Gleeson v Director of Public Prosecutions [2021] NSWCA 63

Gleeson v Director of Public Prosecutions [2021] NSWCA 63

The judge should have recused himself because a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to trial decisions in a criminal proceeding where his longstanding partner, a Crown prosecutor, had advised police that charges should be laid. Her interest in vindication of that professional advice did not cease merely because later prosecutorial steps were taken by others, and the judge's trial role could involve important procedural and evidentiary decisions affecting the success of the prosecution.

Jurisdiction
Australia
Judgment Date
21 April 2021
Procedural Posture
Application for Judicial Review / Court of Appeal Review of a District Court Judge's Decision Declining to Recuse Himself From Presiding at the Applicant's Criminal Trial
Outcome
Application granted; the District Court judgment declining recusal was quashed and prohibition was ordered against the judge further hearing the proceedings.
Legal Topics
['apprehended Bias' 'recusal' 'disqualification by Interest or Association' 'crown Prosecutor Advice to Police' 's 69 Supreme Court Act 1970 (nsw)']
['courts and Judges' 'criminal Procedure' 'judicial Review'] ['apprehended Bias' 'recusal' 'disqualification by Interest or Association' 'crown Prosecutor Advice to Police' 's 69 Supreme Court Act 1970 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Judicial Review / Court of Appeal Review of a District Court Judge's Decision Declining to Recuse Himself From Presiding at the Applicant's Criminal Trial

Legal Issues

  1. 1 ["Whether a District Court Judge was disqualified by apprehended bias from presiding at the applicant's criminal trial because his partner of 29 years was a Crown prosecutor who had advised police to lay charges against the applicant." "Whether the Crown prosecutor's lack of involvement in later pre-trial steps removed any reasonable apprehension of bias." "Whether there was a logical connection between the judge's relationship with the Crown prosecutor and the feared departure from impartial trial management and evidentiary decision-making."]

Ratio Decidendi

The judge should have recused himself because a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to trial decisions in a criminal proceeding where his longstanding partner, a Crown prosecutor, had advised police that charges should be laid. Her interest in vindication of that professional advice did not cease merely because later prosecutorial steps were taken by others, and the judge's trial role could involve important procedural and evidentiary decisions affecting the success of the prosecution.

Court Disposition

Application granted; the District Court judgment declining recusal was quashed and prohibition was ordered against the judge further hearing the proceedings.

Orders

  • ['Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of his Honour Judge McLennan of the District Court declining to recuse himself from any further hearing of proceedings 2019/253909.' 'An order in the nature of prohibition prohibiting his Honour Judge McLennan from further hearing proceedings...