[2011] HCA 2
Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
DPP v Sami El Mawas (2006) 66 NSWLR 93
[2006] NSWCA 154
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
[2000] HCA 63
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Re JRL
Source
Original judgment source is linked above.
Catchwords
[2011] HCA 2
Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
DPP v Sami El Mawas (2006) 66 NSWLR 93[2006] NSWCA 154
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Re JRL
Judgment (5 paragraphs)
[1]
JUDGMENT
Mr Eid has made an application by way of email that I "not preside over" a second application for a diversionary order under ss 12, 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). What follows is a judgment setting out the law as I understand it. It is in no way intended to be a personal criticism of Mr Eid who is an experienced and highly regarded legal practitioner.
[2]
An email communication
The applicant has been charged with common assault under s 61 Crimes Act 1900 (NSW). The alleged victim of the offence is her daughter. The applicant entered a plea of not guilty to the charge on 13 July 2022 and the matter was fixed for a defended hearing on 22 March 2023.
On 7 September 2022 Mr Eid made a diversionary application under s 14. The application was refused by me with reasons following a hearing.
On 11 October 2022 Mr Eid requested, by way of an email to the court, that the matter be listed for a second application under s 14. The Registry replied to the email on 25 October 2022 and advised that the matter would be relisted before Donnelly LCM on 1 November 2022. That is, the same Magistrate who determined the first application.
On 25 October 2022 Mr Eid replied to the email of the Registry in the following terms:
Dear Registrar
The defence respectfully request that his Honour not preside over this application, given his previous determination of the earlier application that was strongly supported by the prosecution.
As I understand it, it is usual convention for a different Magistrate to consider a fresh application.
Yours faithfully
Danny
The email reply of Mr Eid did not include the prosecutor.
Given the email asked for the Registrar to assign the case to another Magistrate it was brought to my attention by the Registry and the matter was listed before me on 1 November 2022.
Rule 22.5 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 provides as follows:
22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:
22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
The rule is directed at communications and I quote "in the opponent's absence with the court concerning any matter of substance in connection with current proceedings."
A request that a judicial officer "not to preside over" an application cannot be characterised as a matter not of substance. For the purposes of r 22.5 it must be accepted that a request for a Magistrate not to preside by a solicitor acting on behalf of a defendant in a second application for a diversionary order is a "matter of substance."
The issue of direct email communication to a court without notifying an opponent has been raised in recent Supreme Court decisions. There is no reason to doubt that the approach of the Supreme Court takes to the issue of email communication should be any different for the Local Court.
In Stanizzo v Badarne [2014] NSWSC 689 Robb J said at [72]:
"It is necessary to remind … all legal practitioners to whose attention these reasons for judgment may come, that ethical rules and principles of the highest importance to the administration of justice apply to the circumstances in which parties or their representatives may communicate directly with the chambers of a judge appointed to hear any proceeding, and that the necessary procedures must be complied with punctiliously."
In that case the Court adopted the observations of Kunc J in Tugrul v Tarrants Financial Consultants Pty Ltd (in liquidation) [No 2] [2013] NSWSC 1971 at [21] where His Honour said:
"There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent."
The conduct of the legal practitioner in each of those cases concerned communicating directly with a Justice's chambers. In this case it involved an email communication with a Registrar of a Local Court requesting that a Magistrate "not preside over" an application. That kind of communication safely falls into the same category of prohibited communication referred to in the two cases cited. This is because Local Court Registrars (not Associates) are the medium between the bench and the profession. Magistrates in New South Wales do not have Associates.
When the issue of inappropriate communication was raised with Mr Eid he apologised and stated it was an oversight that he did not include the prosecutor.
Putting aside the procedural fairness objective of r 22.5 it must also be accepted that a request for a Magistrate "not to preside over" an application is a matter that should be dealt with in open court. Judicial officers have a duty to exercise their functions and transparency is an essential element of the administration of justice.
In Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Chief Justice Gleeson, McHugh, Gummow and Hayne said at [19]:
"Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable."
These observations apply equally to Magistrates exercising jurisdiction in the Local Court.
[3]
The application
After I raised the issue of email communication with Mr Eid, I then asked whether he still wished to maintain his application for disqualification. He indicated that he did. I asked the basis of his application. It was not easy to discern which aspect of the law of judicial bias he was relying upon. Mr Eid submitted that he relied upon his professional experience of many decades and that he had also conferred with experienced legal colleagues. He appeared to submit that he did not doubt my capacity to adjudicate. That is, it was not a case of actual bias but one where there was an appearance of bias although he did not use that expression. He was asked whether he was relying upon any law on the subject including High Court decisions such as British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2. He indicated that he was not relying on any case law on the subject only the matters that he had raised about his professional experience. The email to the court made reference to the "usual convention for a different Magistrate to consider a fresh application". The court raised with Mr Eid whether he was aware of a disqualification provision in the context of previous forms of the statutory scheme for diversionary orders. He submitted that he was not aware of such a provision. On the basis on the submissions the application before the court will be treated as one based on a reasonable apprehension of bias by reason of pre-judgment.
Sgt Coote for the prosecution was asked the position of the prosecution to the application. He submitted that he did not oppose the application but queried whether the prosecution had standing in the application. The prosecution has standing in an application to recuse in a second diversionary application.
[4]
Legislative history
The issue before the Court is informed by the legislative history of diversionary applications in New South Wales. The second application before the Court is made under Mental Health and Cognitive Impairment Forensic Provisions Act 2020. This is the current enacted version for diversionary orders. The first version of the statutory scheme was found in ss 428V-428Y of the Crimes Act. In 1989 a disqualification provision - s 428XA - was inserted into the statutory scheme by the Crimes (Mental Disorder) Amendment Act 1989 (NSW) which commenced on 17 September 1989 (Government Gazette of the State of New South Wales, No 93, 8 September 1989, at 6584). Section 428XA provided:
428XA Disqualification of magistrate
(1) If:
(a) a magistrate has inquired into whether a defendant should be dealt with under section 428W or 428X, and
(b) the magistrate has decided not to so deal with the defendant,
the magistrate shall, on the application of the defendant, disqualify herself or himself from further hearing the proceedings concerned.
(2) An application may only be made by a defendant under this section if:
(a) except as provided by paragraph (b), the question whether the defendant should be dealt with under section 428W or 428X has not been previously inquired into by another magistrate in the same proceedings, or
(b) in the case of proceedings in which another magistrate has previously inquired into whether the defendant should be dealt with under section 428W or 428X, the magistrate before whom the proceedings are being heard considers that it should, because of the circumstances of the case, be permitted to be made.
The Second Reading Speech of the Hon Mr Dowd, Attorney General for the Crimes (Mental Disorder) Amendment Act simply notes the insertion of s 428XA. The speech does not provide any rationale for its inclusion. The statutory scheme in ss 428V-428Y including s 428XA of the Crimes Act was then repealed and replaced by the Mental Health (Criminal Procedure) Act 1990 (NSW) later renamed the Mental Health (Forensic Provisions) Act 1990 (NSW). For present purposes the disqualification provision in 428XA was re-enacted in the Mental Health (Criminal Procedure) Act 1990 as s 34 in materially similar terms. However s 34 was then repealed by cl 21 of Schedule [1] of the Mental Health (Criminal Procedure) Amendment Act 2005 No 109 (NSW) on 1 January 2006 (Government Gazette of the State of New South Wales, No 158, 16 December 2005, at 1190 (LW 2005-856)).
The disqualification provision was therefore in force from 19 September 1989 to 1 January 2006. When Parliament repeals a provision in a statute it is not always easy to determine the rationale for why it was done. However in the case of the repeal of s 34 the position was made very clear in the Second Reading Speech. The Hon Ms Alison Megarrity (Member for Menai - Parliamentary Secretary) in a Second Reading on behalf of the Hon Mr Bob Debus said as follows:
Item [21] omits section 34 of the Act, which requires a magistrate to disqualify himself or herself, on the application of the defendant, from hearing the proceedings if the magistrate has refused to deal with the defendant under sections 32 or 33 of the Act. Members of the magistracy have noted that this section permits spurious applications to be made to facilitate magistrate shopping. The improper use of this section can create problems in regional areas serviced by a single magistrate, and result in lengthy delays in the resolution of the proceedings. The repeal of section 34 will not remove the common law obligation on magistrates to disqualify themselves where appropriate.
The common law provides that a magistrate should not hear and determine proceedings if affected by actual bias, or if there is a reasonable apprehension that the magistrate is not impartial and unprejudiced. That is the test to be applied in all proceedings and the same test should apply in relation to continuing to hear a matter after declining to divert a defendant under section 32 or section 33. The situation is no different to where magistrates continue to hear matters, where appropriate, even though the facts, criminal history and evidence about the mental condition of the defendant have been raised on bail hearings. [emphasis added]
The repeal by Parliament of s 34 by the Mental Health (Criminal Procedure) Amendment Act 2005 No 109 previously - s 428XA - was designed to prevent what was described as "spurious applications"… to facilitate "magistrate shopping". The current version of the statutory scheme is found in the Mental Health and Cognitive Impairment Forensic Provisions Act which has been in force from 27 March 2021 (sec 2 and 2021 (116) LW 19.3.2021). Section 167 of that Act repealed the Mental Health (Forensic Provisions) Act 1990. The current statutory scheme was enacted following another comprehensive review of the law by the New South Wales Law Reform Commission in two reports: Report 135 (2012) People with cognitive and mental health impairments in the criminal justice system: Diversion. See discussion pp 245-273 and Report 138 (2013) People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences.
Parliament must be taken to have been aware of the legislative history of these provisions - including s 428XA and s 34 referred to above - and elected not to enact a disqualification provision. More particularly, declining to enact a provision in the current statutory scheme to cover the scenario when a court continues to hear a matter after refusing a first application. This election by the Parliament is a relevant matter in determining this application that I should not preside over a second application.
This legislative history also squarely raises the issue of how this second diversionary application before the court could or would be dealt with in a country court or a country circuit with a single Magistrate. The simple answer is that if Mr Eid were correct - that there is a convention for a different Magistrate to consider a fresh application - there would also have to be an application to move the second application to a different court. Section 30 of the Criminal Procedure Act 1986 (NSW) permits moving matters to another court or jurisdiction. It provides that in any criminal proceedings, if it appears to the court that a fair or unprejudiced trial cannot otherwise be had, or that for any other reason it is expedient to do so, the court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require.
At present there is no judicial practice in country courts or country circuits with a single Magistrate of disqualification by the Magistrate and changing the venue for a second diversionary application. If a second application is made it is determined on the merits applying the relevant statute on its terms. Where a second diversionary application is determined in a country court or a country circuit by the same Magistrate it cannot be regarded as second tier or inferior justice. By the repeal of s 34 the NSW Parliament has made clear that no special rule should exist for disqualification where a diversionary application has been refused.
There are other areas of the law which inform the issue where subsequent applications may be made. The most common is under s 74 of the Bail Act 2013 (NSW). Section 74 provides that a court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. Section 74(3) sets out the grounds for a further release application. It is not necessary to detail those grounds here. It is enough to state that second and subsequent applications are made for release regularly after a release application is refused. There is no body of law in relation to judicial bias governing those second and subsequent applications. Further, there is no judicial practice of Magistrates disqualifying themselves for a second release application under s 74 because they have determined the first application and refused bail. Nor is there a judicial practice that a Magistrate having read the facts in a bail determination should later disqualify themselves from presiding over a subsequent defended hearing.
I turn now to aspects of the law in relation to judicial bias. The application before the court was not framed with reference to the case law including the convenient frame of reference or bases identified in Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 74. The High Court identified four relevant matters: 1. interest - where the judge has an interest in the proceedings whether pecuniary or otherwise, giving rise to a reasonable apprehension of prejudice, partiality or prejudgment; 2. conduct - where the judge has engaged in conduct in the course of, or outside, the proceedings, giving rise to such an apprehension of bias; 3. association - where the judge has a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings; and 4. extraneous information - where the judge has knowledge of some prejudicial but inadmissible fact or circumstance giving rise to the apprehension of bias. None of these four matters were raised in the application.
I turn now to some of the cases that have applied the key principles. There is a line of authority which emanated from the High Court decision of Livesey v New South Wales Bar Association (1983) 151 CLR 288 concerning findings made by judicial officers in previous decisions. In that case two Justices of the Court of Appeal of NSW had made adverse findings as to Mr Livesey's credibility in an earlier proceeding against a person called Wendy Bacon. The later case against Mr Livesey brought by the Bar Association was for him to be struck off the Roll. The circumstances relied upon arose out of the same event (bail surety) as the previous case against Wendy Bacon.
The High Court held that a fair-minded observer in those circumstances might entertain a reasonable apprehension of bias because two members of the court had previously made adverse findings in relation to Mr Livesey's credibility.
The High Court returned to the issue that had been raised in Livesey v New South Wales Bar Association in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2. In this case the court explicitly raised that latter case with Mr Eid but no substantive submissions were made about the case.
The line of authority which emanated from the High Court decision of Livesey v New South Wales Bar Association (1983) 151 CLR 288 does not apply in this case. This is because there is no suggestion in this case that in the first diversionary application I made any adverse findings as to the credibility of the applicant. It was not argued that any of these cases apply.
This is not a case where the application to disqualify has been made because a Magistrate has viewed material as part of a diversionary application, refused the application, and then presided over a defended hearing. It is a second application under the same statute in the same proceedings to divert the applicant. It is well settled that a diversionary order under s 14 is a discretionary decision as it was under its statutory predecessor. See DPP v Sami El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [74] ff. And as Howie J explained in Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 at [17]:
"…the Magistrate has to perform a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system".
Section 15 of the Act sets out various considerations that a Court may have regard to in deciding whether it would be more appropriate to divert a defendant. It is an evaluative decision. Mr Eid on behalf of the defendant indicated that the second application would include new material not before the court in the first application particularly additional material from the applicant's psychologist. If a second application is made it will be determined on its merits applying the relevant statute on its terms.
Justice Mason (as he then was) said in the High Court decision of Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."
The application that I disqualify is refused. In summary the applicant has failed to establish that there is a "usual convention for a different Magistrate to consider a fresh application". The legislative history of the diversionary statutory scheme reveals that there was a problem in this area of the law and particularly for what was described as "Magistrate shopping". The clear message from Parliament by the repeal of s 34 was that the common law in relation to judicial bias would apply but there would be no special rule for second diversionary applications. The applicant has failed to point to any common law authorities in support of the application. I have not made any adverse findings in relation to the applicant's credibility in the first application. Finally, the application to disqualify must be viewed with reference to other areas of the law where a second application can be made in the same proceedings such as bail. There is no judicial practice of disqualification in that area of the law for second applications. There is no reason the same approach should not apply to diversionary applications. In this case there is no reasonable apprehension of bias.
For these reasons the application that I disqualify or not preside over the application is refused. The formal order is as follows. The application that Magistrate Donnelly disqualify himself from presiding in a second diversionary application under s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 in the same criminal proceedings where he determined the first application is refused and dismissed.
[5]
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: 06 April 2023
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
TW
Legislation Cited (9)
Crimes (Mental Disorder) Amendment Act 1989(NSW)
Mental Health (Forensic Provisions) Act 1990(NSW)
Mental Health (Criminal Procedure) Act 1990(NSW)
Mental Health (Criminal Procedure) Amendment Act 2005(NSW)