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District Court 10 July 2026

R v MB

[2026] NSWDC 240

Public order & justice offences

Citation: R v MB [2026] NSWDC 240
Court: District Court of New South Wales
Date: 10 July 2026
Judge(s): Wass SC DCJ

Background

The accused (referred to as MB, with the name anonymised due to statutory prohibitions) was tried before Wass SC DCJ on 13 counts involving two complainants. The jury returned guilty verdicts on eight counts and acquitted the accused on the remainder. The matter was part-heard and awaiting a sentence hearing when the Crown brought an application for the judge to recuse herself on the ground of apprehended bias.

The Crown filed near-identical recusal applications across all criminal matters in which Wass SC DCJ was then part-heard, including the matters of Beaton, Baker, MB, Collis, TH and Sharp. Given the overlap, her Honour took all submissions across those matters into account in determining each application individually.

The recusal application arose principally from a submission (the Submission) her Honour made on 28 November 2025 to an Upper House parliamentary inquiry examining identity protections in proceedings involving children. The Crown also relied on ex parte communications between the judge and two legal practitioners (Mr Renard and Mr Farland) relating to that inquiry, statements made at the first mention of the recusal application, and a statement posted on LinkedIn.

  • Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the sentencing proceedings (the "double might" test for apprehended bias as stated in Ebner v Official Trustee in Bankruptcy)
  • Whether the content of the Submission to the parliamentary inquiry gave rise to apprehended bias
  • Whether ex parte communications between the judge and Mr Renard and Mr Farland (both connected to the inquiry) gave rise to apprehended bias
  • Whether statements made by the judge at the mention of the recusal application in another matter (TH) and during the Baker proceedings gave rise to apprehended bias
  • Whether a statement made by the judge on LinkedIn gave rise to apprehended bias
  • Whether the cumulative effect of all the above factors, taken together, satisfied the test for apprehended bias

Decision

The applicable test: Her Honour applied the well-settled "double might" test from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, as refined in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76. The test asks whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions she is required to decide. The test is concerned with real (not remote) possibility, not probability.

The Submission to the parliamentary inquiry (Factors 1 to 5): Her Honour considered whether the content of the Submission, which related to identity protections for children in criminal proceedings, could lead the Observer to apprehend bias in the sentencing proceedings. She was not satisfied that the Submission, which addressed legislative and procedural matters unrelated to the merits of the accused's case, gave rise to any such apprehension. The subject matter of the Submission had no logical or reasonable connection to how she would decide the outstanding sentencing questions.

Ex parte communications (Factor 6): The communications with Mr Renard concerned the proper identification and redaction of material relating to a child in the context of preparing the Submission. The communications with Mr Farland arose after the Submission was already published on the parliamentary website, were unsolicited, involved no confidential information, and were confined to passing Mr Farland's contact details to the parliamentary committee at his own request. Her Honour found that both exchanges were unrelated to any matter she was required to determine, involved no discussion of the substance of the proceedings before her, and would not cause the Observer to apprehend a lack of impartiality.

Statements made during the recusal proceedings (Factor 7): Her Honour examined statements made during the first mention of the TH recusal application and during the Baker proceedings. She was not satisfied that those statements, assessed in their proper context, would lead the Observer to apprehend that she might not decide the matters on their merits.

The LinkedIn statement (Factor 8): Her Honour considered a statement she had posted on LinkedIn. She found no logical or reasonable connection between that statement and any risk of partiality in the proceedings before her. She was not satisfied it contributed to a finding of apprehended bias, either alone or in combination with the other factors.

Cumulative assessment: Her Honour expressly considered all factors both individually and in combination. She emphasised that there must be a logical connection between any identified factor and the risk that a matter might not be decided on its merits. Finding no such connection across any of the factors, individually or cumulatively, her Honour dismissed the application.

Orders Made

  • The Crown's Notice of Motion seeking recusal of the judge from further hearing the proceedings on the basis of apprehended bias was dismissed.
  • The matter was listed before her Honour on 31 August 2026 for mention.
  • The parties were directed to approach the judge's Associate with a view to listing the matter at the first available opportunity in September 2026.
  • The parties were granted liberty to apply.

Key Takeaways

  • The District Court reaffirmed that the test for apprehended bias is the "double might" test from Ebner: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the relevant questions. The test is directed to possibility, not probability.
  • A logical and reasonable connection must exist between the factor or conduct relied upon and the risk that the matter will not be decided on its merits. Without that connection, neither individual factors nor their cumulative combination will satisfy the test.
  • A judge's submission to a parliamentary inquiry on a legislative topic unrelated to the substantive merits of a pending case did not, on the facts here, give rise to a reasonable apprehension of bias in that case.
  • Ex parte communications found to be unsolicited, confined to procedural or administrative matters, involving no confidential information, and entirely unconnected to the substance of the pending proceedings did not satisfy the apprehended bias test on these facts.
  • In dismissing the application, her Honour underscored that attacks on judicial independence through recusal applications must be grounded in factors that bear a real and logical relationship to the exercise of judicial decision-making, not merely to peripheral conduct or statements unconnected to the proceedings.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crown Prosecutors Act 1986 (NSW)
- Director of Public Prosecutions Act 1983 (Cth)
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Government Sector Employment Act 2013 (NSW)
- Legal Profession Uniform Australian Solicitors Conduct Rules 2015 (NSW)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (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
- Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240
- Fardon v Attorney-General (Qld) [2004] HCA 46
- Bugmy v The Queen [2013] HCA 37