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Local Court 7 December 2022

R v TW

[2022] NSWLC 16

Assault & violence
COURTS AND MAGISTRATES BIAS

Citation: R v TW [2022] NSWLC 16
Court: Local Court of New South Wales
Date: 7 December 2022
Judge(s): Donnelly LCM

Background

The defendant was charged with common assault under the Crimes Act 1900 (NSW). Her solicitor had made a diversionary application under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which was refused by Magistrate Donnelly following a hearing. When the solicitor sought to relist the matter for a second diversionary application, the Registry advised it would come back before the same Magistrate.

The solicitor then sent an email directly to the court Registry, without copying in the prosecutor, requesting that a different Magistrate hear the second application. The email referenced what the solicitor described as a "usual convention" for a different Magistrate to consider a fresh application.

The Registry brought this communication to the Magistrate's attention, and the matter was listed before Donnelly LCM on 1 November 2022. The Magistrate raised the procedural issues arising from the email and then heard the disqualification application on its merits.

Legal Issues

  • Whether a solicitor's email to a court Registry requesting that a Magistrate not preside over a proceeding, sent without notifying the opposing party, was proper under r 22.5 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015
  • Whether such a request should be made in open court rather than by private communication
  • Whether any convention or common law principle required a different Magistrate to hear a second diversionary application after the first had been refused
  • Whether the Magistrate's prior refusal of the first diversionary application gave rise to a reasonable apprehension of bias by reason of pre-judgment

Decision

Issue 1: Propriety of the email communication

The court found that a request for a Magistrate not to preside over an application is a "matter of substance" in current proceedings within the meaning of r 22.5 of the Solicitors' Conduct Rules (at [10]). Sending that request by direct email to the court Registry, without notifying the prosecutor, was therefore prohibited conduct (at [14]). The court drew on Supreme Court authority in Stanizzo v Badarne and Tugrul v Tarrants Financial Consultants, noting that Local Court Registrars function as the medium between the bench and the profession and that communications through them attract the same constraints as communications with a judge's chambers (at [14]). The solicitor acknowledged the oversight and apologised.

Issue 2: Open court requirement

Beyond the r 22.5 concern, the court held that a request for a Magistrate not to preside is a matter that must be dealt with in open court. Transparency is an essential element of the administration of justice, and judicial officers carry a duty to exercise their functions publicly (at [16]).

Issue 3: Whether a convention or rule required a different Magistrate

The court examined the legislative history of diversionary applications in New South Wales in detail. A disqualification provision (originally s 428XA of the Crimes Act and later s 34 of the Mental Health (Criminal Procedure) Act 1990) had existed from 1989 but was deliberately repealed in 2006. The Second Reading Speech for the amending Act made clear the repeal was intended to prevent "magistrate shopping" through spurious applications (at [23]-[24]). Parliament has since enacted the current scheme without reinstating any disqualification provision (at [25]). The court also noted that in country courts and circuits with a single Magistrate, no practice of disqualification for second diversionary applications exists, and such hearings are simply determined on the merits (at [27]). Analogously, no practice of disqualification exists for second bail applications under s 74 of the Bail Act 2013 (at [28]).

Issue 4: Reasonable apprehension of bias

The disqualification application was treated as one based on reasonable apprehension of bias by reason of pre-judgment, given the solicitor disclaimed any allegation of actual bias (at [19]). The court found that no adverse credibility findings had been made against the defendant in the first application, so the Livesey v NSW Bar Association line of authority did not apply (at [33]). The solicitor cited no case law in support of the application. The court held that a second diversionary application is an evaluative discretionary decision to be determined on its merits, and the introduction of new material (such as further psychological evidence) would be considered (at [34]-[35]). The court concluded there was no reasonable apprehension of bias and refused the disqualification application (at [37]).

Orders Made

  • The application that Magistrate Donnelly disqualify himself from presiding in a second diversionary application under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 in the same criminal proceedings where he determined the first application is refused and dismissed.

Key Takeaways

  • A solicitor's request that a Magistrate not preside over a proceeding constitutes a "matter of substance" under r 22.5 of the Solicitors' Conduct Rules, meaning it cannot be communicated directly to the court by email without notifying the opposing party (at [10], [14]).
  • Such a request must be made in open court, consistent with the judicial duty of transparency and the proper administration of justice (at [16]).
  • The deliberate repeal of the former s 34 disqualification provision in 2006 signals that Parliament intended no special rule requiring a different Magistrate to hear a second diversionary application; the common law of judicial bias applies without modification (at [24]-[25]).
  • Refusing a first diversionary application does not, without more, create a reasonable apprehension of bias for a second application, particularly where no adverse credibility findings were made against the defendant (at [33], [37]).
  • Where new material is placed before the court on a second diversionary application, that application is determined on its merits under the relevant statute, in the same manner as second bail applications under s 74 of the Bail Act 2013 (at [35], [37]-[38]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Mental Disorder) Amendment Act 1989 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Mental Health (Criminal Procedure) Amendment Act 2005 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 22.5

Cases
- British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2
- Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
- DPP v Sami El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154
- Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Livesey v New South Wales Bar Association (1983) 151 CLR 288
- Re JRL; Ex parte CJL (1986) 161 CLR 342
- Stanizzo v Badarne [2014] NSWSC 689
- Tugrul v Tarrants Financial Consultants Pty Ltd (in liquidation) [No 2] [2013] NSWSC 1971
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30