Lazarus v New South Wales Director of Public Prosecution

Motion for Disqualification

1. On 22 July 2015, Ms Lazarus filed a Notice of Motion requesting that: "Justice Garling be removed from further hearing the matter with case number 2015/00055904 as his hearing the matter presents a conflict of interest."
2. That Motion was made returnable before me at the time the matter was listed for hearing on 27 July 2015. After hearing submissions from Ms Lazarus, I dismissed the Motion and indicated that I would give reasons in due course. These are those reasons.
3. The entirety of the evidence in support of that Motion was contained in a brief affidavit, the relevant parts of which are as follows: "3. On 13 and 14 April 2015 Justice Garling presided over the matter with case number 2015/00036376. Justice Garling's judgment for this matter (case number 2015/00036376) is currently on appeal in the New South Wales Court of Appeal. A Notice of Intention to Appeal was filed on 12 May 2015 and the Summons Seeking Leave to Appeal was submitted to the New South Wales Supreme Court Registry and was heard before Justice Davis on 13 July 2015 (case number 20155/000140617). The appeal is based on numerous factual errors and inaccuracies, dismissal of material evidence before the court, failure to address evidence before the court, on part of Justice Garling, who was the decision-make in the matter on 13 and 14 April 2015; case number 2015/00036376. 4. As the two matters, with case number 2015/00055904 and 2015/00036376 are directly related a single ICAC investigation, and one is currently under appeal to appeal Justice Garling's decision, presents a conflict of interest."
4. The affidavit refers to a decision which I gave in April 2015 with respect to a different matter, which involved Ms Sandra Lazarus, the sister of Ms Michelle Lazarus, as the plaintiff. That decision is to be found at Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426.
5. That judgment dealt with 44 convictions entered by the Local Court of NSW, Keogh LCM, on 27 November 2014, against Sandra Lazarus for 15 offences against s 178BB of the Crimes Act 1900 ("the Crimes Act"), and 29 offences against s 300 of the Crimes Act.
6. As those reasons show, the attack made in that case by the plaintiff upon her convictions did not involve the same Magistrate who made the decision which is sought to be reviewed in this case. It did not involve the same charges or any of the same evidence. The hearings were conducted before different Magistrates, on different days and were wholly unconnected.
7. Ms Michelle Lazarus submits that since both proceedings arose out of the same ICAC investigation, then a conflict of interest arises, because of the first judicial review decision. Since it cannot be said that I have any personal interest in the first case brought by Ms Sandra Lazarus nor in this case, I have taken the assertion of conflict of interest to be Ms Lazarus' expression of concern that there is a reasonable apprehension of bias arising from pre‑judgment.
8. It may be accepted that the substantive subject matter of the ICAC investigation were issues of fraud and inappropriate financial benefit, which ultimately gave rise to the proceedings against Ms Sandra Lazarus. It may also be accepted that the charges against Ms Michelle Lazarus, the present plaintiff, of giving evidence which was false or misleading in a material particular contrary to s 87(1) of the Independent Commission Against Corruption Act 1988 ("the ICAC Act"), were charges which arose from the same ICAC investigation as that involving her sister.
9. That said, I do not see any room for a conflict of interest arising, nor for any person to apprehend that I would not bring an unbiased mind to the decision of these proceedings.
10. The legal test which is applicable in determining whether a Judge should be disqualified by reason of an apprehension of bias, which in this case must be constituted by pre-judgment of an issue in these proceedings by reason of the delivery of the judgment in respect of Ms Sandra Lazarus, is: "… whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." See Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at 437 [31].
11. The test for disqualification by reason of appearance of bias is an objective one founded on the need for public confidence in the judiciary, and postulates the reasonable apprehension of an observer: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [12].
12. As the High Court of Australia said in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [8], the application of the apprehension of bias test requires two steps. The first step requires a careful identification of what it is said that might lead to a judge deciding a case other than on its legal and factual merits. The second step is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
13. In Ebner, the plurality said at [8] this: "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."
14. Here, Ms Lazarus, other than stating that a conflict of interest was involved, did nothing in her submission to elaborate upon that proposition. She did not take the Court to any part of the judgment given in her sister's case, upon which she relied, to give rise to an "interest" which was capable of being in conflict with the capacity of the Court to resolve this dispute. For example, she did not suggest that any issue which fell for consideration in this case had been the subject of determination in the case involving her sister. She did not point to any question of legal interpretation of a statute or other instrument which fell for consideration and determination in both cases. It was not said that there was any part of the judgment which I have given in her sister's case which indicated the pre-judgment of any issue in this case.
15. In those circumstances, no basis has been elucidated as to why any hypothetical, reasonable observer would apprehend that in deciding this case, I might not bring an impartial and unprejudiced mind to the resolution of the issues I am required to decide.
16. It is as well, in circumstances where there is no clear elucidation of the basis of an application for a Judge to disqualify himself, or herself, to keep in mind that, as important as it is for a Judge to disqualify themselves if there is a reasonable apprehension of bias: "… it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that they by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." See Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J.
17. There was simply no basis for me to recuse myself, and so I refused the Motion.
18. These are the reasons why, on 27 July 2015, at the conclusion of argument, I dismissed the Motion.

Nature of Relief Sought

1. It is convenient now to turn to the substantive basis for the relief sought in the Amended Summons dealing with the decision of Barnes LCM in the Local Court.
2. As indicated earlier, Ms Lazarus seeks an exercise of the Court's power contained in s 69 of the Supreme Court Act. These are orders in the nature of prerogative relief. The order sought is in the nature of certiorari. Such relief is available as a matter of discretion where an inferior court, here the Local Court, has made a decision which is unlawful and should be set aside. It may or may not be necessary to also make an order in the nature of a writ of mandamus with respect to the rehearing of a matter should that arise.
3. The error, if there is one, needs to be determined by reference to the record in circumstances where the claim is that error is shown on the face of the record. Section 69(4) of the Supreme Court Act determines that the face of the record includes the reasons expressed by the Court or Tribunal for its ultimate determination.
4. Authorities clearly establish that the grant of relief by way of certiorari is a discretionary order of the Court. It is not a writ of right, and it is not issued as a matter of course.
5. The High Court said with respect to a writ of mandamus, which is also not a writ of right nor one issued as of course, that there are well recognised grounds upon which the Court may, in it is discretion, withhold the remedy. In R v Commonwealth Court of Conciliation and Arbitration: ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400, the High Court said this: "For example, the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The Court's discretion is judicial …

Amended Summons

1. The Amended Summons, and submissions in support, nominated 11 separate grounds. It seems to me that some of these grounds may be dealt with together and categorised in the following way: 1. the legality of the prosecution for an offence against s 87(1) of the Independent Commission Against Corruption Act, including whether the prosecutor was lawfully entitled to commence proceedings (Grounds 1 and 2); 2. erroneous conclusions in the judgment of Barnes LCM about the behaviour of the ICAC Commissioner and counsel assisting (Ground 3); 3. misquotation of the plaintiff's evidence, and failure to consider relevant evidence in the judgment of Barnes LCM, thus revealing bias (Grounds 4, 7 and 9); 4. actual bias and bad faith of Barnes LCM (Grounds 5, 6 and 8).
2. Grounds 10 and 11 do not add anything to the above groupings, and are not specifically relevant, as they are not relied upon.
3. It will be convenient to consider each of these grouped grounds separately. It is appropriate just to note some facts and matters about the Local Court proceedings.
4. Ms Lazarus was, for most of the proceedings, represented by counsel. At one stage counsel appeared with the Magistrate's leave amicus curiae to assist Ms Lazarus.

Proceedings in the Local Court

1. After some early directions hearings, the proceedings were fixed to commence on 21 October 2013. On that day at the outset of the proceedings, an application was made by counsel acting as amicus curiae on Ms Lazarus' behalf for a permanent stay. Barnes LCM considered that application and refused it. The hearing then proceeded. The prosecutor tendered three discs of the evidence of the plaintiff given before the ICAC. That was objected to. A voir dire was held. Counsel, who by that stage had announced his appearance for Ms Lazarus, argued the voir dire. On the following day, 22 October 2013, Barnes LCM ruled that the recordings were admissible, and that the objection raised on the voir dire should be overruled.
2. Thereafter, the prosecution tendered the evidence upon which they relied. It consisted of various discs of the proceedings before the ICAC, both in compulsory examination and in public enquiry, and some further documents. The prosecution then played each of the discs, drawing attention to various questions and answers and parts of that material as the discs were played in Court. After the discs were played, the prosecution closed its case. It did not call any oral evidence. At the close of the case for the prosecution there was an application by counsel for Ms Lazarus that the proceedings should be dismissed because she had no case to answer. Both counsel addressed in respect of this application. Barnes LCM took an adjournment to consider the applications and returned holding that there was a case to answer in relation to each charge.
3. At that point in time, Ms Lazarus commenced her case. She entered the witness box and gave evidence until the conclusion of that day. The proceedings were adjourned to 13 December 2013. On that day, Ms Lazarus resumed her evidence in chief.
4. At a point during the course of that evidence on that day, counsel for Ms Lazarus indicated to the Court that an adjournment was required because he needed to attend a pre-arranged medical appointment. The proceedings were then adjourned until 28 February 2014.
5. On that day, counsel recalled Ms Lazarus to give further evidence in chief. In the course of that evidence in chief, and with the consent of the prosecution, counsel for Ms Lazarus interposed two witnesses, who essentially gave character evidence. The first was Father Patrick Mullins, a parish priest who knew Ms Lazarus. The second was Ms Maureen Freeburn, who taught Ms Lazarus when she was at primary school and had continued to see the Lazarus family. Then, Ms Lazarus was recalled by her counsel and continued to give her evidence in chief on that day.
6. The proceedings resumed on 8 April 2014, with further evidence in chief. The prosecutor cross-examined Ms Lazarus on that day. She was then re‑examined. After her evidence, Mr Edwin Turner, Ms Lazarus' husband, gave evidence. It was essentially of a character nature. The final witness called in Ms Lazarus' case was Dr Gilandas, who was an expert clinical psychologist.
7. The parties were then asked to put in written submissions in sequence. On 23 May 2014, counsel for Ms Lazarus made some short additional oral submissions. The Magistrate reserved for a period of time, and then returned and delivered his decision, convicting Ms Lazarus of each of the offences. The proceedings were stood over until 14 July 2014 when the issue of sentence was dealt with.
8. It is now convenient to turn to each of the Grounds advanced in support of the Amended Summons.

Grounds 1 and 2

1. Ms Lazarus submits that s 87 of the ICAC Act does not form part of any criminal law or the common law of Australia and therefore cannot be used to prosecute any individual in any Australian court.
2. Her second submission is that the ICAC has no power to prosecute anyone and that in this case, the prosecution commenced by the filing of Court Attendance Notices which were undertaken by ICAC, and accordingly lacked proper legal foundation from its commencement.
3. By reason of both of these considerations, Ms Lazarus submits that the whole of the proceedings against her in the Local Court were invalid and unlawful, and accordingly, the convictions entered by Barnes LCM cannot stand.
4. With respect to the second submission, Ms Lazarus submitted that, as a matter of fact, the prosecution was mounted by the ICAC and that it was an organisation which did not have any powers to conduct a prosecution. She then submitted that it was not open to the DPP to take over the prosecution, because it had not been correctly commenced in the first place. She put it this way: "However, section 87 of the ICAC Act does not possess prosecutorial powers either in the Commission or any judicial tribunal. Herein lies an obvious constitutional error. The charges of perjury brought against the plaintiff under section 87 of the ICAC Act were instituted in jurisdictional error (error in law) and therefore the decision made by the decision-maker, Magistrate Barnes, was an error in law and ultra vires."
5. Ms Lazarus relied upon a decision of the Local Court, Grogin LCM in DPP (NSW) v McDonald, Ian; DPP (NSW) v Maitland, John [2015] NSWLC 7 as authority for the proposition that the ICAC has no power to institute any prosecution at all.
6. The submission that s 87(1) of the ICAC Act is not part of the criminal law, and therefore is not an available offence which can be prosecuted in a Court, must be rejected.
7. The submissions seemed to suggest that with respect to the subject matter of giving evidence which was false or misleading in a material particular, or making statements on oath which were false or misleading in a material particular, that the only available criminal offences were those set out in Division 4 of Part 7 of the Crimes Act. That Part deals with public justice offences, and Division 4 deals with the offence of perjury, false swearing, and like offences.
8. It was not suggested, nor could it be, that the ICAC Act or s 87 of that Act is beyond the legislative power of the NSW Parliament. They are clearly not.
9. The terms of s 87(1) of the ICAC Act are as follows: "87 False and Misleading Evidence (1) A person who, at a compulsory examination or public inquiry conducted by the Commission, gives evidence that is false or misleading in a material particular knowing it to be false or misleading, or not believing it to be true, is guilty of an indictable offence. Maximum penalty: 200 penalty units or imprisonment for 5 years, or both."
10. That section falls within Part 9 of the ICAC Act which is headed "Certain Offences". Set out in Part 9 are a variety of criminal offences dealing with, amongst things, conduct which would have the effect of interfering with the efficient discharge of the functions of ICAC, or its officers. A number of offences deal with conduct which may interrupt or adversely affect compulsory examinations or public inquiries. As well, there are offences dealing with conduct which may impact upon a witness given false testimony at a compulsory examination or public inquiry.
11. Part 10 of the Act deals with contempt of the Commission, and provides for the way or ways in which such contempt can occur, and may be punished. Contempt of the Commission is not said to constitute a criminal offence. It is not expressed to be a criminal offence.
12. The provisions of s 16 of the ICAC Act are also relevant to consider. That section is in the following terms: "116 Proceedings for Offences (1) Except where otherwise expressly provided by this Act, proceedings for an offence against this Act or the regulations shall be dealt with summarily before the Local Court. (2) If an offence against this Act is an indictable offence, the Local Court may nevertheless hear and determine the proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and prosecutor consent. (3) If, in accordance with subsection (2), the Local Court convicts a person of such an offence, the maximum penalty that the court may impose is: (a) in the case of an individual - the smaller of: (i) a fine of 50 penalty units or imprisonment for 2 years or both, (ii) the maximum penalty otherwise applicable for the offence when committed by an individual, or (b) in the case of a corporation … "
13. The balance of that section refers to particular limitation periods for some of the offences nominated in the Act, but not s 87.
14. It is clear that s 87 creates a criminal offence. The Parliament says so explicitly, and it provides a penalty of either a fine or a term of imprisonment, or both. These are clear indicia of the creation of a criminal offence.
15. The Courts have in many cases, without hesitation, treated an offence against s 87(1) as a criminal offence. There are least five decisions of the NSW Court of Criminal Appeal which all proceed upon the basis that conduct which is in breach of s 87(1) of the ICAC Act, is criminal, can be prosecuted in the Local Court or District Court and which, upon conviction, results in a term of imprisonment or other like penalty. See Retsos v R [2006] NSWCCA 85, McCormick v R [2007] NSWCCA 78, Tourni v R [2010] NSWCCA 317, Khoury v R [2011] NSWCCA 118, and Blackstock v R [2013] NSWCCA 172.
16. The first submission of Ms Lazarus must fail.
17. The second basis for an attack on the lawfulness of the Local Court proceedings was that the ICAC was the prosecutor, and that it had no power to conduct the prosecution.
18. The Court Attendances Notices ("CAN") by which the prosecution was commenced, list the following details of the prosecutor: Details of Prosecutor Prosecutor: Michael Kane Organisation: ICAC Address: Level 21/133 Castlereagh St, Sydney Telephone: (02) 8281 5999 Date of Issue of Court Attendance Notice: 1 March 2013

1. Thereafter the details of the offences are listed. There is one CAN for each offence. On each of those notices, the details of the prosecutor are the same.
2. It is to be observed that the prosecutor on each CAN is a named individual.
3. On 1 October 2013, the matter came before Barnes LCM for directions. The prosecutor was represented by a solicitor from the Office of the DPP. A subpoena had been issued directed to ICAC, which was returnable on the day. It sought the production of various documents. A Mr McIlwaine, a solicitor who was not from the Office of the DPP, appeared for the ICAC in answer to that subpoena.
4. Barnes LCM dealt with an issue with respect to charges preferred against Ms Sandra Lazarus and vacated the hearing date fixed in that matter.
5. He turned to deal with the matter of Ms Michelle Lazarus. He dealt with the question of whether ICAC should be obliged to produce the documents which were sought. It was resisting production. In the course of that debate, counsel for Ms Lazarus put two submissions to the Magistrate. He firstly said: "First we claim that the CAN itself is defective in that the ICAC has no power whatsoever under the ICAC Act to launch a prosecution against anyone … "
6. He later said: "The first issue is, is the ICAC a proper person to launch a prosecution or should it be the Director. We have no problems with the Director taking the matter over if the CAN was changed to the DPP."
7. At the conclusion of the submissions between the solicitor for the ICAC and counsel for Ms Lazarus with respect to the subpoena, and prior to the conclusion of that issue, the officer of the DPP appearing as the prosecutor said this to the Magistrate: "Your Honour, I think it's bold (sic) at this stage just to confirm that the Director of Public Prosecutions has assumed the carriage of the prosecution and that was done on the very first mention date that the Director appeared and so indicated to the Court that it had taken over conduct of the proceedings pursuant to s 9 and 10 of the Director of Public Prosecutions Act. … I do indicate that the Director has carriage of these matters as per the Act and nothing has changed from that date."
8. After an adjournment, the Magistrate gave a judgment with respect to the documents being sought on the subpoena.
9. There was then a discussion about orders which had been sought on a Notice of Motion and whether there was any need for the Local Court to make any such orders. Counsel for Ms Lazarus said this to Barnes LCM: "… Your Honour I would think for the purpose of making sure the record is correct, that the CAN should be amended to put the Director of Public Prosecutions but I don't press that. … " (Emphasis added)
10. Although the transcript of the directions hearing, which occurred on the first occasion when the charges against Ms Lazarus were before the Court, was not tendered in evidence in the Court, the remarks made which I have set out above, make it abundantly clear that on the first return date of the proceedings before the Court, the DPP took over the prosecution of these proceedings.
11. Section 9 of the Director of Public Prosecutions Act 1986 ("the DPP Act") permits the DPP to take over a prosecution or proceeding in respect of an offence (whether indictable or summary) which has been instituted by a person other than the director. Having taken over the matter, he may carry on the prosecution or the proceeding and prosecute any appeal. Where the Director takes over a matter, once he has complied with s 10(1) of the DPP Act, then he is deemed by s 9(4) of the Act to be the prosecutor in connection with the prosecution or proceeding concerned.
12. I am satisfied that the DPP took over the proceedings pursuant to s 9, and in accordance with the provisions set out in s 10, of the DPP Act on the first occasion when the matter was before the Court.
13. I should also add, it is quite obvious from the extracts of what counsel for Ms Lazarus informed the Court, that once he was satisfied that that was what happened, he thereafter had no objection to, or difficulty with, the proper constitution of the proceedings, insofar as there was a prosecutor lawfully entitled to continue with the proceedings.
14. But there are other reasons why this submission by Ms Lazarus cannot be upheld.
15. Section 173 of the Criminal Procedure Act 1986 ("the Criminal Procedure Act") provides that proceedings may be commenced by issuing a Court Attendance Notice, and filing the notices in the Local Court by: "… a public officer … authorised under s 14 of this Act … to commence proceedings for an offence against a person."
16. Section 14 of the Criminal Procedure Act is in the following terms: "A prosecution or proceeding in respect of any offence under an act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that act on a specified person or class of person."
17. Section 3 of the Criminal Procedure Act defines public officer as meaning a person, who is acting in an official capacity, who is an officer or employee of a body declared by the Regulations to be a public body for the purpose of the definition. Clause 101(1)(a) of the Criminal Procedure Regulation 2010 declares the Independent Commission Against Corruption to be a public body for the purposes of the definition to which I have just referred.
18. Accordingly, Mr Michael Kane, who was the prosecutor named on each of the CANs was, I am satisfied, a public officer for the purpose of s 173 of the Criminal Procedure Act, who was authorised under s 14 of that Act to commence proceedings. He was authorised by s 14 of that Act to commence proceedings because with respect to charges under s 87(1) of the ICAC Act, that Act did not expressly confer the right to institute any prosecution or proceedings in respect of that offence expressly on a specified person or class of persons.
19. The ICAC Act is entirely silent on that question. Accordingly, Mr Kane was authorised pursuant to both ss 14 and 173 of the Criminal Procedure Act in combination, to commence these proceedings.
20. That Mr Kane was acting in an official capacity in bringing the proceedings is obvious from the terms of the details recorded on the CANs. It is not suggested to the contrary by Ms Lazarus. There is no evidence to the contrary. The presumption that a public officer is presumed, in these circumstances, to be acting in an official capacity, has not been displaced: s 3(3) Criminal Procedure Act.
21. Ms Lazarus, as I have indicated above, sought to persuade the Court that the decision of Grogin LCM in DPP (NSW) v McDonald, Ian; DPP (NSW) v Mailtland, John [2015] NSWLC 7 was authority to the contrary of the analysis which I have just undertaken.
22. I am not satisfied that it is. A careful reading of the decision of Grogin LCM indicates that his Honour was dealing with two counts of the common law offence of misconduct in public office with respect to Mr McDonald, and two counts of the common law offence of being an accessory before the fact to misconduct in public office, with respect to Mr Maitland.
23. Grogin LCM's decision in that case was that the Criminal Procedure Act did not authorise the individual prosecutor, who was in that case an officer of the ICAC, to commence the particular proceedings, the subject of his Honour's decision because the offences were not "under an act". They were not under an Act of Parliament because they were offences against the common law. To the extent that the Crown argued that the prosecutor in that case was entitled as a private person to commence proceedings, his Honour determined that there had been no compliance with the provisions of s 49 of the Criminal Procedure Act. That section deals with indictable offences, and is not applicable here.
24. In those circumstances, it is clear that the decision of Grogin LCM is not dealing with the same statutory provisions as here apply, and does not determine any issue which I have to determine. It is distinguishable from this case. It follows that I am not obliged to determine whether the decision of Grogin LCM in DPP (NSW) v McDonald; DPP (NSW) v Maitland is correct or not. Even if it was correct, I would not be bound by it in any event.
25. I am well satisfied that Mr Kane, who was the prosecutor in his capacity as an officer of the ICAC, was a public officer who was entitled and authorised by the various provisions of the Criminal Procedure Act to commence the proceedings against Ms Lazarus. Her submission that the prosecution was unlawful cannot be accepted.
26. Accordingly, the finding by Barnes LCM that the commencement of the prosecution was procedurally unobjectionable was a correct one, and no error of law has been established.
27. I would not uphold these grounds.

Erroneous Conclusion about Behaviour (Ground 3)

1. Ms Lazarus submits with respect to this ground that Barnes LCM erred in respect of two findings which he made. The first of those is to be found at page 5 of the Magistrate's decision. His Honour was dealing with a submission made to him that at various times during the course of the ICAC hearing, she was treated inappropriately by counsel assisting and the Commissioner. The only relevance of these submissions was that they went to the question of whether the prosecution could prove that the evidence which was claimed to be false or misleading, was intentionally so.
2. The Magistrate's judgment contains this statement: "I have had careful regard to the transcript and the recorded sound and vision of those parts of the ICAC proceedings where this is said to have occurred. It is the case that on occasions, counsel assisting put things to the defendant that were not accurate - he was clearly mistaken. The suggestion that he deliberately lied is rejected. The Commissioner too, on one occasion, appears to have become confused about the chronology of events and challenges the defendant's claim not to remember a relevant detail while inaccurately suggesting it occurred only a few months before when in fact it had occurred some two years earlier."
3. The conclusion that such errors as could be detected in the questions and statements by either counsel assisting or the Commissioner were mistaken and not deliberate, is attacked by the submissions in support of this ground. Ms Lazarus sought to persuade Barnes LCM that these questions were deliberately false. She submits that in the absence of the Commissioner being called to give evidence, or the counsel assisting being called to give evidence, Magistrate Barnes LCM was in error in coming to the conclusions which he did.
4. Ms Lazarus reasons from these erroneous conclusions that the Magistrate was guilty of actual bias because, so it is submitted, he was committed to a conclusion which he had already formed.
5. The question of whether or not the statements made by counsel assisting or the Commissioner in the course of the ICAC Inquiry were mistaken, or deliberately untrue, was a question of fact for Barnes LCM to determine, assuming it was relevant. It may be doubted whether it was relevant for the Magistrate to determine whether the statements were deliberately or mistakenly incorrect. That they were incorrect may have been relevant to his Honour's determination of the elements of the offences with which Ms Lazarus was charged.
6. An error of fact of this kind is insufficient to be constituted as an error of law, unless it was not open to Barnes LCM to make these findings. In my view, Ms Lazarus has not established that it was not open to his Honour to make these findings. As his Honour notes, he paid careful attention to the transcript and the recorded sound and vision of those relevant parts of the ICAC Inquiry. The Magistrate was entitled to form an opinion based on that material as to whether he thought the misstatements were mistakes or deliberate. It was certainly open to him so to do.
7. If these statements demonstrated actual bias, then there would be a jurisdictional error of a kind which would engage this Court's discretion. However, even if Ms Lazarus' submission that the Magistrate made an error were accepted, it does not follow automatically that such an error indicates actual bias. Actual bias, here, would suggest that Barnes LCM had pre‑judged the issue. That is to say, he was so committed to a conclusion that he was incapable of altering it, regardless of evidence or arguments which may be presented to him: see Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72].
8. In order to succeed, Ms Lazarus must show that the bias is real, and that there is a high probability that bias which was inconsistent with the performance of the Magistrate's duties was demonstrated: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at [11].
9. The submissions of Ms Lazarus do not demonstrate any rational basis to infer, as she submits this court ought, that the conclusion of Barnes LCM manifested actual bias. As the majority decision in Michael Wilson explained, in dealing with a similar question at [67]: "… an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation, the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates pre-judgment."
10. It is clear from her submissions that Ms Lazarus was not making a submission of apprehension of bias with respect to this ground. However, it is appropriate to note that if that was the basis for her submission, then the remarks of the Court of Criminal Appeal in Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366 at 95 would be applicable, namely: "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 principal, is not enough to establish a reasonable apprehension of bias."
11. I note that at no time did counsel appearing for Ms Lazarus raise with Barnes LCM any suggestion that he was in any way actually biased, or that a hypothetical reasonable observer would conclude that there was a reasonable apprehension of bias, in the way in which he went about the conduct of the hearing of the proceedings.
12. There mere fact that the Magistrate in his judgment has reached a conclusion adverse to Ms Lazarus does not, in this case, support any basis for any assertion of bias as advanced by Ground 3, whether that be actual or apprehended.

Misquotation of Plaintiff's Evidence (Grounds 4 and 9)

1. The plaintiff draws attention to a finding on page 6 of Barnes LCM's judgment in which he described her evidence in a particular way.
2. Before coming to the "misquotation", it is appropriate to note that in this part of his judgment, the Magistrate was dealing with a general issue raised by Ms Lazarus' counsel in a submission which claimed that it was unfair to hold Ms Lazarus to account at all for the evidence she gave in the ICAC proceedings because of the way in which the Commissioner and counsel assisting had conducted those proceedings.
3. Barnes LCM noted that it was open to Ms Lazarus, in reliance upon authority, to submit that the manner in which a witness was treated in court proceedings could impact, negatively, on her capacity to give her evidence honestly.
4. His Honour then moved to consider whether he was persuaded that this was so. In so doing, he said in considering Ms Lazarus' claim that she was bullied, harangued, lied to and intimidated, that counsel assisting and the Commissioner had spoken sharply to Ms Lazarus and had rebuked for her failure to answer questions directly.
5. As his Honour said, it was apparent, I infer from his watching of the disc of the evidence before the ICAC, that on occasion both counsel assisting and the Commissioner became frustrated when they suspected that Ms Lazarus was obfuscating in her answers. The Magistrate was prepared to accept that the conduct of counsel assisting and the Commissioner "… could be construed as badgering", but the Magistrate went on to hold that such conduct was not nearly as bad as Ms Lazarus contended. This was an evaluation which was open to the Magistrate.
6. Barnes LCM then said: "A claim in these proceedings that, as a result of how she was treated in the ICAC hearings, she felt 'physically raped and violated' is deeply offensive to those who have actually suffered such mistreatment and gives insight to her inflated sense of self-importance."
7. Barnes LCM went on to acknowledge that the evidence before him established that Ms Lazarus would have found the ICAC proceedings very stressful and confronting and that she was in a difficult position because she was being asked to give evidence that might incriminate her sister of serious charges, but the fact that she was in such a difficult position provided no excuse for giving false evidence.
8. Barnes LCM concluded that the Commissioner's conduct, and the conduct of counsel assisting, whilst it may have been gruff on a small number of occasions, was not exceptional. He also analysed the questions and noted that Ms Lazarus, whom he found to be articulate, intelligent and well educated, was being asked questions which were straight forward and which did not, in the main, readily admit to confusion.
9. His Honour concluded as follows: "However, I reject the submission that it would be unfair to allow the defendant's answers to be used against her in these proceedings. I can find no evidence to support the submission that she was overborne or confused when giving the answers, the subject of the charges that indicate the words used by her were unintended."
10. I accept that, as Ms Lazarus submits, she did not give evidence before Barnes LCM that she felt "physically raped and violated". Her evidence before Barnes LCM with respect to the conduct of counsel assisting and the Commissioner was quite extensive. She regularly asserted that she was being bullied, intimidated, badgered and abused. She described her treatment as "inhumane". Whilst answering a question as to a particular answer which she had given to the ICAC, she said: "… you've got to understand the way that I was feeling. I had been exposed to so much abuse and intimidation. I know I'm repeating myself, but this is exactly the way that I felt because of what they were doing to me. They'd interrogated me on a number of - the entire time as far as I was concerned. They had lied to me purposefully, knowing the truth of the situation. … They had berated me and they made me feel like dirt. They had twisted my answers and manipulated meanings. They had essentially raped my psyche again and again and again. They had continued to violate me the entire time I was there at the ICAC inquiry in that witness box. I had to witness my sisters' psyches being raped again and again. …"
11. The quote in Barnes LCM's judgment, that Ms Lazarus had said she was "physically" raped was clearly an error because she had said that her "psyche" had been raped.
12. A misquote of evidence does not of itself, and without more, establish any error law or failure of due process. In particular, it does not support the submission of Ms Lazarus that by failing to base his judgment on the true evidence before him, Barnes LCM demonstrated "… bad faith and actual bias". At this part of his judgment, Barnes LCM was considering whether it was unfair to allow the evidence of what Ms Lazarus said at the ICAC hearing to be used.
13. Even if the evidence of Ms Lazarus at the ICAC hearing occurred after she was the subject of badgering, or else was conduct which could be construed as badgering, the Magistrate's conclusion that it would not be unfair to her to use the evidence is not erroneous. His rejection of the submission that it was unfair to her was based on a much narrower proposition than that for which Ms Lazarus contends in this Court. His conclusion was based upon the proposition that when she was giving evidence at the ICAC hearing, which was the subject of the seven charges before him, the Magistrate was unpersuaded that there was any badgering, bullying or intimidating occurring. This was a conclusion that was reasonably open to him. He watched the whole of the relevant evidence of the ICAC hearing. He could see and hear the tone of voice used. His conclusion was an available one. It does not disclose any jurisdictional error.
14. I do not accept that any actual bias on the part of Barnes LCM has been established as is asserted in Ms Lazarus' submissions. This submission by Ms Lazarus is an example of what is discussed earlier in [101], and in the decisions of the High Court of Australia in Michael Wilson. The allegation of actual bias is an assertion based upon the fact that Barnes LCM did not accept the submissions of Ms Lazarus.
15. In addition to the evidence to which I have referred, in respect of Ground 9, Ms Lazarus relied upon a further misquote of the evidence which she submitted occurred at page 11 of the Magistrate's judgment.
16. At that time, the Magistrate was considering the fourth charge against Ms Lazarus, a charge concerned with a statement which she made whilst giving evidence about whether her sister, Jessica, was a paid employee of Wish Consulting Pty Ltd, a company with which she, Ms Michelle Lazarus, was associated. The evidence in support of this charge, which was relied upon by the prosecution, was an admission made to the Commissioner by Ms Lazarus in the course of her evidence, that she had given a false answer in an earlier part of her evidence. Barnes LCM, in dealing with the matter, said this: "I accept the prosecution's submission and reject the defendant's claim to her being mistaken in her answers on 21 February, which she now acknowledges were false. I am satisfied that the defendant intentionally gave false answers to those questions."
17. It is submitted that before Barnes LCM, Ms Lazarus did not acknowledge that the answers she gave were false. Ms Lazarus submits that that is the only basis upon which the expression "now acknowledges" could be read.
18. Accepting for present purposes that this is what those words should be read to mean, and accepting for present purposes that Barnes LCM mistakenly thought that she had acknowledged that those words were false before him when in truth she had not, I am not satisfied that this would make any difference to the outcome of his Honour's decision. It is clear from the material to which I have drawn attention in [120] above, that Barnes LCM accepted the prosecutions submissions, part of which he specifically referred to. The balance of the submission made by the prosecution which was encompassed within Barnes LCM's holding that he accepted the prosecutions submissions, was this: "33. The prosecution submits that this post fact rationalization ought be rejected. The intent of the defendant is clear on her evidence of 25 February 2011, that [she] knew that she was providing a false answer earlier."
19. That is the submission which Barnes LCM accepted, namely, that at the ICAC hearing, Ms Lazarus had acknowledged that the evidence which she had given was false.
20. Shortly put, on 21 February 2011, Ms Lazarus gave evidence to the ICAC about whether a document contained true or false information. Four days later in the ICAC, whilst still bound to tell the truth, she accepted that the evidence she gave to the Commissioner four days earlier was false.
21. Ms Lazarus sought to explain that evidence in front of Barnes LCM, asserting that she did not intend it to be false. His Honour, as he was entitled to do, rejected that as a post-fact rationalisation.
22. Whilst I accept that it was erroneous for Barnes LCM to say that Ms Lazarus "now acknowledges" that the evidence was false, one can only read that statement in the context of the matter with which Barnes LCM was dealing as being a reference to the fact that four days after giving the evidence to the ICAC, she admitted that her evidence was false.
23. Of itself, it is not an error of a kind sufficient to give rise to judicial review. Nor is it a basis for any conclusion that the judgment of Barnes LCM exhibits actual bias against Ms Lazarus.
24. I would not uphold this submission.

Actual Bias and Bad Faith (Grounds 5, 6 and 8)

1. Ms Lazarus submits that Barnes LCM, impermissibly and in a revelation of his "extreme bias and bad faith", came to a conclusion contrary to the expert evidence about her psychological state. She submits that the conclusion of the Magistrate was contrary to the expression of expert opinion by Dr Gilandas in a report dated 16 March 2013.
2. As noted earlier, Dr Gilandas gave evidence on 8 April 2014.
3. It is apparent from the transcript of 28 February 2014, the previous hearing day, on which Dr Gilandas had been present in court, that the timetable did not permit him to be called to give oral evidence. At that time, counsel appearing for Ms Lazarus indicated on the transcript that he intended to call Dr Gilandas and that he had "handed my friend a report". When asked by Barnes LCM whether he wished to call Dr Gilandas that day, counsel for Ms Lazarus said that he would not call him that day "… because my friend hasn't had a chance to look at the report".
4. When Dr Gilandas was called on 8 April 2014, counsel for Ms Lazarus introduced his evidence by informing the Magistrate that: "Dr Gilandas' evidence is only in relation to medical problems with women who are pregnant, it doesn't go outside that parameter."
5. He then led some evidence from Dr Gilandas which occupied a little under two pages of transcript. Cross-examination then took place for about the same length of time. There was no re-examination. It is apparent from the transcript that the report of Dr Gilandas, which had been handed over to the prosecutor by counsel for Ms Lazarus on 28 February 2014, was not tendered in evidence, or put before the Magistrate. The record of exhibits do not record any report of Dr Gilandas as being tendered.
6. I am satisfied it was not in evidence. There is no basis for it to be put in evidence before this Court on this application, or for this Court to have regard to its contents.
7. To the extent that these grounds criticise the Magistrate for failing to take notice of, and make findings in accordance with the expression of opinion in the expert report of Dr Gilandas, there is no basis to sustain them.
8. To the extent that the Magistrate had evidence from Dr Gilandas about, speaking generally, the effect of stress on pregnant women, his Honour took that into account and gave it weight.
9. His Honour's conclusions with respect to the mind, and motivation, of the plaintiff here, Ms Lazarus, were appropriately open to him.
10. No error has been demonstrated. There is no basis for any finding that Barnes LCM, in these respects, was biased. I would not uphold this ground.

Failure to Consider Relevant Evidence (Ground 7)

1. Ground 7 is expressed in the following way: "Mr Michael Barnes failed to take into account relevant information. Mr Michael Barnes disregarded much of the plaintiff's evidence that was exculpatory in her case."
2. The submissions made by Ms Lazarus do not expand in any sensible way on this ground. The Court was not taken, in those submissions, to any particular parts of the evidence which was exculpatory of Ms Lazarus. The Court was not taken to any evidence which was said to be relevant in a way which could not be left out of consideration.
3. The submissions under Grounds 7 and 8 seemed to deal with the question of whether Mr Kane, the officer of the ICAC, was lawfully entitled to commence the proceedings against Ms Lazarus. I have already indicated my conclusion that he was lawfully entitled. There is no need to deal with these submissions further, as they have been taken into account in considering the submissions that I have earlier dealt with.
4. No error has been demonstrated with respect to this Ground.

Summary

1. I have concluded in respect of each of the Grounds, that I have not been persuaded that any basis for setting aside the decision of Barnes LCM has been demonstrated. There is thus no basis for making an order in the nature of a writ of certiorari.

Discretionary Considerations

1. However, as the authorities to which I have earlier referred demonstrate, even if I was persuaded that there was a ground, or there were grounds, sufficient to enliven the discretion of the Court to consider whether it should grant relief by way of an order in the nature of a writ of certiorari, I would not have done so.
2. As I have earlier indicated, there exists a full right of appeal from a decision of the Local Court to the District Court of NSW. That right of appeal has been engaged in this case by Ms Lazarus. The appeal is fixed for a hearing in November 2015. The nature of that appeal is such that the matter will be determined by a District Court Judge having regard to its merits, in accordance with the procedure set down by the Crimes (Appeal and Review) Act.
3. That appeal is an equally effective and convenient remedy. I agree with what Kirby P said in Boral Gas (NSW) Pty Ltd v McGill [1993] 32 NSWLR 501 at 508, where he said: "This appeal is an equally effective and convenient remedy. In fact, it is more convenient. It is the appropriate way in which any resolution of the issues about whether there was evidence to support the findings, what weight should be given to the evidence, whether the evidence of any one person or another was reliable, ought all be addressed."
4. I may add that particularly is this so in circumstances where much depends upon the detail of the evidence given by Ms Lazarus to the ICAC, and the detail of her evidence which she gave in the Local Court about her state of mind at the time. These are matters entirely suitable for, and best heard by, a Judge or Magistrate, who has the benefit of seeing and hearing all of that evidence. A court sitting to undertake a judicial review does not have that benefit.
5. Even if I was persuaded, and as I have indicated I am not, that there was any error, I would not exercise my discretion to make any orders, because of the existence of the right to appeal to the District Court which has been exercised in this case.
6. Simply put, this criminal process which was lawfully engaged, should continue through the ordinary criminal process involving an appeal on all grounds to the District Court, and thereafter in accordance with legislation.

Extension of Time

1. The plaintiff needs an extension of time to bring these proceedings. The DPP opposed the extension of time. In all of the circumstances and having regard, particularly, to the fact that I have considered in a substantive way, all of the grounds of the Summons, it is appropriate that I grant an extension of time, but dismiss the proceedings.

Costs

1. There is no reason why costs should not follow the event. The plaintiff having failed on all issues, should pay the costs of the proceedings of the defendant.

Orders

1. I make the following orders: 1. Time within which to commence these proceedings is extended up to and including 23 February 2015. 2. Amended Summons filed 23 March 2015 is dismissed. 3. Plaintiff to pay the costs of the defendants.

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: 21 August 2015