Cunningham v Local Court of New South Wales

The Attorney General as amicus curiae

1. The first defendant (the Local Court of New South Wales) and the second defendant (the police officer in charge of the case) filed submitting appearances and that is for understandable reasons.
2. The Attorney General sought leave to appear at the hearing as amicus curiae. Leave was granted as an exercise of the Court's inherent power pursuant to s 23 of the Supreme Court Act on the basis that the Attorney General was willing to offer the Court submissions on law and relevant fact in order to assist the Court in a way in which it would not otherwise have been assisted: Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 at 604 (Brennan CJ).

The need for use of a pseudonym

1. In describing the proceedings in the Local Court it is necessary to refer to the son of the plaintiff who is a juvenile. It is necessary that the plaintiff not be identified given the imperative in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) that nothing be published that would identify a juvenile connected with criminal proceedings. Accordingly the plaintiff is referred to in the coversheet to this judgment by the pseudonym "Margaret Cunningham".

Orders made but reasons reserved

1. I refused the applications for leave to appeal and for prerogative relief at the conclusion of the hearing on 19 April 2018. The following are my reasons for doing so.

Basis for assertion of apprehended bias tenuous but falls away

1. There are some extraordinary aspects to the history of the matter, most notable of which is that summary proceedings of the most straightforward kind that would ordinarily be dealt with expeditiously have been stalled for the best part of a year by the institution of proceedings in this Court. The charges concern an event which is alleged to have occurred 14 months ago. It is a simple case where the only conceivable witnesses of any note are the plaintiff's son and the plaintiff herself. The first listing of the proceedings was in the Local Court at Campbelltown. At the plaintiff's request to transfer them away from Campbelltown they were then transferred to Liverpool Local Court.
2. The issue that has been raised by the plaintiff is that her estranged husband is employed by Corrective Services NSW. This employment involves him assisting in the provision of custodial services in courts, including the Local Courts at Liverpool and Campbelltown. Such officers are responsible for persons who are in custody before, during and/or after their court appearances. Even though the husband is not a witness, the plaintiff contends that there would be a perception of bias if a magistrate sitting at one of those Local Courts were to hear and determine the case that has been brought against her.
3. There is an air of unreality about this. In the ordinary course of events it would not be expected that magistrates would know, let alone have any personal dealings with, custodial officers working in the cells at Court Houses. It would be exceedingly unlikely that a magistrate dealing with a charge brought against a woman alleging an offence against her son might not bring an impartial and unprejudiced mind to the resolution of the case because the woman's estranged husband was a functionary working in the same building. (For a consideration of the principles relating to apprehended bias, see Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48.)
4. His Honour Magistrate McAnulty explained in the impugned judgment of 6 June 2017: "The role of the corrective officers at the complex are from time to time to bring people from the cells. I might say in this complex [at Liverpool] that I would not know a correctives officer if I fell over him or her because we have very little interaction. They do not have an office in the main building. They have very little, if anything, to do with the Court staff, being the registry staff and they have even less, perhaps nil interaction with the judicial officers, other than if a security issue is raised the senior Corrective Services officer may approach the Court coordinator or a magistrate to advise him or her that something has occurred. Other than that they have no interaction. As I said I would not know him if I fell over him."
5. If a party considered that there might possibly be an appearance of bias because, known to the party but perhaps not to the magistrate, a Corrective Services officer working in the court building was related to the party, it would be a simple matter to alert the magistrate to that fact. The magistrate could then consider whether he or she had any acquaintanceship with the officer and, if so, disclose it to the parties. If this gave rise to any concern of apprehended bias, it could be the subject of submissions by the parties and a determination made by the magistrate upon a proper factual basis.
6. That is a course that appears not to have been considered by the plaintiff in this case. Nor was it considered by two magistrates who earlier dealt with related aspects of the proceedings. Without explaining why, they automatically accepted that there would be an apprehension of bias. The plaintiff placed some reliance upon the approach taken by those magistrates, but the transcripts indicate that they were conclusions reached without any real consideration of the issue.
7. The substantive hearing of the matter had, on 21 March 2017, been listed at Liverpool on 6 July 2017.
8. The decision that the plaintiff sought to impugn was that of his Honour Magistrate McAnulty sitting at Liverpool Local Court on 6 June 2017. His Honour refused an application to vacate the hearing date and to transfer the proceedings to another court. He did so on the basis that he was not satisfied that there was an evidentiary basis that established that an apprehension of bias could arise. Significantly, however, his Honour said, in effect, that even if the contention was sound, there was a ready answer to it: "I can arrange for another magistrate who is not ordinarily stationed at this complex to hear the matter".
9. That is in fact what occurred. The transcript for 6 July 2017 indicates that his Honour Magistrate Richardson presided and that he had been sent to Liverpool specifically for this matter. After he was informed that a summons had been filed in this Court challenging Magistrate McAnulty's refusal of the application to vacate and transfer, he agreed to defer the hearing until such time as the proceedings in this Court were resolved. They have been continually adjourned ever since. Significantly, however, they remain "part-heard" before Magistrate Richardson.
10. The proceedings in this Court were commenced by the filing of a summons on 6 July 2017. Subsequently there was filed an amended summons, a further amended summons and, on the day of the hearing, a second further amended summons. The grounds advanced assert various forms of error in the manner in which Magistrate McAnulty's determination was made. They purport to impugn the decision on the basis of questions of law alone and jurisdictional errors.

The grounds relied upon

1. I was not satisfied that there was merit in any of the grounds. However, I do not intend to delay by discussing them in any detail because this is a clear case in which leave to appeal pursuant to s 53(3) of the Crimes (Appeal and Review) Act and the discretion to afford relief in the nature of certiorari had to be refused.
2. There were six grounds notified but only four were pressed in the submissions of Mr Lawrence (counsel in this Court; Ms Stares was counsel in the Local Court).
3. Ground 1 asserted a want of procedural fairness and that the magistrate thereby acted outside of his jurisdiction. The application to vacate and transfer had been filed by Ms Stares of counsel and 6 June 2017 was selected as a date for it to be determined, being a date that she said was convenient for her. This ground is concerned with the fact that, as events occurred, Ms Stares was unable to appear on the 6 June 2017 because the criminal trial in which she was appearing had run over its estimated hearing time. However, she had ample time to arrange for somebody else to appear and did not do anything apart from making arrangements late on the afternoon of 5 June for an agent to appear. In any event, she was able to provide written submissions and there was no assertion in her affidavit that she would have put anything in support of the application that was not included in those written submissions. Moreover, the transcript indicates that the magistrate dealt with the matter with considerable forbearance, including by standing the matter down until the afternoon which allowed Ms Stares to prepare and send through her written submissions. I was not satisfied that there was any procedural unfairness.
4. Ground 2 asserted an error in the magistrate failing to deal with the application to change venue on the basis of s 30 of the Criminal Procedure Act 1986 (NSW). The fact is that no-one, including Ms Stares, assisted the magistrate by referring him to that provision. More significantly, however, he dealt with the application in substance on the basis of what appears in s 30(a) (whether "a fair or unprejudiced trial cannot otherwise be had"). He did not deal with the application on the basis of the other limb of s 30 ("(b) that for any other reason it is expedient to do so") but he was not asked to, and any basis upon which he might have was not apparent.
5. Ground 3 asserted that the magistrate acted outside jurisdiction by prejudging it and not determining it with an open mind and in an unbiased and fair manner. While the ground, as amended, asserted apprehended bias, what was asserted in submissions was actual bias. In large part, reliance was placed upon statements made by the magistrate taken out of their context. I was satisfied on a fair reading of the transcript of all that was said, including the various opportunities provided by the magistrate for evidence and submissions to be placed before him, that there was no bias, either actual or that which might be reasonably apprehended.
6. Ground 5 relied upon a mistake of the magistrate in asserting that Ms Stares had delayed for some two months in bringing the application in circumstances where she only became aware in mid-late May 2017 that the plaintiff's husband was back working at the Liverpool court complex. It was common ground that this was an erroneous finding. But I was satisfied that it did not vitiate his Honour's decision to refuse the application. The application was refused on the basis that there was no evidence to support the proposition that there would be apprehended bias if the matter was heard and determined at the Liverpool court complex, not because there was any disentitling conduct on counsel's behalf.

The plaintiff's evidence in this Court

1. When I raised with Mr Lawrence a question of whether the basis for the asserted apprehension of bias had gone away after a magistrate had been brought in from elsewhere to hear the matter he (eventually) contended that even if that were so there remained a question of whether it was nonetheless "expedient" for the proceedings to be transferred to another Local Court. He referred to the second of the two bases in s 30 of the Criminal Procedure Act upon which a court may change the venue for proceedings, "that for any other reason it is expedient to do so". As mentioned above, expediency had not been raised with Magistrate McAnulty as a basis of the application he was asked to determine. Nevertheless, it was said to be relevant to the discretion of this Court as to whether it should intervene. When it was pointed out that various matters he asserted from the bar table had no evidentiary basis, Mr Lawrence sought to call evidence from the plaintiff which I allowed on the question of the Court's discretion.
2. The plaintiff's evidence was to the effect that she felt intimidated whenever she attended the Liverpool court complex because she knew that her estranged husband worked there. She also claimed that he was friends with people who worked there and he could find out whatever information she provided to the court. She asserted a belief that her husband had deliberately transferred himself so as to work at whatever court complex her case was to be heard in. For example, she said: "He's following where the case is going. … [W]e had the matters moved from Liverpool to Campbelltown, and next thing you know he's working at Campbelltown. Then we said can we put them back to Liverpool and he's working back at Liverpool, he's put himself full time back at Liverpool … "
3. The plaintiff's evidence did not change my view as to the outcome of these proceedings. Her evidence just mentioned is wrong in that the proceedings were never "moved from Liverpool to Campbelltown"; they were commenced at Campbelltown and then moved to Liverpool. As to the plaintiff feeling intimidated whenever she attends Liverpool Court, I note that she said that she was always accompanied by a family member, usually her father, as a support person and there is no realistic basis for any implicit suggestion of her fearing physical harm. The assertion that her husband could find out personal information that she provided to the court is at odds with the fact that she made an application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) at Campbelltown Local Court on 14 March 2017 and tendered documents disclosing sensitive personal information (for example, a psychiatric report) at a time when she thought her husband was working at that court. She sought to make another such application, again relying upon such documents, at Liverpool on 6 July 2017 when she thought her husband was working there.
4. I rejected "expediency" as a reason for intervention. It is not appropriate for this Court to hear and determine what, in effect, would be a fresh application to change venue on a different basis to the application that was made and refused in the Local Court. I was not satisfied that it was established in any event.

Conclusion

1. I was overwhelmingly satisfied that leave to appeal under s 53(3) of the Crimes (Appeal and Review) Act should be refused and so too should the Court exercise the discretion to refuse prerogative relief in the nature of certiorari.
2. Ground 2 was the only ground that might have raised a question of law alone for the purposes of s 53(3) of the Crimes (Appeal and Review) Act (whether a court determining an application for a change of venue must apply the provisions of s 30 of the Criminal Procedure Act). Not only does the ground lack merit; there is no utility in deciding it in any event. This is particularly so in circumstances where the application to change venue was not framed in terms of s 30 of the Criminal Procedure Act and the magistrate addressed relevant matters that would fall for consideration even if it had been.
3. The other grounds only gave rise to a question of whether relief in the nature of certiorari should be afforded the plaintiff. It is beyond controversy that certiorari is a discretionary remedy and this continues to apply when judicial review for error of law on the face of the record is sought under s 69 of the Supreme Court Act: White v District Court of NSW (1998) 45 NSWLR 313 at 322G (Handley JA); see also Stein JA at 324; Beazley JA (as her Honour then was) agreeing with both.
4. If this Court was to have quashed the decision of the magistrate and to have remitted the matter for further determination the ultimate decision would not be any different. Judicial intervention was not warranted.

Orders

1. For these reasons I made the following orders: 1 Leave to appeal pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 against the order made in the Local Court on 6 June 2017 refusing to vacate a hearing date and transfer the proceedings to another court refused. 2 Application to quash the order made in the Local Court on 6 June 2017 refusing to vacate a hearing date and transfer the proceedings to another court refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2018