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District Court 10 July 2026

R v Baker

[2026] NSWDC 239

Public order & justice offences

Citation: R v Baker [2026] NSWDC 239
Court: District Court of New South Wales
Date: 10 July 2026
Judge(s): Wass SC DCJ

Background

The Respondent pleaded guilty in the Local Court in September 2025 to a series of serious child abuse material and bestiality offences. The matter was committed to the District Court for sentencing before Wass SC DCJ, who heard submissions and reserved judgment.

Before sentence was delivered, the Crown brought a Notice of Motion seeking the judge's recusal from this matter and from all other New South Wales criminal matters then before her, on the ground of apprehended bias. The application was opposed by the Respondent.

The Crown filed virtually identical applications in six part-heard matters: Beaton, Baker, MB, Collis, TH and Sharp. To preserve procedural fairness across separately represented respondents, the applications were heard sequentially, with each respondent given access to the submissions made in earlier hearings.

  • Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the sentencing of the Respondent.
  • Whether a submission made by the judge to a parliamentary inquiry into identity protections for proceedings involving children gave rise to apprehended bias.
  • Whether ex parte communications between the judge and counsel or solicitors connected to her matters, concerning that inquiry, gave rise to apprehended bias.
  • Whether statements made by the judge to Crown counsel at the first mention of a related recusal application, and a statement published on LinkedIn, contributed to that apprehension.
  • Whether the various factors, viewed individually or cumulatively, satisfied the double "might" test from Ebner v Official Trustee in Bankruptcy.

Decision

The applicable test: The court applied the double "might" test settled in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and affirmed in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76. The question is 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 test is concerned with real possibility, not probability.

Factor 1 to 5 -- the parliamentary submission: The judge had made a submission on 28 November 2025 to an Upper House committee inquiry into identity protections for proceedings involving children. That submission was published by the committee on 4 December 2025. Deploying the submission in the recusal applications required preliminary Court of Appeal proceedings, resolved in Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20, which permitted its use. The content of the submission, and its relationship to parties and issues in the proceedings before the judge, formed the primary basis of the Crown's concern.

Factor 6 -- ex parte communications: The Crown pointed to text and telephone communications between the judge and Mr Renard (counsel for the Respondent in the main proceedings) and Mr Farland (a solicitor in a related matter) concerning the inquiry and the submission. The judge found that those exchanges were unsolicited, involved no discussion of the substance of any pending matter, and in the case of Mr Renard were necessary to avoid further identification of a child. In Mr Farland's case, the judge did no more than pass his contact details to the parliamentary committee at his request. No confidential information passed in either exchange. The judge accepted these factors weighed against a finding of bias arising from the communications alone.

Factor 7 -- statements at the first mention of related recusal applications: Statements made by the judge to Crown counsel at the first mention of a recusal application in the related matter of TH, and further statements regarding disclosure of the ex parte communications, were also relied upon by the Crown.

Factor 8 -- LinkedIn statement: A statement published by the judge on LinkedIn was the final discrete factor relied upon by the Crown.

Overall conclusion: Despite the judge's careful analysis of the individual factors, including findings that several of them did not independently carry significant weight, she concluded that the application for recusal should be granted. Applying the Ebner principle that in a case of real doubt it will often be prudent for a judge to decline to sit rather than risk an appellate court taking a different view on disqualification, she accepted that the cumulative effect of the factors was sufficient to warrant recusal. The matter was referred to the List Judge in Sydney to be assigned to another judge for sentencing.

Orders Made

  • The Crown's Notice of Motion seeking recusal on the ground of apprehended bias was granted.
  • The matter was listed before the List Judge sitting in Sydney to be assigned to another judge for the sentence hearing.

Note: The extracted orders section provided contains procedural detail about the ex parte communications and the judge's disclosures rather than formal order text. The operative orders are as described above, drawn from the judgment's conclusion.

Key Takeaways

  • The District Court applied the established double "might" test: the question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the decision, with the focus on real (not remote) possibility rather than probability.
  • A judge's submission to a parliamentary inquiry, even where the subject matter is not directly the proceeding before the court, can form part of the factual foundation for an apprehended bias application where it touches on parties, issues, or conduct connected to pending matters.
  • Ex parte communications between a judge and a legal representative in a pending matter, even if unsolicited and not involving discussion of the substance of that matter, carry risk of contributing to an apprehension of bias when assessed by a fair-minded lay observer.
  • Where genuine doubt exists about disqualification, Ebner confirms it will often be prudent for a judge to recuse rather than risk the inconvenience of an appellate court reaching a different conclusion.
  • Accumulated factors, even where some carry limited individual weight, may together satisfy the threshold for recusal when assessed in combination.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crown Prosecutors Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Director of Public Prosecutions Act 1983 (Cth)
- Evidence Act 1995 (NSW)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
- Legal Profession Uniform Australian Solicitors Conduct Rules 2015 (NSW)
- Government Sector Employment Act 2013 (NSW)

Key Cases:
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
- Charisteas v Charisteas (2021) 273 CLR 289
- British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
- Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20
- Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12
- Fingleton v The Queen (2005) 227 CLR 166
- Bugmy v The Queen [2013] HCA 37
- Fardon v Attorney-General (Qld) [2004] HCA 46