Heywood v Local Court of New South Wales

1. [1]

   Brigid Heywood seeks prerogative relief under s 69 of the Supreme Court Act 1970 (NSW) to prevent Magistrate Richardson (“the Magistrate”) from continuing to hear criminal proceedings involving two charges brought against her arising from her alleged conduct in respect of a child on 8 March 2022.

2. [2]

   On 5 July 2023, the second day of the substantive hearing at the Local Court at Armidale, an oral application was made by counsel then appearing for Ms Heywood, Mr Pappas, first for an adjournment to obtain the transcript, and when that was refused, for the Magistrate to disqualify himself from further hearing the matter on the basis of apprehended bias.

3. [3]

   The Magistrate refused the application. He also refused an application for adjournment of the hearing made immediately after his reasons were delivered. Ms Heywood’s counsel indicated an intention to prepare and file a Supreme Court summons seeking prerogative relief. A summons was filed in this Court the next day, 6 July 2023.

4. [4]

   The proceedings continued in the Local Court for a third day on the afternoon of 6 July 2023. At the end of that day, further dates for hearing were discussed. The hearing was listed to continue on 2 April 2024 for three days before the Magistrate, but in January 2024, the dates allocated were vacated by the Local Court. My understanding was that this was done at the request of the Magistrate, apparently because of the part-heard Supreme Court hearing and potential delays to the continuation of the Local Court hearing because of these proceedings.

5. [5]

   At that stage, the hearing in this Court had been adjourned from 7 December 2023, part-heard, to 12 February 2024, as it had been agreed that the tone with which certain things were said by the Magistrate (and counsel) during the hearing required that I listen to the audio file of the whole of the proceedings. At that time, the whole of the audio had not been obtained. The final part of the audio was provided on 24 February 2024.

6. [6]

   Three grounds for judicial review were set out in the summons:

   1. (1)

      That the Magistrate should be disqualified from hearing the case on the grounds of apprehended bias (evidenced by his conduct in the trial).

   2. (2)

      That the Magistrate wrongly refused the application that he must disqualify himself on the grounds of apprehended bias.

   3. (3)

      That the Magistrate applied the wrong legal test when determining the application to disqualify himself, instead applying the test for actual bias.

7. [7]

   The Local Court of New South Wales filed a submitting appearance. The second defendant, the Officer in Charge of the investigation, was represented by a solicitor, Mr Deards, who argued that none of the grounds of appeal were made out and that the matters complained of, taken cumulatively, did not establish a case for apprehended bias.

8. [8]

   Due to the nature of the arguments, it is necessary to reproduce in full a number of the exchanges that occurred in the Local Court. Having listened to all of the audio, and having carefully considered the oral and written submissions made by Mr Howell of counsel on behalf of Ms Heywood, and of Mr Deards, I have come to the view, reluctantly, for the reasons that follow, that the relief sought in the summons should be granted and that all three grounds for judicial review have been established.

9. [9]

   Pursuant to s 69 of the Supreme Court Act, an order in the nature of prohibition will be made, precluding the Magistrate from hearing the proceedings: Police v Heywood. The matter will now have to recommence before a different Magistrate.

The parties and background to the proceedings in the Armidale Local Court

1. [10]

   On 8 March 2022, a public event was held at the Armidale Ex Services Memorial Club to mark International Women’s Day. The event was attended by members of the Armidale community, including students from several local high schools. Ms Heywood was one of three guest speakers at the event. At the time she was the Vice-Chancellor of the University of New England. It is alleged that as attendees mingled following the conclusion of the event’s formalities, Ms Heywood licked her index finger and wiped it on a schoolgirl’s face, making an offensive and racist comment as she did so.

2. [11]

   On 1 August 2022, Ms Heywood was charged with offences contrary to s 61 of the Crimes Act 1900 (NSW), of common assault; and s 4(1) of the Summary Offences Act 1988 (NSW), of behaving in an offensive manner in a public place. She entered pleas of not guilty on 26 September 2022.

Principles - apprehended bias

1. [12]

   As stated by Bell CJ in State of New South Wales v Madden [2024] NSWCA 40 at [100]:

2. [13]

   I have taken into account the following propositions collected by Bell P (as the Chief Justice then was) in Polsen v Harrison [2021] NSWCA 23 that emerged from decisions of the High Court and various Courts of Appeal:

3. [14]

   In 2023, the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 at [37] to [38] per Kiefel CJ and Gageler J and per Gordon J at [67] to [73] further considered in practical terms what was required by the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63:

4. [15]

   Relevance was also placed by Mr Howell on the succinct observations of Johnson J in Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 (“Gaudie”) at [87] to [89]:

Ground 1 - disqualification for apprehended bias

1. [16]

   Mr Howell submitted that the Magistrate manifested apprehended bias by reason of his comments to and about the legal representatives appearing for Ms Heywood, his intervention during cross-examination of witnesses, and his gratuitous and belittling comments made during the three hearing days in July 2023 and the return of subpoena argument that took place on 31 October 2022. It was submitted by Mr Howell that no individual event, exchange or comment relied upon established apprehended bias on its own, but that it is the cumulative effect of the passages relied on that gave rise to an apprehension that the Magistrate was biased.

2. [17]

   Occurring first in time was an issue that arose regarding a return of a subpoena over which the Magistrate presided on 31 October 2022. Earlier in the day, a subpoena issued by NSW Police seeking documents be produced by Ms Heywood’s University employer had been mentioned before the Magistrate but the police prosecutor then appearing, (not Sgt Smith who was the Police Prosecutor with conduct of the matter), had failed to obtain access for the prosecution and had acceded only to a “first access” order to Ms Heywood’s representatives. The effect of this position was that the police had no access at all to the documents it had subpoenaed. This situation needed to be remedied.

3. [18]

   The matter was re-mentioned by Sgt Smith. The transcript has been reproduced in full as Annexure 1 to this judgment, as the way the argument developed is intrinsic to the complainant about it and my conclusions about what occurred. The need to re-mention the matter was raised, and before any submissions were made, the Magistrate directed that Mr Taylor be contacted to reappear by AVL.

4. [19]

   Mr Howell argued that during the resumed AVL hearing, the Magistrate spoke over Mr Taylor several times, “stopping him” from making further submissions, and then made a pre-emptive decision - “access to the Crown” - reversing the earlier ruling. He submitted that the Magistrate’s tone to Mr Taylor was rude and abrupt and that the Magistrate “demanded” written submissions within half an hour which was unreasonable and accused Mr Taylor of making submissions that he “knew” were incorrect. Mr Howell also submitted that the request that Mr Taylor “undertake” to return the documents was unnecessary, and implied that Mr Taylor could not be trusted.

5. [20]

   Unfortunately, the language Mr Taylor used suggested that the prosecution should not be given access to the documents at all, which was not an appropriate submission to make.

6. [21]

   The audio file demonstrated that on occasion both Mr Taylor and the Magistrate began speaking at exactly the same time. They were, in effect, cutting each other off. More than once Mr Taylor used an exasperated and defensive tone and interrupted the Magistrate after the Magistrate had been speaking for some seconds.

7. [22]

   This can be a feature of AVL advocacy, (and it is difficult to assess the actual effect at the time of possible delays in transmission), but there does seem to have been an element of what could be interpreted as frustration and impatience on the part of the Magistrate to deal with the issue quickly, given more time was now being taken up with the same issue he had already dealt with earlier in the day, and defensiveness by Mr Taylor, who had obtained an order that was favourable to his client earlier in the day, but now that order was to be disturbed. He seemed to have been caught off-guard and was not adequately prepared to argue the merits of his maintained position.

8. [23]

   Mr Taylor did not articulate a proper basis upon which the issuing party should be prevented from viewing the documents, using phrases such as “private information”, or that the documents “may have some sort of privilege”, and “there might be some sort of private information”, and that once the Prosecution “sees the documents they can’t be unseen”. These are not valid objections to inspection and access. As pointed out by the Magistrate, in a reasonable although brusque tone, documents cannot be deployed in the hearing if they are not admissible, not relevant or are protected by privilege.

9. [24]

   The Magistrate was not persuaded by Mr Taylor’s unformed submissions, but still provided a fifteen minute adjournment for Mr Taylor to research the points he seemed to be trying to articulate. Mr Taylor came back with three examples of theoretical privileges which, in the circumstances here, could not realistically apply. The examples given were in the nature of public interest immunity and sexual assault complainant privilege.

10. [25]

    The exchange is not a model of courtesy, but is not out of step with the occasional difficulties of AVL exchanges where people speak over each other, nor is it inconsistent with the robust no-nonsense exchanges that occur in the Local and other courts when what should be a simple procedural matter occupies more time than it should, partly because of the physical absence of a party from the courtroom. Parties were heard and a further opportunity given to Mr Taylor to prepare oral submissions. Ultimately the Magistrate adjourned the issue to a date in November. The documents previously provided to the agent for Mr Taylor were ordered to be returned. The status quo was restored. It appears that the issue of access was later sorted out between the parties, as it should have been to begin with. There was nothing extraordinary, in my view, in requiring an undertaking from the solicitor to ensure documents were returned. That has been, in my experience, standard practice adopted by many judicial officers.

11. [26]

    There is nothing in the tone or conduct of the Magistrate on this date that adds any weight at all to the assertion of apprehended bias when considered either prospectively, or retrospectively.

12. [27]

    Complaint is made by Mr Howell that his Honour adjourning the matter on 14 November 2022 to a January 2023 date was inappropriate and that requiring Mr Taylor’s physical appearance was unreasonable. I do not agree. The requirements on 31 January 2023 for the parties then present to go outside and “sort it out” is also not a valid cause for complaint. It is consistent with ss 56 to 60 of the Civil Procedure Act 2005 (NSW), directing parties to approach disputes in a way that saves court time. The fact that Mr Taylor is retained in a matter listed for hearing in a different state and location to the physical location of his office, is not a basis for preferential treatment.

4 July 2023 - first day of hearing - first complaint - timeframe for documents

1. [28]

   The hearing commenced before the Magistrate with the accused represented by Mr Pappas, barrister, with Mr Howell (as junior counsel in a non-speaking role), instructed by Mr Taylor, solicitor. A police prosecutor, Sgt Smith, appeared for the prosecution. Prior to this, a different Magistrate had granted leave for the Informant child to give evidence by AVL from Rockingham in Western Australia, where she was then living with her parents.

2. [29]

   A question arose immediately about whether the documents the complainant would require for cross-examination had been provided to the relevant location. The time in Rockingham was two hours behind Armidale. 11:00am in Armidale was 9:00am in Rockingham:

3. [30]

   Complaint is made by Mr Howell that the Magistrate “demanded” the solicitor attend to the task “in ten minutes” and that that presented timeframe was unreasonable given that at a later point that morning, the Magistrate allowed the police prosecutor a ten-minute break while a police witness was located.

4. [31]

   There is nothing at all surprising, let alone demanding, about the Magistrate’s request that a timeframe be put around delivery of documents. It is important for the smooth running of the hearing that relevant documents make their way to the right place so that the Informant can be cross-examined and potential delays to that process are minimised. No doubt a timeframe within which the Rockingham Local Court can expect to receive the documents is also relevant to managing the situation. This exchange adds nothing at all to the question of apprehension of bias, when considered on its own, or in combination with all of the other matters of which complaint is made.

Early and “unnecessary” objections by Sgt Smith and Magistrate’s tone suggesting intolerance of counsel?

1. [32]

   Mr Howell complained that Sgt Smith objected early and unnecessarily to cross-examination of the first witness called, the Officer in Charge of the investigation, and that his Honour’s words and tone suggested intolerance of counsel:

2. [33]

   Mr Howell complained that the objection at the fourth question had no proper basis and that the Magistrate interrupted when Mr Pappas sought to rephrase the question. He argued that the Magistrate’s tone was derisive and that he implied that Mr Pappas was acting improperly or incompetently or both.

3. [34]

   I do not agree this complaint is made out. His Honour is attempting to assist in directing the track and tone of the cross-examination to relevant matters. I do not agree the tone was derisive. It was pointed.

4. [35]

   Soon after this, the following objection was made and debated with Mr Pappas not being prepared to accept the ruling of the Court:

5. [36]

   Mr Howell submitted that this exchange showed the Magistrate endorsing an objection without any proper basis and kept saying “proceed” or “just proceed” or “ask your question” suggesting impatience with counsel and disinterest.

6. [37]

   Whilst annoyance is betrayed in the tone of the Magistrate, the stentorian, slow and labouring tone and content of the cross-examination was notable. I do not agree that the objection was not a valid one. More patience could perhaps have been extended when Mr Pappas made the speech drawing attention to his asserted experience, but this exchange remains in the category of unfortunate, and not one that might cause a fair-minded lay observer to notice anything untoward.

Overzealous objections

1. [38]

   An overzealous objection was taken by Sgt Smith in the following exchange, but Mr Pappas, rather than moving on, the objection having been quickly overruled by the Magistrate, made gratuitous and insulting personal criticism of Sgt Smith referring to “fatuous objections”, and accusing her of making this objection, (and it seems the preceding objections which by then were only limited in number), to be “disruptive”:

2. [39]

   Mr Howell submitted that this was the second time counsel raised the extent of the prosecutor’s objections and their lack of merit but the Magistrate was indifferent to counsel’s request for assistance. Instead he was hurried on to continue, and the Magistrate “cut off any wider discussion”.

3. [40]

   There was no need for wider discussion. Counsel was being offensive. The ruling was made. It was not the time for a speech from counsel.

Criticism of counsel for unclear question

1. [41]

   A question then put to the police witness by Mr Pappas as to where it was that the police officer “thought” that the events had occurred was rightly rejected after valid objection was taken:

Short break allowed for the Prosecution to locate the next witness

1. [42]

   Shortly after this exchange, the police witness’s evidence was completed and there was a six-to-seven-minute delay while another police witness was located and called. The following exchange occurred:

2. [43]

   Mr Howell submitted that there is “an obvious conflict between the Magistrate’s “placid response to this period of delay” when compared with the treatment of Mr Taylor being required to “hurry up” and submit the documents necessary for cross-examination of the Informant to the Registry when the hearing commenced that morning.

3. [44]

   This is a strained interpretation of events. I have already concluded that the timeframe placed around the transmission of documents at the start of the day was not unreasonable. Here, clearly, there is an issue regarding a witness’s physical presence which needs a moment’s pause. What is not reflected in the transcript is that Mr Pappas actually asked that the break be used for his client to go to the bathroom. The following can be heard on the audio recording, but is not reflected in the transcript:

4. [45]

   The complaint regarding these events does not add anything to what a fair-minded lay observer might conclude or perceive. They are normal events in a hearing involving multiple witnesses.

The documents for cross-examination still had not reached Rockingham

1. [46]

   Despite the steps taken earlier in the day (and the failure by the defence to have secured appropriate arrangements before the hearing commenced), problems remained regarding the documents sent to the Court at Rockingham for the complainant to access during cross-examination:

Spurious objections?

1. [47]

   The Informant by this time was 17 years old. She gave her evidence by AVL from Western Australia. Her evidence in chief was short. She was cross-examined in a rather maladroit fashion by Mr Pappas. Mr Pappas complained early and frequently that his cross-examination was being interrupted by Sgt Smith deliberately making spurious objections. Having carefully examined the transcript, I do not accept that as a fair statement. Some objections were overzealous, Sgt Smith evidencing a wish to protect the child from what she perceived to be confusing and unfair questions, and some were incorrect and dismissed accordingly, but Mr Pappas seemed to take offence at any objections being made at all.

2. [48]

   Umbrage was taken by Mr Pappas to a valid, if not elegantly articulated objection to a circuitous and confusing question early in the cross-examination:

3. [49]

   This is an example of the approach taken by Mr Pappas to attack Sgt Smith and her skill and experience, rather than just dealing with the substance of the objection in an appropriate fashion. The tone he used was stentorious and lecturing and the content was offensive and belittling. The Magistrate dealt with it in an even-handed fashion.

Further overzealous objections - descent into more personal remarks by Mr Pappas, this time directed to both Sgt Smith and the Magistrate

1. [50]

   Shortly after this, the following exchange occurred:

2. [51]

   The tone used in this exchange is important. The Magistrate’s tone was crisp and quiet. It is evident that the Magistrate considered, (correctly), that Mr Pappas was bullying Sgt Smith by using unduly personal and insulting terms to articulate his response to her objection and deliberately insulting the Magistrate’s competence in managing the proceedings. It is important to control the court’s process and to cut short, if possible, poor behaviour by one legal practitioner towards another, particularly where one is counsel of some years’ experience and the person being criticised, and, to an extent, bullied, is a police prosecutor of apparently less experience.

3. [52]

   Mr Howell submitted that this exchange demonstrated that counsel was trying to “bring to a head” the fact that the police prosecutor was objecting to questions without any proper basis.

4. [53]

   That is an overly generous view of what was occurring here. Counsel was unacceptably rude. I do not accept the Magistrate was ignoring the “substance” of counsel’s complaint although it could have been managed with more equanimity. Counsel’s complaint was exaggerated and overblown.

5. [54]

   Mr Howell also complained the Magistrate was patronising, as if to suggest counsel might not understand how objections in the Local Court are dealt with. He submitted that the repetition of “what is the question” was openly mocking Mr Pappas. In using this approach he was simultaneously bullying and berating Mr Pappas.

6. [55]

   The exchange was robust and unfortunate. The tone here has begun to shift away from one of maintaining control of the Court’s proceedings, to being overtly critical of counsel. The correction of the unduly personal approach that Mr Pappas had taken was valid as was the request for Mr Pappas to identify his question, but the tone and language used by the Magistrate to achieve that re-direction was beginning a descent towards insult. To say counsel was being “warned” in the context of the exchange, adds to the impression that counsel was doing something very wrong.

A different question then allowed

1. [56]

   The exchange continued with Mr Pappas reading out onto the record Mr Howell’s note of the question. That note contained the substance of the question, but not the edge with which Mr Pappas had initially put it to the young person, which had carried with it a questionable tone and a potentially confusing manipulation of her evidence:

2. [57]

   The question then asked was different in nature and tone of the one to which objection was taken. The sarcastic “edge” was removed and the confusing aspect to it that the (child) witness somehow “owed” her response to “Mr Pappas”, or that she was in some way beholden to him in the way she gives her evidence, was now absent:

Further “interrupting” objections

1. [58]

   A little later, this objection was taken:

2. [59]

   Mr Howell submitted that this was another deliberately interrupting and invalid objection. It was given short shrift by the Magistrate. It was an overzealous objection, and was treated accordingly.

Unprovoked pontification by Mr Pappas leads to a crisp response from the Magistrate

1. [60]

   This is followed by what appears to be a deliberate misunderstanding by Mr Pappas of the Magistrate’s request to respond to the objection taken in the following exchange. When the Magistrate asks Mr Pappas: “What do you want to say”, instead of responding to the objection, Mr Pappas unhelpfully pontificates about the purposes of cross-examination:

An objection with no substance, but sarcasm was used by the Magistrate to Mr Pappas

1. [61]

   The cross-examination proceeded for a while uneventfully and then a one-hour adjournment for lunch was taken. [38] A short time later after resuming after lunch, the following exchange occurred:

2. [62]

   Mr Howell submitted this exchange was sarcastic and belittling and that it implied counsel was incompetent. I agree that is an available interpretation and a fair-minded lay observer may well hold that view.

3. [63]

   There was then the following exchange immediately after:

4. [64]

   Mr Howell submitted that the sarcasm deployed by the Magistrate in: “Sorry, you’ve got other matters to deal with, have you?” was belittling and further called the conduct and competence of Mr Pappas into question. The suggestion Mr Pappas should be physically removed is unambiguous and humiliating.

5. [65]

   The tone was deeply sarcastic and critical. A fair-minded lay observer might reasonably conclude that the Magistrate was taking a very dim view of Mr Pappas’s skills, probity and attention to his task. The exchange then deteriorated to a “push and shove” between Mr Pappas and the Magistrate, ending with a threat that Mr Pappas will be removed if he does not “proceed”.

6. [66]

   This is frankly a shocking suggestion and has well crossed the line from a “short emotional exchange” into something entirely more serious.

7. [67]

   The cross-examination of the Informant then continued as follows with an unfortunately phrased question at the end that prompted derision from the Magistrate:

8. [68]

   Mr Howell submitted that the Magistrate was openly mocking counsel. He was. There was contempt for counsel’s ability to ask an adequate question.

Overzealous premature objections not “controlled” by the Magistrate

1. [69]

   On occasion, Sgt Smith’s objections were premature and overzealous. This is one of them. Sgt Smith was given short shrift by the Magistrate, with succinct reasons:

2. [70]

   At this point the Magistrate expressed frustration with Sgt Smith, not Mr Pappas, given Sgt Smith’s apparent difficulty with understanding the process being adopted here by Mr Pappas:

3. [71]

   After some unedifying submissions from Sgt Smith and some apparent misunderstandings, the Magistrate effectively ruled in favour of Mr Pappas, but Mr Pappas was not content with the ruling which Mr Pappas interpreted, apparently, as “the end” of any further exploration of the documents, rather than the Magistrate communicating that he understood the argument and wanted to move on with the questioning on the document. Sgt Smith seemed not to understand that the document extracted from subpoenaed records could be admissible, in that context, as a business record and was quite obdurate about it being unfair to put it in his way to a vulnerable witness.

4. [72]

   Unfortunately, rather than make a formal call on the subpoenaed material and/or explain courteously to his opponent before its deployment - or at least at the time of its deployment - the provenance of the document and its relevance and role, Mr Pappas waited to the end of the exchange to explain those matters. Exchanges became unnecessarily heated as a result of this approach. His Honour ruled in a way in favour of allowing questioning on the document, but indicating perhaps a preliminary view as to weight.

5. [73]

   Instead of proceeding with the witness, the afternoon derailed:

6. [74]

   Mr Howell submitted that this indicated that rather than hear further from counsel, such was his level of frustration, the Magistrate preferred to adjourn a full hour early. He offered no alternative to written submissions: “It’s my Court, not yours”, and then indicated that the Court would not sit the following day (although a half day had been allocated for the hearing), except to “maybe” at 4:00pm that next day, give a ruling on the issue that had arisen.

7. [75]

   The last part of the transcript appears in capitals, as is the practice to indicate final orders and an adjourned date.

8. [76]

   It appears from Mr Howell’s written submissions that this was somehow interpreted as a raised voice or demand. I do not read it that way, and the audio did not suggest there was a raised voice on the part of the Magistrate. The Court is entitled to adjourn a hearing if and when it considers appropriate, but here, given what had gone before, it should have been with a clearer explanation as to why, and how the balance of the time allocated for the hearing will proceed. To fail to do so was discourteous, although the frustration evidenced by this step taken by the Magistrate was clearly directed to both parties.

5 July 2023 - second day of hearing

1. [77]

   The Magistrate started the day at 2:00pm with his ruling on s 44 of the Evidence Act 1995 (NSW), about which he had apparently received written submissions overnight. The decision was succinct and not the subject of complaint in this Court in terms of its correctness. The judgment concludes:

2. [78]

   This was immediately followed by an application for an adjournment to provide time for Mr Pappas to prepare a transcript-based application for recusal:

3. [79]

   Mr Howell complained that the 2:00pm start time was only notified minutes before. He also raised that the Magistrate made gratuitously insulting comments in the judgment about “irrelevant questions”. On its own, a comment like this may pass unnoticed, but given what had gone before, this adds to the potential for the fair-minded lay observer to continue to think the Magistrate might not bring an impartial mind, because counsel is “so hopeless” and asks a lot of irrelevant questions.

Application by Mr Pappas requesting the Magistrate recuse himself for apprehended bias

1. [80]

   Mr Pappas made the recusal application, commencing as follows:

2. [81]

   Mr Pappas concluded his submissions with the following:

3. [82]

   Whilst Mr Pappas started with some restraint, the vehemence in tone with which the application was made, and the histrionic description of the return of subpoena argument and the loaded and personal criticisms included within the application, were excessive and unnecessary in an application for apprehension of bias, which is all about objective perceptions. The application proceeded for seven pages and was described by Sgt Smith when it was over as a “40 to 50 minute barrage” which included “offensive comments” against her and her behaviour. The correct test was, however, articulated and argued, and for the reasons I will come to, the application ought to have been granted.

4. [83]

   After a short adjournment, judgment was provided ex tempore in the terms set out in the second annexure to this judgment.

Ground 3 - the wrong legal test was applied

1. [84]

   The judgment thoroughly deals with the matters raised, but unfortunately mis-states the relevant test for apprehended bias at a number of places. As correctly submitted by Mr Howell, the Magistrate conflated the test for disqualification on the ground of apprehended bias, with that of actual bias.

2. [85]

   First, his Honour says in the context of dealing with the treatment of Mr Taylor in requiring him to hurry sending the documents to Rockingham as opposed to allowing the Prosecution time for Senior Constable Jordan to be located, his Honour asked, rhetorically: “Would they form a view that it was demonstrative of a bias or an apprehension of bias, on my part? I doubt it”. (Emphasis added).

3. [86]

   Second, in the judgment his Honour denied bullying Mr Pappas - which was one of the accusations Mr Pappas rather volubly made - and denied that he sought to demean Mr Pappas, stating that “my objective was to ensure that the trial proceeded in as orderly a way as it could, and that the defendant has a fair hearing”. His Honour then mentioned the prolix cross-examination and noted that a lot of questions were not the subject of objection but were probably irrelevant questions. These are all reasonable observations to make, but the issue is not the intention of the judicial officer, but how what he says and does might be perceived by the fair-minded lay observer, and that was not addressed.

4. [87]

   Third, his Honour says: “… the combination of things said to result in me holding his legal team in contempt. I do not hold them in contempt”. The subjective position of the Magistrate is irrelevant to the determination of apprehension of bias. In the context of the personal tone of the attack made by Mr Pappas, the direct response by his Honour to this particular accusation is understandable, but it adds to the impression, in the way deployed here, that the focus of his Honour was on actual not apprehended bias.

5. [88]

   Fourth, later in the judgment his Honour says the following in the context of discussing “robust exchanges”:

6. [89]

   This is clearly an articulation of the wrong test. The test is not “would” a reasonable person think this “was” indicative of bias; it is “might” a fair-minded person reasonably think his Honour “might” not bring an objective mind to the determination of the issues.

7. [90]

   Finally, his Honour concluded that he does not think there is any reason why he should recuse himself without at any point in the judgment ever addressing the correct test.

8. [91]

   Mr Deards on behalf of the second defendant submitted that in the context of counsel’s submissions reflecting the language of actual bias, it was not unreasonable for the Magistrate to contextualise his response using that language. He was accused of “deliberately” taking a course, “unfairly making orders” and that he had personal animus to Mr Pappas. He submitted that when the totality of reasons are considered, his Honour understood and appropriately considered the basis of the application.

9. [92]

   Mr Deards submitted that his Honour was in effect in his reasons rejecting that there was any reasonable connection between the alleged state of mind he held, and an apprehension that he would not decide the case on its merits. This Court should make allowance the fact that this was an ex tempore decision in a busy Local Court list with an extremely heavy workload, and read the reasons fairly, making due allowance for the circumstances and not to overly scrutinise them: Roylance v Director of Public Prosecutions (NSW) [2018] NSWSC 933 at [13] per Bellew J. The application was also made without notice.

10. [93]

    Mr Deards submitted that, properly constructed and read in totality, it is clear that the Magistrate applied the test in Ebner and decided the question with reference to what the fair-minded lay observer might think.

11. [94]

    Unfortunately, nowhere in his Honour’s decision does he articulate the correct test, and in at least four different places, he articulated the test for actual bias. A fair and beneficial reading of the judgment as a whole cannot remedy that fundamental problem.

12. [95]

    I acknowledge that the objective application of this particular test can be a challenging task for a presiding judicial officer to perform, particularly during the time pressures of a very busy list in the Local Court and the ups and downs of a hearing. His Honour had an apparently inexperienced police prosecutor, emotive subject matter, (allegations of racism and abusive conduct to a child), a young witness being cross-examined in an obtuse and repetitive fashion, and rude, offensive and truculent behaviour by defence counsel. However it is a task that must be done, and time must be taken to ensure it is done with focus on the appropriate test, and unfortunately here it was not. There was equanimity and patience extended to Sgt Smith at all times. Not so, Mr Pappas.

13. [96]

    Mr Howell’s submissions on this point are correct. Ground 3 of the summons is established and that ground of judicial review succeeds.

Ground 2 - was the Magistrate in error in refusing to disqualify himself at the time of the judgment

1. [97]

   Ground 2 of the summons raises the issue of whether at this stage, his Honour should have disqualified himself on the ground of apprehension of bias.

2. [98]

   Mr Howell submitted that the reasonable fair-minded lay observer might conclude that the exchange set out at [63] and the suggestion that Mr Pappas would be “removed” from the Court if he did not “move on”, was the result of Mr Pappas pursing an unmeritorious case in an untrustworthy fashion that was so bad that despite being a barrister, he should be physically removed from the Court. There is a logical connection between that attitude (by that stage clearly demonstrated given the exchanges that had gone before) and the possibility of a feared deviation from deciding the case on its merits given the extreme nature of that threat.

3. [99]

   Mr Deards argued that nothing complained of rose above “robust debate”, and that the terse tone was occasionally directed to both Mr Pappas and the police prosecutor and the fair-minded lay observer would take that into account.

4. [100]

   In support of this submission, Mr Deards referred to GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) [2013] FCAFC 150:

5. [101]

   Those principles are no doubt correct, but “robust debate” is not what was occurring here. There was by this stage not “testing of counsel’s arguments”, but admonishments, insults and threats directed to Mr Pappas.

6. [102]

   Mr Deards also relied on this quote from Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872:

7. [103]

   What occurred here was by this stage unfortunately more in the nature of “sustained ill-temper”, rather than “momentary outbursts and misunderstandings”. The focus of the ill-temper was on Mr Pappas.

8. [104]

   It is not to the point to argue that Mr Pappas “gave as good as he got”. Mr Pappas’s behaviour was rude, defensive and obnoxious but the Magistrate has a deep-seated obligation to ensure the outer signs of impartiality are exhibited at all times, and to deal with the legal representatives for both sides in an even-handed fashion. If there is a slip into misunderstanding or outbursts of temper or annoyance, there is a need to ensure that they do not recur.

9. [105]

   In my view by that stage there was sufficient material, when considered cumulatively along the lines set out in Gaudie, to satisfy the test that a fair-minded lay observer might reasonably conclude that the Magistrate might not bring an objective mind to the issues for determination. The fact that the Magistrate says he will be impartial, or that I personally think he will be impartial, is not the test.

10. [106]

    Grounds 2 and 3 of the summons have been established, however I have proceeded to consider the transcript of the submissions about balance of the hearing, as requested by Mr Howell. It is appropriate that I consider whether there was any withdrawal, apology, improvement or re-balancing that occurred in the hearing after this stage that could serve to correct or modify any perceptions reasonably held by the fair-minded lay observer. As I have explained in the following part of this judgment, there was not.

Refusal to allow adjournment of the proceedings given indication of intention to file a summons in the Supreme Court

1. [107]

   After judgment was delivered, Mr Pappas sought time to speak to his client. After the adjournment Mr Pappas advised the Court that he was instructed to commence proceedings in the Supreme Court to appeal the judgment. This exchange ensued:

2. [108]

   Mr Howell submitted that the Magistrate was intolerant of counsel’s inquiries as to what would happen if a summons was filed, leaving counsel in a state of uncertainty as to what would occur the following day. This was discourteous, particularly against the background of what had gone on that day, but not particularly so when his Honour made it clear he would consider the position once the summons was provided.

6 July 2023 - third day of hearing

1. [109]

   The third day commenced at 12:40pm with an application for an adjournment of the proceedings made by Mr Pappas on the basis that proceedings had been filed in the Supreme Court. Sgt Smith opposed the adjournment. The Magistrate refused the application with reasons. No complaint is made about this. The matter then proceeded with the continuation of the cross-examination of the Informant. The very first question was objected to:

2. [110]

   At 1:00pm, Mr Pappas interrupted his cross-examination to enquire as to whether there would be a break:

3. [111]

   After this proposal was communicated by the Magistrate, Mr Pappas raised other issues regarding sitting times:

4. [112]

   Mr Howell submitted that this exchange had the effect of humiliating counsel, requiring him to go to the toilet while being “watched” and “monitored” by the Court. This is a rather feverish take on events, but the subsequent refusal to advise if and when there would be a break for lunch was discourteous and discombobulating for all legal representatives. It had the potential to curtail cross-examination due to unexpected timeframes, time pressures, and uncertainties created by this unheralded change to the usual court sitting hours.

5. [113]

   The cross-examination proceeded ponderously. Some time later there was this exchange between the Magistrate and Mr Pappas that arose from another obtuse (although not objectionable) question to the child complainant:

6. [114]

   Mr Howell submitted that there were further non-meritorious objections and then this exchange occurred:

7. [115]

   His Honour adjourned at 2:00pm for half an hour.

8. [116]

   At 2:35pm Mr Pappas raised an issue in respect of documents he had only recently been given which he said that he needed to review before he could further cross-examine the Informant. He also raised matters regarding travel arrangements for his team:

9. [117]

   Mr Howell submitted that this exchange shows a deliberate choice to leave counsel in a state of uncertainty as to when the hearing would adjourn for the day, knowing this affected Ms Heywood’s team and no one else. The hostility to counsel was palpable, and the refusal to raise with Sgt Smith the frequency of her non-meritorious objections continued.

10. [118]

    Shortly after, this exchange occurred:

11. [119]

    Further cross-examination proceeded in an apparent attempt by Mr Pappas to obtain a different answer from the Informant. Sgt Smith objected and the Magistrate ruled on the objection:

12. [120]

    Mr Howell submitted that this was a “parody” of redirecting Sgt Smith and would be seen as such by a fair-minded lay observer. He submitted that it would also be seen as encouragement to her to proceed as she had been doing.

13. [121]

    I do not accept that is the only way the exchange might be viewed, but I accept a fair-minded lay observer might reasonably see it that way.

14. [122]

    A short time later, objection was taken to an inept and confusing line of questioning, but Mr Pappas launched another assault on Sgt Smith’s probity and skill and the Magistrate’s competence in the way that he had been presiding and controlling the proceedings:

15. [123]

    Mr Howell submitted that his Honour’s disdain for counsel is clear from the sarcastic comments: “That’s quite so, Sir. I agree. It’s going on and on”. The comment was snide, and implied counsel’s cross-examination was inappropriately long.

16. [124]

    In the context of asking for time to review the COPS material produced at 2:35pm that day, the following exchange occurred, with the Magistrate deploying a noticeably icy and sarcastic tone:

17. [125]

    Mr Howell submitted that this broadened the cynicism that his Honour had displayed to Mr Pappas, to all three of Ms Heywood’s legal representatives. Mr Howell submitted that the comment was gratuitous, unfair and indicative of contempt for the honesty and professionalism of those legal representatives.

18. [126]

    I agree that is an available interpretation of those comments and one that a fair-minded lay observer may reasonably make.

19. [127]

    After a short adjournment, the following exchange ensued:

20. [128]

    This was, in my view, an example of Mr Pappas “picking a fight” with the Magistrate. Contrary to the submissions Mr Pappas made, the Magistrate did not ask Mr Taylor to stand. Mr Taylor was leaving. It is not unusual for a judicial officer to look at a solicitor who is being asked, through counsel, to make certain arrangements. By this time Mr Pappas was, in my opinion, actively looking for matters to complain about, but nevertheless, in end result, the nature of the exchange added some fuel to the perception that a fair-minded lay observer may have that the Magistrate considers the legal team to be dishonest and incompetent and the defence case potentially affected by that dishonesty and incompetence, and so requiring different and more scrutiny than the prosecution case.

21. [129]

    Some nine pages of transcript later, the cross-examination of the Informant was completed. There was no re-examination and she was excused. There was then a courteous exchange regarding available dates and proceedings were adjourned to 14 July 2023 for the purposes of fixing a further hearing date.

Decision in respect of Ground 1

1. [130]

   The test for apprehended bias has been met. The conduct of the Magistrate after the refusal of the recusal application did not change. No comments were re-visited or retracted with the new day. There was unfortunately more sarcasm and criticism directed to Mr Pappas.

2. [131]

   With respect to his Honour’s attitude and dealings with Mr Pappas, a fair-minded lay observer may have noted, (amongst other things), that the cumulative effect of his exchanges with the Magistrate suggested that his Honour held a dim view of Mr Pappas. Various comments suggested his Honour thought Mr Pappas to be incompetent, rude, discourteous and a time-waster. Whether this is an accurate view for his Honour to hold or not, his Honour on occasion belittled, derided, hurried, harassed, “warned” and at one point threatened counsel with physical removal from the Court. By day three, a fair-minded lay observer might have thought the Magistrate was contemptuous of Mr Pappas.

3. [132]

   His Honour effectively rebuffed concerns raised by Mr Pappas during the hearing about the overly zealous objections being taken by Sgt Smith. The way Mr Pappas chose to voice his concerns was offensive, supercilious and unprofessional, but the initial even-handedness of the Magistrate evaporated and gave way to sarcasm and belittling of Mr Pappas.

4. [133]

   Mr Howell submitted that the totality of the issues that have arisen and the Magistrate’s conduct in this case to date, might lead a fair-minded lay observer to think that the Magistrate bore significant animus towards Ms Heywood’s solicitor and counsel. I accept that submission.

5. [134]

   I also accept Mr Howell’s submission that the fact that the Magistrate’s hostility was directed towards Ms Heywood’s legal representatives and not her personally is not to the point: see Adacot v Sowle [2020] FamCAFC 215 at [102] (per Strickland, Ainslie-Wallace and Watts JJ). His conduct towards Mr Pappas has the appearance of either unfairness in the exercise of power by him, or exhibiting a concern that counsel, and therefore his client, were worthy of derision and so submissions made by him and cross-examination of witnesses conducted by him was not worthy of consideration.

6. [135]

   Mr Howell submitted that by contrast, a fair-minded lay observer might think his Honour held no animus whatsoever towards Sgt Smith, and in fact enjoyed a good working relationship with her. He afforded her “preferential treatment” (allowing her to re-mention a return of subpoena by simply walking into Court); discussed matters with her in the absence of the plaintiff’s legal representatives; did nothing to discourage her from taking what became a chronicle of unjustified (and at times inchoate) objections to questions asked by counsel in the course of the hearing; made no disparaging comments towards her performance as an advocate; imposed no arbitrary or unreasonable time limits on her; and at all times extended to her courtesy and respect in the manner in which he spoke to her.

7. [136]

   Whilst somewhat over-stated, I have concluded that this last submission has some fundamental truth and that attitudinal contrast would have been noticed by a fair-minded lay observer.

8. [137]

   Mr Howell submitted that a fair-minded lay observer might think that such apparent prejudice and partiality might lead the Magistrate to decide the case other than on its legal and factual merits. I agree. The logical connection between the matters identified, and the feared deviation from the course of deciding Ms Heywood’s case on its merits is present here because of the cumulative effect of those factors I have gone over which were only reinforced as the hearing proceeded.

9. [138]

   The perception of impartiality is the fundamental matter that the law in respect of apprehended bias protects. Here, the cumulative effect of what has occurred in this case supports a conclusion that a fair-minded lay observer may reasonably apprehend that given the Magistrate’s apparent animus, contempt and disdain for Ms Heywood’s counsel, and to a lesser extent, her solicitor, he might be unable to put aside a mindset unfavourable to Ms Heywood to a degree compatible with the dispassionate resolution of the case against her. His Honour’s conduct as it developed over the three days of the hearing did nothing to dispel that impression. The remarks went well beyond case management, occasional flares of ill-temper, misunderstandings or redirection of counsel to relevant issues.

10. [139]

    I note the submissions of Mr Deards regarding discretionary matters. He submitted that if the relief sought in the summons is granted, the child Informant will be required to give evidence again and there has been a waste of court time and resources. He also referred to the general undesirability of fragmenting of criminal proceedings. I accept those considerations are important and are of relevance and concern, but they are not sufficient to persuade me that the relief sought should not be granted.

Orders

1. [140]

   I make the following orders:

   1. (1)

      Pursuant to s 69 of the Supreme Court Act 1970 (NSW), an order is made in the nature of prohibition precluding Magistrate Mark Richardson from hearing the proceedings Police v Heywood.

   2. (2)

      Submissions will be heard with respect to the costs of the proceedings.