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District Court 10 July 2026

R v TH

[2026] NSWDC 241

Sexual offences

Citation: R v TH [2026] NSWDC 241
Court: District Court of New South Wales
Date: 10 July 2026
Judge(s): Wass SC DCJ

Background

The respondent, TH, faces a special hearing (a modified trial for an accused found unfit to stand trial) on 13 charges of serious sexual offences under the Crimes Act 1900 (NSW), alleged to have been committed between 1959 and 1970. The complainants are six of his siblings. Following a finding that TH was unfit to stand trial, the matter proceeded toward a special hearing before Wass SC DCJ.

The Crown filed a Notice of Motion on 9 December 2025 seeking the recusal of her Honour on the ground of apprehended bias. Nearly identical applications were brought by the Crown in five other part-heard matters before the same judge: Beaton, Baker, MB, Collis, and Sharp. TH is anonymised pursuant to statutory prohibitions on publication.

The Crown's application was opposed by the respondent. Because the applications were heard separately across the various matters, the respondent was provided access to the Crown's submissions in all related proceedings to ensure procedural fairness.

  • Whether a fair-minded lay observer (the "Observer"), properly informed, might reasonably apprehend that the judge might not bring an impartial mind to the proceedings
  • Whether statements or conduct unrelated to the proceedings before the court could give rise to apprehended bias
  • Whether ex parte communications between the judge and Crown prosecutors in the context of a parliamentary inquiry, concerning unrelated proceedings, could ground a reasonable apprehension of bias
  • Whether the judge's prior professional associations and expressed views could, individually or cumulatively, establish apprehended bias

Decision

The applicable test: The court applied the established High Court formulation for apprehended bias: whether a fair-minded lay observer, who is taken to know the relevant circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided. The observer is informed, not a member of the public with no legal knowledge, and is not unduly suspicious or prone to conjecture.

The parliamentary inquiry and ex parte communications: The Crown relied on contact between the judge and two Crown prosecutors (Mr Renard and Mr Farland) in the context of a submission the judge made to a parliamentary inquiry. The court found these exchanges were unsolicited, confined to the subject matter of the inquiry, concerned proceedings unrelated to the cases now before the court, involved no disclosure of confidential information, and were disclosed to the parties at the earliest opportunity. The court was not satisfied that the Observer would view these communications as capable of generating a reasonable apprehension of bias in the current proceedings.

Statements and views unrelated to the proceedings: The Crown also relied on various statements made by the judge outside the courtroom, including expressed views about her time at the Commonwealth Director of Public Prosecutions and her high regard for the principles associated with that office. The court found there was no logical or reasonable connection between those views and any risk that the judge might not determine the present cases on their merits. The test for apprehended bias requires a logical connection between the matter complained of and the feared deviation from impartiality; without that connection, the application must fail.

Cumulative grounds: The court considered whether the factors, taken together, could cumulatively establish apprehended bias, even where no single factor did so alone. After analysing all matters raised, the court concluded that the accumulation did not alter the outcome. No logical or reasonable connection was established between any of the identified factors, individually or together, and a risk that the judge might not resolve the proceedings impartially.

Orders Made

  • The Crown's Notice of Motion seeking recusal on the ground of apprehended bias is dismissed.
  • The matter is to be listed before her Honour on 31 August 2026 for mention.
  • The parties are to approach the judge's Associate to list the matter at the first available opportunity in September 2026.
  • The parties have liberty to apply.

Note: The Orders section provided in the source text contains procedural narrative rather than a formal orders list. The key dispositive orders are as stated above, drawn from the judgment's "Final Determination" section.

Key Takeaways

  • The District Court confirmed that the test for apprehended bias requires a logical and reasonable connection between the matter relied upon and the apprehended deviation from impartiality; absent that connection, even multiple accumulated factors will not ground a successful recusal application.
  • Ex parte contact between a judge and legal representatives in the context of a parliamentary inquiry, concerning unrelated proceedings, does not automatically give rise to apprehended bias, particularly where no confidential information was exchanged and disclosure was made promptly.
  • Statements and views expressed by a judge outside the courtroom, including positive professional associations with institutions or individuals, will not establish apprehended bias unless they bear a logical connection to the specific risk of partiality in the proceedings at hand.
  • Cumulative consideration of multiple factors remains available to an applicant, but the absence of any logical connection in the individual factors cannot be overcome simply by aggregating them; the court will assess whether the combination, viewed as a whole, crosses the threshold.
  • In dismissing the application, the court reaffirmed that ordinary judicial practice and judicial independence are relevant contextual matters against which the fair-minded observer's assessment is made.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crown Prosecutors Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Key Cases:
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
- Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
- CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
- 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
- Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240
- Fingleton v The Queen (2005) 227 CLR 166
- Fardon v Attorney-General (Qld) [2004] HCA 46