoever your Honour would not bring an impartial mind to the matter, but the issue is one of appearance and the situation, as your Honour understands, is that the defendant is represented by a legal agency which your Honour’s husband is the head of and effectively, Mr O’Reilly manages and supervises Mr Sullivan and his carriage of the matter and is ultimately responsible for the representation of the defendant. …

It is a situation, your Honour, where in my submission, a fair-minded lay observer sitting in the court would have cause for concern that your Honour is presiding over a matter where your Honour’s husband effectively is responsible for the representation of the defendant [by] an employed solicitor.”

[13]     After hearing the application made by Mr Robson, the learned magistrate adjourned.  When she resumed later that morning, her Honour refused the application.  In brief reasons, her Honour referred to the decision of the High Court in Johnson v Johnson[5] and said that it was necessary to remember two things when applying the test there stated for reasonable apprehension of bias: firstly, that the fair-minded lay observer is taken to be reasonable; and secondly, that the person being observed is a professional judge, whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.  Her Honour then referred to the High Court’s decision in Ebner v Official Trustee,[6] and the two-step requirement there stated: (1) the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  Her Honour was of the view that the application had “not considered fully the second arm of the test”.  She noted that there was nothing on the court file to suggest any actual involvement by Mr O’Reilly in the conduct of the specific matter.  She further noted that a possible exception to the need to self-disqualify, referred to in the “Guide to Judicial Conduct” published by the Australian Institute of Judicial Administration, was where the solicitor-relative, although a partner or employee of the solicitor on the record, had not been involved in the preparation or presentation of the case.  Her Honour appears to have considered that Mr O’Reilly’s position in CAALAS was analogous to that of the hypothetical partner/employee of the solicitor on the record. 

[14]     On the basis of the reasoning summarised in the previous paragraph, her Honour decided that, because Mr O’Reilly had had no direct involvement with the matter or its conduct, there was no proper basis to disqualify herself.  She invited the parties to inform her if (contrary to her Honour’s stated understanding) Mr O’Reilly had had direct involvement, indicating that that might change her position.  The transcript does not disclose any further communication in response to that request.[7]  

[15]     By the amended originating motion in this proceeding commenced pursuant to Order 56 of the Supreme Court Rules, the plaintiff seeks an order in the nature of prohibition, to prohibit the first defendant from hearing the charge on complaint against the second defendant.  An arguably erroneous refusal by a judicial officer to stand aside may be challenged by applying for prohibition.[8]  Alternative relief is not pressed by the plaintiff at this time.  Neither of the defendants was represented at the hearing before me.  A letter written by solicitors acting for the first defendant confirmed that she will abide the outcome and submit to any order this court might make.[9]  Mr Bruxner, Crown counsel for the Northern Territory, was granted leave (insofar as leave was required[10]) to intervene on behalf of the Honourable the Attorney-General for the Northern Territory.  

The Council of Chief Justices Guide to Judicial Conduct

[16]     I propose to make some preliminary remarks about the “Guide to Judicial Conduct” (“the Guide”) published in 2002 on behalf of the Council of Chief Justices of Australia.[11]  The learned magistrate referred to and relied on the Guide in her reasons for decision summarised in par [13] above, although she did so in conjunction with relevant case law and did not rely on the Guide alone.  

[17]     In his preface to the Guide, the then Chief Justice of Australia, Murray Gleeson, wrote: “the document assumes a high level of common understanding on the part of judges of basic principles of judicial conduct, many of which are the subject of settled legal rules.  It sets out to address issues upon which there is more likely to be uncertainty and upon which guidance will be helpful”.

[18]     Chapter 3 of the Guide deals with impartiality, and the need to maintain and enhance public confidence in the impartiality of the judiciary.  For obvious reasons related to impartiality, the chapter deals with conflict of interest.  Common situations which raise issues about conflict of interest are said to include a judge's shareholding in litigant companies or companies associated with the litigants; a judge’s business, professional and other commercial relationships; and a judge’s personal relationships.

[19]     Although the Guide has considerable prestige, it has no legal standing. Moreover, it is indicative or suggestive, and not prescriptive.  Nonetheless, in terms of identifying issues for consideration by judicial officers in relation to personal relationships, it reflects and explores legal principles stated in judgments of the High Court of Australia.  For example, in Webb v The Queen,[12] Deane J referred to the area covered by the doctrine of disqualification by reason of the appearance of bias and said that there were four distinct, though sometimes overlapping, categories of disqualification: (1) by interest; (2) by conduct; (3) by association, and (4) by extraneous information.  Deane J said that disqualification by association “consists of 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.”

[20]     The most important personal relationships are classified in Chapter 3.3.4 of the Guide as: first degree, meaning a parent, child, sibling, spouse or domestic partner (of the judge); second degree meaning a grandparent, grandchild, in-laws of the first degree, aunts, uncles, nephews and nieces; and third degree meaning "cousins and beyond".[13]

[21]     The ‘guidance’ offered by the Guide is that a judge should not sit on a case in which the judge is in a relationship of the first, second or third degree to a party or the spouse or domestic partner of a party.

[22]     The Guide’s treatment[14] of a judge’s relationship to counsel or solicitors is as follows (underline emphasis added):

“Where the judge is in a relationship of the first or second degree to counsel or the solicitor having the actual conduct of the case, or the spouse or domestic partner of such counsel or solicitor, most judges would and should disqualify themselves.  Ordinarily there is no need to do so if the matter is uncontested or is a relatively minor or procedural matter.  Nor is there a need to do so merely because the person in question is a partner in, or employee of, a firm of solicitors or public authority acting for a party.  In such cases, it is a matter of considering all of the circumstances, including the nature and extent of the involvement in the matter of the person in question.  Some judges may be aware of cases involving such a relationship when the judge has sat without objection, but current community expectations make such conduct undesirable. ….

There may be a justifiable exception by reference to the principle of necessity …, or where the solicitor-relative is a partner or employee of the solicitor on the record, but has not been involved in the preparation or presentation of the case.  There may also be a justifiable exception where, notwithstanding the relationship, the parties to the case consent to the judge sitting but that may depend upon the nature of the relationship, which should be disclosed to the parties before the judge decides whether to sit or not to sit.”

[23]     The parts underlined above do not contain a statement of any principle or rule; rather, my underlining is simply intended to underscore contentions argued before me.  Neither counsel specifically relied on the Guide.  Indeed, Mr Robson of counsel for the plaintiff cautioned against such reliance and drew my attention to the tentative nature of statements in the extracted parts, such as: “… nor is there a need to do so merely because …” (emphasising “merely”) and “There may be a justifiable exception …” (emphasising “may”).  I accept Mr Robson’s submission that the contents of the Guide “are not to be applied as abstract rules or sanitising templates to make regular that which might otherwise publicly appear irregular”.[15]

[24]     I turn to consider the legal principles and authorities in relation to reasonable apprehension of bias.

Reasonable apprehension of bias

[25]     The principle in broad terms, as explained by the High Court in Livesey v NSW Bar Association, is “… that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”[16]

[26]     In Johnson v Johnson, five members of the High Court in joint reasons stated the test to be applied as follows:

“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”[17] 

[27]     Having stated the principle, their Honours continued in Johnson v Johnson as follows (citations omitted):

“That test … gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. … It is based upon the need for public confidence in the administration of justice.  ‘If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision’. … The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.  At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’ … . 

… the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, … ”[18] 

[28]     In Ebner v Official Trustee,[19] four members of the High Court in joint reasons explained the two-step requirement in the application of the apprehension of bias principle:

“The apprehension of bias principle admits of the possibility of human frailty.  Its application is as diverse as human frailty.  Its application requires two steps.  First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  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.  Only then can the reasonableness of the asserted apprehension of bias be assessed.”

[29]     In a subsequent passage of the joint reasons,[20] their Honours referred to the disqualification category of “association” identified by Deane J in Webb v The Queen [21] and made the following further observations:

“It is not only association with a party to litigation that may be incompatible with the appearance of impartiality.  There may be a disqualifying association with a party’s lawyer, or a witness, or some other person concerned with the case.  In each case, however, the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits.  As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies.  Similarly, the bare identification of an “association” will not suffice to answer the relevant question.  Having a mortgage with a bank, or knowing a party’s lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.  …”[22]

The question the magistrate is to decide

[30]     I refer to the summary prosecution of the second defendant described in par [10] above.  The role of the trial magistrate in a case prosecuted on complaint in the Court of Summary Jurisdiction is to decide whether the prosecution (the complainant) has proven the defendant’s guilt on the charge beyond reasonable doubt.  The magistrate is the sole judge of fact and law.  Mr Robson has informed this Court that, to his knowledge, there is nothing special about the summary prosecution against the second defendant which triggered the application that the learned magistrate recuse herself; he described it as a “generic” prosecution.  Mr Robson was not aware of any particular issues in the case, such as a challenge to the admission of confessional evidence or other significant trial issues requiring the exercise of a judicial discretion on the part of the magistrate.  Nonetheless, it appears from the transcript that argument was foreshadowed in relation to a disputed proposed amendment to the complaint to change the first name of the victim of the alleged assault, and although preliminary arguments of this kind are not unusual, a decision adverse to the prosecution on this point could result in the dismissal of the complaint.   

[31]     If the magistrate were to find the second defendant guilty, her Honour would have to exercise one or more discretions in sentencing, for example: whether or not to convict; the nature of the penalty to be imposed (given a wide range of possible sentencing dispositions under s 7 Sentencing Act); whether or not to wholly or partially suspend a term of imprisonment, and if so, on what conditions.

The plaintiff’s case

[32]     The plaintiff’s counsel refers to the dot-pointed facts set out below and contends (with the agreement of Mr Bruxner of counsel) that I should attribute knowledge of them to the notional fair-minded lay observer “occupying the public gallery at the time the proceedings came on for hearing”: 

·          The defendant before the court was represented by a legal practitioner in the employ of CAALAS.

 

·               CAALAS is a wholly public funded body that provides and facilitates legal representation for Indigenous clients in Central Australia.

 

·               CAALAS represents the majority of Indigenous defendants appearing before the Alice Springs Court of Summary Jurisdiction on a daily basis.

 

·               Within the CAALAS management hierarchy the Principal Legal Officer is the lawyer ultimately responsible for the provision of legal services to criminally accused persons and the supervision of employed legal practitioners in that regard.

 

·               The Principal Legal Officer has no direct or indirect pecuniary interest in the outcome of any proceeding in which CAALAS provides representation.

 

·               Mr O’Reilly is the Principal Legal Officer of CAALAS.

 

·               The presiding magistrate is married to Mr O’Reilly.

 

[33]     Although the fair-minded lay observer is taken not to know the character and ability of the first defendant, that person nonetheless is taken to know “all the relevant objective facts”.[23]  I see no reason not to accept the invitation of both counsel to attribute knowledge of the above objective facts to the notional fair-minded lay observer, although I note and accept Mr Bruxner’s submission that the third dot-pointed fact is not presently relevant, given that the plaintiff’s application for prohibition is now case-specific to the one prosecution matter.  

[34]     To satisfy the Ebner ‘first step’ requirement, explained in par [28] above,  the plaintiff has identified in particular the first, fourth, sixth and seventh of the dot-pointed facts as matters which might lead the learned magistrate to decide the case before her other than on its legal and factual merits.

[35]     The question thus becomes: might a fair-minded lay observer reasonably apprehend from those facts that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the question the magistrate is required to decide?

Difficulties with the fair-minded lay observer test

[36]     A difficulty with the application of the test to any given fact situation is that it is doubly predicated on possibility.  The test twice uses the word “might”: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question for decision.  That indicates that the threshold is low, although it should not be set too low because High Court authority requires that the observer is taken to be reasonable,[24] and that the possibility that the judge might not bring an impartial and unprejudiced mind to the decision must be real and not remote.[25]

[37]     A second difficulty with application of the test is that one fair-minded lay observer, acting reasonably, may reach a different conclusion on the relevant possibility (judicial impartiality) to that reached by another fair-minded lay observer, also acting reasonably.  The difference in their conclusions may derive from whether they are ‘modern’ or conservative in general outlook; from differences in their gender, age, education, sophistication, and experience of life (including whether they have been married and, if so, what their experience of married life has been); and from differences in intelligence and aptitude for ‘detached’ or objective thought.

[38]     There could thus be a wide range of personal characteristics and personalities possessed by lay observers all of whom would nonetheless properly qualify as “fair-minded” and whose apprehension of relevant matters would be reasonable.  The authorities do not dictate that there is only one type of fair-minded lay observer.  Relevant to the present case, attitudes to the relationship between the first defendant and Mr O’Reilly may vary considerably, depending on the observer’s attitudes to marriage relationships generally.  An older, conservative and perhaps more traditional fair-minded lay observer may have a different understanding of the dynamics of a marriage relationship (including as to the role and influence of the male spouse in that relationship) to that of a younger, less conservative, fair-minded lay observer.  The gender of the lay observer does not necessarily have any bearing, but it cannot be excluded.

[39]     A third difficulty with application of the test is that, when an issue of apprehended bias arises, it is a judge with presumably many years of experience as a lawyer, steeped in the ways of the law, and with intricate knowledge of how the process of the administration of justice works at many levels, who has the task determining what a lay observer might reasonably apprehend.  The judge has to ‘pretend’ that he or she is someone else, albeit someone who is not completely unaware of the way in which the justice system works, but who is nonetheless an outsider to the system.

The plaintiff’s contentions

[40]     To satisfy the Ebner ‘second step’ requirement, the plaintiff in written submissions seeks to articulate the connection between the matter and the “feared deviation from the course of deciding the case on its merits” as follows: 

“On the basis of the above objective facts a fair-minded lay observer would discern the closest of associations between the presiding magistrate and a person connected with the representation of a party.  That person, Mr O’Reilly, is the presiding magistrate’s spouse and he is the person within CAALAS who is ultimately responsible for the representation of the defendant through a legal practitioner working under his management and supervision.  In those circumstances a fair-minded lay observer would have cause for a concern that the presiding magistrate might (ie. as a possibility not probability) be unduly favourable to the party under CAALAS representation.

The possibility of impartiality hardly requires elaboration.  It is instinctive and arises from common experience of the nature of a marriage as the closest of all personal relationships and of human frailties.  Husbands and wives tend to support each other in their respective personal and professional endeavours, often in appropriate ways but sometimes in inappropriate ways including ways that they may not be fully conscious of.

…. The added fact of the marital relationship does nothing to ameliorate the apprehension of bias.  Rather, it highlights the difficulties involved with the appearance of things where a judicial officer is presiding over a court in a relatively small town and her spouse has an obvious professional interest in cases being litigated before the court on a daily basis.  Again, the concern is entirely about matters of perception and what might be thought as a possibility by a fair-minded lay observer. …”.[26]  

[41]     Mr Robson developed his submissions at the hearing before me, referring to the particular commitment which, he said, CAALAS lawyers have to their clients.  He submitted that a fair-minded lay observer might reasonably apprehend that the first defendant, because of her marriage to Mr O’Reilly, was too close to CAALAS and its important work.    

[42]     Mr Bruxner submits that there is no apprehended bias.  He contends that the plaintiff has failed to articulate how the existence of the first defendant’s association by marriage to Mr O’Reilly might be thought (by the fair-minded lay observer) possibly to divert the first defendant from deciding the case against the second defendant on its merits.  In brief, he submits that the plaintiff has failed to establish the Ebner ‘second step’ requirement.  Mr Bruxner points out in addition that the fair-minded observer is taken to be aware of the fact that the first defendant is a judicial officer sworn to act impartially[27] and that the fair-minded observer would not be unaware of the fact that Mr O'Reilly in his professional capacity is subject to strict ethical obligations.

[43]     Mr Bruxner argues that there is no suggestion that Mr O'Reilly has or has had any “close involvement in the conduct of the second defendant’s defence of the charges against her (such that he could be regarded as actively involved in her representation)”. Although I accept this is correct, I do not think that I am able to attribute such background knowledge to the notional fair-minded lay observer. I take that person to know only the dot-pointed facts set out in par [32] above and such secondary facts as may be logically concluded from them. That person would not be aware of the extent of Mr O'Reilly’s actual involvement, close or otherwise, in the defence of the second defendant and would not, for example, be aware of the protocols and less formal measures (if any) put in place by CAALAS and Mr O’Reilly to ensure that the criminal matters ‘touched’ by Mr O'Reilly are notified to the responsible court listing officer so that they will not be listed for hearing by the first defendant. Awareness of those matters could well dispel the lay observer’s apprehension of bias, but I do not take the notional fair-minded lay observer to have that degree of awareness,  

[44]     Mr Bruxner argues finally that, even though a fair-minded lay observer might reasonably think that the first defendant and Mr O'Reilly, as a married couple, would be generally supportive of each other's professional endeavours, such fair-minded lay observer could not reasonably think that such mutual support would be provided otherwise than by absolute respect for the proper administration of justice.  This submission has caused me particular difficulty in deciding the plaintiff’s application, because it reflects my own view of the first defendant and her undoubted high level of integrity.

[45]     However, I must bear in mind that the relevant test is an objective one and is founded in the need for public confidence in the judiciary. It cannot be based purely upon my assessment of the capacity and integrity of another judicial officer, or upon my assessment of the integrity of a senior and well-respected legal practitioner such as Mr O’Reilly.   

[46]     In my judgment, application of the objective test has the result that the association between the first defendant and Mr O'Reilly is a disqualifying association.  A fair-minded lay observer might reasonably apprehend from the combination of the first, fourth, sixth, and seventh of the dot pointed facts in par [32] that the first defendant might not bring an impartial and unprejudiced mind to deciding the prosecution case against the second defendant.

[47]     I will hear the submissions of counsel before I make final orders, but I would propose an order that the first defendant be prohibited from continuing with the hearing of the prosecution of the second defendant referred to in par [10] of these reasons.   

---------------------------



[1]     The appointment was made under s 9A Magistrates Act, sub-section (1) of which provides: “Where the Attorney-General is of the opinion that the efficient administration of justice requires it, the Attorney-General may appoint an eligible person to be a Relieving Magistrate for such period, not exceeding 6 months, as is specified in the instrument of appointment.”

[2]     s 9A(3) Magistrates Act.

[3]     Exh P5, CAALAS Annual Report 2011, p.26. An ‘ALSO’ is an Aboriginal Legal Support Officer.

[4]     Exh P5, CAALAS Annual Report 2011, pp. 7, 26.

[5]     Johnson v Johnson [2000] HCA 48; 201 CLR 488.

[6]     Ebner v Official Trustee (2000) 205 CLR 337 at 345.

[7]     Transcript 3/10/2012, p. 6 et seq., annexure “A” to the affidavit of Stephen Robson sworn 5 October 2012.

[8]    R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 262.8; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 618 and Magistrates Court v Murphy (1996) 89 A Crim R 403 at 432-433.

[9]     consistent with the course encouraged by the High Court in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35.

[10]    see s 17(1)(b)(ii) Crown Proceedings Act.

[11]   “Guide to Judicial Conduct” (2002) published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration.

[12]    Webb v The Queen (1994) 181 CLR 41 at 74.

[13]   The Guide also refers to the need to consider relationships with friends and past professional or other associates. In that context, the Guide suggests that personal friendship with a party is a compelling reason for disqualification, but explains that friendships should be distinguished from acquaintanceship which may or may not be a sufficient reason for self disqualification depending upon the nature and extent of such acquaintanceship.

[14]    Chapter 3.3.4, paragraph (b).

[15]    Plaintiff’s submissions, paragraph 26.

[16]    Livesey v NSW Bar Association (1983) 151 CLR 288 at 293.9.

[17]   Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11], referring to Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; and Webb v The Queen (1994) 181 CLR 41.  The same test for reasonable apprehension of bias was most recently stated in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ.

[18]    citing Deane J in Webb v The Queen (1994) 181 CLR 41 at 73.

[19]    Ebner v Official Trustee, (2000) 205 CLR 337 at [8], per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[20]    Ebner v Official Trustee, (2000) 205 CLR 337 at [30].

[21]    See par [16] above.

[22]    Neither of the conjoined appeals in the High Court Ebner decision:  Ebner v Official Trustee in Bankruptcy and Clenae Pty Ltd and ors v ANZ Bank were “association” category disqualification cases; they were both “interest” (pecuniary interest) category disqualification cases.  However, there is no doubt that the statements of the plurality in Ebner at [8] and [30] are applicable to “association” category disqualification cases, not only because of the observations in Ebner at [30] but also because of the adoption of what was said in Ebner at [8] in Smits v Roach [2006] HCA 36; 80 ALJR 1309 by Gleeson CJ, Heydon and Crennan JJ at [53] – [54] and by Gummow and Hayne JJ at [56].

[23]    Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 at 533, per Bray CJ; R v Cavit and anor; Ex parte Rosenfeld (1985) 23 NTR 29 at 33.50-34.10, per Nader J.

[24]    Johnson v Johnson (2000) 201 CLR 488 at [12]. 

[25]    Ebner v Official Trustee (2000) 205 CLR 337 at [7].

[26]    Plaintiff’s submissions paragraphs 16, 17 and 35.

[27]    Johnson v Johnson (2000) 201 CLR 488 at [12].