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District Court 27 May 2024

R v SF

[2024] NSWDC 249

Public order & justice offences

Citation: R v SF [2024] NSWDC 249
Court: District Court of New South Wales
Date: 27 May 2024
Judge: Wass SC DCJ

Background

This judgment arose during a judge-alone trial in which Wass SC DCJ was deliberating on verdict. On 22 May 2024, the Director of Public Prosecutions (NSW), Ms Sally Dowling SC, sent an email directly to the Chief Judge of the District Court, Justice Sarah Huggett, without the knowledge or consent of the defence or the Crown counsel briefed in the trial.

The email concerned three interlocutory decisions made by Wass SC DCJ: one in the current proceedings (R v SF), one in R v Chambers (2021), and one in R v Stenner-Wall (2023). At the time the email was sent, judgment in R v SF was imminent and sentencing in R v Stenner-Wall was also pending.

The DPP's correspondence expressed criticism of the judge's approach in those matters and foreshadowed potential judicial review proceedings should similar directions be made in the future. Because the communication was made by one party to active proceedings, the judge determined that disclosure to the parties was required.

  • Whether an ex parte communication from the DPP to the Chief Judge, sent during the course of active proceedings and shortly before judgment, required disclosure to the parties in those proceedings
  • Whether the communication, and in particular its foreshadowing of judicial review, amounted to a serious procedural irregularity warranting public comment
  • Whether the interlocutory decisions at the centre of the complaint had been the subject of any appeal or objection at the time they were made

Decision

Wass SC DCJ acknowledged that a complaint to the Chief Judge about a judicial officer is, in general terms, a recognised and appropriate mechanism. However, the judge found that this communication crossed into distinctly different territory: it was made by one party to ongoing litigation, during those proceedings, without notice to the other party, and in the days immediately before judgment was to be delivered.

The judge characterised the communication as an ex parte communication with the Court by one of the parties to active proceedings. Given its content, its timing, and the fact that it contained an express warning directed at the judge's future conduct, the judge concluded that disclosure to the parties in the affected cases was not only appropriate but necessary.

The judge disclosed the substance of the DPP's correspondence as conveyed by the Chief Judge. The DPP had described the judge's directions (requiring witnesses to produce mobile phones, and on occasion their PIN codes) as an "emerging practice" that lacked express legislative power and could not arise by necessary implication. The DPP also expressed the view that the directions infringed the rights of the accused and the Crown to a fair trial, without particularising which rights had been affected. The judge noted that none of the three decisions had been appealed, and that two of them had been taken without objection from the parties at the time.

The judge expressed particular concern about the DPP's stated intention to consider seeking judicial review of any future direction of a similar nature. Wass SC DCJ regarded that foreshadowed warning, delivered mid-deliberation, as extremely serious, noting it would have been highly inappropriate even if conveyed directly rather than through the Chief Judge. The judge confirmed that the correspondence had no effect on the substantive determination of any issue, but acknowledged that it had caused delay while the matter was disclosed and the parties were given the opportunity to consider their positions.

Orders Made

No orders were made in this decision.

Key Takeaways

  • An ex parte communication from a party to active proceedings, sent to the Chief Judge during those proceedings and containing a warning directed at the presiding judge's future conduct, was found to require immediate disclosure to all parties in those proceedings.
  • The District Court drew a distinction between a general complaint to the head of jurisdiction under established protocols and a communication that simultaneously constitutes an ex parte approach to the Court by a party to live litigation.
  • Where the DPP criticised interlocutory decisions as lacking legislative authority, the judge noted that none of those decisions had been appealed and that two had been made with the agreement, or at least without objection, of the parties at the time.
  • A foreshadowed intention to seek judicial review of future decisions of a particular kind, conveyed while the judge was part-heard in relevant matters, was characterised as an extremely serious matter, particularly coming from an experienced Senior Counsel.
  • The judgment reaffirms that the duty of disclosure to parties is engaged where the content or circumstances of a communication to the court, even through otherwise appropriate channels, may affect or appear to affect the integrity of ongoing proceedings.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Griffin v The Council of the Law Society of NSW [2016] NSWCCA 364
- R v Chambers (District Court (NSW), Wass SC DCJ, 2 November 2021, unreported)
- R v Stenner-Wall (District Court (NSW), Wass SC DCJ, 20 November 2023, unreported)
- R v Taufahema [2007] HCA 11