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District Court 27 October 2026

Abdul-Wahab v R

[2026] NSWDC 394

Public order & justice offences
COURTS AND JUDGES APPLICATION FOR RECUSAL APPREHENDED BIAS EVIDENCE JUDICIAL NOTICE COMMON KNOWLEDGE

Citation: Abdul-Wahab v R [2026] NSWDC 394
Court: District Court of New South Wales
Date: 27 October 2026
Judge: Abadee DCJ

Background

The appellant was appealing a Local Court determination that he had publicly displayed a Nazi symbol without reasonable excuse, contrary to s 93ZA(1) of the Crimes Act 1900 (NSW). His posited excuse was that the display occurred at a pro-Palestinian protest rally and was intended to denounce Nazism or Nazi-like behaviour, viewed in its geopolitical context. The appeal was heard over three days in August 2026.

After reserving judgment, the judge circulated to the parties a document titled "Proposed 'common knowledge' and/or 'legislative facts'" (MFI 13), setting out 14 proposed facts relating to the historical and geopolitical context of the Israel-Palestine conflict. This was done in purported compliance with s 144(4) of the Evidence Act 1995 (NSW), which requires parties to be given an opportunity to be heard before such facts are taken into account.

Following receipt of submissions from the parties, the court announced at a directions hearing on 16 September 2026 that it would not take the proposed facts into account. The appellant nonetheless pressed a recusal application based on apprehended bias, which was heard on 20 October 2026 and refused at the conclusion of that hearing.

Legal Issues

  • Whether the judge's post-hearing inquiry into and compilation of geopolitical and historical proposed facts, without prior notice to the parties, gave rise to a reasonable apprehension of bias
  • Whether s 144 of the Evidence Act 1995 (NSW) required the judge to consult parties before making inquiries, or only before deciding to take facts into account
  • Whether the court's decision not to take the proposed facts into account cured any procedural concern
  • Whether judicial questioning during the hearing contributed to a reasonable apprehension of bias
  • Whether the risk of subconscious influence from the proposed facts, even after they were discarded, grounded a reasonable apprehension of bias
  • Whether s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) limited the District Court's recourse to s 144 of the Evidence Act on a conviction appeal

Decision

The apprehended bias test: The court applied the three-step framework from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, as elaborated in Director of Public Prosecutions v Smith [2024] HCA 32 and SunshineLoans Pty Ltd v ASIC [2026] HCA 8. The steps require identifying an objectively credible reason for a lack of impartiality, determining whether a possible diversion from deciding the case on its merits might occur, and assessing whether the apprehension is reasonable from the perspective of a fair-minded lay observer (at [35]-[37]).

Step 1: Whether an objectively credible reason for lack of impartiality was established: The court expressed doubt that the appellant had cleared this threshold. The impugned inquiry was conducted in the purported exercise of the court's power under s 144 of the Evidence Act and did not treat either party differently. The built-in procedural safeguards in s 144(4), including notification of the proposed facts and an invitation for submissions, were designed to prevent practical injustice. Moreover, a substantial portion of the proposed facts derived from material the appellant himself had placed before the court (at [201]-[202]).

Step 2: Whether a possible diversion from the merits was established: The court found the appellant had not explained how the impugned conduct might give rise to an apprehended deviation from deciding the case on its merits (at [203]). The court reasoned that a prospective procedural error in applying s 144 does not, of itself, evince an absence of impartiality. The court's transparent disclosure of the results of its inquiry, and its invitation to be heard on them, was described as "the antithesis of an absence of impartiality" (at [204]).

Step 3: Whether the apprehension was reasonable: The fair-minded lay observer, credited with general knowledge of s 144 and the doctrine of judicial notice, would not regard the apprehension as reasonable (at [206]-[207]). That observer would know that s 144 is founded on recognition that a judge may hold independent knowledge of historical and international events, and that the provision contemplates inquiry without prior party consultation, subject to parties being notified and heard on the results. Any procedural error was self-corrected by the notification of proposed facts and the subsequent decision not to take them into account (at [207]).

Whether inquiry without prior notice was improper: The court rejected the appellant's contention that procedural fairness required the parties to be consulted before any inquiry was made. Section 144(2) permits knowledge to be acquired "in any way the judge thinks fit," and the extrinsic material underlying the provision did not support a mandatory multi-staged process of prior consultation followed by disclosure followed by submissions (at [87]-[96]). The cases the appellant relied upon were all cases where the decision-maker had actually taken the impugned facts into account without notice, which was not what occurred here (at [99]-[106]).

Subconscious bias: The court acknowledged the fair-minded lay observer is alert to the possibility of subconscious influence (at [156]). However, the observer would appreciate that s 144(4) operates as a natural brake on such influence by forcing a deliberate distinction between acquiring knowledge and deciding to take it into account (at [157]). The appellant did not articulate how any of the proposed facts were specifically adverse to him or how they could only bolster the Crown's case (at [148], [161]). In circumstances where the court had indicated it would not take the proposed facts into account, the risk of subconscious influence was assessed as remote and insubstantial (at [207]).

Judicial questioning during the hearing: The appellant narrowed his reliance on this ground substantially during oral argument (at [186]). The court found that judicial questioning, including putting potentially adverse propositions to counsel, is a facet of procedural fairness rather than evidence of prejudgment. The fair-minded lay observer would not rationally conclude that exchanges during the hearing cast light on any continuing influence from the proposed facts (at [190]-[191]).

Section 18 of the CAR Act: The court noted the question of whether s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) constrained the court's ability to take judicial notice on a conviction appeal was raised late and not fully argued. There is much to be said, the court observed, for the view that facts noticed under s 144 do not constitute "evidence" and therefore do not fall within s 18's limitations, but the point was not authoritatively settled (at [121]-[123]). Because the court had already decided not to take the proposed facts into account before this argument was raised, the fair-minded lay observer could not accept that it undermined the jurisdictional basis for the court's conduct (at [123]-[124]).

Orders Made

  • The recusal application was refused, and the judge found it was his duty to proceed to deliver the reserved judgment in the substantive appeal.

Key Takeaways

  • Under s 144(2) of the Evidence Act 1995 (NSW), a judge may acquire knowledge of common knowledge or legislative facts "in any way the judge thinks fit" without being required to consult parties before making inquiries. The procedural fairness obligation imposed by s 144(4) arises at the point of disclosing the results and inviting submissions, not as a pre-condition to the inquiry itself (at [87]-[96]).

  • A court's transparent disclosure of proposed facts acquired through inquiry, combined with an invitation for submissions and a subsequent decision not to take those facts into account, constitutes a deliberate exercise in procedural fairness and is the antithesis of an absence of impartiality. Such conduct does not automatically ground a successful recusal application based on apprehended bias (at [204], [207]).

  • The District Court reaffirmed that the apprehended bias test requires satisfaction of all three Ebner steps. An appellant who does not articulate how impugned conduct might cause a deviation from deciding the case on its merits will fail at the second step, even if the first step is assumed in the appellant's favour (at [203]).

  • A prospective procedural error in applying s 144 of the Evidence Act does not, of itself, establish an absence of impartiality. Where a court's conduct occurs in the purported exercise of a recognised judicial function and is equally applicable to both parties, the second and third steps of the Ebner analysis are unlikely to be satisfied (at [201]-[203]).

  • Whether findings made under s 144 of the Evidence Act constitute "evidence" for the purposes of s 18 of the Crimes (Appeal and Review) Act 2001 (NSW), and therefore whether s 18 limits a District Court's ability to take judicial notice on a conviction appeal from the Local Court, remains an open and unsettled question (at [121]-[122]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Crimes Act 1900 (NSW), s 93ZA
- Evidence Act 1995 (NSW) , ss 97, 135, 136, 137, 138, 144
- Racial Discrimination Act 1975 (Cth), s 18C

Cases
- Australian Communist Party v Commonwealth (1951) 83 CLR 1
- Aytugrul v R (2012) 247 CLR 170
- British American Tobacco v Laurie (2011) 242 CLR 283
- Cavanett v Chambers [1968] SASR 97
- Chaplin v Lane (2016) 78 MVR 142; [2016] TASFC 8
- Charara v The Queen [2006] NSWCCA 244
- CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
- Coghlan v Cumberland [1898] 1 Ch 704
- Crown Glass & Aluminium Pty Ltd v Ibrahim [2005] NSWCA 195
- Director of Public Prosecutions (NSW) v TH; Director of Public Prosecutions (NSW) v MB; Director of Public Prosecutions (NSW) v Sharp [2026] NSWCCA 125
- Director of Public Prosecutions v Smith (2024) 419 ALR 212; [2024] HCA 32
- Director of Public Prosecutions v Gramelis [2010] NSWSC 787
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- Farkas v R [2014] NSWCCA 141
- Gattelaro v Westpac Banking Corporation (2004) 204 ALR 258
- Helow v Home Secretary [2008] 1 WLR 2416
- Holland v Jones (1917) 23 CLR 149
- IMM v The Queen (2016) 257 CLR 300
- International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
- Johnson v Johnson (2000) 201 CLR 488
- Konidaris v R [2021] VSCA 309
- McGregor v McGregor (2012) 47 Fam LR 498
- McNab v Director of Public Prosecutions (2021) 106 NSWLR 430
- Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
- Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697
- Papakosmas v The Queen (1999) 196 CLR 297
- Polsen v Harrison [2021] NSWCA 23
- Prentice v Cummins (No 5) (2002) 124 FCR 67
- QYFM v Minister for Immigration (2023) 279 CLR 148
- R v Henry (1999) 46 NSWLR 346
- R v Industrial Appeals Court; Ex parte Maher [1978] VR 126
- R v Meher [2004] NSWCCA 355
- R v S (RD) [1997] 3 SCR 484
- R v Watson; Ex parte Armstrong (1976) 136 CLR 248
- Re JRL; Ex parte CJL (1986) 161 CLR 342
- Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495
- Re Media, Entertainment & Arts Alliance and Theatre Managers’ Association; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179
- SD v R (2013) 39 VR 487; [2013] VSCA 133
- State of New South Wales v Farhat [2026] NSWSC 985
- SunshineLoans Pty Ltd v ASIC [2026] HCA 8; (2026) 100 ALJR 489
- The Queen v Commonwealth Conciliation and Arbitration Commission; Angliss (1969) 122 CLR 546
- Toltz v Riemer [2025] FCA 1385
- Webb v The Queen (1994) 181 CLR 41
- Wertheim v Haddad (2025) 311 FCR 263
- Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460