Attorney-General (NT) v Director of Public Prosecutions & Ors

[2013] NTCA 2

 

PARTIES:                                         Attorney-General (NT)

 

                                                         v

 

                                                         Director of Public Prosecutions,

                                                         Sarah McNamara

                                                         and Sharleen Jane Waye;

                                                         Ex parte Lindsay Westphal

 

TITLE OF COURT:                          COURT OF APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                              CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                         AP 13 of 2012 (21236565)

 

DELIVERED:                                   25 February 2013

 

HEARING DATES:                          7 February 2013

 

JUDGMENT OF:                              Mildren ACJ, Kelly and Blokland JJ

 

APPEAL FROM:                               Supreme Court (Barr J)

 

CATCHWORDS:

Procedure – Courts and judges generally – conflict of interest – reasonable apprehension of bias by a fair-minded observer – objection to Relieving Magistrate hearing any matter involving clients of Central Australian Aboriginal Legal Aid Service – Magistrate married to Principal Legal Officer of the Service.

 

Guide to Judicial Conduct 2nd Edition (2007) pp 12 – 13

Legal Profession Act

Magistrates Act s 9A

 

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Johnson v Johnson (2000) 201 CLR 488, Livesey v New South Wales Bar Association (1983) 151 CLR 288, Smits v Roach (2006) 227 CLR 423, Vakauta v Kelly (1989) 167 CLR 568, followed.

 

Fingleton v Ivanoff Pty Ltd (1976) 14 SASR 530,

R v Cavit & Another; ex parte Rosenfield (1985) 33NTR 29,

R v Moss; ex parte Mancini (1982) 29 SASR 389, referred.

 

REPRESENTATION:

 

Counsel:

    Appellant:                                    J Elferink (Attorney-General),

                                                         M Grant QC (Solicitor-General)

                                                         and R Bruxner

    First Respondent:                        R Webb QC

                                                         and N Kumar

    Second and Third Respondents:  No appearance

 

Solicitors:

    Appellant:                                    Solicitor for the Northern Territory

    First Respondent:                        Director of Public Prosecutions

    Second Respondent:                    Povey Stirk

    Third Respondent:                       CAALAS

 

Judgment category classification:   A

Number of pages:                            20


IN THE COURT OF APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Attorney-General (NT) v Director of Public Prosecutions & Ors

[2013] NTCA 2

No. AP 13 of 2012 (21236565)

 

 

                                                     BETWEEN:

 

                                                     Attorney-General (NT)

                                                         Appellant

 

                                                     AND:

 

                                                     Director of Public Prosecutions,

                                                     Sarah McNamara

                                                     And Sharleen Jane Waye;

                                                     Ex parte Lindsay Westphal

                                                         Respondent

 

CORAM:    Mildren ACJ, Kelly and Blokland JJ

 

REASONS FOR JUDGMENT

 

(Delivered 25 February 2013)

 

MILDREN ACJ and BLOKLAND J:

[1]       This is an appeal from a declaration made by a Judge of this Court that a Relieving Magistrate be disqualified by reason of apprehended bias from dealing with proceeding number 21205970 in the Court of Summary Jurisdiction in Alice Springs.

[2]       The respondent, Sarah McNamara, is the Registrar of the Supreme Court in Alice Springs.  She has also been a Judicial Registrar of the Local
Court for many years.  In about September 2012, Ms McNamara was appointed a Relieving Magistrate for a period of approximately two months ending in or about November 2012.  On the morning of 3 October 2012, Ms McNamara was listed to hear a summary prosecution in the matter of Lindsay Westphal v Sharleen Jane Waye.  The precise nature of the charges brought against the defendant is not known, but it would appear that she was charged on complaint and summonsed with assault.  There may have been other charges as well.

[3]       When the matter was called on for hearing, a practitioner, Mr McGrath, appeared to prosecute the matter and Mr Sullivan appeared on behalf of Ms Waye.  There was some discussion about the fact that Ms Waye had not yet appeared and that there appeared to be an administrative error in the fixing of the date for the hearing.  Mr Sullivan asked that the matter be stood down whilst a field officer was sent out to see if the defendant could be located.  At this time, Mr Robson of counsel announced his appearance stating that he was instructed by the informant to make an application that her Honour excuse herself from hearing the matter.  Following submissions by Mr Robson, the learned Magistrate declined to excuse herself.  The nature of the application made by Mr Robson was that the learned Magistrate should disqualify herself because of her association with the Principal Legal Officer for the Central Australian Aboriginal Legal Aid Service (CAALAS) which employed Mr Sullivan.  It is a notorious fact that Ms McNamara is married to Mr Mark O’Reilly, who was then the Principal Legal Officer of CAALAS.  In that capacity, Mr O’Reilly had overall responsibility for the legal representation of clients of CAALAS, who appeared as defendants in the Court of Summary Jurisdiction and the Youth Justice Court.  Most of the clients represented by CAALAS in the lower courts are, in fact, represented by lawyers employed by CAALAS who practise under the supervision of Mr O’Reilly.  No submission was made that the learned Magistrate had any actual knowledge of any of the circumstances relating to the case which was about to be tried before her.  The submission was made simply that a fair-minded lay observer sitting in court would have cause for concern that her Honour was presiding over a matter where her Honour’s husband effectively was responsible for the representation of the defendant through an employed solicitor.  The learned Magistrate adjourned shortly and then refused the application on the basis that there was no articulation of a logical connection between the matter before her and the feared deviation of the Court deciding the case otherwise on its merits, as required by the second limb of the test articulated by the High Court in Ebner v Official Trustee in Bankruptcy.[1]  There was no suggestion that Mr O’Reilly had had any direct involvement in the matter.

[4]       The learned Magistrate was not invited to disclose whether she had any knowledge of the matter as a result of her marriage to Mr O’Reilly.  But it would appear from her comments that, if her husband had had any direct involvement, she would reconsider her position, but she had no actual knowledge of the matter.  Having delivered her Honour’s ruling, the Court adjourned until 2:00 pm to deal with another application which Mr Robson made that her Honour should adjourn hearing the case to enable a motion for prohibition to be filed in the Supreme Court.  That application was also refused but, in the end result, the matter did not proceed for other reasons.

[5]       Subsequently, on 5 October 2012, the Director of Public Prosecutions brought proceedings in this Court by way of originating motion for an order in the nature of prohibition to prohibit the learned Magistrate from proceeding to a summary hearing of the matter.  Orders in the nature of certiorari quashing the Magistrate’s decision to refuse to disqualify herself and seeking a declaration prohibiting her from proceeding to hear a summary hearing, a guilty plea, a contested bail application, or any other matter which was not procedural or administrative where the defendant is represented by a legal practitioner employed by the CAALAS were also sought.

[6]       When the matter came before Barr J, his Honour made a declaration that the learned Magistrate was disqualified by reason of apprehended bias from dealing with proceeding number 21205970 in the Court of Summary Jurisdiction in Alice Springs. 

[7]       From this decision, the Attorney-General, who intervened in the proceedings before Barr J, has appealed to this Court.

[8]       The facts which Barr J considered as relevant to his decision included the following.  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 service centre for surrounding communities (these populations are largely indigenous), for mining and pastoral enterprises, and the tourist industry.

[9]       There are four magistrates permanently based in Alice Springs.  They exercise criminal jurisdictions in the Court of Summary Jurisdiction and the Youth Justice Court, but also civil jurisdictions in 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, Nhulunbuy, Papunya, Yuendumu and Mutitjulu (Uluru), to name a few.

[10]    The majority of defendants in criminal proceedings in the Court of Summary Jurisdiction in Alice Springs and elsewhere in Central Australia are Aborigines, who are generally represented by CAALAS.

[11]    Ms McNamara holds a substantive position as Registrar of the Supreme Court in Alice Springs.  Following her recent appointment by the Attorney-General to be a Relieving Magistrate for approximately two months, in that capacity she had “all the powers, functions and duties conferred and imposed upon a Stipendiary Magistrate by a law of the Territory”.[2]

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

[13]    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 the conduct of serious criminal case work.[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 CAALAS’ case load, most clients are represented by other lawyers employed by CAALAS who practice under the supervision of Mr O’Reilly.

[14]    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]

[15]    Barr J noted that it was inevitable that, as Ms McNamara carried out the duties of a Relieving Magistrate 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.

[16]    In addition to those matters, the learned Judge noted that counsel by agreement acknowledged that his Honour should attribute knowledge to the notional fair-minded lay observer occupying the public gallery at the time the proceedings came on for hearing of the following dot points:

·     The defendant before the Court was represented by a legal practitioner employed by 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 one ultimately responsible for the provision of legal services to criminally accused persons and the supervision of the 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.

[17]    His Honour referred to the test as stated in Johnson v Johnson:[5]

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 (which, in the present case, was said to take the form of prejudgment) 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.

[18]    Subsequently, their Honours observed:

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”.”

[19]    Subsequently, Barr J referred to the two-step requirement in the application of the apprehension of bias principle established in Ebner v Official Trustee in Bankruptcy:[6]

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 (or juror) 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 (or juror) 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.”

[20]    As Barr J correctly recognised, the observations of the four members of the Court in Ebner quoted above were applied where the basis of the assertion is association with somebody who is said to have an interest in the litigation: Smits v Roach.[7]

[21]    Barr J observed that so far as the summary prosecution before the learned Magistrate is concerned, there was nothing special about it which triggered the application that the learned Magistrate should excuse herself; he described it as a “generic” prosecution.  He 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 judicial discretion on the part of the learned Magistrate.  Nevertheless, his Honour recognised that the learned Magistrate may well be required to exercise one or more discretions during the course of the hearing if it went ahead.

[22]    The learned Judge, after referring to the steps required by the Ebner test, concluded that the association between the learned Magistrate and Mr O’Reilly was one that a fair-minded lay observer might reasonably apprehend from the combination of four of the factors which his Honour identified that the learned Magistrate might not bring an impartial and unprejudiced mind to deciding the prosecution case against the second defendant.  The four factors his Honour identified were a combination of the first, fourth, sixth and seventh of the dot points set out in paragraph [16] above.

The appellant’s contentions

[23]    Counsel for the appellant submitted that the four factors which his Honour identified were insufficient to draw the conclusion which his Honour did.  Secondly, it was submitted that his Honour too narrowly limited the facts which would be known to the fair-minded lay observer.  Thirdly, it was submitted that when all of the facts which should be attributed to the fair-minded lay observer are considered, the proper conclusion would not be that there was any basis for a reasonable apprehension of bias on the part of the fair-minded lay observer.  These submissions encapsulated the four grounds set out in the Notice of Appeal.

The relevant facts known to the lay observer

[24]    We accept the appellant’s submission that his Honour limited his consideration of the relevant facts known to the lay observer to the matters referred to in the dot points set out in paragraph [16] above, and such secondary facts as may be logically concluded from them.  Counsel for the respondent, Ms Webb QC, contended that this was the correct approach, and did not bespeak error.

[25]    Counsel for the appellant, Mr Grant QC, submitted that there were other factors which the learned Judge should have taken into account.  First, it was submitted that there was no agreement between counsel at first instance that limited the relevant factors to those identified by his Honour.  We accept that submission.  Secondly, it was submitted that his Honour was bound by authority to take into account the respective ethical obligations of the learned Magistrate and of Mr O’Reilly.  Ms Webb QC conceded that the fair-minded lay observer is taken to be attributed with the knowledge that judicial officers are presumed to be more able than others to resist the likelihood of partiality because of their training, tradition and oath or affirmation of office, which require them to discard the irrelevant, the immaterial and the prejudicial.[8]  But the reasonable lay observer is not presumed to reject the possibility of pre-judgment or bias; nor is he presumed to have any personal knowledge of the character or ability of the learned Magistrate.[9]  Nevertheless, the reasonableness of the fictional observer is to be tested in the context of ordinary judicial practice.[10]  Cases of necessity aside, ordinary judicial practice requires that a judicial officer does not sit in a case where his spouse appears as counsel for a party; or is the solicitor having the actual conduct of the case.  The general rule is recognised by the Guide to Judicial Conduct published for The Council of Chief Justices of Australia by the Australasian Institute of Judicial Administration Incorporated.[11]  But the Guidelines are not rules of law the breach of which would necessarily lead to the disqualification of the judicial officer[12] and, in any event, do not purport to advise against sitting in a case such as the present when there is no suggestion that Mr O’Reilly is acting as either counsel for the accused or is the solicitor actually handling the matter for the accused.

[26]    We accept also that the fictitious lay observer would be aware in a general sense of the obligations of confidentiality owed by a solicitor to his client, and that it would be most improper for a solicitor to attempt to influence a judicial officer outside of the normal court processes where all of the parties and their legal representatives are present, and likewise, it would be quite wrong for a judicial officer to discuss a case with a solicitor in the same circumstances.  Whilst we accept that the fictitious observer may well assume that married couples talk about their work generally, we do not consider that we should attribute to this observer a suspicion that they may also talk about particular matters in a manner which also be a gross dereliction of their respective obligations.  Should, inadvertently or otherwise, there be even the most minor breach of these fundamental obligations, the duty of the judicial officer is to reveal it fully to the parties immediately.

[27]    In the present case, because the objection is of a general nature going, not only to the particular case, but to all cases involving CAALAS’ clients of which the present case is representative, it is pertinent to recall that CAALAS is a wholly publicly funded body.  It provides legal assistance for literally thousands of Aboriginal clients every year, most of whom are represented by lawyers described as Criminal Legal Officers.  All of CAALAS’ lawyers are paid a salary.  There is not the slightest evidence that they, CAALAS or Mr O’Reilly, has a financial interest in the outcome of any case, even for costs.  The number of cases which CAALAS deals with each year runs into several thousands.  It is unlikely in the extreme that Mr O’Reilly would have the time, or that there would be a need, for his personal involvement in all but the most serious cases, or perhaps those where there is an important matter of principle at stake.  There is no evidence that he had any personal involvement in the present case.

Disposition

[28]    In our opinion, the facts of this case do not, within the second limb of the Ebner test, establish a logical connection between the actual case which the learned Magistrate was hearing and the feared deviation from the course of deciding the case on its merits.  Indeed, no connection between the particular case and that of any other case was asserted.

[29]    Most of the cases where association by interest has been held to be sufficient to disqualify a judicial officer concern the relationship between the judicial officer and one of the litigants, or between the judicial officer and a lawyer for a party either appearing personally for a party or being directly involved in the particular case to be decided.  There are only a few cases where there was a blanket finding that a judicial officer could not sit on any cases involving a class of parties such as defendants in summary matters.  The decision in Fingleton v Christian Ivanoff Pty Ltd[13] is one such case.  In that case, the reason for the prohibition was because the magistrates were all public servants subject to and subordinate to the Crown solicitor who was the permanent head of the relevant department: cf R v Moss; ex parte Mancini.[14]  Another was R v Cavit & Another; ex parte Rosenfield[15] where a Crown prosecutor was appointed an Acting Magistrate, but had not severed his connection with the Crown prosecutor’s office.  The only point these cases illustrate is that, in some circumstances, the relationship of a judicial officer may be such as to prevent him or her from hearing not only the actual case before him or her, but a class of cases of the same kind.

[30]    The respondent’s argument boils down to the possibility that the learned Magistrate might be unconsciously inclined to favour CAALAS’ clients in some way due to the marital relationship.  There might be an unconscious tendency to favour CAALAS clients because the Magistrate might want to assist her husband’s professional career prospects, for example.

[31]    Of course, these are questions of degree.  As it was succinctly put in Smits v Roach[16] and in Ebner,[17] the concept of interest (like the concept of association) is protean.  Given the structure of CAALAS and the volume of cases, there is no reason to infer that Mr O’Reilly is acting for a particular CAALAS client simply because he is the Principal or Supervising Legal Officer or because he holds the unrestricted practising certificate for CAALAS.  The position may well be different if the particular case were conducted by an articled clerk of Mr O’Reilly’s; but in the context of the structure of CAALAS, there is no reason to infer that Mr O’Reilly has conduct of a case merely because of the position he holds.  Nothing in Part 2.8 of the Legal Profession Act (NT) requires a conclusion to the contrary.  It is hard to imagine that a relieving magistrate sitting daily in case after case involving Aboriginal people charged with minor offences would, either consciously or unconsciously, be influenced by the fact that the lawyer representing him was subject to the supervision of her husband.  Although this is not an interest case, it is pertinent to observe that Mr O’Reilly has no personal interest, whether emotional or otherwise, in the outcome of the case.  His only interest is to ensure that CAALAS’ clients are competently represented and get a fair trial according to law.  Equally, it is difficult to see how the outcome of such a case would affect Mr O’Reilly’s chances of personal advancement such as might unconsciously cause the Magistrate to favour CAALAS’ clients.  Practical considerations strongly suggest that Mr O’Reilly, whose duties included a broad range of matters, would not have the time to familiarise himself with every, or even many, of such cases, which could be left to competent solicitors employed by CAALAS.  In our opinion, a fair-minded lay observer would not reasonably apprehend that the learned Magistrate might not have brought an impartial and unprejudiced mind in the resolution of cases involving CAALAS’ clients merely because her husband was the Principal Legal Officer of that organisation.

[32]    We would allow the appeal and order that the declaration be set aside.

KELLY J:

[33]    I have had the benefit of reading the judgment of Mildren and Blokland JJ.  I agree with that decision and, in general terms, with their Honours’ reasons.

[34]    It seems to me that the learned trial Judge fell into error in applying the test for apprehended bias as a result of accepting the submissions of the respondent in relation to the application of the “second stage” requirement in Ebner.[18]  At paragraph [40] of the judgment, his Honour said:

“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 in CAALAS who is ultimately responsible for the representation of the defendant through a legal practitioner under his management and supervision.  In those circumstances, a fair-minded lay observer would have cause for concern that the presiding Magistrate might (ie a possibility not a 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 observer …..”

His Honour eventually accepted these submissions.

[35]    It seems to me that the underlined portion of the plaintiff’s submissions led to error.   Although, as Principal Legal Officer of CAALAS, Mr O’Reilly has a professional interest in seeing that the objects of that organisation are carried out in a competent and professional manner; that is to say that the clients of CAALAS receive proper legal representation and a fair trial; it is far from obvious to me that either CAALAS itself, or Mr O’Reilly as its Principal Legal Officer, has a professional interest in the outcome  of any particular piece of litigation conducted by CAALAS on behalf of a client.

[36]    CAALAS has no professional interest in the outcome of such cases; it is a publically funded legal aid organisation which represents virtually all Aboriginal defendants in criminal matters before the courts in Alice Springs.   Given the purposes for which legal aid organisations exist, it would be surprising – indeed scandalous – if such an organisation were to adopt as one of its objects, or one of its indicators of success, maximisation of the number of acquittals achieved for its clients regardless of the merits.  It seems to me that the hypothetical reasonable bystander should be assumed to be aware of these matters.

[37]    And if CAALAS has no professional interest in the outcome of such cases, a fortiori, Mr O’Reilly, who, as an employee (albeit a senior one) of CAALAS and hence one step further removed from the instant case (which is being conducted by another solicitor) can have no professional interest in its outcome.

[38]    If one removes this false premise from the reasoning process, then I agree with the submission of the appellant that the second limb of Ebner has not been satisfied.  The relevant passage in Ebner is as follows.

“The apprehension of bias principle admits of the possibility of human frailty.  Its application requires two steps.  First, it requires the identification 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 the 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.”[19]

[39]    Once it is realised that neither CAALAS nor Mr O’Reilly has a professional interest in the outcome of the present case (as distinct from ensuring that the accused is competently represented and receives a fair trial according to law), then there is no logical connection between the admitted interest and the alleged feared deviation from the course of deciding the case on its merits.  Quite simply, if her Honour’s husband has no professional interest in the outcome of the case, there can be no logical reason to fear that her Honour might consciously or unconsciously determine that outcome otherwise than on its merits.

[40]    I do not suggest that the fact that the spouse of a judicial officer has some connection to the solicitor for a party can never give rise to an apprehension of bias.  One can readily imagine a case in which, for example, a partner in a small firm of solicitors competing for a share of a limited legal services market might have an indirect professional (and even pecuniary) interest in the outcome of litigation conducted for a client by a solicitor employed by the firm; winning may enhance the professional reputation of the firm and increase its share of the market.   This is not such a case.

[41]    Nor do I suggest that Mr O’Reilly may not have a professional interest in the outcome of litigation in which he personally represented a party.  This is not such a case.

[42]    I agree with Mildren ACJ and Blokland J that the appeal should be allowed and the declaration be set aside.

 

 



[1] (2000) 205 CLR 337 at 345 [8], per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[2] The appointment was made under s 9A of the Magistrates Act.  The powers and functions are set out in s 9A(3) of the Magistrates Act.

[3] Exhibit P5: CAALAS Annual Report 2011, p 26. “ALSO” is an Aboriginal Legal Support Officer.

[4] Exhibit P5: CAALAS Annual Report 2011, pp 7, 8 and 26.

[5] (2000) 201 CLR 488 at 492 [11], per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

[6] (2000) 205 CLR 337 at 345 [8], per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[7] (2006) 227 CLR 423 at 444 [54], per Gleeson CJ, Heydon and Crennan JJ at 445 [59], per Gummow and Hayne JJ, and by Kirby J at pp 462 to 463 [114] – [117].

[8] Vakauta v Kelly (1989) 167 CLR 568 at 584 – 585; Johnson v Johnson (2000) 201 CLR 488 at 493 [12]; cf Baker & Ors v Commonwealth (2013) 293 ALR 635 at 645 – 646 [50].

[9] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299.

[10] Johnson v Johnson (2000) 201 CLR 488 [13].

[11] 2nd Edition (2007) pp 12 – 13.

[12] Cf Fingleton v Ivanoff Pty Ltd (1976) 14 SASR 530 at 534.

[13] (1976) 14 SASR 530.

[14] (1982) 29 SASR 389.

[15] (1985) 33NTR 29.

[16] (2006) 227 CLR 423 at 443 [52].

[17] (2000) 205 CLR 337 at 349 [25], 356 – 358 [54] – [56].

[18] Ebner v Official Trustee (2000) 205 CLR 337.

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