Citation: Director of Public Prosecutions (NSW) v TH; Director of Public Prosecutions (NSW) v MB; Director of Public Prosecutions (NSW) v Sharp [2026] NSWCCA 125
Court: Court of Criminal Appeal
Date: 21 August 2026
Judge(s): Leeming JA; Stern JA; Griffiths AJA
Background
The NSW Director of Public Prosecutions appealed against orders dismissing applications that a District Court Judge disqualify herself from three pending criminal prosecutions brought in the Director's name. The three matters, involving accused persons TH, MB, and Mr Sharp, were each part-heard or reserved for sentencing before the Judge.
The disqualification applications arose following the publication on 4 December 2025 of a submission the Judge had made to a Committee of the NSW Legislative Council. That submission contained serious adverse allegations against the Director personally and against the Office of the DPP. The Judge had a long-standing series of grievances against the Director, and the submission restated complaints she had previously made to the NSW Bar Association and to NSW Police.
In a related fourth prosecution (R v Baker), the Judge had accepted the disqualification application on the basis of ex parte communications she had engaged in with the accused's counsel while reserved on sentence. In the three appeals under consideration, the Judge declined to disqualify herself from the remaining matters, and the Director challenged those refusals.
Legal Issues
- Whether the Judge's parliamentary submission, containing serious allegations against the Director, gave rise to a reasonable apprehension of bias in proceedings brought in the Director's name.
- Whether the Judge's participation in ex parte communications with lawyers appearing for accused persons in proceedings reserved before her gave rise to a reasonable apprehension of bias.
- Whether the Judge's subsequent non-disclosure, or materially incomplete disclosure, of those communications independently gave rise to a reasonable apprehension of bias.
- Whether the Judge applied the correct legal test for apprehended bias, in particular the "double might" test confirmed by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Decision
The applicable test: The court applied the well-established "double might" test for apprehended bias: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question before her. The court emphasised this is an undemanding test, directed at the possibility (real and not remote) of partiality, not a prediction of how the judge would in fact decide. The two-step inquiry requires identification of what might lead a judge to depart from impartial decision-making, followed by articulation of the logical connection between that matter and the feared deviation.
Conceded errors in the Judge's reasoning: The respondents conceded, and the court agreed, that the Judge had erred in concluding her submission "could not reasonably be understood by the Observer to be an allegation of deliberate impropriety against the Director." A fair-minded lay observer could conclude that the Judge firmly believed the Director had engaged in clear misconduct intended to undermine the Judge's judicial independence. The court also accepted that the Judge had largely asked what a fair-minded lay observer would think, rather than what such an observer might think, misapplying the standard.
The parliamentary submission: The submission contained serious adverse allegations against the Director personally. Because the prosecutions before the Judge were brought in the Director's name, the logical connection between the submission and a possible departure from impartiality was clear. The court found this alone would warrant disqualification.
The ex parte communications and non-disclosure: The Judge had participated in ex parte communications with lawyers appearing in matters reserved before her, including communications relating to the very subject matter of the disqualification applications. When the Judge disclosed those communications in court, the disclosure was materially incomplete: she described a solicitor as wishing to give "particular evidence" to the Committee without revealing that the "particular evidence" was a claim that the Director, the moving party on the disqualification application, had given false evidence to that same Committee. The court found this non-disclosure independently warranted disqualification. Considered together with the submission and the ex parte communications, the case for disqualification was described as very clear and not finely balanced.
Orders Made
- The orders made on 10 July 2026 in each of the three proceedings dismissing the Director's notice of motion that the Judge (Her Honour Judge Wass SC DCJ) disqualify herself are set aside.
- In lieu of those orders, each prosecution (R v TH, R v MB, and R v Sharp) is to proceed in the District Court before a judge other than Her Honour.
Key Takeaways
- The "double might" test for apprehended bias is undemanding: it requires only that a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the proceedings, without any need to predict the judge's actual conduct or inquiry into the judge's state of mind.
- A judge's public submission to a parliamentary committee containing serious adverse allegations against a party to proceedings before that judge can, of itself, give rise to a reasonable apprehension of bias warranting disqualification.
- Ex parte communications between a judge and lawyers in matters reserved before that judge are a distinct and independently sufficient basis for disqualification where a logical connection exists between those communications and the pending proceedings.
- Disclosure obligations arising from potentially disqualifying conduct require full and frank disclosure: materially incomplete disclosure of ex parte communications, particularly where the omitted details bear directly on a pending disqualification application, can itself ground a finding of reasonable apprehension of bias.
- Where multiple independently sufficient grounds each warrant disqualification, the combined effect of those grounds makes the case for disqualification correspondingly stronger.
Legislation and Cases Referenced
Legislation
- Child Protection ( Offenders Registration) Act 2000 (NSW) , s 3C
- Children ( Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW) , s 578A
- Crimes ( Domestic and Personal Violence) Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW) , ss 5, 8, 66, 68, 102, 126
- Director of Public Prosecutions Act 1986 (NSW)
Cases
- Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215
- Bechara v Rex [2026] NSWCCA 71
- Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
- CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
- Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales (2026) 119 NSWLR 80; [2026] NSWCA 20
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- GetSwift Ltd v Webb (2021) 283 FCR 328; [2021] FCAFC 26
- Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136
- HCF v The Queen (2023) 280 CLR 596; [2023] HCA 35
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Maules Creek Coal Pty Ltd v Environment Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275
- Minister for Immigration & Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136
- Public Utilities Commission of the District of Columbia v Pollak (1952) 343 US 451
- QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
- R v Baker [2026] NSWDC 239
- R v MB [2026] NSWDC 240
- R v Sharp [2026] NSWDC 242
- R v TH [2026] NSWDC 241
- SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8; 100 ALJR 489