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Supreme Court 16 April 2015

Lazarus v Director of Public Prosecutions (NSW)

[2015] NSWSC 426

Fraud & dishonesty
ADMINISTRATIVE LAW JUDICIAL REVIEW PREROGATIVE RELIEF SOUGHT PROHIBITION AND CERTIORARI WHETHER MAGISTRATE BIASED NO BASIS ESTABLISHED

Citation: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426
Court: Supreme Court of New South Wales
Date: 16 April 2015
Judge(s): Garling J

Background

Following a lengthy Local Court hearing, a magistrate found the applicant guilty of 44 criminal offences involving fraud and the creation of false instruments, while acquitting her of 14 others. The applicant had been charged with making false or misleading statements to obtain a financial advantage, and with creating forged documents including invoices and vendor registration forms. The prosecution alleged the signatures on those documents were forgeries; the applicant maintained they were genuine and were witnessed by her.

Before the sentencing hearing could take place, the applicant commenced proceedings in the Supreme Court seeking to have the magistrate disqualified and the Local Court proceedings reheard before a different magistrate. The applicant, who was self-represented in these proceedings, raised 11 grounds alleging actual bias, apprehended bias, errors of law, and errors of fact.

The Director of Public Prosecutions opposed the application. The Supreme Court expedited the proceedings because the Local Court matter had been temporarily stayed pending the outcome.

Legal Issues

  • Whether the magistrate was actually biased or whether a fair-minded observer would reasonably apprehend bias, based on the magistrate's conduct during the trial and at the time of remanding the applicant into custody
  • Whether the magistrate erred in law by refusing to treat expert handwriting evidence as determinative of the forgery question
  • Whether identified factual errors in the magistrate's judgment were sufficiently material to warrant prerogative relief
  • Whether the court should exercise its discretion to grant prohibition or certiorari in the circumstances, even if error were established

Decision

Grounds 1 and 2 (Bias and Apprehended Bias):
The applicant's counsel had applied to the magistrate on 8 October 2014 for recusal, pointing to the magistrate's differential treatment of two witnesses: an alleged failure to intervene when a prosecution witness gave unresponsive answers, contrasted with interventions during the applicant's own evidence-in-chief. Garling J rejected this as a foundation for bias. The transcript of the applicant's evidence showed she had frequently failed to answer questions directly, and the magistrate's interventions were appropriate (at [41]-[42]). The magistrate's own brief remarks declining to recuse herself contained nothing inappropriate and revealed no legal error (at [35]). No basis for actual or apprehended bias was established (at [44]-[45]).

Ground 3 (Transcript Complaint):
The applicant complained that the transcript of 15 October 2014 contained an inaccuracy and omitted any record of the recusal application. Garling J found the statement referred to was entirely unremarkable and that no reviewable error arose from it (at [46]).

Ground 4 (Expert Handwriting Evidence):
The applicant argued the magistrate erred by not treating the defence handwriting expert's evidence as determinative, instead weighing it alongside all other evidence including the individual doctors' denials. Garling J confirmed this approach was legally correct, citing established authority that a tribunal of fact is entitled to consider all evidence on a question of signature genuineness and is not bound by expert evidence alone (at [70]-[72]). Neither case relied on by the magistrate had been overruled.

Ground 5 and Ground 10 (Factual Errors):
Ground 5 concerned the magistrate's reference to the applicant completing "hundreds of trials" when the evidence related to tests within trials. Garling J found this transposition had no substantive effect on the reasoning (at [74]-[75]). Ground 10 concerned a reference by the magistrate to a "trained monkey" carrying out the relevant test, for which there was no direct evidential foundation. Garling J accepted this specific comment was erroneous, but found it appeared at the end of a list of eight independent reasons for doubting the applicant's credibility, any one of which would have been sufficient on its own. The error had no material effect on the overall decision (at [78]-[80]).

Grounds 6, 7, 8, 9 and 11 (Other Factual Complaints):
These grounds challenged various other factual findings. Garling J was not persuaded that any of them had been made out, finding the magistrate's remarks were supported by the evidence (at [81]).

Events of 27 November 2014 (Remand into Custody):
The applicant also relied on events following delivery of the verdict, when the magistrate directed she be held in custody until bail conditions were met. Garling J found this was an ordinary and not atypical step in proceedings of this kind. The magistrate was not responsible for the duration of the applicant's custody, which depended on her own compliance with bail conditions, nor for the conditions in which she was held, which were the responsibility of Corrective Services officers (at [90]-[91]). The suggestion that the magistrate was connected to an unnamed individual who made some approach to the applicant in custody was described as wholly without factual or logical foundation (at [92]).

Discretion:
Garling J also addressed the discretion to grant prerogative relief, noting that even had any error been established, he would not have exercised it. Two reasons were given. First, the applicant had a full right of appeal to the District Court by way of rehearing, which provided a more convenient and satisfactory remedy (at [97]). Second, courts are generally reluctant to intervene by way of supervisory jurisdiction in criminal proceedings before they are complete, and there was no reason to depart from that approach here (at [99]-[100]).

Orders Made

  • Amended Summons dated 12 February 2015 dismissed.
  • Plaintiff to pay the first defendant's costs.

Key Takeaways

  • A magistrate's refusal to recuse is not legally erroneous merely because counsel or a party holds a subjective view that bias exists. The test is objective: whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the question to be decided (at [27], [43]).

  • Where a trial judge intervenes to manage a witness who is not responding to questions, that conduct does not, without more, demonstrate inconsistent treatment or give rise to a reasonable apprehension of bias. The judicial officer's obligation to manage the giving of evidence applies to all witnesses (at [39], [42]).

  • Under established New South Wales authority, handwriting expert evidence is not determinative of a question of signature genuineness. The tribunal of fact must consider it alongside all other evidence, including direct evidence from the alleged signatories (at [70]-[72]).

  • An identifiable factual error in a judgment does not automatically warrant prerogative relief. Where the error is isolated and the remaining reasoning is independently sufficient to support the conclusion reached, the error will be treated as having no substantive effect on the decision (at [78]-[80]).

  • Prerogative relief in the nature of prohibition or certiorari is discretionary, and the Supreme Court will generally decline to intervene in Local Court criminal proceedings that have not yet concluded, particularly where a full right of appeal to the District Court by way of rehearing provides an adequate and more appropriate remedy (at [97], [99]-[100]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013
- Crimes (Appeal and Review) Act 2001
- Crimes Act 1900
- Disability Discrimination Act 1992 (Cth)
- Supreme Court Act 1970

Cases
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
- Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45
- Gawne v Gawne (1979) 2 NSWLR 449
- Jeans v Cleary [2006] NSWSC 647
- Jenkins v Director of Public Prosecutions [2013] NSWCA 406
- Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531
- Lee v Cha [2008] NSWCA 13
- Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
- R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389
- R v Watson; Ex parte Armstrong (1976) 136 CLR 248
- Re JRL; Ex parte CJL (1986) 161 CLR 342
- Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CL 82
- Vakauta v Kelly (1989) 167 CLR 568
- W O v Director of Public Prosecutions NSW [2009] NSWCA 370