KNAGGS v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

KNAGGS v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR - [2007] NSWCA 83 - NSWCA 2007 case summary — Zoe

[13]

Proceedings Leading to This Application 4 The claimant was served with a CAN dated 5 July 2005. That notice stated that a matter in which he was the defendant was listed before the Downing Centre Local Court at a particular date and time. It had a box setting out certain identifying details of the claimant, a box setting out details of the prosecutor and police involved in the charge, and also had a box headed "details of offence/s". The content of that box was: "Crimes Act 1900, Section 59(1) - T2 Law Part Code 243 Assault occasioning actual bodily harm Between 8:00 am and 5:30 pm on 24/03/2005 at Potts Point. did assault Ann TEESE thereby occasioning actual bodily harm to her." 5 The charge was heard before Magistrate Freund at the Downing Centre Local Court on 27 and 28 February 2006, when the matter was adjourned to obtain a pre-sentence report. On 11 April 2006 the claimant was convicted of assault occasioning actual bodily harm, and was placed on a bond. 6 On 9 May 2006 the claimant filed an appeal to the District Court against his conviction. 7 The appeal from the Local Court to the District Court was pursuant to the Crimes (Appeal and Review) Act 2001. Section 11 of that Act enables any person who has been convicted or sentenced by a Local Court to appeal to the District Court against the conviction or sentence. 8 Pursuant to section 9 of the Director of Public Prosecutions Act 1986, the Director of Public Prosecutions took over as respondent to the claimant's conviction appeal. Notice of that fact was given to the District Court on 16 June 2006. 9 The appeal to the District Court was heard on 26 June 2006 by his Honour Judge Hosking SC. On 3 July 2006 the learned Judge dismissed the appeal, and confirmed both the conviction of the appellant, and the sentence imposed by the Magistrate. 10 On 21 July 2006 the claimant filed a summons in the Common Law Division of the Supreme Court of NSW that joined six defendants -Freund LCM, the Commissioner of Police, Judge Hosking SC, the Director of Public Prosecutions, the District Court of New South Wales, and the Local Court at the Downing Centre in Sydney. That summons sought: "O1. Orders in the nature of Certiorari and Prohibition quashing the purported conviction and orders made by the first defendant Magistrate Feund LCM, sitting in the Local Court Downing Centre Sydney on 27 and 28 February 2006, convicting the plaintiff of Assault Occasioning Actual Bodily Harm and sentencing him ('the Local Court Orders'). O2. Orders in the nature of Certiorari and Prohibition quashing the purported conviction and orders made by the third defendant his Honour Judge Hosking SC DCJ, sitting in Sydney on 3 July 2006, (which Orders confirmed the Local Court Orders). ('The District Court Orders') O3. In the alternative to O1 and O2, Order in the nature of Mandamus under S 65 and/or S 69 of the Supreme Court Act ordering the Fifth Defendant, the District Court, to rehear the Plaintiff's appeal from the Local Court Orders. O4. Declaration that the Local Court Orders were ultra vires and without jurisdiction and so invalid and vitiated. O5. Declaration that, further, the District Court Orders were: O5.1 ultra vires and without jurisdiction and O5.2 biased or gave rise to an apprehension of bias and so invalid and vitiated. PARTICULARS: ULTRA VIRES AND WITHOUT JURISDICTION The proceedings and orders are invalid because the purported Court Attendance Notice is defective and invalid in that it does not comply with Ss 172 and 175 of the Criminal Procedure Act, failing to briefly state the particulars of the alleged offence. Nor does it follow the prescribed form in this regard." 11 On 15 September 2006 the Honourable Mr Justice Sully made an order under section 51 Supreme Court Act, removing the summons into the Court of Appeal.

[14]

Relevant Legislation 12 The offence with which the claimant was charged is created by section 59(1) Crimes Act 1900, which provides: "Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years." 13 The following provisions of the Criminal Procedure Act 1986 are relevant: "11. The description of any offence in the words of an Act … creating the offence, or in similar words, is sufficient in law. 12(1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. (2) This section applies to a statement or description of an offence in any court attendance notice … (3) Nothing in this section affects any other method of stating or describing an offence. (4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice …" 14 Part 2 of Chapter 2 of the Criminal Procedure Act 1986 extends from section 15 to section 27 inclusive. Section 15(2) says: "In this Part: indictment includes a court attendance notice …" 15 Relevant provisions of Part 2 of Chapter 2 Criminal Procedure Act 1986 are: "16(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings … in a local court … are commenced …, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment ..." 20 Amendment of Indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case." 16 Part 2 of Chapter 4 of the Criminal Procedure Act 1986 runs from section 172 to section 219 inclusive. Pursuant to section 170 Criminal Procedure Act 1986, Part 2 of Chapter 4 applies to proceedings before a Local Court. 17 The following provisions in Part 2 of Chapter 4 are of present relevance: " 172 Commencement of proceedings by court attendance notice (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division. … 175 Form of court attendance notice (1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. (4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment. … 183 Brief of evidence to be served on accused person where not guilty plea (1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence. (2) The brief of evidence is to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include: (a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and (b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit. (3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution. (4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it." 18 The court can sometimes, under section 187, dispense with the requirement for service of the brief of evidence, but that possibility is not relevant in this case. 19 Section 3 of the Criminal Procedure Act 1986 defines "rules" as meaning: "rules made for the purposes of a court to which the relevant provision applies."

[17]

The Claimant's Contentions 25 The claimant accepts that the CAN with which he was served complies with the requirements of section 175(3)(a), and (c)-(e) Criminal Procedure Act, and also with section 175(4). However, he contends that it does not "briefly state the particulars of the alleged offence", as is required by section 175(3)(b). In consequence, he submits, it is a nullity, it is ineffective to commence any proceedings, and his conviction is likewise a nullity. Hence, he submits, his conviction should be quashed. 26 There are many different ways, the claimant submits, in which an assault occasioning actual bodily harm can be committed. An assault can be committed by a medical operation performed without consent of the patient or other proper legal authority (Secretary, Department of Health and Community Services v JWB and SMB; Marion's Case (1992) 175 CLR 218 at 232-235), by a punch or other blow (R v Bloomfield (1998) 44 NSWLR 734), by intending to shoot someone's hat off as a joke and accidentally shooting the person (at least when the victim of the joke is fearful for his or her safety) (R v Kingston (1884) 18 SALR 76) and in myriad other ways. As well, there are different types of actual bodily harm that can be sustained, and different parts of the body that can sustain the bodily harm. Thus, the claimant submits, to provide "the particulars of the alleged offence", a CAN would need to state not only the person alleged to have been injured, but also the manner in which the assault was alleged to have occurred, and the type and location of the bodily injury alleged to have been caused by the assault. An example that the claimant gives of a CAN which would provide the particulars that section 175(3)(b) requires, concerning the offence with which he was charged, is one that stated: "The accused threw a television set at the face of the said Ann Teese in the accused's office, which struck her on her raised arms, and he then seized her just below both elbows and pushed her against a wall of the office, causing bruising and contusions to her arms and head." 27 The claimant presented various arguments why we should conclude that the CAN did not comply with section 175(3)(b). Rather than consider the detail of those arguments, I shall assume, without deciding, that the CAN with which the claimant was served did not "briefly state the particulars of the alleged offence", and thus contravened section 175(3)(b) Criminal Procedure Act 1986. On that assumption, the question then concerns what the effect of such a contravention is. There are two different routes leading to the answer to that question.

[18]

The First Route - Direct Construction of the Statute 28 Section 175 is not the provision that confers upon the Local Court what might be called the general jurisdiction to decide summary prosecutions for a breach of section 59 Crimes Act. That jurisdiction arises as a result of the combined operation of three provisions. The first is section 7(2) Local Courts Act 1982, which provides: "Courts shall have the jurisdiction conferred or imposed on them by or under any Act or other law." 29 The second is section 260(2) Criminal Procedure Act 1986, which provides: "An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by a Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment." 30 The third is clause 1 of Table 2 in Schedule 1 of the Criminal Procedure Act 1986. That clause is a list that includes section 59 Crimes Act 1900, thereby giving content to section 260(2). 31 Section 175 is concerned with the manner of invoking, in a particular case, the general jurisdiction that the Local Court has to decide summary prosecutions for a breach of section 59 Crimes Act. 32 The fact that a statute that prescribes a mode of carrying out some action has been contravened does not necessarily mean that, in the eyes of the law, that action has not been carried out or is a nullity. In Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ considered the validity of a purported decision by an administrative body that was arrived at in contravention of a particular legislative requirement. At 388-389, [91] their Honours said: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition." 33 Their Honours went on, at 389-390, [92]-[93] to disapprove the distinction that had traditionally been made between mandatory and directory provisions in statutes, concluding, at 390-391, [93]: "A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute": Tasker v Fulwood [1978] 1 NSWLR 20 at 24. 34 While Project Blue Sky shows that failure to comply with a legislative requirement that some act must be done in a particular way does not always result in a failure, in the eyes of the law, to perform that act, there are particular considerations that relate to legislative provisions concerning the manner in which the jurisdiction of courts (as opposed to administrative bodies) is exercised or invoked. In Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 228 ALR 387 the majority judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at [10], 389, pointed out that saying that an administrative decision reached without compliance with a statutory requirement was "invalid" or a "nullity" involved "statements of conclusion which are not necessarily helpful in resolving the rights of parties", and that "Dangers are equally present in the context of proceedings in, and acts and orders of, courts." 35 In Berowra Holdings at [13]-[16], 390-391 their Honours said:

[22]

[16] None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction." (footnotes omitted) 36 Berowra Holdings involved a civil case. Section 151C Workers Compensation Act 1987 provided that a person to whom compensation was payable under that Act was not entitled to commence court proceedings for damages in respect of the injury concerned, against the employer liable to pay the compensation, until six months had elapsed since notice of the injury was given to the employer. In Berowra Holdings, a worker had commenced proceedings in the District Court before the six months specified by section 151C had elapsed. The question at issue concerned whether the worker was free to accept, in the proceedings thereby begun, an offer of compromise that the employer had made, in in accordance with the District Court Rules. The employer argued that the proceedings were a nullity because of the contravention of section 151C, and in consequence the District Court Rules could not operate in respect of them. The High Court held that that argument was mistaken. Notwithstanding the clear differences between the factual circumstances in which Berowra Holdings arose and the present case, the remarks from the majority judgment in Berowra Holdings that I have set out above are in quite general terms, and are not dependent on any aspect of the particular facts in Berowra Holdings. In my view, they are also applicable in summary criminal proceedings. 37 As well, when a particular statutory provision relates to the exercising by a court of jurisdiction, particular principles of construction of legislation come into play. In Berowra Holdings at [31], 394, the majority said: " [31] In the joint judgment of five members of this court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 505 [72], reference was made to a "basic rule" that a legislature does not intend to cut down the jurisdiction of the courts "save to the extent that the legislation in question expressly so states or necessarily implies". Earlier, in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391; [1938] ALR 119 at 128, Dixon J said: [I]f the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed." 38 Because of the special considerations relating to statutory provisions concerning the jurisdiction of courts that I have quoted so far from Berowra Holdings, it seems to me that when the majority judges, at [28], 393 said: " Project Blue Sky was not concerned with questions relating to the jurisdiction of courts."

[23]

they were making a more general point than one limited to the particular subject matter in dispute in that case. 39 The requirement created by section 175(3)(b) is an imperfect obligation, in the sense that it does not make express provision for the consequences of failure to comply with it. Nothing in the statute states that proceedings purportedly commenced without complying with section 175(3)(b) will be invalid or a nullity or in any other way of no effect. Thus, it is only if there is a necessary implication to that effect that such a consequence will arise. 40 In a situation like the present, where it is not alleged that the CAN fails to identify all the elements of an offence, I do not find in the statute any necessary implication that any failure of the CAN to "briefly state the particulars of the alleged offence" should result in either the CAN, or a conviction in proceedings begun by the CAN, being void. 41 Indeed, there are several indications in the statute and in the manner in which it operates that indicate that a failure to comply with section 175(3)(b) when issuing a CAN does not result in the invalidity of a conviction obtained in proceedings purportedly begun by that CAN. 42 First, if it were the case that a prosecutor were to file in the Local Court a CAN that did not comply with section 175(3)(b), it would have to be the case that the Local Court had at least the power to decide whether any valid proceedings had been commenced by that document, and whether (regardless of the outcome of the dispute) a costs order should be made against one party or the other concerning that dispute. In those circumstances, it could not be the case that the CAN was a total nullity, otherwise there would be no proceedings before the court within which those disputes could occur. 43 Second, section 175 makes three different types of requirement for a CAN. The first is that it be in writing. The second relates to the form that the CAN should have. The third (and it is this that is dealt with by section 175(3), and might also be affected by section 175(4)) is not concerned with mere matters of form, but matters of substance, concerning the information that is to be contained in the CAN. Thus, because section 175(3) does not merely relate to matters of form, section 12(4) does not have the effect that section 12 is irrelevant to it. 44 Each of section 12(1), (2) and (3) uses (through differing grammatical cognates) two different notions - that of stating the offence, and that of describing the offence. Those verbs are precisely the ones used in section 175(3)(a) and (b). As well, section 12(1) and section 175(3)(b) both contain the notion of brevity or shortness. In section 175(3)(b), "briefly" is an adverb that qualifies the requirement to "state the particulars of the alleged offence". I recognise that section 12(1) is concerned with stating or describing the offence itself, while section 175(3)(b) creates an obligation to state "the particulars of" the offence. Even so, it seems to me that section 12(1) can cast light upon the degree of specificity with which an offence needs to be described and particularised in the CAN. That light is cast in an imprecise way, through creating an impression that the shade of meaning to be attributed to the general words of section 175(3)(a) and (b) is at the less elaborate rather than the more elaborate end of the spectrum of meanings that those general words can bear. The way one gains this sort of impression about shades of meaning falls well short of a rigorous logical process. However, alertness to nuances of meaning and shades of language is a legitimate part of the task of construing the statute as a whole, and having regard to the scope and object of the whole statute. It is one part, though in the present case is not a sufficient part, of deciding whether there is any necessary intendment in the Criminal Procedure Act that a CAN that does not comply with section 175(3)(b) is invalid. 45 I accept that, because it deals only with the description of the offence, section 11 Criminal Procedure Act bears only on section 175(3)(a), and does not have any bearing on section 175(3)(b). 46 Third, the nature of the obligation created by section 175(3)(b) is also relevant. The obligation it creates is nowhere near as precise as, for example, the obligations contained in section 175(3)(c), (d) and (e). It is possible to say with certainty whether the CAN, for example, contains the name of the prosecutor, or does not. But it is not as though there is a catalogue that lists "the particulars" for any offence, by reference to which one can decide with comparable certainty whether there has been compliance with section 175(3)(b). Rather, the particulars of an offence are a statement of the way in which, in the circumstances of the particular case, the prosecutor alleges that the general standard of conduct imposed by the provision of the law that creates the offence has been breached. Because particulars are dependent on the circumstances of the individual case in this way, the particulars of an offence are not formulaic, and are likely to differ from one CAN to another, even where one is comparing CANs that all charge the same offence. Another consequence of particulars being dependent on the circumstances of the individual case is that there can be legitimate differences of opinion about whether proper particulars have been provided. It is possible to state the manner in which a case is proposed to be put at higher, or lower, degrees of particularity. It is ultimately a matter of judgment, not a simple matter of fact, as to whether adequate particulars have been supplied of the allegation that a CAN makes of commission of an identified offence. That judgment is one that must be formed bearing in mind the purpose of particulars, as well as the specific offence that is alleged. Though originally stated in the context of civil litigation, the remarks of Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321-322 are applicable to the purpose of providing particulars of a criminal offence: The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet: Saunders v Jones (1877) LR 7 Ch D 435 at 451; R v Associated Northern Collieries (1910) 11 CLR 738 at 740; Dare v Pulham (1982) 148 CLR 658 at 664. The object of particulars is to save expense in preparing to meet a case which may never be put: McSpedden v Harnett (1942) 42 SR (NSW) 116 at 119; 59 WN 98; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing: Kelly v Kelly (1950) 50 SR (NSW) 261 at 265; 67 WN 193 at 196; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219. See, generally, Philliponi v Leithead [1959] SR (NSW) 352 at 358, 359; 76 WN 150 at 152; Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (Pt 1) (N.S.W.) 553 at 557, 558; Ellis v Grant (1970) 91 WN (NSW) 920 at 924, 925. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet: Turner v Dalgety & Co Ltd (at 229); Philliponi v Leithead (at 359; 152); Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commission of Taxation (at 219, 220, 221). There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led."

[24]

Whether a set of particulars that has been provided fulfils that purpose is a matter that involves judgment, and is not a simple matter of fact. 47 That the standard of conduct created by section 175(3)(b) is imprecise in these ways is one factor against there being any necessary intendment that, if section 175(3)(b) was breached, that would invalidate the entire proceeding begun by the CAN. 48 Fourth, by reason of the extended meaning of "indictment" given by section 15(2), section 16(2) applies to a CAN. The wording of section 16(2) is broad, and its reference to a defect in a CAN "in substance or in form" is capable of applying, as a matter of language, to a failure to state the particulars of the alleged offence. It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them: cf The King v Hickman & Others; ex parte Fox & Clinton (1945) 70 CLR 598. There is no need to decide whether that is so, as the argument we are asked to consider in this application is whether, when the CAN identified all the elements of the offence, any failure to comply with section 175(3)(b) has the effect that the proceedings purportedly commenced by the CAN that breaches that requirement are void. 49 The claimant argued that section 16(2) had no application in the present circumstances, because it applies only to "any indictment" (including in that expression the extended meaning of "any CAN") and, because section 175(3) sets out what a CAN "must" do, any CAN that fails to comply with section 175(3) was not the type of entity to which section 16(2) could apply. I do not accept the correctness of that process of reasoning. The exercise I am presently engaged in is one of deciding whether a failure to comply with one or other of the requirements of section 175(3) renders void the CAN and any resultant proceedings. The argument that the claimant advances already presumes the answer to that question by asserting that section 16(2) applies only to valid CANs, and hence not to a CAN that breaches any of the requirements of section 175(3). Rather, the task of construction that should be performed is one that involves construing the whole statute. 50 Fifth, the express power of amendment of a CAN that is conferred by section 21 is, in its terms, capable of applying to a CAN that is defective by reason of a failure to comply with section 175(3)(b). As section 21 is wide enough to permit an amendment of any particulars that were originally contained in a CAN, it would be strange if the legislature intended that a failure to fully state particulars in the CAN at the outset made that CAN void. 51 Sixth, one of the purposes of the legislature in enacting section 175(3)(b) was that a person who was subject to a charge should have sufficient information about the allegations that were to be made against him or her to be able to prepare a defence. Requiring particulars to be given at the earliest stage of the proceedings, in a CAN, is an aid to the fair and efficient conduct of the proceedings. However, those purposes of the legislature are not ones that can be put into effect only if the invalidity of proceedings is a consequence of a failure to comply with section 175(3)(b). The provisions of section 183, requiring the service on the accused of a copy of the brief of evidence, also give effect to the legislature's intention that a defendant be well informed about the nature of the case proposed to be advanced against him or her. If the CAN provided the only information that an accused would receive about the case he or she was required to answer, one can see that there could be good practical sense in requiring the CAN itself to contain, at the risk of invalidity if it did not, all the information that an accused should fairly be given to prepare a defence. However, when section 183 makes provision for the accused receiving much more information about the case he or she is required to meet than is written in the CAN itself, there is not the same practical point in the legislature intending invalidity of the CAN to be the consequence of failure to comply with every detail of section 175(3). 52 I recognise that while provision of the brief of evidence goes some way towards informing a defendant of the case he or she is called on to meet, its provision is not the same as, and is not a full substitute for, the provision of particulars. However, it is in courts that existed before section 175 was introduced that the procedure it established comes to be applied. As will be seen at paras [69]-[71] below, there is a well established power for courts exercising criminal jurisdiction to require, without need for any express grant of power, extra particulars to be given concerning any criminal proceeding that is pending in that court. Section 175(3) should be construed, it seems to me, bearing in mind that that power already exists. That power provides a means whereby a defendant can obtain proper particulars of a criminal charge if they are not contained in the CAN. This provides another reason why there is no practical need to construe each of the requirements of section 175 as one that, if not met, will result in the invalidity of the CAN and any resulting proceedings. 53 Seventh, another aid to construction is that the word "must" appears in both section 175(1) and in section 175(3). Section 175(1) states that a CAN "must" be in the form prescribed by the rules - yet section 175(2) confers a mere permission for the rules to prescribe court forms, rather than a positive requirement. The form of the legislation therefore left open the possibility, which has in fact happened, that there is no prescribed form. It would be strange if a failure to comply with section 175(1), through not using "the form prescribed by the rules" for a CAN, made that CAN void. Indeed, if that were so, every CAN that the Local Court has issued since the commencement of section 175 would be void, all convictions obtained pursuant to proceedings commenced by such a CAN would be void, and all acquittals obtained in proceedings commenced by such a CAN would be likewise void and so would not give rise to a defence of autrefois acquit. I doubt that the legislature is likely to have intended those consequences. If a failure to comply with what section 175(1) says "must" be done does not necessarily result in invalidity of the CAN, that suggests that failure to comply with what section 175(3) says "must" be done does not necessarily result in invalidity of the CAN either. 54 Eighth, there are some circumstances in which a CAN being void if it breached section 175(3)(b) would be an interference with the fair and efficient dealing with allegations of criminal conduct. If a defendant was anxious to get to court and obtain a decision on the merits, but the particulars in the CAN breached section 175(3)(b), there would be no valid proceedings in which he could obtain proper particulars, and no valid proceedings in which he could clear his name. I doubt that the legislature would intend such a situation to arise. 55 Ninth and finally, I mention some facts concerning the present case. 56 Even before the CAN was filed with the Local Court, the claimant was served with a copy of the CAN and also a police facts sheet, comprising four pages of typing. Approximately three of those pages of typing were a prose description of the events that the police proposed to contend were involved in the incident that was the subject of the charge. The full police brief of evidence was served on 6 October 2005. It included a statement by Ms Teese that included her account of the incident. No compliant has been made that it did not include all the information that section 183 requires be included. 57 The claimant made no application for better particulars of the charge, either prior to the hearing in the Local Court, or at the Local Court hearing itself. He made no submission to the Magistrate that the CAN was void and that hence, the Magistrate had no jurisdiction. 58 The appeal to the District Court was an "all grounds" appeal. The Notice of Appeal stated the grounds of appeal to be "because I am not guilty". No complaint was made to his Honour Judge Hosking about the inadequacy of the particulars that had been supplied, nor was any argument advanced in the District Court appeal, that the conviction was void by reason of the inadequacy of the particulars contained in the CAN. 59 One does not construe legislation by reference to the facts of an individual case. However, the general type of situation that I have just set out concerning the facts of this case - where a person served with a CAN contests on the merits the allegations made against him both before a magistrate, and in the District Court on appeal, loses on both occasions, and then seeks to argue in the Court of Appeal, in proceedings in the nature of ones seeking a prerogative writ, that the entire course of proceedings in both the Local Court and the District Court is a nullity - is one that could readily be predicted to arise, if it were correct that a failure to comply with section 175(3)(b) made the CAN void. While this is nothing like the most powerful of the arguments concerning construction of section 175 that I have here set out, it seems unlikely that the legislature would have intended to pass a law that operated in this wasteful fashion. 60 In all these circumstances, and purely as a matter of construction of the legislation, I do not conclude that the legislature intended that a contravention of section 175(3)(b) would result in the invalidity of the CAN, and of any convictions that result in proceedings commenced by such a CAN.

[25]

The Second Route - Extrinsic aids to construction 61 Section 34 Interpretation Act 1987 provides: " Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable." 62 Section 34(2)(f) includes in the extrinsic material that is permitted to be looked at: "the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House," 63 The Justices Act 1902 governed the procedure for summary trial of criminal offences before magistrates until it was repealed with effect from 7 July 2003. One of the Acts that replaced it is the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. That legislation introduced into the Criminal Procedure Act 1986 procedural provisions, including section 175. Before the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 came into operation, the provisions of section 175 were amended by the Courts Legislation Miscellaneous Amendments Act 2002. The section 175(3)(b) that had been legislated for by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001, but never commenced operation, had said: "(b) identify the essential factual elements of the alleged offence"

[26]

The Courts Legislation Miscellaneous Amendments Act 2002 replaced those words with the present wording: "(b) briefly state the particulars of the alleged offence" 64 In the course of making the second reading speech in the Legislative Assembly of the Bill for that last-mentioned Act on 23 October 2002, Mr Moss, the Parliamentary Secretary for the Attorney General, said that, as then enacted, sections 50 and 175 of the Criminal Procedure Act " … make references to new terminology which may be ambiguous. It was not intended that the Justices Act reform package change the law in relation to the contents of the initiating process. Therefore sections 50 and 175 will be amended to more closely reflect the language of the current law." 65 In the course of making the second reading speech in the Legislative Council on 21 November 2001 the Parliamentary Secretary introducing the Bill, Mr McDonald, used virtually identical words to those that Mr Moss had used. 66 Thus, it was the legislature's apparent intention that section 175 be construed in a way that does not alter the previous law concerning the contents of the initiating process for a summary offence. I turn to consider that previous law, as an aid to construction of section 175. 67 Under the Justices Act 1902, a summary criminal procedure for which the consent of the defendant was not required was generally commenced by a prosecutor laying an information before a justice of the peace. There was no necessity for that information to be in writing or sworn unless the statute creating the offence so required, or unless a warrant for the arrest of the defendant was sought. Once the information was laid, the justice could issue a summons for the appearance of the defendant. If the defendant failed to appear in answer to the summons then, once service of the summons had been proved, a warrant for the arrest of the defendant could be issued, and the hearing adjourned. Alternatively, the case could be proceeded with in the absence of the defendant: section 52-60, 74-77 Justices Act 1902. 68 In Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 165-167 Jordan CJ traced the history of supervisory control in England over the exercise of summary jurisdiction by justices. By 1848 the situation had been reached where (167) "large numbers of delinquents escaped punishment upon grounds some of which were highly technical." In 1848 the Summary Jurisdiction Act 1848 (Imp) (11 & 12 Vic c 43), also known as Jervis' Act, was passed in England, containing various provisions aimed at rendering summary convictions less open to attack. Other procedural legislation with a similar objective, discussed by Jordan CJ in Lovell at 168-170, was also introduced in England during the 19th century. Legislation on these English models was also passed in New South Wales. Two provisions are of particular relevance to the present case. One is section 65 Justices Act 1902, which provided that no objection should be taken or allowed to any information in respect of any alleged defects therein in substance or in form. The other is 145A Justices Act 1902, introduced in 1909, that permitted an information to specify the offence in the same terms as the statute that created it. 69 Because an information was, in essence, a complaint or allegation made to a justice, there was some doubt about whether the court (as opposed to the person who had made it in the first place) had any power to amend it: Phillips v The Corporate Affairs Commission [1974] 2 NSWLR 489 at 495-496; Boral Gas (NSW) Pty Ltd v Magill and another (1993) 32 NSWLR 501 at 516. That doubt included doubt about whether the court could order that particulars be added to an information, if the prosecutor did not add them voluntarily. (The doubt has now been removed by section 21 Criminal Procedure Act 1986.) However, notwithstanding statutory provisions such as those found in section 145A Justices Act 1902 that permitted an information to specify the offence in the same terms as the statute that created it, all courts hearing summary criminal matters had jurisdiction to order that further particulars be given of the information, and in default of them being given, to order that the information be dismissed: Smith v Moody [1903] 1 KB 56 at 60, 61, 63; Johnson v Miller (1937) 59 CLR 467 at 486; Ex parte Graham; Re Dowling and another (1968) 88 WN (Pt 1) (NSW) 270 at 280. The situation was stated succinctly by Jordan CJ in Ex parte Ryan; Re Johnson (1944) 44 SR (NSW) 12, at 16: " … it is quite clear that the accused is entitled to have sufficient particulars of what is charged against him to enable him to prepare his defence, and if these be not supplied by the information and are not otherwise communicated to him, the magistrate may and should direct him to be supplied with particulars, and grant any adjournment necessary to enable him to meet them." 70 Though that power to order particulars has sometimes been described as an "inherent" power of the court (e.g. Johnson v Miller (1937) 59 CLR 467 at 497 per Evatt J.; Ex parte Graham; Re Dowling and another (1968) 88 WN (Pt 1) (NSW) 270 at 280 per Asprey JA, with whom Wallace P agreed), the terminology of "inherent" power could be confusing in relation to inferior courts, and the power is better described as an "implied" power: Stanton v Abernathy (1990) 19 NSWLR 656 at 671 per Gleeson CJ (with whom Priestley and Meagher JJA agreed) . 71 The basis for the practice of ordering particulars of an information when there was no specific statutory power enabling it to be done, and for regarding the ability to order such particulars as being an implied power of all courts possessing summary criminal jurisdiction, lay in natural justice - if a body called a court was given power to impose criminal sanctions on a person, it was a necessary part of that power that it be administered in accordance with natural justice, part of which is that anyone charged with an offence is entitled to know what is the charge he or she is called upon to meet (Johnson v Miller (1937) 59 CLR 467 at 479 per Latham CJ (diss), 490 per Dixon J ("if … the interests of justice make it necessary"), 497-498 per Evatt J; Lovell at 173; Ex parte Graham; Re Dowling and another (1968) 88 WN (Pt 1) (NSW) 270 at 280. 72 In Lovell at 169-170 Jordan CJ referred to certain English cases that appeared to have held that it was necessary for an information to not only describe the offence, but also to accompany the description with particulars of the act relied on as constituting the offence. His Honour continued: "These authorities seem to be based on the view that it is essential that the accused should have sufficient particulars to prepare his defence. No exception can be taken to this view; but the object, as is pointed out by Evatt J. in Davies v Ryan (1933) 50 CLR 379 at 386, can be secured otherwise than by insisting upon a retention of the old rule that these particulars must necessarily be given upon the face of the information itself. In view of the decision last quoted, it is open to question how far the earlier authorities should be treated as binding: cf Preston v Donohoe (1906) 3 CLR 1089 at 1091, 1096; Ex parte Parkinson (1909) 9 SR 174 ." 73 I respectfully agree with this view of Jordan CJ, save in one respect - in my view the last sentence quoted did not go far enough and the "earlier authorities" are incorrect to the extent to which they required (or appeared to require) that the particulars actually accompany the information. Preston v Donohoe involved an application for prohibition of a NSW magistrate, who had convicted the masters of two ships on charges of being the master of a vessel from which a prohibited immigrant entered the Commonwealth contrary to the Immigration Restriction Acts of 1901 and 1905. Those Acts created various different classes of prohibited immigrants. The information did not specify the particular class of prohibited immigrant within which the immigrant in question was alleged to fall. Griffith CJ, delivering the judgment of the Court, stated, at 1096: "The next objection was that the particular class of prohibited immigrant within which Mahomet Mithoo was alleged to fall was not specified in the information. It may be convenient, but we doubt whether it is necessary, that this should be stated in the information. Assuming that it is strictly speaking necessary, which we do not decide, this objection also is cured by the sections of the Justices Act 1902 already mentioned." 74 The "sections already mentioned" were section 65 and section 115 Justices Act 1902. It seems to me that in the passage I have quoted above from Lovell, Jordan CJ was not recognising the full force of the High Court decision to which he referred. The upholding of the convictions in Preston v Donohoe seems to me to necessarily carry with it a consequence that failure to provide full particulars of an offence in the information did not result in the invalidity of a conviction based on that information. 75 Indeed, Jordan CJ's own view was not consistent with those "earlier authorities" being correct. In Lovell at 173-174 Jordan CJ said that section 65 "… does not enable a magistrate to convict of an offence upon an information which discloses no offence, or to convict of an offence alleged in the information if the evidence does not support that offence, or to convict of an offence established by the evidence if it is a different offence from that charged in the information. … If, however, the information and summons charge all ingredients of the offence, the fact that particulars which should have been given have been omitted is a matter covered by s 65…" 76 The law as so laid down by Jordan CJ did not change in the period between 1938 and the time the Justices Act was repealed in 2003. In Boral Gas at 515 Mahoney JA said: "There is, I think, no exhaustive and definitive statement of what is necessary and sufficient to be contained in an information: see generally, John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; De Romanis v Sibraa [1977] 2 NSWLR 264. Ordinarily, the information must state, and state correctly, the essential elements in law of the offence charged, the time of its commission, the place and manner of its occurrence and such other details as are necessary to allow the defendant to know that which he must meet. And the information must state only one offence: it will otherwise be objectionable as for duplicity. If the information is not, in this regard, in proper form, it is defective.

[28]

But on a literal approach, s 65 would offer no assistance if the defect lay in, for example, a mis-statement of the offence such that it could be corrected only by the deletion of the existing statement of it and the substitution of a corrected statement. In Ex parte Lovell; Re Buckley (at 168) , Jordan CJ saw the English decisions of the equivalent legislation as establishing that it did not apply "if it appears that the information does not allege all the ingredients of the statutory offence" or that the evidence did not prove it. Accordingly, absent power in the lower court to amend the information to remove the particular defects, statutory provisions such as s 65 do not remove all of the defects for which proceedings on the information may be restrained or convictions quashed. It is, in general, to informations defective in this way that the term "void" has ordinarily been applied. I have in the present case used it in this sense." 78 In other words, under the Justices Act 1902, if an information alleged all the essential elements of an offence, but was inadequately particularised, a resulting conviction was not void. 79 The tendency of the reasoning in Stanton v Abernathy is in the same direction. Though Stanton concerned a committal hearing rather than a summary trial, section 30 Justices Act 1902 applied to committal hearings, and was in terms not materially different to those of section 65. The Court of Appeal held that, through the combined operation of section 145A and section 30, a charge that was deficient should be supplemented by particulars, rather than simply dismissed. In Director of Public Prosecutions (NSW) v David Alderman (Supreme Court of New South Wales, 8 August 1997, unreported) Sperling J considered a summary charge (not a committal) that was lacking in particulars. He held there was no relevant distinction to be drawn from Stanton. Thus, in consequence of section 65 and section 145A, he concluded that further particulars should be supplied, but that it would be wrong to dismiss the charge on the basis that the particulars were insufficient. 80 In Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48, a decision of the Court of Criminal Appeal, Sperling J (with whom Meagher JA and James J agreed) said, at [26], 57: "A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Bartlett (1896) 17 LR (NSW) 108; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261; 64 WN (NSW) 21; Ex parte Burnett; Re Wicks [1968] 2 NSWR 119; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517, per Mahoney JA. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars - such as the time, place, or the manner of the offence - a Lord Jervis provision will operate: John L Pty Ltd (at 529 and 530), per Brennan J; Stanton v Abernathy (at 667), per Gleeson CJ; R v Cassell (New South Wales Court of Criminal Appeal, 24 July 1996, unreported); R v Duff (1924) 41 WN (NSW) 23." 81 The claimant placed some reliance on John L Proprietary Ltd v The Attorney-General for the State of New South Wales (1987) 163 CLR 508. In John L the High Court held invalid a summary conviction on an information that alleged, in the same words as the statute creating the offence, that a particular advertisement was "knowingly false or misleading in a material particular", without saying what that "material particular" was. The reason why that conclusion was reached was influenced by the fact that the conviction had been brought in the summary jurisdiction of the Supreme Court, and a provision, section 6 Supreme Court (Summary Jurisdiction) Act 1967, that prevented objection being taken to certain applications by reason of alleged defects in it in substance or in form, was held not to apply to the proceedings that were the subject of that case. The majority in the High Court (Mason CJ, Deane and Dawson JJ) referred to section 65 and 145A Justices Act 1902, and said, at 519-520: "One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g, Smith v Moody [1903] 1 KB 56, at p 60; Johnson v Miller (1937) 59 CLR 467, at pp 486-487, 501; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280. It is, however, unnecessary to pursue that particular question here since, putting to one side s 6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence." 82 Thus, the decision in John L does not relate to the validity of a conviction, on the basis of an information that was not fully particularised on the face of a document notifying the accused of the information, in a court of summary jurisdiction to which the Justices Act 1902 applied. Nor does it relate to an information to which a provision like section 65 Justices Act or section 16(2) Criminal Procedure Act applies. Thus, the majority judgment does not assist in deciding whether an information was void if it did not contain full particulars, under the Justices Act. 83 It follows that, under the law that applied before the introduction of section 175 Criminal Procedure Act, a failure to supply particulars in an information did not invalidate any proceedings commenced by that information. As the apparent intention of the legislature in enacting section 175(3)(b) was not to alter the pre-existing state of affairs under the Justices Act concerning the contents of informations, this consideration of the pre-existing law leads to the same conclusion as I have arrived at from a construction of the relevant provisions of the Criminal Procedure Act considered in isolation. 84 Given the conclusion that I have arrived at as a matter of construction, it is not necessary to give any further consideration to whether it is open to the claimant to allege before this Court, that the CAN was invalid, when that point was not taken either before the Magistrate or on the appeal to the District Court. Nor is it necessary to consider how section 176 District Court Act 1973 (which provides "no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court") affects the present proceedings.

[29]

Bias 85 An independent basis upon which the claimant sought relief was that the decision of Judge Hosking should be set aside on the ground of the apparent bias of the Judge. No case of actual bias was alleged. 86 There was no dispute about the relevant legal principles governing the setting aside of a judicial decision for apprehended bias. They were stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345, [6] by Gleeson CJ, McHugh, Gummow and Hayne JJ: "… the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial." 87 No suggestion is made that the judge had any prior connection with, or knowledge of, the parties to the appeal. 88 Section 18 of the Crimes (Appeal and Review) Act 2001 requires (subject to an exception not presently relevant) that an appeal against a conviction in the Local Court be by way of re-hearing on the basis of certified transcripts of evidence given in the original Local Court proceedings. 89 Such an appeal is not a hearing de novo, but rather an appeal conducted on the same principles as an appeal from a judge sitting without a jury: Gianoutsos v Glykis (2006) 65 NSWLR 539; Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244. 90 The hearing of the District Court appeal took place on Monday, 26 June 2006, and was completed within that day. Judgment was delivered on 3 July 2006. 91 On 26 June 2006, after the matter was called on, the claimant (who is a solicitor, and appeared for himself) and a representative of the Crown, each made some brief opening remarks. His Honour then retired to read the papers relating to the hearing in the Local Court (including the transcript), and written submissions supplied by at least the claimant. 92 There had never been any dispute that Ms Teese had come to be injured while in the claimant's office. The evidence before the Magistrate included conflicting accounts, from the claimant and from Ms Teese, about the circumstances of the incident in which she came to be injured. A fundamental submission of the claimant in the District Court was that Ms Teese "has a serious credit problem". The claimant pointed, both orally and in written submissions, to what he submitted were various inconsistent statements she had made, and various alleged implausibilities in her account of events. 93 Upon returning from reading the papers, the Judge asked the claimant various questions, to elucidate and test the submissions that the claimant wished to make. 94 His Honour's judgment gave a précis of the account of the incident that Ms Teese had given, a précis of the account of the incident that the complainant had given, and considered whether the evidence supported one version or the other. 95 The question of whether there is an apprehension that a judge is biased is a different question to whether there has been any error of law in the conduct of the appeal. That a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias. In saying that, I make clear that I am not saying anything about whether there has actually been any such error on the part of Judge Hosking. 96 The manner in which the apprehension of bias principle operates was stated in Ebner at 345, [7]-[8] as follows: "7. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 97 I accept that it is appropriate to look at not only the transcript, but also the reasons for judgment, when deciding whether there was a reasonable apprehension of bias on the part of the judge. To take an extreme example, if a judge in a judgment said, "I am always very suspicious of the evidence of people from Ruritania", in a case where one of the witnesses came from Ruritania, that could be a significant factor in deciding whether a fair minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to his or her task. 98 In the present case, having read the whole of the transcript and judgment in the District Court, I find nothing from which a fair minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the question before him. Nothing was suggested to us, and nothing emerges from my own reading of the papers, that identifies what it is that might have led the judge to decide the case other than on its legal and factual merits. When no such thing can be identified, it is impossible to carry out the "second step" identified in Ebner at [8]. 99 In my view, there is no substance at all in the submission that there was a reasonable apprehension of bias on the part of Judge Hosking. 100 In fairness to his Honour, I should also record that the opponent was not called on on this point.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Cases Cited (22)