Willoughby City Council v Finlay [2010] NSWLEC 184

Willoughby City Council v Finlay [2010] NSWLEC 184

Because the present sentencing matter raised the same or closely related issues that depended or might depend on Mr Mayhew's evidence, and because the judge had made favourable findings of fact or credibility about Mr Mayhew in earlier companion proceedings in which Ms Finlay had no opportunity to challenge that evidence, the circumstances were sufficient to give rise to apprehended bias and required disqualification.

Jurisdiction
Australia
Judgment Date
24 September 2010
Procedural Posture
Prosecution Concerning Unlawful Demolition of a Building / Sentencing Hearing; Defendant's Application for Disqualification on the Ground of Apprehended Bias
Outcome
Application granted; Biscoe J disqualified himself from hearing the matter.
Legal Topics
['apprehended Bias' 'judicial Disqualification' 'sentencing' 'unlawful Demolition' 'companion Proceedings']
['criminal Procedure' 'environmental and Planning Law'] ['apprehended Bias' 'judicial Disqualification' 'sentencing' 'unlawful Demolition' 'companion Proceedings']

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Procedural Posture

Prosecution Concerning Unlawful Demolition of a Building / Sentencing Hearing; Defendant's Application for Disqualification on the Ground of Apprehended Bias

Legal Issues

  1. 1 ['Whether the judge should disqualify himself from hearing the sentencing matter on the ground of apprehended bias arising from findings of fact and credibility made in an earlier companion prosecution.' 'Whether findings favourable to Mr Mayhew in the earlier proceedings, where Ms Finlay had no opportunity to contest his evidence, could give rise to a reasonable apprehension that the judge might not bring an impartial mind to issues in the present case.']

Ratio Decidendi

Because the present sentencing matter raised the same or closely related issues that depended or might depend on Mr Mayhew's evidence, and because the judge had made favourable findings of fact or credibility about Mr Mayhew in earlier companion proceedings in which Ms Finlay had no opportunity to challenge that evidence, the circumstances were sufficient to give rise to apprehended bias and required disqualification.

Court Disposition

Application granted; Biscoe J disqualified himself from hearing the matter.

Orders

  • ['The judge disqualified himself from hearing the matter.' 'The parties were directed to proceed forthwith to the registry to obtain a new hearing date not before Biscoe J.']