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District Court 10 July 2026

R v Sharp

[2026] NSWDC 242

Drugs

Citation: R v Sharp [2026] NSWDC 242
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 to offences involving cultivating a small quantity of a prohibited plant, manufacturing not less than a large commercial quantity of a prohibited drug (two counts), and possessing cannabis leaf for supply (on a Form 1). The matter was committed to the District Court for sentence, where it came before Wass SC DCJ.

The Crown brought a Notice of Motion dated 8 April 2026 seeking the judge's recusal from the sentencing proceedings on the ground of apprehended bias. The motion was opposed by the respondent. Materially the same application was brought by the Crown in several other part-heard criminal matters before the judge at the same time.

The applications arose substantially from a submission (the "Submission") that the judge had made in November 2025 to an Upper House parliamentary inquiry into identity protections for proceedings involving children. Before the recusal applications could be fully argued, the Director of Public Prosecutions commenced proceedings in the Court of Appeal to establish that the Submission could lawfully be deployed in the recusal applications. The Court of Appeal ruled in favour of the Director: Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20.

  • Whether a fair-minded lay observer, informed of the relevant circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the sentencing proceedings.
  • Whether the content and making of the parliamentary Submission gave rise to apprehended bias.
  • Whether ex parte communications between the judge and two legal practitioners (Mr Renard, of counsel, and Mr Farland, solicitor) in connection with the parliamentary inquiry gave rise to apprehended bias.
  • Whether statements made by the judge at the first mention of the recusal application and during a subsequent mention, and a statement made on LinkedIn, gave rise to apprehended bias.
  • Whether any combination of the above factors cumulatively gave rise to apprehended bias.

Decision

The applicable test: The court applied the double "might" test confirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The question is whether a fair-minded lay observer, aware of the relevant circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided.

Factors one to five (the Submission): The court considered the content of the Submission made to the parliamentary inquiry and concluded that nothing in it, viewed by the hypothetical fair-minded lay observer, would give rise to a reasonable apprehension of bias in the sentencing proceedings. The Submission addressed matters concerning identity protections for children in criminal proceedings, a subject unrelated in substance to the outstanding issues in the respondent's sentence.

Factor six (ex parte communications): The court found that the communications with Mr Renard and Mr Farland were unsolicited, confined to the parliamentary inquiry context, and involved no confidential information and no discussion of any substance concerning pending proceedings. The contact with Mr Renard was directed at preventing further identification of a child; the contact with Mr Farland amounted to passing his details to the committee at his own request. The court was not satisfied that the Observer would view these exchanges as giving rise to any reasonable apprehension of bias.

Factor seven (statements at recusal mentions) and Factor eight (LinkedIn statement): The court examined statements made at the first mention of the recusal application and during subsequent mentions, as well as a LinkedIn post. It found no logical or reasonable connection between those statements and any apprehension that the judge might not determine the pending matters on their merits. The court emphasised throughout its analysis that a logical connection between the impugned conduct and the risk of partiality is necessary before an apprehension of bias can be established.

Cumulative assessment: The court considered all factors together and was not satisfied that, in combination, they would cause the Observer to reasonably apprehend a lack of impartiality. The accumulated factors did not overcome the absence of logical connection between each item of impugned conduct and the outstanding sentencing task.

Orders Made

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

Key Takeaways

  • The District Court confirmed that, in applying the apprehended bias test, a logical and reasonable connection must exist between the conduct or statement relied upon and a risk that the judge might not resolve the proceedings impartially; the absence of that connection is fatal to the application.
  • A judge's submission to a parliamentary inquiry on matters unrelated in substance to pending proceedings does not, without more, satisfy the double "might" test for apprehended bias.
  • Ex parte communications confined to a parliamentary inquiry context, involving no confidential information and no discussion of pending proceedings, were found insufficient to sustain a recusal application, even when the communications involved legal practitioners with roles in other matters before the court.
  • Where multiple factors are relied upon cumulatively, accumulated factors that individually lack logical connection to partiality do not automatically acquire that connection simply by being considered together.
  • The procedural history of this matter illustrates the intersection of parliamentary privilege and apprehended bias applications: prior Court of Appeal proceedings were required to resolve whether parliamentary material could be deployed before the trial judge at all.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 11
- 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)
- Migration Act 1958 (Cth)
- National Consumer Credit Protection Act 2009 (Cth)
- Protection of the Environment Operations Act 1997 (NSW)

Key Cases
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- Charisteas v Charisteas (2021) 273 CLR 289
- British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
- 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
- Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48
- 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