B v Director of Public Prosecutions [2014] NSWCA 232

B v Director of Public Prosecutions [2014] NSWCA 232

The reasoning of Hosking ADCJ included a general statement not supported by evidence—that no normal woman in her right mind would have unprotected sex with a man she knew to be HIV positive. This remark created an appearance of preconception not based on evidence, giving rise to a real and not remote possibility that the judge may not have brought an impartial mind to the appeal; thus, apprehended bias was established and jurisdictional error found. As a result, the District Court decision was quashed and the matter remitted for redetermination.

Parties
Applicant: B; First Respondent: Director of Public Prosecutions (NSW); Second Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
21 July 2014
Procedural Posture
Judicial Review / Appeal (court of Appeal, From District Court and Local Court)
Outcome
District Court decision quashed; matter remitted for redetermination. Non-publication order made.
Legal Topics
Judicial Review, Procedural Fairness, Apprehended Bias, Bias, Public Health Act Offences, Suppression Orders
Administrative Law Criminal Law Judicial Review Procedural Fairness Apprehended Bias Bias Public Health Act Offences Suppression Orders

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Parties

B

Applicant

Director of Public Prosecutions (NSW)

First Respondent

District Court of New South Wales

Second Respondent

Procedural Posture

Judicial Review / Appeal (court of Appeal, From District Court and Local Court)

Legal Issues

  1. 1 Whether jurisdictional error occurred in the District Court's appeal determination upholding the applicant's conviction under Public Health Act 1991, s 13(1)
  2. 2 Whether apprehended or actual bias was present in the District Court's judgment
  3. 3 Whether procedural fairness was denied to the applicant in District and Local Court proceedings

Ratio Decidendi

The reasoning of Hosking ADCJ included a general statement not supported by evidence—that no normal woman in her right mind would have unprotected sex with a man she knew to be HIV positive. This remark created an appearance of preconception not based on evidence, giving rise to a real and not remote possibility that the judge may not have brought an impartial mind to the appeal; thus, apprehended bias was established and jurisdictional error found. As a result, the District Court decision was quashed and the matter remitted for redetermination.

Court Disposition

District Court decision quashed; matter remitted for redetermination. Non-publication order made.

Orders

  • Order prohibiting publication or disclosure of information tending to reveal the identity of the applicant, applicant's former wife, or the complainant.
  • Order quashing Hosking ADCJ's 21 November 2013 decision and remitting matter to District Court for redetermination in accordance with law.