Kalache v Local Court of New South Wales [2017] NSWSC 1614

Kalache v Local Court of New South Wales [2017] NSWSC 1614

The summons was dismissed because the matters relied on did not establish that a fair-minded lay observer might reasonably apprehend that the magistrate would not bring an impartial mind to the criminal charges. The magistrate's references to the complainant's interests in protection from violence, possible criminal proceedings and family law proceedings were open on the evidence and relevant to the admissibility issue. The reference to the plea for contravening an AVO was parenthetical, related to the existence of AVO proceedings rather than bad character or guilt, and the magistrate knew of it because Mr Kalache's counsel had earlier told him of it, not because the magistrate had...

Jurisdiction
Australia
Judgment Date
23 November 2017
Procedural Posture
Judicial Review Application for an Order in the Nature of Prohibition Under S 69 of the Supreme Court Act 1970 (nsw) / Urgent Hearing of Summons Seeking to Restrain a Magistrate From Continuing Part Heard Local Court Criminal Proceedings
Outcome
Summons dismissed
Legal Topics
['apprehended Bias' 'recusal of Magistrate' 'order in the Nature of Prohibition' 'admissibility of Covert Recording' 'surveillance Devices' 'private Conversation' 'lawful Interests Exception']
['judicial Review' 'criminal Procedure' 'evidence' 'domestic Violence'] ['apprehended Bias' 'recusal of Magistrate' 'order in the Nature of Prohibition' 'admissibility of Covert Recording' 'surveillance Devices' 'private Conversation' 'lawful Interests Exception']

Case Brief

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Procedural Posture

Judicial Review Application for an Order in the Nature of Prohibition Under S 69 of the Supreme Court Act 1970 (nsw) / Urgent Hearing of Summons Seeking to Restrain a Magistrate From Continuing Part Heard Local Court Criminal Proceedings

Legal Issues

  1. 1 ['Whether the Supreme Court should make an order in the nature of prohibition restraining the magistrate from continuing to hear the part-heard criminal proceedings.' 'Whether the magistrate ought to have disqualified himself on the ground of apprehended bias after referring, during an evidentiary ruling, to a plea of guilty for contravene an AVO.' "Whether the magistrate's ruling on the admissibility of a covert recording showed that he had regard to irrelevant material or material not properly before the Local Court."]

Ratio Decidendi

The summons was dismissed because the matters relied on did not establish that a fair-minded lay observer might reasonably apprehend that the magistrate would not bring an impartial mind to the criminal charges. The magistrate's references to the complainant's interests in protection from violence, possible criminal proceedings and family law proceedings were open on the evidence and relevant to the admissibility issue. The reference to the plea for contravening an AVO was parenthetical, related to the existence of AVO proceedings rather than bad character or guilt, and the magistrate knew of it because Mr Kalache's counsel had earlier told him of it, not because the magistrate had...

Court Disposition

Summons dismissed

Orders

  • ['The summons is dismissed.']