LE -v- MAGISTRATE BARBARA LANE [2014] WASC 494 (18 December 2014)

2 Each of the charges alleged that the particular respondent did, between 14 September 2011 and 6 January 2012, at lot 37 HN 31 Safari Place, Carabooda, within the district of the City of Wanneroo, permit the use as a dwelling of a building not originally erected as a dwelling house without having first obtained the consent of the local government in the district in which the building was situated.

3 The essence of the charges, as subsequently emerged from evidence at the uncompleted trial, is that each of the applicants was involved, in various ways, either through ownership, management or other participation, in the conduct of vegetable or market gardens of some size located in Wanneroo on which stood a number of sheds, outbuildings and similar structures. The case for the prosecution was that each of the applicants, in the various ways alleged in the particular charges, was knowingly involved in a course of conduct by which itinerant or seasonal labourers or fruit pickers employed for work in the market garden or vegetable gardens were housed in one or more of the sheds, outbuildings or other structures, none of which was a dwelling house, without the consent of the City of Wanneroo, being the local municipality. The position of each of the defendants to this charge, as appears again from the uncompleted trial, is that none was in a relevant sense knowingly involved in the housing of the workers in the sheds, outbuildings or other structures at the market gardens or vegetable gardens and that these seasonal workers were engaged by labour hire companies for whom none of the applicants had responsibility. This is only a very brief explanation of the position taken by the applicants when defending these proceedings but it is enough to outline, in broad terms, the basis upon which each claimed that he, she or it was not guilty of any the charges being prosecuted.

4 The trial at the Joondalup Magistrates Court had been listed for two days in August of 2013, but at the end of those two days the prosecution case had not been completed. Consequently, the trial was adjourned to the Perth Magistrates Court to resume on 19 and 20 December 2013. Shortly beforehand it became apparent that a principal witness for the prosecution was unable to complete his evidence because of illness and hospitalisation. As a result, the trial did not continue on 19 December 2013 but was adjourned for further hearing on 25 and 26 June 2014, again at the Perth Magistrates Court.

5 On the resumption of the trial on 25 June 2014 the remaining evidence for the prosecution was adduced and the prosecution case closed. Thereupon the first applicant, Mr Michael Le, began giving evidence in his own defence and in defence of the charges against his co-defendants. In the course of this evidence Mr Michael Le gave evidence including testimony to the following effect:

(a) The activities on the land the subject of the charges consisted of the growing of tomatoes which was carried out by TLF Nominees Pty Ltd (TLF), a company of which Canh and he were directors, together with Dan Van Le and Thi Nga Hunynh.

(b) TLF carries out the growing of tomatoes by way of two arrangements.

(c) First, it enters into 'share-farming' arrangements in which TLF provides the land and the capital costs and the share-farmer provides the labour for the growing of tomatoes. The income from the sale of the resulting crop of tomatoes is then split 50/50 between TLF and the share-farmer.

(d) Secondly, it grows tomatoes itself, for which it contracts with labour hire companies to provide labour for the carrying out of the necessary tasks.

(e) There is at least one shed on each of the lots the subject of the charges in which kitchen facilities, beds, laundry facilities and bathroom facilities are provided for the use of workers, both the share-farmers and the workers engaged through the labour hire companies.

(f) However, the workers engaged by the labour hire companies use the sheds provided by TLF more than do the share-farmers. That is partly because permanent houses are provided for share-farmers to use.

(g) The workers engaged through the labour hire companies are engaged for specific tasks associated with growing tomatoes such as planting, pruning, tying and picking.

(h) Each of those tasks should only take a day or two (or sometimes three) to carry out on each of the lots which are the subject of the charges.

(i) The workers are not allowed to use a shed on a lot except if they are working on that lot.

(j) The result is that no individual worker should use a particular shed more than two or maybe three days at a time. In particular, sharefarmers should not use the sheds for more than that time because they have priority in the use of the permanent houses as places to sleep, eat and wash and workers provided by a labour hire company should not be on a lot for more than two or three days at a time.

6 Further, the first applicant, Mr Le, gave evidence to the effect that at no time did he tell officers of the City of Wanneroo that he knew or believed that the use of the sheds by the workers to eat, wash and sleep was unlawful. That evidence contradicted the previous evidence of officers of the City of Wanneroo who had been called as prosecution witnesses at the earlier part of the trial, which was to the effect that Michael Le did say to them words to the effect that he knew that the use of the sheds by workers to eat, sleep and wash was unlawful.

7 The evidence-in-chief of Mr Michael Le was completed prior to the luncheon adjournment on 25 June 2014 and counsel for the City of Wanneroo then began to cross-examine him. In the course of that crossexamination Mr Le was asked to name the labour hire companies through which TLF engaged its workers. In answering he named two companies as having been engaged in the labour hire, 'KTNA' and 'Agroland'. After the luncheon adjournment the first applicant was again asked questions by the cross-examiner about the labour hire companies and he proceeded to answer along the same lines but in a little more detail. In the course of this evidence (pages 55 and 56 of the transcript of 25 June 2014) the following questions and answers were recorded:

HER HONOUR: I can perhaps direct you to January 2012 because you planted 579,600 Roma gourmet, grape gourmet and cherry tomatoes?---Yes.

It might be easier if you could remember how many workers you would need to do that to harvest and do everything else?---We don't - sorry. The company does not request contract labour hire on a fixed amount of workers. We let them in this situation just take September. We advise - the company advised the contract labour hire. There is 117,000 gourmet tomatoes on that block there. We need that picked - the company needs that picked. The contract labour hire, they will estimate themselves how many works they require to pick that plantation.

So which company, hire company, would do this?---Experienced ones who do this every year, every season.

What are their names?---I gave one name previously, KTNA.

Yes, you did?---Another company named Agriland. These are specialised contracting labour hire companies in farming.

PROSECUTOR: If we can - let's stay with January with 730,000 plants. What I'm interested in is - - -

HER HONOUR: Are they Western Australian companies? Because I Googled them and I couldn't find them. I thought that would be useful.

TWEEDIE, MR: [Senior Counsel for some of the defendants] That is certainly not useful. That is highly inappropriate.

HER HONOUR: It's not.

TWEEDIE, MR: Well, do I understand that what your Honour has done is to undertake your own investigations with a view to ascertaining evidence - - -

HER HONOUR: No, Mr Tweedie, I've not done that.

TWEEDIE, MR: You just said, with respect, your Honour, that you had just - - -

HER HONOUR: I will just adjourn while you think about what you're doing now, Mr Tweedie. Thank you.

8 There was then a short adjournment, followed by submissions by Mr Tweedie on behalf of his clients and joined in by Mr Jackson, counsel for the other defendants, that her Honour should disqualify herself from further hearing of the case. Her Honour offered counsel for the prosecution an opportunity to be heard on the point but counsel for the prosecution indicated that he did not wish to be heard on it. The trial was then adjourned until the following day to allow more detailed submissions to be made in relation to the applications that her Honour should disqualify herself.

9 These submissions were then made in more detail on 26 June 2014. At the commencement of the hearing that day counsel for the prosecution was asked if he wished to raise a matter, but he declined, indicating that he was still in the course of seeking instructions but expected that those instructions would be received within a short time, at which point he may wish to be heard. Her Honour acceded to that proposal.

10 Then Mr Tweedie, as counsel for some of the defendants, followed by Mr Jackson, as counsel for the others, made submissions that what had occurred gave rise to a reasonable fair-minded observer possibly forming the view that the learned magistrate may not decide the case only on the basis of evidence received at the trial and may not be prepared to be restricted to that evidence. Extensive reference to authorities and the learned writings on the subject of apparent bias or reasonable perception of bias was canvassed in the course of those submissions.

11 A point was reached where counsel for the prosecution asked for a short adjournment in order to take the instructions for which he had been waiting from the City of Wanneroo. That adjournment was granted and upon resumption (ts 79) counsel for the prosecution made the following statement to the court:

PROSECUTOR: Thank you for the opportunity of talking with my people, your Honour. I can advise the court, your Honour, that the City's position in relation to my learned friend's application is that it is not opposed, and that is their position, your Honour.

12 Her Honour then proceeded to give oral reasons (ts 79 - 87) in which her Honour reviewed many of the authorities cited by counsel for the present applicants and other authorities, leading to her Honour's ultimate conclusion (ts 88 - 89) as follows:

Now, the question that I put to him - 'Are they West Australian companies, because I Googled them'. I said nothing further. Nothing. That's when the objection was heard. Now, would therefore there be an irregularity that is so significant as to cause a mistrial? And the answer to that is no. Secondly, would there - this therefore lead to a perception that the proceedings are being conducted unfairly, that then there would be a reasonable apprehension of bias to the question, 'Are they WA companies because I Googled them'. And the answer to that is also no.

Now, in relation to the proceedings, no further questions were asked. There was no implication that Mr Le's evidence was not being accepted. There was simply a statement made for him to be able to respond whether they were Western Australian companies or not and to provide any further information to the court. Now, the court can ask questions and irregularities must lead to a perception that the proceedings are not being conducted fairly and therefore, there is a reasonable apprehension of bias. It's not a subjective test, it's an objective test. And I find that the submissions made by both Mr Tweedie and Mr Jackson are without merit and therefore the application will - for me to stand aside is refused and the trial will proceed.

13 At that point, Mr Tweedie sought a further adjournment in order to act on instructions to apply to the Supreme Court to seek a review of her Honour's decision. Her Honour acceded to that application and adjourned the matter for mention until 26 September 2014.

14 These review proceedings were commenced by an originating motion which issued on 14 July 2014. At that stage the proceedings were brought by the four presently named applicants but with no respondents. At the directions hearing on 12 August 2014 Corboy J ordered that the Magistrate, her Honour Barbara Lane, be joined as first respondent and that the City of Wanneroo be joined as second respondent, and made further orders and directions. At a second directions hearing on 2 September 2014, after the first and second respondents had been joined and served, Corboy J made the following orders:

1. A review order be made that the respondent satisfy the court at a hearing on a date to be fixed that the first respondent should not be prohibited from sitting as presiding magistrate at the trial of charges 6832 of 2012, 6833 of 2012, 6834 of 2012, 6851 of 2012, 6852 of 2012 and 6853 of 2012.

15 His Honour ordered that the review order should be heard by a judge at a date to be fixed and that a review order should be served upon each of the respondents. Other programming orders and directions were also made, including the following:

1. The review order operate as a stay of proceedings in question until such time as the Court orders.

16 Since then, a notice of intention to abide by the decision of the court has been filed by the State Solicitor on behalf of the first respondent, who by that notice informed the court that she did not intend to appear by counsel at the hearing of the matter. Similarly, by notice dated 26 August 2014, by its solicitors, the City of Wanneroo informed the court that it did not intend to be heard by counsel and will abide by the decision of the court at the hearing of the review order.

17 The review order came on for hearing before me on 14 November 2014, when counsel appeared for the applicants and made submissions, including the written submissions which had previously been filed. There was no appearance for either of the respondents and at the completion of that hearing I reserved my decision.

18 Section 36 of the Magistrates Court Act 2004 (WA) provides:

(1) If a person is or would be aggrieved by one or more of the following -

(a) the failure of a Court officer to do any act or make any order or direction -

(i) on the ground that the officer is under a duty to do the act or make the order or direction; or

(ii) on any ground that might have justified an order of mandamus;

(b) an act, order or direction that a Court officer proposes to do or make -

(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or

(ii) on any ground that might have justified an order of prohibition;

(c) an act, order or direction done or made by a Court officer -

(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

(ii) on any ground that might have justified an order of certiorari,

the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.

...

(3) On an application made under subsection (1) ... the Supreme Court may make any review order that is just, whether it has been applied for or not.

(4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

(c) make any necessary consequential orders.

19 The power of this court to make a review order or grant relief as contemplated by the statutory provision was examined in Rayney v AW [2009] WASCA 205 where McLure P at [34] explained that the power to make an order under s 36(4) arises only if the challenged act or omission of the court officer satisfies one or more of the statutory criteria as specified in s 36(1). In the present case the relief being sought by the applicants was essentially relief in the nature of the old writ of prohibition, the effect of which, if granted, would be to prevent the learned magistrate was continuing with the trial of these prosecutions. If relief were granted, then ancillary orders would need to be made directing that the prosecutions proceed afresh with the hearing before the Magistrates Court differently comprised.

20 In the originating motion for the audit's review, the grounds relied upon by the applicants are set out extensively including compendious particulars. They are:

1.1 The grounds on which the order is sought are as follows:

(a) Her Honour undertook enquiries independent of the evidence and the arguments properly before her.

PARTICULARS

1. Her Honour 'googled' or otherwise carried out an internet search of the names of one or both of the labour hire companies that the first applicant had named as companies by which workers were engaged to work on the land the subject of the Charges (the independent enquiries).

(b) Having carried out the independent enquiries, Her Honour put a question to the First Applicant during his cross examination to the effect that the independent enquiries had been unable to identify the existence of the labour hire companies. The question, by direct implication, challenged either the veracity or the reliability (or both) of the First Applicant's evidence in a material issue in the trial.

(c) As a consequence of the above, a fair minded, well informed lay observer might reasonably have apprehended that Her Honour may not bring an impartial and unprejudiced mind to the task of determining the Charges.

PARTICULARS

1. A fair minded, well informed lay observer might have reasonably apprehended that Her Honour might not have understood, or alternatively, might not accept, the principle that she, as a person bound to act judicially, must act only upon the evidence and arguments properly put before her and not on any information which she otherwise receives or possesses.
2. Further and in the alternative, by carrying out the independent enquiries and by asking the subsequent question, Her Honour 'crossed the line' and actively intervened in the proceedings, taking the part of a participant in the trial, rather than an independent, impartial umpire.

1. Further and in the alternative, Her Honour's independent enquiries and subsequent question might have led a fair minded, well informed lay observer to apprehend that Her Honour:
   1. may be disinclined to accept the evidence of the First Applicant as to a material piece of evidence; and/or
   2. may be disinclined to find favourably as to the First Applicant's credibility and/or reliability.

1. The credibility and/or reliability of the evidence of the First Applicant was a material matter in issue in the trial in that, amongst other things, the First Applicant had given evidence which directly contradicted evidence given by prosecution witnesses on material issues.

(d) Her Honour refused an application by the Applicants to recuse herself, thereby denying the Applicants procedural fairness.

PARTICULARS

1. Her Honour denied the Applicants the right to a hearing presided over by judicial officer untainted by an apprehension of bias.

(e) Further, and in the alternative, in carrying out the independent enquiries, Her Honour denied the Applicants procedural fairness and a fair trial.

PARTICULARS

1. Her Honour conducted the independent enquiries in the absence of the parties, and in circumstances where the full extent, nature and information revealed by those enquiries was not, and could not, be known by the Applicants.
2. Any information obtained by Her Honour in the course of conducting the independent enquiries was unable to be tested properly or at all by the Applicants because of the matters referred to at paragraph A above.

(f) Her Honour's failure to recuse herself is, in the circumstances, a failure to do an act or make an order or direction which might have justified an order of mandamus.

21 The notice of motion goes on to rely upon cognate grounds for seeking the relief claimed including the contention that for the learned magistrate to continue the trial would constitute an abuse of process and/or would constitute a ground that might have justified an order of prohibition.

22 It is important to record that the learned magistrate, immediately upon the point being taken by senior counsel for the applicants, disclaimed any impropriety and certainly any prejudgment explaining that her conduct, at the most, was an irregularity which did not affect the course of proceedings or justify any reasonable perception of apparent prejudgment or lack of impartiality.

23 Against this it must be observed that before posing the question the learned magistrate had not disclosed to the parties that she had made any, or if so what, enquiries into the facts or circumstances which are the subject of the prosecution or the identity of the labour hire companies to whom Mr Le had referred. The internet enquiry by 'googling' which had apparently been conducted by her Honour during the luncheon adjournment was not more extensively explained and it was not apparent from the explanation then given by her Honour or at any subsequent course of proceedings, whether there had been other or if so what internet enquiries or if so, in what way they may have related to the subject matter of the trial.

24 Associated with this feature of the case, is the further aspect that the internet enquiry made and the question posed by the learned magistrate to the witness was clearly directed to the accuracy or otherwise of answers which the witness had previously given in earlier crossexamination. Because of this, the question was capable of implying, and in my respectful view did imply, a challenge to the credibility and/or reliability of the witness based on the extraneous enquiry which the learned magistrate had made rather than from any aspect of the evidence which, to that stage, was before the court.

25 It is evident from the reasons subsequently given by her Honour that the learned magistrate did not intend or accept that either the internet enquiries which she had made or the question which she had put to the witness did imply any challenge to the credibility or reliability of the witness and her Honour's explanations in this regard should be accepted. However, despite her Honour's own view of the circumstances I do consider that a reasonable independent fairminded observer might readily assume from this sequence of events that her Honour had made independent enquiries to check the accuracy of earlier evidence given by the witness, that those enquiries provided grounds for doubting the credibility or reliability of the witness and that these doubts were being entertained by the learned magistrate in herself challenging directly by this question the veracity of the witness.

26 It is also significant to note that the witness remained under crossexamination and that, at least on this point a direct challenge to the truthfulness or accuracy of Mr Le's evidence had not been put by counsel for the prosecution. It is, of course, possible that counsel for the prosecution may have been leading up to such a challenge but, if a challenge to the credit or reliability of the witness were to be made, it was for the prosecuting and crossexamining counsel to make the challenge. If the witness's testimony in relation to the identity of the labour hire companies had not been challenged by the crossexaminer then, despite any doubts which the learned magistrate might have had about that aspect of the witness's testimony, then there would be no grounds for the learned magistrate to call it into question or reject it unless, for other reasons, the overall credit and reliability of the witness generally was attacked by the prosecution. Consequently, by putting this question, quite apart from conducting the extra judicial internet enquiries, the learned magistrate no doubt unwittingly, had put herself in the position where an independent fairminded observer might reasonably have concluded that she was entering into the fray on the side of the prosecution.

27 A further aspect of the matter is that when the applications were made by each counsel for the applicants that her Honour should excuse herself from further hearing of the prosecution, counsel for the prosecution did not make any submissions in opposition to the application or in support of justification for continuation of the trial before her Honour. Perhaps most significantly, when the matter was the subject of more detailed submissions on the following day 26 June 2014, after obviously taking care and time to obtain proper instructions from the City of Wanneroo, counsel for the second respondent informed her Honour that the prosecution did not oppose the application made by the applicants. This is an important feature of the case because it gives an indication that counsel for the prosecution and his client recognised that there may be a material risk of a perception of absence of impartiality or objectivity and that in those circumstances the occasion was one which favoured the learned magistrate withdrawing from any further participation in the trial. That was not the subject of any detailed attention by the learned magistrate. It is easy to understand how any judicial officer in those circumstances, after such an advanced stage for a prolonged trial, would be eager to avoid such a major disruption and to continue with the trial. However, this position of the prosecution was an important warning which, in my respectful view, should have received greater recognition and significance.

28 In support of the submission that the events which transpired before the Magistrates Court at this trial may give rise to a reasonable apprehension of bias, counsel for the applicants referred to a series of decisions in which that concept has been analysed and explained. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492 [11] the court, comprising five members of the court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said:

It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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.

29 Only shortly later in that same year the court again addressed the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 when Gleeson CJ, McHugh, Gummow and Hayne JJ in a joint judgment said at [6] - [8]:

[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. It is convenient to refer to it as the apprehension of bias principle.

[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. 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.

30 This present case involves no submission, suggestion or assertion that the learned magistrate had an interest in the litigation or an interest in a party to it. Rather, the submission itself discloses the feared deviation from the course of deciding the case on its merits, by identifying the feature of the case that the learned magistrate made independent enquiries of her own into factual issues in possible contention between the parties and put a proposition to one of the defendants in cross-examination reasonably capable of conveying the impression that her Honour did not accept the truth or reliability of evidence on that point which the witness had previously given. In other words, the submission is that the learned magistrate relied on extraneous matters rather than evidence before the court to question the truthfulness, or reliability of evidence given by one of the defendants.

31 There are a number of cases in which courts have examined the potential significance of private enquiries made by a judicial officer on the appearance of impartiality and integrity of the judicial process. These include Teakle v The State of Western Australia [2007] WASCA 15 [32] - [34] (Pullin JA) and [62] (Buss JA). The risk to the integrity of the process of trial by jury constituted by jurors carrying out their own unsupervised enquiries has led to criticism and an examination of the possibility of sanctions against such jurors in cases such as R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 [239]. See also Hansen v The State of Western Australia [2010] WASCA 180 [27] - [29] and Sabourne v The State of Western Australia [2010] WASCA 242 - see especially the observations of Pullin JA in Teakle [33].

32 The principle is stated in terms of unmistakable clearness in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 350 - 352. That was a case where a court counsellor had approached a judge of the Family Court in the judge's private chambers to complain about the intended adjournment of the hearing of a custody application and, in doing so, had volunteered information about her qualifications as a prospective expert witness, had canvassed aspects of the proceedings before the judge and asked counsel for the parties also to attend as well. Mason CJ, with Gibbs CJ and Brennan J, was one of the majority of three (Wilson and Dawson JJ dissenting) held that the actions of counsellor and judge gave rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the issue. Mason J said (350 - 352):

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide ...

The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues ... This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.

33 This is not a case where a judge has, inadvertently or otherwise, received some private communication from a party or a stranger bearing on the case where if, after full examination of the circumstances, including the nature of the communication, it may be possible to dispel any apprehension of bias. The problem is of a different and more challenging nature in that resort to external sources has been made by the judicial officer herself, without any prompting or invitation by the parties, in order for the learned judge, no doubt conscientiously, better to appreciate the accuracy of the evidence which had up to that point been given. It is difficult to avoid the conclusion that this represents the appearance of an independent, unstructured and unsupervised investigation of the facts by the judicial officer, the extent of which cannot be fully canvassed or examined and which is not subject to the usual protections concerning the admissibility of evidence, the right of crossexamination, nor the opportunity to adduce evidence or refute any implications or inferences which might arise from the enquiry.

34 It is, of course, the case that a judge's later statement can be taken into account in assessing any apprehension which the lay observer may reasonably hold arising from the disclosed enquiry or communication - Orleans Investments Pty Ltd v MindShare Communications Ltd [2009] NSWCA 40; (2009) 254 ALR 81 [36] and any such statement must be carefully considered objectively by any reviewing court to evaluate its effect. That is not to say that such examination involves any scrutiny of the accuracy or subjective intention of the judicial officer whose conduct is the subject of the application. The test must always be directed to what a reasonable objective lay observer may reasonably infer or conclude on the facts which have happened or been disclosed. There has been no suggestion in the present case that the enquiries made by her Honour in this case were anything other than conscientious and innocent. However, the issue which has arisen from what occurred is that it has been disclosed that the learned magistrate undertook, independently and outside the courtroom, enquiries bearing on the accuracy or reliability of evidence which had been given in the courtroom thus giving rise to a reasonable apprehension that those enquiries or their results, or the possibility of other similar enquiries, may influence her Honour's decision on certain aspects of the case, leaving the impression that there is a danger that the decision may be based not on evidence received in the courtroom but on other material or the influence of that other material upon evidence which was received in the courtroom. That appears to be, with all respect, an insuperable risk and problem in the present circumstances and one which is not eradicated or allayed by the detailed subsequent explanations which her Honour gave.

35 In view of these conclusions, it is not necessary to examine all the submissions of counsel for the applicants nor all the grounds relied on in support of the relief sought by the originating motion. Nevertheless, I consider that I should observe that insofar as the applicants rely upon an apprehension of bias arising or a denial of procedural fairness, that that ground has also been made out. This is because, in the light of what had occurred, there was no opportunity for the applicants to be informed adequately or at all of the full extent of any enquiries made by her Honour or to adduce evidence or submissions in response to potentially adverse material. As has been said in Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]:

It is a fundamental principle where the rules of procedural fairness apply to a decisionmaking process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of the adverse material.

36 In the circumstances of this present case, the private enquiries made by her Honour were not fully disclosed. There were no means by which they could be fully disclosed or verified. It follows that the applicants were deprived of the opportunity to ascertain the full extent and content of the adverse material, if it were adverse, or to evaluate its impact. With all respect, I consider this to amount to a breach of procedural fairness, although this is a conclusion which, to a large extent, overlaps the conclusions which I have already expressed.

37 In these circumstances, I consider that an order in the nature of prohibition should be made and the court should order that the learned magistrate be prohibited from continuing with the trial of these seven charges. It follows that there should be an ancillary order that there should be a retrial of these charges in the Magistrates Court on a date to be fixed before a different magistrate.